Glorvigen v. Cirrus Design Corp.

• Decision Date: 16 September 2009
• Docket Number: No. 08-2680.,08-2680.
• Citation: 581 F.3d 737
• Parties: Rick GLORVIGEN, as Trustee for the Next of Kin of Decedent James Kosak, Plaintiff-Appellee, v. CIRRUS DESIGN CORPORATION, Defendant-Appellant, Estate of Gary R. Prokop, By and Through Katherine Prokop as Personal Representative, Defendant-Appellee. Thomas M. Gartland, as Trustee for the Next of Kin of Gary R. Prokop, Deceased, Plaintiff-Appellee, v. Cirrus Design Corporation, Defendant-Appellant. Cirrus Design Corporation, Third Party Plaintiff-Appellant, v. United States of America, Third-Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

581 F.3d 737

Rick GLORVIGEN, as Trustee for the Next of Kin of Decedent James Kosak, Plaintiff-Appellee, v. CIRRUS DESIGN CORPORATION, Defendant-Appellant, Estate of Gary R. Prokop, By and Through Katherine Prokop as Personal Representative, Defendant-Appellee.

Thomas M. Gartland, as Trustee for the Next of Kin of Gary R. Prokop, Deceased, Plaintiff-Appellee, v. Cirrus Design Corporation, Defendant-Appellant.

Cirrus Design Corporation, Third Party Plaintiff-Appellant, v. United States of America, Third-Party Defendant-Appellee.

No. 08-2680.

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2009.

Filed: September 16, 2009.

Collin E. Wrabley, argued, Pittsburgh, PA (James C. Martin, Pittsburgh, PA; Patrick E. Bradley, Princeton, NC; and Daniel J. Connolly, Minneapolis, MN, on the brief), for appellant.

Steven Aaron Kirsch, Asst. U.S. Atty., Department of Justice, argued, Washington, DC (Gregory G. Katsas, Asst. Atty. Gen., Frank J. Magill, Jr., Acting U.S. Atty., and David W. Fuller, Asst. U.S. Atty., Washington, DC, on the brief), for appellee U.S.

Darrold E. Persson, argued, Hibbing, MN (Edward J. Matonich and David Alden Arndt, I, Hibbing, MN, on the brief), for appellee Gartland.

Before LOKEN, Chief Judge, EBEL^*

and CLEVENGER^**, Circuit Judges.

EBEL, Circuit Judge.

On January 18, 2003, at 6:38 a.m., a Cirrus SR-22 aircraft with identification number N9523P crashed near Hill City, Minnesota. The pilot and owner of the aircraft, Gary Prokop, and his passenger, James Kosak, were both killed in the crash. Their trustees, Thomas Gartland and Rick Glorvigen, appointed under the Minnesota wrongful-death statute, brought claims against Cirrus, the airplane manufacturer, alleging, among other things, that Cirrus had improperly designed the airplane and had failed to instruct Mr. Prokop properly in its operation. Cirrus then brought a third-party complaint against two federally employed flight service station ("FSS") specialists for negligence, alleging, among other things, that they were at fault for failing negligently to apprise Mr. Prokop adequately of the weather conditions and weather forecast the morning of the crash. Acting pursuant to the Federal Tort Claims Act, the United States certified that these Specialists had been acting in the scope of their employment at the time of this incident and, based on that certification, the court substituted the United States as the sole third-party defendant, in place of the two FSS specialists, and removed the case to federal court. See Glorvigen v. Cirrus Design Corp., No. 06-2661, 2006 WL 3043222 *1-*2 (D.Minn. Oct.24, 2006) (unpublished).

After the case was removed to federal court, the United States moved for summary judgment, arguing that the FSS specialists had not been negligent in briefing Mr. Prokop and that, even if they were negligent, that negligence did not cause the crash. The district court granted the United States's motion for summary judgment and remanded the remaining issues to the Minnesota state courts.

On appeal, Cirrus challenges both the grant of summary judgment for the United States and the order remanding the remaining issues to state court. Neither of the initial plaintiffs has weighed-in on the grant of summary judgment for the United States. Thomas Gartland, the trustee of Mr. Prokop's wrongful death estate, filed a brief addressing the remand issue urging only that this court affirm the district court's decision to remand the remaining issues to state court.

We hold that neither specialist was negligent in providing weather information to Mr. Prokop. Accordingly, we affirm the district court's grant of summary judgment for the United States. Since we hold that the specialists were not negligent, we do not reach the separate question of causation. We also affirm the district court's decision remanding the remaining issues to the Minnesota state courts.

I. Background

The following factual summary is based on facts "which are either undisputed or viewed in a light most favorable to" the non-moving third-party plaintiff Cirrus. Vaughn v. Ruoff, 253 F.3d 1124, 1127 (8th Cir.2001).

On January 18, 2003, amateur pilot Gary Prokop and his passenger, James Kosak, attempted to fly from Grand Rapids, Minnesota, to St. Cloud, Minnesota, in order to see their sons play in an early-morning hockey game. The flight appears to have started smoothly. They took off at 6:30 a.m., and the plane climbed fairly steadily to about 3300 feet above mean sea level ("MSL"). However, the plane then began moving up and down erratically, and Mr. Prokop apparently attempted to turn it around. Those last-ditch efforts proved to be of no avail; the plane crashed into the ground at 6:38 a.m., killing both its occupants.

A. Mr. Prokop's Qualifications as a Pilot

Gary Prokop was certified to fly in "Visual Flight Rules" ("VFR") conditions only. In other words, he was not trained to fly simply by reading the instruments (also called "Instrument Flight Rules" or "IFR") and, therefore, could only fly when visibility was fairly good.

A VFR pilot is only permitted to fly if visibility is at least three miles and cloud "ceilings" are at least 1,000 feet above ground.¹ See Webb v. United States, 840 F.Supp. 1484, 1490 (D.Utah 1994). Additionally, when flying at night, a VFR pilot flying in the sort of airspace Mr. Prokop flew in that morning—Class E and Class G airspace—must maintain a minimum distance of 500 feet below any clouds, 1,000 feet above any clouds, and 2,000 feet horizontally from any clouds. See 14 C.F.R. § 91.155(a). The sun did not rise that morning until 7:54 a.m., so it was still nighttime when the crash occurred.

Mr. Prokop had logged a total of 248.0 hours of flight time, only 18.9 of which were in an SR-22, the type of plane he flew the morning of the crash. To ensure that he only flew in conditions he was prepared to handle, Mr. Prokop and his flight instructor developed a set of "personal minimums." Personal minimums set forth guidelines for the weather conditions in which a pilot will fly that are more restrictive than the legal weather minimums for VFR flight. Mr. Shipek, Mr. Prokop's Cirrus flight instructor, advised Mr. Prokop to maintain personal weather minimums of 3,000-4,000 foot ceilings and visibility of at least 4-5 miles. Further, Mr. Shipek advised Mr. Prokop not to fly at night when there was snow on the ground because it is difficult in those conditions to distinguish between clouds and the snow-covered ground. The parties agree that the weather reports that morning called for at least some ceilings below 3,000 feet, some areas of visibility below four miles, and that it was still dark with snow on the ground when Mr. Prokop crashed.

B. The Weather Briefings

Mr. Prokop received two weather briefings before he began his flight. He received his first briefing, from FSS Specialist Havelka, at 4:55 am. He called in again for an "abbreviated briefing" from FSS Specialist Hertzog at 5:41 a.m. The relevant portions of both of these briefings are reproduced in full in the district court's opinion, so we will only briefly recount the most important portions here.

Specialist Havelka told Mr. Prokop there was an AIRMET for the area warning of "the potential for some i f r."² (Aplt Appx. at 557.) He conveyed the content of a recent METAR³ for Grand Rapids, reporting visibility of three miles and ceilings of 1,300 feet. He further stated that "the forecast for [the Grand Rapids airport] ... through six or so ah occasional lower stratus and possible light snow[.][A]s the day goes on conditions are expected to become about five to six thousand scattered to broken." (Aplt. Appx. at 557.) He continued to give Mr. Prokop information about other "lower stratus" clouds around the nearby Aitkin and Brainerd airports, the forecast for the St. Cloud airport, where Mr. Prokop had planned to land, as well as some additional information. (Id.) Finally, he advised Mr. Prokop that "it looks like ah you know if you waited a couple hours ceilings should lift some for ya." (Id.)

Mr. Prokop received his second briefing, from FSS Specialist Hertzog, at 5:41 a.m. Early in the briefing, Mr. Prokop mentioned that he had already received a briefing that morning, after which Mr. Hertzog offered to give him an "abbreviated briefing," and Mr. Prokop agreed that he only wanted an abbreviated briefing. Nonetheless, the briefing contained a lot of the information conveyed in the earlier full briefing. For example, Specialist Hertzog warned Mr. Prokop of "the airmet for if r" that Specialist Havelka had mentioned. (Aplt. Appx. at 587.) However, he indicated that although there were some reports of "marginal" conditions at Grand Rapids and low visibility at the Aitkin airport, there were no reports of actual IFR conditions along Mr. Prokop's route at that time. (Id.) Finally, he informed Mr. Prokop that there were no relevant pilot reports, and updated him on the current conditions at the airports near his route.

C. The District Court's Decision

The district court⁴ held that, although the Specialists could have given Mr. Prokop some additional information, neither of them breached his duty of care to Mr. Prokop. The district court held, in the alternative, that any breach of the duty of care in the briefings could not have been a substantial cause of the accident.

In a separate order, the district court remanded this case to the state courts. The district court found that, after dismissing Cirrus's case against the United States, there were no remaining federal questions justifying the continued attention of the federal courts. Further, after weighing factors of "judicial economy, convenience, fairness, and comity," the district court determined that remand was appropriate in part because "the Court's denial of summary judgment in favor of Cirrus primarily involved a legal analysis, and the Court's fact-intensive analysis was centered not on...