Barna v. U.S.
| Decision Date | 16 December 1999 |
| Docket Number | No. 95 C 6552.,95 C 6552. |
| Citation | 89 F.Supp.2d 983 |
| Parties | James Lee BARNA, as Special Administrator of the Estate of James S. Barna, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Roger Pascal, William Edward Meyer, Jr., Schiff, Hardin & Waite, Chicago, IL, for Plaintiffs.
Jonathan C. Haile, United States Attorney's Office, Chicago, IL, Steven J. Riegel, Senior Aviation Counsel, Department of Justice, Washington, DC, for Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On May 4, 1993, James S. Barna (Barna), a twenty-six year old pilot, was flying a night cargo flight for his employer, Viking Express, Inc. Barna's airplane crashed just outside of Lone Rock, Wisconsin, and Barna was killed instantly. His father James Lee Barna, acting as administrator of Barna's estate, has sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2674 & 1346(b), claiming that the crash occurred because of the negligence of Federal Aviation Administration (FAA) air traffic controllers in directing Barna and the negligence of the National Ocean Service (NOS), which is part of the National Oceanic and Atmospheric Administration, in preparing a chart depicting an approach to the Lone Rock airport. This Court has jurisdiction under 28 U.S.C. § 1346(b).
On September 25, 1998, Judge Elaine Bucklo denied defendant's motion for partial summary judgment as to the chartmaking part of the case, holding that defendant had failed to show as a matter of law that the conduct of the chartmakers was subject to the "discretionary function" exception to the FTCA found in 28 U.S.C. § 2680(a). Barna v. United States, 22 F.Supp.2d 784 (N.D.Ill.1998). The case was transferred to this Court in late June 1999. The Court held a bench trial that began on October 25, 1999 and concluded on November 12, 1999. This constitutes the Court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
Prior to his death, Barna resided in Naperville, Illinois with his parents, James and Helen Barna. Barna was a professional pilot who had pursued a career in aviation since he was a teenager. He obtained his first pilot's license at age sixteen, and in 1991, he became licensed as an airline transport pilot. Barna also held a commercial pilot's license, an instrument rating permitting him to fly in instrument (poor) weather conditions, and a flight instructor's rating for single and multi-engine aircraft and gliders.
Barna had logged nearly 4500 hours as a pilot at the time of his death. This included over 700 hours as a pilot in command of multi-engine aircraft. He had flown about 250 hours in the 90 days before his death. On the night of the crash, Barna was flying a Beechcraft Model E-18S, commonly known as a Beech 18. He had logged 214 hours of flight time in Beech 18's. On March 23, 1993, Barna had completed a Federal Aviation Regulations Part 135 Instrument Flight Rules (IFR) check ride in a Beech 18, during which his flying skills and knowledge of the aircraft were checked comprehensively, and he had received a satisfactory rating. Just two days before the fatal flight, Barna had flown a Beech 18 in instrument meteorological conditions, in other words, weather conditions in which the pilot must navigate the plane by reference to instruments. In short, he was fully qualified to operate this aircraft in the conditions that existed on the night of May 4.
On May 4, 1993, Barna departed from the Aurora airport in a Beech 18 at around 12:35 a.m. As was his and his employer Viking's usual practice, he was the only occupant of the plane, which was carrying copies of the New York Times to Minneapolis. He had flown this route frequently in the preceding months. On the night of the crash, the flight was identified as Viking Express Flight 902, or Titan 902.
The FAA Air Route Traffic Control Center (ARTCC) in Aurora, Illinois was responsible for air traffic control services relating to the flight at all times preceding the crash. Flight 902 was operated under IFR, meaning that Barna was given a route and other directions by air traffic controllers. The Beech 18 was properly equipped for night instrument flight. It had dual communication and navigation radios on board, and it also had a transponder, which enhances an airplane's image on radar and provides a code to help identify it to air traffic controllers.
Communications between Barna and the ARTCC were tape recorded. The tape recording of these communications was admitted in evidence at trial. This recording also includes several communications between the ARTCC and other aircraft, as well as a handful of communications between Barna and another Viking pilot, David Groth, who had left the Aurora airport shortly before Barna on Viking Express Flight 901 (Titan 901), flying the same route as Barna. Transcripts of the recordings, prepared by FAA personnel, were admitted in evidence. The Court has relied on the tapes as the primary evidence of what was said, using the transcripts as an aid to comprehension.
On the night of the crash, Thomas Demes was the FAA air traffic controller responsible for the sector that included the route Barna was flying prior to the crash. Throughout the events in question, Demes could and did observe on radar the location and altitude of Barna's aircraft. Demes' radar screen permitted him to easily change the viewing scale if he wanted or needed to focus in more closely on a particular area.
At 1:12 a.m., Barna told Demes that he was flying at an altitude of 6000 feet above sea level. Then, at 1:19:26, Barna asked Demes to identify the closest airport with an instrument approach. The term "instrument approach" is a reference to pre-plotted approaches to airports that can be flown using navigational aid equipment. These approaches are published in books prepared by NOS, as well as by at least one private entity. Barna had a book of NOS charts on board his Beech 18. Demes gave Barna two airport choices — Mineral Point, which at that point was about five miles from Barna and somewhat behind him, and Lone Rock, which was about twenty miles straight ahead of him. Demes asked Barna if he had a problem, and Barna replied that his left engine was failing.
Based on this communication, Barna's situation became an emergency. Demes treated it as such. He called for additional assistance from Kent Nicholson, a more experienced controller who was working a different sector, and he also obtained assistance from Deborah Pratl, another controller, and Leo Rasp, a supervisor. As events progressed, Nicholson worked closely with Demes in dealing with Barna and observing his progress on radar.
Demes gave Barna more specifics about the Mineral Point airport, including that the approach was a type of instrument approach called an "NDB" approach. Because an NDB approach required equipment that Barna's Beech 18 did not have, Barna decided to fly to Lone Rock. He asked Demes for more information about that airport, and at 1:20:41, he asked Demes to give him a "heading" to Lone Rock. A heading is a direction, expressed in terms of degrees, with 0, 090, 180, and 270 denoting, respectively, north, east, south, and west. Demes immediately responded at 1:20:45 by telling Barna to follow a heading of 010.
Demes also told Barna at 1:20:45 that the Lone Rock airport had a "VOR-A" approach, which is a type of instrument approach that makes use of a ground transmitter called a "VOR" transmitter. Barna's Beech 18 was capable of flying VOR-A approaches, and Barna himself had done so before. The Lone Rock VOR was located five and one-half nautical miles from the airport, to the north-northeast, along the 026 radial. A radial is an imaginary line corresponding to a particular heading, again with 0 denoting north, 090 east, 180 south, and 270 west.
The NOS chart book Barna was carrying contained a chart depicting the Lone Rock VOR-A approach. The depiction consisted of the diagrams on the following page: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE The published approach, for a pilot approaching the Lone Rock airport from the south, involves three parts. On the initial part of the approach, the pilot travels north-northeast away from the Lone Rock airport and past the VOR along the 026 radial. After traveling along this radial for some distance — on the chart, around four to five miles — the pilot makes a turn referred to as a "procedure turn" to reverse course. This requires the pilot to turn left off the 026 radial, travel away from that radial for about one minute, and then make a 180 degree turn and return to the inbound equivalent of the 026 radial, i.e., the 206 radial. The intermediate part of the approach involves traveling along the 206 radial (i.e., in a south-southwesterly direction) back to the VOR. The final part of the approach extends from the VOR to the airport.
The Lone Rock airport sits at 717 feet above sea level. The published approach prescribes flying the initial part of the approach at an altitude of no lower than 3300 feet above sea level, allows for a descent along the initial part of the approach to 3000 feet, and permits a continued descent along the intermediate part of the approach to an altitude of 2900 feet when the pilot reaches the VOR to begin the final approach. The chart states that the minimum descent altitude (MDA) is 1680 feet above sea level, which means the pilot cannot descend below that altitude until the airport is "made," i.e., until he can actually see the airport. The primary runway at the Lone Rock airport is aligned in an east-west direction. Assuming the pilot "makes" the airport while following the final approach course, the evidence showed that he is then permitted to circle to land by making a right (westerly) turn, traveling parallel to and...
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...approach when offered it, and he was the pilot in command.In making their usurpation argument, Plaintiffs refer to Barna v. United States, 89 F.Supp.2d 983 (N.D. III. 1999). Like this case, Barna involved a fatal crash of an airplane with engine problems during landing. The pilot in Barna r......
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...when offered it, and he was the pilot in command. In making their usurpation argument, Plaintiffs refer to Barna v. United States, 89 F. Supp. 2d 983 (N.D. Ill. 1999). Like this case, Barna involved a fatal crash of an airplane with engine problems during landing. The pilot in Barna repeate......