Airplanes of Boca, Inc. v. U.S. ex rel. F.A.A., 01-8028-CIV.

• Decision Date: 14 March 2003
• Docket Number: No. 01-8028-CIV.,01-8028-CIV.
• Citation: 254 F.Supp.2d 1304
• Parties: AIRPLANES OF BOCA, INC., a Delaware corporation.; Jeffrey S. Mintz, as personal representative of the Estate of Michael D. Mintz; Penni-Sue Vera, as personal representative of the Estate of Enid Mintz; John P. Seiler, Adm. Ad Litem of the Estate of Joel Mintz, Plaintiffs, v. UNITED STATES of America, by its FEDERAL AVIATION ADMINISTRATION, Defendants.
• Court: U.S. District Court — Southern District of Florida

254 F.Supp.2d 1304

AIRPLANES OF BOCA, INC., a Delaware corporation.; Jeffrey S. Mintz, as personal representative of the Estate of Michael D. Mintz; Penni-Sue Vera, as personal representative of the Estate of Enid Mintz; John P. Seiler, Adm. Ad Litem of the Estate of Joel Mintz, Plaintiffs, v. UNITED STATES of America, by its FEDERAL AVIATION ADMINISTRATION, Defendants.

No. 01-8028-CIV.

United States District Court, S.D. Florida, West Palm Beach.

March 14, 2003.

COPYRIGHT MATERIAL OMITTED

Francis J. Carroll, Jr., Boehm Brown Seacrest & Fischer, Frank Bradley Hassell, Eubank Hassell & Moorhead, Daytona Beach, Don Howarth, Howarth & Smith, Los Angeles, CA, Robert L. Parks, Jeannete Lewis Bologna, Haggard Parks Haggard & Bologna, Coral Gables, for Airplanes of Boca, Inc., a Delaware corporation, the Estate of Enid Mintz, plaintiff.

Maureen Donlan, United States Attorney's Office, Miami, Steven J. Riegel, United States Department of Justice, Torts Branch, Civil Division, Washington, DC, David I. Mellinger, AUSA, United States Attorney's Office, Fort Lauderdale, Stephen V. Dunn, Federal Aviation Administration, Office of the Chief Counsel, Washington, DC, for United States of America, by its Federal Aviation Administration, defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

RYSKAMP, District Judge.

I. Findings of Fact

A. The Pilot

On January 21, 1998, Mr. Michael D. Mintz held a commercial pilot certificate permitting him to fly single- and multiengine land airplanes in instrument conditions, and a current second-class medical certificate. Mr. Mintz. had a total of approximately 1606 hours of flight time, of which 843 hours were in the Gulfstream Commander 695A aircraft, N269M, which he owned and operated personally through a corporation (Airplanes of Boca, Inc.). Of that 843 hours in that aircraft, 389 hours were as pilot in command. Mr. Mintz had logged 72 hours in N269M within the previous 90 days, 41 hours within the preceding 30 days, and 7 hours within 24 hours preceding the accident. On the evening before the accident, Mr. Mintz piloted at least four of the seven hours in nighttime conditions.

B. The Aircraft

The Gulfstream Commander 695A aircraft is a complex, high-performance, twin turboprop aircraft equipped for flight in instrument conditions under instrument flight rules (IFR). It is considered a "corporate" aircraft, designed for two pilots but which may legally be operated by one under 14 C.F.R. Part 91. On the day of the accident, N269M was in airworthy condition. There is no evidence of equipment malfunction. The aircraft N269M was equipped with a Bendix RDR 1150HP Color Weather Radar featuring "Weather Mapping With Alert" which blinks continuously when a Video Integrator and Processor (VIP) Level 3 or greater (red) storm is present. The aircraft was also equipped with a 3M model WX-11 Stormscope, a device which detects lightning strikes, an indication of the thunderstorm activity. Both devices were fully capable of providing the pilot with sufficient information to avoid flying into thunderstorms and other convective weather. Both devices were operational at the time of the accident flight. On the day of the accident, N269M had a value of $1,534,000.00, to which the parties have stipulated.

C. The Weather Briefing

At 1919 UTC ¹ Mr. Mintz telephoned the Miami Automated International Flight Service Station (MIA AIFSS) and filed an instrument flight plan from Boca Raton, Florida to Gwinett County Airport in Lawrenceville, Georgia. After filing the flight plan he requested and received a standard weather briefing, which he was provided in accordance with the provisions of FAA Order 7110.10L, Flight Services handbook, Chapter 3-1-1. The standard weather briefing Mr. Mintz received met all the applicable elements that the Flight Services handbook prescribes for a standard weather briefing and accurately translated and described the weather information in the vicinity of Boca Raton Airport and along N269M's proposed route of flight. The MIA AIFSS specialist taking the call was Mr. Michael C. Miller. At all relevant times, Mr. Miller acted within the course and scope of his employment. There were no weather advisories or warnings (e.g., SIGMETs, AIRMETs, etc.) in effect for Mr. Mintz's proposed route of flight.

At 2028 UTC, Mr. Mintz called on the radio to the Palm Beach Approach Control to activate the instrument flight plan for N269M to Gwinett County Airport. (Transcript at 2028:10). FAA Air Traffic Control Specialist John Boyle, working at Palm Beach Approach Control, read N269M its clearance, listened to the readback, and told the pilot to hold (on the ground) for release into the air traffic control system. (Transcript at 2028:20). Mr. Mintz acknowledged the clearance and stated he was first in line for takeoff at Boca Raton. (Transcript at 2028:58). At this point, Mr. Mintz's onboard weather radar was unimpeded by buildings and, presumably, other aircraft. After coordinating a reservation of protected TFR airspace for N269M, Mr. Boyle asked Mr. Mintz if he was able to go "north bound" after departure. (Transcript at 2029:17). Mr. Mintz answered "... yeah, we will be right in the soup immediately however." (Transcript at 2029:22). The phrase "in the soup" is generally understood by pilots and air traffic controllers alike to mean in clouds or precipitation. The phrase does not imply hazardous weather to a competent instrument pilot or an air traffic controller. Mr. Boyle asked N269M again, "you can do that?" Mr. Mintz replied, "yes sir I can." (Transcript at 2029:27). This was reasonably understood by Mr. Boyle as meaning Mr. Mintz accepted the clearance as given. At all relevant times, Mr. Boyle acted within the course and scope of his employment.

Mr. Mintz, therefore, knew about the weather in the vicinity of Boca Raton Airport from at least three sources:

(a) the standard weather briefing he had received from MIA AIFSS;

(b) his own observations made on the airport, as evidenced by the pilot report he provided to inbound flight Caravan 100US. Both the pilot experts who testified at trial agreed that the pilot giving the report was Mr. Mintz; and

(c) the color weather radar unit and stormscope on board N269M.

Additionally, if Mr. Mintz had gone to the fixed base operator Boca Aviation, he would have had available a flight planning facility with color weather radar. Mr. Mintz could use his onboard weather radar on the ground before departure, and in the air after takeoff to look for radar returns indicating the presence of convective weather. After receiving his clearance from Mr. Boyle, Mr. Mintz had four options:

(a) accept the clearance as given by the controller;

(b) advise the controller he would need to fly a different heading after takeoff to avoid weather;

(c) advise the controller he would delay departure until the weather clears; or

(d) contact the Flight Service Station to get an up-to-date weather briefing. Mr. Mintz chose to accept the clearance as given by Mr. Boyle.

D. The Departure of N269M

Mr. Mintz taxied N269M from where it was parked on the airport to the departure end of Runway 5. During the taxi, Mr. Mintz had opportunities to use his onboard weather radar to scan in the direction of his intended flight path. He was also able to observe continuously the local weather conditions through the aircraft's windows. The flight was shortly thereafter released for departure. (Transcript at 2029:29.) N269M reported airborne at 2031 UTC (Transcript at 2031:45) and turned northwest to a magnetic heading of approximately 320 degrees climbing to an intermediate altitude of 5,000 feet mean sea level (MSL). After Mr. Mintz retracted the landing gear following takeoff, his checklist workload was light and was to remain so until reaching an altitude of 10,000 feet.

During the brief flight, Mr. Mintz did not request or take a deviation around weather, even though the Federal Aviation Regulations would have permitted him to do so. Mr. Mintz also did not report any encounter with moderate or severe turbulence to air traffic control as required by the FARs. After leveling off at 5,000 feet, N269M accelerated to an airspeed in excess of the recommended Maneuvering Speed, as set forth in the manufacturer's Pilot Operating Handbook, for a Gulfstream Commander 695A with a gross weight of 10,500 pounds, which was approximately 137 KCAS. At no time during the flight did Mr. Mintz slow down to the recommended Moderate Turbulence Penetration Speed of 180 KCAS. This is additional evidence that Mr. Mintz never encountered moderate or severe turbulence before the hard left turn at 2034:18. At approximately 2034 UTC, Mr. Boyle noticed that N269M was in a hard left turn away from its assigned heading and asked, "six nine mike, what is your heading." (Transcript at 2034:29.) Mr. Mintz responded, "niner mike is in trouble." (Transcript at 2034:31.) That was the only indication from the pilot that he was in trouble. It was also the final radio transmission from N269M. At approximately 2034 UTC, Mr. Mintz lost control over N269M, which entered a steep left spiral descent ending in a nose-down crash. A comparison of the location of the last recorded radar hit with the ground impact site demonstrates a nearly vertical, highspeed descent. Mr. Mintz and his passengers died instantly in the crash.

E. Palm Beach Air Traffic Control

Mr. John Boyle, the Palm Beach Arrival Radar controller who spoke to N269M, was fully qualified to serve as a full performance level radar controller in the position he occupied on the day of the accident, which was the South Arrivals (AR-F) scope. Mr. Boyle was operating an ASR-8 radar system which is designed to control air traffic, not to detect weather. The ASR-8 radar can detect precipitation echos, but cannot distinguish its type or intensity.

In accordance with the Federal Aviation Administration's national policy, Mr. Boyle could not see and was not trained...