McCREE, Circuit Judge.
This appeal requires us to determine whether the federal government is liable, under the Federal Tort Claims Act, for the deaths of sixteen persons and for injuries to two others who parachuted through a cloud cover into Lake Erie at the direction of their jump master and their pilot who had been misinformed by a federal air traffic controller that his airplane was over the Ohio airport where the parachutists were scheduled to land. The Government does not dispute that the air traffic controller was negligent in ascertaining the airplane's location, nor does it contest the reasonableness of the damage awards. Instead, the Government contends first, that the air controller owed no duty of care to the parachutists; second, that the actions were barred by the contributory negligence of the parachutists in jumping through a cloud cover; and, third, that the pilot and jump master, in directing a jump through a cloud cover were negligent and that their intervening negligence relieved the Government from any liability for the deaths and the injuries of the parachutists. The district court entered a judgment for plaintiffs. Dreyer v. United States, 349 F.Supp. 296 (N.D.Ohio 1972). We affirm.
These consolidated cases arise from the tragic drowning of 16 parachutists and from injuries to two survivors who were participating in a high altitude parachute jump on August 27, 1967. In all, 20 parachutists took off from Ortner Airfield, near Oberlin, Ohio, in a converted World War II B-25 airplane, to make a mass jump over the airport. Eighteen of the parachutists planned to jump together from 20,000 feet in a free fall maneuver, and the remaining two planned to jump from 30,000 feet.
The aircraft took off at 3 p. m. when there was only scattered cloud cover. It took approximately one hour for it to climb to 20,000 feet. During this time, the pilot maintained radio contact with the air traffic controller for the purpose of determining the plane's location and insuring that the jump would take place directly over Ortner Airfield.
At about the same time that the B-25 went aloft, a Cessna airplane took off with a photographer who planned to take motion pictures of the parachutists as they made their descent. The Cessna was flying at 12,000 feet. The district court found that the air traffic controller confused the Cessna with the B-25 on his radarscope and gave flight directions to the B-25 based on his observation of the flight path of the Cessna.
Shortly before the B-25 pilot, Karns, made his final preparation to drop the jumpers, he called the traffic controller for final verification of his heading and location. The traffic controller informed Karns that he was headed in the right direction and was only three miles from Ortner. In fact, the B-25 was headed in a northeasterly direction away from Ortner and over Lake Erie. Neither the pilot nor the passengers were aware that the plane was over water because there was a solid cloud cover below the plane.
Inside the plane, the jumpers, sitting on benches in the cargo section of the plane or in the bomb bays, were squeezed together in nearly total darkness. There were no windows permitting them to see below the aircraft. Shortly before the jump, the pilot throttled back the engines, thus giving the jumpers their first indication that it was nearly time to jump. When the time for the jump came, the bomb bay doors opened and the inside of the plane was flooded with light. The jumpers experienced difficulty adjusting their eyes to this intense light and because of temporary blindness were unaware of the clouds beneath them and the lake below
These negligence actions were brought against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), by the two survivors and by the estates of the 16 deceased jumpers for the negligence of the federal government air traffic controller. The district court, applying the law of Ohio where the negligent act occurred, Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), found that the proximate cause of the deaths and the injuries was the negligent misidentification of the B-25 by the traffic controller.
Although the district court did not determine whether the pilot and the jump master were negligent in directing the jumpers to leave the plane without ascertaining that the plane was above a cloud cover, it ruled that any negligence on their part would not be imputed to the parachutists. The district court also rejected the Government's contention that the jumpers were contributorily negligent because they jumped into a cloud cover in violation of a federal aviation regulation.
The first issue we consider is whether the air traffic controller owed a duty to parachutists. The appellant, citing no authority, claims that an air traffic controller's duty is limited to regulating air traffic and to advising planes of their location in order to avoid aircraft crashes, but that the duty does not extend to advising parachutists whether it is safe to jump.
Although we have found no cases concerning the duty of controllers to parachutists, other courts have concluded that a controller's duty to exercise reasonable care extends to the aircraft, passengers, crews and cargoes. Stork v. United States, 430 F.2d 1104 (9th Cir.1970); Ingham v. Eastern Air Lines, 373 F.2d 227 (2d Cir.), cert. denied, 389 U.S. 931, 88 S.Ct. 295, 19 L.Ed.2d 292 (1967); Hennessey v. United States, 12 Av.Rep. ¶ 17410 (N.D.Cal. 1971). We see no reason here to exclude parachutists who are only a special kind of passenger.
The law of Ohio is that actionable negligence occurs when an injury results from conduct that a reasonably prudent and careful person should anticipate would cause injury to the plaintiff or to those in a similar situation. Gedeon, Administrator v. East Ohio Gas Co., 128 Ohio St. 335, 190 N.E. 924 (1934). Here, because the air traffic control center had been advised of the high altitude mass jump, the controller knew or should have known of the purpose of the flight, and he should have anticipated that any mistake with respect to the plane's position could lead to disastrous consequences for the jumpers. Accordingly, we hold that the controller owed a duty to the jumpers to exercise due care.
The second issue we consider is whether the parachutists were guilty of contributory negligence. Ohio law bars recovery to any plaintiff whose negligence contributed as a proximate cause to the occurrence of the accident. Bahm v. Pittsburgh & Lake Erie R.R., 6 Ohio St.2d 192, 217 N.E.2d 217 (1966). The district court found that the skydivers aboard the B-25 were not contributorily negligent because they had no reason to suspect that the jump master would signal them to jump into solid cloud cover and because they had no reasonable means for making an independent observation
The appellant contends, however, that the jumpers were guilty of negligence per se because they violated a federal aviation regulation, 14 C.F.R. § 105.29, that forbids parachute jumping through clouds. The regulation in effect at the time of the accident provided:
Appellees contend that the district court was correct because the violation of the administrative regulation was not negligence under the circumstances. It was intended to provide protection only for persons, objects or other aircraft from injury caused by parachutists jumping through clouds. It was not intended to insure the safety of parachutists as a class. Accordingly, it is argued, the violation of the administrative regulation is not negligence per se.
We observe that the federal air regulations have been adopted by the State of Ohio as its own. Ohio Rev.Code §§ 4561.05, 4561.14 (1973). Thus, violation of a federal air regulation constitutes a violation of Ohio law and is, under appropriate circumstances, negligence per se. See Bibler v. Young, 492 F.2d 1351 (6th Cir. 1974).
The purpose of the parachute regulations whose applicability is at issue is to protect air traffic and persons or property on the ground. Thus, an introductory section to Part 105 of the Code of Federal Regulations, dealing with parachute jumping, provides:
Both the regulations and the testimony before the Senate Subcommittee on Aviation require the conclusion that the purpose of the regulations governing parachute jumping is to insure the safety of aircraft traffic and persons and property on the ground, not the safety of parachutists. Therefore, we conclude that the parachutists do not fall within the class intended to be benefited by the regulations and that their violation by the jumpers does not constitute negligence per se.
The government contends that even if it is not negligence per se to jump through a cloud, it is nonetheless contributory negligence as a matter of law. In Ohio, a plaintiff's disregard of reasonable standards of conduct which, if followed, would have prevented his injury will preclude his recovery. Canter v. Valley, 168 Ohio St. 590, 157 N.E.2d 113 (1959); Mills v. City of Springfield, 75 Ohio Abs. 150, 142 N.E.2d 859 (1956). However, it is also Ohio law that one need not anticipate the negligence of another until he becomes aware of that negligence. Northwest Airlines, Inc. v. Glenn L. Martin Co., 224 F.2d 120 (6th Cir. 1955), cert. denied, 350 U.S. 937, 76 S.Ct. 308, 100 L.Ed. 818 (1956); Baldridge v. Wright Gas Co., 154 Ohio St. 452, 96 N.E.2d 300 (1951); Mahoning Valley Railway Co. v. Kazanecka, 7 Ohio App. 289 (1917).
In this case, the parachutists relied on the signal from the pilot and jump master before they jumped. The pilot, in turn relied on the communication from the traffic controller that the aircraft was over the airport. The district court found that the air traffic controller negligently misidentified the plane, that the pilot signaled to the jump master for the jump even though he should have been aware of the possibility of misidentification of the plane by the controller and should have been aware of the cloud cover below the plane, and that the jump master relayed the jump signal without determining whether the plane was above a solid cloud cover. If any one of these three persons had acted in a reasonably prudent manner, the accident would not have occurred.
In concluding that the jumpers were not guilty of contributory negligence, the district court observed:
In Northwest Airlines, supra, the plaintiff airline sued an airplane manufacturer for negligent design of several airplanes, one of which crashed as a result of the left wing being torn from the plane during a flight through a thunderstorm. The defendant contended, inter alia, that because representatives of Northwest were present throughout the manufacturing and testing of the airplanes, their failure to protest the use of the faulty wing splice device constituted contributory negligence. This court stated: "One to whom a duty is owed has a right to assume that it will be performed. He is not required to anticipate negligent acts or omissions on the part of others." 224 F.2d at 127. Thus, even though Northwest representatives were present and could probably have ascertained that the wing design was faulty, this court did not hold such conduct to be contributory negligence because the plaintiffs had a right to rely on the manufacturer's exercise of due care in building the planes.
Similarly, we are unable to say in this case that the parachutists should have been aware of the hazards below them when they were entitled to rely on the exercise of due care by the controller, pilot and jump master in positioning the plane directly over the airport. We believe the reliance of the parachutists on these three individuals was reasonable in light of the circumstances, and we agree with the district court's conclusion that the parachutists were not guilty of contributory negligence.
The next issue we consider is whether the negligence of the pilot and jump master may be imputed to the parachutists. The law of Ohio is that apart from statute and cases of joint enterprise, negligence may not be imputed. 39 Ohio Jur.2d Negligence § 114, p. 676, Toledo Rys. & Light Co. v. Mayers, 93 Ohio St. 304, 309, 112 N.E. 1014 (1916). See also, Cincinnati Street Ry. v. Wright, Administrator, 54 Ohio St. 181, 43 N.E. 688 (1896).
For example, in Lester v. John R. Jurgensen Co., 400 F.2d 393, 396 (6th Cir. 1968), an automobile accident case, this court stated that in Ohio, negligence can be imputed from a driver to a passenger "only if it can be shown that the [driver and passenger] were engaged in a joint enterprise of such a nature that the passenger has a right to control the acts of the driver in his operation of the vehicle." We pointed out there that:
400 F.2d at 396-97 [footnote omitted].
The circumstances of this case do not rise to the level of a joint enterprise because the passengers did not have the power to control the pilot. They were completely separated from the cockpit area, and they were unable to move from their seats.
Accordingly, we follow the rule in Wasilko v. United States, 300 F.Supp. 573 (N.D.Ohio 1967), aff'd, 412 F.2d 859 (6th Cir. 1969), an Ohio airplane case, where an action was brought against the United States for the death of plaintiff's husband and son in an airport crash. Judge Thomas held that airport controllers had been negligent in granting clearance, without warning of possible wake turbulence, to a small plane to take off just behind and below an airliner. The district court held the husband-pilot contributorily negligent for failing to consider wake turbulence. With respect to the son, the court stated that although the negligence of the pilot contributed to his son's death, it was not imputable to him. Accordingly, the court allowed recovery for the son's death.
The last issue we consider is whether the negligent conduct of the pilot and jump master were intervening causes of the accident. In its brief, appellant quotes language from Thrash v. U-Drive-It Co., 158 Ohio St. 465, 110 N.E.2d 419 (1953), to the effect that:
158 Ohio St. at 471, 110 N.E.2d at 422.
This language, by itself, suggests that the traffic controller's misidentification of the airplane although negligent did not cause the injuries complained of because the pilot should have "eliminated the hazard" of the jump over Lake Erie.
In the Dougherty case, defendant argued that he should not be held liable for the plaintiff's death because, assuming his negligence caused plaintiff's injuries requiring surgery, plaintiff's death was caused by the administration of ether anaesthesia to a person with an enlarged thymus gland, a procedure that frequently causes death. The court rejected that argument and quoted with approval this statement: "The intervention of a responsible human agency between a wrongful act and the injury does not absolve the defendant from liability, if his negligence and the intervening
In this case, the intervening negligence would not have produced the result without the cooperation of the original wrong committed by the traffic controller. It was the traffic controller's negligent act that caused the pilot to believe he was over his intended target. The consequence of this act continued during the entire episode and the intervening negligence of the pilot and jump master did not alone cause the descent into Lake Erie and the drowning of the 16 jumpers. Accordingly, we determine that the intervening negligence does not bar recovery.