Unpublished Disposition, 883 F.2d 1024 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1024 (9th Cir. 1989)

Robert A. McFARLAND; Janette McFarland; Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee,v.AVEMCO INSURANCE COMPANY, Plaintiff-Intervenor.

No. 87-6029.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 5, 1989.Decided Aug. 24, 1989.

Before EUGENE A. WRIGHT, FARRIS and NELSON, Circuit Judges.


The appellants Robert and Janette McFarland brought this action against the United States under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, for damages relating to the crash of their single engine aircraft at the Cottonwood Landing Airport ("Cottonwood Landing"). The crash occurred during an attempt to land at the airstrip when Robert McFarland swerved the aircraft in order to avoid collision with a pick-up truck on the runway. The McFarlands alleged that the United States was negligent in operating and maintaining the airport's airstrip ("airstrip"). Specifically they claimed that the government negligently failed to take any measures to separate ground and air traffic at Cottonwood landing by use of a sign, fence, or any other means. They also claim that the government was negligent by failing to erect a windsock. The government denied that it was negligent. It argued that Robert McFarland was negligent in his failure to see the truck in a timely manner and in his failure to abort the landing in order to avoid the truck. The district court granted the United States' motion for involuntary dismissal under Fed. R. Civ. P. 41(b). The McFarlands appeal.

Standard of Review

An involuntary dismissal under Fed. R. Civ. P. 41(b) is reviewed as "a judgment in defendant's favor following a trial to the court." Thorne v. City of El Segundo, 726 F.2d 459, 468 (9th Cir. 1983), cert. denied, 469 U.S. 979 (1984). Findings of fact are reviewed under the clearly erroneous standard; questions of law are reviewed de novo. Id. A district court's granting of a Rule 41(b) motion before the conclusion of a plaintiff's case-in-chief is permissible when it is "manifestly clear" that the plaintiff will not prove his case. Stone v. Milstein, 804 F.2d 1434, 1437 (9th Cir. 1986). The issue of whether the defendant's negligence was the proximate cause of the plaintiff's injury is reviewed according to the clearly erroneous standard. Foss v. United States, 623 F.2d 104 (9th Cir. 1980). In reviewing a district court decision we may affirm on any ground finding support in the record. Smith v. Block, 784 F.2d 993, 996, n. 4 (9th Cir. 1988).


28 U.S.C. § 2674 provides that the United States shall be liable for the tort claims "in the same manner and to the same extent as a private individual under like circumstances." The law of the state where the alleged tort occurs determines whether a cause of action exists under this statute. Molsbergen v. United States, 757 F.2d 1016, 1020 (9th Cir.), cert. denied, 473 U.S. 934 (1985). Under Arizona law, plaintiffs bear the burden of showing a duty owed to them by defendant, a breach of that duty, and injury proximately caused by the breach. Arizona Public Service Co. v. Brittain, 107 Ariz. 278, 486 P.2d 176, 178 (1971).

In this case, the plaintiffs established no facts showing that the government's acts and/or omissions were the proximate cause of the accident. Therefore, the district court did not clearly err in granting the government's motion for dismissal. Because the plaintiffs failed to make a prima facie case, we need not consider their other arguments for reversal.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3