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Berends v. City of Atlantic City3/16/1993
In these consolidated death and personal injury actions, plaintiffs appeal from summary judgments in favor of all defendants.
On August 27, 1986, a small aircraft crashed killing the pilot, Raymond Bolander, and a passenger, Mary Berends, and seriously injuring William Eavers, another passenger. The pilot was attempting to land the aircraft at Bader Field in Atlantic City, New Jersey, on runway 11-29 somewhere between 12:02 and 12:25 a.m. On the date of the accident, the pilot was a "low time pilot," with 130 hours of total flight time, 40 of which were logged at night while flying in and out of Bader Field. The pilot was operating under Visual Flight Rules (VFR).
According to the surviving passenger, William Eavers, as the pilot attempted to land the plane, he was able to keep the nose pointed towards the runway and the wings level. After the plane touched down, it bounced several times and began moving to the left to a point where the left wheel of the landing gear went off the runway. Apparently, the pilot then attempted to get the plane back on the runway, however, according to Eavers, it felt like the aircraft continued to be pushed off the runway. Halfway down the runway, the pilot aborted the landing and attempted a "go-around." The aircraft gained altitude, banked to the left and then suddenly headed nose down into the ground about one-half mile from the end of the runway.
Bader Field is a municipal airport owned by the City of Atlantic City. It has two runways, runway 11-29 and runway 4-22. At the time of this accident, runway 4-22 was closed and had been closed since May 17, 1986 following an aircraft crash that resulted in fatalities both on board the aircraft and on the ground. At the time of the accident in the present case, the pilot was aware that runway 4-22 was closed and that runway 11-29 was the only runway in use. Bolander's inability to keep his aircraft on the runway is attributed to a strong crosswind blowing out of the south, or slightly west of south. Bolander had landed on runway 11, i.e., a heading of 110 degrees. Thus, the crosswind would have struck the aircraft approximately perpendicular to its line of travel.
Dale Leppard, plaintiffs' liability expert, contended that defendants International Aviation Personnel (ITAP), Robert Bentley, Arnold Ebbenrup and Edwin Safer were negligent in their operation of the control tower. ITAP is a private air traffic control corporation which provides trained air traffic controllers at non-federally controlled towers. Robert C. Bentley is president of ITAP. Arnold Ebberup was manager of the control tower and Edwin Safer was the air traffic controller on duty on the night of the accident. The tower closed at midnight each day. Leppard contended that if Bolander had attempted to contact the tower before midnight and it had closed early, there should be liability on the part of the tower operators because if they had been there, they could have provided wind information which would have enabled the pilot to make a choice to land at another airport.
According to Eavers, Bolander contacted Bader Field for instructions when they were approximately ten to twelve miles
out. Eavers did not remember what the response was from the tower.
Edwin Safer was on duty in the control tower on August 26, 1986 from 4:00 p.m. until midnight. Safer had no recollection of receiving any transmissions from the aircraft. The tower recording from the night in question was unavailable, apparently it had been destroyed by mice while in storage.
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