September 1, 2012
This month’s Landmark Accident is notable not because of the accident; visual flight into marginal VFR or instrument meteorological conditions (IMC) is not as rare as it should be. There are constant reminders by the Air Safety Institute and most aviation publications and websites that this is not a life-prolonging activity. Rather, it was the legal maneuvering afterward that nearly changed the training landscape.
This January 2003 accident also illustrates that isolated actions by individual pilots can have a major effect on general aviation when magnified by the legal system. There are similarities to the John F. Kennedy Jr. accident in June 1998 (see “Landmark Accidents: Vineyard Spiral,” September 2000 AOPA Pilot), with marginal conditions at night, an almost-rated instrument pilot in a high-performance aircraft, and a strong desire to get to the destination. These factors have consistently proved to be lethal. The determination to press on, which serves us well in personal and business life, can be catastrophic.
The 47-year-old private pilot had logged 248 hours total time, with 57 hours of instrument time and nearly 19 hours at night. He had taken delivery of a brand-new Cirrus SR22 six weeks prior to the accident and completed type-specific training. This resulted in a VFR-only completion certificate and a high-performance aircraft endorsement. At the time of the accident, the pilot had logged 19 hours in the Cirrus with only 0.3 hour of actual instrument time and 2.3 hours of night flight. Almost all of his remaining flight time was in a Cessna 172 in which he was receiving instrument instruction. According to his CFII, he was nearly ready for the instrument rating practical test.
At 4:55 a.m. (CST) on the morning of the accident, the pilot called flight service proposing a VFR flight from Grand Rapids, Michigan (GPZ), to St. Cloud, Minnesota (STC), departing at 6 a.m. A friend was to accompany the pilot to a hockey game, where their sons were playing. The weather was marginal with airmets for instrument conditions, scattered snow showers, and turbulence. The pilot called back again at 5:41 a.m. to recheck the weather, but it was essentially unchanged. The pilot mentioned that he was, “Hoping to slide underneath it and then climb out.” The briefer didn’t discourage him, saying, “The only problem you may have along the route, that I can see, is marginal ceilings.”
Weather can be deceptive and certainly not uniform. At the time of the accident, Grand Rapids—20 miles north of the accident site—reported few clouds at 300 feet, a broken layer at 1,400, and 2,700 overcast with seven miles visibility and winds northwest at 17 gusting to 22 knots. Twenty-one miles south of the accident site at Aitkin, Minnesota, visibility was 10 miles, with scattered clouds at 2,500. There were two additional factors: It was still dark and morning twilight would not begin for about another hour, but there was a full moon low to the horizon.
The Cirrus struck trees at a 15-degree nose-down attitude, creating a 500-foot debris field indicative of a high-speed impact. The final flight path was estimated from radar data. Beginning at 6:30 a.m. the aircraft’s altitudes varied between 1,700 and 3,200 feet. At 6:36 a.m. the aircraft began a descending left turn to 2,400 feet at about 1,200 fpm, followed by a climbing left turn of decreasing radius to 2,900 feet. The average true airspeed was estimated at 191 knots. Several witnesses reported the aircraft between 75 and 100 feet agl. One witness stated, “If he’d been two blocks east, he’d have hit the water tower.” The witnesses all agreed that the aircraft was moving fast, and weather was generally described as clear—except for one witness who lived a quarter-mile from the accident site, and said it was snowing lightly and the atmosphere was “hazy.”
The NTSB’s examination of the aircraft and engine did not reveal any malfunction. The aircraft had logged 35.7 hours since new. The pilot and passenger died in the impact.
The NTSB’s probable cause statement was, “Spatial disorientation experienced by the pilot, because of a lack of visual references, and a failure to maintain altitude. Contributing factors were the pilot’s improper decision to attempt flight into marginal VFR conditions, his inadvertent flight into instrument meteorological conditions, the low lighting condition [night], and the trees.” There was no discussion regarding the ballistic recovery system (airframe parachute) or the role of glass cockpits. But the attempt to shift responsibility took some unprecedented turns.
The plaintiffs’ complaint against Cirrus Design and the University of North Dakota Aerospace Foundation (UNDAF) was based on the contention that the entities did not provide the contracted-for training. Transition training was included in the purchase price of the aircraft, and the pilot had paid for an additional 1.5 days of instruction to become more familiar with the SR22. His training records clearly stated that the training was to VFR standards only, and various autopilot procedures had been reviewed. However, one item in the course syllabus remained unchecked. It was on using the autopilot to escape from IMC. The plaintiffs’ belief was that the crash would not have occurred if only that training had been received. It’s an interesting theory, but to my knowledge, it has never been tested in any scientific manner.
The Private Pilot Practical Test Standards require applicants to demonstrate proficiency in basic instrument flight. Aeronautical knowledge areas include aeronautical decision making and judgment. Also required is the ability to recognize critical weather situations from the ground and in flight, along with the ability to procure and use weather reports and forecasts.
To exercise the privileges of the private pilot certificate, we must demonstrate these skills and presumably be able to perform them after becoming certificated. Unfortunately, some pilots let their skills deteriorate, and some CFIs do not “retread” the pilot’s basic instrument skills on subsequent flight reviews. That was not the case here. As noted previously, the pilot had nearly finished a full instrument rating program but was inexplicably taking the training in his old aircraft, a Cessna 172. The basics of instrument flight are the same for all aircraft, but the performance characteristics and avionics equipment between these two airplanes could hardly be more different. The CFII was not a defendant.
FAR 91.3 is unambiguous in declaring the pilot in command to be responsible for and the final authority as to the operation of an aircraft. The FARs also are clear on certification, testing standards, and VFR pilots staying out of IMC. Even so, the trial jury found Cirrus and UNDAF jointly responsible at 37.5 percent each, and the estate of the pilot at 25 percent. It awarded combined damages of $16.4 million to the families.
A Minnesota court ruling prohibits lawsuits for educational malpractice because it’s extremely difficult to determine if the teacher failed to teach or the student failed to learn. The plaintiffs and trial court felt that the defendants were not an educational institution and not entitled to such protection. (UNDAF hardly could be anything else, but legal logic is not clear to many of us.)
Cirrus and UNDAF appealed, with AOPA filing a friend-of-the-court brief in support because of the potential precedent. The Minnesota Court of Appeals reversed the trial court’s ruling in a two-to-one split decision. It said, “An airplane manufacturer’s common-law duty to warn of dangers associated with the use of its aircraft does not include a duty to provide pilot training. A negligence claim against an aviation-training provider is barred under the educational-malpractice doctrine where the essence of the claim is that the provider failed to provide an effective education.”
Additionally, the pilot’s operating handbook was cited as explaining how to use the autopilot in great detail. There was ample warning about VFR pilots operating in IMC. The court held that the pilot had a duty to review such documents.
The trial court’s verdict, had it not been reversed, would have been a significant disincentive for both manufacturers and flight schools to provide any training beyond that which is legally required. Unfortunately, expensive and emotional legal battles do not erase the pain for two fatherless families—or the associated negative perception that surrounds GA in the aftermath of accidents like this. The plaintiffs appealed to the Minnesota Supreme Court, which upheld the appeals court ruling, thus settling the matter in favor of Cirrus and UNDAF.
Do you believe that this pilot fundamentally understood the risk he was about to undertake? The human psyche is incredibly complex and the statistics of probability and possibility arcane. The beauty of hindsight bias is that we can say, “Of course not.” Did a demonic impulse push him to take the risk, or did he honestly think he could make it? If more training in decision making or autopilot management had been provided, would it have mattered? Is it possible to effectively change someone’s risk-taking profile? When is enough training provided, and who’s responsible after an accident? Should high-performance aircraft be sold to VFR pilots? There are lots of opinions but few facts.
The one legal and moral certainty, to my way of thinking, is that the pilot in command is responsible for—and the final authority as to—the operation of an aircraft. This means recognizing your limitations, those of your aircraft, and the vagaries of weather forecasting. What do you think?
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The FAA has asked the National Transportation Safety Board to review a judge’s ruling reversing a fine it levied in an unmanned-aircraft case.
Able Flight has received and $8,000 check from the AOPA Foundation.
Preheating is about far more than just oil temperature. Proper preheating involves heating the entire engine, so that all critical engine parts can be brought into the ‘safe’ temperature range.
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