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MOMEN v. UNITED STATES

December 2, 1996

MOHAMMAD MOMEN and ISHRAT MOMEN, Plaintiffs, against UNITED STATES OF AMERICA; USAIR, INC.; USAIR GROUP, INC.; U.S. AIR EXPRESS CO., INC; CHAMPLAIN ENTERPRISES, INC., d/b/a COMMUTAIR; and BEECH AIRCRAFT COMPANY, Defendants.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND

 This case arises from the crash of CommutAir Flight 4821. Flight 4821 was a regularly scheduled commercial flight from Plattsburgh, New York to Newark, New Jersey. On January 3, 1992, the aircraft was on approach to Adirondack Airport's runway 23 in Saranac Lake, New York. At about 5:48 a.m., the Beech 1900C aircraft struck Blue Hill Mountain approximately 4.3 miles short of the runway and was destroyed. Two persons died and two persons survived the crash. Plaintiff Mohammed Momen and Captain Kevin St. Germain survived the crash.

 In a related case, Champlain Enterprises v. United States & Beech Aircraft (94-CV-1356), the owner/operator of the aircraft brought suit in this Court alleging negligence on the part of Beech Aircraft and the United States. In the Champlain case, this Court granted co-defendant United States' Motion for Summary Judgment and dismissed all claims against the United States, see Order dated October 15, 1996, and by Memorandum-Decision and Order dated November 16, 1996, granted in part Beech Aircraft's Motion to Dismiss.

 Currently before this Court are defendants United States, USAIR, USAir Group, Champlain Enterprises, and Beech Aircraft's Motions for Summary Judgment.

 A. The Claims

 Plaintiffs' First Cause of Action states a claim against the United States for negligence. Specifically, Plaintiffs assert that the FAA was negligent in its monitoring, policing, and enforcement obligations concerning management and training of CommutAir's pilots. In addition, Plaintiffs allege that the FAA was negligent in the design, construction, and maintenance of the Instrument Landing System ("ILS") at Adirondack Airport and the ILS approach procedures.

 Plaintiffs' Second Cause of Action states a claim against USAir and Champlain Enterprises for negligence. Plaintiffs argue that USAir and Champlain Enterprises, through their agents and employees, acted negligently by: following a false glideslope; lacking crew coordination; engaging in poor instrument scanning; failing to adequately train cockpit crews; failing to follow required procedures and cross-checks; operating passenger airplanes with incompetent crew; and failing to enforce company policies and procedures.

 Plaintiffs' Third Cause of Action states a claim against USAir and Champlain for breach of contract. Mr. Momen alleges that USAir and Champlain breached their contract for carriage by failing to provide Momen with reasonably safe passage, failing to adequately train the crew, and failing to implement appropriate policies concerning final approaches by their pilots.

 Plaintiffs' Fourth Cause of Action is for willful and wanton conduct on the part of Champlain. Specifically, Plaintiffs' allege that Champlain knew that the captain of Flight 4821 was deficient in his knowledge of ILS components and procedures, and that he was inadequately trained and prepared to captain the flight.

 Plaintiffs' Fifth and Sixth Causes of Action state claims against Beech Aircraft. Plaintiff's Fifth Cause of Action asserts negligence in the design and manufacture of the Beech 1900C's Instrument Landing System ("ILS") components as well as failure to instruct and warn concerning these deficiencies. Plaintiff's Sixth Cause of Action sounds in strict liability, in that Beech is alleged to have sold a product that was unreasonably dangerous.

 Finally, Plaintiffs' Seventh Cause of Action asserts a claim against all defendants on the basis of loss of consortium.

 II. DISCUSSION

 A. Summary Judgment Standard

 Pursuant to Fed. R. Civ. P. 56(c), a court may grant summary judgment if it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). It is the substantive law that will determine what facts are material to the outcome of this case. See Anderson, 477 U.S. at 250.

 Initially, the moving party has the burden of informing the court of the basis of its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party satisfies its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The Court must then resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). However, the non-moving party must do more than simply show "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when the Court concludes that no rational finder of fact can find in favor of the non-moving party should summary judgment be granted. Gallo v. Prudential Residential. Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994).

 B. Claims Against the United States

 The complaint alleges that the United States, through the Federal Aviation Administration (FAA), was negligent in its monitoring, policing, and enforcement obligations concerning management and training of CommutAir's pilots. In addition, Plaintiffs allege that the FAA was negligent in the design, construction, and maintenance of the ILS components at Adirondack Airport and the ILS approach procedures.

 Defendant United States moves for summary judgment based on two arguments:

 
(2) Negligence in the oversight of CommutAir's pilots and/or negligence in the design of the instrument approach procedure and ILS system are exempt from judicial review as "discretionary functions" of the United States pursuant to 28 U.S.C. § 2680(a).

 In order to determine if the United States is entitled to summary judgment, the Court must first ascertain the contours of Plaintiffs' claim against the United States and its applicability under the Federal Tort Claims Act (FTCA). 28 U.S.C. §§ 1346 & 2671 et seq. This Court recently addressed this same in issue in Champlain Enterprises v. United States & Beech Aircraft (94-CV-1356), where the owner/operator of Flight 4821 brought suit alleging negligence on the part of Beech Aircraft and the United States. In the Champlain case, this Court granted co-defendant United States' Motion for Summary Judgment and dismissed all claims against the United States as barred by the discretionary function exemption. Champlain Enterprises v. United States, 946 F. Supp. 196, 1996 WL 650700 (N.D.N.Y. 1996). *fn1"

 The Federal Tort Claims Act is a limited waiver of the sovereign immunity of the United States. This waiver of sovereign immunity is subject to a number of exceptions, including the "discretionary function exemption" set forth in 28 U.S.C. § 2680(a). Section 2680 states in relevant part that "the provisions of this chapter and section 1346(b) of this title shall not apply to--(a) Any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government." 28 U.S.C. § 2680.

 The inquiry is "whether the challenged acts of a Government employee . . . are of a nature and quality that Congress intended to shield from liability." United States v. S.A. Empresa de Viacao Aerea Rio Grandense ("Varig Airlines"), 467 U.S. 797, 812, 81 L. Ed. 2d 660, 104 S. Ct. 2755 (1984). In this regard, "Congress wished to prevent judicial 'second-guessing' of . . . administrative decisions grounded in social, economic and political policy through the medium of an action in tort." Varig, 467 U.S. at 814.

 Addressing Plaintiffs' allegations involving the ILS components at Adirondack Airport, Plaintiffs allege that the FAA's ILS equipment provided inaccurate signals to Flight 4821--specifically, that the "glide slope" component of the ILS provided a false signal to the CommutAir pilots that they followed down to ground impact. Plaintiffs support this argument with a scientific theory that postulates the existence of a "terrain-induced" phenomenon that alters the correct propagation of the ILS signal. The result, according to Plaintiffs, is that perturbations in the glideslope are created that allow an aircraft to hit the ground short of the runway.

 Defendant United States argues that the furnishing of specific navigational aides by the FAA is a discretionary function. This Court agrees. Accord Champlain Enterprises, 946 F. Supp. 196, 1996 WL 650700, at *2. Federal statutes empower the Administrator of the FAA to "acquire, establish, improve, operate, and maintain air navigation facilities." 49 U.S.C. § 44502(a)(1)(A). Moreover, the decision to establish and maintain navigation facilities must necessarily balance the competing social and economic policies of air safety and cost effectiveness. See 49 U.S.C. § 44505(a)(1)(A) (stating that the FAA shall also "evaluate systems, procedures, facilities, and devices . . . to meet the needs of safe and efficient navigation.").

 Other courts have ruled similarly. For example, in Varig Airlines, the Supreme Court barred an action against the FAA for negligent safety certification of an aircraft, noting that the procedures chosen for certification were left to the discretion of the FAA and therefore were exempt from the FTCA under the discretionary function exemption. Varig Airlines, 467 U.S. at 819-20. The Varig court remarked that "the FAA has a statutory duty to promote safety in air transportation, not to insure it." Id. at 820.

 In West v. F.A.A., 830 F.2d 1044 (9th Cir. 1987), cert. denied, 485 U.S. 1007, 99 L. Ed. 2d 699, 108 S. Ct. 1470 (1988), the Ninth Circuit addressed facts similar to those presented here. West involved the design of an instrument departure procedure for a small airport in the mountains of California. Plaintiffs in West argued that the FAA was negligent in that insufficient ground lighting resulted in a visual phenomenon whereby pilots flying on a very black night could be misled into believing they were closer to the airport then they actually were. 830 F.2d at 1044. In concluding that plaintiffs' suit was within the discretionary function exemption, the Ninth Circuit noted that the "determination of safety requirements involves a balancing of social, economic or political policies. In any safety decision, there are limits to the resources available to test and inspect the procedure and those who will be using it." West, 830 F.2d at 1047 (citing Varig, 467 U.S. at 820).

 Plaintiffs also argue that the FAA was negligent in the promulgation of ILS approach procedures. However, the balancing of social, economic, and political policies is no less apparent in the context of ILS approach procedures. The FAA must design instrument approaches in the context of expected pilot conduct and foreseeable environmental conditions. The exact specifications of the navigation system and approach procedures at Adirondack Airport were within the FAA's prerogative. As defendant United States notes: "To insure maximum safety, the FAA would never promulgate instrument approach procedures for aircraft to descend through clouds towards airports in mountainous terrain, but would restrict such flights to sunny, clear days." (U.S.'s Mem. of Law in Support of Motion for Summary Judgment at 9.)

 Similarly, Plaintiffs' allegations that the FAA was negligent in its monitoring, policing, and enforcement obligations regarding management and training of CommutAir's pilots are also within the discretionary function exemption. Plaintiffs assert that the FAA was negligent in that: pilot Kevin St. Germain should not have been certified as a "check airman"; that deficient safety practices were "pervasive" at CommutAir; and that the FAA was "ignoring ...


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