Air Crash Disaster at John F. Kennedy Intern. Airport on June 24, 1975, In re

Decision Date24 June 1975
Citation635 F.2d 67
Parties7 Fed. R. Evid. Serv. 21 In re AIR CRASH DISASTER AT JOHN F. KENNEDY INTERNATIONAL AIRPORT ON
CourtU.S. Court of Appeals — Second Circuit

Melvin I. Friedman, New York City (Kreindler & Kreindler and Speiser & Krause, P.C., with Milton G. Sincoff, Frank H. Granito, Jr., John R. Altieri, Michael W. Foster, New York City, on the brief), for plaintiffs-appellees.

Walter E. Rutherford, New York City (Haight, Gardner, Poor & Havens, Alan D. Reitzfeld, New York City, of counsel), for defendant-appellant, Eastern Air Lines, Inc.

Before WATERMAN, MOORE and MANSFIELD, Circuit Judges.

MOORE, Circuit Judge:

This case involves the tragic crash of an Eastern Air Lines, Inc. ("Eastern") Boeing 727 jet aircraft at John F. Kennedy International Airport ("JFK") in New York City on June 24, 1975. Defendant Eastern, operator of the aircraft, appeals from a judgment of liability after a jury trial in the Eastern District of New York (Honorable Henry Bramwell, District Judge). Eastern alleges various reversible errors committed during the trial and in the Judge's charge to the jury, and requests a new trial. Although many facts dealing with this disaster will be discussed as specific points are addressed, a brief overview of the crash and subsequent legal actions is required.

On June 24, 1975, Eastern Flight 66 left New Orleans at 1:19 P.M. (all times are Eastern Daylight Time) bound for JFK. The plane made an uneventful trip to the New York area and prepared to land at the airport beginning around 3:30 P.M. 1 At that time, a severe thundershower was in the vicinity of the airport. Eastern 66 was aware of the thundershower both by observation and by reports of wind shifts and lower visibility at the airport (App. 3545-47, 3537). Eastern Flight 902, which preceded Eastern 66 by about seven minutes, implemented a missed approach on Runway 22L at JFK because of severe wind shear experienced at the approach end of Runway 22L. Two other planes subsequently landed on Runway 22L. The next plane in the sequence to land was Flight 66. As Eastern 66 approached the runway, it evidently was caught in a wind shear which caused it to crash some 2500 feet short of the runway. The accident killed 113 persons; 11 survived.

Much litigation arose from the tragedy. Many plaintiffs brought suit against a variety of defendants, and the Judicial Panel on Multidistrict Litigation transferred all cases to Judge Bramwell in the Eastern District of New York. On December 15, 1977, after pretrial discovery, Judge Bramwell transferred Before trial, the United States chose not to contest liability. Eastern then decided to go to trial on the liability issue, after Judge Bramwell refused to let the damages trial against the government go forward until Eastern's liability was ascertained. On October 31, 1978, a jury found Eastern liable for its negligence in the crash. Eastern sought to appeal the liability judgment under 28 U.S.C. § 1292(b) based on certain alleged reversible errors. The certification to appeal was granted by the District Court, and this Court granted the appeal on January 16, 1979.

all passenger cases to his court in the Eastern District. These actions, some of which form the basis of this appeal, were set for trial on the question of liability only against defendants Eastern and the United States of America (employer of the allegedly negligent JFK air traffic controllers).

I.

Eastern's appeal sets out purported errors made during the six week trial. The airline does not claim that there was insufficient evidence to present to the jury, but rather claims that the refusal to admit evidence and the prejudicial charge to the jury denied Eastern a fair trial. Before addressing the individual allegations of error, we must review the evidence of negligence offered by the plaintiffs.

Plaintiffs claimed that both Eastern and the Government were liable for negligence resulting in the plane crash, Eastern for its operation of and failure to provide information to Flight 66, and the Government for failing to give weather data to Flight 66 as it sought to land. Eastern contested its liability after the Government had admitted liability, evidently claiming that the Government's negligence was the sole proximate cause of the air crash.

The evidence that plaintiffs presented dealing with the negligence of Eastern's managers, its ground staff, and the personnel on Flight 66 was substantial, and a jury could properly hold Eastern liable as the sole tortfeasor or as a joint tortfeasor based on those facts. Upon review of this evidence, the transcript of the trial, and the errors alleged by Eastern, it is our opinion that Eastern had a full opportunity to state and prove its defense and that the trial was conducted fairly and properly.

Briefly, the evidence adduced at trial showed possible negligence by Eastern's management in allowing pilots to land in thundershowers and possible negligence by the Eastern ground personnel for not updating the weather conditions and telling the pilot that severe thunderstorms were in the area. In addition, there was much evidence of negligence by the crew of Eastern 66: The co-pilot was flying the approach rather than the Captain; the Captain failed to read out altitude, air speed and rate of descent at certain heights (400 feet and 300 feet) as required by the aircraft and Eastern's manuals; the target speed of the plane during the landing was too low; and the co-pilot improperly proceeded below the decision height (the height at which a missed approach decision must be made) without having the runway environment clearly in view, as the Federal Air Regulation (14 C.F.R. § 91.117(b)(2) (1979)) provides.

In addition, the flight crew of Eastern 66 was aware of the severe weather conditions both by seeing white caps on the ocean (App. 3531-32), "black tunnels" in the clouds (App. 3545) (indicating severe weather conditions) and by reports from the airport concerning wind shifts and lower visibility. The crew also heard a severe wind shift report from Flight 902, another Eastern flight, which had executed a missed approach because of severe wind shear minutes before Flight 66 crashed. Thus, the Eastern 66 crew was well aware of the dangers at the end of the runway but chose to ignore all warnings, even those of their fellow flight officers, and attempted to land the aircraft. A jury, relying on all these facts, could properly find Eastern's negligence a proximate cause of the air crash.

Any error which Eastern asserts must be prejudicial before we will grant a new trial. We are not concerned with "errors or defects which do not affect the substantial

rights of the parties". 28 U.S.C. § 2111 (1976); Fed.R.Civ.P. 61. Furthermore, appellant Eastern has the burden of proving that the errors affected the substantial rights of Eastern as they relate to this trial. Palmer v. Hoffman, 318 U.S. 109, 116, 63 S.Ct. 477, 481, 87 L.Ed. 645 (1943). We hold that most of the errors alleged by Eastern were not error and, furthermore, that those alleged errors and other errors that may indeed have been committed were all harmless.

II.

THE ERRORS ALLEGED BY EASTERN:

1. The Refusal of the Judge to Allow Eastern to Read Stipulated Facts Into the Record.

When this litigation still involved Eastern, the United States, and the various plaintiffs, all litigants entered into a stipulation of facts for the impending trial. Some of these facts were agreed to by all, but others were disputed by one of the defendants, either Eastern or the Government. During the trial, plaintiffs' attorneys sought to read certain of these facts into the record. These facts dealt primarily with "hard" information such as the time the plane left New Orleans, the fact that the plane was operating normally, and the fact that Eastern owned the aircraft. (App. 756-59). Eastern's attorney followed as plaintiffs' attorney read the facts, and assented to all of them, stating "That's agreed" or "yes" or "Okay". (App. 756, 758). Later in the trial, Eastern sought to read into evidence certain other facts that were in the stipulation. (App. 1971-73, A105-114). These facts not only dealt with "hard" information such as the fact that the air controllers were government employees and the dimensions and lighting of JFK runways, but also dealt with allegations which would establish the negligence of the United States. These "soft" facts included allegations that the Government air controllers knew of the adverse weather conditions but neglected to inform Eastern 66 of the conditions, that they neglected to change the runway used for landing approaches, and that the controllers failed to solicit information from the two planes that landed immediately before Eastern 66 even though both had encountered severe wind shear. (App. A105-114). Plaintiffs' counsel, although willing to allow in the "hard" facts such as the runway dimensions and runway lighting, vigorously objected to the "soft" facts dealing with the United States' negligence (App. 1962-63, 1976, 1984-85). The Judge allowed Eastern to make an offer of proof as to any of these facts, but refused to allow them to read from the stipulation.

Eastern did submit evidence to the jury of the United States' negligence (i. e. the negligence of the air controllers), which tracked the allegations of the stipulation. For example, Eastern solicited from plaintiffs' expert witness the facts that the air controllers should have given weather information to Eastern 66 and should have requested weather information from the two planes that landed before Eastern 66. (App. 1877-80). That witness also opined that Eastern 66 would not have made a landing approach had it received such information. (App. 1879-80). Additionally, Eastern introduced a transcript of the Local Controller Communications (App. 3464-3500) which...

To continue reading

Request your trial
56 cases
  • O'Rourke v. Eastern Air Lines, Inc., s. 56
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 2, 1984
    ...the United States consented to a liability judgment. Subsequently, a jury found Eastern negligent. This was affirmed on appeal. 635 F.2d 67 (2d Cir.1980). Following the affirmance, Eastern moved pursuant to the damage limitation provision of the Warsaw Convention for partial summary judgmen......
  • Universal City Studios, Inc. v. Nintendo Co. Ltd.
    • United States
    • U.S. District Court — Southern District of New York
    • July 29, 1985
    ...is all that is available to test her credibility. However, the task is not unknown to the factfinder. See In Re Air Crash Disaster, Etc., 635 F.2d 67, 73 (2d Cir.1980); Devitt and Blackmar, § In April 1982, Sheinberg sought advice from DiMuro concerning Universal's, and presumably Sheinberg......
  • Spinrad v. Comair, Inc.
    • United States
    • U.S. District Court — Eastern District of New York
    • November 23, 2011
    ...has “acknowledged that the FAA does not preempt all state law tort actions,” id. (citing In re Air Crash Disaster at John F. Kennedy Int'l Airport on June 24, 1975, 635 F.2d 67, 75 (2d Cir.1980)); the statute's savings clause “specifically preserves these actions.” Id.; see 49 U.S.C. § 4012......
  • Kiefer v. Continental Airlines, Inc., 01-91-01286-CV
    • United States
    • Texas Court of Appeals
    • August 11, 1994
    ...F.2d 463 (7th Cir.1988), cert. denied, 490 U.S. 1080, 109 S.Ct. 2099 and 2100, 104 L.Ed.2d 661 (1990); In re Air Crash Disaster at John F. Kennedy Int'l Airport, 635 F.2d 67 (2d Cir.1980); In re Air Crash Disaster at Sioux City, Iowa, 734 F.Supp. 1425 (N.D.Ill.1990); In re Air Crash Disaste......
  • Request a trial to view additional results
19 books & journal articles
  • Attacking the Opposing Expert
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2016 Contents
    • August 4, 2016
    ...and would not be of assistance to the jury in reaching its decision. In re Air Crash Disaster at John F. Kennedy International Airport, 635 F.2d 67, 73 (2d Cir. 1980) involved an air crash in which a chart of the National Transportation Safety Board was offered in evidence. The established ......
  • Authentication
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2018 Contents
    • July 31, 2018
    ...admissible as an accurate portrayal of the plainti൵’s daily life where it showed his adaptation to his injury . In re Air Crash Disaster , 635 F.2d 67 (2d Cir. 1980). A chart showing the glide slope path of an airplane was excluded under rule 403 where the times of the conversations marked ......
  • Attacking the Opposing Expert
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2019 Contents
    • August 4, 2019
    ...and would not be of assistance to the jury in reaching its decision. In re Air Crash Disaster at John F. Kennedy International Airport, 635 F.2d 67, 73 (2d Cir. 1980) involved an air crash in which a chart of the National Transportation Safety Board was offered in evidence. The established ......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2015 Contents
    • August 4, 2015
    ...Crash at Charlotte, 982 F. Supp. 1086, 1090 (D.S.C. 1997), §§121.6, 203 In re Air Crash Disaster at John F. Kennedy International Airport, 635 F.2d 67, 73 (2d Cir. 1980), §470 In re Air Crash Disaster at New Orleans , 795 F.2d 1230, 1233 (5th Cir. 1986), §§415.1.1, 424.8, 551.1.5 In re Air ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT