United Air Lines, Inc. v. Janice Wiener and Catherine B. Nollenberger (Excluding Faith C. Paris), United States of America v. Janice Wiener

These appeals are from judgments in thirty-one cases arising out of a mid-air collision between a DC-7 propeller driven commercial airliner owned and operated by United Air Lines (hereinafter “United”) and an F-100F United States Air Force jet fighter. The collision occurred on April 21, 1958, near Las Vegas, Nevada. The DC-7 was carrying 42 passengers and a crew of 5; the jet was carrying two Air Force pilots. There were no survivors.

All of the actions were brought under the Nevada Wrongful Death Statutes: Nev.Rev.Stats. §§ 12.090, 41.080, 41.090. In all 31 cases, the plaintiff’s decedents were passengers for hire on United’s DC-7, including 7 civilian employees of the government and two members of the Armed Forces, all of whom were traveling in the line of duty as such. We will hereinafter refer to 22 nongovernment employee cases and 9 government employee cases. United was a defendant in all 31 actions, and the United States of America (hereinafter “the government”) was a co-defendant in the 22 non-government employee eases. In 5 of the 9 government employee cases, the government, as co-plaintiff, sued United as a statutory subrogee in enforcement of its lien rights under the Federal Employees’ Compensation Act: 5 U.S.C. §§ 751 et seq., 776. In the 22 nongovernment employee cases, the government sought contribution from United; United sought indemnity from the government in all 31 cases.

Twenty-four of the suits (the 22 non-government employee eases and two of the government employee cases) were filed in the Southern District of California where they were tried together on a consolidated basis. 1 All of these were tried to a jury as to United, and the 22 nongovernment employee cases in this group were tried as to the government to the same jury on an advisory basis, followed by court findings of fact and conclusions of law. The claims between United and the government on the issues of contribution and indemnity were tried to the court. Judgments were entered in favor of the plaintiffs in these 24 cases; United and the government were granted contribution each against the other in the 22 nongovernment employee cases; United was denied indemnity from the government in all 24 cases. See Wiener v. United Air Lines, 216 F.Supp. 701 (S.D.Cal.1962) ; Rhoades v. United States, 216 F.Supp. 732 (S.D.Cal. 1962). This group of 24 cases is referred to by the parties as the “Wiener cases”, a designation adopted herein.

*385 The remaining seven cases, all involving government employees and including the five cases in which the government sued as a co-plaintiff, were pending against United in the District of Nevada at the close of trial in the Wiener cases. These cases are referred to as the “Nevada cases” and were presided over by the same district judge who presided over the Wiener cases. The District Court for the District of Nevada granted motions for summary judgments in favor of the plaintiffs and against United on the issue of liability in these cases on the ground that United was collaterally estopped to deny liability to the plaintiffs therein under the doctrine of res judicata by virtue of the verdicts and judgments in the Wiener cases. United States v. United Air Lines, 216 F.Supp. 709, 729 (D.Nev.1962). Thereafter, upon stipulation of the parties as to forum, non conveniens, the cases were transferred to the District Court for the Southern District of California for trial on the issue of damages only. After having been transferred, the Nevada cases were tried together to a jury other than that previously empaneled in the Wiener cases on the issue of damages in each ease. In two of these cases the court increased the amount of damages returned by the jury in the respective verdicts. See Nollenberger v. United Air Lines, 216 F.Supp. 734 (S.D.Cal. 1962.) The District Court dismissed United’s claims against the government for indemnity in all the Nevada cases.

United and the government each appeals from the judgments rendered against them and in favor of the passengers’ representatives (hereinafter ap-pellees) . United appeals from the denial of indemnity over against the government in all 31 cases, from the awards of contribution to the government, and from the lower court’s action increasing the amount of damages returned by the jury in two of the Nevada cases. The government appeals from the district court’s action in limiting the amount of contribution by United in three cases. None of the parties specifies error regarding the admission or exclusion of evidence.

Before discussion in detail the issues raised in these appeals, we shall summarize those findings of fact made by the district court which are not in dispute in an effort to describe the circumstances of the collision.

United’s Flight 736 was a regularly scheduled flight which departed Los An-geles International Airport at 7:37 a. m. on April 21, 1958. Prior to takeoff, United filed with the Civil Aeronautics Administration (CAA) Air Route Traific Control Center at Los Angeles an Instrument Flight Rules (IFR) flight plan which proposed the use, inter alia, of Victor 8 airway to Denver, Colorado. The flight plan also proposed a cruising altitude of 21,000 feet mean sea level, a true air speed of 305 knots, and a departure time of 7:35. Victor 8 airway was a major transcontinental airway established by the CAA in 1952 and was used extensively by air traffic including large passenger airliners such as United’s DC-7. Victor 8 airway includes the navigable airspace up to an elevation of 27,000 feet mean sea level above the earth’s surface within five statute miles of each side of a prescribed center line. It extends from Long Beach, California, to Washington, D. C., and passes over Las Vegas, Nevada. It was common knowledge that Victor 8 was a regular route for two-way traffic at the time of the accident. The Air Route Traffic Control Center of the CAA at Los Angeles issued an IFR air traffic clearance to Flight 736 to proceed to Denver in accordance with the proposed flight plan, which clearance was acknowledged by the flight. A copy of the flight plan was immediately forwarded by teletype from the Los Angeles Center to the Salt Lake City, Utah, Center of the CAA. At about 8:14, the CAA Centers at Los Angeles and Salt Lake City received a report from Aeronautical Radio, Inc., which serves under contract to United as a radio communicating facility, that Flight 736 had estimated its time of ar *386 rival over McCarran Field at Las Vegas, Nevada, at 8:31.

At approximately 7:45 that morning an Air Force F-100F Super Sabre Jet fighter took off from Nellis Air Force Base near Las Vegas, Nevada, on a training flight carrying an instructor pilot in the front seat and a student pilot in the rear seat. Prior to takeoff the pilots of the F-100F received an authorization from their Squadron Operations Officer for a local flight under Visual Flight Rules (VFR) conditions. Nellis Air Force Base was located at the northeasterly edge of Las Vegas within the lateral confines of Victor 8 airway.

During the training flight of the F-100F the student pilot was to receive training in primary instrument maneuvers in an area away from Victor 8 designated for that purpose. On his way back to Nellis, the student was to engage in a practice teardrop instrument penetration involving a descent and approach to Nellis under simulated instrument flying conditions. At all times during the training flight, the student was under a hood and was unable to see outside of the cockpit in which he was seated. It was to be his first such instrument penetration or let-down procedure in a F— 100F type aircraft, although he had had previous experience in such procedure in a T-33 jet. The instructor pilot, who had never previously been on an -instrument mission with this student, occupied the front seat and had two-way microphone communication available at all times with the student. It was the instructor’s duty to instruct the pilot in the rear seat, to monitor each step of his performance, to monitor the engine, navigation and other instruments of the plane, and to maintain a visual lookout for other aircraft. The F-100F had dual pilot controls and the instructor could take over the operation and control of the jet at any time.

The practice teardrop instrument penetration was to be executed in conformity with a procedure known as the KRAM procedure. This KRAM procedure was designed by the Commanding General of Nellis Air Force Base and his subordinates (hereinafter “Nell-is Command”) and used as a “fix” for initiating and concluding the penetration of the commercial broadcast radio station KRAM located on the easterly edge of Las Vegas within the lateral, boundaries of Victor 8 airway. An aircraft engaged in this procedure was to pass over the radio station’s transmitter, execute a right turn at a bank of thirty degrees while descending, and pass over the transmitter again at an elevation lower than its initial pass. The path prescribed by the KRAM procedure lay, for the most part, within the lateral confines of Victor 8 at altitudes customarily used by commercial passenger planes. The term “teardrop” derives its name from the fact that the path of the plane executing the KRAM procedure, if drawn on the earth, would resemble the shape of a teardrop, the pointed end being located at station KRAM.

At approximately 8:23 a. m., the F— 100F called Nellis VFR Control and reported it was inbound to KRAM. While in flight, the F-100F requested from Nellis VFR Control an altitude assignment from which it' could conduct the KRAM procedure. The VFR Controller assigned the aircraft an altitude of 28,-000 feet and advised it to report over the radio station. At approximately 8:27 the flight reported that it was over KRAM and requested a penetration clearance. The Controller cleared the F-100F for immediate penetration and requested that it report the penetration turn. At 8:29, the F-100F reported departing 28,000 feet. There were no other reports from the flight in connection with this procedure prior to the collision. The F-100F approached KRAM from a generally easterly direction. The pilots of the jet flew it in such a fashion that the plane, after passing over KRAM, never got on the path prescribed by the KRAM procedure. After passing in a generally westerly direction over station KRAM the plane was at all times within the Victor 8 airway.

*387 At about 8:30, the F-100F and the DC-7 collided at an altitude of approximately 21,000 feet and within the confines of Victor 8. It appears that the jet was descending while executing or attempting to execute a practice KRAM procedure, as it approached the DC-7; that as it converged upon the DC-7, the DC-7 Avas to the right of the jet; that the jet passed in front of the nose of the DC-7; and that the right wing-tip of the jet made impact with the right wing-tip of the DC-7. The true air speed of the F-100F at the time of impact was 495 miles per hour or more; that of the DC-7 was approximately 350 miles per hour. The collision occurred during daylight, the skies were clear and visibility was virtually unlimited (35 miles).

Nellis VFR Control is a radio facility at Nellis Air Force Base used as a training aid by Nellis Command. It was designed to and did provide actual separation between Nellis aircraft practicing various procedures, including the KRAM procedure, but not between such Nellis aircraft and any other users of the air space. Nellis VFR Control had a direct telephone line to Nellis Tower. Nellis Tower was connected by direct telephone circuits with the CAA facilities at Mc-Carran Field (Las Vegas), and the Air Route Traffic Control Centers of the CAA at Salt Lake City and Los Angeles. Two-way communication between the F— 100F and both Nellis Tower and Las Vegas Approach Control at McCarran Field was available at all times during the flight of the F-100F. At the time of the accident, Nellis Tower personnel could haAm obtained information on IFR traffic by calling the Salt Lake Air Route Traffic Control Center on a direct open telephone line or by calling Las Vegas Approach Control and requesting that such information be obtained. Neither Nellis Command nor the pilots of the F-100F secured or attempted to secure any IFR clearance for the F-100F from the CAA, nor did they secure or attempt to secure any air traffic information on the date of the accident. If such request for IFR clearance had been made, clearance for an immediate KRAM procedure would have been denied with instructions to engage in activities which would assure separation between the jet and the DC-7. Nellis Command made no inquiries of the CAA or any other source on or prior to the date of the accident to determine the times and altitudes at which airline traffic using Victor 8 would be in the vicinity of Las Vegas, Nevada, or concerning the volume and flow of traffic on that airway.

The volume of high speed military jet traffic in the vicinity of Nellis Air Force Base, which encroached upon Victor 8 airway, during the daytime hours Monday through Friday at the time of the accident, was heavy and continuous. At the time of the accident during said daytime hours there was an arrival or departure to and from Nellis approximately every forty-five seconds, with a large part of the climb-out and approach of each arrival or departure taking place on Victor 8. At any given time during each of said days there were approximately fifty to sixty jet aircraft from Nellis in the air. Nellis jet aircraft averaged one crossing per minute over Victor 8; the number of practice instrument jet penetrations at Nellis using radio facilities in or near Las Vegas ranged between twenty to sixty per day; there was a jet penetration on an average of one every fifteen minutes, of which ten to twenty per day used Station KRAM as a “fix”. Nellis planes and other military planes engaged in low frequency radio range orientation practice on Victor 8 airway in which student pilots flying blind under the hood, with observer pilots, were seeking to orient themselves to the range facilities. A major portion of the flying described above took place at altitudes ordinarily used by en route commercial passenger planes. The Nellis training area covered approximately 40,000 square miles which was bisected southwesterly to northeasterly by Victor 8 airway. Training activities of various kinds had been conducted by Nellis for several years prior to the date *388 of the accident and at times the volume of aircraft involved therein greatly exceeded the foregoing.

All of the district court’s findings of specific acts of negligence on the part of the government are in dispute and may be summarized as follows:

Failure to secure an IFR clearance or traffic information by or for the jet pilots or to establish a procedure in this regard;

Failure to utilize available radio facilities for the requesting of an IFR clearance;

Failure to make inquiry as to airline traffic on Victor 8 airway;

Failure to extend speed brakes of the F-100F;

Failure to yield right-of-way;

Failure to design the KRAM procedure so as to avoid Victor 8 airway at altitudes regularly used by en route commercial passenger planes;

Failure to make a study of commercial traffic in the area and to design and utilize the KRAM procedure in light of such study;

Failure to coordinate the KRAM procedure with United or other commercial facilities utilizing Victor 8;

Failure to inform and warn F-100F pilots of hazards of collision within Victor 8 airway and to instruct them to exercise extreme caution therein;

Failure to give notice to United or to other airline carriers of the KRAM simulated instrument penetration procedure being practiced under visual flight rules in the Las Vegas-Nellis area, though giving Flight 736 a clearance under instrument flight rules through the area;

The manner in which the F-100F pilots operated and controlled their plane while in the air on the date of the accident ;

The establishment and use of the KRAM procedure under VFR conditions;

Failure of the crew of the F-100F to see and avoid the DC-7.

All of the district court’s findings of specific acts of negligence on the part of United are in dispute and may be summarized as follows:

Failure of the crew to see the F-100F and to initiate evasive action to avoid the same;

Failure of United to have knowledge of the details of the flying activities on and across Victor 8 airway in the Las Vegas area, including knowledge of the KRAM jet penetration procedure;

Failure to instruct or train its crews on the subject of systematically scanning for other aircraft and in leaving the manner in which scanning was handled to each individual flight captain;

Failure adequately to inform and instruct its crews “relating to the dangerous operation of its aircraft through the Las Vegas area.”

We shall next discuss the parties’ specifications of error in the following order: United’s liability to the appel-

lees; government’s liability to the ap-pellees in the 22 nongovernment employee cases; the questions of contribution and indemnity; the propriety of granting summary judgments to the plaintiffs in the Nevada group of cases; and the propriety of the court’s action in increasing the damage awards in two of the Nevada cases. In view of our disposition of the appeals, we do not reach the specification that the court erred in limiting United’s contribution to the government in three cases.

UNITED’S LIABILITY TO APPELLEES

Sufficiency of the Evidence

United contends that there is insufficient evidence to support the findings of the lower court, and what it terms the implied findings of the jury, that it was guilty of negligence which was a proximate or contributing cause of the collision. The findings of the lower court which United attacks in this regard fall into two categories: (1) negligent omissions on the part of United’s *389 crew at or about the time of the collision; (2) negligent precollision omissions regarding knowledge of conditions in the Las Vegas-Nellis Field area and regarding crew training in the light of those conditions. In discussing these findings it must be borne in mind that United, as a common carrier, owed its passengers the duty of utmost care for their safety.

It is United’s contention that since the angle of descent of the jet at the time of impact was 17 degrees and since the range of vision upward of the DC-7’s crew, due to structural limitations of the windscreen, was limited to approximately 10 degrees above the horizontal, the crew of the DC-7 could not have seen the descending jet until practically the very instant of impact. The difficulty with this proposition lies in the two premises it expresses. The computation of 17 degrees was made by a study of the wreckage from which it was possible to establish the relative position of the two planes at the instant of impact. The district court made no specific finding regarding the angle or angles of descent described by the jet from its altitude of 28,000 feet to the point of collision, 21,-000 feet. There is evidence that the jet made this descent of 7,000 feet in approximately two minutes; that mathematical computations demonstrate that if the jet had been descending at an angle of 17 degrees for two minutes it would have been at an altitude of less than 8,000 feet and there would have been no collision; and that the jet, at the time of impact, was engaged in an evasive maneuver (a 90 degree bank) which would have the effect of increasing its angle of descent. This and other evidence would tend to support an inference that the jet was descending, prior to executing an evasive maneuver, at an angle of about 5 degrees, which is the angle prescribed by the KRAM procedure. This inference finds further support in the results of five test flights flown by an Air Force test pilot three days after the collision. The only evidence in the entire record lending support to the premise that the range of vision of the DC-7’s crew was limited to 10 degrees above the horizontal was the equivocal testimony given by the Government's deposition witness offered at trial by United. 2

The foregoing at least creates a conflict with the factual premises upon which rests United’s conclusion that its crew could not have seen the jet until immediately prior to the collision. This conflict was resolved against United by the triers of fact, and we are unable to say that clear error was committed thereby. The legal obligation of the DC-7’s crew was to see and avoid the jet, under the optimum visibility conditions then existing, is clear; responsibility for the separation of two aircraft flying in visual flight rule weather, regardless of the type flight plan or air traffic clearance, rests directly upon the operating personnel of the respective aircraft. 3 This obligation was not relieved by the jet’s failure to yield the right of way to the DC-7. 4 While neither United nor the government assert that the evidence compels the conclusion that the rate of clo *390 sure between the two planes (estimated at 774 miles per hour) was so great that their pilots lacked the ability to see the other plane in time to take evasive action which would have avoided the collision, there is much reference to evidence .of experts who testified as to the percentage of probability of the pilots of the two planes seeing and avoiding. These experts were not in- agreement on the matter and there is sufficient evidence to support the conclusion that the pilots of each ,of the planes involved could have prevented the accident by seeing and avoiding the other plane. In view of this evidence, we will not disturb the findings thereupon.

With respect to the findings of United’s pre-collision negligence, the district court found that United in fact was not aware of the KRAM procedure being conducted at Nellis. There is evidence sufficient to support the findings that United had knowledge of the following: that Nellis was a training base for jet aircraft; that Nellis jets descended on Victor 8 at speeds of approximately 500 miles per hour through the 21,000 foot altitude where the collision occurred; that'Air Force jets were flying without IFR clearances in the Las Vegas-Nellis area; that United’s pilots would have to rely upon seeing and avoiding these jets to prevent collisions; and that there had been reports by United’s pilots not only of hazardous conditions generally but also of two near-misses between Air Force jets and United passenger planes in the area in 1957. There is evidence that United’s Las Vegas station manager received, at a meeting of the aviation committee of the Las Vegas Chamber of Commerce held about nine months prior to the collision, a map which was distributed in the course of a talk given by an officer from Nellis base. The map indicated areas established for flying activities in the Nellis area including one designated “instrument area” shown by a circle around Nellis field. The evidence is inconclusive as to the explanation given about such flying activities during the course of the talk. This map was transmitted by the station manager to United’s Los Angeles flight operations office. The district court felt that while United had no actual knowledge of the details of the KRAM procedure, it was put on notice sufficient to make inquiry, and that “in the exercise of ordinary care could and should have had knowledge of * * * the KRAM jet penetration procedure * * We are unable to say that it was clear error to find that in light of such knowledge United should have taken precautionary crew training measures to lessen the risk of mid-air collisions in the Las Vegas-Nellis area.

United’s contention that such omissions should not be considered a proximate cause of the collision is predicated upon the factual assumption that it would been impossible for the crew to see the jet in time to avoid the collision. As discussed above, we are unable to accept this factual assumption.

Res Ipsa Loquitur

United’s next specification of error has to do with the district court’s instructions with reference to the doctrine of res ipsa loquitur. United complains that the court erred (1) in giving any instruction on the doctrine at all and (2) in refusing to instruct that the doctrine applies only in the event that the jury found United to have been in exclusive control of the instrumentality causing the accident. It is United’s contention that both errors stem from the lower court’s erroneous choice of the law governing the applicability of res ipsa loquitur. While conceding that the instructions as given were proper under California law, United contends that it is uncertain under Nevada law whether the doctrine is applicable at all to a collision case, but that in any event Nevada has not abandoned the element of exclusive control of the instrumentality causing the injury as a prerequisite to the applicability of the doctrine. There is some doubt whether United is correct in its interpretation of Nevada law, but we deem it sufficient to hold that the district court correctly instructed the jury according to the law of the forum.

*391 Under the rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), it is settled that the doctrine of res ipsa loquitur sufficiently affects the outcome of the litigation to require the federal courts to follow state law. E. g., Lobel v. American Airlines, Inc., 192 F.2d 217 (2d Cir. 1951), cert. den. 342 U.S. 945, 72 S.Ct. 558, 96 L.Ed. 703 (1952). In so doing, the district court was required to follow the conflict of laws rules prevailing in California, Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), in order to determine whether a California state court would have applied the law of California or the law of Nevada on the res ipsa doctrine. A California court’s choice of law in this regard would depend upon the characterization of the doctrine as “substantive” or “procedural”. California courts will characterize a rule as substantive or procedural for choice of law purposes according to its own law, not some other law. Grant v. McAuliffe, 41 Cal.2d 859, 863-867, 264 P.2d 944, 946-949, 42 A.L.R.2d 1162 (1953); Biewend v. Biewend, 17 Cal.2d 108, 109, 109 P.2d 701, 132 A.L.R. 1264 (1941); Miller v. Lane, 160 Cal. 90, 116 P. 58 (1911); 11 Cal.Jur.2d, Conflict of Laws § 87; accord, Restatement, Conflict of Laws, § 584. There is no merit in United’s contention that the district court should have followed Nevada’s classification or that a California court would have done so. Lobel v. American Airlines, Inc., supra; Moran v. Pittsburgh-Des Moines Steel Co., 166 F.2d 908 (3d Cir.1948); cert. den. 334 U.S. 846, 68 S.Ct. 1516, 92 L.Ed. 1770 (1948); Anno. 21 A.L.R. 2d 247, 258-261; contra, Lachman v. Pennsylvania Greyhound Lines, 160 F.2d 496 (4th Cir.1947); Smith v. Pennsylvania Central Airlines Corp., 76 F.Supp. 940, 6 A.L.R.2d 521 (D.C.D.C.1948).

The parties concede that California courts have never expressly classified the res ipsa loquitur doctrine as substantive or procedural for choice of law purposes. However, California courts have characterized the doctrine as a rule of circumstantial evidence, which gives rise to an inference of negligence. Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 689, 162 A.L.R. 1258 (1944); see Orr v. Southern Pac. Co., 226 F.2d 841 (9th Cir.1955). California follows the settled rule of Restatement, Conflict of Laws, § 595, that the law of the forum governs the proof of the facts alleged and also determines presumptions and inferences to be drawn from evidence. Pfingsten v. Westenhaver, 39 Cal.2d 12, 244 P.2d 395 (1952); Hamlet v. Hook, 106 Cal.App.2d 791, 236 P.2d 196 (1951); Estate of Winder, 98 Cal. App.2d 78, 219 P.2d 18 (1950). Dealing with an identical posture of New York law, the court in Lobel v. American Airlines, supra, said, 192 F.2d at 219:

“Although [the New York courts] have not ruled on the precise question before us here, they have said, in cases involving burden of proof, that local law governs even though the accident occurred out-of-state. [Citations omitted.] If they follow local law in so vital a matter as burden of proof it seems a fortiori true that they would not bow to foreign law where a mere rule of evidence was concerned.”

United stresses that were a question to arise in a California court as to the sufficiency of allegations in a complaint to state a cause of action based upon Nevada’s wrongful death statutes, Nevada law would govern, citing Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218 (1955). It then argues that the question as to whether the plaintiff has proved his case would likewise be decided by reference to Nevada law since, under the familiar law of variance, the allegata and the probata must correspond. The materiality of rules of variance to the instant question eludes us. The character and sufficiency of the evidence to sustain allegations invoking the provisions of a foreign statute is a procedural matter in California. Pfingsten v. Westenhaver, supra; Cobb v. Lawrence, 54 Cal.App.2d 630, 129 P.2d 462 (1942); DuBois v. Owen, 16 Cal.App.2d 552, 60 P.2d *392 1019 (1936); Tevis v. Pitcher, 10 Cal. 465 (1858). “In action on torts occurring abroad, the courts of this state determine the substantive matters inherent in the cause of action by adopting as their own the law of the place where the tortious acts occurred * * Grant v. McAuliffe, supra, 41 Cal.2d at 862, 264 P.2d at 946, 42 A.L.R.2d 1162 (emphasis added). A limitation in the applicability of a general rule of evidence under Nevada law does not seem to us to be “inherent in the cause of action” created by its wrongful death statute.

GOVERNMENT’S LIABILITY TO APPELLEES

Sufficiency of the Evidence

Turning now to the Government’s liability to the appellees in the 22 nongovernment employee cases, it is to be noted that while the pilots of the jet owed the duty of ordinary care to the passengers of the DC-7, as opposed to the higher degree of care owed them by United, the responsibility to see and avoid was the same for the operating personnel of both aircraft. There was the further responsibility of the pilots of the jet to yield the right of way to the DC-7, and their failure to do so is not controverted by the Government. The Government contends that the evidence supports only the conclusion that the instructor pilot did see and did attempt to avoid colliding with the DC-7 by engaging in a last minute evasive maneuver consisting of retracting the jet’s speed brakes and rolling into a 90 degree bank. Such contention, if accepted, does not exonerate the Government from liability.

With respect to the finding that the pilots negligently failed to extend the jet’s speed brakes, there was no direct evidence as to whether the brakes were extended during the jet’s execution of the KRAM procedure, as the Government contends and as the KRAM procedure requires, and then retracted during an evasive maneuver or whether they were never extended at all. The triers of fact were thus called upon to draw an inference based upon the proven fact that the brakes were found in the debris in a retracted position; there was no error in adopting the inference contrary to the Government’s contention. The findings of pilot negligence are not clearly erroneous.

Federal Tort Claims Act

The Government’s next specifications of error are based upon the provisions of the Tort Claims Act which exempt the Government from liability for discretionary acts and misrepresentation. The findings of fact attacked as contrary to the discretionary function exception fall into three groups which may be summarized : that Nellis Command was negligent in the establishment and the continued use of the KRAM procedure; that having established the KRAM procedure, the actual use, or conduct of operations thereon, by Nellis Command was negligent; and that the officials of the CAA negligently failed to notify United as to the existence and utilization of the KRAM procedure.

28 U.S.C. § 2680(a), referred

to herein as the discretionary function exception to the Tort Claims Act, provides in part:

“The provisions of this chapter and section 1346(b) of the title shall not apply to * * * [a]ny claim * * * based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”

Location of the boundaries of the discretionary function exception of the Tort Claims Act has been the subject of much litigation. In United States v. Hunsucker, 314 F.2d 98 (9th Cir. 1962), we observed, after reviewing the pertinent decisions that the generally accepted view includes within the exception decisions made at the planning level as distinguished from decisions made on the operational level of governmental activities.

*393 Cases which illustrate the line of demarcation are as follows: discretionary to undertake fire-fighting, 5 lighthouse, 6 rescue, 7 8or wrecked-ship marking 8 services, but not discretionary to conduct such operations negligently, discretionary to admit a patient to an Army hospital, but not discretionary to treat the patient in a negligent manner; 9 discretionary to establish a post office at a particular location, but not to negligently fail to- install handrails; 10 discretionary to establish control towers at airports and to undertake air traffic separation, but not to conduct the same negligently ; 11 discretionary to reactivate an airbase, but not to construct a drainage and disposal system thereon in a negligent fashion: 12 and discretionary for CAA to conduct a survey in low flying, twin-engine airplane, but not for pilots thereof to fly negligently. 13

We accept the Government’s assertions that the training of pilots under simulated conditions for instrument approaches is an integral and necessary segment of the mission of the Air Force; that a standardized instrument approach procedure, such as the teardrop pattern, is desirable in view of exigencies of military flying operations; and that instrument approach training is an Air Force activity initiated at the planning level of the Air Force. We also recognize the holding of Dalehite v. United States, 346 U.S. 15 (1953), stated at 35-36, 73 S.Ct. 956, at 968, 97 L.Ed. 1427 that:

“ * * * the ‘discretionary function or duty’ that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.”

The contention made by appellees and United is, however, that when official directions leave no room for policy judgment and decision, the disregard of those directions by subordinates is not discretionary. The official directions which they contend were disregarded in the establishment of KRAM are contained in Air Force Regulation (hereafter AFR) No. 55-19, issued by the Department of the Air Force, July 13, 1956, and signed by N. F. Twining, Chief of Staff, United States Air Force, the provisions of which are reproduced in the appendix to this opinion. The government’s brief concedes, indeed is at pains to demonstrate, that the establishment of the KRAM procedure, its continued use and operation were made by Nellis Command in response to AFR 55-19.

It will be noted that the purpose of the regulation is to provide “guidance for commanders, pilots, and air traffic control personnel for insuring maximum safety and efficiency in their local flying operations.” Section 1 of the regulation enjoins Nellis Command to estab *394 lish local flying areas, “insofar as practicable,” outside populous areas, control areas, and control zones and to use the least congested airspace within the 100-mile limit, which limit could be extended “when required.” Section 5(a) provides that, in the control of simulated instrument flight rule approaches, the commander will direct “maximum use of outlying facilities” in order to relieve air traffic congestion near local navigational facilities. Section 2(b) requires the Commander to “schedule local VFR flight operations in a manner which will minimize congestion and potential air collision hazards.” The district court found that it was actionable negligence to design the KRAM procedure in such a fashion that approximately 85% of it took place over and upon Victor 8 airway at altitudes in which en route commercial passenger planes regularly flew.

To argue, as the government does, that the district court merely substituted its judgment for that of Nellis Command as to the proper designation of areas in which various flying activities were to take place, is not entirely responsive to the United’s and appellees’ contentions. It overlooks the findings of fact made by the district court that (1) “no one at Nellis was assigned to or exercised the re