Jackson v. United States

• Court: Court of Appeals for the First Circuit
• Decided: September 17, 1998
• Docket: 98-1043
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1043


BARBARA A. JACKSON, ADMINISTRATRIX, ETC.,



                      Plaintiff, Appellant,



                                v.



                    UNITED STATES OF AMERICA,



                       Defendant, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



        [Hon. George A. O'Toole, Jr., U.S. District Judge]


Before



            Selya, Boudin and Lipez, Circuit Judges.


Anthony Tarricone and Camille F. Sarrouf, with whom Joseph P.

Musacchio  and Melick & Porter, LLP were on brief, for appellant.

     Luke B. Marsh, Attorney, Civil Division, United States

Department of Justice, with whom Frank W. Hunger, Assistant

Attorney General, was on brief, for appellee.


September 16, 1998


SELYA, Circuit Judge.  Plaintiff-appellant Barbara A.

Jackson, acting in her capacity as administratrix of her husband's

estate, sued the United States under the Federal Tort Claims Act

(FTCA), 28 U.S.C.  1346(b), 2671-2680 (1994), alleging that the

negligence of three Federal Aviation Administration (FAA) employees

in failing to furnish appropriate weather advisories proximately

caused an aircraft flown by her late husband to crash.  Following

a bench trial, the district court wrote a thoughtful rescript

explaining why the plaintiff should take nothing.  See Jackson v.

United States, 983 F. Supp. 273 (D. Mass. 1997).  The plaintiff

appeals on various grounds.

  The facts surrounding the tragic incident that took the

life of Cephas W. Jackson, Jr., a respected physician and

recreational pilot, are chronicled in the district court's opinion,

see id. at 276-79, and it would be pleonastic to rehearse them

here.  Thus, we offer only a thumbnail sketch, referring the reader

who thirsts for further detail to the opinion below.

  On March 26, 1992, Jackson, desirous of flying from

Little Rock, Arkansas, to Charleston, West Virginia, and then on to

Massachusetts, requested and received meteorological information,

including a so-called "outlook briefing," from the FAA's Jonesboro,

Arkansas, Automated Flight Service Station.  The next day, he again

called Jonesboro and requested a pre-flight weather briefing. 

Flight Services Specialist Robert Eldridge obliged.  See id. at

276-77 (describing contents of the pre-flight briefing).  After

receiving this briefing, Jackson filed a flight plan and departed

from Little Rock, bound for Charleston, in his single-engine

aircraft (a Mooney M-20M).  He had radio contacts with a number of

air traffic control facilities as he flew over Tennessee and

Kentucky.  See id. at 277 (describing same).  As he approached

Charleston, he engaged in an extensive dialogue with a Charleston-

based air traffic controller, Mark Ulanch.  See id. at 278-79

(describing that colloquy).  The fatal crash occurred in the course

of this approach.

  We have often preached, but perhaps too seldom practiced,

the philosophy that "when a lower court produces a comprehensive,

well-reasoned decision, an appellate court should refrain from

writing at length to no other end than to hear its own words

resonate."  Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d

218, 220 (1st Cir. 1996).  This case fits the Lawton model. 

Accordingly, we resist the temptation to repastinate ground that is

already well-ploughed and affirm principally on the basis of the

district court's opinion.  We add only four sets of comments.

  First:  Where, as here, the district court conducts a

bench trial and serves as the factfinder, its determinations of

negligence, proximate cause, and similar issues are entitled to

considerable deference.  "[W]e consistently have reviewed

adjudications of negligence arising in the course of bench trials

by reference to the clearly erroneous test."  Sierra Fria Corp. v.

Evans, 127 F.3d 175, 181 (1st Cir. 1997).  This deferential

standard acknowledges that, unlike an appellate tribunal, the trial

court "sees and hears the witnesses at first hand and comes to

appreciate the nuances of the litigation in a way which appellate

courts cannot hope to replicate."  Cumpiano v. Banco Santander

P.R., 902 F.2d 148, 152 (1st Cir. 1990).  Thus, a trial court's

factual determinations will be set aside only if, "after careful

evaluation of the evidence, we are left with an abiding conviction

that those determinations and findings are simply wrong."  State

Police Ass'n v. Commissioner, 125 F.3d 1, 5 (1st Cir. 1997).

  This standard is critically important here.  At many

junctures, more than one plausible inference can be drawn from the

underlying facts.  On clear-error review, we cannot second-guess

the trier's choices among those competing inferences even if, had

we been sitting as triers of the facts, we might have arrived at a

different set of judgments.  See Anderson v. City of Bessemer City,

470 U.S. 564, 573 (1985).

  Second:  The appellant argued below that Eldridge, the

FAA employee who provided the decedent's pre-flight briefing, was

guilty of negligence because he failed to incorporate specific

weather advisories from the National Weather Service into that

briefing.  The trial court concluded that, although Eldridge's

pre-flight briefing did not specifically mention the advisories by

name, it comprehensively summarized the weather conditions that

Jackson could expect to encounter during his flight.  See Jackson,

983 F. Supp. at 280.  Accordingly, the court determined that

Eldridge was not negligent.  See id.

     In this venue, the appellant attempts an end-run around

the strictures of clear-error review by positing the existence of

an error of law.  To that end, she argues that Eldridge's failure

to mention the AIRMETs constituted negligence per se.  In mounting

this argument, she points to paragraphs 3-10(a) & (b) of the Flight

Services Handbook (the Handbook), a procedural guide issued by the

FAA in the interests of ensuring flight safety.  These paragraphs

limn the information a flight services specialist should gather

preparatory to delivering a pre-flight briefing and the procedures

to be followed in transmitting this data to pilots.  Many of these

steps are couched in mandatory terms.  The appellant now contends,

for the first time, that the court had no option but to find

Eldridge guilty of negligence because he violated the obligatory

Handbook provisions.

     It is an abecedarian rule that litigants ordinarily

cannot shift legal theories in mid-stream: "If  any principle is

settled in this circuit, it is that, absent the most extraordinary

circumstances, legal theories not raised squarely in the lower

court cannot be broached for the first time on appeal."  Teamsters,

Chauffeurs, Warehousemen and Helpers Union, Local No. 59 v.

Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992).  Inasmuch

as the appellant never advanced a negligence per se theory below,

this principle has obvious applicability here.

     The appellant offers two intertwined reasons why we

should excuse her procedural default.  First, she suggests that, in

a bench trial at which the district court does not require the

parties to submit written requests for conclusions of law, a

litigant should not be penalized for failing spontaneously to

articulate her position on the relevant legal issues.  Second, she

contends that, regardless of her default, the district court had an

unflagging duty to divine, interpret, and apply the governing legal

standards correctly.  Neither reason is persuasive.

     A trial court, sitting jury-waived, may   but need not  

ask for suggested findings and conclusions.  Either way, the rule

is straightforward: with few exceptions (none applicable here), a

party who, having adequate opportunity, fails to alert the trial

court to a particular legal theory cannot thereafter be heard to

complain that the court overlooked that theory.  See, e.g.,

Martinez v. Colon, 54 F.3d 980, 987 (1st Cir. 1995); Teamsters, 953

F.2d at 21; McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13, 22

(1st Cir. 1991).  This is as it should be.  Trial judges are not

mind-readers, and they should not be expected to do counsel's

homework.  

     Here, moreover, the appellant had a second opportunity to

bring her theory to the trial judge's attention.  Under Fed. R.

Civ. P. 52(a), when an action is tried upon the facts without a

jury, "the court shall find the facts specially and state

separately its conclusions of law."  A litigant who believes that

those findings or conclusions are erroneous in any respect may file

a motion to alter or amend the judgment no later than ten days

after its entry.  See Fed. R. Civ. P. 52(b).  Thus, if the

appellant believed that the district court erred in failing to

apply the doctrine of negligence per se, she could have brought the

matter to the court's attention by way of Rule 52(b).  See, e.g.,

National Metal Finishing Co. v. Barclays American/Commercial, Inc.,

899 F.2d 119, 122 (1st Cir. 1990).  She did not do so.  We see no

reason to excuse her twice-repeated procedural default.

     We add that, in this case, all roads lead to Rome. 

Because the FTCA incorporates the substantive law of the place of

the harm, see 28 U.S.C.  1346(b), and the fatal crash occurred in

West Virginia, we look to the law of that jurisdiction for the rule

of decision.  See FDIC v. Meyer, 510 U.S. 471, 478 (1994); Reillyv. United States, 863 F.2d 149, 161 (1st Cir. 1988).  Under West

Virginia law, an individual's noncompliance with a safety

regulation is not negligence per se, but, rather, as the district

court found in this case, it is at most some evidence of

negligence.  See Waugh v. Traxler, 412 S.E.2d 756, 759-60 (W. Va.

1991) (holding that a violation of a safety statute is prima facie

negligence and not negligence per se); Miller v. Warren, 390 S.E.2d

207, 208-09 (W. Va. 1990) (explaining that noncompliance with a

fire code or similar regulation constitutes no more than prima

facie negligence).  The appellant's hypothesis that a failure to

comply strictly with the Handbook provisions constitutes negligence

per se under West Virginia law is, therefore, legally incorrect.

     Third:  The appellant's fallback position is no more

fruitful.  She claims that, even if the district court applied an

appropriate legal standard, it committed clear error in failing to

find Eldridge negligent.  This claim, although couched in the idiom

of clear-error review, is no more than a thinly-veiled invitation

to have us substitute our collective judgment for that of the

district court.  We decline the invitation.

     Judge O'Toole heard fifteen days of testimony, much of it

pointing in different directions.  Having carefully combed the

record, we are satisfied that he had before him competent evidence

that Eldridge substantially complied with the obligations imposed

by the Handbook.  The evidence supports (though admittedly it does

not compel) findings to the effect that Eldridge exercised due

diligence in obtaining relevant information concerning aeronautical

and weather conditions and that he provided a reasonably complete

pre-flight briefing to Jackson on the morning of take-off.  SeeJackson, 983 F. Supp. at 280; see also Davis v. United States, 824

F.2d 549, 552 (7th Cir. 1987) (describing the information that must

be assembled for a pre-flight briefing).  This data included

current and future weather trends and unusual weather activity in

the areas along Jackson's anticipated path of flight.  See Jackson,

983 F. Supp. at 280-81.  Contrary to the appellant's claim that a

flight services specialist must issue specific weather advisories

to a pilot in haec verba, the law only requires a weather briefer

to interpret, translate, and convey in summarized form relevant

weather information.  See Moorhead v. Mitsubishi Aircraft Int'l,

Inc., 828 F.2d 278, 282 (5th Cir. 1987); see also Jackson, 983 F.

Supp. at 280 n.10 (reprinting Handbook instruction:  "Do not read

individual weather reports or forecasts unless, in your judgment,

it is necessary to emphasize an important point or unless

specifically requested to do so by the pilot.").

     In short, the law allows a weather briefer a certain

degree of latitude in transmitting weather information to a pilot. 

The evidence of record here adequately supports the district

court's conclusion that Eldridge used this latitude in a

permissible fashion by giving Jackson a comprehensive forecast and

accurately summarizing all pertinent weather advisories.  In

particular, Eldridge informed Jackson that he could expect icing

conditions at his planned altitude from the eastern half of

Kentucky to West Virginia, see Jackson, 983 F. Supp. at 280, and

warned of "patchy precipitation," "light snow showers" (which,

coupled with gusting winds, would make it appear as if it were

"snowing sideways"), and near-freezing conditions at the Charleston

airport, see id. at 281.  This constituted, at the very least,

substantial compliance with the  regimen specified by the Handbook. 

No more was exigible.  See Davis, 824 F.2d  at 554-55; Barbosa v.

United States, 811 F.2d 1444, 1447 (11th Cir. 1987); cf. Delta

Airlines, Inc. v. United States, 561 F.2d 381, 390 (1st Cir. 1977)

(holding that "a substantial and unjustified failure" to follow FAA

safety provisions is a persuasive indication of a lack of due

care).

     Fourth:  Under West Virginia law, a plaintiff is not

entitled to recover in a wrongful death suit if her decedent's

negligence equals or exceeds the defendant's.  See Bradley v.

Appalachian Power Co., 256 S.E.2d 879, 885 (W. Va. 1979)

(elucidating comparative negligence doctrine); see also W. Va. Code

 55-7-5 (1994) (stipulating that a wrongful death action may

succeed only if the party injured would have been entitled to

recover damages had death not ensued). The appellant asseverates

that the trial court clearly erred in ranking Jackson's negligence

as greater than the combined negligence of the three main

government actors.  Because the district court supportably found

that neither Eldridge nor Christine Garcia was negligent, this

asseveration reduces to a naked claim that the negligence of

Ulanch, the Charleston-based air traffic controller, was more a

factor in the crash than the negligence of the decedent.

     Judge O'Toole found both men negligent:  Ulanch for

neglecting to transmit no fewer than six weather advisories that

warned of icing conditions as Jackson approached the Charleston

Airport, see Jackson, 983 F. Supp. at 282; and Jackson both for

failing sufficiently to inquire whether dangerous conditions near

Charleston persisted and for braving weather conditions that he

knew his aircraft could not withstand, see id. at 282-83.  In the

court's estimation, Jackson's discerned negligence outweighed

Ulanch's discerned negligence.  See id. at 283.  Consequently, the

court entered judgment for the United States.  See id. at 284.

     We cannot say that the trial court's comparative

negligence analysis was "simply wrong."  State Police Ass'n, 125

F.3d at 5.  As a pilot, Jackson had the primary responsibility for

the safety of his aircraft.  See Cappello v. Duncan Aircraft Sales,

79 F.3d 1465, 1469 (6th Cir. 1996); Davis, 824 F.2d at 552; seealso 14 C.F.R.  91.3 (1998).  Awareness of facts and circumstances

that pertain to the safe operation of the aircraft is paramount,

and a pilot, exercising due care for his own safety, must endeavor

constantly to update weather information.  See Davis, 824 F.2d at

551.  Eldridge's initial briefing, which mentioned icing conditions

near Charleston, should have served as a red flag to a wary pilot. 

At a bare minimum, this initial briefing put Jackson on inquiry

notice and triggered an affirmative duty to inquire about whether

the hazardous conditions persisted.  See Somlo v. United States,

416 F.2d 640, 645 (7th Cir. 1969) (holding that it was a pilot's

duty "to inquire whether icing was still a factor" once forewarned

of icing conditions).  Nothing in the record suggests that Jackson

fulfilled this duty.

     Relatedly, the record bears out the district court's

determination that Jackson failed to take reasonable steps to avoid

weather conditions that he knew his single-engine Mooney M-20M

airplane could not withstand.  Jackson was an experienced pilot who

had owned the aircraft for some time.  The Mooney flight manual

explicitly warned that the M-20M was not equipped for flight in

icing conditions.  The lower court supportably could have found  

as, indeed, it did   that Jackson's disregard of this warning not

only transgressed an applicable FAA regulation, see 14 C.F.R. 

91.9 (1998) (requiring that an aircraft be operated in compliance

with limitations specified in its flight manual), but also ran

counter to common sense.  Flying an airplane contrary to the safety

provisions stipulated in the applicable flight manual is itself a

sufficient predicate for a finding of negligence.  See Hoban v.

Grumman Corp., 717 F. Supp. 1129, 1136-37 (E.D. Va. 1989).

     In determining the relative negligence of Jackson and

Ulanch, the trial court also properly considered the degree to

which Jackson had been forewarned of the continued presence of

icing conditions in the Charleston area.  While approaching the

Charleston airport, Jackson radioed Air Traffic Control and

acknowledged that he had received weather information from

Charleston's Automatic Terminal Information System, a continuous

twenty-four hour source of current weather information.  Equally as

important, several pilots in the Charleston area had transmitted

reports warning of icing conditions, and at least one of these

reports was transmitted on the same radio frequency Jackson earlier

used to contact Charleston Air Traffic Control.  See Jackson, 983

F. Supp. at 278.  The court inferred that Jackson heard the weather

reports from other pilots warning of icing conditions in ample time

to take corrective action.  See id.  Under the circumstances, the

inference was reasonable, particularly given the regulatory

requirement that pilots must maintain a continuous watch on an

"appropriate radio frequency" during flight.  14 C.F.R.  91.183

(1998).

     It is both good law and sound logic that a pilot bears a

responsibility to circumvent dangerous weather conditions that are

perceptible through his own senses.  See Spaulding v. United

States, 455 F.2d 222, 226-27 (9th Cir. 1972).  This includes the

duty to interpret weather conditions that are confronted en route,

evaluate their significance based on past experiences, and avoid

inappropriate courses of action.  See Moorhead, 828 F.2d at 283. 

The lower court concluded that Jackson did not fulfill this

obligation.  See Jackson, 983 F. Supp. at 282-83.  This conclusion,

too, is supportable.  Jackson was a very experienced pilot who had

logged nearly 500 hours of flight time and was familiar with the

warning signs for icing conditions.  See id. at 275. Indications of

icing conditions unsuitable for flight in a single-engine Mooney M-

20M surrounded Jackson as he neared Charleston, including near-

freezing temperatures and variable amounts of precipitation.  

Still, Jackson took no affirmative action to avoid the looming

peril.  These, and other, facts fully supported a finding that a

pilot of Jackson's experience should have recognized the danger of

proceeding single-mindedly through perilous prospects.

     To be sure, Ulanch's negligence also was starkly

apparent.  We do not minimize his failings.  Comparing the relative

fault of two negligent actors, however, is an exercise better

committed to a trial judge, who has an opportunity to see and hear

the witnesses, than to the court of appeals.  Only rarely   and in

extremely compelling circumstances   will an appellate panel, from

the more restrained perspective afforded by a cold record, tinker

with the trier's weighing of relative fault.  We have no occasion

to essay so unusual a step today.  Taking into account the totality

of the evidence, we cannot say that the trial court clearly erred

in determining that Jackson's negligence equaled or exceeded that

of Ulanch.

     We need go no further.  The other arguments raised by

the appellant are plainly insufficient, adequately answered in the

district court's memorandum opinion, or both.  Hence, we uphold the

district court's determination that the appellant is not entitled

to recover damages under the FTCA.



Affirmed.