Hensley v. US
| Decision Date | 31 October 1989 |
| Docket Number | No. 85-797-CIV,85-798-CIV.,85-797-CIV |
| Citation | 728 F. Supp. 716 |
| Court | U.S. District Court — Southern District of Florida |
| Parties | George L. HENSLEY, Personal Representative of the Estate of C. Lamar Carlton and Joan G. Carlton, Plaintiff, v. UNITED STATES of America, Defendant. William H. JERNIGAN, as Personal Representative of the Estate of Ernest E. Gillilan and Betty J. Gillilan, Plaintiff, v. UNITED STATES of America, Defendant. |
Thomas K. Pfister, U.S. Dept. of Justice, Civil Div., Torts Branch, Aviation Litigation Unit, R. Brooke Lewis and David M. Wiegand, F.A.A., Litigation Div., Washington D.C., and Dexter W. Lehtinen and Robyn Hermann, U.S. Atty., S.D. Florida, Miami, Fla., for U.S.
George Farrell, Healey, Farrell & Lear, Washington, D.C., and Robert L. Parks, Anderson, Moss, Parks & Russo, P.A., Miami, Fla., for plaintiffs.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. This litigation arises out of the crash of a Piper PA-24-180 aircraft, Registration No. N7554P ("54P"), on August 12, 1983. On the day of the accident, the pilot Lamar Carlton, Ernest Gillilan, and their spouses, were flying on a trip from Sebring, Florida, to Boston, Massachusetts. On the segment of the trip from Norfolk, Virginia, to Plymouth, Massachusetts, the aircraft experienced inflight structural failure and crashed shortly after the pilot reported encountering moderate rain and heavy turbulence. The aircraft wreckage was found near Pomona, New Jersey. There were no survivors.
2. The personal representatives of the Carlton and Gillilan estates brought these consolidated cases against the United States of America under the Federal Tort Claims Act, 28 U.S. §§ 1346(b) and 2671 et seq., seeking damages for wrongful death.
3. Plaintiffs allege, in substance, that Federal Aviation Administration (FAA) Air Traffic Controllers ("controllers") at the New York Air Route Traffic Control Center ("New York Center") were negligent in their handling of 54P. Specifically, Plaintiffs allege that the controllers negligently permitted 54P to be flown into a thunderstorm or negligently vectored 54P into a thunderstorm; failed to warn Lamar Carlton of the weather conditions; and failed to advise Mr. Carlton of proper procedures to avoid encountering severe turbulence. Plaintiffs further claim that the National Weather Service (NWS) Center Weather Service Unit (CWSU) meteorologist within the New York Center negligently performed or failed to perform his CWSU Meteorologist/Weather Coordinator duties. The thrust of Plaintiffs' allegations are that the CWSU meteorologist failed to familiarize himself with the weather during his shift and failed to solicit and reply PIREPS1 to the air traffic controllers handling 54P.
4. This matter was tried before the Court from May 29 to June 5, 1989. At trial, Plaintiffs failed to establish any negligence on the part of the controllers or the CWSU meteorologist, or that the actions or inactions of any employees of the United States of America proximately caused or contributed to the cause of this unfortunate accident.
5. Lamar Carlton, the pilot of 54P, possessed a flight instructor rating and was also rated for flight in IFR conditions.2 He had logged approximately 2,500 hours as a pilot. Approximately 200 of those 2,500 hours were in actual instrument flight conditions. Ernest Gillilan was also a pilot.
6. Prior to departure from Norfolk, Lamar Carlton received a weather briefing from the Federal Aviation Administration (FAA) Flight Service Specialist at the Newport News, Virginia Flight Service Station. During the course of this briefing, the briefer informed Lamar Carlton of flight precautions for forecast occasional moderate turbulence below 8,000 feet, rain showers, and thunderstorms along his route of flight.
7. At about 3:00 p.m. eastern daylight time (EDT),3 54P departed Norfolk, Virginia, destined for Plymouth, Massachusetts. The duration of the flight was to have been about three hours. At about 3:45 p.m., control of 54P was transferred from the Washington Air Route Traffic Control Center to New York Center. While under the control of New York Center, 54P was assigned to maintain an altitude of 7000 feet above mean sea level (MSL).
8. At approximately 4:26 p.m., Lamar Carlton contacted the sector R-18 controller at New York Center,4 whereupon the following series of radio transmissions took place:
4:26:51 54P If it works, I'd like Atlantic
City and then Victor Two Twenty
Nine JFK. You showing any
weather our present position direct
ah, Atlantic City
4:27:01 R18 I'm not showing any weather
ah, all the way up to States
Intersection.5
4:27:06 54P Okay, what's the name (unintelligible)
States Intersection
4:27:08 R18 Yeah, I'm not showing any
weather pause States Intersection
is, ah, off to your, be off
to your right, but I'm not showing
weather from your present
position that far North
4:27:16 54P Okay, we're in this moderate
showers this time now
4:27:20 R18 Okay, ah.
Later, at 4:29:32 p.m., the R-18 controller contacted 54P and the following communications took place:
Shortly afterwards radio and radar contact with the aircraft were lost. The Wreckage was found approximately five miles Northeast of the Atlantic City International Airport. There were no survivors.
9. The National Weather Service (NWS) operates a network of weather radars that are specifically designed to depict precipitation.8 The NWS radars at New York City, New York, Atlantic City, New Jersey, and Patuxent River, Maryland, showed that the maximum rainfall rate in the accident area at or near the time of the accident was of a VIP level two intensity.9 This is equivalent to a rainfall rate of .2 to 1.1 inches per hour. Mr. Carlton characterized the rain he encountered just prior to the accident as "moderate." Paragraph 515 of the Airman's Information Manual, a handbook of aeronautical knowledge with which pilots are required to be familiar, defines "moderate rain" as a rainfall rate of .11 to .30 inches per hour. This is consistent with a VIP level one (or possibly two).
10. At the time of the accident, New York Center was using a computer-generated digitized radar display, known as narrowband radar. The only weather phenomenon capable of appearing on the controllers' radar scopes was precipitation. Turbulence, lightning, thunder and "thunderstorms" cannot be depicted on the radar scopes. Furthermore, not all precipitation is capable of being displayed on the scope. Narrowband radar is designed to enhance the presentation of the "targets" or symbols depicting aircraft flying through the applicable airspace. To ensure that weather precipitation returns or depicitions do not obliterate aircraft targets, thereby making separation of aircraft difficult or impossible, narrowband radar, by design, suppresses weather information so that the symbols representing the aircraft can be seen clearly.10
11. At 4:26:51, when 54P asked the R-18 controller what weather information was being shown on his radar scope, the controller told 54P that no precipitation was being displayed on his scope in the aircraft's vicinity. Plaintiffs' air traffic control expert, Mr. John Amatetti, testified that he had no reason to doubt that the R-18 controller was telling the truth when making this statement.
12. Moreover, Plaintiffs failed to introduce any evidence that there was any precipitation displayed on any controller's scope during the period of time 54P was being handled by New York Center.
13. Pilots are taught through the Airman's Information Manual (AIM) about the limited ability of air traffic control radar to display weather data. Pilots are also taught that air traffic control radar does not depict turbulence.
14. Approximately fifteen minutes before 54P contacted the R-18 controller, another aircraft, registration number N756PU ("56PU"), contacted the R-39 control position and the following transmissions occurred:
4:12:32 R39 Papa Uniform, did you call?
4:12:34 54P That's affirmative sir. Looks
like you got a little buildup
here. I was wondering if I
could deviate on a heading of
about zero nine zero for a few
miles?
4:12:41 R39 Papa Uniform, deviation to the
right is approved.
4:12:44 54P Papa Uniform, thank you.
15. 56PU's report of a "little buildup" was not a significant or pertinent PIREP required to be...
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