Abrisch v. United States
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Introduction
A key component of all types of aviation, whether commercial, military, or general, is the Air Traffic Control (ATC). Federally controlled ATC, first introduced in 1936, is a service provided by ground-based air traffic controllers who are responsible for coordinating and providing information to the aircraft in their airspace. At any given time, hundreds or even thousands of lives are under the control of ATC. This responsibility leaves no room for error on the part of the ground-based air traffic controllers who operate ATC. Abrisch v. United States examines how air traffic controllers and the federal government are held responsible when the aircraft they are monitoring crash.
Facts
On December 12, 2001, a Piper Cherokee registered as N7701J crashed approximately one mile outside of Jacksonville International Airport (JIA) in Jacksonville, Florida. The Cherokee was carrying Donald W. Weidner (the pilot) and three passengers, George Thomas Bowden, Adrienne Abrisch, and James Abrisch, all of whom were killed in the crash.
After filing two separate Instrument Flight Rules (IFR) flight plans for nearby airports St. Augustine (UST) and Craig (CRG), Weidner had taken off from Fort Lauderdale Executive Airport (FXE) at 4:50 PM. He most likely was afflicted with a cold or respiratory infection, as he was heard coughing on frequency, and he had in his system the pain reliever acetaminophen and the nasal decongestant pseudoephedrine hydrochloride. En route to St. Augustine, at 6:09 PM, Weidner requested information concerning the weather conditions at UST and CRG from Miami Flight Watch. He was informed that UST was reporting two miles of visibility with a ceiling of 200 feet, while CRG was reporting ½ mile visibility with a ceiling of broken clouds at 200 feet. He was also informed that JIA had 1½ mile visibility with a 200-foot ceiling of broken clouds. The report shows that Weidner did not request information regarding weather conditions at JIA.
After executing missed approaches at both UST and CRG, Weidner began to divert to JIA at 7:16 PM. Shortly after, Weidner changed frequency to listen to JIA’s Automatic Terminal Information Service (ATIS). An airport’s ATIS transmits important weather information, lists of active runways and approaches, and other important notices necessary for the safe operation of aircraft. The information is regularly updated to keep up with changing weather conditions, runway closures, and other developments that take place in and around the airport. Once the information is updated, the broadcast is given a new name, progressing in alphabetical order (e.g., Information Alpha changes to Information Bravo). The weather conditions that would be transmitted in Information Mike had been observed at 5:56 PM and recorded 22 minutes later, as directed by the Satellite Radar controller. This Information was identical to the information Weidner was given earlier by Miami Flight Watch. After receiving Information Mike, Weidner changed over to JIA’s approach frequency. However, the information Weidner had listened to on the ATIS broadcast from JIA was obsolete, as the weather had begun to deteriorate. At 6:56 PM, the 1½ mile visibility in mist and 200-foot ceiling had reduced to 1¼ mile visibility and a broken ceiling at 100 feet. Due to ongoing renovations in the main ATC tower, the controllers did not have the necessary equipment to efficiently update the ATIS broadcast, and the broadcast was only updated to Information November at 7:24 PM through a system of telephone calls and walkie-talkie communications.
At 7:19:50 PM, after transitioning to the JIA approach frequency, the East Radar controller asked if Weidner had Information Mike. Weidner responded that he had received Information Mike. Around one minute later, Weidner was instructed to transition to the North Radar frequency. However, shortly before Weidner conducted the transition to the North Radar frequency, a blanket broadcast was made by the active controller informing pilots that the weather information had been updated. Weidner joined the North Radar frequency around a minute after the broadcast ended, missing the important information that Information Mike was no longer current. After he joined the North Radar frequency, the controller never asked Weidner what information he possessed nor if he had heard his previous statement concerning the updated weather information. In addition, the controller never repeated the Information November on frequency after Weidner checked in. At 7:30 PM, the weather was recorded to be deteriorating further by the weather observer, with visibility of only ¼ of a mile and a ceiling of 100 feet. At 7:31:26 PM, Weidner was directed to transition to the tower frequency. From 7:31 PM until radar lost contact with him at 7:41 PM, Weidner was connected to the tower frequency. Unfortunately, there are no audio recordings of the communication that took place during this time period. However, there are several points that are known for certain. First, Weidner executed a go around and then announced that his instruments were malfunctioning. The aircraft then descended to approximately 300 feet while diverging from its flight path. It then ascended to 600 feet and then banked left while climbing to 1000 feet. At this point, the aircraft entered a downward spiral, from which it never recovered.
Evidence of the Case
Following the fatal crash, each of the victims’ next of kin filed a civil suit against the United States Government (specifically the Federal Aviation Administration or FAA). The suit was filed under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and § 2671, which state that the United States can be held liable for “personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the state where the alleged negligent act or omission occurred.” The plaintiffs would secure compensation for the loss of family members by proving that the FAA “breached its duty of care in providing air traffic control services to pilot Weidner, which negligence caused or contributed to the crash of the airplane.” Throughout the duration of the case, several pieces of evidence were presented that demonstrated the negligence of the FAA, while other pieces of evidence suggested that Mr. Weidner was also partially at fault.
The testimony of several witnesses illustrates the lack of support provided by ATC the night of the crash. First, there are statements made by Mr. William Lincoln, the tower controller who was responsible for directing Mr. Weidner from his approach to his landing. No audio recording was made of the final minutes of Mr. Weidner’s flight, so Mr. Lincoln’s recollection would be a critical source of information. Mr. Lincoln was interviewed by the National Transportation Safety Bureau (NTSB) following the crash, was deposed for five hours in July 2003, and authored a statement in April 2004. In all of these instances, Mr. Lincoln’s memory was unclear as to what exactly occurred the night of the crash. He was uncertain if he had given Mr. Weidner all the relevant information (specifically measurements for the visibility, ceiling, wind, altimeter, temperature, dew point, runway visual range, and pilot reports). However, when he was questioned during the trial in late 2004, Mr. Lincoln stated that he remembered giving Weidner the necessary information. Even though Mr. Lincoln was now certain he provided Weidner with updated weather information, he was unable to remember what he did while he was guiding Weidner towards the runway. He commented multiple times on what he usually did, but he never said specifically what he did in the case of guiding Weidner. For example, Mr. Lincoln testified during the trial, “I always do it. But also with the low weather, I would make sure pilots had all the most latest information.”
Second, testimony from Mr. Wayne Bittner, the on-duty ground controller at the time of the crash, provided further insight into the events that led up to the crash. According to Mr. Bittner, he was not informed of several important changes to the weather information, including a call at 7:26:22 PM which stated that the ATIS had been updated with Information November, a call at 7:30:04 PM concerning the worsening conditions after the ATIS had been updated to Information November, and a call detailing the weather information that would later become Information Oscar.
Several other pilots who had been monitoring or active on the tower frequency at the time leading up to the crash testified that they could not remember being given updated weather information or Lincoln giving Weidner updated information. They also stated that the ATIS broadcast at the time was Information Mike, which was broadcasting weather information that was not current.
Finally, a piece of physical evidence, Weidner’s altimeter, was discovered and examined after the crash. An altimeter is an instrument that displays the aircraft’s altitude by measuring the outside air pressure. For it to function properly, an altimeter must be calibrated to match a value broadcasted by air traffic controllers and ATIS broadcasts. This can be done by turning a knob to a certain barometric pressure. The value of the barometric pressure can change from place to place and over time, so a pilot must be vigilant and recalibrate the knob whenever necessary. An incorrectly set altimeter can severely impair a pilot’s ability to perform certain maneuvers and safely land an aircraft, especially in foggy conditions. In the normal course of a long-distance flight, a pilot should calibrate the aircraft’s altimeter to an airport’s announced setting once it is within 100 miles of said airport. Once the aircraft continues to approach the airport, controllers will regularly provide the pilot with altimeter readings. The value of an altimeter can serve as important evidence, as it can prove if the pilot had in fact received updated information. According to photographs taken by the Jacksonville Sheriff’s Office at the scene of the crash, the value on the altimeter was set to either 30.17 or 30.18 inches of Mercury (in Hg). The NTSB asserted that the altimeter was actually set to 30.20 in Hg, but they provided no evidence to support this claim. The values provided by the Jacksonville Sheriff’s Office were consistent with the claim that the most updated information provided to Weidner was Information Mike.
However, several pieces of evidence prove that Weidner made decisions that may have contributed to the fatal accident. First, according to testimony from medical expert Dr. Michael Berry, the medications that Weidner took along with his illness were both risk factors which were very likely to have contributed to Weidner’s spatial disorientation. The FAA’s Aeronautical Information Manual also warns of the dangers of flying while on medication, ill, or fatigued, all of which Weidner had done.[ That day, Weidner worked a full day starting at 6:00 AM, he had flown from UST to FXE, and he had been flying for over two hours with two missed approaches. He was also ill with a respiratory infection and was heard coughing on frequency. It has also been determined that he had both acetaminophen and pseudoephedrine hydrochloride in his system at the time of the crash.
Second, several expert pilots, all of whom had more flight time and experience than Weidner, stated that they had never attempted an IFR landing after having missed two previous landings, especially in a single-engine aircraft like the Piper Cherokee that Weidner was flying. In addition, Dr. Lee Ray Hoxit, a meteorological expert, testified that Daytona (DAB), an airport that Weidner could have diverted to, was experiencing visual flight rules (VFR) conditions. The record also shows that Weidner had enough fuel to divert to DAB if he had chosen to.
Conclusions of Law
In a decision made on November 15, 2004, Magistrate Judge Timothy Corrigan of the Jacksonville division of the United States District Court found “the FAA’s negligence was the legal cause of 65% of the accident and . . . pilot Weidner’s negligence was the legal cause of 35% of the accident.” He stressed that the percentages he provided were not based on any mathematical principles, but were a result of his “best judgement based on the facts as I have found them proven by a preponderance of the evidence.” Judge Corrigan came to the conclusion that the FAA was mostly to blame for the accident for several reasons.
First, he wrote that the lack of updated weather information provided to Weidner put him in a position on his final approach in which he was not able to identify any ground markers that were important to helping him land because the weather was worse than he had anticipated. In addition, the low visibility and ceiling likely caused Weidner to divide his attention between the instruments in the cockpit and the outside environment in his attempt to locate markers on the ground. This division of attention caused him to become spatially disoriented and perform certain maneuvers with the aircraft that caused him to crash.
On the other hand, Weidner made the decision to land in IFR conditions at JIA after having gone through a full workday, flying for over two hours, making two other missed approaches at UST and CRG, and while he was ill and under medication. He could have easily diverted to nearby DAB, which was operating under VFR conditions. Because of these factors, Judge Corrigan decided to apportion 65% of the liability to the FAA and 35% of the liability to the pilot himself.
Analysis
To determine the liability of all parties involved in the crash on December 12, 2001, it is vital to examine three distinct concepts: duty of care, causation, and comparative negligence.
First, it is important to determine if ATC fulfilled their duty of care to Weidner. Duty of care, as detailed in Sergermeister v. Recreation Corp. of America, is a “traditional . . . standard of reasonable care, that which a reasonably careful person would use under like circumstances.” It is also important to note that, according to Daley v. United States, “the circumstances in an emergency are different and it is reasonable to pay greater attention to an aircraft known to be in distress.” With this information, it is clear that the air traffic controllers, by not providing Weidner with updated weather information at several points in his flight, did not provide an adequate level of care.
The second important factor is causation. It must be determined if the lack of information provided to Weidner by the air traffic controllers directly caused the crash. Causation exists only when the event results directly from the defendant’s actions, and does not exist when “plaintiff's actions, absent any third party negligence, were so bizarre and unforeseeable that they should relieve defendant of all liability, or if the scenario simply calls into play established principles of comparative negligence.” Based on the testimony of several experts, the fact that Weidner did not have current weather information meant he was trying to land in worse conditions than he had anticipated. As he was anxiously searching for visual signs on the ground, Weidner became disoriented and crashed. If he had possessed updated information, it is reasonably likely to think that Weidner could have performed a successful landing or made a decision to divert to a neighboring airport.
The final factor is comparative negligence. After establishing that the FAA was at fault to some degree, it must be determined if any of the pilot’s actions contributed to the crash. If negligence is found on the part of the pilot, according to Hoffman v. Jones, “the jury should apportion the negligence of the plaintiff and the negligence of the defendant; then, in reaching the amount due the plaintiff, the jury should give the plaintiff only such an amount proportioned with his negligence and the negligence of the defendant.” In other words, “Florida precedent dictates that such negligence goes to apportion, not bar, liability.”
After examining the relevant evidence, it is apparent that Weidner did bear some blame for the accident. For example, he decided to fly while sick, under medication and fatigued, all of which were advised against by the FAA’s Aeronautical Information Manual. In addition, Weidner chose to attempt a third IFR landing with a viable VFR alternative at DAB.
After reviewing the evidence, I would agree with Judge Corrigan that the FAA and Mr. Weidner were both at fault to some degree. However, I would change the percentage of liability to 55% liability to the FAA and 45% liability to the pilot due to one specific fact that was not mentioned in the final conclusion by Judge Corrigan. According to the report, several other aircraft were given the same outdated information as Mr. Weidner but were able to safely land their aircraft.