Editorial
Front Page - Friday, October 02, 2009
Eighth Circuit Recent Decisions
Wright, Lindsey & Jennings, LLP
Glorvigen v. Cirrus Design Corporation, United States Court of Appeals for the Eighth Circuit, No. 08-2680 (September 16, 2009).
In this case, brought under the Federal Tort Claims Act, the Court of Appeals considered the scope of the duties that federally employed flight service stations (FSS) specialists owe to pilots and passengers in negligence actions alleging a failure to properly apprise pilots of weather conditions and forecasts.
In January of 2003, a Cirrus SR-22 aircraft crashed near Hill City, Minnesota, killing the pilot and owner of the aircraft and his passenger. Their trustees appointed under the Minnesota wrongful-death statute brought claims against Cirrus, the airplane manufacturer, alleging, among other things, that Cirrus had improperly designed the airplane and had failed to instruct Mr. Prokop properly in its operation. Cirrus then brought a third-party complaint against two federally employed flight service station (“FSS”) specialists for negligence, alleging, among other things, that they were at fault for failing negligently to apprise the pilot adequately of the weather conditions and weather forecast the morning of the crash. Under the Federal Tort Claims Act, the United States certified that these specialists had been acting in the scope of their employment at the time of the incident and, based on that certification, the court substituted the United States as the sole third-party defendant and removed the case to federal court.
After the case was removed to federal court, the United States moved for summary judgment, arguing that the FSS specialists had not been negligent in briefing the pilot and that, even if the specialist was negligent, that negligence did not cause the crash. The district court granted the United States’s motion for summary judgment and remanded the remaining issues to the Minnesota state courts.
On appeal, the Court of Appeals found that although state law governs in FTCA cases, the Minnesota courts have not had an opportunity to analyze the scope of the duties that FSS specialists owe to pilots and passengers. Therefore, the Court looked primarily to other federal cases for guidance on this question and held that FSS specialists have a duty to provide pilots with an accurate and complete summary of the relevant weather information. In determining whether the specialists breached that duty, the court noted that although an FSS specialist must provide “accurate and complete” weather information, a specialist does not need to recite verbatim the contents of every weather report before him. In fact, the Court noted that a verbatim recitation would likely overwhelm a pilot with information, thereby confusing rather than clarifying the prevailing weather conditions. Therefore, the Court found that the duty to provide “accurate and complete” means that the specialist must provide a complete synthesis or summary of the relevant weather information. Inevitably, therefore, some information will be left out. However, as a synthesis, it must be “accurate and complete” with regards to the information that would appropriately be included in a summary report. The material information must be included, but additional details or repetitive facts may be left out.
Against this standard, the Court found that the undisputed facts established that the specialists adequately briefed the pilot of the relevant weather information the morning of the flight. The specialists apprised the pilot of the possibility that he would encounter IFR conditions, accurately conveyed the current conditions and forecast for the airport where the flight began, provided the current conditions and forecast for the destination airport, and provided additional information about conditions along the intended route. Thereafter when an AIRMET Sierra, which indicated occasional IFR conditions, the specialist conveyed the information contained in the AIRMET Sierra by telling the pilot that there was an AIRMET for the area warning of “the potential for some i f r.” The court found that the specialist did not need to state explicitly that this AIRMET called for occasional ceilings below a thousand feet and visibility below three miles because pilots should be familiar with the VFR cutoffs, and it would be gratuitous and counter-productive to demand that FSS specialists reiterate those cutoffs during every VFR weather briefing. The Court further found that the specialist’s statement that there was a “potential for” IFR conditions sufficiently conveyed the warning of a greater than 50 percent chance of IFR conditions over the area.
With regard to a second briefing upon a call from the pilot, the Court held that an abbreviated briefing intended to update a prior briefing should be focused, to the extent possible, on appreciable changes in the meteorological and aeronautical conditions since the previous briefing.” If the pilot requests specific information only, the specialist must provide that information, and in addition must “inform the pilot of the existence of any adverse conditions, reported or forecast. Because the pilot requested an update briefing as well as specific information about current conditions and the availability of any pilot reports, the specialist was required to inform the pilot of any significant changes in forecast or current conditions that arose since his last briefing, describe the current conditions, inform him of any relevant pilot reports, and to describe any adverse conditions that were present or forecast from Grand Rapids to St. Cloud or reported in any pilot reports. The Court held that the second specialist adequately fulfilled these responsibilities and in fact may have provided the pilot more information than required.
Finally, the Court found that neither Specialist was negligent for failing to give the pilot a “Visual Flight Not Recommended” (“VNR”) Warning. The Federal Aviation Administration instructs FSS specialists to give a VNR recommendation when, “in [their] judgment, [conditions] would make flight under visual rules doubtful.” See Order 7110.10P, ¶ 3-2-1(b)(2), Aplt. App. at 655. This is followed by a note stating that “[t]his recommendation is advisory in nature. The decision as to whether the flight can be conducted safely rests solely with the pilot.” The Court held that that neither specialist breached a duty to provide a VNR recommendation because the current and forecast weather conditions that morning were not so extreme that a failure to give a VNR recommendation constituted negligence.
Because the claims under the only federal claims were dismissed were dismissed, the Court found that resolution of the remaining claims depends solely on a determination of state law, the Court should decline to exercise jurisdiction and remand the remaining claims to the state court.
These summaries are provided as a service to the bar by the attorneys of Wright, Lindsey & Jennings LLP, Little Rock and Rogers, Ark.
Share
|