Jackson v. U.S., 98-1043

• Decision Date: 30 July 1998
• Docket Number: No. 98-1043,98-1043
• Citation: 156 F.3d 230
• Parties: Barbara A. JACKSON, Administratrix, etc., Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 230

156 F.3d 230

Barbara A. JACKSON, Administratrix, etc., Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.

No. 98-1043.

United States Court of Appeals, First Circuit.

Heard July 30, 1998.

Decided Sept. 16, 1998.

Anthony Tarricone and Camille F. Sarrouf, with whom Joseph P. Musacchio and Melick & Porter, LLP were on brief, for appellant.

Luke B. Marsh, Attorney, Civil Division, United States Department of Justice, with whom Frank W. Hunger, Assistant Attorney General, was on brief, for appellee.

Before SELYA, BOUDIN and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

Plaintiff-appellant Barbara A. Jackson, acting in her capacity as administratrix of her husband's estate, sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 (1994), alleging that the negligence of three Federal Aviation Administration (FAA) employees in failing to furnish appropriate weather advisories proximately caused an aircraft flown by her late husband to crash. Following a bench trial, the district court wrote a thoughtful rescript explaining why the plaintiff should take nothing. See Jackson v. United States, 983 F.Supp. 273 (D.Mass.1997). The plaintiff appeals on various grounds.

The facts surrounding the tragic incident that took the life of Cephas W. Jackson, Jr., a respected physician and recreational pilot, are chronicled in the district court's opinion, see id. at 276-79, and it would be pleonastic to rehearse them here. Thus, we offer only a thumbnail sketch, referring the reader who thirsts for further detail to the opinion below.

On March 26, 1992, Jackson, desirous of flying from Little Rock, Arkansas, to Charleston, West Virginia, and then on to Massachusetts, requested and received meteorological information, including a so-called "outlook briefing," from the FAA's Jonesboro, Arkansas, Automated Flight Service Station. The next day, he again called Jonesboro and requested a pre-flight weather briefing. Flight Services Specialist Robert Eldridge obliged. See id. at 276-77 (describing contents of the pre-flight briefing). After receiving this briefing, Jackson filed a flight plan and departed from Little Rock, bound for Charleston, in his single-engine aircraft (a Mooney M-20M). He had radio contacts with a number of air traffic control facilities as he flew over Tennessee and Kentucky. See id. at 277 (describing same). As he approached Charleston, he engaged in an extensive dialogue with a Charleston-based air traffic controller, Mark Ulanch. See id. at 278-79 (describing that colloquy). The fatal crash occurred in the course of this approach.

We have often preached, but perhaps too seldom practiced, the philosophy that "when a lower court produces a comprehensive, well-reasoned decision, an appellate court should refrain from writing at length to no other end than to hear its own words resonate." Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d 218, 220 (1st Cir.1996). This case fits the Lawton model. Accordingly, we resist the temptation to repastinate ground that is already well-ploughed and affirm principally on the basis of the district court's opinion. We add only four sets of comments.

First: Where, as here, the district court conducts a bench trial and serves as the factfinder, its determinations of negligence, proximate cause, and similar issues are entitled to considerable deference. "[W]e consistently have reviewed adjudications of negligence arising in the course of bench trials by reference to the clearly erroneous test." Sierra Fria Corp. v. Evans, 127 F.3d 175, 181 (1st Cir.1997). This deferential standard acknowledges that, unlike an appellate tribunal, the trial court "sees and hears the witnesses at first hand and comes to appreciate the nuances of the litigation in a way which appellate courts cannot hope to replicate." Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir.1990). Thus, a trial court's factual determinations will be set aside only if, "after careful evaluation of the evidence, we are left with an abiding conviction that those determinations and findings are simply wrong." State Police Ass'n v. Commissioner, 125 F.3d 1, 5 (1st Cir.1997).

This standard is critically important here. At many junctures, more than one plausible inference can be drawn from the underlying facts. On clear-error review, we cannot second-guess the trier's choices among those competing inferences even if, had we been sitting as triers of the facts, we might have arrived at a different set of judgments. See Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

Second: The appellant argued below that Eldridge, the FAA employee who provided the decedent's pre-flight briefing, was guilty of negligence because he failed to incorporate specific weather advisories from the National Weather Service into that briefing. ¹ The trial court concluded that, although Eldridge's pre-flight briefing did not specifically mention the advisories by name, it comprehensively summarized the weather conditions that Jackson could expect to encounter during his flight. See Jackson, 983 F.Supp. at 280. Accordingly, the court determined that Eldridge was not negligent. See id.

In this venue, the appellant attempts an end-run around the strictures of clear-error review by positing the existence of an error of law. To that end, she argues that Eldridge's failure to mention the AIRMETs constituted negligence per se. In mounting this argument, she points to paragraphs 3-10(a) & (b) of the Flight Services Handbook (the Handbook), a procedural guide issued by the FAA in the interests of ensuring flight safety. These paragraphs limn the information a flight services specialist should gather preparatory to delivering a pre-flight briefing and the procedures to be followed in transmitting this data to pilots. Many of these steps are couched in mandatory terms. ² The appellant now contends, for the first time, that the court had no option but to find Eldridge guilty of negligence because he violated the obligatory Handbook provisions.

It is an abecedarian rule that litigants ordinarily cannot shift legal theories in mid-stream: "If any principle is settled in this circuit, it is that, absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal." Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.1992). Inasmuch as the appellant never advanced a negligence per se theory below, this principle has obvious applicability here.

The appellant offers two intertwined reasons why we should excuse her procedural default. First, she suggests that, in a bench trial at which the district court does not require the parties to submit written requests for conclusions of law, a litigant should not be penalized for failing spontaneously to articulate her position on the relevant legal issues. Second, she contends that, regardless of her default, the district court had an unflagging duty to divine, interpret, and apply the governing legal standards correctly. Neither reason is persuasive.

A trial court, sitting jury-waived, may--but need not--ask for suggested findings and conclusions. Either way, the rule is straightforward: with few exceptions (none applicable here), a party who, having adequate opportunity, fails to alert the trial court to a particular legal theory cannot thereafter be heard to complain that the court overlooked that theory. See, e.g., Martinez v. Colon, 54 F.3d 980, 987 (1st Cir.1995); Teamsters, 953 F.2d at 21; McCoy v. Massachusetts Institute of Tech., 950 F.2d 13, 22 (1st Cir.1991). This is as it should be. Trial judges are not mind-readers, and they should not be expected to do counsel's homework.

Here, moreover, the appellant had a second opportunity to bring her theory to the trial judge's attention. Under Fed.R.Civ.P. 52(a), when an action is tried upon the facts without a jury, "the court shall find the facts specially and state separately its conclusions of law." A litigant who believes that those findings or conclusions are erroneous in any respect may file a motion to alter or amend the judgment no later than ten days after its entry. See Fed.R.Civ.P. 52(b). Thus, if the appellant believed that the district court erred in failing to apply the doctrine of negligence per se, she could have brought the matter to the court's attention by way of Rule 52(b). See, e.g., National Metal Finishing Co. v. Barclays American/Commercial, Inc., 899 F.2d 119, 122 (1st Cir.1990). She did not do so. We see no reason to excuse her twice-repeated procedural default.

We add that, in this case, all roads lead to Rome. Because the FTCA incorporates the substantive law of the place of the harm, see 28 U.S.C. § 1346(b), and the fatal crash occurred in West Virginia, we look to the law of that jurisdiction for the rule of decision. See FDIC v. Meyer, 510 U.S. 471, 478, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Reilly v. United States, 863 F.2d 149, 161 (1st Cir.1988). Under West Virginia law, an individual's noncompliance with a safety regulation is not negligence per se, but, rather, as the district court found in this case, it is at most some evidence of negligence. See Waugh v. Traxler, 186 W.Va. 355, 412 S.E.2d 756, 759-60 (1991) (holding that a violation of a safety statute is prima facie negligence and not negligence per se); Miller v. Warren, 182 W.Va. 560, 390 S.E.2d 207, 208-09 (1990) (explaining that noncompliance with a fire code or similar regulation constitutes no more than prima facie negligence). The appellant's hypothesis that a failure to comply strictly with the Handbook provisions constitutes negligence per se under West Virginia law is, therefore, legally incorrect.

Third: The appellant's fallback position is no more fruitful. She claims that, even if the...