Petition for Writ of Certiorari — Connors v. United States

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tees ‘ine,

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90-1670 fr FILED

No. APR 29 199]

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1990

KATHLEEN E. CONNORS, et al.,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

—

Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The

Fifth Circuit

,™

PETITION FOR A WRIT OF CERTIORARI

Of Counsel:

ALAN WILSON Georct Lucas ASHLEY, Esq.,

Law, SNAKARD & GAMBILL Counsel of Record, and

3200 Team Bank Building Jorn H. Martin, Esa.

Fort Worth, Texas 76102

817/878-6318 THOMPSON & KNIGHT,

; A Professional Corporation

PAR: GUTS ar a 3300 First City Center

K. Marvin ADAMS 1700 Pacific Avenue

FILLMORE & HARRINGTON Dallas, Texas 75201

1100 Commerce Building 214/969-1700

307 West Seventh Street 214/969-1751 (FAX)

Fort Worth, Texas 76102

817/332-2351

FAX: 817/870-1859

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Fifth Circuit’s failure to review de novo the District

Court’s failure to apply the objective test required under

Texas law on the dispositive proximate cause issue

directly conflicts with this Court’s intervening decision in

Salve Regina College v. Russell, 59 U.S.L.W. 4219 (Mar. 20,

1991).

TABLE OF CONTENTS

Page

CURSES PRIN E UD. 6a ica cdvccabacesssuseuees i

ERE CP RUC N eo 0 6 69 hn cha ccascunnnasseee iii

CP END OAIOT oes vinh hc cpddhee 6d ngtt hed eaeekes 2

PRR RUG $5.60 56.5 ei wee ean eee eS 2

STATUTES AND RULES INVOLVED............... 2

SLATEOEEINE GOP TOG Clerc a che cetcbanesansdanes 4

A. COURSE OF PROCEEDINGS AND DISPOSI-

TION IN THE COURTS BELOW.......... se §

SB. SEALS CO FON is iia cccchsendceess 5

REASONS FOR GRANTING THE WRIT ........... 7

A. AFTER THE DECISION BELOW, THE

SUPREME COURT HELD THAT COURTS OF

APPEALS MUST REVIEW A DISTRICT

COURT’S DETERMINATION OF STATE LAW

Pt. re ee re ns ory ee 7

B. THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT LONG HAS FOL-

LOWED THE DEFERENTIAL STANDARD

RUGSSCLL, TI i055 SES aR 8

C. THE COURT OF APPEALS BELOW UNQUES-

TIONABLY APPLIED THE NOW INVALID

“GREAT WEIGHT” STANDARD ON THE DIS-

POSITIVE TEXAS PROXIMATE CAUSE LAW

iil

TABLE OF AUTHORITIES

Page

Cases

Black v. United States, 441 F.2d 741 (5th Cir.), cert.

Sg) 11

Craig v. Lake Asbestos of Quebec, Ltd., 843 F.2d 145

aaa base ees Shiva a beseseccses 9

Eagle Trucking Co. v. Texas Bitulithic Co., 612 S.W.2d

SE ERT OCCT T TTT 10

Farley v. M M Cattle Co., 529 S.W.2d 751 (Tex. 1975)... 13

Foreman v. Exxon Corp., 770 F.2d 490 (5th Cir. 1985) ..... 9

French v. Grigsby, 571 S.W.2d 867 (Tex. 1978)........ 13

In Re Air Crash at Dallas/Fort Worth Airport, 720

a Se eR passim

In Re Air Crash at Dallas/Fort Worth Airport, 919

a Ee |) ) 2, 12, 14, 17

In Re McLinn, 739 F.2d 1395 (9th Cir. 1984) .......... 9

John Nuveen & Co. v. Sanders, 425 U.S.929 (1976) .... 17

Karp v. Cooley, 493 F.2d 408 (5th Cir.), cert. denied,

Ce eek ucdsucnasawas 11

Kirwin v. Romano, 425 U.S.929 (1976)................ 17

Po a ween, ee EU Oer LESTE)... 66... 050000005, 17

McKinley v. Stripling, 763 S.W.2d 407 (Tex. 1989)..... 11

Merchants Nat'l. Bank v. Southwestern Fire Ins. Co.,

De ew caw ccceuecasescs Yy

Missouri R.R. Co. v. American Statesman, 552 S.W.2d

Ne ev ehaekeesatuseees 10

TABLE OF AUTHORITIES - Continued

Page

Parrott v. Garcia, 436 S.W.2d 897 (Tex. 1969)......... 10

Roland v. United States, 463 FSupp. 852 (S.D.Ind.

Ee POETS ET 4 ee Tey een 11

Salve Regina College v. Russell, 59 U.S.L.W. 4219

SN WE OO as oh cc inven ccnenscesdesenvcan passim

Springer v. United States, 641 FSupp. 913 (D.S.C.

Mca Si WA RAD OREL CAA NEOKs Lae ood ona se bees 11

Tran v. Manitowoc Eng’g. Co., 767 F.2d 223 (5th Cir.

SN SELES A oa THEE Ne ae SOE REa Rae REE wan cao see's 9

Westinghouse Electric Supply Co. v. Wesley Construc-

tion Co., 414 F.2d 1280 (5th Cir. 1969)............. 12

OTHER

1 Texas Pattern Jury Charges PJC 4.03A (2d ed.

el OT Ee Te OT ee PEE Oe oe ee 16

ee Pee 64645 045 de ea DhARSRRRA SERS ERROSS 2

Be CE PI iy ca swe caucdhukea ah bank eee ds 2, 4

Coenen, To Defer or Not to Defer: A Study of Federal

Court Deference to District Court Rulings on State

Law, 73 Minn. L.Rev. 899 (1989).................... 9

R. Stern, E. Gressman, & S. Shapiro, Supreme Court

Pe I OD wink ov cc ewuuu ae swnnvasess 17

SE SIN IE PE 5 nx Gacevincakaubasdceaees 1

Tex. Rev. Stat. Ann. art. 4671, et seq. (recodified as

Tex. Civ. Prac. & Rem. Code §§ 71.001, effective

SR er ee 4

Tex. Rev. Stat. Ann. art. 5525 (recodified as Tex.

Civ. Prac. & Rem. Code § 71.021, effective Sep-

NL es a ca Te et 4

No.

—_

In The

Supreme Court of the United States

October Term, 1990

KATHLEEN E. CONNORS, et al.,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The

Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Kathleen E. Connors, Mary Elizabeth LaBrecque,

Susan Connors DeCosta, Jill Wong, Jean R. Nassick, Mic-

hael N. Nassick, David Lee Nassick, and Delta Air Lines,

Inc.! petition for a Writ of Certiorari to review the

1 Pursuant to Sup. Ct. R. 29.1, Petitioners state that Delta

Air Lines, Inc. has no parent or subsidiary corporations (other

than wholly owned subsidiaries). Further, there are no other

parties to this proceeding not listed in the caption or this list of

Petitioners.

Judgment of the United States Court of Appeals for the

Fifth Circuit in this case.

s+.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit appears at 919 F.2d 1079. (App. infra.,

1-20) The Order of the Court of Appeals denying Delta

Air Lines, Inc.’s Petition for Rehearing is reprinted at

App. infra. at 23-24. The opinion of the District Court

appears at 720 FSupp. 1258. (App. infra., 25-102)

JURISDICTION

The United States Court of Appeals for the Fifth

Circuit entered its Judgment on January 2, 1991. (App.

infra., 21-22) On January 29, 1991, the Court of Appeals

denied the Petition for Rehearing. (App. infra., 23-24)

Petitioners invoke the jurisdiction of the Supreme Court

of the United States pursuant to 28 U.S.C. § 1254(1).

STATUTES AND RULES INVOLVED

28 U.S.C. § 2674 provides:

§ 2674. Liability of United States

The United States shall be liable, respecting

the provisions of this title relating to tort claims,

in the same manner and to the same extent as a

private individual under like circumstances, but

shall not be liable for interest prior to judgment

or for punitive damages.

If, however, in any case wherein death was

caused, the law of the place where the act or

omission complained of occurred provides, or

has been construed to provide, for damages

only punitive in nature, the United States shall

be liable for actual or compensatory damages,

measured by the pecuniary injuries resulting

from such death to the persons respectively, for

whose benefit the action was brought, in lieu

thereof.

With respect to any claim under this chap-

ter, the United States shall be entitled to assert

any defense based upon judicial or legislative

immunity which otherwise would have been

available to the employee of the United States

whose act or omission gave rise to the claim, as

well as any other defenses to which the United

States is entitled.

With respect to any claim to which this sec-

tion applies, the Tennessee Valley Authority

shall be entitled to assert any defense which

otherwise would have been available to the

employee based upon judicial or legislative

immunity, which otherwise wculd have been

available to the employee of the Tennessee Val-

ley Authority whose act or omission gave rise to

the claim as well as any other defenses to which

the Tennessee Valley Authority is entitled under

this chapter.

(As amended Nov. 18, 1988, Pub.L. 100-694, §§ 4,

9(c), 102 Stat. 4564, 4567.)

STATEMENT OF THE CASE

A. COURSE OF PROCEEDINGS AND DISPOSITION

IN THE COURTS BELOW.

This appeal is part of the litigation that resulted from

the August 2, 1985 crash of Delta Flight 191 at Dallas-Ft.

Worth International Airport (“DFW” or “DFW Airport”).

Kathleen E. Connors and Jean R. Nassick, respectively the

widows of Delta 191’s captain and second officer, and

other surviving family members brought damage suits

under the Federal Tort Claims Act, 28 U.S.C. § 2674,

against the United States of America for the crew mem-

bers’ deaths based on the Texas Wrongful Death Act? and

Survival Statute.* Deita Air Lines, Inc. (“Delta”) joined in

Mrs. Connors’ suit to seek damages for the loss of its

L-1011 aircraft, and made third party contribution claims

in various suits by surviving passengers and beneficiaries

of deceased passengers for amounts Delta paid to those

parties.4 The District Court consolidated the Connors/

Delta case, the Nassick case, and the Delta third party

actions for trial.

After a lengthy trial, the trial court entered judgment

in favor of the government, holding that Delta’s flight

crew and Federal Aviation Administration (“FAA”) and

2 Tex. Rev. Stat. Ann. art. 4671, et seq. (recodified as Tex.

Civ. Prac. & Rem. Code §§ 71.001, effective September 1, 1985).

3 Tex. Rev. Stat. Ann. art. 5525 (recodified as Tex. Civ. Prac.

& Rem. Code § 71.021, effective September 1, 1985).

* The District Court opinion notes that those claims would

aggregate to between $150 million and $200 million, including

$24.7 million attributable to the loss of Delta’s L-1011 aircraft.

720 F.Supp. at 1261-62.

National Weather Service (“NWS”) employees all were

negligent, but that only Delta’s negligence proximately

caused the crash.

Petitioners appealed the District Court's decision to

the United States Court of Appeals for the Fifth Circuit.

On January 2, 1991, the Court of Appeals affirmed the

District Court’s judgment in favor of the United States of

America, rejecting Petitioners’ central contention that the

District Court fashioned and applied its own erroneous

rule of proximate cause law instead of using the proper

Texas objective standard, in holding that the Delta 191

flight crew's later negligence legally excused the govern-

ment’s earlier negligent failure to warn.

B. STATEMENT OF FACTS

The following fact statement reflects District Court

fact findings that Petitioners did not challenge in the

Court of Appeals.

On the final leg of its approach to the north end of

DFW runway 17L, Delta 191 entered light rain from Cell

C, originally a cumulus cloud mass that had developed

into a rain shower located over the outer marker approx-

imately five nautical miles north of the runway. At

approximately 6:04:00,5 Delta 191 transitioned from Cell

C into light rain from Cell D,® a second cloud mass that

rapidly had developed from a cumulus cloud mass into

5 All time references are stated in Central Daylight Time

unless otherwise expressly noted in this Petition or in the

District Court and Court of Appeals’ opinions.

6 720 F.Supp. at 1282 n. 181. (App., infra, 79)

an extremely hazardous thunderstorm. The Delta crew

was unaware of the extremely severe and hazardous

weather in Cell D before encountering it in part because

they failed to use onboard radar to determine the exis-

tence of potentially threatening weather before sighting

lightning at 6:04:18, when already well inside Cell D.

Delta policy, and prudent aviation practice, requires

avoidance of known thunderstorms, particularly those of

the intensity of Cell D.

Delta Flight 191 crashed 1.20 miles from the north

end of DFW runway 17L after encountering an unusually

strong downdraft windshear” produced by the Cell D

thunderstorm’s microburst.® From 6:05:35 on, the crew

was attempting to go around,’ but “[dJuring the last 17

seconds of the flight [from 6:05:35 to 6:05:52], the crew

could not possibly have escaped from the microburst

..”10 Thus, had the Delta 191 crew never entered Cell D

or attempted to go around even one second earlier, the

crash would not have occurred.

Well before First Officer Price observed lightning,

FAA personnel at the DFW air traffic control tower

(“DFW Tower”) knew of the existence “of extreme and

7 Windshear is a change in the wind’s speed and/or direc-

tion.

8 A thunderstorm may produce a downburst or strong

downdraft inducing an outburst of damaging winds on or near

the ground. A microburst is a small downburst with its out-

burst and damaging winds extending only four kilometers (2.5

miles) or less. 720 F.Supp. at 1264-65. (App., infra, 37-38)

9 Id. at 1278. (App., infra, 70)

10 Id. at 1284. (App., infra, 86)

hazardous weather north of the airport,”1! and negli-

gently failed to provide that information to incoming

aircraft. Moreover, DFW Tower employees observed the

development of hazardous weather phenomenon, includ-

ing an area of “heavy, heavy rain” described as “a wall or

curtain of water, portions of which resembled a tornado,”

and “radar... returns on the north end of the runway,” !2

all unknown to the Delta 191 crew. An NWS meteorolo-

gist and the FAA Weather Coordinator also failed to

monitor the weather on a radar display which would

have shown Cell D as probably a very strong thunder-

storm, and breached their legal duty to disseminate that

information.!3 Since that, too, was never communicated

to Delta 191, the crew did not follow the policy of avoid-

ance of known thunderstorms, and entered Cell D unin-

formed and unaware of the hazardous weather

conditions inside it that caused the crash.

REASONS FOR GRANTING THE WRIT

A. AFTER THE DECISION BELOW, THE SUPREME

COURT HELD THAT COURTS OF APPEALS

MUST REVIEW A DISTRICT COURT’S DETER-

MINATION OF STATE LAW DE NOVO.

After the Court of Appeals’ decision below, The

Supreme Court of the United States resolved a conflict

among the circuits, and held that a Court of Appeals

must review a District Court’s determination of state law

1 Id. at 1288. (App., infra, 98)

12 Id. (App., infra, 97-98)

13 Id. (App., infra, 98-99)

de novo. Salve Regina College v. Russell, 59 U.S.L.W. 4219

(Mar. 20, 1991). There, this Court noted:

1. “Independent appellate review of legal

issues best serves the dual goals of doctrinal

coherence and economy of judicial adminis-

tration.”

2. Courts of Appeals are “structurally suited to

the collaborative juridical process that pro-

motes decisional accuracy” while “District

Judges preside alone over fast-paced trials.

Of necessity, they devote much of their

energy and resources to hearing witnesses

and reviewing evidence.”

3. Courts of Appeals that profess to grant def-

erence to a district court’s determination of

state law cannot be presumed to actually

undertake plenary review of state law deter-

minations.'4

The Supreme Court concluded that appellate review

of a district court’s determination of state law under a

standard less probing than that applied to a determina-

tion of federal law is unacceptable.

B. THE UNITED STATES COURT OF APPEALS FOR

~ THE FIFTH CIRCUIT LONG HAS FOLLOWED

THE DEFERENTIAL STANDARD RUSSELL DIS-

CARDED.

The Supreme Court noted in Russell that a majority of

the Courts of Appeals followed the rule of deference,’

but recently the Third and Ninth Circuits concluded that

14 59 U.S.L.W. at 4220-21.

15 Id. at 4220.

an appellate court should conduct a plenary review of a

district court’s state law determination.'© The opinion

does not cite any Fifth Circuit decision on the issue. The

Supreme Court, however, makes several references to

Professor Coenen’s law review article!” that catalogs the

Courts of Appeals’ decisions and places the Fifth Circuit

squarely in the camp of those applying the now improper

deferential standard. “The Fifth Circuit often has recog-

nized and applied the rule of deference.”'% The article,

published in 1989, noted that at least forty-five Fifth

Circuit decisions had cited the rule, and most had stated

that a federal district judge’s determination is entitled to

“great weight” on appellate review.'9 .

C. THE COURT OF APPEALS BELOW UNQUES-

TIONABLY APPLIED THE NOW INVALID

“GREAT WEIGHT” STANDARD ON THE DISPOS-

ITIVE TEXAS PROXIMATE CAUSE LAW ISSUE.

Petitioners’ central argument to the Fifth Circuit was

that the District Court fashioned and applied its own

erroneous rule of proximate cause law, and failed to

148 (3d. Cir. 1988); In Re McLinn, 739 F.2d 1395 (9th Cir. 1984).

17 Coenen, To Defer or Not to Defer: A Study of Federal Court

Deference to District Court Rulings on State Law, 73 Minn. L.Rev.

899 (1989).

18 Id. at 974.

19 Id. at 975 (citing, e.g., Merchants Nat'l. Bank v. South-

western Fire Ins. Co., 854 F.2d 100, 105 (5th Cir. 1988); Foreman v.

Exxon Corp., 770 F.2d 490, 496 n.9 (5th Cir. 1985); Tran v.

Manitowoc Eng’g. Co., 767 F.2d 223, 229 (5th Cir. 1985)).

apply the objective standard required under modern

Texas comparative negligence law to determine the legal

effect of the government’s negligent failure to warn. Peti-

tioners contended that the specific and dispositive “objec-

tive” proximate cause inquiry under Texas law is whether

a reasonably prudent flight crew with only the actual

knowledge of the Delta 191 crew concerning the existence

or intensity of the Cell D thunderstorm probably would

have followed established Delta policy and avoided the

Cell D thunderstorm entirely had the controllers, prior to

6:03:58, communicated to that reasonably prudent crew

what they and the NWS meteorologist actually knew and

should have known. Further, is it reasonably foreseeable

that a crash, or some similar event might occur in the

absence of that communication when the unaware crew

continued the approach and entered the Cell D thunder-

storm.

It is rationally impossible to answer these questions

in the negative. Therefore, under the objective standard,

the District Court’s subsidiary findings conclusively

establish the negligence of the FAA and NWS employees

as at least a concurrent proximate cause under Texas law

of the Delta 191 crash. Texas courts have clearly recog-

nized that particular facts may establish proximate cause

as a matter of law.2° No direct Texas authority exists on

this point, but Petitioners referred to other aviation

20 Eagle Trucking Co. v. Texas Bitulithic Co., 612 S.W.2d 503,

507 (Tex. 1981); Missouri R.R. Co. v. American Statesman, 552

S.W.2d 99 (Tex. 1977); Parrott v. Garcia, 436 S.W.2d 897, 900

(Tex. 1969).

cases?! and two analogous Texas medical malpractice

cases involving informed consent where Texas courts had

applied an objective proximate cause standard.

The District Court’s opinion never mentioned or con-

sidered the objective proximate cause standard. Its dis-

cussion of proximate cause law was sparse and cryptic. It

devoted approximately one-half page of a lengthy opin-

ion to a discussion of proximate cause law, and relied

upon a case applying Louisiana contributory rather than

comparative negligence law for its own alleged general

rule of proximate cause law that the later negligence of a

pilot or flight crew automatically relieves the government

of its own prior negligence.?? The District Court never

discussed the critical proximate cause issue under Texas

proximate cause law of the probable effect of full and

timely warnings and advice concerning the hazards of the

Cell D thunderstorm based on the government's actual

and constructive knowledge on a reasonably prudent

incoming crew with only the actual (not constructive)

knowledge of the Delta 191 crew (i.e., unaware because it

had not used its onboard radar) about the development,

existence, location, and intensity of the Cell D thunder-

storm.

21 Springer v. United States, 641 F.Supp. 913 (D.S.C. 1986),

aff'd, 819 F.2d 1139 (4th Cir. 1987); Roland v. United States, 463

F.Supp. 852 (S.D.Ind. 1978); McKinley v. Stripling, 763 S.W.2d

407, 410 (Tex. 1989); Karp v. Cooley, 493 F.2d 408, 422 n. 18 (5th

Cir.), cert. denied, 419 U.S. 845 (1974).

22 720 F.Supp. at 1290, citing Black v. United States, 441 F.2d

741, 745 (Sth Cir.), cert. denied, 404 U.S. 913 (1971).

The Court of Appeals likewise never addressed

whether Texas law requires application of the objective

proximate cause test. At one point, it acknowledged Peti-

tioners’ argument that Texas law requires application of

an objective proximate cause standard: “They [Peti-

tioners] argue that the controllers’ negligence was a ‘but

for’ cause of the accident if proper warnings and advice

probably would have caused a reasonably prudent crew,

unaware of the actual weather conditions, to avoid Cell D

before entering it at 6:04:00 or to execute a missed

approach before 6:05:35 p.m.”23 The opinion, however,

never addressed that critical issue. Instead, the Court of

Appeals invoked the deferential “great weight” standard

of review that Russell expressly discarded, stating:

“The [District] Court’s discussion of Texas prox-

imate cause law alone covers over half of a

printed page. The trial judge has enjoyed a long

experience of the law of Texas — his native state

— and it has long been the view of our circuit

that the views of such jurists as to state law are

deserving of great weight. See Westinghouse, Elec-

tric Supply Co. v. Wesley Construction Co., 414

F.2d 1280, 1281 n.1 (5th Cir. 1969). By parity of

reasoning, we are entitled to assume a general

knowledge of that law on the part of such a

magistrate, certainly of its basic principles.”?4

Petitioners demonstrated to the Court of Appeals

that the District Court’s proximate cause holding appears

to represent an application of long discarded principles of

negligence and contributory negligence under Texas law.

23919 F.2d at 1086. (App., infra, 15-16)

24 Id. (App., infra, 15-16)

Prior to the adoption of a comparative negligence system,

Texas case law recognized several doctrines, including

last clear chance, and discovered peril, that accorded

significance to the time at which a negligent act or omis-

sion occurred, or a party realized a danger or risk existed.

The District Court’s opinion states: “Any failure of the

Air Traffic Controllers to warn a pilot of the presence of a

storm in its path cannot be regarded as a continuing

proximate cause after the pilot itself discovered its pres-

ence, appreciated the danger, and decided to fly ahead

into it.”25 The statement reflects application of a general

legal rule (“Any failure of the Air Traffic Controllers to

warn a pilot... . ”). It also makes clear allusions to Texas

precomparative negligence doctrines of discovered peril

and/or last clear chance (“cannot be regarded as a con-

tinuing proximate cause after the pilot himself discovered

its presence”), and volenti non fit injuria (“appreciated the

danger and decided to fly ahead into it... .”). With the

adoption of a comparative negligence system, the Texas

Supreme Court abolished those doctrines.?®

Again the Court of Appeals avoided direct consider-

ation of this argument by invoking the deferential stan-

dard Russell later discarded. It acknowledged the

precomparative negligence allusions with a cryptic anal-

ogy and a profession of blind faith in the trial judge’s

knowledge of modern Texas proximate cause law:

25 720 F.Supp. at 1290. (App., infra, 101)

26 French v. Grigsby, 571 S.W.2d 867 (Tex. 1978) (abolishing

discovered peril and/or last clear chance); Farley v. M M Cattle

Co., 529 S.W.2d 751 (Tex. 1975) (abolishing volenti non fit inju-

ria).

“We take a similar view of Appellants’ conten-

tions that the trial judge revived and applied the

long defunct doctrines of last clear chance and

discovered peril, or viewed the air crew’s persis-

tence in landing despite the storm as a new and

independent cause of the accident. It is certainly

possible to read the passages which Appellants

seize upon and quote in such a manner, just as it

is possible to read visions of archery into a

reference to an upshot. To do so, however, it

would be necessary for us to assume that the

Court was ignorant (and uninformed by coun-

sel) of a decade’s developments in Texas tort

law, a most unlikely circumstance.”?7

Russell establishes that the Fifth Circuit improperly

failed to analyze the trial court’s specific language:

“Independent appellate review necessarily

entails a careful consideration of the district

court’s legal analysis, and an efficient and sensi-

tive appellate court at least will reasonably con-

sider this analysis in undertaking its review

. Independent review, however, does not

admit of unreflective reliance on a lower court’s

inarticulable intuitions. Thus, an appropriately

respectful application of de novo review should

encourage a district court to explicate with care

the basis for its legal conclusions.”28

The Fifth Circuit’s assumption also is unjustified. In

the District Court, the government vigorously contested

the issue of its negligence, claiming that its employees

had neither actual nor constructive knowledge of any

hazardous weather conditions. Petitioners, however, relied

on evidence from numerous pilots and other witnesses at

27 919 F.2d at 1087. (App., infra, 17)

28 59 U.S.L.W. at 4221.

D-FW who observed hazardous weather at the approach

end of runway 17L before 6:05:35 to establish the govern-

ment’s actual and/or constructive knowledge. To counter

this testimony, the government blamed the pilots on the

ground. It not only contended these pilots should have

made pilot reports (“PIREPS”) of the hazardous weather,

but also argued that their failure to do so proximately

caused the accident. In the “United States of America’s

Response to Delta’s Trial Brief Regarding the Duty of

Pilots on the Ground to Report Weather Information”, the

government stated that “these violations and breach [fail-

ure to make PIREPS] proximately caused or contributed

to the Delta 191 accident”.29 Further, the “Outline of

Proof of the United States of America”, filed at the end of

trial, states that “[i]f the pilots on the ground who saw a

hazard had made a PIREP, the accident would have been

avoided” .3° Even the government’s FAA Air Traffic Con-

trol expert conceded:

“I have agreed, sir, that if the Tower controllers

saw what the pilots on the ground apparently

saw and relayed that information, then we prob-

ably wouldn’t be here.”*!

Thus, the government contested the fact issue of its level

of knowledge, not the causal effect of that knowledge

once established.

For this reason, the parties never briefed the question

of whether Texas law requires application of an objective

proximate cause standard at the District Court level. The

29 App., infra, 104.

30 App., infra, 105.

31 Tr. Vol. 42, p. 22.

specific issues of Texas proximate cause law presented in

this appeal did not arise until the District Court issued its

opinion. Petitioners felt the District Court’s subsidiary

fact finding conclusively established proximate cause

under Texas law, and directly appealed that legal ques-

tion. Because the Court of Appeals applied the improper

pre-Russell standard of review, Petitioners never obtained

meaningful appellate review of the District Court’s deter-

mination of Texas proximate cause law.

If modern Texas comparative negligence law requires

application of the objective proximate cause standard,

Petitioners conclusively established that the govern-

ment’s negligence was a concurring proximate cause of

the crash.°* The Fifth Circuit then erred in failing to

remand the case to allow the District Court to properly

allocate causal negligence among the government, and

the individual flight crew members. Texas law then

clearly requires allocation of some percentage of causal

negligence to the government.*? The precise allocation

would determine whether the flight crew member

32 In the Court of Appeals, the government argued against

application of the objective standard, and Petitioners’ formula-

tion of the specific proximate cause inquiry applicable in this

case. It never argued that, under Petitioners’ test, the District

Court’s subsidiary fact findings did not conclusively establish

the government's negligence as a concurring proximate cause

under Texas law.

33 See id. The applicable Texas Pattern Jury Charge com-

parative negligence submission also supports this view. It

requires the trier of fact to ascertain the percentage of causal

negligence, not the percentage, if any. 1 Texas Pattern Jury

Charges PJC 4.03A (2d ed. 1987). (App., infra, 106)

| EN

survivors, and Delta, have viable damage claims.*4 The

clearly erroneous standard then would govern any subse-

quent appellate review of the District Court’s allocation.5

The Fifth Circuit’s failure to conduct a de novo review

of the District Court’s determination of the dispositive

issue of Texas proximate cause law deprived Petitioners

of meaningful appellate consideration of that outcome

determinative issue. The Supreme Court’s intervening

decision in Russell establishes that the Fifth Circuit erred

in reviewing the District Court’s determination under the

deferential “great weight” standard. The appropriate

relief in these circumstances is for the Supreme Court to

grant the Petition for Writ of Certiorari, vacate the judg-

ment below, and remand this case to the United States

Court of Appeals for the Fifth Circuit for reconsideration

in light of the Russell decision.%

34 The Court of Appeals erred in stating: “ . . . since Texas

does not maintain a pure comparative negligence system, the

outcomes of Mrs. Connor’s [sic] and Mrs. Nassick’s wrongful

death actions . . . would not be altered unless the air controllers

were found to be at least equally at fault with the aircrew. ...” 919

F.2d 1088 n.7 (App., infra, 19) The fellow servant bar prevents

imputation of one flight crew member’s fault to another. Thus,

each set of survivors recover unless the district court allocates a

greater percentage of causal negligence to the respective decedents.

35 Should the District Court on agreement allocate 0% to

the government, that would directly present the question of

whether the trier of fact must allocate a percentage of causal

negligence to each tortfeasor. That would present another issue

of modern Texas comparative negligence law.

36 E.g., Kirwin v. Romano, 425 U.S. 929 (1976); John Nuveen

& Co. v. Sanders, 425 U.S. 929 (1976); Lash v. Aikens, 425 U.S. 947

(1976); R. Stern, E. Gressman, & S. Shapiro, Supreme Court

Practice 203 (6th ed. 1986).

CONCLUSION

The Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit should be

granted, the judgment below vacated, and the case

remanded for further consideration in light of the

Supreme Court’s intervening decision in Salve Regina Col-

lege v. Russell, 59 U.S.L.W. 4219 (March 20, 1991).

Respectfully submitted,

Georce Lucas AsHLey, Esa.,

Counsel of Record, and

JoHN H. Martin, Esa.

THOMPSON & KNIGHT,

A Professional Corporation

3300 First City Center

1700 Pacific Avenue

Dallas, Texas 75201

214/969-1700

214/969-1751 (FAX)

Attorneys For Petitioners

App. 1

{In re AIR CRASH AT DALLAS/FORT WORTH

AIRPORT ON AUGUST 2, 1985.

Kathleen E. CONNORS, on behalf of the bene-

ficiaries of, and as Executrix of the Estate of

Edward M. Connors, Deceased, and Delta Air

Lines, Inc., Plaintiffs-Appellants,

UNITED STATES of America,

Defendant-Appellee.

Jean R. NASSICK, on behalf of the benefici-

aries of, and as Executrix of the Estate of Nick

N. Nassick, Deceased, Plaintiffs-Appellants,

UNITED STATES of America,

Defendant-Appellee.

No. 89-146.

United States Court of Appeals,

Fifth Circuit.

Jan. 2, 1991.

Rehearing Denied Jan. 29, 1991.

Alan Wilson, Law, Snakard & Gambill, Fort Worth,

Tex., for Connors.

John H. Martin, G. Luke Ashley, Maureen Murry,

Michael R. Berry, Thompson & Knight, Dallas, Tex., for

Delta Airlines, Inc.

Marvin K. Adams, Fillmore & Harrington, Fort

Worth, Tex., for Nassick.

Clay Warner, Gary Green, Herndon, Va., for amicus

curiae Air Line Pilots Ass‘n, Intern.

App. 2

Kathlynn G. Fadely, Douglas Coleman, Dept. of Jus-

tice, Torts Branch, Civil Div., Washington, D.C., for U.S.

Appeal from the United States District Court for the

Northern District of Texas.

Before GOLDBERG, GEE, and WILLIAMS, Circuit

Judges.

GEE, Circuit Judge:

A little after 6:00 p.m., on August 2, 1985, the crew of

Delta Flight 191 attempted to land at Dallas-Fort Worth

International Airport (DFW) despite their knowledge of

the presence of a thunderstorm on near final approach,

between their aircraft and the runway. The ensuing air

disaster claimed the lives of most of the passengers and

crew, as well as that of a motorist whose automobile was

struck by the careening aircraft.

In a bench trial, the district court concluded that,

although both the aircrew and the government ground

personnel were negligent, the negligence of the air traffic

controllers in failing to warn of the storm was not a

proximate cause of the tragedy because the crew of Flight

191 required no such warning —- knowing what was

known on the ground of the storm and more - and would

not have acted on it. It therefore gave judgment for the

United States. The court’s opinion and findings may be

found at 720 FSupp. 1258. Delta Airlines and the estates

and survivors of certain crew members appeal, chiefly

asserting as error that the court misapplied the Texas law

of proximate cause and that its findings of historical fact

are clearly erroneous in various critical respects.

App. 3

FACTS

The opinion of the district court is lucid and exhaus-

tive, and we recapitulate its findings here in part only for

the convenience of the reader of our decision.

Flight 191 departed Fort Lauderdale, Florida, at 4:21

p.m. EDT, August 2, 1985. The aircraft was a Lockheed

L-1011, with an on-board weather radar which district

court found was not used during the fatal approach to

DFW airport. The following is a brief! summary of the

events leading up to the Flight 191 crash.

Time Event

5:12:26 Flight 191’s Captain Connors receives

approval from government air traffic control-

lers to route his approach to DFW over Blue

Ridge, a path with heavier air traffic but better

weather conditions than the Scurry area, over

which Flight 191 originally was routed.

5:25:00 The meteorologist at the DFW Central Weather

Service Unit (CWSU), an agency that aids air

traffic controllers in the dissemination of

weather information to aircraft pilots, leaves

his post to take a dinner break, not to return

until after Flight 191 crashed.

5:35:26 Flight 191 receives a recorded weather dis-

patch from DFW that had been prepared at

4:45 p.m. The dispatch tells Flight 191, among

other things, that the temperature was 101, the

1 The district court opinion includes a 20 page minute by

minute (and in some cases second by second) chronology of

the “most significant events” from 5:03:59 p.m., until 6:05:56

p-m. on August 2. This abridged version was culled from the

district court’s opinion.

5:45:00

5:50:00

3:92:19

5:52:00

5:55:00

5:56:26

5:58:00

App. 4

dew point was 67, and that planes were mak-

ing visual approaches to the airport. (The gap

between the temperature and dew point

should have been a clue to the pilots that

thunderstorms could develop.)

Various personnel at DFW begin to notice

clouds building up north of the airport.

Thunderstorm Cells “D” and “C” began to

form and appear on ground radar.

Flight 191 Second Officer Nassick observes.

“Looks like it’s raining over Fort Worth”; an

unknown voice comments . . . “Dallas”

Cells D and C would appear on Flight 191’s

on-board radar at about this time were if opel-

ating.

An air traffic controller in the DFW tower

observes cloud-to-ground lightning east-

northeast of the airport. This lightning bolt

was associated with a grey cloud and an area

of rain.

Three airport mechanics stop to look at the

storms off the north end of the runways. One

later testified that the “wall of water” was the

heaviest rain he had seen during his nine

years at DFW.

Controllers notify all aircraft: “There’s a little

rain shower just north of the airport and

they’re starting to make ILS approaches... . ”

The ground radar left unmanned by the mete-

orologist’s dinner break should be indicating a

VIP (Video Integration Process) level of 3 for

Cell D. It was the practice of the CWSU to

notify air traffic controllers of VIP level 3

storms.

App. 5

Other pilots in the same area as Flight 191 note

heavy storm activity on their on-board

weather radars. If activated, Flight 191’s on-

board radar would have indicated to the cock-

pit crew that Cell D was an intense storm.

Cell D hovers a few hundred years off the

north end of the DFW runways; Cell C, a

much less intense storm - essentially just a

rain-shower — iies just to the north of Cell D. If

operating, Flight 191’s on-board radar would

have penetrated Cell C to reveal Cell D as a

dangerous storm.

:59:00 An air traffic controller at DFW informs his

supervisor that he has heard thunder, assumes

that there were thunderstorms outside.

5:59:43 An air traffic controller broadcasts that there is

a “little bitty thunderstorm” that “looks like a

little rain shower” at DFW. This controller

apparently is talking about Cell C. Flight 191,

tuned to a different radio frequency, misses

this transmission.

5:59:47 As Flight 191 turns on its approach path, First

Officer Price jokes “we’re gonna get our air-

plane washed.” Flight 191’s crew can see Cell

D straight ahead and to the left of them and

are obviously flying close to some type of

convective activity and rain.

6:00:00 An air traff¢ controller in the DFW tower

again observes lightning to the east-northeast

of the runways.

6:00:00 -

6:04:00 A pilot on the ground waiting to take off

observes the worst thunderstorm he has ever

seen: “It was a solid sheet or wall of water

moving toward the airport with unbelievable

intensity.’

a a,

App. 6

6:01:20 A controller repeats the general broadcast

(which Flight 191 again does not hear) that “a

little rain shower just popped up north of the

airport.” This apparently refers to Cell D.

6:02:30 Flight 191 is cleared for instrument landing on

runway 17L.

6:03:31 An air traffic controller advises another Delta

flight that “we’re getting some variable winds

out there due to a shower on short final out

there north end of DFW.” Flight 191 appar-

ently hears this transmission because it is on

the same frequency. An unidentified crew

member of Flight 191 remarks “stuff is moving

in.”

6:03:32 Pilots on the ground waiting to take off see

what appears to be a waterspout in the dark

sky and heavy rain off the approach end of

runway 17L.

6:03:58 Flight 191’s Captain Connors remarks to the

air traffic controller that Flight 191 “is out here

in the rain, feels good.”

At about the same time, the following conver-

sation takes place between an air traffic con-

troller in the DFW tower and the traffic control

supervisor. Controller: “We’ve been busy with

these SWAPS and hadn’t paid any attention,

but that is heavy, heavy rain off the approach

end of both runways... .” The Supervisor,

referring to his radar, replies “yeah, I can see

that.” (The district court found that these gov-

ernment employees were referring to Cell D

and that the air traffic controller was aware of

this weather situation at or before 6:03:30.)

6:04:18 The following conversation occurs in the cock-

pit of Flight 191.

First Officer Price: “Lightning coming out of

that one.”

amen ialniatlial

6:04:00 —

6:05:00

6:05:08

6:05:04 —

6:05:18

6:05:19

6:05:21

App. 7

Captain Connors: “What?”

First Officer Price: “Lightning coming out of

that one.”

Captain Connors: “Where?”

First Officer Price: “right ahead of us.”

(At this time the aircraft is over five miles out,

at an altitude between 2000 and 1500 feet.)

Pilots on the ground waiting to take off see

what looks like a tornado off the end of the

DFW runways. This phenomenon is also

referred to in testimony as a wall of water, a

shaft of heavy rain, a hail shaft, and a micro-

burst. These pilots apparently also see light-

ning in this storm.

An aircraft immediately ahead of Flight 191 on

final encounters extremely heavy rain and

light-to-moderate turbulence as it lands on

runway 17L.

Captain Connors comments “672 in the baro,”

thereby telling Price that he intends to go

down to 200 feet and at that time will decide

whether to land or execute a missed approach.

Flight 191’s air speed suddenly increases by 20

knots, from 153 to 173 knots, because of

increased headwinds as the plane enters Cell

D. (See segment B-C, on appendix A “Down-

draft Shear.”)

Captain Connors recognizes air speed increase

and tells Price to “watch your speed.”

Captain Connors warns Price, “You’re gonna

lose it all of a sudden, there it is.” Connors

was referring to an impending sudden loss in

airspeed that would occur when the surging

App. 8

headwinds decreased. To urgent commands of

“push it up, push it up, way up” by both

Connors and the Second Officer, Price opens

the throttle. Engine sounds increase imme-

diately.

6:05:30 Connors states “that’s it.” Ground proximity

alarms are sounding.

6:05:35 -

6:05:36 Flight 191, on the verge of stalling out, begins

an involuntary roll to the right, even though

the pilot attempts to control it. Henceforth

Flight 191 is no longer attempting to land but

instead is attempting a missed approach.

6:05:52 Flight 191 goes in 6,336 feet short of the run-

way and approximately 360 feet off-line,

bounces several times and breaks up.

6:05:56 The air traffic controller instructs Flight 191

“Delta go around.”

These facts are essentially undisputed.2 Everyone

agrees that the airplane crashed when it encountered an

unusually strong downdraft windshear? in the Cell D

thunderstorm. The dispute in this case, however, centers

around whether the Delta flight crew or the government

air traffic controllers were to blame for the airplane’s

entry into Cell D. The district court held: (1) the flight

crew's negligence was a proximate cause of the accident,

(2) Delta was not negligent in training its pilots to detect

2 Appellants maintain that the aircraft’s on-board radar

was functioning but do not attack the district court’s contrary

finding as clearly erroneous. Thus for our purposes the finding

stands.

3 A windshear is a sudden change in the wind’s speed or

direction. Appendix A explains the effect which a downdraft

windshear has on an aircraft attempting to land.

App. 9

and avoid windshear, (3) the Delta meteorology and

flight control dispatch department was not negligent in

failing to give Flight 191 updated weather information,

(4) Captain Connors’ negligence in flying while he was

taking medication was not a proximate cause of the acci-

dent, (5) the controllers were not negligent in failing to

route Flight 191 to a different runway, and (6) the air

traffic controllers were negligent in not relaying weather

information to Flight 191, but this negligence was not a

proximate cause of the crash. The only factual findings

assigned as error are (5) and the proximate cause aspect

of (6).

ANALYSIS

Before entering on a discussion of appellants’ points

of error, it is well to remind ourselves of two basic

considerations, one legal and the other factual, which

bear on the case.

The first of these is the preeminent authority of the

captain, the airplane commander. Although aircraft oper-

ational safety is the responsibility both of ground person-

nel and of the air crew, “[t]he pilot in command of an

aircraft is directly responsible for, and is the final author-

ity as to, the operation of that aircraft.” 91.-3(a) RA.R. On

all matters drawn before the Court by this appeal -

including the choice of runway and the decision whether

to land or to go around - the captain of Flight 191 had the

final word.

The second is that Flight 191 was in no necessity to

brave the known thunderstorm over the end of the run-

way: fuel was ample, even to land at its alternate airport;

App. 10

and, except for various discrete squalls in the area, the

weather was not troublesome.

Runway Change

The foregoing principles go far to dispose of appel-

lants’ contention of clear error in the court’s finding that

the controllers were not negligent in failing to order

Flight 191 to land on a different runway. The court cor-

rectly observed that:

The Air Traffic Controller manual never requires

that a runway be changed; it only lists criteria to

be considered in contemplating a

change... wind is the primary factor in electing

to change runways. . . the ATC manual directs

that, if feasible, the runway most aligned with

the wind is to be used when wind velocity is

greater than or equal to five kruts ... there was

no wind shift before the accident.

Appellants contend that these findings are clearly erro-

neous, but cite no evidence countering the court’s conclu-

sions. Appellants also maintain that the district court

ruled that mere compliance with the ATC manual con-

clusively established that the controllers had exercised

ordinary care. We disagree. A fair reading of the district

court’s opinion shows that the court considered the hand-

book and ordinary controller practice as evidence of what

would be ordinary care under these circumstances. The

district court did not clearly err in finding that the con-

trollers were not negligent in failing to order Flight 191 to

land on a different runway. The runway in use was the

one most nearly aligned with the prevailing wind;

another aircraft had just landed safely on it; and, had the

aircrew of Flight 191 wished to avoid the small thunder-

storm over the end of it, they had every right to break off

their approach, abort the landing, and hold until the

runway cleared or another more to their liking became

available.

App. 11

Proximate Cause

The district court held that the air traffic controllers

were negligent in not transmitting to Flight 191 the fol-

lowing pertinent weather information that was known to

the air traffic controllers before the crash:

(1)

(2)

(3)

(4)

A thunderstorm was occurring off the

approach end of the threshold of runway

17L.

“Heavy, heavy” rain was observable from

the Tower. This heavy, heavy rain was

described by eyewitnesses as a wall or cur-

tain of water, portions of which resembled

a tornado.

The presence of cloud to ground lightning

strikes in the vicinity of the storm to the

north of the field beginning as early as 5:55

p.m. and continuing up until at least

shortly before the accident. At least 5 FAA

employees in the Tower saw the lightning

before the accident.

The presence of cumulonimbus (thunder-

storm) clouds, observed by the official

NWS weather observer at 5:51 p.m. This

observer promptly reported his sightings to

the Tower personnel.

Radar information showing precipitation

returns on the north end of the runway.

neem

App. 12

After finding that the government air traffic control-

lers were negligent, however, the district court went on to

hold that:

Any failure of the air traffic controllers to warn

a pilot of the presence of a storm in his path

cannot be regarded as a continuing proximate

cause after the pilot himself discovered its pres-

ence, appreciated the danger, and decided to fly

ahead into it. Black v. United States, 441 F.2d 741,

745 (Sth Cir.1971), cert. denied, 404 U.S. 913 [92

S.Ct. 233, 30 L.Ed.2d 186] (1971). The Court is of

the opinion that the crew of Flight 191 possessed

substantially all of the weather information

potentially available from government sources.

In fact, the crew was aware of additional condi-

tions unknown by government sources, ¢.g.,

windshear and lightning in Cell D. The Court

considers the failure of governmental employees

to pass on weather information to have been

inconsequential to the fate of Flight 191 in that

there is no evidence that the crew would have

acted differently with this confirmation of infor-

mation already known.

A. Appellants’ Arguments

Proximate cause in Texas law consist of two elements:

(1) cause in fact (“but for” causation) and (2) fore-

seeability. Appellants commence their argument on this

head by suggesting that we may review the district

court’s conclusion on proximate cause de novo. We dis-

agree; although the law applied by the district court is

reviewable de novo, the court’s ultimate determination of

proximate cause, like a finding of negligence, is a finding

of fact that is reviewable under the clearly erroneous

standard only. Pullman-Standard v. Swint, 456 U.S. 273, 102

App. 13

S.Ct. 1781, 72 L.Ed.2d 66 (1982); 53 Tex.Jr.3d, Negligence

§ 129.

Appellants next advance a variety of contentions that

the district court applied improper law to the facts in this

case:

First, appellants maintain that the district court fash-

ioned and applied an erroneous rule of law to conclude

that the controllers’ negligence was not a proximate cause

of the accident. Appellants argue that the Black4, case,

cited by the district court as support for its conclusion on

proximate cause, applied Louisiana proximate cause law,

which defined proximate cause as:

the primary or moving cause . . . when negli-

gence is established, liabiity attaches for all

injurious consequences that flow therefrom until

diverted by intervention of some efficient cause

that makes the injury its own, or until force set

in motion by a negligent act has so far spent

itself as to be too small for the laws’ notice.

They suggest that this definition of proximate cause does

not allow for the possibility of multiple proximate causes

of an event. Texas, on the other hand, defines proximate

cause as:

that cause which, in a natural and continuous

sequence, produces an event, and without

which cause such event would not have

occurred. In order to be a proximate cause, the

act or omission complained of must be such that

4 Black v. United States, 441 F.2d 741 (5th Cir. 1971).

App. 14

a person using ordinary care would have fore-

seen that the event, or similar event, might rea-

sonably result therefrom. There may be more

than one proximate cause of an event.

Appellants claim that, by following Black, the district

court applied Louisiana’s proximate cause law as of 1971,

whereas the district court should have applied Texas’

current proximate cause law.

They also contend that the district court, in the por-

tion of its “Memorandum Opinion” cited at p. 1085

above, essentially held that the flight crew’s negligence in

not aborting the landing after they sighted lightning dead

ahead and first noticed a windshear constituted a new

and independent cause of the accident that broke the

chain of causation from the controllers’ negligence.

Appellants suggest that under Texas law the crew’s negli-

gence could not constitute a new and independent cause

because, in Texas, only an act or omission of some outside

person or agency not a party to the lawsuit can constitute

a new and independent cause.

Next, Appellants contend that the district court, in

holding that the flight crew’s later negligence overrode

any negligence on the part of the air traffic controllers,

revived the old precomparative negligence doctrines of

last clear chance and discovered peril. Appellants’ argu-

ment on this point arises from the district court’s obser-

vation that “[a]ny failure of the Air Traffic Controllers to

warn a pilot of the presence of a storm in his path cannot

be regarded as a continuing proximate cause after the

pilot himself discovered its presence, appreciated the

danger and decided to fly ahead into it.” (emphasis

added).

= Cle lla

ete ea Sette

ES OR OE pw hee A Retain.

App. 15

Finally, appellants assert that, under the proper stan-

dard of Texas proximate cause law, it was conclusively

established that the controllers’ negligence was a proxi-

mate cause of the accident. They argue that the control-

lers’ negligence was a “but for” cause of the accident if

proper warnings and advice probably would have caused

a reasonably prudent crew, unaware of the actual weather

conditions, to avoid Cell D before entering it at 6:04:00 or

to execute a missed approach before 6:05:35 p.m. Appel-

lants argue alternatively that even if a subjective standard

should be applied to the “but for” element, the actual

conduct of the Delta crew indicates that they would have

heeded proper warnings from the controllers

B. Appellants’ Arguments Considered

Appellants’ most serious contention is the first set

out above: that the trial court applied some law of proxi-

mate cause other than that of Texas and hence arrived at

an erroneous result. We review such claims of legal error

de novo, but a careful examination of this one leaves us

unconvinced.

Almost twenty pages into the trial court’s opinion,

and after a most searching consideration of the facts, it

turns to the law. At 720 Federal Supplement, pages 127%

and 1279, the court states clearly that the governing law

is that of Texas, briefly outlining that law and referring to

representative Texas authorities discussing proximate

cause. The court’s discussion of Texas proximate cause

law alone covers over half of a printed page. The trial

judge has enjoyed a long experience of the law of Texas -

his native state - and it has long been the view of our

App. 16

Circuit that the views of such jurists as to state law are

deserving of great weight. See Westinghouse Electric Supply

Co. v. Wesley Construction Co., 414 F.2d 1280, 1281 n. 1 (Sth

Cir.1969). By a parity of reasoning we are entitled to

assume a general knowledge of that law on the part of

such a magistrate, certainly of its basic principles.

That there may be more than one proximate cause of

an event is such a principle of the Texas (and general) law

of proximate cause, and the suggestion that the experi-

enced trial judge may have been ignorant of such a basic

element of Texas tort law is a bold one indeed. The fact

that further on in the opinion the court cites to Black, a

federal case applying Louisiana law and arriving at a

similar judgment on facts similar to those of today’s case,

falls far short of persuading us that the court, in the

process of delivering its painstaking opinion, somehow

forgot what law it was applying after having announced

and expounded it in some detail. But even if that were so,

which we do not concede, on this point the law of Louisi-

ana is uncharacteristically the same in general import as

the law of Texas.

Nor does the somewhat elided quotation from Black,

borrowed by us from appellant’s brief and set out above

at p. 1085, do full justice to the Louisiana definition.

Indeed, the language removed by appellants is all but

identical to the Texas definition. We restore and emphas-

ize it below:

. . The proximate cause of an injury is the

primary or moving cause, or that which, in a

natural and continuous sequence, unbroken by any

efficient intervening cause, produces the injury and

without which the accident could not have happened,

App. 17

if the injury be one which might be reasonably antic-

ipated or foreseen as a natural consequence of the

wrongful act.

Black, 441 F.2d, at 743-44.

In addition, it is and long has been the law of Louisi-

ana that there may be more than one proximate cause of

an event; indeed, this view is peculiar to neither Texas

_nor Louisiana law, but rather is the generally prevailing

one. Miller Car Washes, Inc. v. Crowe, 245 So.2d 485, 495-96

(La.App.1971) (citing 65 C.J.S. 1179-83). Thus, while there

may be esoteric nooks where Louisiana law of proximate

cause differs from that of Texas, on the broad principles

controlling here there is no significant variance; and had

the trial court followed Louisiana law no harmful error

would have accrued.

We take a similar view of appellants’ contentions that

the trial judge revived and applied the long-defunct doc-

trines of last clear chance and discovered peril, or viewed

the aircrew’s persistence in landing despite the storm as a

new and independent cause of the accident. It is certainly

possible to read the passages which appellants seize upon

and quote in such a manner, just as it is possible to read

visions of archery into a reference to an upshot. To do so,

however, it would be necessary for us to assume that the

court was ignorant (and uninformed by counsel) of a

decade’s developments in Texas tort law, a most unlikely

circumstance. Instead, we understand the courts temporal

references as simply observations along the way to a

determination that the sole proximate cause of the catas-

trophe was the deliberate decision of Flight 191’s experi-

enced crew to enter Cell D, despite having observed the

App. 18

tell-tale lightning that clearly marked it as a thunder-

storm.°

Sometimes even Homer nods; and - despite the air-

crew’s long experience — we cannot gainsay the court’s

apparent view that when Flight 191 chose to fly into a

thunderstorm at a low altitude and speed it chose to dice

with death. The better choice is represented by the stan-

dard pilot’s maxim, quoted in United States Exhibit 741:

“If in doubt, get out”!© Nor can we hold clearly erroneous

the court’s factfinding that telling the crew again what it

already knew first-hand would have made no difference

in its actions. The court’s finding that the crew’s deliber-

ate decision to land through a known thunderstorm

located at the end of the runway, when they could easily

have gone around, was the sole proximate cause of this

5 In addition, the factors underlying the concepts of last

clear chance and discovered peril remain fully viable today in

the practical calculus of identifying causes of an event, despite

the abolition of their status as formal, legal doctrine. For legal

doctrine may be subject to change by judges, but reason and

logic are not: Say what the court will, two and two remain

four; and when we seek to identify the efficient causes of an

event, phrases such as “She knew what she was getting into”

and “He should have checked first to be sure it wasn’t loaded”

come crowding in willy-nilly.

and there are bold pilots; but there are no old, bold pilots.”

Appellants attack as clearly erroneous the court’s factfinding that

the aircrew “possessed substantially all of the weather information

potentially available from government sources.” The attack is

futile, however; for it is apparent, indeed undisputed, that the crew

knew all of the information that the court held the traffic control-

lers negligent in not transmitting (listed in text at p. 1085) except

the appearance of the storm as viewed from the control tower, a

matter of little consequence.

App. 19

disaster is not clearly erroneous; and its judgment for the

United States must therefore be

AFFIRMED.?7

APPENDIX A

? This case was well-tried and superbly presented on appeal

by both sides; but our study of the record makes plain that

although the question whether any amount of cause should be

attributed to the air controllers is a close one, the question whether

a decision that none should be is clearly erroneous is not. Further,

we take some comfort in the circumstance that, since Texas does

not maintain a pure comparative negligence system, the outcomes

of Mrs. Connor’s and Mrs. Nassick’s wrongful death actions and of

Delta’s claim for the value of its aircraft would not be altered

unless the air controllers were found to be at least equally at fault

with the aircrew —- a finding which on this record would almost

surely be “clearly erroneous.”

App. 20

DOWNDRAFT SHEAR

There is a strong downdraft in the center of the cell.

There is often heavy rain in this vertical flow of air. As

the vertical air flow nears the ground it turns 90 degrees

and becomes a strong horizontal wind, flowing radially

outward from the center. Point A represents an aircraft

which has not entered the cell’s flow field. The aircraft is

on speed and on glide slope. At Point B the aircraft

encounters an increasing headwind. Its airspeed

increases, and it balloons above the glide slope. Heavy

rain may begin shortly. At Point C the “moment of truth”

occurs. If the pilot does not fully appreciate the situation,

he may attempt to regain the glide slope and lose excess

airspeed by reducing power and pushing the nose down.

Then in the short span of time between Points C and D

the headwind ceases, a strong downdraft is entered and a

tailwind begins increasing. The engines spool down [go

to idle], the airspeed drops below V.ref, and the sink rate

becomes excessive. A missed approach initiated from this

condition may not be successful. Note that a missed

approach initiated at Point C (or sooner) would probably

be successful since the aircraft is fast and high at this

point. Note also that the pilot of an aircraft equipped

with a groundspeed readout would see that telltale signs

of a downburst cell shortly after Point B; i.e., rapidly

increasing airspeed with decreasing groundspeed.4

App. 21

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 89-1946

D.C. Docket No. CA4 87 060 K

(Filed Jan. 9, 1991)

In re AIR CRASH AT DALLAS/FORT

WORTH AIRPORT ON

AUGUST 2, 1985.

Kathleen E. CONNORS, on behalf of the bene-

ficiaries of, and as Executrix of the Estate of

Edward M. Connors, Deceased, and Delta Air

Lines, Inc., Plaintiffs-Appellants,

UNITED STATES of America,

Defendant-Appellee.

Jean R. NASSICK, on behalf of the beneficiaries

of, and as Executrix of the Estate of Nick N.

Nassick, Deceased, Plaintiffs-Appellants,

UNITED STATES of America,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Texas

Before GOLDBERG, GEE and WILLIAMS, Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on

appeal and was argued by counsel.

App. 22

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the District Court in this cause is affirmed.

IT IS FURTHER ORDERED that plaintiffs-appellants

pay to defendant-appellee the costs on appeal to be taxed

by the Clerk of this Court.

January 2, 1991

ISSUED AS MANDATE: FEB 8 1991

App. 23

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 89-1946

(Filed Jan. 29, 1991)

IN RE: AIR CRASH AT DALLAS/FORT WORTH AIR-

PORT ON AUGUST 2, 1985

KATHLEEN E. CONNORS, on behalf of the ben-

eficiaries of, and as executrix of the estate of

EDWARD M. CONNORS, Deceased, and DELTA

AIR LINES, INC.,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee,

* * *

JEAN R. NASSICK, on behalf of the beneficiaries

of, and as executrix of the estate of NICK N.

NASSICK, Deceased,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

App. 24

ON PETITION FOR REHEARING

(JANUARY 29, 1991)

Before GOLDBERG, GEE and WILLIAMS, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby DENIED.

CLERK’S NOTE:

ENTERED FOR THE SEE FRAP AND LOCAL

COURT: RULES 41 FOR STAY

/s/ THOMAS GIBBS GEE OF THE MANDATE.

United States Circuit Judge

sat te

App. 25

In re AIR CRASH AT DALLAS/FORT

WORTH AIRPORT ON AUGUST

2, 1985.

Kathleen CONNORS, et al.

Vv.

UNITED STATES of America.

MDL No. 657.

No. CA4-87-060-K, CA4-87-139-K.

United States District Court,

N.D. Texas,

Fort Worth Division.

Sept. 1, 1989.

John Martin, Thompson & Knight, Dallas, Tex., for

Delta Air Lines.

Alan Wilson, Law, Snakard & Gambill, Fort Worth,

Tex., for Mrs. Connors.

John Herrick, Ft. Worth, Tex., for Mrs. Nassick.

Kathlynn Fadely, Roy Krieger, Torts Branch, Civ. Div.

U.S. Dept. of Justice, Washington, D.C., for US.

MEMORANDUM OPINION

BELEW, District Judge.

This lawsuit! arises out of an airplane crash that

occurred at Dallas/Fort Worth International Airport

1 The trial, with interruptions, lasted 14 months. In addi-

tion to a large number of exhibits, there are more than 18,000

(Continued on following page)

App. 26

(“DFW”) on August 2, 1985. At the time of the accident,

the aircraft, a Lockheed L-1011-385-1, was cleared for an

ILS approach? to Runway 17 Left (17L). The flight, identi-

fied as Delta Flight 191 (hereinafter DL 191) originated in

Fort Lauderdale, Florida and was bound for Los Angeles,

California, with an intermediate stop at DFW. It was

equipped with a Bendix model RDR-1F monochromatic

weather radar system.

At the time of the crash there were one hundred

sixty-three (163) people on board - one hundred fifty-two

(152) passengers and eleven (11) crew members. As a

result of the crash, one hundred thirty-seven (137) people

were killed — one hundred twenty-eight (128) passengers,

(Continued from previous page)

pages of transcribed testimony. The attorneys submitted excel-

lent briefs and indices which were highly beneficial to the

Court.

2 The Instrument Landing System (ILS) is designed to

provide an approach path for exact alignment and descent of

an aircraft on final approach to a runway.

The ground equipment consists of two highly directional

transmitting systems and, along the approach, three (or fewer)

marker beacons. The directional transmitters are known as the

localizer and glide slope transmitters.

The system may be divided functionally into three parts:

(a) Guidance information - localizer, glide

slope

(b) Range information - marker beacon, DME

down and centerline lights, runway lights.

App. 27

eight (8) crew members, including the Captain, First Offi-

cer and Second Officer, and one (1) person on the ground.

I. STATEMENT OF THE CASE

One hundred eighty-two (182) claims were made and

one hundred fifteen (115) lawsuits? were filed against

Delta Air Lines, Inc. (“Delta”) as a result of the crash of

DL 191.4

In a separate action, Kathleen E. Connors, widow of

the pilot Edward N. Connors (“Captain Conners”), and

Jean R. Nassick, widow of the Second Officer, Nick

Nassick, sued the United States individually and on

behalf of the statutory beneficiaries under the Texas

Wrongful Death Act® and on behalf of the estates of

Connors and Nassick under the provisions of the Texas

3 Pursuant to 28 U.S.C. § 1407 all cases filed in various

federal courts throughout the U.S. were transferred to this

Court for discovery and preparation for trial.

4 At the initial MDL organizational meeting in January,

1986, counsel for all Plaintiffs and Defendants were present

and Robert Alpert, Senior Vice President and Director of

Claims for U.S. Aviation Underwriters announced that anyone

who wanted a trial on actual damages could have one imme-

diately and liability would not have to be proven. He assured

the attorneys that no claimant would suffer tinancially while

awaiting trial or settlement. Liability would have to be proven

in cases in which punitive damages were sought. The Court

considered this gesture on behalf of Delta most commendable.

5 Tex.Civ.Proc. & Rem. § 71.001 et. seq.

App. 28

Survivors Act. These two suits were consolidated with

Delta’s suit by Order of the Court. Delta joined as a

Plaintiff in these suits against the United States of Amer-

ica alleging negligence on the part of the employees of

the Federal Aviation Administration and the National

Weather Service to establish liability and to recoup dam-

ages suffered by Delta as a result of the crash. These

damages include money paid pursuant to settlements of

personal injury and death claims” and judgments against

it, as well as for the value of the aircraft.

On September 9, 1986, the Court granted leave to

Delta to file a third-party complaint in all cases in which

it had been named as a defendant. Once the consolidated

pre-trial proceedings mandated by order of the Judicial

Panel on Multi-District litigation was completed, Delta’s

third-party claims were bifurcated from all individual

Plaintiff’s cases. This Court retained jurisdiction over all

* Captain Connors had been employed by Delta since its

merger with Northeast Airlines in 1972. At the time of the

accident Captain Connors had in excess of 20,000 hours of

flying experience, 3,000 of which were in the Lockheed L-1011.

First Officer Rudolph P. Price, Jr. had been employed by

Delta since 1970. He had accumulated 6,500 hours of flight

time, of which approximately 1,200 were in the L-1011. He was

flying the approach to 17L at the time of the accident. His

estate did not file suit.

Second Officer Nick Nassick had been a Delta employee

since 1976. Second Officer Nassick had approximately 6,500

hours of flight time, of which 4,500 were in the L-1011.

7 Delta and the United States entered into-a stipulation

(filed February 26, 1988) whereby the United States would not

object to any claim for contribution and/or indemnity later

made by Delta on the ground that Delta was a volunteer.

App. 29

the third-party claims and tried those claims with the

original suit filed by Mrs. Conners, on the issue of iia-

bility alone.

At the conclusion of this trial it was estimated that

the total value of claims paid and those still pending

would amount to between one hundred fifty million

($150,000,000.00) and two hundred million ($200,000,000.00)

dollars, including the loss of the L-1011 aircraft, valued

at twenty-four million seven hundred thousand

($24,700,600.00) dollars.

Il. BACKGROUND INFORMATION

A. DFW Airport

Dallas/Fort Worth International Airport is one of the

largest in area and busiest with respect to landings and

takeoffs in the United States. There are four principal

runways that run north and south.’ These runways are

11,388 feet in length and have a heading of 173 degrees.

They are numbered according to their magnetic bearing:

17L, 17R, 18L, and 18R.? The innermost runways, 17R and

18L, are approximately one mile apart. The Tower, termi-

nals, hotels, and other buildings are located between the

innermost runways.

8 The fifth and sixth runways are considerably shorter

than the four principal runways and are aligned toward the

northwest/southeast.

% When landing from the south, these runways are num-

bered 35L, 35R, 36L, and 36R. The magnetic bearing is 353

degrees.

praia a

App. 30

There are four points that are considered gateways to

the airport. Each point, or “corner post,” is about 35 miles

from the ends of the runways. The corner posts are

known as Blue Ridge (northeast), Scurry (southeast),

Acton (southwest), and Bridgeport (northwest). Depend-

ing on the direction of arrival, planes are brought over

these corner posts by the Air Route Traffic Control Center

(“ARTCC”) and turned over to the Terminal Radar

Approach Control (“Tracon”) for landing alignment and

sequencing. Generally, planes coming in from the west

use Acton or Bridgeport and land on runways 18L or 18R,

and planes coming in from the east use Blue Ridge or

Scurry and land on 17L or 17R.

B. The Federal Aviation Administration

In 1958, Congress passed the Federal Aviation Act to

centralize in a single entity, the Federal Aviation Admin-

istration, the authority to make rules and regulations

concerning air safety and to develop a system for the safe

and efficient use of the National Airspace. In 1966, the

Federal Aviation Administration (FAA) was placed in the

Department of Transportation.

Pursuant to its responsibilities under the Act, the

FAA divided the continental United States and the air-

space above into twenty (20) contiguous regions. Within

each region is an Air Route Traffic Control Center

(ARTCC). The Fort Worth ARTCC covers parts of five (5)

states: Oklahoma, Texas, Arkansas, Louisiana, and New

Mexico.

App. 31

(1) “ The Air Route Traffic

Control Center

The ARTCC is staffed by Air Traffic Controllers!°

who utilize radar and radio communications to

10 The Air Traffic Control Handbook (Delta Ex. 5) states

that in providing air traffic control services the controllers

shall:

2-2 DUTY PRIORITY

a. Give first priority to separating aircraft and

issuing safety advisories as required in this hand-

book. Good judgment shall be used in prioritizing all

other provisions of this handbook based on the

requirements of the situation at hand.

2 2a Note. Because there are many variables

involved, it is virtually impossible to develop a stan-

dard list of duty priorities that would apply uni-

formly to every conceivable situation. Each set of

circumstances must be evaluated on its own merit

and when more than one action is required, the

controller shall exercise his best judgment based on

the facts and circumstances known to him. That

action which is most critical from a safety standpoint

is performed first.

b. Provide additional services to the extent

possible, contingent only upon higher priority duties

and other factors including limitations of radar, vol-

ume of traffic, frequency congestion, and workload.

2-2b Note. The primary purpose of the ATC

system is to prevent a collision between aircraft

operating in the system and to organize and expedite

the flow of traffic. In addition to its primary func-

tion, the ATC system has the capability to provide

(with certain limitations) additional services. The

ability to provide additional services is limited by

(Continued on following page)

App. 32

coordinate and regulate the flights of all airborne craft

within the region. The radar and communications sys-

tems are extremely elaborate and sophisticated.!! Also

assigned to the ARTCC is the Central Weather Service

Unit (“CWSU”) which aids the controllers in the dissem-

ination of weather information to pilots in the region.

(2) Tracon

ARTCC controllers are responsible for bringing the

planes bound for DFW to a corner post approximately

thirty-five (35) miles from the airport, at which point the

planes are turned over to the Tracon controllers. These

controllers are located on the ground floor of the Tower at

DFW. It is their responsibility to sequence, or align and

(Continued from previous page)

many factors, such as the volume of traffic, fre-

quency congestion, quality of radar, controller work-

load, higher priority duties, and the pure physical

inability to scan and detect those situations that fall

in this category. It is recognized that these services

cannot be provided in cases in which the provision

of services is precluded by the above factors. Consis-

tent with the aforementioned conditions, controllers

shall provide additional service procedures to the

extent permitted by higher priority duties and other

circumstances. The provision of additional services

is not optional on the part of the controller, but

rather is required when the work situation permits.

1! Each plane is depicted on the radar screen as a data

block which includes the flight number, speed, altitude, and

other information about the particular plane. The numbers

making up the data block move across the screen as the plane

moves.

App. 33

space, the planes in an orderly fashion for landing. Tra-

con then turns the planes over to the Tower controllers as

they begin their final approach seven (7) to ten (10) miles

from touchdown or landing on the assigned runway.

(3) The Tower

Controllers in the Tower use radar, visual sightings,

and verbal communication to provide air traffic control

services and weather information to aircraft arriving at

and departing from DFW. Once an airplane is “passed

off” from Tracon to the Tower, the tower controller directs

the final approach, landing, and taxi. The Tower is

located in the area between runways 17R and 18L and is

about equal distance (approximately one mile) from

either end of the runways.

C. Weather Facilities

After the Weather Bureau was abolished in 1965, the

National Oceanic and Atmospheric Administration

(NOAA) was created as the administrative head of the

various weather agencies and transferred with other

weather related entities to the Department of Commerce.

The organizational name of the Weather Bureau was

changed to the National Weather Service (“NWS”). 15

U.S.C. § 311, et seq.

The NWS provides the aviation community with a

variety of services from a number of different facilities.

These services include general forecasting, issuance of

warnings and advisories, consultations, and briefings.'?

12 Delta Ex. 86.

App. 34

NWS personnel do not communicate with pilots. Their

role for aviation interests is to create weather information

products for relay to FAA facilities, Air Traffic Control-

lers, airlines, and other such users.

(1) The Central Weather Service Unit

Following an air crash in 1977, the National Trans-

portation Safety Board (“NTSB”) recommended to the

FAA that immediate action be taken for the development

and implementation of a system for controllers to relay

severe thunderstorm and tornado bulletins to aircraft in

an airport terminal area. The FAA was urged to:

formulate rules and procedures for the timely

dissemination by air traffic controllers of all

available severe weather information to inbound

and outbound flight crews in the terminal

area.}3

Following this pronouncement, the Department of

Transportation/FAA and the NOAA/NWS entered into

an agreement in 1980'4 whereby the NWS would operate

CWSU’s at each ARTCC. In order to implement this

agreement for the Fort Worth Center, the NWS installed a

radar facility at Stephenville, Texas (“SEP”), 72 miles

from DFW Airport. The CWSU is located in the ARTCC

building just south of DFW. The CWSU receives its radar

image from SEP. The image received by CWSU is two

minutes old due to the time it takes for the information to

be translated into digital form, transmitted by phone

lines, and retranslated.

13 Delta Ex. 79.

14 Delta Ex. 23.

App. 35

The primary function of the CWSU at Fort Worth

ARTCC is to provide weather information to air traffic

controllers and staff, including ATC’s in the ARTCC,

Tracon, and Tower. The CWSU meteorologists do not

communicate with the pilots, but pass the weather infor-

mation to the ATC’s in the form of briefings and fore-

casts. After the information is received from the

meteorologist or weather coordinator, the ATC’s dissemi-

nate it to the pilots.

The Weather Coordinator (“WC”) functions as an

interface between the NWS meteorologist and the Air

Traffic Controllers. The WC is primarily responsible for

the inter/intrafacility disseminations of Sigmets,!°

CWA’s'® and urgent Pireps.'7 WC’s also provide assis-

tance in the collection and dissemination of other signifi-

cant weather information.

(2) The Weather Service Forecast Office

Responsibility for weather torecasting is divided into

fifty geographic areas. There is roughly one forecast

office for each state, although larger states, such as Texas,

have more than one office. The Weather Service Forecast

Office (“WSFO”) in Fort Worth is located in the Federal

Building in downtown Fort Worth.

1S Significant Meteorological Information (covers severe

weather).

16 Central Weather Advisory (an unscheduled weather

advisory regarding conditions currently existing).

17 Pilot Report.

App. 36

The principal function of the WSFO is to provide

general weather forecasts. The WSFO also performs spe-

cialized services for the aviation community. It provides a

forecast for a particular airport, or “terminal forecast,”

which generally addresses weather conditions affecting

airport ground functions. The WSFO also issues TWEBS

(Transcribed En Route Weather Broadcasts), describing

weather conditions along the most frequently flown

routes across North Texas. A third type of forecast is

given for International Travel.

(3) Weather Service Contract Meteorological Office

The Weather Service Contract Meteorological Office

(“WSCMO”) is located on the second level of the Delta

hanger at DFW Airport in space leased from Delta. The

observer makes visual surface weather observations each

hour and relays such observations electronically to var-

ious NWS and FAA facilities. The observer notes cloud

conditions, precipitation, temperature, dew point, wind,

etc. If conditions warrant (i.e., weather deteriorates), the

observer may make a special weather observation. The

observer was functioning as an independent contractcr

on August 2, 1985.18

D. Weather

(1) Radar

Precipitation is the only weather observable by radar.

Detectable precipitation appears as an image on a radar

18 See Opinion entered Nov. 5, 1987.

App. 37

screen and is measured by Video Integration Processor

(VIP) levels. These indices reflect the level of intensity of

precipitation from VIP 1 (lowest) to VIP 6 (highest).

Radar measures only the intensity of precipitation and

does not measure the intensity of the winds, turbulence,

etc. in the echo.’ It is sometimes difficult for a meteorolo-

gist to determine whether the radar echo is precipitation,

ground clutter, or anomalous propagation. Anomalous

propagation is caused by atmospheric conditions other

than precipitation.

(2) Downbursts

Thunderstorms can produce a downburst, or strong

downdraft inducing an outburst of damaging winds on

or near the ground, as occurred at DFW on the day of the

crash. The downburst consists of the downdraft and its

outflow. It originates from a convective storm.° Initially,

an updraft forms due to the local heating of the terrain.

When the updraft reaches condensation level, it cools and

a cloud forms. If the cloud continues to grow, the air goes

higher and higher, and all of the water vapor in the air

condenses out. Finally, the water comes rushing down

out of the cloud. The cold air associated with the down-

burst produces a very intense downdraft that comes

down with the rain and, when it gets near the ground,

19 Duke, Vol. 46, pp. 82-85 (references are to volumes of

trial transcript).

20 A Convective storm results from the rising and falling

of air due to temperature. Hildebrand, Vol. 95, pp. 101, 102, 103

(Deft. Ex. 518).

App. 38

spreads out horizontally and causes an outflow of air in

different directions.

Downbursts are subdivided into macrobursts and

microbursts according to the horizontal scale of damag-

ing winds. A macroburst is a large downburst with its

outburst winds extending in excess of 4 Km. (2.5 miles) in

horizontal dimension. An intense macroburst often

causes widespread, tornado-type damage. Damaging

winds can be as high as 134 miles per hour. A microburst

is a small downburst with its outburst and damaging

winds extending only 4 Km. (2.5 miles or less). In spite of

its small horizontal scale, an intense microburst can

induce damaging winds as high as 168 miles per hour.?!

Clouds producing downbursts are formed by convec-

tive activity. One type of such conductive cloud is the

cumulus?2 cloud, generally appearing puffy with a flat

base. They range in size from small clouds to large thun-

derstorms with damaging winds and hail and lightning

within.

(3) Wind shear and Advisory Circular AC 00-50A

Wind shear is best described as a change in wind

direction and/or speed in a very short distance. For

21 Fujita, The Downburst, p. 8; U.S. Ex. 518.

22, A cumulus cloud is one in the form of individual

detached domes or towers which are usually dense and well

defined. It develops vertically in the form of rising mounds of

which the bulging upper part often resembles a cauliflower.

The sunlit parts of these clouds are mostly brilliant white, and

their bases are relatively dark and nearly horizontal. U.S.

Exhibit 619, p. 146.

App. 39

example, if the wind changes from a 30 knot headwind to

a 30 knot tailwind, the result is a 60 knot shear. There are

several general categories of wind shear, such as frontal

wind shears and downdrafts. DL 191 was confronted

with wind shear emanating from a downdraft or down-

burst.

Advisory Circular AC 00-50A?3 gives an excellent

description and explanation of the classic thunderstorm

“downburst cell” which is as follows:

—

~*~ ———

»~_— —_—_

i. oo

d tured

23 Delta Exhibit 3.

App. 40

DOWNDRAFT SHEAR

There is a strong downdraft in the center of the

cell. There is often heavy rain in this vertical

flow of air. As the vertical air flow nears the

ground it turns 90 degrees and becomes a strong

horizontal wind, flowing radially outward from

the center. Point A represents an aircraft which

has not entered the cell’s flow field. The aircraft

is on speed and on glide slope. At Point B the

aircraft encounters an increasing headwind. Its

airspeed increases, and it balloons above the

glide slope. Heavy rain may begin shortly. At

Point C the “moment of truth” occurs. If the

pilot does not fully appreciate the situation, he

may attempt to regain the glide slope and lose

excess airspeed by reducing power and pushing

the nose down. Then in the short span of time

between Points C and D the headwind ceases, a

strong downdraft is entered and a-tailwind

begins increasing. The engines spool down [go

to idle], the airspeed drops below V.ref, and the

sink rate becomes excessive. A missed approach

initiated from this condition may not be success-

ful. Note that a missed approach initiated at

Point C (or sooner) would probably be success-

ful since the aircraft is fast and high at this

point. Note also that the pilot of an aircraft

equipped with a groundspeed readout would

see the telltale signs of a downburst cell shortly

after Point B; i.e., rapidly increasing airspeed

with decreasing groundspeed.4

This advisory further provides that “[i]f the airplane

is below 500 feet AGL and the approach becomes unsta-

ble a go-around should be initiated immediately.

24 Advisory Circular AC 00-50A at 8.

App. 41

Airspeed fluctuations, sink rate, and glide slope devia-

tion should be assessed as part of this decision.”25

Dr. Fujita points out that an accident during the fina!

approach can occur when an aircraft attempts to land

through a strong microburst located on the glide slope

near the approach end of a runway. In nearly all cases, an

aircraft first experiences a headwind increase while enter-

ing a shower or virga. As a result, the aircraft gains

altitude. When the pilot brings the aircraft altitude down

to the glide slope, downflow and a tailwind are awaiting

the aircraft. Unless full power is applied early enough to

regain the altitude, the airplane could continue its rapid

descent to the ground.?6

Ill. THE SEQUENCE OF EVENTS

A. Overview

After crossing the Blue Ridge corner post at 5:52:09?7

Central Daylight Time (“C.D.T.”) and heading southwest

for landing at DFW, the crew of DL 191 saw building

cumulus clouds north and northeast of DFW. They had a

view of the airport where the sun was shining. As they

approached, there were at least two cumulus clouds in

the area. One of these clouds had been there for some

25 Id. at 14.

26 Exhibit 518, Dr. Fujita - The Downburst, pp. 33, 34.

27 There are three general forms of time: Greenwich Mean

Time or Zulu, twenty-four hour time, and standard form. Time

references in this opinion will be made in standard form post

meridian.

App. 42

time, developing over the outer marker.?® This cell?? has

been referred to in the litigation as Cell C. South of and

between Cell C and the north end of Runway 17L there

was a second cumulus cloud evidencing more rapid

development. This cloud became Cell D, the cell from

which the microburst descended.

When DL 191 approached DFW it was vectored to the

north (downwind leg), west (base leg), and then south

(final). When the aircraft was put on final approach, rain

was visible between the aircraft and Cell D. At that point

it was possible to see the airport, but as the rain increased

the airport went out of view.*°

ATIS*' Romeo had been issued at 4:47 and DL 191

received the following report at 5:35:33:

Weather six thousand scattered,*? two one thou-

sand scattered, visibility one zero, temperature

one zero one, dewpoint six seven, wind calm

altimeter two niner niner two, runway one eight

right one seven left, visual approaches in pro-

gress.

28 An outer marker is an electronic device associated with

the ILS located about five (5) miles North of the runway.

29 A cell is the updraft and downdraft portion of the

cloud.

3° Haggard, Vol. 1, pp. 75, 76.

31 Automatic Terminal Information Service. ATIS reports

give pilots certain landing and weather information in a brief,

repeating format. Each ATIS is described by a letter; for exam-

ple, ATIS Romeo would be followed by ATIS Sierra.

32 Scattered - a sky cover of clouds less than 50%. Broken

~ a sky cover of clouds more than 50%.

App. 43

Persons at various locations at the airport were able

to see the whether deteriorate. Mr. Del Prete, the WSCMO

weather observer, completed observations during which

he saw cumulonimbus*® clouds to the north and north-

east, blanketing the entire sky to the north, northeast at

5:51.

Personnel in Tracon were aware of thunder and the

Tower’s auxiliary generators were activated as a precau-

tion. A Tracon controller had received a Pirep from a

plane flying east through Cell D to the effect that it was

difficult to hear over the rain. DL 191, however, was not

on the frequency. Others on the ground watched the

storm develop. It appeared to one observer to be a bad

thunderstorm, a wall or curtain of water. The tower con-

troller saw moderate rain progress to “heavy, heavy

rain.”

A controller notified all aircraft that there was a little

rainshower just north of the airport, apparently referring

to Cell C. There were observations of lightning in the

west and northeast by persons in the Tower and on the

ground.

33 A cumulonimbus cloud is a cumuliform cloud type. It is

heavy and dense, with considerable vertical extent in the form

of massive towers; it often has tops in the shape of an anvil or

massive plume. Under the base of cimulonimbus, which is

often very dark, there frequently exists virga, precipitation,

and low, ragged clouds (scud), which may or may not be

merged with it. This cloud is frequently accompenied by light-

ning, thunder, and sometimes hail. It occasionally produces a

tornado or a waterspout, which is the ultimate, manifestation

of the growth of a cumulus cloud, occasionally extending well

into the stratosphere. U.S. Exhibit 619, p. 145.

App. 44

In eight minutes, Cell D developed from a VIP 2 toa

VIP 4. Since the storm was near the airport, SEP called

the WFSO to advise them of its apparent severity. The

WSFO was aware that a thunderstorm existed north of

DFW airport.

As DL 191 was coming in to land it lost its altitude

and made contact with the ground in a plowed field

about 360 feet east of the extended center line of runway

17L and 6336 feet north of the runway threshold. The

plane was in a wings level, nose high altitude, and on a

heading of about 167 degrees magnetic. Following the

initial impact, the plane ascended, went a short distance,

and hit the ground again. After this second impact the

plane continued, traversing Highway 114, striking a car

and killing the occupant. The plane then proceeded

toward two water tanks about 1700 feet beyond the high-

way. The airplane grazed the north tank and struck the

south water tank about 3195 feet beyond the initial touch-

down point, breaking apart. The plane made four sepa-

rate and distinct ground contacts before breaking up and

coming to a stop. There was no evidence of pre-impact

separation or failure; the damage to the plane was caused

entirely by the impact with the ground and subsequent

structures.*4 Upon examination after the accident, it was

noted that the thrust reversers had been deployed on

34 Fujita, DFW Microburst. (Delta Exhibit 517) T. Theodore

Fujita is a noted meteorologist at the University of Chicago.

The technical information contained in this Opinion was

obtained by visual inspection of the area and from the Digital

Flight Data Recorder, the so-called “black box.”

App. 45

each of the three engines, all of which were located in the

tail section of the airplane.

B. Arrival Sequence

From 5:48:15 to 6:03:25 fifteen planes landed at DFW

on Runways 17L and 17R. Immediately prior to the

attempted landing of DL 191, one of these fifteen planes

had to go around due to ground traffic, and two landed

on 17R. The remainder landed on 17L.

Reports from the landing crews are varied. Some

experienced little weather; others were in heavy rain

inside the ovier marker. The learjet, the last plane to land

before DL 191, entered rain shortly after passing the outer

marker. It then encountered heavy rain at 6:04 and exited

heavy rain about one mile to 1'/2 miles from the threshold

of 17L. No crew, except DL 191, saw lightning coming out

of Cell D.

Approximately twelve planes had taxied down the

taxiways in preparation for takeoff on 17L or 17R. As

they were waiting at the north end of the taxiway for

entrance onto 17L or 17R, they were in an excellent

position to see Cell D. These planes were approximately

one mile north of the Tower. Specific observations will be

discussed in the following section of this opinion.

C. Specific Chronology

The following is a chronology of the most significant

events which took place during the flight of DL 191. All

of the following times are stated in Central Daylight

Time, August 2, 1985.

App. 46

Time Event

5:03:59 Fort Worth ARTCC Controller told DL 191 to

expect Blue Ridge arrival.*°

5:09:18 | Fort Worth ARTCC attempted to give DL 191

vectors towards Scurry VOR.%

5:09:35 Captain Connors, in response to the foregoing |

ATC direction, asked, “How’s the weather |

over Scurry?”97 |

5:10:53 Internal discussion between two controllers at |

Fort Worth ARTCC during which the PAXTO |

controller acknowledged with respect to the

attempt to send DL 191 into an area of

weather, “He didn’t want no part of it.”%8

5:11:16 Fort Worth Center controller for Texarkana

Sector directed DL 191°? to “expect a further

clearance direct to Scurry.” Captain Connors

replied, “So we’ve been told, okay, sure looks

better over Blue Ridge though. Weather looks

better over Blue Ridge.”4°

5:11:36 After being told by the controller that the traffic

doesn’t look very good over Blue Ridge, Captain

35 Delta Exhibit 468B, Shreveport High Manual Tab, p. 4;

see also flight track of aircraft during this portion of flight,

Delta Exhibit 700.

36 Delta Exhibit 468B, Shreveport High Manual Tab, p. 8. :

37 Delta Exhibit 468B, Shreveport High Manual Tab, p. 8.

38 Delta Exhibit 468B, Shreveport High Manual Tab, p. 9. |

39 While the controller mistakenly said “American 191,” it ,

is obvious from reading the transmissions that he was talking .

to Delta Flight 191.

40 Delta Exhibit 468B, Texarkana High Radar Tab, p. 2.

5:12:26

5:25:00

5:35:26

5:43:56

5:45:00

App. 47

Connors stated: “I'd rather wait for an airplane

than, uh, go fight a bunch of weather.”41

After being told to go into a holding pattern

south of Texarkana for 30 minutes,4? Captain

Connors responded, “Okay, we appreciate

that, it sure looks a lot better that way, it looks

kind of crummy down there at Scurry... . ”

Richard Douglass, CWSU Meteorologist, left

his post to take a dinner break.

Flight Engineer received ATIS Romeo which

bore a time of 4:47 and contained the follow-

ing weather information: “Weather six thou-

sand scattered, two one thousand scattered,

visibility one zero, temperature one zero one,

dewpoint six seven, wind calm altimeter two

niner niner two runway one eight right one

seven left, visual approaches in progress.”

Captain Connors told Fort Worth Center, “I’m

looking at a cell at about heading of two five

five and it’s a pretty good size cell and I'd

rather not go through it I’d rather go around it

one way or the other.”4° Reference was to the

so-called “Blue Ridge thunderstorms.”

Al Magazzine, a DFW Airport employee in

Tower Cab for purposes of traffic count,

noticed a build-up of clouds towards Las Col-

inas, a community northeast of DFW.“

41 Delta Exhibit 468B, Texarkana High Radar Tab, p. 2. See

also, Delta Exhibit 700.

42 Delta Exhibit 468B, Texarkana High Radar Tab, p. 3 -

reference to “three zero”.

43 Delta Exhibit 469.

44 Magazzine, Vol. 8, p. 5.

5:49:00

5:50:00

5:50:50

5:51:00

5:51:19

5:52:00

App. 48

Cell D first appeared on Oklahoma city radar,

and would have appeared on Stephenville

radar at approximately the same time.*

Jack Williams observed Cell C in northwest

corner of Dallas County within 10 miles of

DFW Airport.

American 351 announced its intention to go

around.*”7 American 351 then commenced go-

around and later made a second approach,

despite an FAA Inspector in the cockpit jump-

seat having observed lightning during first

approach.

Del Prete (NWS Airport Weather Observer)

completed observation during which he saw

cumulonimbus clouds to the north-northeast,

blanketing the entire sky to the north and

northeast.49

Second Officer Nassick observed, “Looks like

it’s raining over Fort Worth”; an unknown

voice commented ” . . . Dallas.”5°

Radar photos confirmed the existence of Cell

D on Stephenville radar as a VIP level 1.°

DL 191 was at 11,500 feet and pointed straight

at Cells C and D. These returns would likely

have appeared clearly on DL 191’s radar. As

the flight descended from Blue Ridge, there

45 Haggard, Vol. 1, pp. 99, 173, 181.

46 Williams, Vol. 16, pp. 105-107.

47 Delta Exhibit 468A, LCE Tab, p. 48.

48 U.S. Exhibit 404A.

49 Del Prete, Vol. 36, pp. 159-160, 163; Delta Exhibit 172.

50 Delta Exhibit 469.

51 Haggard, Vol. 1, pp. 99, 184.

App. 49

) would have been good radar returns from

cells C and D until the aircraft turned north-

! bound at approximately 6:00.52

5:52:08 Captain Connors made radio contact with

DFW Approach Control. He was talking with

Feeder East Controller Robert Hubbert.5? At

the time of this initial contact, DL 191 was

approximately over the Biue Ridge VOR,

which is approximately 35 miles northeast of

the airport, and was at an altitude of 11,100

feet MSL.*4

5:54:00 Tollenaar, Captain of Metro 1756, encountered

light rain just south of Lewisville, which he

was in for approximately one mile;55 the area

of rain was fairly confined and clearly discern-

able.°* Tollenaar was able to see 17L during his

entire approach, including while flying in the

rain.°”? Tollenaar painted a cell without diffi-

culty; it was a red area, which is a contouring

area, surrounded by a thin yellow area indicat-

ing a steep gradient.°® Tollenaar testified that

he would not have flown through what his

radar was painting; he would have executed a

missed approach.°?

5:55:00 Tower controller Ferguson observed from the

Tower Cab a cloud-to-ground bolt of lightning

52 Leech, Vol 85, p. 120; Manningham, Vol. 107, pp. 151,

153-154.

53 Delta Exhibit 469; Delta Exhibit 468-A.

54 Delta Exhibit 635-A.

55 Tollenaar, Vol. 93, pp. 127-128; Hildebrand, Vol. 96, pp.

125-126.

56 Tollenaar, Vol. 93, pp. 128-129.

57 Tollenaar, Vol. 93, p. 128.

58 Tollenaar, vol. 93, p. 130; Hildebrand, Vol. 96, p. 126.

59 Tollenaar, Vol. 93, p. 131.

beaten

5:55:00 -

6:00:00

5:56:00

5:56:26

App. 50

to the east-northeast associated with the gray

cloud and area of rain.

Lee Ankerson, walked outside and joined two

other mechanics. The three of them watched

the storm develop. Ankerson says it “was big

and it looked real bad.”®! He said it “looked

like a bad thunderstorm.”®2 He said it looked

like a “wall of water,” “a curtain,” and the

heaviest rain he had seen during his nine

years at DFW.®

Since 5:52, Cell D had become a VIP 3, was

quite pronounced, and was growing quite rap-

idly north of DFW. Cell D had enlarged on

radar imaging five or six times its size at

§:52.4

At this time DL 191 was 17 to 18 miles from

Cell D and could have scanned up to at least

32,000 feet with its radar, allowing it to see

whatever weather Stephenville was painting.®©

Both cells could have contoured on airborne

radar. The aircraft was pointed directly toward

the cells.

Feeder East Radar Controller Hubbert notified

all aircraft: “There’s a little rain shower just

north of the airport and they’re starting to

make ILS approaches. . . . ”“ Hubbert testified

60 Ferguson, Vol. 8, pp. 157-158.

61 Ankerson, Vol. 92, p. 173.

62 Ankerson, Vol. 92, p. 174.

63 Ankerson, Vol. 92, p. 175.

64 Haggard, Vol. 1, pp. 105, 184; Vol. 2, p. 44.

65 Gwinn, Vol. 31, pp. 91-94; Manningham, Vol. 107, pp.

157-158 (up to 37,000 feet and down to the ground).

66 Delta Exhibit 468A. Feeder East tab, p. 50.

en Neh a Perel 8 ail ehh ES Sek tee eal? Oe

App. 51

that he was talking about a weather area

located in the position now identified as Cell

C.67

5:58:00 Before going on break at 5:59, Jim Brecheen, an

Air Traffic Assistant in the Tower Cab, saw

one flash or bolt of cloud-to-ground lightning

in the proximity of the rain to the northeast of

the Tower.

Even with two-minute delay, CWSU radar

would have displayed VIP 3 intensity of Cell

D by 5:58. It was the practice of the CWSU to

notify Tracon of a VIP 3.99

Dixon, Captain of Cessna 340, with his radar

on the 10 mile range, observed an intense echo

with a very heavy rainfall gradient;” these

observations had to be Cell D, and it was

contouring and had a sharp gradient; Dixon

was at 1,000 feet and was using a much wider

radar beam than DL 191’s, and even with his

less capable radar Dixon had no problem

depicting a contouring cell.71 Dixon was

within a couple of miles of DL 191’s location at

this time.72

67 Delta Exhibit 708; Hubbert, Vol. 52, pp. 30, 43-44.

68 Brecheen, Vol. 8, pp. 200-202.

69 Paup, Vol. 16, pp. 31, 37; Delta Exhibit 220, a memo from

Jack Paup, requires such a notification: “DFW TRACON is the

only FAA facility outside of the Center that we brief on a

routine basis. However, the CWSU has the responsibility of

notifying approach facilities of weather that will affect normal

operations. This function is normally performed by a telephone

call from the Meteorologist.”

70 Dixon, Vol. 82, pp. 134, 138-140, 152; U.S. Exhibit 751.

71 Hildebrand, Vol. 96, pp. 137-140.

72 Id.

App. 52

While Dixon was making his radar observa-

tions, DL 191 was pointed straight at the cell

and these cells remained directly ahead of it

for the next 2 minutes; the crew should have

been able to see Cell D contouring on radar

almost straight ahead, slightly to the right, at a

range of 10-15 miles; Cell C would have been

30 degrees to the right and smaller, not con-

touring.73 DL 191 was at 5,800 feet AGL, con-

siderably higher than Dixon, so 191 should

have had less problem with ground clutter.

The cells Dixon painted unquestionably were

within the tilt range of DL 191’s radar at this

time.74 As DL 191 approached the airport, its

radar would have gone through Cell C and

show Cell D.75 Cell C would not have shad-

owed or blocked the view of Cell D.76

According to CWSU Chief Meteorologist

Paup, between 5:52 and 6:06, radar informa-

tion about the VIP level of Cell D was avail-

able to the CWSU but was not communicated

because Douglass was not at his post. Paup

also acknowledged that the CWSU can help

73 U.S. Exhibit 732-A-6; Hildebrand, Vol. 96, pp. 141-143;

Manningham, Vol. 107, pp. 164-165 (Cell D at this time was a

level 3 or higher).

74 Hildebrand, Vol. 96, pp. 145-146; Manningham, Vol. 107,

pp. 164-165 (at this point the scanning height of DL 191’s radar

was at least 20,000 feet, so 191 could scan everything SEP

could, and could see the entire vertical profile of the cells); U.S.

Exhibit 732-A-6.

75 Hildebrand, Vol. 96, p. 53.

76 Manningham, Vol. 107, p. 155. This section is not

intended to be a comprehensive list of what was on various

aircrafts’ radar. The evidence clearly establishes that nearly

every aircraft with its radar on and operating properly

obtained contours before the accident. See Summary of Aircraft

Radar Observations previously submitted.

petal nth 4% ote a ATA ls Mla dhs Shrines eis

5:59:43

5:59:47

App. 53

pilots avoid thunderstorms by providing this

type of information.77

According to his own testimony, controller

Tarbet informed supervisor Joe Connors about

hearing thunder during this time period. Tar-

bet assumed there was possibly a thunder-

storm going on outside.”®

Feeder East Controller Hubbert referred to

“little bitty thunderstorm” that “looks like a

little rain shower.” Hubbert was talking about

a cell in the location of Cell C.79 (Note: DL 191

did not hear this transmission.)

As DL 191 turned back to the north, Price said,

“We're gonna get our airplane washed”8°

referring to a visual observation by Price.®!

Price was looking forward and could see

something coming out of the base of the

cloud.®? At this time Delta Flight 963 was see-

ing the bowlshaped cloud outside the outer

marker and they anticipated flying through it.

DL 191 was flying almost due west and could

see Cell D straight ahead and to the left of

them.§? DL 191 was at 5,000 feet, and just

about to turn right to 340 degrees. They obvi-

ously were flying close to some type of

77 Paup, 16 pp. 3, 5, 25, 37, 39, 43, 44, 81-83. See also

Krantz, Vol. 26, pp. 30-32 (importance of CWSU information to

ATC).

78 Tarbet, Vol. 8, p. 138.

79 Hubbert, Vol. 52, pp. 43-44; Delta Exhibit 708; Delta

Exhibit 468(a), Feeder East Tab, p. 53.

80 Delta Exhibit 469.

81 Hildebrand, Vol. 96, p. 142.

82 Hildebrand, Vol. 96, p. 160.

83 U.S. Exhibit 732-A-1; Hildebrand, Vol. 96, p. 160.

App. 54

convective activity and rain.*4 The First Officer

was pointing out that they were going to be

flying through some rain, and it is likely he

was expecting a fair amount of rain.

6:00:00 NWS Stephenville Weather Radar Operator

Encinas observed “a small thunderstorm

cell.”®5 He referred to it as “a rapidly develop-

ing thunderstorm.”® Encinas acknowledged

that a storm that developed from VIP 2 to VIP

4 in eight minutes (such as Cell D) would have

strong convective activity.®” Encinas observed

Cell D as having a pinpoint VIP 4 intensity.**

VIP 4 echo indicated the “probability” of a

thunderstorm, according to Richard Dou-

glass.8? According to the testimony of Paup,

Chief Meteorologist at the CWSU and Mr.

Douglass’ immediate supervisor, there is a cor-

relation with level 4 returns and thunderstorm

activity, and the CWSU would report a VIP 4

intensity to the Tracon (not just the presence of

an echo). The CWSU Meteorologist, had he

been at his post, could have seen that the

thunderstorm was in the vicinity of the airport

to the north of the DFW Airport.

FAA Air Traffic Assistant Barbara Foe

observed lightning to the east-northeast from

the FAA Tower Cab.

84 Leech, Vol. 85, pp. 118-119.

85 Duke, Vol. 48, pp. 148-152.

86 Duke, Vol. 48, p. 154.

87 Duke, Vol. 48, p. 155.

88 Haggard, Vol. 2, pp. 56-61; Duke, Vol. 48, p. 151.

89 Duke, Vol. 48, p. 24.

9° Foe, Vol. 8, pp. 219-222.

ST ee DNA Wate Nhe + ME CEI ok

2 ae

6:00:13

6:00:33

6:00:00 —

6:04:00

6:01:00

App. 55

Feeder East Controller Hubbert observed a

“little rain shower” just north of the airport.

This transmission was not heard by DL 191,

because it was not on the frequency.

AR-1 Controller asked American Flight 351,

“Do you see the airport yet?” American 351

First Officer Patrick Davis replied, “As soon as

we break out of this rain shower we will.” DL

191 heard this transmission.

During American 351’s second approach, FAA

Inspector Neumeier, a licensed air transport

pilot, again sighted lightning. Neumeier took

no action to prevent the flight from continu-

ing, nor did he suggest or order it to execute a

missed approach or to make a Pirep.?!

Captain Sam Toler, Piedmont Flight 70, saw

from DFW a large sheet of water emanating

from an intense thunderstorm. Captain Toler

testified that it was the worst thunderstorm he

had ever seen: It was a solid sheet or wall of

water moving toward the airport with unbe-

lievable intensity.

Bill Glen, a Department of Public Safety

employee, observed from DFW cloud-to-cloud

lightning north of the airport all the way

across each runway approximately five min-

utes before the accident.%°

91 U.S. Exhibit 404A; Alger, Vol. 111, p. 191; Manningham,

Vol 108, pp. 82-84.

%2 Toler, Vol. 12, pp. 28-30.

93 Glenn, Vol. 8, pp. 119-121, 129-130.

6:01:20

App. 56

Mike Porter, an FAA Local Control West Con-

troller in the Tower Cab, observed two light-

ning strikes to the west of the area of weather,

and another lightning strike to the east-north-

east?4 where Cell D was located.

Encinas called Fort Worth WSFO to alert them

that there was a thunderstorm over DFW.

Encinas believed that the storm was of conse-

quence because it was located near an airport.

He reported a pinpoint VIP 4 cell with a top of

40,000 feet.95

By this time, Williams, of the Fort Worth

WSFO, acknowledged that he knew that a

thunderstorm existed over the town of Cop-

pell, Texas, which is located immediately to

the north of Runway 17L at DFW Airport.%

Del Prete observed lightning to the north-

northeast of DFW.97

First Officer Chris Robbins, Delta Flight 1051,

observed from DFW a cloud developing rap-

idly, which was, in his words “billowing, boil-

ing, exploding.” There was dark, heavy rain

and a bamboo curtain effect one-half to one

mile from the end of the runway, which

appeared to be a thunderstorm. The east-

ernmost part of the cloud was right off 17L.%

Feeder East Controller Hubbert transmitted

that a “little rain shower just popped up north

*4 Porter, Vol. 59, pp. 110-111.

%» Delta Exhibit 228; Duke, Vol. 48, pp. 11, 156; Williams,

Vol. 16, pp. 108, 126-127.

% Williams, Vol. 16, pp. 131-132; Duke, Vol. 48, p. 23.

97 Del Prete, Vol. 36, pp. 187-188.

%8 Robbins, Vol. 9, pp. 82-87.

DA PRN Sie Ls Sd Galle Rat ng Dak a,

a a

Se OS mains rhe tp ere

6:02:00

6:02:30

App. 57

of the airport.” DL 191 was not on the fre-

quency.*%? This return was in the area of Cell

D.100

The United States claims that a conversation

between Tarbet and Joe Connors regarding

thunder occurred at about 6:02. Thus, Joe Con-

nors was aware of thunder by no later than

6:02.101

Al Magazzine, a DFW Airport employee in the

Tower Cab, observed a thunderstorm consist-

ing of a heavy dark area of precipitation to the

north end of the Runway 17 complex.!

Del Prete heard thunder?! and associated the

rainshower with the thunderstorm.!% After

the accident, Del Prete told Jeff Brown, “Con-

ditions at least should have prompted concern

among air traffic controllers.” 1%

DL 191 was advised that they were 6 miles

from the outer marker. They were requested to

turn left heading 180 to join the localizer at or

above 2,300 feet, and they were cleared for the

ILS 17 Left approach. This was acknowledged

by Captain Connors at 6:02:43: “Delta one-

niner-one Roger, all that appreciated.” 1%

9° Hubbert, Vol. 52, p. 42; Delta Exhibit 468A, Feeder East

Tab, p. 54; Delta Exhibit 708.

100 Hubbert, Vol. 52, pp. 43-44; Delta Exhibit 708.

101

102

103

104

105

106

Beaudoin, Vol. 40, pp. 82, 87; McDermott, Vol. 11, p. 78.

Magazzine, Vol. 8, pp. 6-7, 10.

Del Prete, Vol 36, p. 187

Del Prete, Vol 36, pp. 188-191.

Brown depo. Joint Exhibit 5, pp. 19, 32.

Delta Exhibit 469.

6:03:04

6:03:06

App. 58

The rain should have contoured on DL 191’s

radar; they were on base leg just south of

Lewisville (a small city east of DFW) heading

west. The radar would have been showing the

crew that if they flew ahead for a mile or two

and then turned left toward the airport, they

would be turning toward a contouring cell. At

this time, Dixon was seeing a contouring cell

and other pilots were seeing red cells.1°7 With

their radar tilted up 7 degrees the crew could

have interrogated the whole base of the cloud.

Even if they had the bottom of the beam paral-

lel to the ground they would have seen rain

beneath the cloud.1%%

Tracon received a Pirep from Southwest Flight

99 (not heard by DL 191) that it was hard to

hear in the rain he was in.’ At this time,

Southwest Flight 99 was inside Cell D, approx-

imately 11/2 miles from the end of Runway

17L, at an altitude between 6,300 feet and

6,900 feet.11° The Pirep was not disseminated

by Tracon to pilots or to other controllers.!"!

DL 191 was approximately 8 miles north of the

threshold of 17L at 2,800 feet. At this time, the

north side of the microburst was about 2.5

miles north of the end of the runway and it

was above the surface at some altitude; there-

fore, DL 191 was between 5 and 6 miles from

107 U.S. Exhibit 732-A-6; Hildebrand, Vol. 97, pp. 12-13.

108 U.S, Exhibit 732-A-7; Hildebrand, Vol. 97, pp. 13-14.

109 Delta Exhibit 468A, Feeder East Tab, p. 55; Hubbert,

Vol. 52, pp. 3-4.

110 Delta Exhibits 635Z-1 and 635Z-2.

111 Hubbert, Vol. 52, pp. 4-5.

App. 59

the microburst.1!12 Under Dr. Fujita’s analysis,

DL 191 was ther at an altitude of less than

1,000 feet and below the altitude of the micro-

burst. The microburst likely was directly

ahead of the aircraft, and at the same altitude,

when the crew turned final.1!3 Thus, the

microburst would have been within the tilt

range capability of DL 191’s radar. DL 191’s

radar had the ability to scan up to 15 degrees,

meaning at this distance from Cell D it could

scan about 8,600 feet above the altitude of the

aircraft. The microburst would have been

straight ahead of the airplane at that time,

enabling the crew to scan it with the beam

parallel to the surface of the earth; that is, the

radar operator would not have had to tilt up

the radar to see the microburst.!14 Rain falling

from Cell C at this time would not have atten-

uated the radar signal and a good display of

Cell D would still be on DL 191’s radar scope.

This factual finding was also made by the

NTSB, which found there would have been a

radar display up to two miles to the cell.115

The DFW microburst itself (Cell D), as

opposed to precipitation associated with Cell

C, might have caused a ground shadow on DL

191’s radar before they penetrated the cell

whether or not the radar was adjusted prop-

erly. Nonetheless, even if DL 191’s radar beam

had been fully attenuated and a radar shadow

112 Hildebrand, Vol. 96, pp. 19-27; Manningham, Vol. 107,

pp. 175-176; U.S. Exhibit 732-A-1.

113 Hildebrand, Vol. 96, pp. 19-27; U.S. Exhibit 732-A-1,

732-A-5, 732-A-7.

114 Hildebrand, Vol. 96, pp. 26-27.

15 Manningham, Vol. 107, pp. 175-176; see also U.S.

Exhibit 732-A-6.

——

6:03:20

6:03:31

6:03:32

6:03:58

App. 60

were present, this should have not have mis-

led the crew into flying into the microburst.116

Skipworth, the Local East Controller in the

Tower Cab who took control of DL 191

inbound from outer marker, saw moderate

rain progress to heavy rain when the Learjet

was four or five miles final. He described it as

“a definite wall of rain.”1!7

AR-1 Controller advised Delta Flight 557 that

“we're getting some variable winds out there

due to a shower on short final out there north

end of DFW.” DL 191 was on frequency, so it

should have heard the transmission. An uni-

dentified crewmember of DL 191 remarked

“stuff is moving in... . “118

Captain Joe Coughlin and First Officer Dave-

Davis of DL 963 saw from DFW what

appeared to be a water spout.'!9 Both

observed dark sky and heavy rain off the

approach end of 17L and two bright shining

parallel phenomena extending to the

ground. !20

Captain Connors called Controller Skipworth

and said that DL 191 is “out here in the rain,

feels good.” This rain was so light it could not

be seen by other aircraft 6 to 8 miles away;1?!

further, it is implausible that DL 191 was in

rain so heavy that the crew could not see

116 Hildebrand, Vol. 96, pp. 35-36.

117 Skipworth, Vol. 25, p. 127.

118 Delta Exhibit 469. .

119 U.S.Exhibit 145.

120 Dave Davis, Vol. 5, p. 131; Coughlin, Vol. 91, pp.

196-197.

121 Hildebrand, Vol. 97, pp. 65-66, 93.

App. 61

forward.!22 DL 191 was in rain from the time

Captain Connors said “out here in the rain

feels good” until they entered the microburst.

The intensity of this rain was very light; two

aircraft that were not far off could not see any

rain, and the Learjet, which immediately pre-

ceded, and American 539, which immediately

followed, reported that they did not enter any

precipitation until they got down to about the

point where DL 191 entered the rain shaft;'?3

the only possibility is that some very light rain

came down between these two airplanes,

because no one else could see it;!?4 it was not

enough to seriously impair 191’s ability to see

where they were going. If there had been

enough rain to impair their ability to see for-

ward, other aircraft would have been able to

see it.125 Light rain does not negate forward

visibility in an airplane.12¢

At approximately the same instant, the follow-

ing conversation occurred between Kennedy

(Tower Cab) and Joe Connors (Tracon Super-

visor):

“We've been busy with these SWAPS and

hadn’t paid any attention, but that is heavy,

heavy rain off the approach end of both run-

We 6~

Joe Connors, referring to his radar, replied to

the Tower:

122 Hildebrand, Vol. 97, pp. 61-67, 97.

123 Hildebrand, Vol. 97, p. 101; Manningham, Vol. 108, pp.

16-17.

124 Hildebrand, Vol. 97, p. 102; see also Hildebrand, Vol.

97, pp. 61-67.

125 Hildebrand, Vol. 97, p. 104.

126 Manningham, Vol. 108, pp. 3-4.

6:03:58

6:04:00

App. 62

Yeah, I can see that.” 127

Joe Connors’ reply referred to Cell D, which

was a solid area about two miles in width, two

miles north of the airport.!28

Because of the time it took for Kennedy to

answer Joe Connors’ call, it is clear that Ken-

nedy actually observed the heavy, heavy rain

at or before 6:03:30.129

Joe Connors earlier had seen a speckled area

on the radar in the vicinity of the outer marker

(presumably Cell C);13° by this time he saw a

solid area (Cell D) about two miles wide and

about two miles north of the airport.1%!

Hildebrand, Fujita and others concluded that

the microburst impacted the ground very close

to 6:04, maybe as early as about 6:03:30 or

6:30:35, but not significantly later; at 6:04, the

rain shaft was on the ground and the Learjet’s

encounter confirms this fact.'? Based on the

observations of American 351 of the area in

which they entered heavy rain, and other pilot

observations and witness statements, bounds

can be placed on the descent of the micro-

burst. The 6:04 timing of impact is accurate

127 Delta Exhibit 469; Delta Exhibit 468A, Interphone

Tower/TRACON Tab, p. 6.

128 Delta Exhibit 205; Haggard, Vol. 1, pp. 116-118, McDer-

mott, Vol. 10, p. 67.

129 Hensley, Vol. 55, pp. 156-157, 176-177; McDermott, Vol.

10, pp. 66-67, Vol. 14, pp. 64, 65.

130 Beaudoin, Vol. 40, p. 87.

131 Delta Exhibit 205; Wayson, Vol. 53, pp. 115-116; Beau-

doin, Vol. 40, p. 88 and Vol. 43, pp. 150, 137; McDermott, Vol.

10, p. 67; Wayson, Vol. 53, p. 113.

132 Hildebrand, Vol. 96, pp. 3-4; U.S. Exhibit 733-Q.

3 U.S.

App. 63

and consistent with these pilot observations.

Furthermore, the pilot observations confirm

that the location of the impact was a little over

2 miles out.1%

According to the data, there were a number of

rain shafts that descended from the cloud base

at different times; there was some light rain

that descended from the cloud prior to the

microburst. The microburst itself started

descending some time after 6:00, probably

about 6:01, although it may have started

descending slightly later if it fell at a higher

rate, but certainly no later than about 6:02.!%4

The Stephenville radar bisected Cell D at

about 17,000 feet down to some altitude below

the cloud base. In doing so, SEP radar meas-

ured a VIP 3 level echo and then at 6:04 saw a

VIP 4. Thus, between 6000 feet and 17,000 feet

there was a sufficient amount of rain for the

SEP radar to see.!35

The base of the clouds in the DFW area was

6000 feet. This figure is based upon pilot

observations, the fact that the temperature

from DL 191’s DFDR showed a temperature

inversion between 6000 and 7000 feet, addi-

tional information from ground observers, the

Roxbury photos which confirmed the 6000 feet

base, and Dr. Fujita’s conclusion that the bases

were 6000 feet.16

Exhibit 728-A; Hildebrand, Vol. 96, pp. 16-18.

134 Hildebrand, Vol. 96, p. 4.

135 Hildebrand, Vol. 96, pp. 5-7.

136 Hildebrand, Vol. 95, pp. 183-187, Vol. 96, p. 4; U.S.

Exhibit 131.

6:04:18

App. 64

Specifically, the bases of Cells C and D were

both about 6000 feet.137

The microburst descended at a rate between

2000 fpm and maybe 3000 fpm. It exited from

the base of the cloud at around 6:01 and hit the

ground at 6:04 traveling 6000 feet in three

minutes (2000 fpm). Dr. Fujita plotted the

microburst descent at about 3500 feet or so in

the minute between 6:03 and 6:04; extrapolat-

ing from that figure, the microburst exited the

cloud base at 6:02. Dr. Fujita has the micro-

burst traveling the 6000 feet from the base of

the cloud to the ground in two minutes (3000

fpm). It is more likely that the descent rate

was 2000 fpm based upon looking at peak

vertical velocities of the winds measured by

DL 191 as it flew through the microburst,

which were about 3000 fpm. The maximum

velocity of the microburst downward would

be higher than the velocity of the progression

of the microburst toward the ground because

the microburst had to push all this air out of

the way as it fell down toward the ground. It

is not possible to determine the exact descent

rate, but between 2000 and 3000 fpm is scien-

tifically sound.1%8

First Officer Price: “Lightning coming out of

that one.”

Captain Connors: “What?”

137 Hildebrand, Vol. 95, pp. 183, 192; Del Prete, Vol. 36, p.

161; U.S. Exhibit 324.

138 Hildebrand, Vol. 96, pp. 14-15. A determination of the

descent rate of the microburst is necessary to locate the water

within the cloud. The location of the water in turn determines

whether Cell D would have contoured on DL 191’s radar as the

aircraft approached from Blue Ridge.

App. 65

First Officer Price: “Lightning coming out of

that one.”

Captain Connors: “Where?”

| First Officer Price: “Right ahead of us.”139

DL 191 had entered and been in the rain con-

tinuously since at least 6:03:58,14° until after

initial impact. DL 191 was already inside the

rain falling out of Cell D at this time, and

hence in the thunderstorm, at the time of the

First Officer’s sighting of the lightning.

The First Officer made a very clear statement

that he saw lightning. He unambiguously

stated that he saw it out of “that one,” mean-

ing a specifically identifiable piece of

weather.'41 At this time, Price clearly was

looking forward and saw lightning coming out

of “that one ahead of us.” The lightning came

from a rain shaft in Cell D.142 They did not

penetrate that rain shaft until approximately a

minute later, when Captain Connors said

“watch your speed” at 6:05:17 and commented

“wash that off a bit” at 6:05:05.143

6:04:30 The “lightning coming out of that one”

exchange was followed by 7 seconds of

silence. When Captain Connors made no

response, Second Officer Nassick responded at

6:04:30, “you get good legs don’t ya.” 144

139 Delta Exhibit 469.

140 The parties stipulated to this fact. Vol. 97, pp. 99-100.

141 Bolman, Vol. 70, p. 51.

142 Hildebrand, Vol. 97, p. 37.

143 Hildebrand, Vol. 97, p. 105.

144 Delta Exhibit 469.

6:04:00 —

6:05:00

App. 66

Second Officer Nassick’s comment was not a

casual cockpit comment.'45 His reference to

“good legs” was to legs of the trip,146 as it was

the practice at Delta that the Captain and First

Officer alternate flying legs.'47

Second Officer Nassick was concerned and

was pointing out a deteriorating situation and

poor flying conditions.'4§

Eastern Airlines Flight 654, Captain Al Stanley,

saw from DFW what appeared to be a tornado,

Captain Stanley described the rain as a wall of

water or a sheet or shaft of heavy rain. The

Co-pilot of Eastern 654 called it a “hail shaft,”

and the Flight Engineer referred to it as a

“microburst.” Captain Stanley saw one or two

lightning strikes in the right side of the rain

before observing the tornado. The storm he

observed undoubtedly was a thunderstorm. !4?

After encountering extremely heavy rain and

light to moderate turbulence, the Captain of

the Learjet, Lewis, added an extra 25 knots to

his approach speed;!* he also decided to fly

his approach high and not go all the way to

minimums because of the weather he had

encountered.!5!

145 Bolman, Vol. 70, pp. 64-65.

146 Hildebrand, Vol. 97, p. 36.

147 Smith, Vol. 71, p. 197.

148 Leech, Vol. 85, p. 137; Manningham, Vol. 107, p. 192;

Bolman, Vol. 70, pp. 64-65; Hildebrand, Vol. 97, p. 36.

149 Stanley, Vol. 12, pp. 7-9.

150 Lewis, Vol. 6, pp. 34, 35.

151 Lewis, Vol. 6, p. 35.

App. 67

Captain Lewis admitted that while he was fly-

ing his approach he had his hands full;15?

these observations are consistent with

Hildebrand’s microburst descent rate and

times. 153

As he was turning inbound (6:03:36 — 6:04:26),

Captain Dobson of American 539 was able to

see DL 191.154 American 539 was cleared for

the approach 7 miles from the outer marker

and was in visual meteorological conditions,

with at least 3 miles of forward visibility.'°°

There was no rainshower in front of Dobson,

except the one just off the runway;'°¢ Dobson

did not see a second rain shaft at any point

during his approach.'5? Dobson did not

encounter any rain until he executed his go-

around and actually penetrated the cloud that

was generating the storm.!°%

Dobson neither saw nor encountered any

other rain shaft that would have prevented

him from seeing the one that was just north of

17L.159 Dobson testified that there were no

other cells producing lightning at 6:04:18

when Price commented about lightning on the

DL 191 CVR.1@

152 Lewis, Vol. 6, p. 12.

153 Hildebrand, Vol. 96, p. 28.

154 Dobson, Vol. 17, pp. 11, 12, 38, 47; Hildebrand, Vol. 97,

p- 18; U.S. Exhibit 732-A-3. |

155

156

157

158

159

160

Dobson, Vol. 17, pp. 45-46; Hildebrand, Vol. 97, p. 34.

Dobson, Vol. 17, p. 47; Hildebrand, Vol. 97, pp. 29-30.

Dobson, Vol. 17, p. 74.

Dobson, Vol. 17, pp. 50-51.

Dobson, Vol. 17, p. 51.

Dobson, Vol. 17, p. 82. .

6:05:00

41.

App. 68

Dobson was not in rain when he got to the

location where 191 said “out here in the rain

feels good.”161

Robertson was flying an Aero Commander

northeast of the storm at this time looking

south at the weather.'62 Robertson was both-

ered by DL 191 approaching this weather, thus

he watched the aircraft continuously as it

entered and then exited the rain.16? He was

bothered because of the storm’s intensity and

location; Robertson could not say exactly why,

but he did say he expected to be wrong about

his caution and thought he would see DL 191

roll out into the bright sunshine, but of course

191 did not.!®* Robertson actually witnessed

DL 191 flew into the rain shaft, Robertson said

that the “storm had such a defined edge, there

was no gradual thing going into it, it was so

defined that if you entered the storm, if you

froze the frame right there you could see the

forward half of the aircraft was obscured, back

half of the aircraft was in bright sunshine; |

mean it was just that quick.”' Robertson

indicated that there was nothing to the north

of the storm that would have prevented DL

191 from seeing it.167

Hildebrand, Vol. 97, p. 30. -

Robertson, Vol. 37, pp. 92, 97.

Robertson, Vol. 37, pp. 93-94; Hildebrand, Vol. 97, pp.

Robertson, Vol. 37, pp. 93-94; Hildebrand, Vol. 97, p. 55.

Robertson, Vol. 37, p. 94.

Robertson, Vol. 37, p. 95; Hildebrand, Vol. 97, p. 55.

Robertson, Vol. 37, pp. 90-91, 93; Hildebrand, Vol. 97, p.

6:05:05

6:05:04-

6:05:18

6:05:19

6:05:20

App. 69

DL 191, on glideslope, passed 1,000 feet

AC ..168According to Delta procedure, the

flight is supposed to be stabilized below 1,000

feet.169 At 6:05:08, Captain Connors com-

mented, “762 in the baro.”170 This was an indi-

cation to First Officer Price that Captain

Connors intended to go down to 200 feet,

which is the decision height for the approach,

and at that time he would decide whether they

would land or execute a missed approach.!7!

When he advised Price of this, it told First

Officer Price that they were going to continue

down to 200 feet and then make a decision on

whether to execute a missed approach. The

Captain announced this decision height after

First Officer Price had advised of “lightning

right ahead of them coming out of that

one.”172

DL 191’s airspeed increased from 153 to 173

knots.

Captain Connors recognized the airspeed

increase by stating, “Watch your speed.”!79

Sound of intense rain can be heard on CVR.

168 U.S. Exhibit 469. See also Delta Exhibit 517, Fujita book,

DFW Microburst on August 2, 1985, p. 80, column labeled Z -

Zist (feet).

169 U.S. Exhibit 32-A (POM).

170 Delta Exhibit 469.

171 The altitude of 200 feet is derived from subtracting the

published runway altitude of 562 feet from the stated baromet-

ric altitude of 762 feet.

172 Leech, Vol. 85, p. 140, Vol. 85, pp. 141-142, Vol. 87, pp.

89-90; Manningham, Vol. 107, p. 194.

173 Delta Exhibit 469.

6:05:21

6:05:28

6:05:30

6:05:35

6:05:35-

6:05:36

6:05:52

App. 70

DL 191 continued descending along the final

approach course toward the area of develop-

ing weather. At 6:05:21, the Captain warned

the First Officer, “You’re gonna lose it all of a

sudden, there it is.” To exhortations of “push

it up, push it up, way up” by both the Captain

and the Second Officer, the First Officer added

airspeed.

Delta experienced a performance loss (wind

shear) of 44 knots.

Eleven seconds after Captain Connors noted

the airspeed increase at 6:05:19, he stated,

“That's it.”

Sound of microphone keying from DL 191’s

air-to-ground radio.!74

Upon encountering a descending and violent

vortex, the first of the three multiple vortices

encountered by DL 191, the aircraft began

experiencing a roll to the right of at least 22

degrees!” even though the pilot attempted to

control the roll by using full left aileron

input. 176

From this point forward, the crew of DL 191

was no longer attempting to land the aircraft

on that approach but was attempting to per-

form what some people call an escape maneu-

ver, a go-around, or a missed approach. Others

have characterized it as simply trying to fly

the aircraft and avoid ground impact.

Initial touchdown while DL 191 was still in

heavy rain.

174 Delta Exhibit 469.

175 Bautz, Vol 3, p. 28; Bray, Vol. 73, p. 72; Mullins, Vol.

109, p. 107, 113; Brady, Vol. 19, pp. 78-79.

17% Bautz, Vol. 3, p. 28; Brady, Vol. 19, p. 79.

App. 71

6:05:56 Gene Skipworth instructs Delta Flight 191:

“Delta go around.”'77

IV. APPLICABLE LAW

1. These actions are brought pursuant to the Federal

Tort Claims Act, 28 U.S.C. § 2671 et seq.

2. Jurisdiction and venue properly lie with this

Court under 28 U.S.C. § 1346(b) and 28 U.S.C. § 1402(b),

respectively.

3. Texas law applies to determine the rights and

liabilities of the parties. 28 U.S.C. § 2674. Richards v.

United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492

(1962). Brooks v. United States, 695 F.2d 984 (5th Cir.1983).

See Opinion filed by this Court on September 22, 1986.

4. Parties who asserted that the air traffic control-

ler’s negligent conduct was a substantial cause of crash of

aircraft during landing have the burden of persuasion.

Delta Air Lines, Inc. v. U.S., 561 F.2d 381 (1st Cir.1977).

5. Under Texas law, liability of the United States for

negligence allegedly causing an aircraft accident is to be

determined by the ordinary rules of negligence and due

care. American Airlines, Inc. v. United States, 418 F.2d 180,

191 (5th Cir.1969); United States v. Schultetus, 277 F.2d 322,

325 (5th Cir.1960), cert. denied, 364 U.S. 828, 81 S.Ct. 67, 5

L.Ed.2d 56 (1960); Associated Aviation Underwriters v.

United States, 462 F.Supp. 674, 681 (N.D.Tex.1978); Brooks

v. United States, 695 F.2d 984 (5th Cir.1983).

177 Delta Exhibit 469.

App. 72

6. Under Texas law, a plaintiff has the burden of

establishing each of three essential elements of actionable

negligence. The elements are as follows: (1) a legal duty

owed by one person to another; (2) a breach of that duty;

and (3) damages proximately resulting from such breach.

Atchison, Topeka & Santa Fe Ry. v. Standard, 696 S.W.2d 476,

478 (Tex.App.1985); Gray v. Baker and Taylor Drilling Co.,

602 S.W.2d 64, 65 (Tex.Civ.App.1980); Abalos v. Oil Devel-

opment Co., 544 S.W.2d 627, 631 (Tex.1976).

7. Whether or not a legal duty exists under a given

set of facts is essentially a question of law to be deter-

mined by the Court. Gray v. Baker and Taylor Drilling Co.,

602 S.W.2d 64, 65 (Tex.Civ.App.1980); Abalos v. Oil Devel-

opment Co., 544 S.W.2d 627, 631-633 (Tex.1976).

8. Under Texas law, proximate cause includes two

elements: (1) cause in fact, and (2) foreseeability. Williams

v. Steves Industries, Inc., 699 S.W.2d 570, 575 (Tex.1985);

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549

(Tex.1985).

9. Cause in fact is established if the injury would

not have occurred “but for” the act or omission. Harrison

v. Harrison, 597 S.W.2d 477, 484 (Tex.Civ.App.1980); Big-

gers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d

359, 365 (1957); Hopson v. Gulf Oil Corp., 150 Tex. 1, 237

S.W.2d 352, 355 (1951). Texas courts use the term “sub-

stantial factor” in the context of the “but for” require-

ment; that is, if a negligent act or omission is a substantial

factor in bringing about the injury or without which no

harm would have occurred, the act or omission is a cause

in fact of the injury. See Nixon v. Mr. Property Management

Corp., 690 S.W.2d 546, 549 (Tex.1985).

App. 73

10. The foreseeability requirement under Texas law

requires that the injury be of such a general character as

might reasonably have been anticipated, and that the

injured party should be so situated with relation to the

wrongful act that injury to him or to one similarly situ-

ated might reasonably have been foreseen. Harrison v.

Harrison, 597 S.W.2d 477, 484 (Tex.Civ.App.—Tyler, 1980);

Motsenbocker v. Wyatt, 369 S.W.2d 319, 323 (Tex.1963).

11. Under Texas law proximate cause cannot be

established by mere guess or conjecture; it must be

proven by evidence of probative force. McClure v. Allied

Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1980). See

also, Moorhead v. Mitsubishi Aircraft Int'l, Inc., 828 F.2d 278,

283 n. 24 (5th Cir.1987).

12. Though falling below requisite standard of care,

an act or omission is not actionable unless also shown to

be a substantial cause of complained of injury. Delta Air

Lines v. U.S., 561 F.2d 381.

V. DELTA LIABILITY

A. Crew Responsibility

1. It is well-established that the pilot-in-command of

an aircraft is directly responsible for, and is the sole

authority as to, the operation of that aircraft. 14 C.FR.

§ 91.3; Carney v. United States, 634 FSupp. 648, 652

(S.D.Miss.1986), aff'd, 813 F.2d 405 (5th Cir.1987); See also,

Moorhead v. Mitsubishi Aircraft Int’l., Inc., 828 F.2d 278, 285

(Sth Cir.1987); American Airlines, Inc. v. United States, 418

F.2d 180, 191-92 (5th Cir.1969); Associated Aviation Under-

writers v. United States, 462 F.Supp. 674, 681 (N.D.Tex.1978).

App. 74

2. The duties of the pilot and of the controllers are

concurrent. However, the operational control of the air-

craft is not assigned to air traffic control; this is assigned

to the air carrier and the pilot-in-command. 14 C.FR.

§ 121.537; Baker v. United States, 417 F.Supp. 471, 485

(W.D. Wash.1975).

3. Pilots of all commercial passenger-carrying

planes have a specific obligation to fully apprise them-

selves of prevailing and expected weather conditions

along the route of their flights. in re Air Crash Disaster at

Boston, Mass., July 31, 1973, 412 F.Supp. 959, 968

(D.Mass.1976), aff'd sub nom Delta Air Lines, Inc. v. United

States, 561 F.2d 381 (1st Cir.1977), cert. denied, 434 U.S.

1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978).

4. The pilot has a continuing duty to be aware of

danger when he can gather adequate information with

his own eyes and instruments; a pilot cannot disregard

the weather conditions he sees around him. Moorhead v.

Mitsubishi Aircraft Int'l Inc., 828 F.2d 278, 285 (5th

Cir.1987); Spaulding v. United States, 455 F2d 222, 226-27

(9th Cir.1972) (applying Texas law); Peters v. United States,

596 FSupp. 889, 895 (E.D.Pa.1984) (a pilot cannot ignore

the weather information he has been given or disregard

the weather conditions he sees around him).

5. Where dangerous weather conditions are clearly

visible or known, a pilot should recognize them through

his mandatory weather training and is obligated to look

out for and avoid these weather conditions. Associated

Aviation Underwriters v. United States, 462 F.Supp. 674, 681

(N.D.Tex.1978); Black v. United States, 441 F.2d 741, 743

App. 75

(Sth Cir.1971), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30

L.Ed.2d 186 (1971).

6. The crew of an airline transport is required to

conduct its operations pursuant to applicable regulations,

good operating practices, and the procedures imposed by

the airline itself. Baker v. United States, 417 F.Supp. 471,

483 (W.D.Wash. 1975).

7. Delta’s Flight Operations Procedures Manual

contains a notation regarding the use of radar in thunder-

storm conditions. This notation states that thunderstorm

conditions should be avoided whenever possible. If early

evasive action is not practicable, the manual indicates

that certain practices should be followed:

Avoid areas where sharp changes in rainfall

intensity occur, any echoes which are rapidly

changing in shape, size, or intensity, or any

echoes which have prominent scallops, hooks or

fingers by at least:

—5 miles at 10,000 feet or below.

These clearances are predicated on using the 50 or 100-

mile range on the L-1011’s airborne weather radar. The

manual further states that weak echoes or areas of weak

rainfall gradient may be flown through or adjacent to “if

judgment dictates this to be the most desirable pro-

cedure.”

8. It is negligence on the pilot’s part to land or take

off in an obvious thunderstorm. Spaulding v. Unitea States,

455 F.2d 222, 227 (9th Cir.1972) (applying Texas law); Neff

v. United States, 420 F.2d 115, 116 (D.C.Cir.1969), cert.

denied, 397 U.S. 1066, 90 S.Ct. 1500, 25 L.Ed.2d 687 (1970).

App. 76

9. A pilot who is not certain as to the presence of a

wind shear nevertheless may be negligent in flying too

close to thunderstorm activity even if he does not pene-

trate the thunderstorm cell itself. McKinney v. Air Venture

Corp., 578 S.W.2d 849, 859-60 (Tex.Civ.App.1979).

Flying into the thunderstorm

10. Prior to departure from Ft. Lauderdale, Delta’s

Flight Control Dispatch and Meteorology Department

provided the flight crew of DL 191 with a routine dis-

patch package. This package contained the following

weather ducuments: the reported weather at DFW Air-

port and at the flight’s alternate destination, San Antonio;

a terminal weather forecast for DFW indicating widely

scattered moderate rainshowers and thunderstorms with

moderate rainshowers; an en route forecast indicating

isolated thunderstorms, moderate rainshowers over

Oklahoma and northern and northeastern Texas with a

few isolated tops above 45,000 feet; and Delta Metro

Alerts applicable to the route of flight, one of which

stated that an area of thunderstorms was expected over

Northern and Northeastern Texas. These forecasts were

prepared by Delta Meteorologists. These forecasts

advised the flight crew of DL 191 that the atmosphere

around the DFW airport was unstable and capable of

producing an airmass thunderstorm.!76

11. As noted, the flight crew received ATIS Romeo

at 5:35:26 containing weather information including the

temperature (101), and dewpoint (67).

178 U.S. Exhibit 406.

App. 77

12. By 5:51:19, the flight crew was aware of rain

over the DFW area as indicated by comments on the

CVR:'79 “Looks like it’s raining over Ft. Worth.”

13. At 5:56:28, the Feeder East controller broadcast

to all airplanes that “there’s a little rainshower just north

of the airport and they’re starting to make ILS

approaches. .. . ” DL 191 was on the frequency and its

flight crew heard this transmission.

14. At 5:59:37, DL 191 was about seven miles north-

east of the storm and was requested to turn right at 340

degrees. Between 5:51 and 6:00, the microburst-producing

cell (Cell D) had intensified from VIP 1 to VIP 4; the nose

of the aircraft was pointed southwest toward this cell

until 5:59:37. Except for a period between 5:55:53 and

5:57:19, during which a prelanding checklist was com-

pleted, the flight crew was relatively free of in-cockpit

duties. During this period the flight crew would have

been free to use the weather radar to observe Cell D and

to manipulate the antenna tilt to analyze the storm struc-

ture and intensity. Since the storm cell had reached a VIP

4 by 6:00'®, the cell would have contoured on their radar

during this period.

15. By 5:59:47, with the statement by the First Offi-

cer, “we're gonna get our airplane washed,” the Captain’s

reply, “What?” and the First Officer repeating the state-

ment, it was apparent to the flight crew of DL 191 that

their flight path would take them through the area of rain

179 Cockpit voice recorder: a device that records all intra-

cockpit conversation.

180 Duke, vol. 46, pp. 63-64.

App. 78

about which they had been advised and which they had

observed. The Comment by Second Officer Nassick

regarding Price “getting good legs” was an acknowledg-

ment that flying conditions were not optimal.

16. At 5:59:54, the flight crew of DL 191 switched to

Arrival Radar-1 frequency and contacted the Arrival con-

troller.

17. At 6:00:36, the Arrival Radar-1 controller asked

American Flight 351, two aircraft in front of DL 191, if it

was able to see the airport. The flight crew replied, “As

soon as we break out of this rainshower we will.” This

transmission was overheard by the flight crew of DL 191,

and they thus were aware that the rainshower they were

to encounter was of sufficient intensity to obscure for-

ward vision by pilots of landing aircraft.

18. At 6:02:35, DL 191 was cleared for the ILS

approach to Runway 17L.

19. At 6:03:30, the controller broadcast: “and we're

getting some variable winds out there due to a shower on

short final out there north end of DFW.” This transmis-

sion was overheard by the flight crew of DL 191 who thus

were aware of variable winds associated with the rain-

shower located between them and the airport.

20. At 6:03:34, the deteriorating weather conditions

caused a member of DL 191’s flight crew to remark,

“Stuff is moving in... .”

21. By 6:03:58, DL 191 had begun to encounter rain,

as confirmed by the Captain’s report upon initial contact

with the Tower: “Tower, DL 191 heavy, out here in the

rain, feels good.”

App. 79

22. At 6:04:01, DFW Tower cleared DL 191 to land

and advised of winds 090 degrees at 5 knots, gusts to 15.

24. Prior to 6:04:18, the First Officer observed light-

ning coming out of Cell D, and reported to the Captain,

“Lightning coming out of that one.” When asked by the

Captain, “what?” the First Officer repeated his observa-

tion. When asked by the Captain, “Where?” the First

Officer stated the location to be “Right ahead of us.”

Since the aircraft was already in Cell D,'*' this language

indicates that the First Officer was able to see a rain shaft

from Cell D directly in their path, that it was emitting

lightning and that the flight crew still had sufficient

forward visibility to make that observation until encoun-

tering intense rain at 6:05:20.

25. Lightning is a reliable indicator of a thunder-

storm. !8?

26. At no time during the final approach did the

flight crew of DL 191 ask for information on weather

conditions from any one of several sources available to

them. This is significant not because such information

would have caused the crew to discontinue the approach;

indeed, the crew already had the information warranting

a decision to forego landing. Rather, the crew’s failure to

sclicit additional weather information evidences an

181 At 6:04:00, the plane was transitioning from cell C to

Cell D in light rain. Haggard, vol. 1, p. 119, vol. 2, p. 100.

182 Hildebrand, Vol. 95, pp. 133-134; Duke, Vol. 45 p. 134,

Vol. 48 pp. 152-153, 176, 183; McCarthy, Vol. 103, p. 39, Vol. 104

p. 37; Haggard, Vol. 2 p. 86.

App. 80

unreasonable disregard for risk of landing in unstable

weather.

27. Building cumulus clouds are convective clouds

which can easily and very quickly become thunder-

storms. Even without the presence of intense rain, light-

ning or thunder, pilots know they represent a potential

hazard and should be avoided.

28. It was common knowledge in the industry that

there is the potential for a microburst within any convec-

tive activity or thunderstorm.'8’ The presence of building

cumulus clouds and the heavy rainshowers should have

alerted the crew to the possibility of a microburt.'%4

29. Delta pilots are taught never to fly into the area

of a cell depicted by a contour on airborne weather radar.

Delta pilots are taught that wind shear and microbursts

are associated with thunderstorms. !85

30. Microbursts are so rapid in development and

transient in duration that two airplanes, one following

another through the same area, often observe and experi-

ence entirely different events. It was therefore unreason-

able for the crew to rely on the absence of Pireps from

other planes in deciding to continue the approach.

31. Other airplanes scanned the storm at very close

range using their radar sets near the time of the accident.

All of these airplanes’ radars painted the storm as an area

of solid red (corresponding to a contour on the RDR-1F

183 Melvin, Vol. 33, p. 123; Leech, Vol. 84, pp. 65-66.

18 Melvin, Vol. 36, p. 113.

185 Delta Exhibit 3, U.S. Exhibit 84, Kelly Vol. 81, p. 41.

App. 81

radar) with few or no transitional color areas. This return

indicated am intense storm cell.'%6

32. Subsequent of 5:49:29, the CVR of DL 191 con-

tains no conversation attributable to use of airborne

weather radar by the flight crew. The lack of such conver-

sation indicates the failure of the flight crew to utilize

their radar while approaching the DFW airport or Cell D.

33. By utilizing different tilt angles, the flight crew

of Delta Flight 191 could have determined the shape, size,

location, intensity, and hazard of Cell D during their

approach. '87

34. Had DL 191 utilized its airborne weather radar,

the crew would have noted sharp changes in rainfall

intensity and a contour associated with Cell D, which

according to Delta policy, would have required the flight

crew to avoid Cell D.'%

35. The crew of DL 191 should have been aware of the

volatility of the type of weather in the DFW area on

August 2, 1985. The large temperature/dew point spread

should have alerted the crew to the danger of downburst

or microburst activity. '%9

36. The report of wind gusts to the flight crew of DL

191 by the Local Controller at 6:04:01 provided the crew

186 U.S. Exhibit 732-A-6; Hildebrand, vol. 97, p. 12-13.

187 Leech, Vol. 85, p. 120; Manningham, Vol. 107, p.

151-154.

188 Manningham, Vol. 107, p. 155.

189 Hildebrand, Vol. 95, pp. 96-97; McCarthy, Vol. 104, p. 3.

App. 82

with one more indication of the danger of microburst

activity. 1%

37. The flight crew of DL 191, through both their

own observations and from ATC communications during

their descent and approach to DFW airport, had sufficient

information to assess the developing weather situation

along the final approach to Runway 17L and make a

proper decision either to continue the approach or to take

alternate action.

38. Thecrew of DL 191 knew or should have known

that:

a. isolated thunderstorms had been forecast for

the DFW area;

b. there was a large temperature/dew point

spread at DFW;

c. there were rapidly building cumulus clouds

in the vicinity of DFW;

d. lightning had been observed directly in the

path of the aircraft;

e. there were contouring radar returns in the

vicinity of the north end of the runway;

f. the cloud into which DL flew appeared dark

and threatening;'?' and

g. thunderstorms present the hazard of micro-

burst and dangerous wind shear.

19 McCarthy, Vol. 104, p. 26.

191 According to the testimony of Robertson, pilot of the

Aero Commander, the thunderstorm in Cell D looked hazard-

ous from the North.

App. 83

39. The crew of DL 191 knew or should have known

of the existence of a thunderstorm in the vicinity of DFW

Airport and nonetheless continued the approach. In fact,

weather conditions in the terminal area at the time of and

immediately before the crash were better known to the

crew than to the ATCs.

40. In view of the foregoing findings of fact, the

Court holds that attempting to land the aircraft in a

thunderstorm constituted negligence on the part of the

crew of DL 191, and proximately caused the crash.

Failure to Execute Missed Approach.

41. Two minutes prior to initial ground contact, at

6:03:52, the aircraft was on final approach in landing

configuration, descending onto the ILS glide slope at an

altitude of about 2000 feet above the ground, and slowing

to a target speed of 150 knots. First Officer Price was

flying the aircraft, and the Captain was handling the air-

ground communications.

42. Aerodynamically, the flight of DL 191 on August 2,

1985, proceeded relatively uneventfully until 6:05:05, the

final 47 seconds of the flight. The airplane was descending

through a point about 1000 feet above the ground, on the ILS

glide slope, at 154.2 knots (Vref'?? plus 17 knots), and hold-

ing a nose-up 4.022 degrees pitch attitude.'?>

192 V-ref is the speed, calculated with reference to the

weight of the airplane, 30 percent above stall. It is used by

pilots during the approach and landing phase of the flight.

Leech, Vol. 84, p. 52.

1% Delta Exhibit 517.

App. 84

43. At 6:05:05, the plane was at an altitude of about

1000 feet, and lightning had been observed in its path.

The Captain announced his intention to take the airplane

down to 200 feet before making a decision to go-around.

At approximately the same time, the aircraft began expe-

riencing a slowly increasing head wind and slight

updraft, and thrust was reduced to about half of normal

approach thrust. At 6:05:15, the head wind began increas-

ing more rapidly, and, in spite of thrust reduction to idle,

the airspeed increased to 173 knots at 6:05:19, two sec-

onds after the onset of a strong downdraft that accom-

panies entry into heavy rain.’ At this point, the

existence of a downburst should have been obvious to a

pilot trained in the subject.

44. In the next ten seconds, the headwind decreased

by 28 knots. Before near takeoff thrust was applied, this

shear, together with the increasingly strong downdraft,

resulted in a loss of 44 knots of airspeed to 129 knots, 21

knots below target airspeed.'%5 Probably in response to

flight-director commands,'% the pilot nosed up the air-

craft to an unusually high pitch attitude that maintained

the flight path near the ILS glide slope in spite of the

severe speed loss. It is evidence that in the heavy rain the

First Officer was flying fully on instruments. To this point

no word or action by the crew indicated an intention to

discontinue the approach.

1% Bautz, Vol. 3, p. 59; Mullins, Vol. 109, p. 156-157.

195 McCarthy, Vol. 102, p. 183-184.

1% Bray, Vol. 73, pp. 43-44.

App. 85

45. At 6:05:19, the Captain warned the First Officer

to “watch your speed,” a reference to a rapid airspeed

(performance) increase which DL 191 began to experience

at 6:05:05. This increase in airspeed indicated a wind

shear encounter.

46. At 6:05:20 the sound of intense rain was heard

on the CVR, indicating that DL 191 encountered the

intense rain shaft associated with the microburst beneath

Cell D.

47. At 6:05:21, the Captain warned the First Officer

that “You’re gonna lose i: all of a sudden, there it is,” a

reference to an anticipated rapid airspeed (performance)

loss characteristic of wind shear encounter.

48. The 6:05:19 and 6:05:21 warnings by the Captain

to the First Officer were clearly in anticipation of an

encounter with wind shear.

49. Between 6:05:25 and 6:05:29, thrust was

increased to between 1.46 and 1.47 Engine Pressure Ratio

(EPR), just under go-around power.

50. The dramatic airspeed loss of 44 knots at 6:05:28

should have removed any doubt in the pilot’s mind that

the plane was traversing severe wind shear.'97

51. At 6:05:32, some airspeed had been recovered

due to the high thrust and a momentary reversal of the

horizontal wind component, but the aircraft was still

below the target speed, flying at a 16 degree nose-up

attitude as the downdraft increased 2500 ft./minute. At

this point, thrust was reduced somewhat from 1.45 EPR

197 Leech Vol. 84, p. 130; McCarthy Vol. 103, pp. 41-42.

App. 86

to 1.33 EPR, and the aircraft momentarily stabilized on

the glide slope. This is a clear indication that the First

Officer was not aborting the approach, despite a wind

shear encounter and clear evidence of hazardous weather

known to the flight crew.1%

52. At 6:05:35, at slightly above 600 feet and at

approximate airspeed of 140 knots, the aircraft experi-

enced a passage through a horizontally disposed vortex

flow. From this point forward, the crew of DL 191 was no

longer attempting to land the aircraft on that approach,

but was attempting to keep the craft airborne. During the

last 17 seconds of the flight, the crew could not possibly

have escaped from the microburst due to the complexity

and intensity of the component winds.

53. The fact that the aircraft survived the initial

impact without breaking apart indicates that the descent

had been significantly arrested.

54. Avoidance of ground contact would have been

likely if the missed approach had been executed when the

Captain first perceived indications of microburst wind

shear at 6:05:19, while the airplane was between 700 and

800 feet above the ground.

55. The Delta Pilot Operating Manual warns that if

the aircraft is less than 500 feet above the ground in shear

conditions and glide slope deviation exceeds one dot, a

missed approach must be initiated. FAA Advisory Circu-

lar AC 00-50A contains a similar caution.

19% Bray, Vol. 73, pp. 70-71; Vol. 75, pp. 2-5.

App. 87

56. The Pilot Operating Manual also advises that

the procedures for landing in wind shear are general

guideiines to be followed; good judgment must dictate a

go-around at any point in the approach and landing

phase if conditions appear less than safe.

57. In otherwise normal conditions, it may be rea-

sonable for a pilot to continue an approach when wind

shear is experienced above 500 feet. The 500 foot refer-

ence in the Advisory Circular is a bottom line beyond

which a pilot does not have the option of continuing the

approach.!99 However, when deteriorating weather con-

ditions evidence a threat of microburst or severe down-

burst, a pilot may be negligent in adhering to the 500 feet

rule of thumb. Here, the crew had several indications of

the potential for microburst and should have been

“spring loaded” for such an eventuality. They were aware

of the large temperature/dew point spread, wind

changes and gusts, had observed lightning, and had

experienced wind shear and heavy rain.2° The crew had

already taken an unreasonable risk by continuing their

approach in a thunderstorm. The occurrence of wind

shear should have prompted the crew to take immediate

action to execute a missed approach.

58. A prudent pilot would execute a missed

approach by 6:05:18, when encountering a dramatic per-

formance increase of 20 knots. The crew has seen light-

ning, identified a thunderstorm, and has encountered a

199 Manningham, vol. 107, pp. 80-81; Bray, vol. 75, pp.

100-102.

200 Leech, vol. 84, p. 66.

App. 88

performance increase. There was no explanation for con-

tinuing at this point. Every clue the crew had received

was worse than the previous one; weather conditions

were deteriorating as heavy rain was encountered at

6:05:20. The crew of Delta flight 191, by 6:05:20, needed

no more clues or information in order to make a decision

to execute a missed approach.?°!

59. During 6:05:19 to 6:05:35, the First Officer of DL

191 was flying the glide slope, rather than maintaining

recommended pitch attitude for wind shear recovery as

he should have.?°

60. After experiencing the effects of a severe wind

shear only 80 feet above the guideline height for execut-

ing missed approaches, and with knowledge that they

were flying in a thunderstorm, the pilot of DL 191 was

negligent in failing to execute a missed approach.

61. The failure to execute a missed approach consti-

tuted a proximate cause of the crash.

B. Corporate Negligence

Failure to Train Pilots Adequately

62. Delta has a flight training department which has

the responsibility of assuring that its pilots receive the

necessary training as well as that required by FARS.

63. When a pilot joins Delta he is given initial train-

ing for a certain seat; e.g., First Officer in a particular type

201 Leech Vol. 84, p. 127-130.

202 Bray, Vol. 75, pp. 2-5, 103-104.

App. 89

of aircraft. Thereafter, a pilot is given additional training

in the same aircraft but for a different seat.

64. Transitional training is given to a pilot when he

moves from one seat in one aircraft to the same seat in

another type aircraft.

65. Delta gives its pilots a variety of proficienc

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