Budden v. U.S.

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Lay; Before HANSEN, Circuit Judge, LAY and BRIGHT; BRIGHT; LAY
• Citation: Budden v. U.S., 8 F.3d 1278 (8th Cir. 1993)
• Decision Date: 03 November 1993
• Docket Number: No. 93-1149,93-1149
• Parties: Joan BUDDEN, Personal Representative of the Estate of Craig Budden, deceased; Wilma Lewis, Personal Representative of the Estate of Craig Budden, deceased; Ronald Rodgers, doing business as Rodgers Helicopter Service; Associated Aviation Underwriters, Appellants, Aetna Life & Casualty Co. v. UNITED STATES of America, Appellee.

Page 1278

8 F.3d 1278

Joan BUDDEN, Personal Representative of the Estate of Craig Budden, deceased; Wilma Lewis, Personal Representative of the Estate of Craig Budden, deceased; Ronald Rodgers, doing business as Rodgers Helicopter Service; Associated Aviation Underwriters, Appellants Aetna Life & Casualty Co. v. UNITED STATES of America, Appellee.

No. 93-1149.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 13, 1993.

Decided Nov. 3, 1993.

Lay, Senior Circuit Judge, dissented and filed an opinion.

C.L. Robinson, Omaha, NE, argued, for appellant.

Thomas K. Pfister, Washington, DC, argued, for appellee.

Before HANSEN, Circuit Judge, LAY and BRIGHT, Senior Circuit Judges.

BRIGHT, Senior Circuit Judge.

This case arises out of the December 20, 1985 crash of a helicopter ambulance in the Nebraska countryside. The estate of deceased pilot Craig Budden, along with aircraft owner Ronald Rodgers and Associated Aviation Underwriters, sued the FAA under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) (1982), alleging that flight service specialist Robert Geranis failed to fully notify Budden of forecast adverse weather conditions during a pre-flight briefing.

The district court found in favor of the Government. Budden v. United States, 748 F.Supp. 1374 (D.Neb.1990), vacated, 963 F.2d 188 (8th Cir.1992). On initial appeal, we determined that Geranis negligently omitted important information about cloud ceilings of less than 1,000 feet. Budden v. United States, 963 F.2d 188 (8th Cir.1992) [Budden I ]. ¹ We vacated the district court's judgment and remanded for findings on proximate cause and intervening cause. The district court found on remand that Budden's in-flight negligence was the sole proximate cause of the crash. On appeal, appellants contend that the trial court erred in finding Craig Budden negligent and his negligence the sole cause of the crash. ² We now affirm.

I. BACKGROUND

On the afternoon of December 20, 1985, Craig Budden, a pilot employed by Rodgers Helicopter Service (RHS), received a routine phone call from Good Samaritan Hospital requesting that he fly from Kearney to Ainsworth, Nebraska to pick up a critically ill patient. The hospital had contracted with RHS for use of its Air Care helicopter; under the contract, either Budden or Ronald Rodgers would fly the mission depending on which pilot was on call that day. Budden agreed to make the flight to Ainsworth.

At 5:45 p.m., Budden called the FAA's Omaha flight service station for a weather briefing. Flight Specialist Geranis had three forecasts available to him at that time--terminal forecasts, the applicable Chicago area forecast, and transcribed weather broadcasts (TWEBs). Terminal forecasts provide weather information for specified cities. Area forecasts cover a large region and apply to areas between terminal destinations. TWEBs forecast weather within specified fifty-mile-wide flight corridors. Geranis provided Budden with terminal forecasts for Ainsworth and Broken Bow, which called for no worse than 1,200-foot ceilings and three miles visibility. Geranis, however, did not consult the Chicago area forecast which called for possible rime icing ³ and cloud ceilings below 1,000 feet. Geranis also did not consult the TWEBs, which included reports of freezing drizzle in Budden's probable flight path. ⁴

FAA regulations prohibit helicopter flights at night with ceilings at or below 1,200 feet, unless visibility is at least one mile. 14 C.F.R. § 135.205(b)(2) (1989). RHS' more stringent flight regulations, which prohibited flying with less than 1,000 foot cloud ceilings and/or three miles visibility, were incorporated into FAA regulations. ⁵ (United States' Appendix at 357-58.) FAA rules also proscribe helicopter flight at night under Visual Flight Rules unless the pilot has visual surface light reference sufficient to safely control the aircraft. 14 C.F.R. § 135.207 (1989).

Based on Geranis' briefing, Budden took off for Ainsworth at 6:01 p.m. with two nurses from Good Samaritan Hospital on board. The flight took place under Visual Flight Rules.

The helicopter crashed twenty miles short of its destination just before 7:00 p.m., killing Budden and the two nurses. Although no one actually witnessed the crash, several ranchers along Budden's route observed the helicopter during its last few minutes of flight. Eight miles southeast of the crash site, Budden flew over the Hutchinson ranch. Mr. Hutchinson heard the helicopter flying north; he estimated that the aircraft flew at 80-120 m.p.h. in cloud ceilings of between 500-1000 feet. Mr. Kuchera, whose ranch is six miles southeast of the crash site, testified that the helicopter flew over heading northwest at about 120 m.p.h. and an altitude of 300 feet; Kuchera stated that skies at 6:30 p.m. were cloudy, and a freezing drizzle or mist created a one-quarter inch of ice on his car windshield. Budden next flew over the Hollenbeck ranches, which are about four miles from the accident site. Both Terry and Deb Hollenbeck testified that the helicopter flew over their ranches at approximately 200 feet. After they turned off their yard light to get a better view, they observed the aircraft continue its flight to the northwest. Terry Hollenbeck stated that the helicopter had its landing light on while near the ranch. Deb Hollenbeck described the weather as a light drizzle. Budden crashed into a sandhill approximately four miles northwest of the Hollenbeck ranches.

Budden's Estate sued the United States for wrongful death; Rodgers Helicopter Service sued for damages, and Associated Aviation Underwriters, insurers of both Budden and the helicopter, sued for contribution. The parties elicited expert testimony from aviation and meteorological consultants on the issue of causation. Michael Carnevale, the Government's expert, theorized that while flying at dangerously high speed and low altitude, Budden flew into a scud cloud, ⁶ got disoriented, and crashed while trying to move below the cloud. The appellants' experts opined that a combination of icing and low visibility forced Budden to attempt an emergency landing at the Hollenbeck ranch; after the attempt was thwarted when the Hollenbecks turned out their yard light, Budden flew on hoping to find another light, experienced spacial disorientation ⁷ due to icing, then crashed.

Prior to remand, the district court held in favor of the United States. Budden v. United States, 748 F.Supp. 1374 (D.Neb.1990), vacated, 963 F.2d 188 (8th Cir.1992). It found that Geranis' failure to brief Budden on the forecast icing conditions constituted negligence. The district court further found that rime icing presented the kind of weather condition that, if known, would likely influence a pilot's decision as to whether to fly. Nevertheless, the district court concluded that icing did not cause the crash, and therefore Geranis' omission of the icing forecast did not proximately cause the accident. According to the district court, "it was the pilot's continued flight into deteriorating weather conditions consisting of decreasing cloud ceilings and visibility, not icing, that caused this accident." Id. at 1389.

In Budden I, we determined that the trial court erred in failing to find that Geranis also breached his duty of care by omitting information about occasional cloud ceilings below 1,000 feet and possible visibility of less than three miles. We vacated the district court's decision and remanded for findings under Nebraska law on the issues of proximate cause, intervening cause, and Budden's negligence, if any. Budden I, 963 F.2d at 194.

On remand, the district court found insufficient evidence upon which to base a conclusion about whether a complete and accurate weather briefing would have deterred the flight. The trial court did find, however, that Budden violated FAA rules and RHS' policies by flying with less than 1,000 foot ceilings and three miles visibility during the last eight miles of flight. The district court concluded that Budden's negligence in knowingly flying into worsening conditions constituted the sole proximate cause of the accident. Budden v. United States, 808 F.Supp. 1444 (D.Neb.1992).

Appellants timely appealed. We must determine whether the district court erred in finding that the pilot's negligence was the sole proximate cause of the crash, or to look at the flip side of the appellants' contention, that the trial court erred in finding that Geranis' negligence was not a proximate cause of the accident.

II. DISCUSSION

A. Standard of Review

Proximate cause constitutes a finding of fact under Nebraska law. Kumar v. Douglas County, 234 Neb. 511, 452 N.W.2d 21, 25 (1990). This court reviews findings of fact under the clearly erroneous standard. Fed.R.Civ.P. 52(a); Norwest Capital Management & Trust Co. v. United States, 828 F.2d 1330, 1336-37 (8th Cir.1987). A factual finding is clearly erroneous when, although there is evidence to support it, the reviewing court is "left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

B. Applicable Law

Courts decide FTCA claims under the law of the state where the tort occurred. 28 U.S.C. § 1346(b) (1982); Goodman v. United States, 2 F.3d 291 (8th Cir.1993). Because the weather briefing and Budden's entire flight occurred in Nebraska, we turn to Nebraska's law of proximate cause and intervening cause.

Nebraska law requires a plaintiff alleging negligence to prove by a preponderance of the evidence the four familiar common law elements--a duty owed to the plaintiff, breach of that duty, proximate causation, and damages. Zeller v. Howard County, 227 Neb. 667, 419 N.W.2d 654, 657 (1988). Liability for negligence arises only when the negligent act proximately causes the injury. Jarosh v. Van Meter, 171 Neb. 61, 105 N.W.2d 531, 536 (1960). An accident can have more...