Moorhead v. Mitsubishi Aircraft Intern., Inc., 86-2625

• Decision Date: 29 September 1987
• Docket Number: No. 86-2625,86-2625
• Citation: 828 F.2d 278
• Parties: 23 Fed. R. Evid. Serv. 1193 Ruth Henderson MOORHEAD, et al., Plaintiffs-Appellants, v. MITSUBISHI AIRCRAFT INTERNATIONAL, INC., et al., Defendants, United States of America, Defendant-Appellee. Linda M. HUTCHINSON, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Rose Marie Baker McNEILL, et al., Plaintiffs-Appellants, v. MITSUBISHI AIRCRAFT INTERNATIONAL, INC., et al., Defendants, United States of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 278

828 F.2d 278

23 Fed. R. Evid. Serv. 1193

Ruth Henderson MOORHEAD, et al., Plaintiffs-Appellants, v. MITSUBISHI AIRCRAFT INTERNATIONAL, INC., et al., Defendants, United States of America, Defendant-Appellee.

Linda M. HUTCHINSON, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Rose Marie Baker McNEILL, et al., Plaintiffs-Appellants, v. MITSUBISHI AIRCRAFT INTERNATIONAL, INC., et al., Defendants, United States of America, Defendant-Appellee.

No. 86-2625.

United States Court of Appeals, Fifth Circuit.

Sept. 29, 1987.

Rehearing Denied Nov. 2, 1987.

L.W. Anderson, Dallas, Tex., Larry P. Boyd, Houston, Tex., for Rose Marie Baker McNeill, et al.

Tom H. Davis, Austin, Tex., for Hutchinson plaintiffs.

Scott Baldwin, Marshall, Tex., for Ruth Henderson Moorhead, et al.

Jan Von Flatern, Torts Branch, Civ. Div., J. Paul McGarth, William J. Cornelius, Jr., Washington, D.C., for U.S.

Appeals from the United States District Court for the Eastern District of Texas.

Before WISDOM, WILLIAMS, and HILL, Circuit Judges.

WISDOM, Circuit Judge:

On September 2, 1981, a Mitsubishi MU-2B-25 airplane piloted by Raymond D. Baker accumulated ice and crashed near McLeod, Texas. ¹ The crash killed all five occupants of the plane. ²

About nine hours before departure, the National Weather Service issued an area-wide forecast for Oklahoma, New Mexico, Texas, and coastal waters. ³ This included, among numerous other things, a forecast of moderate mixed icing ⁴ in clouds and precipitation above the freezing level. It also forecast the freezing level as 14,000 to 14,500 feet above sea level in the northern part of the area, rising to 15,800 feet in southern Texas.

About two hours before departure, Baker telephoned the Federal Aviation Administration's Dallas Flight Service Station for a weather briefing for his flight. ⁵ Baker told the weather briefer he was going to Augusta, Georgia, over Texarkana, Greenwood (Mississippi), Birmingham, and Atlanta and would probably be flying at 21,000 feet above sea level. The briefer drew on a number of sources of information, including the area forecast, in briefing Baker. Relevant to the Texas portion of the flight, the briefer told Baker that Gregg County, Texas (about 40 miles southwest of the crash site) was reporting "two tenths coverage of thundershowers", that Texarkana (about 25 miles north of the crash site) was reporting "rainshowers of unknown intensity", that "there's a lot of precip[itation] throughout the whole area", that Baker should not "be surprised to look out [his] right window and see a mess of stuff", but that at 21,000 feet Baker would "probably be on top of most everything except the cirrus clouds". The briefer did not tell Baker of the moderate mixed icing forecast, nor did he tell Baker the freezing level.

The plane was cleared for takeoff at 4:13 p.m. Its departure and climbout were normal and, at 4:23 p.m., Baker was cleared to climb and maintain 21,000 feet. National Transportation Safety Board data show that after leveling off at about 21,000 feet at 4:41 p.m., the plane gradually increased velocity to about 198 knots at 4:46 p.m. ⁶

Around this time, the plane entered moderate icing and began to accumulate ice on its wings and tail. ⁷ After 4:46 p.m. the accumulating ice caused the plane to begin to lose velocity, slowing to about 155 knots at 4:50 p.m., when Baker requested authority to climb to 23,000 feet. ⁸ Just past 4:51 p.m., the plane reached its greatest height, about 21,400 feet, and its slowest speed since takeoff, about 125 knots. At this point the plane began to descend, losing at least 3000 feet in altitude in the next minute. By 4:52 p.m., when F.A.A. radar lost contact with the plane, the plane had stalled and entered a spin. It struck the ground in a wooded area and was destroyed by the force of the impact and the post-crash fire.

The families of those killed filed these consolidated actions, seeking damages under Texas Wrongful Death Act, the Texas Survival Statute, and the Federal Tort Claims Act. ⁹ After a bench trial, the district court, in a carefully considered opinion, ruled that the United States' weather briefing was neither negligent nor a proximate cause of the crash, that Mitsubishi's defective design of the plane's airspeed indicator was 40 percent responsible for the crash, and that Baker's negligent piloting during the icing of the plane was 60 percent responsible, 639 F.Supp. 385. Accordingly, Baker's family received nothing and the passenger families won a judgment for over $5 million against Baker's estate. ¹⁰

The record contains little direct evidence regarding the crucial last minutes of the flight. Everyone on board died instantly and most of the plane, including its flight recorder, was destroyed. Radio communication during the flight was sparse and largely routine. Most of the evidence at trial consisted of expert testimony by meteorologists, accident reconstruction specialists, and professional pilots who interpreted the weather and flight data.

Baker's estate challenges the findings of pilot negligence and the admission into evidence of Baker's pilot training records. The passengers' families challenge three of the district court's damages rulings: the finding that there is insufficient evidence to justify an award of damages for the crash victims' conscious pain and suffering, the ruling that the plaintiffs are not entitled to damages for their mental anguish without proof of physical manifestation, and the court's refusal to find damages for their loss of inheritance. All the plaintiffs challenge the lower court's verdict for the United States. All the plaintiffs also argue that Mitsubishi should not be liable.

We reverse one of the district court's three findings of pilot negligence and, because of an intervening change in law, reverse its ruling on damages for mental anguish. We affirm the district court on all the other grounds and remand for a determination of damages for the plaintiffs' mental anguish and a reallocation of the judgment between the estate of Raymond Baker and Mitsubishi.

I.

There is no dispute as to the fundamental legal issues regarding liability. The Texas law of negligence requires that to show liability plaintiffs must prove (1) duty, (2) breach of duty, (3) harm, and (4) proximate cause. ¹¹ Proximate cause consists of "cause in fact" and forseeability. ¹² FAA weather briefers have the duty of due care in giving information about hazardous weather conditions that might influence pilots to alter their proposed flight plans. ¹³ This duty extends also to the passengers. ¹⁴

The appellants argue that the weather briefer is required, as a matter of law, to tell pilots of any area forecast of "moderate mixed icing" that covers their flight plan. We disagree. Weather briefers rely on many weather data sources other than area forecasts. ¹⁵ They must, in a short time, communicate to the pilot a great deal of standard meteorological and aeronautical information as well as a number of possibly hazardous conditions concerning the entire route of flight. ¹⁶ Briefers are told specifically to emphasize reports of temperature inversions; low level wind shear, thunderstorms, or frontal zones within 50 nautical miles of the departure or arrival terminals; they are not, however, told specifically to emphasize icing conditions. ¹⁷ Briefers are instructed not to read weather reports and forecasts verbatim, unless it is specifically requested by the pilot. ¹⁸ Although briefers are not themselves to issue weather forecasts, ¹⁹ they must nonetheless exercise discretion in choosing the information on weather to pass along to pilots.

Thus, the district court's fact finding that this particular briefing complied with the standard of due care must stand unless clearly erroneous. This standard of review, set out in Fed.R.Civ.Pro. 52(a), is a demanding one. In the often-cited case of United States v. United States Gypsum Co., the Supreme Court made it clear that to set aside a district court's finding of fact, a court of appeals must be "left with the definite and firm conviction that a mistake has been committed". ²⁰ In White v. Arco/Polymers, Inc., this court explained that

clear error exists where (1) the findings are without substantial evidence to support them, (2) the court misapprehended the effect of the evidence, and (3) if, although there is evidence which if credible would be substantial, the force and effect of the testimony, considered as a whole, convinces the Court that the findings are so against the great preponderance of the credible testimony that they do not reflect or represent the truth and right of the case. ²¹

After reviewing all the evidence on the question of government negligence, we are not convinced that the district court's findings are erroneous--clearly or otherwise. The evidence suggests that the briefer rightly gave other information a higher priority than the icing forecast. The briefer informed Baker of the possibility of thundershowers and other precipitation in the crash area. The evidence establishes that thundershowers pose a far greater hazard for small aircraft than moderate mixed icing. The evidence is also that the briefer was reasonable in discounting the importance of the icing forecast: the area forecast was about seven hours old at the time of the briefing, covered a huge area, and had not been verified by any pilot reports of icing in the area of Baker's flight.

Further, the possibility of precipitation, particularly thundershowers, above the freezing level should have informed a reasonable pilot that he might encounter icing on this flight--including moderate mixed icing or icing of even greater potential hazard. ²² Weather briefers are not required to tell pilots what they should already know. ²³ There is little doubt that knowing of the icing forecast would have heightened Baker's awareness of the potential for this...