IN RE AIR CRASH DISASTER AT BOSTON, MASS, ETC.
| Decision Date | 04 June 1976 |
| Docket Number | MDL No. 160-49,Civ. A. No. 74-4399-C. |
| Parties | In re AIR CRASH DISASTER AT BOSTON, MASSACHUSETTS JULY 31, 1973. Frances A. BURRELL, Individually and as Executrix under the Will of Joseph E. Burrell v. DELTA AIR LINES, INC., et al. |
| Court | U.S. District Court — District of Massachusetts |
Michael B. Latti, Kaplan, Latti & Flannery, Boston, Mass., Morrow Bennett, Hamilton, Douglas & Bennett, P. A., Tampa, Fla., for plaintiff.
Condon & Forsyth, New York City, for Delta.
Walton, Lantaff, Schroeder, Carson & Wahl, Miami, Fla., for McDonnell Douglas.
Smathers & Thompson, Miami, Fla., for Kollsman Instr. Corp.
This is a civil action brought by Frances A. Burrell, executrix under the will of Joseph E. Burrell, against Delta Air Lines, Inc. (Delta), McDonnell Douglas Corp., Sperry Rand Corp., and Kollsman Instrument Corp. Plaintiff seeks recovery herein for the death of Joseph E. Burrell sustained in the crash of a DC-9 aircraft at Boston's Logan Airport on July 31, 1973. When the complaint was filed, plaintiff was a resident of the State of Florida and the Estate of Joseph E. Burrell is being probated in the Broward Probate Court, State of Florida. Defendant Delta is a corporation organized under the laws of the State of Delaware with a principal place of business in the State of Georgia. It also does business within, and is subject to the jurisdiction of the State of Florida.
The instant case was filed in the United States District Court for the Southern District of Florida, Miami Division on the basis of that court's diversity jurisdiction.
The case was transferred to this District by the Judicial Panel on Multidistrict Litigation, for consolidated and coordinated pre-trial proceedings, pursuant to the provisions of 28 U.S.C.A., § 1407.
Thereafter defendant Delta filed a motion for summary judgment in which Delta argues that Mr. Burrell was not aboard Delta Flight 723 as a passenger, but that he was aboard in his capacity as a Delta employee undergoing training in order to qualify as a first officer on a DC-9. Delta alleges that because of the claimed employee-in-training status of Mr. Burrell, his rights are only those conferred upon him by the Florida Workmen's Compensation Act, Fla.Stat.Ann. § 440.11, which precludes an employee from bringing an action in tort for negligence against his employer.
Delta's motion for summary judgment is supported by the affidavits of Jack Birchall, Herbert Farnsworth, William Cardno, Frank McDermott and Raymond Belair, by the deposition of Carey Smith, memoranda of S. L. Leffingwell, Herlong Averett, Carey Smith, B. J. Payne and William Cardno, plus answers to interrogatories and responses to requests for admissions. The plaintiff opposes Delta's motion and has filed a motion for partial summary judgment supported by her own affidavit and deposition, the depositions of Captains Farnsworth, Birchall, Averett and Smith, the affidavits of her attorneys, and flight training records and internal memoranda of Delta employees who were involved with Mr. Burrell's training.
The above-listed documents establish that the following facts are without dispute between the parties:
The decedent, Joseph E. Burrell, prior to the merger between Northeast Air Lines and Delta Air Lines, was employed by Northeast Air Lines for several years as a pilot with the rank of captain. In 1963 he began to experience physical difficulties which culminated in a medical diagnosis that he was suffering from Parkinson's Disease. He was granted a medical leave of absence from Northeast effective June 27, 1967. In 1969 he began undergoing treatment of his condition with a new drug called L-Dopa. Considerable improvement resulted from this treatment and he was virtually symptom-free in 1972 at which time he applied to the FAA for the issuance of first and second class airman medical certificates. His application was originally denied by the agency but that decision was reversed by an Administrative Law Judge whose ruling was upheld by the National Transportation Safety Board (NTSB) in an opinion handed down on March 21, 1973. He received a medical certificate with no limitations on April 19, 1973.
Mr. Burrell then applied to Delta for full-time employment, because Delta, as indicated above, had merged with Northeast during his absence. He began active employment with Delta as a first officer on May 27, 1973. Because Delta made extensive use of the DC-9 aircraft, on which he had not qualified while employed as a Northeast captain, Delta assigned him to a training course in order that he might become qualified as a copilot and eventually a pilot on the DC-9. The Delta training program consists of three separate phases: (1) ground training, (2) simulator training, and (3) flight training.
Mr. Burrell began ground school training at Atlanta, Georgia on May 28, 1973. On his first attempt he did not successfully complete the written examination which was a part thereof. However, he subsequently passed the ground school written examination about June 22, 1973.
On June 24, 1974 Mr. Burrell began the simulator training program. He did not successfully pass the simulator course. On July 3, 1973 the Systems Manager, Herlong Averett, wrote a letter to his supervisor, C. A. Smith, Vice President of Flight Operations, which advised:
Captain Averett's deposition establishes that additional simulator training was approved for Mr. Burrell but that he was largely inactive between June 27 and July 19, 1973, apparently because other people were using up available simulator equipment time.
During the period July 19 through July 23, 1973, Mr. Burrell went through the simulator course again. At the end of the second set of simulator sessions, S. L. Leffingwell, the DC-9 Program Manager, wrote a memorandum to the file in which he stated:
"Mr. Burrell has not demonstrated significant progress toward and is not capable of, satisfactorily completing a DC-9 First Officer Proficiency Check . .. Because of the fundamental difficulties he Mr. Burrell is experiencing, even at this late phase of training, I do not feel that further training, at least along conventional lines, is in the best interest of the company." (emphasis added)
On July 23, 1973 Captain Averett sent a memorandum to Captain Smith stating in part:
The foregoing chronology covers the time period up to 7 days before the fatal flight. The affidavits of Captains Birchall and Farnsworth establish that Captain George Berg, a representative of the Air Line Pilots Association (ALPA), requested that they accompany him and Mr. Burrell to a meeting with Captain Smith on July 27 for the purpose of discussing "the status of the initial DC-9 copilot flight training for Mr. Joseph Burrell." The Farnsworth affidavit states that at the meeting Mr. Burrell complained of the difficulty he was encountering with the simulator sessions and that Mr. Burrell requested a temporary interruption of the simulator sessions so that he could observe line operation aboard a DC-9 in actual service. Both the Birchall and Farnsworth affidavits state that Captain Smith acquiesced to Mr. Burrell's request to fly as an extra crew member on a DC-9 aircraft.
Both affidavits establish unequivocally that Captain Smith authorized, in Mr. Burrell's case, a departure from Delta's conventional training program. Captain Smith approved a plan which contemplated Mr. Burrell flying as an observer in the cockpit of a DC-9, as requested by him, and thereafter resuming the conventional training program and utilizing the DC-9 simulator and then a training aircraft.
The deposition of Captain Smith states that he attended the meeting on July 27, 1973 with Captains Birchall and Farnsworth and Mr. Burrell, and that the meeting was initiated by a request by Captains Birchall and Farnsworth. It further establishes that the group discussed Mr. Burrell's training situation and that Captain Smith authorized line observations and additional simulator time for Mr. Burrell. The Smith deposition also establishes that he instructed Mr. Burrell not to participate in conducting actual flights but only to observe...
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...in an airliner crash that occurred in another state, Florida law prevails as to that issue. In re Air Crash Disaster at Boston, Massachusetts on July 31, 1973, 415 F.Supp. 206, 210 (D.Mass.1976). See Garcia v. Total Oilfield Services, Inc., 703 S.W.2d 411, 415 (Tex.App. — Amarillo), writ re......