flying in instrument conditions without having an IFR rating, Mr. Peters did not act with reasonable care for his own safety.
67. Mr. Peters' own negligence was a substantial factor in causing accident.
CONCLUSIONS OF LAW
1. This Court has jurisdiction of the parties and subject matter of this dispute.
2. Venue for this action lies in the Eastern District of Pennsylvania.
3. This action was brought pursuant to the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671, et seq.
4. Under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b) and 2671 et seq., the law of the place where the alleged act or omission occurred is applicable. In this case, the Virginia law on negligence and contributory negligence applies.
5. In Virginia, the ordinary rules of negligence and due care apply in aviation cases. Mackey v. Miller, 221 Va. 715, 273 S.E.2d 550 (1981).
6. Virginia law defines proximate cause as that act or omission which in natural and continuous sequence, unbroken by an efficient, intervening cause, produces the event and without which the event would not have occurred. Wells v. Whitaker, 207 Va. 616, 151 S.E.2d 422 (1966).
7. In order for negligence to be a proximate cause of an injury, it is not necessary for a defendant to foresee the precise injury; it is sufficient if an ordinary, careful, prudent person ought, under the circumstances, to have foreseen that an injury might probably result from his negligence. Sawyer v. United States, 465 F. Supp. 282 (E.D.Va.1978).
8. Under Virginia law, contributory negligence is a bar to recovery. Mackey v. Miller, 221 Va. 715, 273 S.E.2d 550 (1981). The plaintiff's negligence will not bar his recovery if it contributed only slightly or trivially to his injury or was a remote cause of injury. To bar recovery, plaintiff's negligence must be a substantial factor in causing his injury. Simpson v. Lambert Brothers Division -- Vulcan Materials Co., 362 F.2d 731 (4th Cir.1966). Satisfaction of the "but for" test is not sufficient. Id.
9. The defendant has the burden of proving contributory negligence by a preponderance of the evidence. Washington v. Schuyler, 433 F.2d 362 (4th Cir.1970). Virginia law presumes that an injured party exercised ordinary care for his own safety. Elkins v. United States, 429 F.2d 297 (4th Cir.1970).
10. The test for contributory negligence in Virginia is whether the plaintiff, in the exercise of reasonable care, should have known he was in a situation of peril. Reed v. Carlyle and Martin, Inc., 214 Va. 592, 202 S.E.2d 874, cert. denied, 419 U.S. 859, 95 S. Ct. 108, 42 L. Ed. 2d 93 (1974). Mr. Peters should have known he was entering IFR conditions and turned back.
11. Under Virginia law, contributory negligence in responding to danger is not a bar where the cause of the accident was that defendant failed to warn plaintiff of the danger in question or gave an insufficient warning in breach of a duty. Briggs v. Zotos International, Inc., 357 F. Supp. 89 (E.D.Va.1973); Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4th Cir.1962). In this case, however, Mr. Bradley's weather briefing was sufficient to warn the plaintiff of the likelihood of bad weather.
12. Michael Peters, the pilot, had responsibility for the operation of his aircraft. 14 C.F.R. § 91.3; Spaulding v. United States, 455 F.2d 222 (9th Cir.1972).
13. When the weather began to deteriorate, Mr. Peters knew or should have known that he would encounter IFR conditions. A pilot "cannot ignore the weather information he has been given or disregard the weather conditions he sees around him." Spaulding v. United States, 455 F.2d at 227. The decedent's "penetration into the clouds knowing that he could not navigate visually within them was as imprudent an act as diving into mid-ocean without knowing how to swim. . . ." Black v. United States, 441 F.2d 741, 745 (5th Cir.1971).
14. Michael Peters was negligent in not allowing the FSS briefer to finish his presentation and in failing to execute a 180 degree turn when the weather began to deteriorate.
15. If a VFR pilot is in control of his aircraft, it is negligent for him to operate his aircraft in instrument weather conditions. 14 C.F.R. § 61.3; Gatenby v. Altoona Aviation Corp., 407 F.2d 443 (3d Cir.1968); Travelers Insurance Co. v. Riggs, 671 F.2d 810 (4th Cir.1982). Mr. Peters was in control of N7650D when he entered IFR weather. His violation of 14 C.F.R. § 61.3 constituted negligence.
15A. Michael Peters' negligent acts were the sole proximate cause of the crash of N7650D.
16. Marquette Bradley's weather briefing was not negligent. Mr. Peters was in a hurry, interrupted the briefing and terminated the conversation before Mr. Bradley could finish his presentation.
17. Mr. Bradley gave sufficient weather information to Mr. Peters. Mr. Bradley's briefing was not a substantial factor in causing Mr. Peters' accident.
18. William Maki acted in accordance with the provisions of the FAA's Air Traffic Controllers' Handbook.
19. "No duty is imposed upon controllers to warn pilots not to enter IFR weather conditions without a clearance, nor are they required to foresee or anticipate the unlawful or negligent . . . acts of pilots." Baker v. United States, 417 F. Supp. 471, 488 (W.D.Wash.1975).
20. William Maki gave sufficient information about the weather conditions at Charlottesville Airport to decedent.
21. Mr. Maki did not delay in providing assistance for Mr. Peters. While engaged in his duty of separating IFR aircraft within five miles of the Charlottesville Airport, Mr. Maki responded quickly and efficiently to Mr. Peters' requests. Mr. Peters had final responsibility for operating his aircraft. 14 C.F.R. § 91.3; Spaulding v. U.S., 455 F.2d 222 (9th Cir.1972). William Maki was not negligent and his conduct was not a substantial factor in causing Mr. Peters' accident.
This suit on behalf of the estate of the pilot of a small plane seeks damages against the United States for the negligence of its employees. The plaintiffs claim that FAA personnel failed to use due care in providing a pre-flight weather briefing and in communicating with the pilot shortly before the crash. Virginia law applies and would bar the claim if the pilot's contributory negligence was a substantial factor in causing his accident. I find that the weather briefing was adequate under the circumstances, that the handling of the flight by the air traffic controller before the crash was diligent and that the cause of the crash was the pilot's own negligence in flying into bad weather instead of turning around.
On November 25, 1979 between 6:07 P.M. and 6:09 P.M. the weather briefer in a Virginia Flight Service Station gave the pilot information by telephone that the weather conditions for flying from the Washington, D.C. area to Lynchburg, Virginia were marginal for visual (VFR), as opposed to instrument (IFR) flying conditions. This pilot was not qualified for instrument flying. The forecast was that the marginal weather conditions would worsen after 9 P.M. The pilot's reply was, "o'boy I think we'd better get down there quick." The briefer's forecast of marginal conditions at Lynchburg before 9 P.M. (a ceiling of three thousand feet broken with clouds, occasional visibility of 3 miles, light rain showers) was an accurate summary of the information available to the weather briefer. The Charlottesville weather observations which were not given to the pilot essentially repeated the gist of the information conveyed that pre-9 P.M. flying conditions were marginal. The 1200 foot ceiling reported at Charlottesville was still above the 1000 foot minimum for visual flight. The multi-state area forecast was more general and less recent than the specific information given. In addition, the briefer's forecast for worsening conditions after 9 P.M. covered the same substance as the area forecast. The pilot interrupted and cut short the weather briefer in his hurry. The briefer's failure to convey the Charlottesville and multi-state area reports was not a substantial factor in causing the crash.
The pilot's next communication was with the Charlottesville, Virginia air traffic control tower between approximately 7:04 and 7:07 P.M. The air traffic controller gave the pilot prompt and timely weather and safety information. He acted quickly and efficiently to put the plane into radar contact with the District of Columbia area. The tower told the pilot that the ceiling at Charlottesville was 1000 feet overcast within 15 seconds after the pilot asked for Charlottesville visibility. A reasonable pilot would understand this to mean he could not land. Additional information that there was "fog in all quadrants" would not have added substantially to the adverse weather information conveyed. The failure to convey additional information was not a substantial factor in causing the accident.
At approximately 7:08 P.M., the pilot, spatially disoriented from flying in the clouds, dove nose first into the ground. The pilot did not act with reasonable care for his own safety under the circumstances. He rushed the weather briefing, failed to retreat to the Washington area when he knew that the weather was worse than predicted, and flew into IFR weather conditions without having instrument capability.
Plaintiff's principal expert witness exaggerated both his qualifications and his substantive testimony that "once he [Mr. Peters] departed, he is dead." His qualifications as a pilot expert are doubtful. His testimony about the significance of the weather briefing failed to recognize a pilot's responsibility to exercise reasonable care for his own safety when he is told that weather conditions for flying to his destination are marginal and expected to deteriorate.
Defendant's expert witnesses were believable. While recognizing that the weather briefing could have been more detailed, the information provided was adequate for VFR flight. The pilot was trying to beat the weather and was operating in conditions in which he was not qualified to fly. The pilot's own negligence was a substantial factor in causing the accident.
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