Turner v. U.S.

• Decision Date: 08 September 2010
• Docket Number: Nos. 1:07CV23,Nos. 1:06CV223,Nos. 1:07CV673,Nos. 1:06CV474,Nos. 1:06CV431,s. 1:06CV223,s. 1:07CV23,s. 1:06CV431,s. 1:06CV474,s. 1:07CV673
• Citation: 736 F.Supp.2d 980
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Linda D. TURNER and Wachovia Bank, N.A., Co-Executors of the Estate of Jeffrey Wayne Turner, Plaintiffs, v. UNITED STATES of America, Defendant. Dianne H. Dorton, as Personal Representative of the Estate of Randall Alexander Dorton, Plaintiff, v. United States of America, Defendant. Dianne H. Dorton, as Personal Representative of the Estate of Randall Alexander Dorton, Plaintiff, v. Hendrick Motorsports, Inc., John P. Tracy, as Personal Representative of the Estate of Richard Edward Tracy; Richard M. Morrison, as Personal Representative of the Estate of Elizabeth Lee Morrison; and HMS Holdings Limited Partnership, Defendants and Third-Party Plaintiffs, v. United States of America, Third-Party Defendant. Tracy A. Lathram, Executor of the Estate of Scott C. Lathram, Deceased, Plaintiff, v. Hendrick Motorsports, Inc. and HMS Holdings Limited Partnership, Defendants and Third-Party Plaintiffs, v. United States of America, Third-Party Defendant. HMS Holdings Limited Partnership and United States Aviation Underwriters, Inc., Plaintiffs, v. United States of America, Defendant.

736 F.Supp.2d 980

Linda D. TURNER and Wachovia Bank, N.A., Co-Executors of the Estate of Jeffrey Wayne Turner, Plaintiffs,
v.
UNITED STATES of America, Defendant.
Dianne H. Dorton, as Personal Representative of the Estate of Randall Alexander Dorton, Plaintiff,
v.
United States of America, Defendant.
Dianne H. Dorton, as Personal Representative of the Estate of Randall Alexander Dorton, Plaintiff,
v.
Hendrick Motorsports, Inc., John P. Tracy, as Personal Representative of the Estate of Richard Edward Tracy; Richard M. Morrison, as Personal Representative of the Estate of Elizabeth Lee Morrison; and HMS Holdings Limited Partnership, Defendants and Third-Party Plaintiffs,
v.
United States of America, Third-Party Defendant.
Tracy A. Lathram, Executor of the Estate of Scott C. Lathram, Deceased, Plaintiff,
v.
Hendrick Motorsports, Inc. and HMS Holdings Limited Partnership, Defendants and Third-Party Plaintiffs,
v.
United States of America, Third-Party Defendant.
HMS Holdings Limited Partnership and United States Aviation Underwriters, Inc., Plaintiffs,
v.
United States of America, Defendant.

Nos. 1:06CV223, 1:07CV23, 1:06CV431, 1:06CV474, 1:07CV673.

United States District Court,
M.D. North Carolina.

Sept. 8, 2010.

736 F.Supp.2d 986

Lacy M. Presnell, III, James J. Mills, Burns Day & Presnell, P.A., James G. Billings, Raleigh, NC, for Plaintiffs.

Gill P. Beck, Office of U.S. Attorney, Greensboro, NC, Henry B. Goddard, Jr., Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

TABLE OF CONTENTS

TABLE OF CONTENTS 986

I. FINDINGS OF FACT 987

A.	The Aircraft and Pilots	988
B.	MTV and Approach to Runway 30	989
C.	Greensboro Terminal Radar Approach Control Facility	991
D.	The Accident	992

II. CONCLUSIONS OF LAW 998

A.	Jurisdiction and Choice of Law	998
B.	Virginia Negligence Law	999
C.	Legal Duty and Standard of Care	1000

1.	Federal Regulations	1000
2.	Air Traffic Control Manual	1001
3.	Other FAA Documents	1001

D. Pilot Duties and Conduct 1002

1. Pilot Duties 1002

a.	14 C.F.R. § 91.3 Pilot-in-Command	1002
b.	14 C.F.R. § 91.13 Careless or Reckless Operation	1003
c.	14 C.F.R. § 91.175 Takeoff and Landing under IFR Conditions	1003
d.	Aeronautical Information Manual	1003
e.	Common Law Duty	1003

2. Pilot Conduct 1003

E. Air Traffic Controller Duties and Conduct 1005

1. Air Traffic Controller Duties 1005

a.	ATC Manual ¶ 2-1-2	1005
b.	ATC Manual ¶ 2-1-6	1006
c.	ATC Manual ¶¶ 5-1-1, 5-1-13, & 5-3-1	1007
d.	Common Law Duty	1005

2. Air Traffic Controller Conduct 1009

a.	BALES Holding Pattern	1009
b.	Approach Toward and Past BALES	1009
c.	Monitoring N501RH from Frequency Change until MSAW Warning	1011
d.	MSAW Warning	1015

F. Intervening and Superseding Cause 1020

III. CONCLUSION 1023

736 F.Supp.2d 987

These consolidated proceedings arise out of the crash of a private aircraft near Martinsville, Virginia. Pursuant to the court's April 21, 2009, Final Order Regarding Consolidation and Bifurcation, trial was divided into phases. Claims for which a jury trial was entitled were tried in April and May 2009.¹ All remaining claims against the Defendant United States of America ("United States" or "Government"), for which no jury trial right exists, were tried to the court from July 7 through 24, 2009.

Before the court is the determination of the bench trial phase in which various parties assert claims against the United States which, in turn, asserts various claims for contribution. In cases 1:06cv223 and 1:07cv23, respectively, Linda D. Turner and Wachovia Bank, N.A., co-executors of the Estate of Jeffrey Wayne Turner ("Turner"), and Dianne H. Dorton, as personal representative of the Estate of Randall Alexander Dorton ("Dorton"), bring actions directly against the Government. In case 1:06cv431, the only remaining claims are those by Hendrick Motorsports, Inc., against the Government for the loss of the aircraft as well as the Government's contribution and indemnity claims against third-party plaintiffs Hendrick Motorsports, Inc., and HMS Holdings Limited Partnership. In case 1:06cv474, Hendrick Motorsports, Inc., asserts a claim against the Government for property damage to the aircraft, and HMS Holdings Limited Partnership seeks contribution for payment made in settlement to the representative of Scott C. Lathram ("Lathram"), a passenger who died in the accident. In case 1:07cv673, HMS Holdings Limited Partnership and United States Aviation Underwriters, Inc., seek contribution for payment made in settlement to the representative of Joe Wayne Jackson ("Jackson"), also a passenger who died in the accident.

The matter is ripe for decision, and the court issues the following Findings of Fact and Conclusions of Law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I. FINDINGS OF FACT

At approximately 12:33 p.m. (Eastern Daylight Savings Time) on October 24, 2004, a corporate twin turbo-prop aircraft owned by Hendrick Motorsports, Inc., flew into Bull Mountain, Virginia, which was obscured by clouds, approximately ten nautical miles past the approach end of Runway 30 of the Blue Ridge Airport, also known by the call-sign "MTV" ("MTV" or "Martinsville"). The aircraft had departed from the Concord (North Carolina) airport and was en route to Martinsville, Virginia, where the passengers planned to attend a NASCAR race set to begin at 1:00 p.m. at

736 F.Supp.2d 988

the nearby Martinsville Speedway. On board were Lathram and Jackson, Hendrick employees Turner and Dorton, four members of the Hendrick family, and the aircraft's two pilots, Richard Edward Tracy ("Tracy") and Elizabeth Lee Morrison ("Morrison"), who were employees of HMS Holdings Limited Partnership. There were no survivors.

A. The Aircraft and Pilots

The aircraft was a Beechcraft Super King Air 200, bearing Federal Aviation Administration ("FAA") registration number N501RH ("N501RH"). N501RH did not carry flight data or cockpit voice recorders. The FAA recorded radar information relating to N501RH as well as radio transmissions to and from the aircraft made over the air traffic control ("ATC") frequency. This information permits a reconstruction of the aircraft's flight path and ATC communications. ²

N501RH was fully equipped with navigational instruments approved by the FAA for an "Instrument Flight Rules" ("IFR") approach for landing. N501RH utilized a "localizer approach" to land, which requires the pilots to follow certain radio and other instrumentation to orient the aircraft properly toward Runway 30 for safe landing. The localizer approach is published on a diagram in an official publication known as an "approach plate," and federal law requires that pilots flying it follow the approach as depicted. 14 C.F.R. § 91.175(a)(2004). The localizer approach begins at a known location, in this case designated "BALES," located five nautical miles southeast of the approach end of MTV Runway 30. Airplanes flying the localizer approach typically intersect the localizer course southeast of (before) BALES.

The cockpit had dual sets of instruments, one for each pilot, and the pilots were trained and expected to routinely scan them. Several of these instruments were designed to assist the pilots in navigating on this flight.

First, N501RH had an Automatic Direction Finder ("ADF") through which the pilots could receive signals from a ground-based Nondirectional Radio Beacon ("NDB"). An NDB is a radio transmitter located in this case at BALES. Each pilot had an ADF display in the cockpit, which (when within range of the beacon and tuned to the proper frequency) displays a needle showing the direction to the BALES NDB in relation to the aircraft. The ADF needle points continuously to the direction of the beacon regardless of where the aircraft flies. If ADF is not receiving a signal it "parks" at a 90 degree angle. Thus, when an aircraft passes BALES on its approach to Runway 30, the needle swings to indicate the aircraft's location with respect to the NDB. In this fashion, it alerts the crew to whether the aircraft properly passed over the BALES NDB to line the aircraft on the proper route to land. For N501RH to conduct an IFR localizer approach to Martinsville, ADF must be used.

Second, in addition to the BALES NDB, a marker beacon transmitter, called the Outer Marker Beacon, is located at BALES. The Outer Marker Beacon sends a narrow radio beam straight up into the air (like a flashlight beam) so that when an aircraft flies through the beam a light on the aircraft instrument panel flashes and, when audio is turned on, generates an

736 F.Supp.2d 989

audible tone. N501RH was equipped to receive these signals.

Third, N501RH had localizer equipment by which the pilots could determine their lateral position on a specified approach to a runway, in this case MTV Runway 30. In the cockpit, the localizer course is displayed to the pilots on an instrument known as a Course Deviation Indicator ("CDI"), which is part of an instrument known as the Horizontal Situation Indicator. The CDI indicates whether the aircraft is on, to the left of, or to the right of the specified approach as the aircraft proceeds to land. Each pilot had a CDI display on his or her instrument panel. If the CDI deflects fully to the left or to the right at any time after an aircraft passes the BALES marker on a final approach to Runway 30, the pilots must immediately implement designated "missed approach" procedures and declare a "missed approach" to ATC, thus aborting the landing attempt.

Fourth, N501RH had Distance Measuring Equipment ("DME") for each pilot from which they could determine their distance from the airport to the nearest tenth of a mile. The DME ground antenna is located in line with and 1,000 feet beyond the northwest end of MTV Runway 30. As an aircraft approaches the DME antenna, the mileage distance continually decreases. As an aircraft flies away from the DME antenna, the mileage distance continually increases. In connection with the aircraft's DME instrument, Hendrick Motorsports training materials required pilots to use a timer to further...