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MCCULLOUGH v. UNITED STATES

April 21, 1982

Ellen C. McCULLOUGH, Individually and as Executrix of the Estate of Peter J. McCullough, deceased, Plaintiff,
v.
The UNITED STATES of America, the Port Authority of New York and New Jersey, The Boeing Company and Rockwell International Corp., Defendants



The opinion of the court was delivered by: BRAMWELL

DECISION AND ORDER

On June 25, 1975, Eastern Air Lines Flight 66 crashed on its final approach to Kennedy International Airport. 113 people lost their lives in the tragedy. Among them was plaintiff's decedent, Peter J. McCullough. Mr. McCullough, an employee of Eastern Air Lines ("Eastern"), was in the cockpit performing the duties of a Check Airman conducting a line check on Flight Engineer Gary M. Geurin.

 In 1976, Mrs. McCullough brought the instant action against the United States under the Federal Tort Claims Act, 28 U.S.C. ยงยง 1346, 2671 et seq. (1976) In the suit she alleges that the negligent acts and omissions of the Federal Aviation Administration ("FAA") contributed to her husband's death. *fn1" The United States interposed four affirmative defenses, *fn2" the first and second of which were apparently abandoned upon the United States' admission of negligence. *fn3" What remain are the defenses of contributory negligence and intervening and superseding cause.

 Plaintiff now moves for partial summary judgment dismissing these remaining affirmative defenses. She states that the material facts are not in dispute and that the defenses are unavailable as a matter of law. The Government opposes the motion, maintaining that there are outstanding issues of material fact which preclude granting the motion at this time. Defendant's counter 9(g) statement raises four alleged issues of fact:

 
1. Plaintiff's decedent had a duty not to contribute to lack of cockpit discipline by participating in distracting conversations and allowing such conversations to occur when vital windshear information was being broadcast over the final vector control frequency by Eastern Airlines Flight 902.
 
2. Such actions constitute contributory negligence and bar plaintiff's recovery as a matter of law.
 
3. The accident was caused solely by the negligence of Eastern airlines.
 
4. Any negligence on the part of the air traffic controllers in not reporting a thunderstorm cell on the final approach was cut off by the intervening and superseding negligence of Eastern Airlines.

 Facts "1" and "2" encompass the contributory negligence allegation, while "3" and "4" relate to the intervening and superseding cause defense. Plaintiff argues that these "facts" are not facts at all, but conclusions of law drawn from the undisputed facts. Whether plaintiff's assertion is valid requires an examination not only of the facts, but of the law involved in each affirmative defense. I will discuss the contributory negligence defense first.

 The essential elements of negligence, and of contributory negligence, are the existence of a duty (to adhere to the proper standard of care), breach of that duty, causation and damage. *fn4" The Government argues that Mr. McCullough had a duty not to contribute to lack of cockpit discipline, which duty he breached affirmatively by making irrelevant comments and failing to properly monitor the flight engineer and passively, by not stopping extraneous conversations in the cockpit. This lack of discipline, allegedly attributable to Mr. McCullough, is said to be a cause of the crash which resulted in Mr. McCullough's death.

 The threshold question, as I see it, concerns the nature and extent of Mr. McCullough's duty. In other words, what would a reasonably prudent person in the same circumstances be required to do to avoid harm to himself? The United States argues that Mr. McCullough had an affirmative to maintain both his own and the rest of the crew's discipline. I believe that both parties and the Court agree with the legal theory underlying the first part of the argument, that is, that Mr. McCullough had a duty not to disrupt cockpit discipline by his own unwarranted behavior. The disagreement on this point is with the facts. Plaintiff maintains that no reasonable person could interpret the facts to find that Mr. McCullough's conduct constituted contributory negligence. The Government argues that the facts are in dispute and are susceptible of more than one interpretation. Thus, it contends, summary judgment is not proper at this time.

 The evidence of cockpit conditions prior to the crash is meager at best. Since everyone in the cockpit died, the only evidence is the tape of the last minutes of the flight contained on the cockpit voice recorder ("CVR"), a transcript of which was prepared by the parties. Some of it is unintelligible and some remarks cannot be attributed with certainty to a specific person. However, the attorneys for the parties have stipulated to the transcript as it stands. Following are the remarks attributed either solely to plaintiff's decedent or to Mr. McCullough or Flight Engineer Geurin, and the times at which they were made. To put them in their proper perspective, I note that Flight 66 first heard Eastern Flight 902's windshear reports at 1600:08. The crash occurred at 1605:15.

 TABLE

  *fn5" , *fn6" ...


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