Steering Committee v. U.S.

• Decision Date: 20 September 1993
• Docket Number: No. 90-55217,90-55217
• Citation: 6 F.3d 572
• Parties: STEERING COMMITTEE, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant, and Aeromexico, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 572

6 F.3d 572

STEERING COMMITTEE, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant and Aeromexico, Defendant-Appellee.

No. 90-55217.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 5, 1993.

Decided Sept. 20, 1993.

Steven J. Riegel, U.S. Dept. of Justice, Washington, DC, for defendant-appellant.

Juanita M. Madole and Joseph T. Cook, Speiser, Krause, Madole & Cook, Irvine, CA, for plaintiffs-appellees.

George F. Archer, Archer & Associates, Ltd., Chicago, IL, for plaintiff-appellee Plaintiffs' Crew Committee.

Frank A. Silane, Condon & Forsyth, Los Angeles, CA, for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before: CANBY, BOOCHEVER, and NORRIS, Circuit Judges.

BOOCHEVER, Circuit Judge:

The United States appeals the district court's apportionment of liability among the parties involved in a 1986 midair collision between an Aeromexico jetliner and a single-engine Piper aircraft over Cerritos, California. The government argues that the district court erred by failing to apply Cal.Evid.Code Sec. 669(a) and by improperly articulating the standard of vigilance for pilots under 14 C.F.R. Sec. 91.67(a). The government also claims that the district court clearly erred in finding the Aeromexico pilots vigilant in their professional duties. We hold that the district court properly applied Cal.Evid.Code Sec. 669(a) and correctly articulated the standard of care for pilots to see and avoid other aircraft. We also hold that the district court did not clearly err in finding that the Aeromexico pilots committed no negligent act that proximately caused this disaster. We therefore affirm.

BACKGROUND

On August 31, 1986, an Aeromexico DC-9 jet, operating as Aeromexico Flight 498, collided with a single-engine Piper aircraft operated by William F. Kramer. The midair collision occurred at approximately 11:52 a.m. Pacific Daylight Time while the Aeromexico jet was receiving air traffic control services from a Federal Aviation Administration (FAA) facility on its approach to Los Angeles International Airport. Both aircraft were disabled in the collision and crashed in the Los Angeles County community of Cerritos, California. All 64 persons aboard the Aeromexico jet, the three persons aboard the Piper aircraft, and 15 persons on the ground were killed. The crash also injured several other ground victims and caused property damage in the neighborhood of the crash site.

Actions for wrongful death, personal injury, and property damage were brought against the Estate of William F. Kramer, Aeromexico, and the United States. The Judicial Panel on Multidistrict Litigation ordered all lawsuits transferred to the United States District Court for the Central District of California for consolidated proceedings. See 28 U.S.C. Sec. 1407 (1988). The district court issued an order bifurcating the liability and damages issues and ordered a trial to determine the liability, if any, of the Estate of William F. Kramer, Aeromexico, and the United States.

The district court had jurisdiction over the Estate of William F. Kramer pursuant to 28 U.S.C. Sec. 1441(c) (1988), over Aeromexico pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. Sec. 1330, 1603 (1988), and over the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b) (1988).

Aeromexico did not dispute its liability to those suing on behalf of the passengers for damages not to exceed $75,000 per passenger under the Warsaw Convention, Oct. 12, 1929, 49 Stat. 3000, 137 L.N.T.S. 11, reprinted in 49 U.S.C. Sec. 1502 note (1976), as supplemented by the Agreement Relating to Liability Limitations of the Warsaw Convention and the Hague Protocol, Agreement CAB 18900, approved by CAB Order E-23680, 31 Fed.Reg. 7302 (1966), reprinted in 49 U.S.C. Sec. 1502 note (1976). A jury was impaneled, however, to decide the liability of the Estate of William F. Kramer to those suing on behalf of the passengers and ground victims, to render an advisory verdict regarding the liability of the United States to those suing on behalf of the passengers and ground victims, and to render an advisory verdict regarding the liability of Aeromexico to those suing on behalf of the ground victims. The jury found that the Estate of William F. Kramer was fifty percent liable for the accident. It advised that the United States should be found fifty percent liable. The jury also advised that the Aeromexico pilots had complied with 14 C.F.R. Sec. 91.67(a) (1986) (requiring pilots to be vigilant in seeing and avoiding other aircraft) and that Aeromexico was not negligent.

On August 11, 1989, the district court ordered that liability be apportioned equally between the Estate of William F. Kramer and the United States. Additionally, the court held that "the crew of Aeromexico Flight 498 [ ] was not negligent, did not proximately cause or contribute to the cause of the midair collision which was the subject matter of this trial, and is free from tort liability as to all plaintiffs."

The district court granted the United States' request to certify an interlocutory appeal on October 13, 1989. The Ninth Circuit granted the United States' petition for interlocutory appeal on February 20, 1990.

DISCUSSION

I. Appellate jurisdiction.

According to 28 U.S.C. Sec. 1292(b) (1988) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order ... (emphasis added).

This court granted interlocutory review for "all liability issues" determined by the district court's August 11, 1989, order.

Whether the district court failed to articulate the appropriate standard of conduct for pilots under the federal aviation regulations is a question of law appropriate for interlocutory appeal. See Vollendorff v. United States, 951 F.2d 215, 217 (9th Cir.1991) (existence and extent of standard of conduct are questions of law). Whether the district court erred in applying the regulatory standard to the facts of this case and concluding that no negligence existed, however, is a mixed question of law and fact. Barnett v. Sea Land Serv., Inc., 875 F.2d 741, 745 (9th Cir.1989). Some courts have refused to permit interlocutory appeals of mixed questions of law and fact pursuant to 28 U.S.C. Sec. 1292(b). See, e.g., Link v. Mercedes-Benz of N. Am., Inc., 550 F.2d 860, 863-64 (3d Cir.) (en banc), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); Securities & Exch. Comm'n v. First Jersey Sec., Inc., 587 F.Supp. 535, 536 (S.D.N.Y.1984); Weisman v. Darneille, 78 F.R.D. 671, 674 (S.D.N.Y.1978) (appellate court does not have jurisdiction to hear mixed questions of law and fact). Before addressing the issue of whether Aeromexico breached the regulatory standard of care, therefore, we must determine whether we have jurisdiction over the issue even though the matter is not purely one of law. We resolve this jurisdictional question sua sponte since none of the parties raised it. McGuckin v. Smith, 974 F.2d 1050, 1052 (9th Cir.1992) (appellate court required to raise issues of jurisdiction sua sponte).

The district court's order certifying this interlocutory appeal cited In re Air Crash Disaster at John F. Kennedy Int'l Airport on June 24, 1975, 479 F.Supp. 1118 (E.D.N.Y.1978) [hereinafter Air Crash Disaster], in support of its finding that the liability issues in this case presented controlling questions of law under Sec. 1292(b). Air Crash Disaster catalogues a series of cases in which both legal and factual findings were reviewed on interlocutory appeal. In multiparty negligence cases, particularly cases involving multidistrict litigation, the court found that interlocutory review of liability determinations served the congressional purposes underlying Sec. 1292(b):

[T]he acceptance of section 1292(b) certification by the respective circuits and their subsequent extensive examinations of the factual and legal issues contained therein indicate that the circuit courts were of the opinion that, in these cases, the determination of the liability issue itself constituted a controlling question of law. Indeed, such a finding would not be violative of the expressed federal disfavor towards premature piecemeal appeals, as the issue of liability in such unusual cases is more closely analogous to the intermission which marks the conclusion of Act I of a two-act play than it is to numerous and sundry pretrial motions which may be regarded as mere scenes in Act I.

Id. at 1126 (citations omitted). We agree with the court in Air Crash Disaster that the liability phase of a multidistrict, multiparty case of the sort at hand is appealable under Sec. 1292(b). ¹

Moreover, as noted above, a pure legal question is identifiable in this case. We have held that the presence of a pure legal question permits the court to resolve all questions material to the order:

Although section 1292(b) requires certification by the trial court of "controlling" questions of law, the appeals it authorizes are from orders not questions. Thus, our review of the present controversy is not automatically limited solely to the question deemed controlling by the district court. We recognize that the scope of appellate review under section 1292(b) is not so broad as to allow reexamination of all matters previously ruled upon in the case. Nonetheless, we may address those issues material to the order from which appeal has been taken.

In re...