Beech Aircraft Corp. v. U.S.
| Decision Date | 28 March 1995 |
| Docket Number | 93-17106 and 93-17108,Nos. 93-16986,s. 93-16986 |
| Citation | 51 F.3d 834 |
| Parties | 41 Fed. R. Evid. Serv. 1221 BEECH AIRCRAFT CORPORATION, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Stephen EVANGELISTA, Plaintiff, Personal Injury Plaintiffs' Steering Committee, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. The TAUBMAN COMPANY, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William H. Owen, Owen, Melbye & Rohlff, Redwood City, CA, for plaintiff-appellant, in No. 93-16986.
Luke B. Marsh, U.S. Dept. of Justice, Washington, DC, for defendant-appellee, in No. 93-16986.
Joe R. McCray, Joe R. McCray, A Law Corp., San Francisco, CA, for plaintiff, in No. 93-17106.
Roberta Perkins, Joe R. McCray, A Law Corporation, San Francisco, CA, for plaintiff-appellant, in No. 93-17106.
Lee J. Danforth, Coddington, Hicks & Danforth, Redwood City, CA, for plaintiff-appellant, in No. 93-17108.
Appeals from the United States District Court for the Northern District of California.
Before: SNEED and O'SCANNLAIN, Circuit Judges, and MERHIGE, Senior District Judge. *
Beech Aircraft Corporation ("Beech") and other Plaintiffs 1 (collectively "Plaintiffs") appeal the district court's judgment in favor of the Defendant in Plaintiffs' action under the Federal Tort Claims Act, 28 U.S.C. Secs. 2671, et seq. ("FTCA"), seeking indemnity from the United States for monies they paid in settlement for alleged air traffic controller negligence, arising from injuries and damages sustained when a Beech Aircraft crashed into Sun Valley Mall in Concord, California. Plaintiffs also appeal the trial court's decision to exclude certain evidence and testimony.
On December 23, 1985, shortly after 8:30 p.m., a twin-engine Beechcraft Baron airplane ("Baron") crashed into the Sun Valley Mall in Concord, California. The Baron was piloted by James Graham. At the time of the accident, Graham had just completed a flight from San Luis Obispo to Concord and was attempting to land the Baron at Concord's Buchanan Field. Graham ran a local "fixed base operation" at Buchanan Field. The litigation that is the subject of this appeal arises out of the accident and the alleged negligence of the air traffic controllers in handling the attempted landing.
On approach to the Concord area, the Baron first received air traffic control services from the Oakland Air Route Traffic Control Center and Travis Air Force Base Approach Control ("Travis"). Airplanes intending to land at Buchanan Field obtain clearance for approach to Buchanan Field from Travis, but obtain clearance for landing from the local controller in the Concord Tower at Buchanan Field. Concord Tower is not equipped with radar, and the controllers in the tower cannot track an airplane unless it is visible to the eye. 2
Buchanan Field has two runways, labelled 19R and 1L, and there are different landings that a pilot may make on each runway depending upon weather conditions. Pilots may either obtain clearance to fly straight in to runway 19R or obtain clearance to circle to land on runway 1L.
On the straight-in landing, the pilot uses instruments to guide him until he can make visual contact with the runway, at which time he shifts to visual flying. If the pilot, in making his descent, does not see the runway when he has descended to an altitude of 340 feet above mean sea level (320 feet above ground), he must cease his descent and fly at that altitude until he can see the necessary visual cues to guide him to the runway and can descend further. When the pilot reaches a certain point over the threshold of the runway (the "Missed Approach Point" or "MAP"), if he has not seen the necessary cues, the pilot has missed the opportunity to execute a straight-in landing, and he must execute the published missed approach procedure. That procedure involves an immediate climbing left turn to 2,500 feet above mean sea level to set up to re-attempt the same approach or begin another approach.
The other type of landing performed at Buchanan field requires the pilot to circle the airport and land on runway 1L. In order to execute this landing, the pilot flies towards the threshold of runway 19R as if to make a straight-in landing and then, at or before the beginning of runway 19R, makes an aggressive left turn to the east. This landing requires one mile horizontal visibility and requires vertical visibility up to a minimum of 580 feet above mean sea level. Additionally, the pilot must be able to keep the runway in sight during the circling maneuver.
Plaintiffs contend that the controllers at Concord Tower had, for some time, condoned an illegal practice and permitted pilots to execute a third type of landing. According to Plaintiffs, pilots landing at Buchanan field who miss the approach for a straight-in landing on 19R often attempt to convert such a landing into an illegal circle-to-land landing instead of executing missed approach procedure. Plaintiffs allege that a pilot attempting this illegal procedure would contact Concord Tower and explain that he had missed the opportunity to land on 19R and request clearance to circle to runway 1L. Plaintiffs argue that the controllers had made it a standard practice to grant such clearance even if the visibility minimums were insufficient for a circle-to-land landing.
On the night of the accident, when the Baron neared Buchanan Field, Travis cleared the aircraft for approach to runway 19R. Graham then contacted Concord Tower, and the controllers cleared him for a straight-in landing on 19R. The weather conditions at that time were such that visibility was up to 400 feet above mean sea level. The dispute in the lawsuit centers over what type of landing Graham attempted and who caused him to make such an attempt. Principal issues in the proceeding below were whether the controllers, in fact, habitually allowed the aforementioned illegal landing to go on, whether Graham knew of it, and whether Graham was attempting to execute it on the night of the accident.
While it is undisputed that the Baron flew over the missed approach point for runway 19R, the parties disagree over what happened next. Normally, communications between the tower and the Baron would have been recorded and there might have been irrefutable evidence as to Graham's intentions. On the night of the accident, however, the tower's recording equipment malfunctioned, and the transmissions were not recorded clearly. All of the transmissions from the tower to the Baron were preserved, but the equipment did not pick up Graham's transmissions to the tower. 3 The controller responsible for communicating with the Baron, Michael Snyder, testified he heard Graham's responses to his transmissions loud and clear.
After Graham flew over the missed approach point for runway 19R, Snyder testified that he heard Graham declare a missed approach. Within 24 hours of the accident, both Snyder and ground controller Ron Attard filled out reports reflecting that Graham had declared a missed approach. Regardless of Graham's transmissions to the tower, it is undisputed that Snyder radioed Graham to "contact Travis departure." Such a transmission is consistent with a declaration of a missed approach.
The parties dispute what happened next, but the trial judge found that the Baron flew overhead within view of the tower and continued straight ahead to a point almost two miles south of the tower, then entered into a right descending spiral and crashed into the Sun Valley Mall. The trial judge also found that after passing the tower, the Baron accelerated and retracted its landing gear, actions which are inconsistent with the illegal circle-to-land approach.
The ground victims injured by this accident and mall store owners who sustained property damage filed suit in California state court against Graham, Beech, the maker of the airplane engines, the company which owned and maintained the Baron, the city of Concord and Taubman. 4 The case went to trial, but before it could be submitted to a jury, Beech, Taubman and the estate of the pilot settled. The maintenance company was found not liable. The United States was not a party to this litigation.
Subsequently, the PSC Plaintiffs brought suit against the United States for alleged air traffic controller negligence. Beech and other state court defendants brought consolidated actions seeking indemnity from the United States for the money they had paid in settlement.
In preparation for trial, Beech hired two experts to testify as to the contents of the faulty tape of the Baron-to-tower transmissions, one who worked to enhance the tape and one who allegedly deciphered the low-level voice transmissions made by Graham. Prior to trial, the trial judge decided to exclude the testimony of these experts and held that no witness would be allowed to testify as to the contents of the tape. In addition, during closing arguments, the PSC Plaintiffs attempted to admit some worksheets produced by the FBI in its investigation of the accident and examination of the tapes. The trial judge refused to admit the worksheets.
After hearing all of the evidence at the two week bench trial, the trial judge concluded that "Plaintiffs failed to show either that the Tower's behavior was negligent or that said negligence, if any was a legal or proximate cause of the crash." (D.Ct.Op. of Aug. 6, 1993 at 1, 1993 WL 316232) Plaintiffs challenge the trial court's finding that the air traffic controllers were not negligent as well as the court's placement of the burden of proof on the plaintiffs and the court's application of the standard of proof. In addition, Beech appeals the exclusion of the expert testimony, and the PSC Plaintiffs appeal the exclusion of the FBI worksheets. 5
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