Pilot Counsel

A bizarre case

July 1, 2006

John S. Yodice, legal counsel for AOPA and IAOPA, owns and flies a Cessna 310.

The pilot of a Beechcraft Bonanza, who was dealing with a landing-gear emergency, was held responsible for the midair collision of two other aircraft several miles away. In a civil lawsuit in Chicago, the pilot with the gear emergency was held to be negligent in causing a distraction to the pilots of the colliding aircraft and to the air traffic controller who was handling the aircraft. Bizarre. The jury that found him negligent assessed a verdict of more than $2 million against him in favor of one of the deceased pilots.

The pilot had been cleared for landing on Runway 36 at Meigs Field in Chicago and could not confirm that the airplane's landing gear was down — no "three-in-the-green." He confessed his predicament to the tower and advised that he was departing the traffic pattern to troubleshoot the problem over an uncharted visual checkpoint about six miles southeast of the airport. The tower cautioned him to remain clear of the extended centerline of Runway 36, and to remain on tower frequency. His troubleshooting included a low approach to have the tower confirm that the gear was not down, after which he returned to the landmark and extended the gear manually.

A second Bonanza and a third aircraft, a Cessna 172, also were approaching Meigs from the south. The second Bonanza reported nine miles south for landing, and was told to report four miles out. The Cessna, on a sightseeing flight with some passengers, first did a low approach at Meigs and then headed north up the lakeshore, presumably for more sightseeing. The tower told the Cessna to report before heading south back to Meigs. Both aircraft were advised of the gear-problem Bonanza circling several miles away. In due course the Cessna reported turning south, returning to Meigs. That was the last communication received from the Cessna.

The second Bonanza, as instructed, reported four miles south. The tower cleared it to land on Runway 36. After that, it never responded to repeated tower requests. The Bonanza and the Cessna had collided, killing both pilots and the passengers on board the Cessna. They had collided about three miles south of Meigs. The Bonanza that had the gear problem was more than three miles away from the colliding aircraft.

The inevitable lawsuits ensued. The estate of the deceased pilot of the accident Bonanza brought a wrongful death action against the pilot of the first Bonanza, alleging that the first Bonanza pilot's conduct was the proximate cause of the collision of the other two aircraft. As I have already said, a jury trial resulted in a verdict for the estate of more than $2 million in favor of the dead pilot of the accident Bonanza. In the same proceeding, the jury also found in favor of the first Bonanza pilot against the estate of the Cessna flight instructor (there is no information as to how this played out). The verdict against the first Bonanza pilot in favor of the estate of the accident Bonanza pilot was upheld by an intermediate Illinois appellate court. There may be a further appeal.

In the litigation, the main contention against the first Bonanza pilot was that his actions had caused a distraction to the pilots and the controller. There was a good deal of communication on the frequency. The pilot of the gear-problem Bonanza had reported his position after hearing the other Bonanza's position report. The controller gave the pilot of the first Bonanza the accident Bonanza's position and told him that the accident Bonanza was looking for the first Bonanza. The first Bonanza indicated that his lights were on and that he was looking for the accident Bonanza. After that, during the minute or two of no transmissions on the frequency, the controller located the first Bonanza with her binoculars. The controller said she was not looking for the Cessna because it had advised that it was starting to circle over Navy Pier. The controller expected the Cessna to be well south of Meigs Field. In fact, the Cessna was closer south and in conflict with the accident Bonanza.

This case was a classic trial of the battle of the aviation experts, battling before a jury that probably knew very little about flying.

In looking at the experts' opinions it is interesting to contrast the testimony of the air traffic controller. She testified that the Bonanza pilot did not monopolize her radio frequency at any time, that the Bonanza pilot did not interfere with her ability to perform her duties, that the Bonanza pilot did not disrupt, distract, or confuse her, and that if the Bonanza pilot had used the radio frequency excessively, as alleged by the claimants, her practice would have been to instruct him to "maintain radio silence."

Now, to the experts' opinions.

The estate of the pilot of the accident Bonanza produced a witness who held himself out as expert in air traffic control and pilot and airport operations. He stated his opinion as to the cause of the collision: "Well, it is a combination. Obviously, you had problems or mistakes made by the controller. And there were several reasons for that. And then you also had the pilot of [the first Bonanza] that...had excessive amount of transmissions or transmissions that involved that particular airplane that caused a tremendous distraction to the airplane traffic controller as well as to other pilots in the area. And in my opinion that was the primary cause of the accident." According to the transcript of the radio communications, as reviewed by this expert, the Bonanza pilot was on the frequency for a total of 36 minutes and involved in 163 transmissions, 93 before the collision (of which he initiated 31) and 70 after the collision (of which he initiated 35). According to this expert, once a controller can see an aircraft from the tower, the controller should be initiating the calls, and the pilot should not be communicating on the radio frequency when not asked to do so.

The claimants also produced an accident reconstruction expert who was a fighter pilot with 27 years' experience in the U.S. Air Force. According to this expert, the landing-gear system was very simple. There was no trouble-shooting involved. The pilot should have just manually lowered the landing gear, landed, and then had the problem checked out. In his opinion, the pilot "and his abnormality in the aircraft created a distraction which degraded the air traffic controller, her functions and effectiveness, and degraded the pilots' ability to see and avoid each other."

On the other hand, the Bonanza pilot's defense included a very experienced pilot who had been the chairman of the aviation department of a leading university as well as a designated examiner for the FAA for 32 years. This expert opined that the pilot's conduct was consistent with the applicable federal aviation regulations and safety guidelines. He referred to the FAA's Flight Training Handbook, which advised that if the landing gear did not extend, the pilot should leave the traffic pattern and climb to a safe altitude to analyze the problem. The flyby of the tower was appropriate because it gave the pilot an opportunity to obtain information about the problem that was unavailable from his position. The pilot's radio communications were appropriate under the circumstances; he did not interfere or disrupt the communications process. His choice to circle over the south crib area took him out of the traffic coming into Meigs Field, and was far enough from the shoreline so as not to interfere with traffic approaching from the southeast or east. He was a safe distance from the approach path for Runway 36 and should not have expected that other pilots would fixate on him and discontinue their "see and avoid" responsibility.

So much for the experts. The jury, after listening to them, made a finding in favor of the deceased pilot of the accident Bonanza and against the pilot of the Bonanza with the gear problem, assessing more than $2 million in damages for one death.

John S. Yodice