Haley v. US, Civ. No. A-C-85-128
| Decision Date | 20 February 1987 |
| Docket Number | A-C-85-371.,Civ. No. A-C-85-128 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | Jack Michael HALEY, Administrator of the Estate of Patrick Shawn Haley, Plaintiff, v. UNITED STATES of America, Defendant. Betty M. HENNINGS, Administratrix of the Estate of John T. Hennings and Belinda D. Hennings, Administratrix of the Estate of Howard D. Hennings, Plaintiffs, v. UNITED STATES of America, Defendant. |
Moretz & Stephenson by J. Douglas Mortez and Jonathan Silverman, Sanford, N.C., for plaintiffs Haley and Hennings.
Richard K. Willard, Asst. Atty. Gen., Civ. Div., Torts Branch, Wendy L. Rome, Trial Atty., U.S. Dept. of Justice, Civ. Div., Torts Branch, Washington, D.C., U.S. Atty. Charles R. Brewer, Asst. U.S. Atty., Clifford C. Marshall, Asheville, N.C., Mark B. Baylen, F.A.A., Washington, D.C., for defendant.
These cases arise out of a tragic air crash of February 22, 1983, near Asheville, North Carolina. The plane which crashed was a Comanche PA-24 designated N6313P (hereinafter referred to as 13 Papa).1 John T. Hennings and Howard G. Hennings, plaintiffs' intestates in A-C-85-371, chartered a plane in Sanford, North Carolina, on the morning of the day of the crash and hired Patrick Shawn Haley, plaintiff's intestate in A-C-85-128, to fly them to several locations in both Carolinas inclusive of Asheville as their last stop before a return flight home to Sanford that night. They left the ground in Asheville shortly after 6:30 PM, EST, or 2330 GMT.2 At approximately 2350:47, 13 Papa made its last recorded radio transmission and crashed on a wooded hillside killing all on board.
Each of the occupants of 13 Papa brought suit against the United States; their actions were consolidated upon motion of the plaintiffs and the trial ensued before the undersigned sitting without a jury pursuant to 28 U.S.C. § 2402. In each complaint, plaintiffs allege twenty-nine acts of negligence on the part of the United States acting through the air traffic controllers (ATC's) at Asheville Regional Airport. The United States in defense denies negligence and proximate cause and affirmatively defends against Haley on the basis that his own negligence or contributory negligence was the sole or a joint proximate cause of the crash. As against the Hennings brothers, the United States defends, again, on the general denial and on the theory that they were independently contributorially negligent or that the contributory negligence of Haley should be imputed to the Hennings brothers.
As to any inflight negligence by Haley, the imputation theory is apparently not well taken. As is pointed out in Mann v. Henderson, 261 N.C. 338, 341, 134 S.E.2d 626, 628 (1964), "`The pilot in command of the aircraft shall be directly responsible for its operation and shall have final authority as to the operation of the aircraft.'" (Citing 14 C.F.R. § 60.2) The North Carolina court further notes that the quoted federal regulation is made applicable to all flights in North Carolina by state statute (citing NCGS § 63-20). While 14 C.F.R. § 60.2 has been superseded since the Mann decision, the same language is now incorporated in 14 C.F.R. § 91.3. Since North Carolina law applies to the determination of this case under the Torts Claims Act, see e.g. Nolan v. United States, 186 F.2d 578 (4th Cir.1951), no in-flight negligence of Haley can be imputed to the brothers Hennings. "Nothing short of physical interference with the pilot's operation of the plane would remove the pilot from actual control." Mann v. Henderson, supra, 261 N.C. at 341, 134 S.E.2d at 628. However, for reasons that will appear from the later findings and conclusions contained in this Opinion, the viability of the imputation theory is immaterial to the result in any event.
From the evidence at trial, plaintiffs' serious allegations of negligence center around the following:
The government's allegations of contributory negligence center around:
The Court's findings and conclusions with regard to these cross allegations will be made in approximate order of their occurrence in time.
Pat Haley flew 13 Papa out of the Asheville Airport at approximately 2330:00 after having been on duty for twelve hours during a great part of which he was engaged in the actual flying of his airplane. At the time of take-off, it was raining and clouded; conditions were IFR; and it was dark. The plane had but a single engine and the flight was over mountainous terrain. The Court finds as a fact that a reasonably prudent pilot would not have commenced the flight after twelve hours of fatiguing duty in the conditions that prevailed on that night in a single engine airplane. The Court holds that this negligence is also attributable to the Hennings brothers not by imputation but as independent negligence since they as private pilots had sufficient knowledge to have formed an adequate opinion of their own as to the unsafe nature of the undertaking. Another district court in a similar fact situation where a private pilot flew as passenger to a more highly qualified pilot in adverse weather conditions noted that to obtain a private pilot's certificate, a pilot "Had to demonstrate the ability to recognize critical weather situations, both from the ground and in-flight." Burchett v. United States, 19 Av. Cas. (CCH) 18440, 18441 (1986). This is established by the evidence in the present case and required by the provisions of 14 C.F.R. § 61.105(3).3 Given this status of the law and regulations and the facts of the instant case, the Court finds as a matter of fact that the passenger plaintiffs did not exercise due care in undertaking the flight under all the conditions above described. While these findings are potentially dispositive of the case, the Court is unable to find by the greater weight of the evidence that this negligence was in fact a proximate cause of the accident. While there is some evidence from the government's expert testimony to the effect that this was the case, it lacks the convincing force attributable to the intervening causes which will be further discussed later in this opinion concerning the specific acts of negligence that led directly to the fatal crash.
Approximately six minutes after 13 Papa's radio transmission to the Asheville ATC, that ATC requested 13 Papa to change from it's original flight plan to the routing direct Spartanburg VOR direct Sand Hill. Haley immediately accepted the change in routing. Plaintiffs' first contentions of negligence on the part of the ATC cluster around this re-routing accepted by Plaintiff Haley. Plaintiffs first contend that the re-routing itself was negligence on the part of the ATC but expert opinion testimony differed widely on whether it was or not. Plaintiffs' arguments on this point are of two sorts: first, that the ATC had not provided Haley with adequate weather information prior to proposing the re-routing and; second, that the re-routing suggestion was negligence in and of itself in that it directed 13 Papa into heavier weather which was in turn the cause of the engine failure resulting in the triple fatality. The Court finds that the ATC (at that time trainee Valerie Setzer) was not negligent and that, if she had been, such negligence could not have been the proximate cause of the accident.
While plaintiffs' evidence would support a finding that the original route was safer than the re-routing furnished by Setzer, this is not sufficient to base a recovery as North Carolina law applies traditional rules of negligence to air crash cases. Mann v. Henderson, supra, 261 N.C. at 341, 134 S.E.2d at 629. (Citations omitted.) In this case, the greater weight of the evidence does not support either a finding of lack of due care or that such negligence, if it were negligence, was the proximate cause of the accident. The Court finds that substantially all weather information available to the ATC was available to Pat Haley through weather briefings which he received or should have been expected to receive prior to take-off; that the weather in the area into which he was re-routed was substantially the same as the weather he should have expected from weather briefings; and that the weather in the entire relevant flight area was substantially the same. It is true that plaintiffs' weather expert testified both competently and credibly that weather was clearing to the east (in the path of the original flight plan) and would have been VFR east of Rutherfordton. However, plaintiffs' evidence does not support a conclusion that 13 Papa would have cleared the adverse weather conditions soon enough to have averted the engine failure and resultant crash.
Plaintiffs' second collection of negligence allegations concern the alleged failure of the ATC's to provide 13 Papa with vectors to the Asheville Airport during the emergency. In the order in which portions of the ATC transcript came into evidence piecemeal, it might appear at first blush that these allegations are well taken. However, the transcript itself...
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