ARCH INSURANCE COMPANY v. UNITED STATES OF AMERICA ET AL
Filing
190
ORDER AND MEMORANDUM OPINION. A preponderance of the evidence does not support the pla's claims, and because the pla carries the burden of proof, judgment must be entered in favor of the dfts. The Clerk shall enter judgment in favor of dfts and against pla, together with taxable costs. Signed by SENIOR JUDGE ROGER VINSON on July 9, 2013. (kvg)
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
ARCH INSURANCE COMPANY,
a Missouri corporation,
Plaintiff,
v.
Case No.: 3:09-cv-395-RV-EMT
UNITED STATES OF AMERICA,
and AVENGE, INC., a Virginia
corporation,
Defendants.
___________________________/
ORDER AND MEMORANDUM OPINION
This aircraft insurance subrogation case was tried before me, without a jury.
After close review and careful consideration of all the evidence admitted during the
trial (consisting of testimony from 16 witnesses and approximately 50 exhibits), in
addition to the pre and post-trial submissions and arguments of counsel, and being
otherwise fully advised, I now make the following findings of fact and conclusions
of law, as required by Rule 52(a) of the Federal Rules of Civil Procedure.1
I. FINDINGS OF FACT
This action arises out of a plane crash that occurred at approximately 11:35
p.m. central time on the evening of July 8, 2008, at the United States Air Force’s
(“USAF”) Hurlburt Field, near Mary Esther, Florida. The crash (or mishap) involved a
Pilatus PC-12 aircraft, registration No. N901TR (“Aircraft”), which had been leased
to the United States by a private company for use as a training aircraft in the 319th
1
When used in this order and opinion, citations to the trial exhibits will be in
the form “[Ex.]”; citations to the trial transcript will be “[Tr.]”; and citations to the
docket will be “[Doc.].”
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Special Operations Squadron (“319th SOS”). The crash occurred while the Aircraft
was in the process of executing a military landing maneuver known as a “Random
Shallow Approach” and it apparently encountered wake turbulence generated by a
much larger AC-130U aircraft that had been flying and landing on the same runway
during the same time period.2
The plaintiff, Arch Insurance Company (“Arch”), paid for the damage to the
Aircraft (which was declared a total loss), and was subrogated to the rights of the
owner. Arch alleges that the defendants, Avenge, Inc. (“Avenge”), and the United
States, share responsibility for the mishap. Before discussing the facts of the case
in detail, it will be helpful to describe the impressive expertise and qualifications of
the several expert witnesses who provided testimony and opinions in this case, as
certain of those opinions will figure prominently in my findings of fact.
Arch’s Expert Witnesses
Captain Robert “Hoot” Gibson. Captain Gibson joined the United States Navy
after graduating from California Polytechnic State University in 1969, went through
aviation officer candidate school, and spent a total of 27 years as a Naval Aviator.
He flew in two fighter squadrons (an F-4 Phantom squadron and the Navy’s first F14 Tomcat squadron), flew a combat tour in Vietnam, and served as a Navy test
pilot. In 1978, he joined NASA, became NASA’s Chief Astronaut, and made five
trips to space aboard the Space Shuttle (one as co-pilot, the other four as mission
commander). He then worked in the civilian aviation field for a number of years as
a pilot (first as co-pilot, then as captain) for Southwest Airlines. Captain Gibson is
2
Wake turbulence is the term used to describe the vortices that roll up from
the wingtips of an aircraft as it passes through the air. When viewed from the rear
of the generating aircraft, the left wing’s vortice spins clockwise, while the right
wing’s vortice spins counterclockwise. The strength of the vortices is proportional
to the weight of the aircraft. Accordingly, the larger (and heavier) the aircraft, the
larger (and stronger) the wake turbulence.
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an accomplished and experienced pilot with more than 14,000 flight hours. He has
flown a lot of different aircraft, including experimental aircraft, racing aircraft, and
the Space Shuttle (however, he has never flown a PC-12). Dr. Gibson was retained
by the plaintiff to offer testimony on the standard of care.
Dr. Robert C. Winn. Dr. Winn is a mechanical and aeronautical engineer. He
received his Bachelor’s degree from the University of Illinois in 1968, his Master’s
degree from the same university in 1969, and his Doctorate degree from Colorado
State University in 1982, all in Mechanical Engineering. He has spent more than 15
years teaching aeronautical and mechanical engineering at the USAF Academy and
Colorado Technical University. Dr. Winn was a USAF pilot for 22 years, after which
he became a consulting engineer with Engineering Systems, Inc. (ESI). ESI provides
professional engineering services and wide range of technical support and accident
reconstruction analyses. Dr. Winn has published over 70 technical papers, reports,
and articles on a wide-range of issues, including aviation accident reconstruction.
He was retained to provide reconstruction analysis of the events leading up to the
mishap, interpret the radar data, and ultimately offer his opinion on causation.
Dr. Elizabeth Austin. Dr. Austin is a forensic consulting meteorologist. She
received her Bachelor’s degree in Atmospheric Science from UCLA in 1987, her
Master’s degree in Atmospheric Physics from the University of Nevada, Reno, in
1991, and her Doctorate in Physics from that university in 1994. She is a board
certified consulting meteorologist --- which is the only certification in this country
for consulting meteorologists --- and she has conducted over 700 meteorological
investigations for legal matters. She was hired by the plaintiff to offer analysis of
the weather and atmospheric conditions on the night of the crash.
Dr. James Hallock. Dr. Hallock is a physicist. He received each of his three
degrees (Bachelor’s, Master’s, and Ph.D) in Physics from MIT. After working as a
staff and laboratory physicist at MIT, he went to work for NASA, and, thereafter,
Case No.: 3:09-cv-395-RV-EMT
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the Department of Transportation. He retired from the DOT in 2008 and began a
private consulting firm. His primary area of expertise is aircraft wake vortices, and
he has published numerous articles and technical papers on the subject. Dr. Hallock
was retained by Arch specifically to rebut the testimony and opinions by the expert
witness for Avenge, Robert Rivers.
Avenge’s Expert Witness
Robert Rivers. Rivers graduated from the University of North Carolina with a
Bachelor’s in Mathematics, and from the University of Virginia with a Master’s in
Aerospace Engineering. He was also a Naval Aviator and a commercial pilot, and a
NASA test pilot for 22 years. In total, he has over 13,000 flight hours. In addition,
he has received multiple awards and authored or co-authored more than 25 papers
on piloting-related issues. While at NASA, Rivers was the chief project pilot on its
wake vortex testing program. He has studied wake vortices for many years, and, in
order to better understand them, he helped design and construct a special research
aircraft capable of penetrating wake vortices and recording information about them.
This research aircraft (OV-10) is a turboprop airplane that is about the same weight
and has similar handling characteristics as the PC-12. For his research, Rivers flew
the aircraft and penetrated several thousand wakes generated by different types of
larger aircraft (from 50 feet all the way to about 10,000 feet), including “well over
a thousand penetrations behind a C-130” [Tr. 850]. Rivers was retained by Avenge
to offer testimony on the cause of the mishap.
United States’ Expert Witnesses
Dr. Kenneth L. Orloff. Dr. Orloff is an aviation accident reconstructionist. He
holds a Bachelor’s and Master’s degree in Physics, and a Doctorate in Mechanical
Engineering from the University of California. Shortly after receiving his Ph.D., Dr.
Orloff went to work as a research scientist for NASA, where he spent the first five
(of 13 total) years in its Wake Turbulence Research and Alleviation Group studying
Case No.: 3:09-cv-395-RV-EMT
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wake flow fields and vortex decay characteristics, trying to find ways to alleviate
the wake turbulence hazard. He has taught physics, engineering, aerodynamics,
and aeronautics at the university level; published articles and papers on aviationrelated issues; been qualified as an expert in many prior cases; and testified before
the United States Congress. Dr. Orloff is also a pilot (and certified flight instructor)
and has accumulated more than 8000 flight hours. He was retained by the United
States to interpret the radar data and provide testimony on causation.
Joseph Lintzenich. Lintzenich is a licensed Airline Transport Pilot with over
20,000 hours of national and international flying experience. He has flown various
types and sizes of aircraft, from a small single-engine to the Boeing 747-400. He,
in conjunction with others, has spent about 12 years working in the area of wake
vortices to understand their mechanics and devise flight standards and procedures
so that pilots could better avoid wake turbulence hazards. He has authored papers
and articles; made presentations before various aviation groups; and been published
by the FAA in the Aeronautical Information Manual (AIM). He is currently President
of Airways and Airports Consultants, Inc., an aviation consulting firm that provides,
inter alia, aviation accident reconstruction. He was retained by the United States to
evaluate the circumstances surrounding the mishap from the pilot’s perspective and
offer an opinion on causation.
After reviewing all the evidence provided by these expert witnesses, along
with the evidence from the fact witnesses, I will now make my findings of fact.
The Aircraft and the 319th SOS at Hurlburt Field
1)
The PC-12 is a relatively small, high performance, single-turboprop-
engine, fixed-wing civilian airplane. The landing weight of the plane that crashed
was estimated to be 7,500 lbs. The pilot and co-pilot seats are positioned in the
front of the plane (on the right and left). The Aircraft was configured with six or
seven passenger seats in the back.
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2)
The U-28 is the military version of the PC-12. It has a different global
positioning system (GPS), a tactical and secure-capable radio, and various other
military features, but otherwise the two aircraft are “basically the same” [Tr. 7071; see also Tr. 620]. While the U-28 was the version flown in combat areas, the
USAF had an ongoing conversion program in which the PC-12s were converted to
U-28s. Both versions of the aircraft were flown in the 319th SOS at Hurlburt Field.
Notably, for purposes of this case, the PC-12 uses VHF communication radios and
the U-28 uses the military’s UHF communication radio.
3)
In 2008, the 319th SOS was an operational squadron in the midst of
rapid growth.3 At any given time, approximately 40% of the squadron pilots were
deployed to combat theaters on a rotating basis. Colonel Jerry Wayne Haynes (the
commander of the squadron) testified that the pilots were deploying 60 to 90 days,
after which the pilots would return home for 60 to 90 days; “so if you were home,
you were always training for your next deployment” [Tr. 644]. One of the missions
of the 319th SOS during this period of time was to train and prepare pilots for
combat in the U-28. However, because of the operational demands of the ongoing
wars in Iraq and Afghanistan, the 319th SOS had limited training resources. Indeed,
shortly after the wars began, “all the aircraft and over half of the pilots immediately
went to war” [see Tr. 632]. Consequently, the USAF started to use (and rely upon)
contract suppliers of instructor pilots and aircraft to keep the squadron fully staffed
and operational.
4)
In July 2007, Avenge contracted with the United States to provide
instructor pilots for the 319th SOS [Ex. 109]. These pilots were tasked, inter alia,
with teaching portions of the USAF syllabus in the PC-12. The contract purported
3
Lieutenant Colonel Dagvin Robert Anderson was the operations officer for
the 319th SOS from August 2007 to April 2009. He testified that there were only
60 pilots in the unit when he first arrived, and there were almost 200 when he left
in 2009 [Tr. 801-03].
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to establish an independent contractor relationship. It specifically stated that the
parties “recognize and agree that no employer-employee relationships exist or will
exist under the contract between the Government and Contractor and/or between
the Government and the Contractor’s employees” [see Ex. 109 at § H-0009]. The
contract further provided that the United States “shall not be held responsible for
damages to property . . . who [sic] might occur without fault on the part of the
Government as a result of, or incident to, performance of the contractor” [see id.,
at § H-0006].
5)
Avenge provided the USAF with five or six instructor pilots under the
contract. These pilots were “high quality” and “first rate”; had “great experience”;
and “did an exceptional job” at Hurlburt Field [Tr. 814-15]. Because a large number
of the USAF pilots during this time were following a regular operational deployment
schedule in Iraq or Afghanistan --- which resulted in “long breaks” in their training
and thus necessitated that they spend a lot of their flying time getting re-qualified
or maintaining currency --- the Avenge pilots flew most of the training and requalifying flights and quickly became the primary PC-12 instructors in the 319th
SOS [Tr. 803-04; 816-17]. In fact, within six months the Avenge pilots had more
experience in the PC-12 than the USAF pilots, and they “were well above [those]
instructors” in terms of “expertise” [see Tr. 817]. Due to the growing disparity in
instructor flying experience between the Avenge pilots and the USAF pilots, the Air
Force instructor pilots were eventually “restricted” from flying and instructing in the
PC-12 because, as Colonel Anderson testified at trial, “honestly, [they] didn’t have
the expertise to do that” [see Tr. 816-17].
6)
One of the experienced and “highly regarded” Avenge instructor pilots
was Robert Mason “Tripp” Howard. After graduating from the Air Force Academy
in 1987, Howard went to Air Force pilot training, joined the special operations unit
at Hurlburt Field, and flew a number of aircraft during his military service, including
Case No.: 3:09-cv-395-RV-EMT
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the MC-130H Combat Talon II; the Antonov 26 and 32; the DC-3; and the CASA
212. He was also an instructor pilot for these aircraft, and he separated from the
military with 15 years instructor pilot experience and logged approximately 6,000
flight hours. After separating from the USAF, he went to work for Avenge, where
he became a certified instructor pilot for the PC-12 [Tr. 269-79; see also Doc. 155
at 26 ¶14].
7)
While Avenge was supplying the USAF with instructor pilots for the
PC-12, Sierra Nevada Corporation (“SNC”) was supplying the USAF with the PC12s themselves, under a contract. This contract, along with subsequent Delivery
Orders, provided that SNC would carry insurance for all the leased aircraft and,
furthermore, by incorporation of a specific Defense Federal Acquisition Regulation,
that the government assumed the risk of damage to, or loss or destruction of, the
aircraft unless it was “covered by insurance.” See 48 C.F.R. § 252.228-7001(e).
8)
In June 2008, one of the SNC PC-12s was damaged during a landing.
SNC found and leased a replacement PC-12 --- the Aircraft --- from its owner, the
Northwest Flying Tigers, LLC, and SNC sub-leased it to the USAF as a substitute
airplane. The Aircraft was included in SNC’s blanket coverage under an insurance
policy issued by Arch, with coverage for physical loss and damage with an agreed
hull value of $3.5 million and aircraft liability. The Aircraft was thereafter assigned
to the 319th SOS at Hurlburt Field.
9)
During the time relevant here, training at the 319th SOS consisted of,
inter alia, tactical piloting maneuvers that involve avoiding various combat threats,
including what is generally known as the “Random Shallow Approach.” This is a
maneuver in which the aircraft approaches the airfield from a random direction at a
high rate of speed (ending up on a short downwind leg of 200 knots airspeed at an
altitude of 500 feet above ground level) in order to limit the time that the airplane is
an exposed target, thereby reducing the possibility of encountering threats from the
ground (i.e., being shot).
Case No.: 3:09-cv-395-RV-EMT
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Wake Vortices and Turbulence4
10)
Wakes are usually invisible and generally believed to move downward
and dissipate over time. However, in tests, they can sometimes behave randomly,
capriciously, and follow no set path [see, e.g., Ex. 70 at 3]. Therefore, while wake
vortices may indeed roll off the wingtips and descend as they gradually dissipate,
depending on numerous complex atmospheric and other conditions, they may also
remain level or, in fact, rise behind the generating aircraft [see id.; accord Tr. 859].
11)
The diameter of the “core” of the vortex is initially about 1% of the
distance between the two vortices --- which would be approximately 75% of the
wingtip-to-wingtip distance. So, for a C-130, the core would initially be about 1.0
to 1.5 feet in diameter, and gradually expanding.
12)
When a smaller aircraft is following a larger aircraft during a take-off
or landing, the wingtip vortex generated by the larger (leading) aircraft could bring
about wake turbulence with the potential to impact the smaller (following) aircraft
[e.g., Ex. 55 at 4; Ex. 65 at 2]. In and of itself, however, this is not necessarily a
dangerous condition that will cause a crash. The uplifting effect of both vortices
tends to push the following aircraft out of the wake vortex as it approaches from
4
Some of my findings of fact regarding wake vortices are taken from the
two expert reports and live trial testimony of Avenge’s expert witness, Robert A.
Rivers. In addition to his extensive qualifications, as previously set forth above,
Rivers clearly “did his homework” in this case. Specifically, in preparation for his
testimony, he went up in two aircraft to try and recreate the conditions of the flight
that night in order to test the opinions and hypotheses that have been offered. He
first went up in a Cessna 172, and then he went up in a PC-12 that was “identical”
to the Aircraft [Tr. 886-89]. During these tests, he tried “to replicate exactly --- as
close as we could the exact condition of the airplane at the time plaintiffs postulate
it encountered the vortex” [see Tr. 902] by, inter alia, “loading appropriate fuel” to
ensure that his PC-12 was the same weight as the Aircraft at the time of the crash
[id. 889]. After close and careful review of his two reports and testimony, and after
observing his demeanor during trial, I found him to be both knowledgeable and very
credible.
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either side. Thus, hitting a vortex in the precise manner necessary to roll the plane
and endanger it is very difficult [Ex. 70 at 4-5]. For that to happen, there must be
enough time for the vortex to grow large enough in diameter to produce a “couple”
(that is, forces on each wingtip of opposite direction) with a sufficiently large
moment arm based on the strength of the wake to overcome the opposing aileroninduced rolling moment and the aircraft must hit the vortex in the precisely the
right spot (core) [see id.], which is actually “very hard” to do [Tr. 859]. To be sure,
the vast majority of wake encounters “are completely benign” [see Tr. 875], and a
wake vortex accident is a rare occurrence.5
13)
Nevertheless, because of the potential for danger, pilots are trained to
try and avoid wake turbulence. The standard way to do so --- and the one most at
issue in this litigation --- is to “fly high and land long,” which means fly above the
preceding aircraft’s flight path and land beyond that aircraft’s touch down point on
the runway. For example, the FAA’s Aeronautical Information Manual (AIM) states:
“Pilots should fly at or above the preceding aircraft’s flight path, altering course as
necessary to avoid the area behind and below the generating aircraft” [Ex. 70 at 3
(quoting AIM at 7-3-2)]. In addition, the USAF uses various FAA Advisory Circulars
for training and information purposes [Tr. 109-110], and Advisory Circular No. 9023 provides that: “When landing behind a larger aircraft [on the same runway] stay
at or above the larger aircraft’s final approach flight path. Note touchdown point --land beyond it.” [Ex. 20 at 8]. And the Concept of Operations (CONOPS), which is
“required reading” material for USAF pilots undergoing training in the 319th SOS
[see Tr. 105, 180], provides that when landing behind a larger aircraft on the same
runway, the pilot should: “Stay at or above the larger aircraft’s final approach flight
5
Rivers testified at trial that “you’re more likely to win the Power Ball lottery
than you are to be involved in a wake vortex accident” [Tr. 987].
Case No.: 3:09-cv-395-RV-EMT
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path. Land beyond its touchdown point” [Ex. 21 at 32-33].6
14)
It is important to note, however, that flying above the lead aircraft’s
flight path does not necessarily guarantee that the second aircraft will avoid the
wake vortex because, as previously noted, wakes do not always descend. Instead,
wakes may behave randomly, capriciously, follow no set path, and can sometimes
rise. Indeed, Rivers testified that he once hit a wake vortex while flying behind a C130 that was 500 feet above the preceding aircraft’s flight path and about 7 miles
entrail [Tr. 854-56]. Video of that encounter was introduced and played during trial.
15)
Another way to try and avoid wake turbulence is to maintain adequate
separation between the two aircraft while landing. The idea is that the vortices will
roll off the wingtips of the lead aircraft and dissipate (particularly if the vortices are
low and impacting the ground). At the time of the crash, two minutes of separation
was recommended --- not required --- under the USAF syllabus training manual [see
Tr. 296; 602]. Two minutes is the equivalent of approximately four nautical miles
lateral separation with an aircraft landing speed of 120 knots. However, it was not
normal or standard practice in the 319th SOS to use a clock or stopwatch to time
the separation for landing [Tr. 353-54; 1026, 1038-39]. Instead, the pilots would
use the visual or field separation method, whereby they would first ensure that the
preceding aircraft was on final approach and passed abeam of the second airplane
in the opposite direction, and then continue downwind until the runway threshold
was approximately 45 degrees behind the wing before beginning the turn base leg
and completing the landing pattern. At the time of the crash in this case, this was
the standard method to ensure that there was adequate separation between two
6
There was no specific training or formal program on wake avoidance in the
319th SOS [e.g., Tr. 289-92, 629-30]. Rather, the Air Force’s pilots were generally
told about it during basic flight training and SIMCOM, and they were expected to
be aware of and adhere to the relevant sections of the AIM, advisory circulars, and
CONOPS.
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aircraft landing at Hurlburt Field.7
16)
As with the “fly high and land long” method, the separation method
does not necessarily guarantee that a smaller aircraft following a larger aircraft will
not encounter a wake vortex. Indeed, as previously discussed, wakes are often
unpredictable and can --- depending on various atmospheric conditions and other
factors --- persist for up to several minutes. Rivers testified at trial, for example,
that during the course of his research he encountered “strong” wakes in excess of
6 minutes and up through 8 minutes old [see Tr. 851; 918-19]. In fact, out of the
several thousand wake penetrations that he made in the OV-10, he testified that
the strongest wake that he ever encountered --- and the only one strong enough to
have induced an uncommanded roll in excess of 90 degrees --- was left by a C-130
that was over 6 minutes old [Tr. 871].
17)
In short, given their invisibility, randomness, and unpredictability, the
challenge of avoiding wake vortices can be a difficult --- almost impossible --- task.
The danger of encountering wake turbulence is greatly increased if the following,
smaller aircraft is near to the ground, at a slow airspeed, and already in a rapid rate
of descent --- exactly the conditions set up by flying in a random shallow approach.
The Crash
18)
On the night of July 8, 2008, the weather conditions at Hurlburt Field
were clear, stable, and generally not a problem (at least not in terms of ceiling and
visibility) [Tr. 280, 465, 471]. However, there were consistent light southeasterly
surface --- or “light quartering” --- tail winds of approximately 3 to 5 knots, varying
between 140 and 160 degrees, up to 1,200 feet altitude [see Tr. 465-66]. Notably,
7
The fly high and land long method is independent of the visual separation
method. This is because, if the pilot stays above the flight path of the lead aircraft
and lands beyond its touch down point on the runway, the pilot generally does not
worry about separation as the paths will not (ordinarily) cross, and thus separation
“doesn’t make any difference” [see Tr. 780-81; see also Tr. 406].
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however, the designated runway in use at Hurlburt Field that evening was Runway
36 instead of Runway 18. As a result, the aircraft were not landing into the wind,
but were landing with a light quartering tailwind. Everyone appears to agree in this
case that the atmospheric conditions that night were “ideal” for the formation (and
persistence) of wake turbulence [see, e.g., Tr. 406-07, 471-73; see also Tr. 329].
In fact, in an atmosphere like there was on the night of the mishap, “vortices can
last two or more times longer” than usual [see Tr. 918]. Despite these atmospheric
conditions, the Hurlburt Field tower did not issue a wake turbulence advisory to the
pilots flying that night.
19)
On the night of the crash, Howard was providing PC-12 training for
two Air Force combat pilots: then Captain (now Major) Michael P. Ellis, and then
Captain (now Major) Peter R. McWilliam. The crew was assigned the Aircraft for
their training sortie, and they were given the call sign “Slayer 28.” Maj. Ellis and
Maj. McWilliam were not “student pilots” being introduced to the aircraft. Rather,
they were both highly experienced, combat-tested PC-12/U-28 pilots undergoing
recurrency and proficiency training.8
20)
The scheduled total time for the training mission was four hours, and
it began at about 8:00 p.m. The first part of the mission was flown in daylight, and
it consisted of recurrency training for Maj. McWilliam on short field operations. Maj.
McWilliam, in the left pilot seat, and Howard, instructing from the right seat, flew a
series of landings at other auxiliary airfields near Hurlburt Field.
8
Maj. McWilliam was an aircraft commander in the PC-12 and had logged
approximately 865 hours in the aircraft. Maj. Ellis, meanwhile, had been a PC-12
instructor himself and had logged about 1,700 hours in the aircraft --- which was
actually twice the hours than Howard had logged in the PC-12 [Tr. 792]. He was
undergoing “training” on the night of the crash because he had not flown for five
weeks while he was on a temporary duty assignment for squadron school in
Montgomery, Alabama, and he merely “needed to get recurrent on flight status”
[see Tr. 58-59], so he practiced with instrument approaches and night landings.
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21)
After the sun set, the crew began using night vision goggles (“NVG”),
which were about 6 inches long, similar in style to binoculars, and attached to the
front of their flight helmets. Because NVGs are designed to enable the user to see
in the dark, they are “incompatible” with white light. The presence of white light
can cause a “bloom” effect while using NVGs, which can “wash out” or otherwise
adversely affect visual acuity (such as decreased depth perception). Because even
cockpit lighting can “drive night vision goggles crazy” [Tr. 491], once the crew of
Slayer 28 began using NVGs, they landed the Aircraft and taped up some of the
cockpit displays with film so the lights from the instruments would not “bloom out”
[Tr. 157]. Normally, the use of NVGs requires that the runway lights on the landing
field also be dimmed.
22)
Maj. McWilliam made a few landings wearing NVGs, after which he
and Maj. Ellis “swapped seats” so that Maj. Ellis could take over. Thereafter, Maj.
Ellis flew various instrument approaches and landings at nearby airfields to regain
currency in NVG operations. Howard remained in the right seat as instructor pilot.
Both Maj. Ellis and Howard wore NVGs throughout the rest of the mission. After
the seat swap, Maj. McWilliam sat in the right rear passenger seat of the Aircraft,
where he remained an active member of the crew and assumed two distinct roles:
1) safety observer (i.e., he was to “speak up” if he saw that the flight was at risk
or otherwise following a dangerous path), and 2) student (i.e., he was to try and
become a better pilot by plugging into the communications radio and listening to
the crew as it flew) [see Tr. 158-60].
23)
At around 11:00, the pilots returned to Hurlburt, where Howard and
Maj. Ellis practiced an ILS (Instrument Landing System) approach and remained in
the VFR (Visual Flight Rules) pattern and performed several touch-and-go landings
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[Tr. 68-69].9 Because the crew of Slayer 28 was using NVGs and they wanted to
avoid the blooming effect, they asked the tower to dim the runway lights, but that
request was denied (because there were other aircraft in the landing pattern). The
presence of the bright runway lights caused their goggles to “fog up”, and caused
their “visual acuity [to] significantly drop” [Tr. 317].
24)
There were two other aircraft performing touch-and-go landings in the
pattern that evening. Specifically, there was another PC-12/U-28 with the call sign
“Slayer 25,” and an AC-130U Hercules Gunship with the call sign “Spur 43.” Spur
43 was attached to the 19th Special Operations Squadron (SOS) at Hurlburt Field.
Spur 43 arrived back at Hurlburt after having completed its crew training, and it did
a “Random Steep Approach” from 7000 feet as a series of spirals over the runway,
executed a missed approach, and remained in the landing pattern.
25)
The AC-130U is a large gunship equipped with a 25-millimeter Gatling
gun, a 40-millimeter Bofors cannon, and a very large 105-millimeter Howitzer. The
landing weight of Spur 43 that night was about 125,000 lbs. The AC-130U is not
only much heavier than the Aircraft --- over 16 times heavier --- but it is also much
heavier, and generates stronger wake turbulence, than other models of the C-130
because of its weapons and ammunition.
26)
The AC-130 was equipped with a communications radio on the
military’s UHF frequency. The PC-12, meanwhile, was equipped with a civilian VHF
communications radio. Consequently, the two aircraft could both talk to the tower,
but they could not talk to each other, nor could either aircraft hear what the other
was telling the tower.
27)
Major Meghan Ripple was the acting aircraft commander of Spur 43,
and she was at the controls of the AC-130 at the time of the crash. Spur 43 was
9
A touch-and-go landing is a maneuver that involves landing an aircraft on
the runway and then taking off again without coming to a full stop.
Case No.: 3:09-cv-395-RV-EMT
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doing initial, not continuation, training that night. Shortly after the Aircraft entered
the landing pattern, Maj. Ellis in Slayer 28 asked for clearance to perform a random
shallow approach. The tower denied the request at first --- because it could not be
sequenced in --- so Slayer 28 continued to perform touch-and-go procedures, while
Slayer 25 and Spur 43 did the same. Maj. Ripple testified at trial that during these
various approaches the Aircraft (Slayer 28) “was always abeam the approach end
of the runway one-eighth on the downwind [when starting its landing approach]
which would have been given plenty of spacing” between the two aircraft [see Tr.
247].
28)
During one of these approaches, Slayer 25 (the other PC-12/U-28 in
the pattern) encountered wake turbulence from Spur 43 [Tr. 919; Ex. 70 at 14-15].
Slayer 25 encountered the vortex even though it had maintained adequate spacing
behind the C-130, and even though the “same type of spacing” was sufficient and
“had not been an issue” on prior approaches [see Ex. 70 at 14]. However, on this
particular approach, Slayer 25 encountered Spur 43’s wake vortex, which resulted
in an uncommanded “wing dip” roll of about 30 degrees, before the pilot was able
to add power and go around. Notably, this encounter occurred approximately three
and a half minutes after Spur 43 had most recently passed that location [Tr. 920].
The crew of Slayer 25 did not report this wake turbulence event to the tower or to
the other aircraft flying in the pattern at that time.
29)
At some point, the crew of Spur 43 also requested permission to fly a
random shallow maneuver, and that request was granted. This was (according to
some of the testimony in this case) a somewhat unusual request because AC-130
gunships --- as opposed to other variations of the C-130 --- do not usually practice
or use the random shallow approach [see Tr. 308-09, 338]. The tower told Slayer
28 that its earlier-denied request for the random shallow approach was now being
granted, and it instructed Slayer 28 to follow behind Spur 43. The tower further
told Slayer 28 to make a left 180 degree turn and follow the AC-130 for a random
Case No.: 3:09-cv-395-RV-EMT
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shallow maneuver to Runway 36.10
30)
The pattern that was actually flown by the AC-130U at this time was
a teardrop pattern from the center of the runway, with an extended downwind and
extended final, which disrupted the separation.
31)
Although Maj. Ellis originally requested the random shallow approach,
Howard actually performed it from the right seat, perhaps because the tower had
directed both aircraft to use a right hand landing pattern instead of the customary
left hand pattern. (Slayer 25 was using a left hand landing pattern). Although Spur
43 had called a left base, it actually flew a right base.
32)
As part of Crew Resource Management (CRM), the Air Force teaches
that every member of the crew has the obligation and responsibility to “speak up”
if he sees or perceives something that needs to be changed or corrected by the
command pilot.
33)
In positioning the two aircraft for the random shallow approaches, the
tower instructed Slayer 28 to make several turns to space Slayer 28 several miles
north of the departure end of Runway 36, and the tower then instructed Slayer 28
when to turn south behind Spur 43 to begin Slayer 28’s downwind leg. Slayer 28
then descended from 1200 ft to 600 ft indicated altitude (about 500 AGL) at 200
knots, which was the standard procedure for this approach. Slayer 28 was about
3.4 nautical miles behind Spur 43 at that time. However, unknown to Slayer 28,
Spur 43 had slowed to approximately 150 knots while the PC-12 was following it
downwind at about 200 knots. Thus, the separation was rapidly decreasing.
34)
Howard and Maj. Ellis were able to observe Spur 43 make its teardrop
turn to final. When Maj. Ellis saw Spur 43 begin its approach, Slayer 28 was still
north of the runway.
10
Because the winds at Hurlburt Field that night, although light, were from
the southeast, Runway 18 should have been used instead of Runway 36.
Case No.: 3:09-cv-395-RV-EMT
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35)
Howard and Maj. Ellis could see that Spur 43 was ahead of them on
downwind. However, because they were wearing the NVGs, Spur 43 appeared to
them as “a little green blinking light” at an indeterminate distance ahead, as the
NVGs reduced the ability to determine distance, and it was thus not possible to
determine the rate of closure between the aircraft. However, Howard would not
have performed the random shallow approach maneuver at night (beginning the
landing approach at 200 knots and 500 feet) without NVGs. It would have been
too dangerous as “you can’t see the ground when you’re that low and that fast”
[Tr. 318].
36)
As noted, Spur 43 declared that it was performing a random shallow
approach prior to the mishap. Although one of the principal purposes --- if not the
principal purpose --- of this maneuver is to keep the aircraft in tight to the runway
environment and avoid exposing it to areas outside of that environment that might
harbor hostile threats and forces, Spur 43 flew a very elongated teardrop approach
and greatly extended its downwind. It flew well beyond the airfield boundary, past
the barrier island and south over the Gulf of Mexico, without informing anyone that
it was extending its approach.
37)
Spur 43 also made an unusual (and unexpected to Slayer 28) approach
to Runway 36. It should have flown the downwind leg to Runway 36 at 200 knots,
but it actually flew the downwind leg at about 150 knots, and later accelerated to
about 170 knots as it descended. In addition, it overshot its turn to final, ending up
to the west of the extended runway centerline, then it overcorrected and ended up
to the east of the extended runway centerline, before it finally straightened out and
became established on final and ultimately touched down further down the runway.
This extended teardrop pattern was not the standard or “normal” random shallow
approach [see, e.g., Tr. 312].
38)
Spur 43 also flew a greatly extended and “dragged in” final approach,
flying at approximately 100 feet MSL for an extended period of time. The radar
Case No.: 3:09-cv-395-RV-EMT
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returns also indicate that Spur 43 may have actually climbed in altitude for some of
its approach and was maneuvering with up to 45 degrees angle of bank.
39)
Spur 43 eventually touched down approximately 2000 to 2500 feet
down the runway from the approach end of Runway 36. Such a touch down point
is abnormal. Maj. Ripple testified that she normally and “generally” aimed to touch
down between 500 and 1000 feet from the threshold for a random shallow
approach. Spur 43 thus landed considerably further down the runway than was
“normal.” Landing long is usually the result of being either too fast or too high (or
both) on final. Reconstruction from, and interpretation of, the available radar data
by Dr. Orloff (expert witness for the United States) shows that Spur 43’s airspeed
was slightly over 150 knots and it was maneuvering with almost 45 degree of bank
as it approached the end of the runway. Since the radar returns (from the Eglin Air
Force Base approach radar several miles away) were 4.6 seconds apart, we cannot
precisely determine Spur 43’s actual altitude during these maneuvers but it appears
to have been between about 100 and 150 feet above ground level as it approached
the runway threshold.
40)
The crew of Slayer 28 would have (and did) reasonably expect the
crew of Spur 43 to execute the random shallow approach as it was customarily
performed by C-130’s and other aircraft at Hurlburt Field, including flying at the
customary speed and landing at the customary landing point.11
41)
While Slayer 28 was on the downwind, Howard believed that he saw
Spur 43 touch down on Runway 36 at approximately 1000 feet down the runway.
11
Almost everything that Spur 43 did during its random shallow approach
was unusual. Maj. Ripple testified that certain parts of this non-standard approach
(specifically, the first overshoot) were done intentionally and for training purposes
[see Tr. 225-26]. That may be true, but it does not change the fact that the crew
of Slayer 28 reasonably expected --- in the absence of being advised otherwise --that Spur 43 would fly the approach as it was typically performed at Hurlburt Field
at that time.
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This is where Howard reasonably expected Spur 43 to touch down. Slayer 28 was
approximately abeam the threshold to the east of the runway when Howard made
this observation. Using the NVGs, however, neither he nor Maj. Ellis could actually
see the touch down spot, which as we now know was actually 2000 to 2500 feet
down the runway.
42)
Howard testified that he planned to fly above Spur 43’s flight path
and touch down at a point approximately 1500 feet down the runway, and he
voiced these intentions and observations to Maj. Ellis.12 At this time, Slayer 28 was
beginning its landing approach at 200 knots and its altitude was approximately 500
feet above ground level --- both of which were appropriate for the random shallow
maneuver that Slayer 28 was executing.
43)
Slayer 28 continued on the downwind leg until the threshold of the
runway was about 45 degrees aft of its right wing, then Howard commenced the
turn to base leg and reconfigured the Aircraft by reducing its power to flight idle,
slowing down to approximately 120 knots, and lowering the landing gear and full
flaps. Upon reaching 120 knots, Howard began his right turn to final and began his
descent, aiming (according to Howard) to touch down about 1500 feet beyond the
runway threshold; in other words, approximately 500 feet past the point where he
perceived Spur 43 to have touched down.
44)
The Random Shallow Approach is a tight landing approach that begins
at 500 altitude, instead of the normal 1000 feet. PC-12 pilots in the 319th SOS at
the time of the crash typically tried to make the short final portion of their runway
approach a five degree glide slope and --- although not required by the maneuver --tried to perform it in such a manner that it did not require the addition of power to
complete the landing. Howard, Maj. Ellis, and Maj. McWilliam testified that Howard
12
While Maj. Ellis testified that he did not have any specific recollection of
Howard stating his intentions, he does not dispute or deny that Howard did so.
Case No.: 3:09-cv-395-RV-EMT
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flew the pattern as it was ordinarily done, and that the spacing between Slayer 28
and Spur 43 at the time Slayer 28 was on short final appeared to be about the
same that is normally done in flying behind a C-130.
45)
Slayer 28 was banked almost 30 degrees to the right as it turned from
base to final. As it turned out onto final, the Aircraft rolled from right to left to level
out and end the turn. However, the roll did not stop when Slayer 28 was level.
Instead, the Aircraft experienced a sudden and uncommanded roll to the left, with a
bank angle exceeding 90 degrees --- perhaps as much as 120 degrees. With the
initial roll to the left, the nose tracked down. As the Aircraft rolled steeply left, it
lost almost all vertical lift and began to drop precipitously.
46)
As the left roll started, Howard immediately turned the yoke to apply
full right ailerons, and Maj. McWilliam --- in the rear part of the Aircraft --- recalled
feeling the right rudder being applied. Referring to it as “fight or flight,” Maj. Ellis
instinctively joined Howard on the controls and found them already in the correct
position to recover from the uncommanded roll. Howard and Maj. Ellis also both
applied full power, the standard procedure for initiating a “go-around.” The
corrective inputs that Howard and Maj. Ellis made eventually had an effect, and the
Aircraft began to recover from the left roll. However, it was not able to regain level
flight, and it impacted the ground at a 64 degree left angle of bank.
47)
The Aircraft’s left wingtip hit the ground one foot short of the runway
threshold. After the impact, the Aircraft made a progressive veer to the left, going
off the runway. It came to rest on Echo Taxiway facing east. Fortunately, the crew
was able to escape with no serious injuries.
48)
The Aircraft was not equipped with a flight data recorder or similar
device that measures and records the details of pilot inputs on the controls, the
flight control positions and movements, aircraft pitch, and yaw, or most other
performance data. Therefore, the dynamics of the last moments before the crash
(specifically, when and where the Aircraft impacted the wake turbulence) cannot
Case No.: 3:09-cv-395-RV-EMT
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be precisely determined, and the parties’ accident reconstructionists have wildly
different opinions and calculations. However, the last two minutes of Slayer 28’s
flight were recorded by the Engine Condition Monitoring System (ECMS), and
(when properly adjusted) provide some valuable information, especially for airspeed,
altitude, and engine power settings. All this evidence has to be carefully weighted
and evaluated. There is persuasive evidence in the record --- including the trial and
deposition testimony of the pilots on board and Rivers’ analysis --- suggesting that
the wake encounter began when Slayer 28 was above the path of Spur 43.
49)
Based upon all the evidence in the record, the time between the vortex
encounter and impact was greater than the 6.1 seconds as found by Dr. Winn, and
the Aircraft must have been higher than 75 feet above the ground at the beginning
of that encounter (see note 13, infra). After full review, I find by a preponderance
of the evidence that the uncommanded roll started about 1200 to 1400 feet short
of the runway threshold [Tr. 738], at an altitude of approximately 200 to 300 feet
[Tr. 882-83]. Based on the radar returns and other evidence, this would indeed put
Slayer 28 above the flight path of Spur 43 when it hit the wake vortex.
50)
The parties agree that, when the Aircraft had the vortex encounter,
Slayer 28 was about 46 seconds behind Spur 43 (although Howard thought that he
had about 60 seconds of separation). Nevertheless, at the time of the crash, being
46 seconds behind a larger aircraft was not unusual in the VFR pattern at Hurlburt
Field [Tr. 1026, 1039].
51)
Before the uncommanded roll, the crew of Slayer 28 did not perceive
anything about the flight or the approach that was unsafe or in any way abnormal.
Neither Maj. Ellis nor Maj. McWilliam perceived anything wrong with the way that
Howard was performing the random shallow approach maneuver. It was apparently
being flown as it was always flown. If Maj. Ellis or Maj. McWilliam had observed or
perceived that anything was wrong with the approach, they would have spoken up
Case No.: 3:09-cv-395-RV-EMT
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and voiced their concern to Howard.13
52)
In the moments leading up to the crash, the crew of Slayer 28 did not
deviate or do anything different from the standard method of performing a random
shallow approach at Hurlburt Field (that is, they determined proper separation by
visually ensuring that the lead aircraft in its landing approach had passed abeam in
the opposite direction and then continuing downwind past the runway threshold
until the threshold was about 45 degrees behind the wing before beginning the turn
to base leg and completing the landing pattern).
53)
In addition, Howard attempted to --- and I find that he did --- fly above
Spur 43’s flight path with the expressed intent of touching down beyond Spur 43’s
touch down point.
54)
The Aircraft sustained substantial physical damage as the result of the
13
Arch’s theory of the case (per its expert witness Dr. Winn) has been that
the wake vortex encounter took about 6.1 seconds and occurred 500 feet from the
runway with an intended touch down of 1500 feet at an altitude of 75 feet (with a
pre-existing 1100 per minute rate of descent) and ground speed of 95 knots. I find,
as Avenge has argued, that this scenario is implausible. It would not be the sort of
approach that experienced PC-12 pilots would have undertaken. Lieutenant Colonel
Brian Betts, who had been teaching the random shallow approach at Hurlburt Field
since 2007, testified during the trial that he attempted to fly the PC-12 in the way
that the plaintiff’s theory postulates, and he had to pull out before hitting 75 feet
altitude because he “couldn’t take it any more” as it was “becoming unsafe” and
“well beyond what I considered a normal anything” [see Tr. 1024-25]. It is simply
not credible that experienced PC-12 pilots could have possibly considered such an
approach “normal” (see id. at 1025 (referring to that approach as not “anywhere
close to normal”)]. I agree with Rivers that, if the plaintiff’s theory were correct,
the crew of Slayer 28 would have detected the dangerous situation they were in
long before the uncommanded roll began [Tr. 913]. Given the magnitude of errors
in the radar and altitude data, along with assumptions for reaction times and sink
rates at 90 degrees angle of bank, it is impossible to determine with certainty the
exact parameters of Slayer 28’s approach. Nevertheless, a preponderance of the
evidence negates Dr. Winn’s opinion as to the encounter time, distance from the
runway, and altitude at encounter.
Case No.: 3:09-cv-395-RV-EMT
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crash. The owner filed with Arch an estimate of the costs of repair in the amount
of $2,916,733. Arch seeks to recover the amount it paid out against Avenge and
the United States.
55)
The parties have stipulated that if Arch is entitled to recover in this
subrogation action, its maximum recovery is the difference between the Aircraft’s
fair market value ($3 million) and its post-crash salvage value ($98,400), plus any
applicable interest [see Doc. 155 at ¶¶ 54-57]. Arch’s ability to recover, however,
is necessarily dependent on Howard being negligent.14
II. CONCLUSIONS OF LAW
Jurisdiction is proper in this federal court as the claims asserted against the
United States have been brought under the Federal Tort Claims Act [see 28 U.S.C.
§ 2674], and Arch and Avenge are citizens of different states with an amount in
controversy that exceeds $75,000 [see 28 U.S.C. §1332]. The parties agree that
the substantive law of Florida applies. See 28 U.S.C. § 1652; see also Erie R.R.
Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938).
14
There is a plausible argument to make --- and, indeed, earlier in this case
the argument was made --- that the United States was negligent independent of
Howard. The plaintiff argued, for example, that the United States should not have
selected Runway 36 that evening (because of the light quartering tail winds); the
tower should have issued a wake turbulence advisory; and the crew of Slayer 25
violated regulations by not reporting the turbulence that they encountered earlier
that night. (One could also argue that the United States should not have allowed a
relatively small PC-12 to perform dangerous low altitude nighttime approaches at
the same time as a much larger and heavier AC-130 Hercules gunship). However,
Arch expressly abandoned all these claims during trial and argued that the United
States was negligent only to the limited extent that Maj. McWilliam and Maj. Ellis
violated CRM by failing to “speak up” as Howard negligently attempted the random
shallow maneuver. Consequently, to find in favor of the plaintiff, I must first find
that Howard was negligent. If he was not, it flows therefrom that the United States
was not negligent either. The discussion that follows will thus be limited to Howard
and his alleged negligence.
Case No.: 3:09-cv-395-RV-EMT
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To prevail in a negligence action in Florida, the plaintiff bears the burden of
proof and must establish the well-settled elements of a negligence claim. See, e.g.,
Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 573 (Fla. 2001). Specifically, the
plaintiff must show (1) that the defendant owed a duty of reasonable care to the
plaintiff; (2) that the defendant breached that duty of care; (3) that the breach was
the proximate cause of the injury to the plaintiff; and, (4) that the plaintiff suffered
damages. Hasenfus v. Secord, 962 F.2d 1556, 1559-60 (11th Cir. 1992 (applying
Florida law). Duty and damages have been established.15 The case thus boils down
to whether Howard breached the relevant standard of care and, if so, whether that
breach of care was causally related to the harm that was suffered.
To establish breach, Arch must show that, while Howard was executing the
random shallow maneuver, he violated the standard of care, namely, the care that
“a reasonably careful [pilot] would use under like circumstances.” Daley v. United
States, 792 F.2d 1081, 1085 (11th Cir. 1986) (Florida law). Both Arch and Avenge
agree that a reasonably careful pilot in Howard’s situation would have: “Remain[ed]
above the flight path of the preceding aircraft” [see Tr. 913]. Arch’s expert witness
on the standard of care, Captain Gibson, thus testified that if Howard had remained
above Spur 43’s flight path, he would have met the applicable standard of care and
would not have been negligent [see Tr. 509-10]. Put another way, Arch must prove
that Howard was below Spur 43’s flight path. As previously stated in my findings
15
Avenge does not dispute that the plaintiff sustained damages. However,
Avenge argues that it owed no duty to Arch’s subrogor, SNC, because the United
States was “putative owner” of the Aircraft. Insofar as Avenge had “no knowledge
that anyone other than the USAF was owner of the Aircraft,” it asserts that it had
“no reason to believe that it owed a duty of care to anyone other than the USAF.”
Avenge has not cited to --- nor have I been able to locate --- any case law holding
that an alleged tortfeasor owes no duty to the owner of damaged property unless
the tortfeasor knew the owner’s true and actual identity at the time of the alleged
tort. Avenge’s argument on this point fails.
Case No.: 3:09-cv-395-RV-EMT
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of fact, however, I find by a preponderance of the evidence that the Aircraft was
above Spur 43’s flight path at the time of the vortex encounter. Accordingly, per
Arch’s own expert witness, Howard satisfied the applicable standard of care and
was not negligent.
Arch strongly disputes the contention that Slayer 28 was above Spur 43’s
path at the time of the wake vortex encounter. It contends that Avenge has not
offered any “plausible explanation” or theory for how Slayer 28 encountered the
vortex above Spur 43’s path. There are two problems with this.
First, of course, it is not Avenge’s burden to offer an explanation (plausible
or otherwise) for how the accident happened. It is Arch’s burden to explain how
the accident happened and prove by a preponderance of the evidence that it was
due to Howard’s negligence. This Arch has not done. It has put forth (and is now
bound by) a theory advanced by its expert witness (Dr. Winn) that is implausible,
and ultimately at odds with the laws of physics.
Second, while it was not required to, Avenge actually has put forth (two)
possible theories of how the vortex encounter could have happened above Spur
43’s flight path. Rivers has opined that, rather than hitting the vortex from Spur
43’s last approach, Slayer 28 might have instead encountered the wake from an
earlier approach by Spur 43 about 5 minutes and 40 seconds before.16 Evidence at
trial established that wake vortices can persist for upward of six to eight minutes,
especially in the atmospheric conditions that existed that night, which were “ideal”
16
During its cross examination of Rivers (and during its subsequent closing
argument), Arch highlighted the fact that Rivers had originally calculated the prior
pass as being about 7 minutes earlier. Rivers testified at trial that he had made an
error in his original analysis, so he corrected it. The mere fact that Rivers corrected
his analysis does not carry the weight that Arch apparently believes, as virtually all
of the experts in this case have at one time or another corrected and changed their
analyses.
Case No.: 3:09-cv-395-RV-EMT
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for the formation and persistence of wake turbulence. Arch insists that this theory
is “preposterous,” and it notes that Rivers is the only expert who has mentioned it
as a possibility [see, e.g., Doc. 181 at 1 (highlighting that “[f]our experts” testified
the vortex that caused the crash was generated by the last approach, while Rivers
is the “lone dissent” in suggesting it may have been an earlier one). However, it is
axiomatic that it is not the sheer number of witnesses that counts. Rather, it is the
weight and credibility of those witnesses, as determined by the finder of fact. See
Jacksonville Traction Co. v. Greene, 113 Fla. 316, 317 (Fla. 1933) (“The maxim of
the law is ‘Ponderantur testes, non numerantur,’ witnesses are not to be counted,
but their testimony is to be weighed. It is the general rule in civil cases that a claim
or defense can be established by a single witness. As an incident of their province
to determine facts the credibility of witnesses is peculiarly a matter for the [finders
of fact].”) (internal citation omitted). I found Rivers to be credible and persuasive.
What he has identified as a possible theory of what led to the mishap is plausible;
or, at the very least, it cannot be dismissed as implausible. And in any event, it is
certainly no less plausible than Arch’s theory behind the crash. See note 13, supra.
The evidence at trial was at worst “evenly balanced” and equipoised on this issue;
and, in such a situation, the party that carries the burden of proof --- Arch here --“must lose”. See Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 137 n.9,
117 S. Ct. 1953, 1963 n.9 (1997).17
Another possible explanation for how Slayer 28 could have hit the vortex
above Spur 43’s path is the wake could have risen. Evidence at trial established
17
During the course of explaining why his possible theory is the more likely,
Rivers testified that, based on his “well over a thousand” penetrations behind a C130, “no wake that I ever saw . . . grew to a diameter large enough in 46 seconds,
especially in that type of atmosphere in any altitude . . . to cause that upset” [see
Tr. 936-37; see also Tr. 876]. I agree that it is highly unlikely for a wake vortex to
expand so quickly.
Case No.: 3:09-cv-395-RV-EMT
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that wakes behave randomly, unpredictably, and capriciously. This is (presumably)
particularly so when the generating aircraft is itself maneuvering in all three axis
unpredictably. It is not implausible to conclude --- indeed, it is entirely possible --that, in the atmosphere that night, the wake vortex created by Spur 43 may have
risen above its (extremely unusual) flight path. Although there is no test data in the
record to reveal how these rather extreme maneuverings [see Ex. 73 at 8 (Fig. 4 of
Dr. Orloff’s report)] might affect the wingtip vortices, it would seem reasonable to
conclude that there could be a significant effect. This could easily cause the wake
to rise if the right combination of aileron, rudder, and elevator was used.18
Even if it is assumed that Rivers is wrong and that the other experts are right
(and that Slayer 28 hit the wake generated by Spur 43’s preceding pass, and that it
did so because Howard failed to fly above the flight path) that does not necessarily
mean Howard was negligent. During the approach, Howard stated that he intended
to fly above the flight path of Spur 43. The fact that he (arguably) did not execute
his plan successfully does not automatically mean that he violated the standard of
care. See Kraver v. Edelson, 55 So.2d 179, 180 (Fla. 1951) (“[n]ot every accident
is the result of negligence’”); Belden v. Lynch, 126 So.2d 578, 581 (Fla. 2d DCA
1961) (“negligence may not be inferred from the mere happening of an accident
alone”). First, it appears that Spur 43’s flight path and touch down point may not
have been where a reasonably careful and experienced pilot would have expected
them to be. Second, in determining whether Howard failed to use the care that “a
reasonably careful [pilot] would use under like circumstances” [Daley, supra, 792
F.2d at 1085], it is, of course, necessary to carefully consider the “circumstances”
18
I note once again that Rivers testified at trial --- and introduced a video to
support --- that he had previously hit a wake vortex while following behind a C-130
that was 500 feet above the flight path and approximately 7 miles entrail [Tr. 85556].
Case No.: 3:09-cv-395-RV-EMT
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under which he was flying at the time of the mishap. Cf. McMahon v. Presidential
Airways Inc., 502 F.3d 1331, 1365 (11th Cir. 2007) (explaining that the “flexible
standards of negligence law” allow courts to apply different standards of care to
“varying fact situations”; thus, a different standard of care might apply to a pilot
“flying over Kansas on a sunny day” as opposed to “flying over Afghanistan during
wartime”). The circumstances under which Howard was flying and which led up to
the crash include:
(1) the light quartering tail winds;
(2) the use of Runway 36;
(3) the tower not issuing a wake turbulence advisory;
(4) the crew practicing a random shallow approach (itself a combat
maneuver) at night (with another much larger aircraft in the pattern) while
wearing NVGs;
(5) the control tower refused to dim the runway lights;
(6) Slayer 25 not reporting its earlier vortex encounter behind Spur 43;
(7) the fact that Spur 43 --- which, because of its mission as a large gunship,
does not typically fly random shallow approaches at all --- flew an unusual
and non-standard random shallow approach;
(8) the fact that Spur 43 and the Aircraft were on different radio frequencies
and thus could not communicate with one another;
(9) the fact that Spur 43 had flown an extended final and landed long was
not communicated to the tower or to Slayer 28;
(10) the hazardous mix at night of the two PC-12s (one flying a left pattern
and another a right pattern) and the AC-130 in a right landing pattern, with
two of them doing random shallow approaches; and
(11) the fact that Slayer 28 hit the turbulence at the precise point in the
vortex where it was capable of rolling the Aircraft.
Case No.: 3:09-cv-395-RV-EMT
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In short, there are many circumstances and events that may have combined to
contribute to the mishap.19
19
While most of the trial focused on Howard’s alleged negligence for failing
to “fly high and land long”, there was some suggestion that Howard should not
have been only 46 seconds behind Spur 43, and that the accident would not have
happened if he had maintained 2 minutes separation [see Tr. 388; 405-06 (opining
that the mishap would have been “very unlikely” if Howard had been two minutes
entrail) (testimony of Dr. Winn)]. This argument fails for three reasons. First, as Dr.
Winn further testified, if the Aircraft was above Spur 43’s flight path at the time of
the wake vortex encounter, it did not matter whether Howard was 46 seconds (or
2 minutes) entrail [id. at 406]. As I previously stated, Arch has failed to prove that
Howard was below Spur 43's path. Moreover, even if the Aircraft was below Spur
43’s path, it was not negligence to follow 46 seconds behind Spur 43 instead of
maintaining the recommended --- not required --- two minutes separation. Howard
flew the approach in the same manner that it was always flown in the 319th SOS.
See Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180-81 (5th
Cir. 1975) (noting in aviation negligence case that the customs and practices in a
particular group or organization are evidence of the relevant standard of care). The
mere fact that the spacing may have arguably proved inadequate on this occasion
does not negligence make. (Of course, separation for a random shallow approach
has to be established on the downwind entry. To do the approach correctly, it has
to be tight from the 180 position to touch down, so extending downwind for
separation would negate the purpose. Thus, when the Aircraft turned downwind
behind Spur 43 they were about 3.4 nautical miles apart --- the equivalent of 1
minute and 42 seconds at the assumed approach speeds of 120 knots. The fact
that the two aircraft did not maintain that separation was due to Spur 43’s nonstandard approach and not to anything Howard did.) And lastly, even if I were to
assume (contrary to the evidence) that it somehow fell below the standard of care
for Howard to use the visual (field) separation method instead of precisely clocking
two minutes separation, Arch has not shown that this breach was causally related
to the mishap. There is no reason to believe --- and considerable reason to doubt --that the crash could have been avoided if Howard had been able to extend the final
separation an extra minute and 14 seconds. As has been noted several times now,
wake vortices can persist for up to several minutes, particularly in atmospheric
conditions like existed on the night of the mishap. Indeed, Slayer 25 encountered
wake turbulence generated by Spur 43 earlier in the evening that was significant
enough to force an uncommanded 30 degree wing dip, even though there was over
three and a half minutes of separation between those aircraft at that time. Arch has
Case No.: 3:09-cv-395-RV-EMT
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After close and careful review of all the evidence, I conclude that Arch has
not carried its burden of establishing that Howard deviated from the “reasonably
careful pilot” standard of care. By all accounts, Howard was a very well regarded
and experienced pilot. He testified --- and I found his testimony credible, and Maj.
Ellis and Maj. McWilliam generally confirmed --- that he flew the random shallow
approach maneuver that night as he and other pilots in the 319th SOS at Hurlburt
Field were trained to do and in the standardized manner and that, before the wake
vortex encounter, everything appeared to be normal. The fact that everything was
not normal in hindsight does not, by itself, prove breach of the reasonably careful
pilot standard of care. Sometimes an accident is just that: an accident. See Kraver,
supra, 55 So.2d at 180; Belden, supra, 126 So.2d at 581.
As there was no breach of the standard of care, there can be no causation.
See Greene v. Flewelling, 366 So.2d 777, 780 (Fla. 2d DCA 1978) (describing as
“rudimentary” the notion that the plaintiff must show that there was a violation of
the applicable standard of care that was the cause of the claimed damages).
In rendering this decision, I do not mean to suggest or imply that, because
wake vortices can often be random and unpredictable, a pilot involved in a wakerelated crash could never be found to have been negligent. I merely find that, on
the unique facts of this particular case, the plaintiff has not carried its burden of
proof in establishing breach of the duty of care and causation, as opposed to an
not established that Howard’s failure to keep two minutes of separation, assuming
arguendo it was negligent, was causally related to the mishap. See, e.g., Stahl v.
Metropolitan Dade Cty, 438 So.2d 14 (Fla. 3d DCA 1983) (explaining that Florida
courts follow the “but for” causation test, i.e., there must be such a natural, direct,
and continuous sequence between the negligent act or omission and the injury that
it can be said that “but for” the negligent act or omission the injury would not have
occurred).
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unfortunate and unavoidable accident.20
III. CONCLUSION
In closing, I note that there are many unanswered questions about the crash,
and there is evidence of record that could support a number of possible outcomes
in this case. There is evidence that Howard was negligent, and there is evidence
that the United States was negligent. And there is also evidence that neither was
negligent and that the mishap was the result of a “perfect storm” of unfortunate
and unforseen circumstances. Some impressive and heavily-credentialed witnesses
testified in support of these various points of view. After careful review, I find that
a preponderance of the evidence does not support the plaintiff’s claims, and
because the plaintiff carries the burden of proof, judgment must be entered in favor
of the defendants.21
20
Obviously, as has been argued throughout this case, the crash could have
been avoided if Howard had timely executed a “go-around” before encountering the
wake vortex. However, the question is not whether Howard could have avoided the
crash by abandoning the approach altogether. The question is whether a reasonably
careful pilot in his situation --- based on the circumstances that were known or
reasonably should have been known to him at that time --- would have thought it
necessary to do so, or would have been able to do so. Cf. Smith v. Illinois Central
R.R. Co., 486 F.2d 943, 945-46 & n.1 (5th Cir. 1973) (approving the following jury
instruction: “Lastly, in connection with negligence and proximate cause the mere
happening of an accident does not necessarily mean that someone is negligent. In
law we recognize what are termed unavoidable or inevitable accidents. These terms
do not mean literally that it was not possible for such an accident to be avoided.
They simply denote an accident that occurred without having been caused by
negligence, even though such accident should have been avoided by the exercise of
exceptional foresight, skill or caution, still no one may be liable for injuries resulting
from it.”). I conclude that no reasonably careful military pilot in Howard’s situation
would have thought it necessary to completely abandon the approach.
21
As I have ruled in favor of the defendants, I need not reach certain of the
disputed issues of law that were identified by the parties before and during trial,
e.g., whether Howard was a government employee or independent contractor, etc.
Case No.: 3:09-cv-395-RV-EMT
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For the reasons stated above, the Clerk shall enter judgment in favor of the
defendants and against the plaintiff, together with taxable costs.
DONE and ORDERED this 9th day of July, 2013.
/s/ Roger Vinson
ROGER VINSON
Senior United States District Judge
Case No.: 3:09-cv-395-RV-EMT
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