AOPA Pilot Magazine - April 2012 - 38

PILOTCOUNSEL

BY JOHN S. YODICE
AOPA SECRETARY

Who are the ‘bad’ guys?

here is nothing unusual about a fatal air crash resulting in litigation, with charges and countercharges alleging negligence on the part

of flight time in various types of general aviation aircraft. On the day of the accident he was flying his company’s Skymaster. The Skymaster was equipped with a Stormscope but not airborne weather radar. The pilot filed an IFR flight plan from Boca Raton, Florida, to Myrtle Beach, South Carolina, picking up his IFR clearance after becoming airborne. When he departed at 2:30 p.m. local time, he was aware of a sigmet for a line of thunderstorms along his route of flight. The of pilots, air traffic controllers, manufacturers, Legal counselor and others. It’s a sign of the litigious society in actual weather at the time of his departure was John S. Yodice is which we live. The stakes are high. Monetary a thunderstorm cell over Martin County, Flora commercial recoveries are in the millions of dollars. To get ida—where the accident occurred—that was pilot and flight there, though, the litigation involves painstaking expanding in size and intensity. By the time the instructor who reconstruction of the facts, and ends up pointing flight reached the area, weather radar showed that owns and flies the accusatory finger at the “bad” people responit had approached and entered an area of Level 5 a Cessna 310. sible for the crash. What is unusual, in this case, (“intense” weather with severe turbulence) and is the court’s expressed insight that the actors, borderline Level 6 echoes (“extreme” weather though negligent and culpable, are not really “bad” in the with severe turbulence). Weather avoidance was a continuing moral sense. The judge puts the “badness” in a context that activity throughout the flight. There was a lot of interaction is obvious but seldom expressed. between ATC and the pilot trying to deal with the weather. A pilot was killed when his 1978 Cessna Skymaster crashed On the evidence, the judge found the pilot negligent as after encountering severe weather conditions. The represen- essentially alleged by the FAA, responsible to the extent of tatives of the deceased pilot filed suit against the FAA alleging 60 percent. that the air traffic controllers were negligent in the handling By the same token, the judge had little trouble in findof the flight, causing the death. ing ATC 40-percent responsible. The judge summed up the The FAA denied liability, saying the accident was caused controllers’ negligence by saying: “With knowledge that [the by the pilot’s own failures. Furthermore, even if the control- pilot] was flying IFR in a small plane with limited weather lers were negligent, the pilot’s own negligence significantly capability, this controller failed to provide sufficient accurate contributed to the cause of the accident. The FAA alleged weather information to allow [the pilot] to make informed that the pilot failed to avoid known weather conditions decisions when requesting deviations. The weather was despite having received many warnings about the presence severe enough that the controller knew or should have known of thunderstorms along his intended route of flight— that he needed to issue complete weather information, as and despite his known ability to see and become aware required by the Air Traffic Control Manual…. Compounding of those conditions onboard his aircraft. The FAA further that breach of the duty of care, he then failed to provide any said that once the pilot encountered convective activity navigation assistance when the pilot requested.” within a thunderstorm, he failed to properly fly and control What is interesting and unusual is the insightful part of his aircraft, resulting in its loss and the pilot’s death. The the judge’s decision. The judge noted “that neither the air FAA asserted that the pilot violated FAA regulations by oper- traffic controllers nor [the pilot] were bad actors in this tragic ating in conditions that he was not authorized or prepared accident. Throughout the history of manned flight weather to handle. has proven to be the greatest obstacle to safe human flight. At the conclusion of a trial before a federal court in Texas, History shows us that a pilot’s greatest enemy, more often the trial judge ruled on the case. After hearing the evidence, than not, is nature’s challenges. The effects of thunderstorms, the judge found that the pilot was 60-percent responsible for snow, icing, fog, and other inherent risks of nature repeatedly the accident, and that the FAA was responsible to the extent fill reports of air crash investigations all over the world. That of 40 percent. The judge awarded more than $4 million in risk can be ameliorated, of course, and every pilot is trained damages to the estate of the pilot, apportioned according to to understand and prepare for that risk. Air traffic controllers the comparative negligence of the parties. are trained to help them. But no matter how much we try, we The pilot in this case was a successful business executive will never be able to eliminate those risks entirely unless we and entrepreneur, with a love of flying. He was an experi- choose to abandon flight altogether.” We’ve not seen that in enced instrument-rated pilot with more than 1,400 hours a court decision before. 38 • APRIL 2012

AOPA PILOT •

AOPA Pilot Magazine - April 2012

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