Newman v. European Aeronautic Defence & Space Co. Eads N.V.
| Decision Date | 01 August 2012 |
| Docket Number | Civil Action No. 09-10138-DJC |
| Parties | HARRY NEWMAN, et al., Plaintiffs, v. EUROPEAN AERONAUTIC DEFENCE AND SPACE COMPANY EADS N.V., et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
This case arises out of a February 2, 2007 crash of a Socata TBM 700 aircraft near the New Bedford Regional Airport in Massachusetts in which all of the aircraft's occupants, Michael J. Milot, Lauren Angstadt and Peter John Karoly, died. Plaintiffs Harry Newman, Thomas A. Wallitsch and Patricia and John Milot ("Plaintiffs"), administrators pendente lite of the estates of the three decedents, brought this action asserting a number of common law claims against numerous defendants. The complaint asserts claims of negligence against Lockheed Martin Services, Inc. ("Lockheed") and Midwest Air Traffic Control Services, Inc. ("Midwest"). Lockheed and Midwest have now moved for summary judgment. For the reasons set forth below, Lockheed's motion for summary judgment is GRANTED and Midwest's motion for summary judgment is DENIED.
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the undisputed facts show that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56 (a). The moving party bears the burden of showing the basis for its motion and identifying where there exists a lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmovant "must point to 'competent evidence' and 'specific facts' to stave off summary judgment." Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011) (citation omitted); ATC Realty, LLC v. Town of Kingston, 303 F.3d 91, 94 (1st Cir. 2002). That is, the non-movant "must come forward with evidence sufficient for a 'a fair-minded jury [to] return a verdict' in his favor." Soto-Padro v. Public Bldgs. Auth., 675 F.3d 1, 5 (1st Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). While the Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor," Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009), it "afford[s] no evidentiary weight to 'conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.'" Tropigas de P.R., Inc., 637 F.3d at 56 (quoting Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001)); see Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000).
Lockheed operated the Williamsport, Pennsylvania Flight Service Station ("FSS") that provides, among other services, pre-flight weather briefings, in-flight weather briefings and flight plan filing services. Katt Decl., Ex. 5 (FAA Pilot/Controller Glossary). As to pre-flight weather briefing services, a FSS specialist can provide both standard and abbreviated weather briefings. Katt. Decl., Ex. 6 (pilot briefing definition). A standard weather briefing is a comprehensive briefing of the weather for a flight and includes adverse conditions, whether a VFR flight is not recommended, a synopsis of the weather, current conditions, en route forecast, winds aloft, and Notices to Airmen ("NOTAM") information. Id. A NOTAM is a "notice containing information (not known sufficiently in advance to publicize by other means) concerning the establishment, condition or change in any component (facility, service, or procedure of, or hazard in the National Airspace System) the timely knowledge of which is essential to personnel concerned with flight operations." Katt Decl., Ex. 7 (FAA Pilot/Controller Glossary at PCG N -3-4). An abbreviatedbriefing is "provided when a pilot requests information to supplement mass disseminated data; update a previous briefing; or when the pilot requests that the briefing be limited to specific information." Katt Decl., Ex. 6. Although "[t]he primary source of preflight weather briefings is an individual briefing obtained" from a FSS briefer, pilots may obtain weather information pertaining to any flight from a variety of other sources such as private weather reporting services. Katt Decl., Ex. 8 (FAA Aeronautical Information Manual Sections 7-1-2(c), 7-1-3).
At 9:25 a.m. on the day of the crash, Michael Milot, the pilot in command of the fatal flight, contacted the Williamsport FSS. Pl. SOF I ¶ 9; Lockheed Resp. to Pl. SOF I ¶ 9. During that call, the FSS briefer, employed by Lockheed, asked Milot whether he wanted "weather and aeronautical" information. Id. Milot indicated he would and the briefer proceeded to give Milot a standard briefing. Id.
Later that day at 4:01 p.m., Milot contacted the Williamsport FSS again for weather briefing and to file two Instrument Flight Rules ("IFR") flight plans. Katt. Decl., Ex. 1 (National Transportation Safety Board Factual Report ("NTSB Report")).2 The two IFR flight plans were for a flight from Boston to Bedford, Massachusetts, with a proposed departure time of 5:00 p.m. and a second flight from Bedford to Allentown, Pennsylvania, with a proposed departure time of 8:00 p.m. Katt Decl., Ex. 9 (). Milot spoke with Michael Walker, one of Lockheed's FSS Williamsport briefers. Katt Decl., Ex. 13 (). Milot requested andreceived a standard weather briefing from Walker for both flights as well as NOTAM information for Boston and Bedford. Katt Decl., Ex. 9 (). In connection with this briefing, Walker informed Milot of an AIRMET3 for IFR conditions throughout the Boston area with ceilings less than 1,000' and visibilities less than three miles. Katt. Decl., Ex. 14 (FAA Pilot/Controller Glossary at PCG A-7). Walker further informed Milot of the current conditions at the time at the Boston and Bedford airports, the forecast for Boston, and that the radar showed a large band of precipitation moving into the area. Katt Decl., Ex. 9 ().
About an hour later at 5:10 p.m., Milot contacted the Williamsport FSS again to change the two previously filed flight plans. Walker Dep., Ex. 50, Ex. 15 to Katt Decl. He spoke again with Walker. Walker Dep., Ex. 51, Ex. 13 to Katt Decl. Milot indicated that he needed to change the destination for the first flight and the departure point for the second flight from Bedford to New Bedford. Katt Decl., Ex. 15 (). During this call, Milot neither requested nor received a weather briefing or any NOTAM information related to these flight plans. Id. At the time, a NOTAM was in effect at New Bedford to alert pilots that the approach lighting system to runway 5, a series of lights at the end of a runway designed to assist pilots on instrument approaches to the airport, was not in operation. Katt Decl., Ex. 1 (NTSB Report at 1b). These lights had been out of operationsince August 2006. Katt Decl., Ex. 16 ().
At approximately 7:17 p.m., approximately two hours after Milot's last contact with Walker, the aircraft departed Boston. Katt Decl., Ex. 1 (NTSB Record at 1). The Boston Control Tower cleared the pilots for takeoff. Berberich Decl., Ex. T (personnel statements of controllers at Midwest 00029-37); Ex. W (transcript of recordings between accident aircraft and Providence Tower). The Providence Approach Controller gave directions to the pilot for the appropriate approach course to New Bedford and cleared it for the ILS approach to runway 5 at New Bedford. Katt Decl., Ex. 1 (NTSB Record at 2). The New Bedford Tower began providing Air Traffic Control services once the Providence Approach Controller turned the aircraft over to it and the aircraft was on the Tower's frequency. Berberich Decl., Ex. R (transcript of recordings between accident aircraft and New Bedford Tower); Ex. H (Parsons Dep. at 28). When contacted by the pilots, the New Bedford Tower cleared the pilots to land. Berberich Decl., Ex. U (Pilot/Controller Glossary defining clearing a landing). The pilots advised the Tower shortly thereafter, at approximately 7:37 p.m., that the aircraft was "going missed," a term used to indicate that pilots were aborting that approach. Katt Decl., Ex. 1 (NTSB Report at 1a); Pl. SOF II, Ex. V (recording of transcript between New Bedford Tower and accident aircraft at Midwest 000024). The aircraft crashed shortly thereafter, fatally injuring all three on board. Katt Decl., Ex. 1 (NTSB Report at 1).
Plaintiffs initiated this lawsuit on January 29, 2009, asserting claims for strict liability (Count I), negligence (Counts II, VI - IX), breach of warranty (Count III), punitive damages (Count IV) and breach of contract (Count V), against numerous defendants. Plaintiffs assert negligence claims against Lockheed and Midwest (Counts VII and VIII, respectively). Since the filing of Plaintiffs'first amended complaint on March 4, 2009 (which added negligence claims against certain Defendants in Count IX) (D. 4) and their second amended complaint on March 16, 2010 (which added negligence claims against additional Defendants (Count X) and against the United States Federal Aviation Administration ("FAA") (Count XI)) (D. 128), numerous defendants have been dismissed. The only remaining Defendants in this matter are Lockheed, Midwest and the United States. Defendants Lockheed and Midwest have now moved for summary judgment. After a hearing on both motions on June 25, 2012, the Court took the matter under...
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