Budden v. U.S.

• Decision Date: 08 February 1994
• 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.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1444

15 F.3d 1444

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 Feb. 8, 1994.

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.

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING

The majority opinion in this case, filed November 3, 1993, 8 F.3d 1278, is amended in these respects:

(1) The first sentence of the first complete paragraph on page 1283 of the opinion is modified to read:

The district court found that Budden also breached his duty by failing to exercise reasonable care under the circumstances. (Additional Findings on Remand, December 8, 1992.)

(2) The last full paragraph on page 1283 is modified to omit the period after the word "crash" and add the phrase "and operated as the sole proximate cause of the accident."

(3) Footnote 10, at page 1285, is added to the opinion. The footnote reads:

The changes are incorporated into a revised opinion which, together with the dissent of Judge Lay, is attached for filing.

The court has carefully considered the appellant's strong petition for rehearing. With the foregoing changes, the majority denies the petition for rehearing.

LAY, Senior Circuit Judge, dissenting.

I dissent from the denial of the petition for rehearing. As the petition for rehearing points out, the majority's analysis regarding intervening cause is a complete aberration under Nebraska law and any other existing law.

As the Supreme Court of Nebraska recently observed:

"[T]he doer of an original wrongful act that should reasonably cause one to anticipate an injury therefrom is not relieved from liability for an injury immediately brought about by an intervening cause, wrongful or otherwise, that is set into operation by such original wrongful act, and that alone would not have caused the injury, but which with the aid of the original wrong does cause such injury."

Stodola v. Grunwald Mechanical Contractors, Inc., 228 Neb. 301, 422 N.W.2d 341, 344 (1988) (quoting Johnson v. Metropolitan Utilities Dist., 176 Neb. 276, 125 N.W.2d 708, 711 (1964)). The Stodola court continued:

"Generally, the effect of an intervening negligent act is tested by determining whether it was such as might reasonably have been foreseen as a consequence of the claimed negligence of the original actor.... The law does not require precision in foreseeing the exact hazard or consequence which happens. It is sufficient if what occurs is one of the kind of consequences which might reasonably be foreseen."

Id. (quoting Brown v. Nebraska P.P. Dist., 209 Neb. 61, 306 N.W.2d 167, 171 (1981) (emphasis added).

Additionally, the Restatement (Second) of Torts, Sec. 442B, comment b, (1965), reads:

If the actor's conduct has created or increased the risk that a particular harm to the plaintiff will occur, and has been a substantial factor in causing that harm, it is immaterial to the actor's liability that the harm is brought about in a manner which no one in his position could possibly have been expected to foresee or anticipate.

Id.

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. Sec. 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. Sec. 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. Sec. 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...