Zinn v. United States

• Decision Date: 30 November 2011
• Docket Number: Case No. 08–22056–CIV.
• Citation: 835 F.Supp.2d 1280
• Parties: Frederic ZINN and Randi Zinn, as Co–Personal Representatives of the Estate of Michael Zinn, deceased, Plaintiffs, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Florida

835 F.Supp.2d 1280

Frederic ZINN and Randi Zinn, as Co–Personal Representatives of the Estate of Michael Zinn, deceased, Plaintiffs,

v.The UNITED STATES of America, Defendant.

Case No. 08–22056–CIV.

United States District Court, S.D. Florida.

Nov. 30, 2011.

Steven Craig Marks, Carolina Maharbiz, Stephen Frederick Rosenthal, Podhurst Orseck Josefsberg et al., Miami, FL, for Plaintiffs.

Debra D. Fowler, Eric S. Johnson, United States Department of Justice, Washington, DC, for Defendant.

AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

EDWIN G. TORRES, United States Magistrate Judge.

This matter is before the Court following a multi-day bench trial conducted in this action. Plaintiffs Frederic and Randi Zinn filed this action on July 21, 2008, under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Plaintiffs alleged that the accident was caused by employees of the Federal Aviation Administration (“FAA”) negligently providing air traffic control services to a general aviation aircraft, piloted by Michael Zinn (“Zinn”), who was killed when the aircraft crashed after confronting dangerous weather conditions. Plaintiffs allege that the FAA air traffic controllers failed to provide timely, complete and accurate weather information, issue warnings or alerts, and/or otherwise control the aircraft so as to avoid it encountering severe and dangerous weather.

The FAA and the United States deny liability and assert that the accident was caused by Zinn's failure to avoid known weather conditions despite having received multiple warnings about the presence of thunderstorms along his intended route of flight and despite his own ability to see and become aware of those conditions onboard his aircraft. The FAA further asserts that, once he encountered convective activity within a thunderstorm, he failed to properly fly and control his aircraft, resulting in its loss and Zinn's death. Relatedly, the FAA asserts that Zinn was operating in conditions that he was not authorized or prepared to navigate in derogation of FAA regulations, the failure of which proximately caused the loss of the aircraft and the pilot. Alternatively, even if the FAA's controllers were negligent and such negligence proximately contributed to Zinn's death, the FAA raises the defense of comparative negligence based on Zinn's own negligence.

Apart from the liability issues in the case, the parties differ greatly on the proper methodology and calculation of the economic damages that the FAA may be liable for, principally in connection with the net accumulations damages to the estate under Florida law. Zinn's estate claims that the gross damages exceeds $54 million based upon lost salary, bonuses, capital gains and dividends that Zinn would have realized through his working life had he not been lost, in addition to lost companionship damages to his surviving daughter. The FAA takes the position, however, that the net accumulations to the estate would have been non-existent or negligible.

Before addressing these issues, we pause to note that neither the air traffic controllers nor Michael Zinn were bad actors in this tragic accident. Throughout the history of manned flight, weather has proven to be the greatest obstacle to safe human flight. History shows us that a pilot's greatest enemy, more often than not, is nature's challenges. The effects of thunderstorms, snow, icing, fog, and other inherent risks of nature repeatedly fill reports of air crash investigations all over the world. That risk can be ameliorated, of course, and every pilot is trained to understand and prepare for that risk. Air traffic controllers are trained to help them. But no matter how much we try, we will never be able to eliminate those risks entirely unless we choose to abandon flight altogether. We obviously choose not to do so because pilots like Michael Zinn will always be willing to take the unlikely chance of failure in exchange for the pursuit of the love of flight.¹

I. FINDINGS OF FACT

A. Michael Zinn's Background

1. Michael Zinn was born on December 20, 1952. At an early age he successfully entered into the energy business. He had worked for several years in the 1970's in the energy engineering company, HVCA, where he handled electrical design and procurement for commercial building projects. During that time, he was also the director of a government-funded biomass-to-energy project where he designed and developed a commercial scale animal waste-to-energy plant.

2. In 1976, at the age of 23, Mr. Zinn founded Bio–Energy Systems Incorporated, later known as Besicorp, as a distribution company for solar thermal products that he had created or was in the process of creating. He would, years later, sell Besicorp for a substantial sum, making him a multi-millionaire in the process.

3. Though he suffered various setbacks throughout his career, including a federal criminal investigation and conviction, he emerged as a successful entrepreneur and businessman. He was also personally successful. He married and raised a daughter, Randi Zinn born in 1979, who remainedclose and financially attached to her father until his death.

4. Zinn, like all successful professionals, enjoyed the fruits of his labor, principally through the care and support of his only daughter. But he also enjoyed golf and had a love of flying, interests that would fatefully and tragically intersect on the day he died, October 19, 2005.

5. Zinn was an experienced private pilot. Zinn obtained his initial piloting license in 1982. He obtained his IFR certification in 1987. On the date of the accident, after thirteen years of piloting experience, Zinn had logged over 1400 hours of flight time in various types of general aviation aircraft.

6. Prior to his fatal last flight on October 19th, however, Zinn had not flown significantly for many months. His last flight of any substantial duration (6.0 hours) took place on May 5, 2005. [PX 4 at 9] His latest flight was a short half-hour takeoff and landing on June 18, 2005.

7. Zinn purchased his own aircraft charter company, River Aviation, which owned and operated six different aircraft by 2005, including the aircraft Zinn flew primarily, a 1978 twin-engine P337H Cessna Skymaster, registration number N5HU. The Skymaster had a unique “push me-pull you” design, with the two turbocharged propellor engines working simultaneously to propel the aircraft using centerline thrust. The aircraft was also pressurized, allowing for use in higher elevations.

8. For some time before October 19, 2005, Zinn had been residing primarily in Boca Raton, Florida. He regularly traveled to Kingston, New York, where his business operations were based. On that day, he was flying N5HU to Myrtle Beach, South Carolina, to play a round of golf.

B. Zinn's Intended Flight Plan and Weather Conditions

9. Five days before his death, Zinn prepared his aircraft for use by having the engine inspected and the oil and filter changed. It had been about four months since he had last flown it. [PX 1]

10. On October 19th, Zinn intended to depart from Boca Raton in the early afternoon with a direct route to Myrtle Beach. He prepared and filed an IFR flight plan, likely through a computer-based system.²

11. To prepare for a flight, it is undisputed that a pilot must assess what the weather conditions will be and determine whether the weather is significant, whether there is turbulence, whether there is convective activity, or anything that will have an affect on the flight.

12. Zinn, as an experienced pilot, more likely than not conducted that review as he had done in the past when, on more than one occasion, he had altered or cancelled his flight plans due to expected weather conditions.

13. As a resident of South Florida, Zinn would also more likely than not have been aware of the propensity for thunderstorms to develop in the afternoon.

14. It is undisputed that he ultimately departed Boca Raton at approximately 1830 UTC.³ Prior to departing Boca Raton, Zinn more likely than not performed a preflight inspection and check of his aircraft. After completing the preflight check, Zinn performed an engine run-up and check after calling the Boca ground controller. The run-up and checks generally take 10–15 minutes. The time between when he called the Boca tower from his location at Boca Aviation and the time he was cleared for take-off was about five minutes.

15. When Zinn called the Boca Tower for taxi instructions at 1824:02, he advised the controller that he had information “Golf,” indicating that he had tuned to and listened to the Automated Terminal Information Service (“ATIS”), which are recorded weather broadcasts available on a given radio frequency for a particular terminal area that provide weather and visibility conditions in the vicinity of a particular airport. [DX 83]

16. SIGMETS are broadcast on the ATIS at Boca Raton Airport.⁴ At 1655 (about one and one-half hours before takeoff), Convective SIGMET 3E went into effect and was valid until 1855. Convective SIGMET 3E advised of a developing line of thunderstorms 20 nautical miles wide with little movement and tops to level 33,000 feet. This line extended 40 nautical miles west-southwest of Vero Beach to 90 nautical miles east-northeast of West Palm Beach. [DX 4A] The area affected by this SIGMET encompassed Zinn's intended route of flight. As Zinn's piloting expert conceded, the conditions reported in Convective SIGMET 3E indicated a “pretty significant piece of weather.”

17. It is not disputed that Zinn considered (or should have considered) SIGMET 3E. He acknowledged as much at the time he obtained the clearance to taxi and takeoff from Boca Raton. Whether he received a subsequent SIGMET, however, is disputed. At 1755 (about one-half hour prior to takeoff), Convective SIGMET 5E was issued for an area of Florida and coastal waters running from 60 miles east-northeast of Vero Beach, to 90 miles east-northeast of West Palm Beach, to 30 miles west...