In re Greenwood Air Crash

• Decision Date: 03 February 1995
• Docket Number: No. IP 93-9446-C-T/F.,IP 93-9446-C-T/F.
• Citation: 924 F. Supp. 1518
• Parties: In re GREENWOOD AIR CRASH.
• Court: U.S. District Court — Southern District of Indiana

924 F. Supp. 1518

In re GREENWOOD AIR CRASH.

No. IP 93-9446-C-T/F.

United States District Court, S.D. Indiana, Indianapolis Division.

February 3, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert E. Badger, Torts Branch, Civil Div., U.S. Dept. of Justice, Washington, DC, Jeffrey L. Hunter, Asst. United States Attorney, Indianapolis, IN, for U.S.

Richard M. Malad, Cohen & Malad, Indianapolis, IN, for June Bennett/Julie Bennett.

Patricia McCrory, Harrison Moberly, Indianapolis, IN, for State Farm Insurance.

Steven E. Springer, Kightlinger & Gray, Indianapolis, IN, J. David Hollingsworth, Hollingsworth & Meek, Indianapolis, IN, for Solar Sources, Inc.

Stephen E. Arthur, Bose McKinney & Evans, Indianapolis, IN, Kenneth D. Ross, Ross & Harrington, Chicago, IL, for Control Systems Engineering/June Bennett.

Patrick M. Graber, McCullough Campbell & Lane, Chicago, IL, Richard D. Wagner, Krieg Devault Alexander & Capehart, Indianapolis, IN, for Carol Mullen.

ENTRY FOLLOWING TRIAL

TINDER, District Judge.

Trial was held in this matter on July 17-20, and 24-26, 1995. The only issue at trial was the allocation of fault among the two pilots and the air traffic controller, the Plaintiffs and Defendants having previously reached a resolution of their claims, the details of which are unknown to the court. That resolution settled the Plaintiffs' claims against Defendants as a group. These findings and conclusions will determine the proportional responsibility of each Defendant. It is the court's understanding that these determinations will then trigger the Defendant's relative responsibilities to contribute to the settlement fund. The Defendants indicated that within ten days after the issuance of this entry, they will submit a proposed final order which will effectuate the settlement agreement and constitute a final judgment and disposition in this and all related matters pending in this court.

After reviewing all the testimony and exhibits presented at trial, the following Findings of Fact and Conclusions of Law are now issued pursuant to Rule 52 of the Federal Rules of Civil Procedure.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. STIPULATED MATTERS

The parties stipulated to the following facts¹ and matters of law which the court adopts and incorporates herein:

A. JURISDICTION

1.1 Federal jurisdiction is based upon the fact that the United States of America is a named party defendant. The cases in this consolidated action were initially filed in State Court and were removed to Federal Court by the United States. This action arises under 28 U.S.C. § 2671 et seq. (Federal Tort Claims Act). The court has original jurisdiction over the claims against the Defendant, United States of America, under 28 U.S.C. § 1346. Pursuant to 28 U.S.C. § 1367, this court has supplemental jurisdiction over the claims against the private defendants.

1.2 The claims of each Plaintiff and the Defendant, Solar Sources, Inc., against the United States of America were timely submitted to the Federal Aviation Administration, were rejected by the Federal Aviation Administration and suit was filed by each Plaintiff and the Defendant, Solar Sources, Inc., within the time required by law.

B. THE INCIDENT

2.1 On September 11, 1992, a midair collision involving two aircraft occurred approximately two miles northeast of the Greenwood Airport, Greenwood, Indiana.

2.2 The collision resulted in the death of six people, severe injuries to two people, loss of both aircraft, and damage to real and personal property on the ground.

C. THE AIRCRAFT

3.1 The collision involved a Mitsubishi MU-2B-60 Marquis aircraft, identification number N 74 FB (hereinafter "MU-2"), and a Piper PA-32-301 Saratoga identification number N82419 (hereinafter "Saratoga").

3.2 The MU-2 was a high-wing, twin-engine, turboprop passenger aircraft. It could be configured to seat from six to nine persons.

3.3 The MU-2 was 39 feet 5 inches long and had a wing span of 39 feet 2 inches and a height of 13 feet 8 inches.

3.4 The Saratoga was a low-wing, six-passenger, single-engine aircraft.

3.5 The Saratoga was 27 feet 8 inches long and had a wing span of 36 feet two inches and a height of 8 feet 2 inches.

3.6 The MU-2 was owned by Solar Sources, Inc., an Indiana Corporation.

3.7 The Saratoga was owned by Control Systems Engineering, Inc., ("Control Systems"), an Indiana Corporation.

3.8 The Saratoga was painted light gray with black and red trim.

3.9 The MU-2 was painted white with silver and blue trim.

3.10 Both aircraft were properly licensed and maintained at the time of the accident.

3.11 The Saratoga was customarily based at Eagle Creek Airport.

3.12 The MU-2 was customarily based in Huntingburg, Indiana, which was the home town of pilot William Mullen ("Mullen").

D. THE PILOTS

4.1 At all relevant times, the Saratoga was piloted from the left seat by William Bennett ("Bennett").

4.2 At all relevant times the MU-2 was piloted from the left seat by Mullen.

4.3 Both of the pilots were qualified to pilot the aircraft in accordance with applicable Government regulations.

4.4 Mullen was qualified to operate the MU-2 aircraft.

4.5 There was no regulatory requirement for two pilots of the MU-2 for the flight in question.

E. THE WEATHER

5.1 Relevant weather observations at the Indianapolis International Airport, which is about thirteen miles northwest of the accident location, were as follows:

A. Time: 1450 CDT (2:50 P.M.); cloud bases: 4,500 feet scattered; 25,000 feet scattered; visibility 15 miles; temperature 70 degrees fahrenheit, dew point 49 degrees fahrenheit; wind 020 degrees at 10 knots; altimeter 30.29 inches Hg.

B. Time: 1504 CDT (3:04 P.M.); cloud bases: 4,500 feet scattered; visibility 15 miles; temperature 68 degrees fahrenheit, dew point 48 degrees fahrenheit; wind 050 degrees at 5 knots; altimeter 30.18 inches Hg.

C. Time: 1550 CDT (3:50 P.M.); cloud bases: 4,500 feet scattered; visibility 15 miles; temperature 71 degrees fahrenheit, dew point 47 degrees fahrenheit; wind 340 degrees at 4 knots; altimeter 30.28 inches Hg.

5.2 At the time of the accident, the position of the sun relative to the accident site was approximately 230 degrees (true azimuth) and 43 degrees in elevation.

F. GREENWOOD AIRPORT

6.1 The Greenwood Airport is an uncontrolled, non-towered airport. At the time of the collision, the Airport consisted of a single north/south runway approximately 3,462 feet in length.

6.2 Airplanes taking off to the north from the Greenwood Airport would use runway 36, and planes taking off to the south would then use runway 18.

6.3 These numbers reference to the abbreviated compass heading for the runway (i.e., north is 360 degrees on the compass or 36; south is 180 degrees on the compass or 18).

6.4 The Greenwood Airport was equipped with a common traffic advisory frequency of 123.0 (CTAF/UNICOM) which was capable of being monitored by the fixed base operator.

6.5 In order for an aircraft to get to the south end of runway 36, it was necessary to back taxi (taxi the aircraft in the direction opposite to the direction of its intended take-off) approximately one-half of the length of the runway.

6.6 The field elevation of the Greenwood Municipal Airport was 822 feet above mean sea level.

G. INDIANAPOLIS TRACON

7.1 Located at Indianapolis International Airport are the Federal Aviation Administration equipment and personnel that provide terminal control services to pilots and aircraft. This facility is known as Indianapolis Terminal Radar Approach Control commonly referred to as INDTRACON.

7.2 At all times relevant to this accident, the following air traffic control positions were staffed as indicated:

A. Indianapolis Radar Approach Control Departure Combined Satellite West (commonly referred to as INDTRACON — W); Sally Cousar

B. Indianapolis Radar Approach Control Departure Combined Satellite East (commonly referred to INDTRACON — E); David Fritz

7.3 The air traffic controllers ("ATC"), Sally Cousar and David Fritz ("Fritz"), were stationed at radar/computer consoles which were part of the air traffic control system known as ARTS IIIA 7.4 Fritz was, on September 11, 1992, an employee of the United States working in the capacity of a full performance level (FPL) air traffic controller at the INDTRACON.

7.5 The radar antenna which provides information to the ARTS IIIA computer is located at latitude 39°-43'-43.31? N and longitude 86°-17'-10.38? W.

7.6 The antenna which receives the beacon code information for the TRACON rotates once approximately every 4.7 seconds.

7.7 Both ATCs had available to them primary (actual) radar information.

7.8 Both ATCs had available to them secondary (computer-generated) target information.

7.9 The Air Traffic Control Manual, Federal Aviation Administration Order 7110.65G ("Manual"), states procedures to be followed by air controllers. That publication, at all times relevant stated:

2.2 Duty Priority

a. Give first priority to separating aircraft and issuing safety alerts as required in this order. Good judgment shall be used in prioritizing all other provisions of this order based on the requirements of the situation at hand. 2.2 a Note — Because there are many variables involved it is virtually impossible to develop a standard list of duty priorities that would apply uniformally to every conceivable situation. Each set of circumstances must be evaluated on its own merit, and when more than one action is required, the controller shall exercise his best judgment based on the facts and circumstances known to him. That action which is most critical from a safety standpoint is performed first.

b. Provide additional services to the extent possible, contingent only upon higher priority duties and other factors including limitations of radar, volume of traffic, frequency congestion, and work load.

2.2 b Note — The primary purpose of the ATC system is to prevent a collision between aircraft

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