Srock ex rel. Estate of Srock v. U.S., 04-CV-72788-DT.

• Decision Date: 22 November 2006
• Docket Number: No. 04-CV-72788-DT.,04-CV-72788-DT.
• Citation: 462 F.Supp.2d 812
• Parties: Theresa SROCK, as Personal Representative of the ESTATE OF James Howard SROCK, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

462 F.Supp.2d 812

Theresa SROCK, as Personal Representative of the ESTATE OF James Howard SROCK, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

No. 04-CV-72788-DT.

United States District Court, E.D. Michigan, Southern Division.

November 22, 2006.

COPYRIGHT MATERIAL OMITTED

James R. Acho, Robert L. Blamer, Cummings, McClorey, Livonia, MI, for Plaintiff.

Colleen L. Conlin, Bruce A. Ross, Justice Dept. Civil Division Torts Branch Aviation, Washington, DC, Peter A. Caplan, United States Attorney's Office, Detroit, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW PURSUANT TO RULE 52(a)

CLELAND, District Judge.

I. INTRODUCTION

In this wrongful death case, filed pursuant to the Federal Tort Claims Act ("FTCA"),¹ Plaintiff claims that an allegedly deficient weather briefing by the FAA was the cause, or at least a cause, of the crash of a sleek, experimental "hotrod" of an airplane in which Plaintiff's decedent, passenger James Srock, was killed. In this opinion, the court finds that the relatively inexperienced owner/pilot of that aircraft chose to fly directly toward and into readily-visible, thick clouds that he knew were present and which were largely obscuring a mountain range that he knew he was approaching but through which he intended to navigate by "shooting" through the Cumberland Gap. These negligent decisions made by the pilot caused the accident and the tragic loss of life and property. The weather briefing at issue was not deficient, but even if it were it did not cause or contribute to the crash.

The court conducted a bench trial from October 16 to 25, 2006, and under Federal Rule of Civil Procedure 52(a), the court must set forth findings of fact and conclusions of law.

II. FINDINGS OF FACT

The parties have stipulated to many facts, including the following summary, relating to the events leading to this action:

On February 11, 2000, a private aircraft crashed into the Cumberland National Historic Forest in Virginia, killing both occupants, Daniel Wood and James Srock. The flight originated in Durnellon, Florida, destined for Pontiac, Michigan, when it crashed. During an enroute stop in Douglas, Georgia, the pilot telephoned the Automated Flight Service Station ("AFSS") in Macon, Georgia, for "some weather enroute." Plaintiff, Theresa Srock, claims the AFSS briefer negligently briefed the pilot, which caused or contributed to the crash, killing her husband who was not the pilot in command. The NTSB [National Transportation Safety Board] investigation revealed that the plane crashed in Virginia.

(3/21/06 Stipulation to Choice of Law at 1-2.)²

Based upon the evidence credited by the court and received either on the record in court during trial or in the record as submitted in advance by the parties, the court renders the following findings of fact. Some other discrete findings have been announced in court during trial. Unless specifically overridden by a contrary finding in this opinion, any such earlier discrete finding on the record is adhered to. Where the parties differ about facts necessary to the resolution of this case, the court has resolved the difference with one or more of these findings. In several instances, as noted on the record or herein, the court has reached findings of fact by accepting opinion evidence offered by one or more expert witnesses.

Plaintiffs decedent, James Srock, and airplane owner Daniel Wood died on February 11, 2000 when Woods's experimental, amateur-built amphibious "Seawind" aircraft crashed after entering clouds at about 2:30 p.m. EST in the Virginia mountains of the Cumberland Gap National Historic Park.

The Wood Seawind was not a commercial, certified airplane, but after the required inspection and testing, accomplished by Paul Array, a highly-experienced Seawind pilot who test-flew the craft from May 19 to 21, 1999, it was issued an inspection report and a "Special Airworthiness Certificate for Experimental Amateur Built Aircraft." It was, despite being being home-built with many modifications from the standard Seawind kit, a complex, high-performance airplane.

The Defendant offered as one expert witness Capt. Robert Gibson. The court readily credits the testimony and several opinions of Capt. Gibson, an aeronautical engineer and Naval pilot retiree who has "something over 13,500 hours" of flight time, with 847 of those hours accumulated in earth orbit on several space shuttle missions. He has also built at least one experimental airplane, re-designing the wing structure himself, and setting world altitude and speed records in it. He personally test-flew an exemplar Seawind airplane in preparation for formulating his opinions. It is difficult to imagine a witness in this field who would have more experience or be more extensively qualified to render opinions related to piloting an airplane.

According to Capt. Gibson, the Seawind is "very impressive," even a "gorgeous airplane." a is capable of extraordinary speed for an amphibian due to its unique flotation system that permits the landing gear to be retractable. Capt. Gibson further described the aircraft, saying that it was "[a] real pilot's airplane .... [which would require] more skill to fly it accurately and make it go precisely where you want it to go. It's not going to be as stable or as predictable, necessarily, as something like a Cessna or a Beechcraft." Capt. Gibson said that the Seawind is "a hotrod of an airplane."

Decedent's association with Wood's airplane was not the only connection Decedent had with Seawinds, as he owned his own partially-built Seawind kit and was in the process of working on it during early 2000. Srock well knew that the Wood Seawind was amateur-built and of an experimental design, and knew that it had many modifications to the standard Seawind kit design. Indeed, Srock had advised and assisted, and possibly designed and installed, at least one of those modifications, a substitute "water rudder." In addition to owning a Seawind, Srock owned at least one Lake amphibious aircraft and had accumulated more than 200 flight hours as a student pilot before the fatal February trip of 2000. He did not, however, have an instrument rating, and he was no longer qualified to fly because his student status was invalidated after an incident in Gallipolis, Ohio, in 1996 (also referred to below).

On February 5, 2000, Wood and Srock flew the Wood Seawind from Michigan to Florida for the annual "River Ranch Fly-In" for amphibious aircraft owners. After the Fly-In they departed from Ocala, Florida for their return fight to Pontiac, Michigan, in the same aircraft, on February 11, 2000. Twice on the morning of February 11, 2000, Wood checked flight weather by telephone, each time contacting a different Flight Service Station ("FSS"). The FSSs contacted were only two of many FAA facilities located throughout the United States.

Pilot Wood first telephoned the FSS in Gainesville, Florida, for a pre-flight briefing, and the Gainesville briefer responded with a "standard" weather briefing from about 7:44 to 7:49 a.m. EST. The Gainesville briefer first expressed doubt about whether Wood could get to Michigan that day. He told Wood, "I don't know if I can get you to Pontiac, sir. I can get you to Tennessee ... I got quite a bit of weather actually even if I can get you up there." The briefer told Wood that there was "a frontal system right over Tennessee ...." Noting that there was a gap between the two weather systems, he asked Wood "how long will it take you to get up [] towards H central Tennessee area?" After Wood estimated that he could be there by about 1:00 p.m., the briefer noted that weather "in the central Tennessee area" would "deteriorate by around sunset," and that flying from central Tennessee toward Columbus, Ohio, would be "too far east" due to expected IFR, conditions. The briefer told Wood that a route "west of Columbus" through "southern Indiana" would allow Wood to "sneak in" between the two systems under VFR conditions. Near the end of the briefing, pilot Wood said to the briefer, "If we hit some bad stuff we'll just put it on the ground."

Plaintiff's expert FSS witness, Richard P. Burgess, testified that, in his opinion, the Gainesville briefer had not said anything that "suggested" a particular route: "I didn't see anything where he said to fly west." The court rejects that opinion as unfounded. The tape recording of the briefing could not be more clear in demonstrating that the briefer strongly suggested flying to central Tennessee and continuing from there through southern Indiana to Michigan. That route, compared to the one chosen, was the only one that the briefer envisioned that would allow Wood to "sneak in" safely between the east and the west weather systems, and would have indeed required that the plane be flown to the west.

Contrary to the Gainesville briefer's suggestion, however, Wood and Srock flew to Douglas, Georgia, which was along a nearly straight-line route toward Pontiac heading through eastern Tennessee. If they had flown on a northwesterly line out of Ocala as recommended by the Gainesville briefer, they could have completed their flight in VFR conditions without flying over mountains, and, had they proceeded toward central Tennessee as suggested, they should have been some 60 to 100 miles to the west instead of in Douglas.

Ahead of them, on that more-direct route, lay both the Great Smokey Mountains (over 6,000 feet high MSL) and, beyond, the Cumberland Mountains (about 2,500 feet high MSL). Directly over the Cumberland Mountains was the IFR weather system described by the Gainesville briefer.

They purchased a quart of oil in Douglas,³ and checked in by telephone with the Macon, Georgia, FSS for an additional weather briefing. Wood spoke with the Macon FSS briefer, Gloria Day, beginning about 11:25 a.m. EST. He requested "some weather en route." The Macon briefer at first perceived that Wood was requesting a "standa...