Thurston v. US

• Decision Date: 25 May 1995
• Docket Number: No. 94-NC-34B.,94-NC-34B.
• Parties: Kathy Lynne THURSTON, Individually and as Personal Representative of the Estate of her Husband, Curtis Leo Thurston, Deceased, and as Parent and Natural Guardian of their Minor Children, Jedediah, Jessica Lynne, and Cody, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Utah

888 F. Supp. 1100

Kathy Lynne THURSTON, Individually and as Personal Representative of the Estate of her Husband, Curtis Leo Thurston, Deceased, and as Parent and Natural Guardian of their Minor Children, Jedediah, Jessica Lynne, and Cody, Plaintiff, v. UNITED STATES of America, Defendant.

No. 94-NC-34B.

United States District Court, D. Utah, Central Division.

May 25, 1995.

COPYRIGHT MATERIAL OMITTED

Barry C. Hansen, Michael J. Pangia, Washington, DC, Dennis J. Conroy, Salt Lake City, UT, for plaintiff.

Steven J. Riegel, Viola Pando, Washington, DC, Carlie Christensen, Salt Lake City, UT, for defendant.

AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

BENSON, District Judge.

I. Findings of Fact

1. On January 16, 1993, Curtis Thurston, age 31, held a private pilot certificate permitting him to fly single-engine land airplanes, and a third-class medical certificate.

2. Mr. Thurston's pilot logbook indicates that he had logged 855 hours of total flight time prior to the accident.

3. Although he was experienced in flying in the local area, Mr. Thurston was only a "VFR pilot," restricted by law to flying in good weather conditions, outside of clouds. He did not have an "instrument rating," which is a legal and practical requisite for safe flight into clouds or areas of low visibility.

4. At the time of the accident, Mr. Thurston was flying a Stinson model 108-2 airplane, registration number N8004K. This is a single-engine, fabric covered airplane, powered by a 150 horsepower Franklin reciprocating carburetor-equipped engine. Mr. Thurston was the owner of the aircraft.

5. On Saturday morning, January 16, 1993, Mr. Thurston and two pilot friends, Andrew Nelson and Tim Corbitt, planned to fly their airplanes from Skypark Airport in Bountiful, Utah to Ogden, Utah, have brunch at the Ogden airport, then return to Skypark Airport. Mr. Thurston had frequently made this flight from Skypark Airport to Ogden.

6. The pilots kept their airplanes at Skypark Airport. The weather was good early in the morning, and the pilots spent several hours clearing snow from their airplanes.

7. Mr. Nelson chose not to fly. Mr. Corbitt took off, but elected to remain in the local vicinity of the airport, and returned for a safe landing.

8. The same morning, flight instructor Kerry Bybee arrived at Skypark Airport for an instructional flight with one of her student pilots. After observing the weather, Ms. Bybee elected no to fly that day, but sat down with her student pilot inside one of the airport buildings to conduct a ground school session.

9. Mr. Thurston's departure from Skypark Airport, including his taxi, takeoff, and the initial several minutes of flight were not guided or monitored by air traffic controllers, because Skypark is an "uncontrolled" airport, with no control tower or radar facilities.

10. Shortly after Mr. Thurston's departure, a cold front passed through the area, causing the weather to deteriorate swiftly. Aloft, Mr. Thurston was soon trapped between fog below, clouds above, mountains to the East, and clouds (and restricted airspace) to the West. As these boundaries narrowed, Mr. Thurston was flying in an ever-smaller layer of airspace amidst drizzle, rain, and snow, maintaining visual reference by looking sideways at the mountainside.

11. Mr. Thurston's flight lasted approximately 25 minutes: from 1805 Zulu¹ to 1830 when the crash occurred. During the first twelve minutes of the flight, Mr. Thurston's airplane was not transmitting a transponder signal, and he was not in radio contact with any controllers. During the second eight minutes of the flight, Mr. Thurston's airplane was transmitting a "Code 1200" Mode C transponder signal, but he was not in radio contact with any controllers.

12. At 1824:09, Mr. Thurston first established radio contact with air traffic controllers at the Salt Lake City Terminal Radar Approach Control Facility (TRACON). These communications were tape recorded and were later transcribed in connection with the accident investigation. Mr. Thurston spoke with two radar controllers: Mr. Clark Wolverton, manning the TRACON's "Final" radar position (combined with the "Valley" radar position), and Mr. Curtis Miller manning the TRACON's "Bear" radar position (combined with the "Hart" radar position).

13. The "Final" radar position handles arriving airplanes during their final segment of approach to the airport, prior to their being handed off to the Control Tower for landing clearance. The "Bear" radar position handles aircraft in airspace farther north and east of the airport.

13A. The Court conducted a site visit to the TRACON during the trial, and viewed the air traffic controllers at the Final and Bear radar positions performing their duties, including listening to their communications with aircraft on a handset. During the site visit, the Court also viewed the radar depictions of aircraft, the video maps (including a demonstration of the process of changing from one video map to another), and the working environment of the controllers and supervisors.

14. Mr. Thurston spoke with the Final position controller from 1824:09 Zulu to 1826:53 Zulu, a period of approximately three minutes. This consisted of a total of 17 individual transmissions (to and from Mr. Thurston and the controller), interspersed with radio communications on the same frequency between the controller and five other aircraft.

15. Mr. Thurston made a series of radio transmissions to the Final controller, none of which stated or indicated any distress or emergency situation. His transmissions were a series of requests for "vectors".

16. A "vector" is defined as: "A heading issued to an aircraft to provide navigational guidance by radar." Pilot/Controller Glossary, Airman's Information Manual. Vectors are used in routine as well as emergency circumstances. A request by a VFR pilot for a vector, without more, does not give any notice of distress or emergency.

17. Mr. Thurston first requested that the Final controller vector him to Salt Lake City International Airport: "... I'm up over Bountiful would like to get vectored into Salt Lake" (Transcript "Tr." at 1824:15). This was a calm, routine transmission, in substance as well as in tone of voice.

18. The controller responded: "... Expect half an hour delay for a special VFR clearance the field is IFR." (Tr. 1824:20). This meant that, because the airport was reporting instrument weather conditions, the only way that a VFR aircraft such as Mr. Thurston's could be authorized to land would be under "Special VFR Rules".

19. "Special VFR" is a procedure whereby VFR aircraft may be authorized to land at the Salt Lake City International Airport under weather conditions that are below VFR weather minima. "Special VFR" clearances are issued at the discretion of the controllers, and normally are not issued under circumstances in which arriving instrument aircraft would be delayed.

20. At the time Mr. Thurston requested a vector in to Slat Lake City International Airport, the Final controller was busy because of two circumstances: the airport was IFR; and only one instrument approach was available to one runway for arriving aircraft, since the instrument approach to the other runway was out of service.

21. Therefore, the half-hour delay was due to the steady stream of instrument arrivals then being worked by the TRACON; this flow of inbound aircraft was expected to continue for the next half-hour.

22. When the controller advised of the delay, Mr. Thurston had the option of remaining outside the Salt Lake City Terminal Control Area (TCA) and waiting for the clearance (or, at any time, declaring an emergency and stating his needs). Instead, he changed his request to a different destination airport: "... I'm up above Bountiful here and ah could you vector me into Sky Park airport". (Tr. 1824:26)

23. The Final controller looked at the position of the Aircraft, saw that it was not far from Sky Park Airport, and asked Mr. Thurston "... Do you see Bountiful Sky Park?" (Tr. 1824:37)

24. In a single sentence, Mr. Thurston said "negative" i.e. that he did not see Skypark and changed his mind once again as to his destination: "... Negative if possible ah can you vector me to Ogden Airport...." This transmission in substance canceled his request for vectors to Skypark, and replaced it with a new request for vectors to Ogden.

25. There is a standard practice in the Salt Lake TRACON not to give vectors to northbound VFR aircraft in the area east of the TCA, because of the narrow corridor available between the east boundary of the TCA and adjoining high terrain. Instead, the standard practice with respect to routine requests by VFR aircraft is to direct the pilots to landmarks related to the "VFR Flyways" depicted on the TCA chart so that the pilots can provide their own navigation and terrain clearance.

26. When Mr. Thurston requested vectors to Ogden, the Final controller, based upon this standard practice, did not provide vectors but instead asked Mr. Thurston if he could see the I-15 freeway. (Tr. 1824:47). When Mr. Thurston responded "negative" (Tr. 1824:49), the controller told him: "it's about a mile and a half to your ah of the west side of you" (Tr. 1824:52). The purpose of this transmission was to orient Mr. Thurston to the freeway so that he could provide his own navigation on the "VFR flyway" to Ogden.

27. The exchange continued in this routine nature, with Mr. Thurston responding "... I'll proceed due west now". (Tr. 1824:57). Radar data indicates that Mr. Thurston did in fact fly west at this time. Therefore, Mr. Thurston knew which way was west, and he could fly west away from the mountains if he wished.

28. Having devoted the previous minute of his time (eleven consecutive communications) to Mr. Thurston, the Final controller instructed Mr. Thurston to change to a different frequency. (Tr. 1825:09). Mr. Thurston acknowledged the frequency change (Tr. 1825:15...