In re Air Crash near Cali, Colombia On December 20, 1995

• Decision Date: 10 October 1997
• Docket Number: No. 96-MD-1125.,96-MD-1125.
• Citation: 985 F.Supp. 1106
• Parties: In re AIR CRASH NEAR CALI, COLOMBIA ON DECEMBER 20, 1995.
• Court: U.S. District Court — Southern District of Florida

985 F.Supp. 1106

In re AIR CRASH NEAR CALI, COLOMBIA ON DECEMBER 20, 1995.

No. 96-MD-1125.

United States District Court, S.D. Florida.

October 10, 1997.

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Aaron S. Podhurst, Michael S. Olin, Joel S. Perwin, Victor M. Diaz, Jr., Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, FL, Marc S. Moller, Kreindler & Kreindler, P.A., New York City, Kevin A. Malone, Krupnick, Campbell, Malone, Roselli, Guser, Slama & Hancock. P.A., Ft. Lauderdale, FL, for plaintiffs.

Howard Barwick, Lyndall M. Lambert, Mary R. Andrews, Thomas E. Ice, Barwick, Dillian, Lambert & Ice, P.A., George A. Manfredi, Carla M. Barrow, Sullivan, Johnson & Manfredi, Miami, FL, for defendants.

AMENDED ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT ON LIABILITY

MARCUS, District Judge.

THIS CAUSE comes before the Court upon the PSC's motion for partial summary judgment as to the issue of liability in the passenger cases, filed July 14, 1997, and the cabin crew Plaintiffs' separate motion for summary judgment as to liability, filed July 14, 1997. With their motion, the passengers seek entry of an Order finding Defendant American Airlines, Inc. ("American" or the "Defendant") liable for compensatory damages flowing from the crash of American Airlines Flight 965 on December 20, 1995 in the mountains near Cali, Colombia. The passengers also ask the Court to find that their compensatory damages are not capped by certain provisions of the Warsaw Convention, which limit an air carrier's liability except in cases of "willful misconduct." The cabin crew members, whose lawsuits do not implicate the Convention, seek entry of an Order finding American liable for negligence under Florida law.

The Plaintiffs' motions are ripe for resolution, and this Court took extensive argument on them during pre-trial hearings on August 18, 19, 20 and 25, 1997. After an exhaustive review of the parties' submissions, which include lengthy memoranda and voluminous exhibits, the Court concludes that the Plaintiffs are entitled to the relief that they seek. Simply put, no reasonable jury could find that acts of the pilots of Flight 965—and in particular the pilots' decision to continue their descent at night from a grievously off course position in mountainous terrain— amounted to anything less than willful misconduct, whether that term is construed to require an objective or a subjective inquiry. Moreover, no reasonable juror could find that the pilots' conduct was not among the proximate causes of the crash. We reach this conclusion with considerable hesitance, mindful of the significance of the litigation and the heavy burden that must be met before summary judgment may be entered in a Warsaw Convention case. Nevertheless, even giving the Defendant every benefit of the doubt, and drawing every reasonable inference in its favor, the record cannot fairly be read to support any other result. Accordingly, for the reasons detailed at length below, the pending motions for summary judgment must be, and are, GRANTED in their entirety.

I.

As noted above, this litigation arises out of the tragic crash of American Airlines Flight 965 on the evening of December 20, 1995 as the plane attempted to navigate its arrival to the Alfonso Bonilla Aragon airport at Cali. One hundred fifty-one passengers and the six members of the cabin crew died as a result of the crash, with another four suffering nonfatal injuries. The two cockpit pilots, Captain Nicholas Tafuri and First Officer Donnie Ray Williams, also perished in the crash. The initial lawsuit was filed on December 29, 1995. Since then, almost 160 additional cases have been consolidated before this division of the Southern District of Florida, including a number of lawsuits that were filed in other federal judicial districts, but subsequently transferred here by the Judicial Panel on Multidistrict Litigation. A nine-member steering committee (the "PSC") represents the Plaintiffs in these consolidated cases with respect to liability issues. The Defendants are American Airlines, Inc., the estates of the two pilots and, in the six cabin crew cases, American's parent corporation, AMR.¹ Honeywell, Inc., the manufacturer of the flight management computer ("FMC") used by the pilots of Flight 965, and Jeppesen-Sanderson, Inc. ("Jeppesen"), the manufacturer of certain materials used in conjunction with the FMC, have been impleaded by American in several recently-filed cases, although the Court has denied American's motion to join these third parties in the other consolidated lawsuits.

The parties agree that the claims of the passenger Plaintiffs arise under what is commonly labeled the Warsaw Convention, an international treaty binding on the United States that, by its terms, applies to "all international transportation of persons, baggage, or goods performed by aircraft for hire." See 49 Stat. 3000, reprinted at 49 U.S.C. § 40105. Article 17 of the Convention, in the official English translation, states that "[t]he carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking." At the time of this accident, Article 22, as modified, limited American Airlines' potential liability for compensatory damages flowing from the death or personal injury of the passengers on Flight 965 to $75,000 per victim. Article 25, however, created an important caveat to this language by explaining that "[t]he carrier shall not be entitled to avail [it]self of the provisions of this convention which exclude or limit [its] liability, if the damage is caused by [its] willful misconduct."

The PSC contends that many acts by the pilots of Flight 965 deviated so markedly from the standard of care, in the face of so plain and obvious a danger, that a finding of willful misconduct is inevitable. The Plaintiffs allege a large number of subsidiary errors by the pilots, including flying the plane at an excessive speed and leaving the speed brakes on while attempting an abrupt ascent shortly before colliding with the mountain, but focus primarily on four discrete acts. First, and principally, the Plaintiffs assert that the pilots violated American Airlines policy and Federal Aviation Regulations ("FAR's") by knowingly permitting Flight 965 to descend after the plane veered far off the prescribed approach path to the Cali airport. Second, the Plaintiffs contend that the pilots violated American Airlines policy by knowingly deviating from the flight plan and attempting a "short cut" into the airport. Third, the Plaintiffs allege that the pilots violated American Airlines policy by failing to verify that the identifier for a waypoint on the route they elected to fly was correct before entering it in the FMC. Finally, the Plaintiffs insist that the pilots, once off course, violated American Airlines policy by ignoring the instructions of the Colombian air traffic controller ("ATC") and attempting to bypass one of the required waypoints. The PSC suggests that these acts, standing alone or in the aggregate, demonstrate willful misconduct within the meaning of the Convention.

American does not deny that the pilots made what it calls "human mistakes." Def. Resp., at 3. Indeed, it squarely acknowledges at least two breaches of the applicable standard of care and concedes that the accident was "an avoidable controlled flight into terrain." Pre-Trial Stipulation, August 13, 1997 ("PTS"), at § V ¶ 20. The Defendant maintains, however, that a reasonable jury could find that the acts of the pilots did not, individually or in the aggregate, amount to willful misconduct. Moreover, according to American, even if the pilots did commit wrongful acts, a reasonable jury could find that these acts did not proximately cause the crash of Flight 965. Rather, the wrongful acts of Jeppesen, Honeywell and the Colombian ATC's superseded any misconduct by the pilots. On the strength of these arguments, American contends that it is not liable to the crew members on a theory of negligence, and the $75,000 limitation on damages in the passenger cases should remain in place.²

II.

We begin by laying out the undisputed, material facts of this litigation, pausing occasionally to identify some of the parties' points of disagreement. Although many of these facts will be repeated and discussed in greater detail at subsequent points in this Order, it is helpful to provide an initial overview of the acts and omissions that both parties acknowledge took place on the night of the accident. Unless otherwise noted, the following facts have been proposed, stipulated to or left uncontested by American Airlines.

Flight 965 left Miami International Airport on the afternoon of December 20, 1995, bound for Cali, Colombia to the south. The aircraft pushed back from the departure gate 34 minutes late, and experienced an additional ground delay of one hour and 21 minutes before departing. PTS, at § V ¶ 4. The airplane used was a Boeing 757 which the parties acknowledge was airworthy and in good mechanical and structural condition when it left Miami. Id. at ¶ 30. In the cockpit were Captain Tafuri, the pilot, and First officer Williams, the co-pilot. Id. at ¶ 31. Both Tafuri and Williams were Federal Aviation Administration ("FAA") licensed pilots, each with over 2200 total flight hours in Boeing 757's or 767's and extensive experience with American Airlines. Id. 9¶ 5-11, 15-16. Tafuri had flown 13 American Airlines flights as Captain to Cali prior to December 20, 1995, and indeed, an American supervisor carried out Tafuri's annual international line check on December 9, 1995— just eleven days before the accident—on a flight from Miami to Cali. Id. ¶¶ 14, 42. Williams had, never flown an American Airlines...