Petition for Writ of Certiorari — Rawl v. United States

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Supreme Court, U.S,

85-1742 | FiLeEp

; | MAR 24 1986

4 | JOSEPH F. SPANIOL, JR.

In The =... =

SUPREME COURT OF THE UNITEC STATES

October Term, 1986

Julian W. Rawl, Administrator of the

Estate of Edwin E. Rawl, Jr.,

Petitioner,

Vv.

United States of America.

PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

FOURTH CIRCUIT

Seo ae ae eae aoe a Oe ee ee

Arnold S. Goodstein

Diane Schafer Goodstein

Goodstein & Goodstein, P.A.

133 East First North Street

Summerville, S.C. 29483

(803) 871-1000

G. Daniel Bowling*

333 1/2 King Street

Charleston, S.C. 29401

(803) 722-8728

Counsel for Petitioner

*Counsel of Record

QUESTION PRESENTED

a Certiorari should be

granted to review the Fourth

Circuit's practice of circumventing

the protections afforded the

findings of fact of a trial court

under Rule 52(a), Federal Rules of

Civil Procedure, by characterizing

its de novo findings of fact as

corrections of the District Court's

the circuits and within the Fourth

Circuit regarding whether Rule

Sa tess Federal Rules of civil

procedure, forbids appellate review

of trial court findings of

negligence as findings of fact.

PARTIES

The parties to this proceeding

are Julian

“fo and

America.

W. Rawl,

RFetata of Fau

yw &- A HY NS J as A TE

the

United

n" FE Raw!

aa ave sw

States

as Administra-

’

TABLE OF CONTENTS

Questions Presented....... are

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Rule TAVOSVOG s 4020660 6 e4 6 ee ews

Statement of the Case..... Scenes

Reasons for Granting the Writ..

COUCTUSLORs « k 4:40 CAR eR EE

177

"ne

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| outta ae ae — “cold

APPENDIX

District Court Findings

of Fact and Conclusions

of Law,October 12, 1984.

Judgment, October 15, 1984.

Opinion of the Court of

Appeals, December 4, 1985.

Order of the Court of

Appeals Denying Re-

hearing and Rehearing

En Banc, January 21, 1986.

Page

- 7 2

a ay ae _

TABLE OF AUTHORITIES

Page

Cases

Anderson v. City of Bessemer 24,26

City, 470 U.S. , 105 S. Ct, 27,28

1504 (1985) 30,31,38,.42,56-60

Bethlehem Steel Corp. v.

Yates, 438 F.2d 798

[eee St. 867150.

Bonds v. Mortensen and Lange,

et al, 717 F.2d 123

(4th Cir. 1983). . . ses « §6

Brown v. Howell, 327 SE2d 659

(S.C. mee, 1966) ..4 cc. 28,29

Dale v. Rosenfeld, 229 F.2d 855

(2d Cir. SUNG) 6 sé Ke Ka

Darter v. Greenville Community,

Hotel Corp., 301 F.2d 76

(4th Cir. 1962) . . . . .29,50,61

Erie Lackawanna Ry. Co. v.

Timpany, 495 F.2d 830

(2d Cir 1974)... ...,.. «47

Famous Knitware Corp. v. Drug

Fair, Inc., 493 F.2d 25]

(4th Cir. 1974)... .. . «(55

Fuchstadt v. U.S., 434 F.2d 367

(2d Cir. 1970) ..... . 47,48

Graham v. Whitaker, 321 SE2d 40

282 S.C. 393 (1984) . . , 38,39,61

Hawkins v. Southern Ry. Co.,

45 FRD. 459 (1968) .... . 38

Hicks v. United States, 368 F.2d

626 (4th Cir. 1966) . . , , 52-55

House v. European Health Spa,

239 $.€.2¢ 653 269 S.C. 644

Page

Sis s ree errno Pe

Inwood Laboratories, Inc. v.

Ives Laboratories, Inc.

456 U.S. 844 (1 982). «aes

vOnnSOn Vv. U. 3.. 30 F.46

801 (4th Cir. 1964).

Kennedy v. Custom Ice Equipmen

CO. ARC. 5 £9e S3-RctG £70, 27

S.C. 171 (1978) a5

Kloster v. Steamship Chatham

C. A., 475 F.2d 43 (4th

Cir. 1973) .

Lane v. United States, 529

F.2d 175 (4th Cir. 1975).

Mamiye Bros. v. Barber S. S.

L2nOs. i8C., 3260 *.28 7%,

cert. den 385 U.S. 835

(1966) —

McAllister v. United States,

348 U.S. 19 (1954) ... 43-

Merriman v. Sea Pines Planta-

58,59

4@,55

tion Company, 294 S.E.2d 423,

278 S.C. 263 (1982).

Nelson v. Jacksonville

Shipyards, Inc., 440 F.2d

668 (5th Cir. 1971).

Nolan v. Sullivan, 372 F.2d

776 (3rd Cir 1967)

Oblensky v. Saldana Schmier,

409 F.2d 668 (5th Cir. 1971)

.39,61

Pennsylvania Railroad Co. v.

S.S. Marie Leonhardt, 320

F.2d 262 (3rd Cir 1963)

Quinn v. United States, 439

F.2d 335 (8th Cir 1971)

Richards v. United States,

369 U.S. 1 (1962).

Scheel v. Conboy, 551 F.2d

41 (4th Cir. 1977)

Taylor v. Bryant, 265 S.E.2d

514, 274 S.C. 509 (1980).

Taylor v. United States,

360 F.2d 488 (4th Cir.

1966) Ee 5 ~

Thompson v. United States,

268 F.2d 426 (4th Cir.

1959)

Tucker v. Calmar Steamship

Corp., 457 F.2d 440, 444

Seemeeere befe)....

U.S. VS. U.S. Gypsum Co.,

333 U.S. 364 (1948)

United States v. Yellow Cab

Ce., gee U.S. 338 (1949).

Verbeeck v. Black Diamond S.S.

Corp., 269 F.2d 68, cert.

den. 361 U.S. 934 (1961).

Whelan v. Penn Central Co.,

503 F.2d 886 (2nd Cir.

1974) a,

Williams v. Kinney, 226 S.E.2d

555 267 S.C. 163 (1976)

Vii

Dis

WwW

PhO

©O

40,62

Wiseman v. United States, 32/7

P.2¢@ 70] tard Cir. i964) . .. ™

Zenith Radio Corp. v. Haz

Research, Inc., Inc. 3 :

ub. S&S. 208 42060) 6 ood hee ee

LO WM

Vv ] ] ]

Statutes and Rules

14 CFR 71.11 (1983) 10

1A crn eq 1A? r7 0059 \ wn

as u aN 7Hhe & VE (i zoo) iv

14 CFR 91.115-.129 (1983) 6

14 CFR Section 91.3(a). 22

14 CFR Section 91-105 (1983). 6

Rule 52(a), Federal Rules of 3,24,26

Ciwt) Precedurée . . . . « 8¥031,33

38,39,41

42,50,53

54,55,57

Other Authorities 99

Websters Third International

Dictionary 2537 14

Air Traffic Control Manual 14,20

Section 7110.65 A Foreward. 21

Air Traffic Control Manual

Section 40;Chap 3, Section

18; Paragraph .521; Chap

2, Section 2, Paragraph 4. 14,20

S24 ot. vonn’'s L. Rev. 68

Paee?) . 33

No.

1t1or

Ses

re)

er,

a ©

ient

(“orm

NANA

}

OPINIONS BELOW

The decision of the court of

appeals is reported at 778 F. 2d

Petition. The order denying

rehearing and suggestion for

rehearing en banc, which is not

reported, was filed on January 21,

1986, and is set out at p. 58 of

ctr

the Appendix. The District Cou

Findings of Fact, Conclusions oc

Law and Order, which are not

reported, are set out at

pp. of the Appendix.

The judgment of the Court of

Appeals was entered on December 4,

5. A timely Petition for Re-

hearing was filed, which was denied

on January 21, 1986. Jurisdiction

of this court 1S invoked under 28

ST)

tered

review.

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was brought under the Federal Tort

Claims Act, 28 U.S.C. Section 2671,

et seq. The claim arose out of an

South Carolina, which took the

lives of Edwin E. Rawl, Jr., and

estate of Edwin E. Rawl, Jr.

Petitioner's complaint alleged

that the defendant's, Fe ey Fe

agents and employees, acting within

the course. and scope of their

employment with the defendant, and

in particular one air traffic

controeilLer, violated certain

Federal Aviation Administration

("FAA") regulations and procedures,

and committed other acts of

negligence which led to the crash.

-~ 7 -

Jury crias on August 2 | and

September l1 and 2, 1983. Oral

arguments were made by the parties

on January 17, 1984. The testimony

was extensive, including that from

air traffic control experts,

pilot expert and submission of

countless pages of transcripts from

radio transmissions culminating in

the crash of Edwin E. Rawl, Jr.

The facts in this matter are

far from simple. On the afternoon

of February 17, 1978, petitioner's

intestate, Mr. Rawl, left the Grand

Strand Airport at Myrtle Beach,

South Carolina at approximately

2¢€3 eo Pee with a planned

destination of Greenville, North

Carolina, a distance in flying time

of approximately one hour. He was

flying an airplane which he owned,

a 1977 Beechcraft Bonanza, bearing

FAA registration number N17523.

Mr. Rawl was certified by the FAA

to fly airplanes under visual

cae eases 86 “"VFR"). Visual

flight rules means a pilot flies by

Sight. It is authorized and quite

normal for a "VFR" pilot to fly

either during the daytime or

nighttime, See 14 C.F.R. Section

91-105 (1983). The FAA provides

another certification, instrument

flight ruies or “IFR" which means a

pilot must be able to fly relying

on his or her instruments alone.

See 14 C.F.R Section 91.115-.129

OG. ate Mr. Rawl was not certified

as an IFR pilot.

the day on February 17, Mr. Rawl

contacted Myrtle Beach Flight

Service Station for weather

nformation. His last contact with

be:

rr]

light Service was at p.m.

approximately eleven minutes prior

—

is flight from Myrtle Beach to

Greenville. Those forecasts

indicated VFR flight conditions

y visibility

and a forecast for deterioration of

those conditions towards the middle

of the evening. In fact, the

weather report disseminated by

Tank + e

tAiyiitl 1)

tT — ts a. fas TAA + A

L > V & Ww ang & & GVA ij WJ

accurate as the weather conditions

deteriorated more rapidly than

forecast, so that visibility at the

Grand Strand Airport was less than

two miles at the time Mr. Rawl lef

the airport with fog and haze

present. There was a broken layer

of clouds at 500 feet and the same

at 3000 feet. On his take off, Mr

Rar ‘aw 4 ry - + nO a\a\nrat+ ~ A

Kaw J broke Out Or TNE scattered

Y > + nnrr x, ™ = s1* © i - +

clouds at approximately ¢& feet

re 2

ann rem rKeon +h 3+ ha r | r OY >} ‘

oeeas 4 i L A Abd de %

+ ©¢ é > | +h ¢ Wwe ~*~ * »~ ‘Fr _ +

My > + +

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= s. ¥ - . ~ . ~ . ¥ >

+ 799 + 4 . 4 4

. Y . *

During the period after Mr.

Rawl left Myrtle Beach to the time

he returned to the Myrtle Beach

the Flight Service simply failed to

predict or adequately depict this

rapidly changing weather condition.

An unusually thick fog settled in

the area. The plaintiff himself,

Mr. Rawl's son, upon exiting a

restaurant where he had just eaten

2 i

dinner, became conce

change and proceeded to promptly

call both Radar Approach Control

("RAPCON") and Myrtle Beach

Approach Control! to plead with

them to tell his father of the

IThe approach control tower

and the radar approach control

("RAPCON") were under the control

of and operated by the Air Force at

the time of these events. The FAA

had delegated authority to control

civilian planes flying into the

Grand Strand Airport to the Air

Force.

change in weather conditions and

communicate to Mr. Rawl that he

needed to divert to Wilmington,

North Carolina where the weather

have a car waiting to transport Mr.

and Mrs. Rawl back to Myrtle Beach.

Five such calls were made to RAPCON

and one to Approach Control. While

it is uncertain when the calls were

nade, it is known at least two

calls were made prior to the crash.

No such warning or message was

delivered to Mr. Rawl.

with the Myrtle Beach Approach

Control at or about 7:19:40 p.m.¢

At Approximately a minute

later at 7:20:52 p.m., Mr. Rawl

informed the RAPCON that he was

flying under visual flight rules or

2All references to time in the

petition are given in Eastern

Standard Time--hours, minutes and,

in instances where available,

seconds.

VFR. In preparation for entering

the control zone?, Mr. Rawl became

classified as special VFR. 4 About

seven minutes tater at :29:23

~ RA w c aba va! ') j >

p.m., Mr. Rawl reported that he was

EVerds DD er AM © .

flying in VFR conditions as he

yr Oe -_ a ho _ | c -awns

approached the Grand Strand

Y\ ae arta

Alrport.

A+ - “Av 4 = e , ? « 2e.é 2h . .

At approximately ¢28:30 p.m.

+ 7 - y -- ramso , y » >s & 7

and again at approximately 42:5

‘ T> - o.9 o™— «£ 7 ] ~ x

p.M., Mr. Raw I Was tola t< stay

- “ } ~ - - 7 - =| -

clear of the control 7: and tc

, ’ ~ Y }

expect a ten minute aelay.

Wh 3 : Ay 2 | mec ,

While Mr. Rawl was in a

3 " ; 7

Y\ vee = r ~ i i -

“A control zone 1S a clirculay

a > a : 7 > = ™ £ ~ _ « = - «

area with a radius of 5 miles and

- 'e ; — ~ — -* , ~) - a

any extensions necessary t include

parts." 14 CFR Section 71.11 (1983).

4The special VFR weather

minimums are found at 14 CFR

Section 91.107 (1983). Visibility

must be at least one statute mile

inimums under thi

section are inapplicable between

Sunset and sunrise. In essence,

the special VFR allows a pilot to

fly within controlled airspace as

long as there is at least one mile

of visibility and the pilot stays

clear of clouds. Further, a

° II 7 - : ——- 1

Special VFR only applies to flight

Within the control zone.

holding pattern, the RAPCON’ was

attempting to bring Cessna 46309

into the airport. Like Mr. Rawl,

the pilot of Cessna 46309 was

flying with special VFR clearance.

That pilot made several passes over

the Grand Strand Airport but was

unable to see it. At approximately

13:50:18 p.m. the flight data

position at the Grand Strand

Airport tower declared Cessna 46309

to be involved in an emergency

Situation. At approximately

7:50:18 p.m., Cessna 46309 landed,

but ended up off the a

the aqrass. For a period of time

t ’

Cessna was nonexistent. From peals

Oo f laughter he rd fron the

wicrophone at the flight data

position within the control tower,

| . “ . a " | ‘ =~ =o

the comment was made, tell Cessna

RAPCON was aware of the difficulty

the Cessna had in attempting to

land and that the attempt to get it

down safely had been jiabeied an

emergency. There was no evidence

Mr. Rawl reaiized the difficulty of

Cessna 46309.°? Apparently,

believing the landing was

uneventful, Mr. Rawl requested

RAPCON to inform him of the

altitude Cessna had broken through

the cloud cover.

- . > & Gh dn im 2 oO f\

At approximatel 8:00 a

Mr. Rawl was cleared to approach

a+ Cc rannyn — ~~ ~rnec + ™

the Grand Strand control zone from

the northeast. He was told tc

maintain Special VFR conditions at

or below 1500 feet. He was

approximately seven miles from the

airport at this time.

In its Opinion and without

citation in the record, the Court

of Appeals disregards the District

Court's finding that Mr. Rawl wa

unaware of the difficuities of

Cessna 46309 and makes it

independent finding that Mr. Raw

was aware of Cessna's problems.

At approximately 8:03:16 p.m.,

RAPCON suggested that another small

aircraft, Baron 9669 Yankee divert

to Wilmington, North Carolina where

the weather was better than Myrtle

Beach at three mile visibility with

fog and haze. 9669 Yankee did not

land at Myrtle Beach following this

Suggestion. A similar suggestion

was not made to Mr. Rawl nor did

7 £e >: Lc

> + aa nr + ranAacr ran Salah: > + -~Ha+

bc ae. Sat & raal € eric as Chat

time

A Ce

teats" nowy t+ Mm SATRMmIiINnIAte|a+e ANN 1+H

A = = UU u = a % Ue de Ww a &

MA e.7 1} ~~ ~ = de 7 g f\ A

Mr. Rawl was at approximately >04

t 2

: ATT

a cad ry + Tr ) ~ + =

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* + - -

nar ~r\r vn *7* TY +-c > mY ~/ i | ~ +>

ca MA appro at se I 2AVUL 1oOurs irk

ae ee . 1] e 1 -

1} a € imal ei

:ue.i Lei Gs ri€ Wand stl B oh 4 4 at

Arn . . +

) ann no naa + A rh | x an

2500 feet and indicated he believed

} t 1ld ~ mnrahlea + 7 +he

Ne WOU ol be u anLe L see Gsse

airport at that altitude. At or

+ ~14 ee ee . MA > t.7 1 een =|

about 8:04:51 p.m., Mr. Rawl asked

this evening

Man

asCA 44

Chap

n1sg,

ctio

conditions existed between the

clouds, the outside visual

references were obscured or

severely limited by the ciouds, the

Atlantic Ocean to the East, and

unpopulated areas to the West. It

is important that Mr. Rawl

experienced no difficulty flying

under these circumstances and had

done so for approximately thirty

minutes.

During Mr. Rawl's' exchange

with RAPCON, which began at 8:04,

he was told to descend and maintain

1600 feet.

At or about 8:05:17 p.m., Mr.

Rawl was outside the control zone

flying in a generally northeast

direction which would be a heading

was told by RAPCON to turn left to

a heading of 270. This is a left

Following this instruction, at

Or about 8:06:36 p.m., Mr. Rawl was

headi

was

his

asked to state

responded that

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wt = wl 0 : 3 | |

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ae N C C

1) od u

her and he or she quite simply may

not be able to tell which end 1s

up. For example, he or she may

the sensation of climbing when

the plane is actually descending.

This condition may occur whilc

pilot is in straight flight if

there are uneven light sources, a

slanting, uneven cloud bank or

sunlight through haze hitting

03)

propeller. It may also be induced

by putting the plane through turn

or by head movements by the pilot.

Mr. Rawl developed spatial

Gisorientation

deprived of outside visua

5 4:

references ana was GcGirectea t

execute several sharp turns withir

a very short period of time.

Hennessey had been briefex Or

spatial disorientation during is

trainin and knew that one of the

= ~ 2

T) » | cs Y om = = ~T g > nr + an

inducing spatlai aisorient

- 4 . on + ¢ c K

& 4 ~-* rt = A __ > ~ / +*

of the activities he should guard

against was directing the pilot to

make excessive turns, that is one

turn right after another turn after

another.

Section 1592 of the Arr

Traffic Control Manual? entitled

"Radar Assistance Techniques'

reiterates this concern and

provides as follows:

Use the following techniques

to the extent possible when you

provide radar assistance to a pilot

not gualified to operate in IFR

conditions:

a. Avoid radio frequency

changes except when necessary to

provide a clear communications

channel.

Ds Make turns while the

aircraft is in VFR conditions so it

will be in a position to fly a

9The Aig TeGtEiC Centre:

Manual, an GOELTiCiLSs | internal

document of the FAA prescribes air

traffic control procedures) and

phraseology for use by personnel

providing air traffic control

services. "Controllers are

reguired to be familiar with the

provisions of the handbook which

pertain to their operational

responsibility and to exercise

their best judgment if they

encounter situations not covered by

as Air Traffic Control Manual

Section 7110.65A Foreword.

straight course while in IFR condi-

tions.

Cc. Have pilot lower gear and

slow aircraft to approach speed

while in VFR conditions.

- Avoid requiring a climb or

t while in a turn if in IFR

descer

conditions.

e. Avoid abrupt maneuvers.

r% Vector aircraft to VFR

to controllers to help them deal

with spatial disorientation.

With the foregoing facts

presented to him the District Court

resolved the questions of negli-

gence and proximate cause in favor

of plaintiff. In the Findings of

Fact and Conclusions of Law filed

October 12, 1984, the trial judge

held that the government was

negligent in directing Mr. Rawl to

make the turns that were ordered

between 8:05:17 p.m. and 8:06:55

p.m. The court further found the

government negligent for

Hennessey's interpretation ee | ae

p-m. as being 30 degrees and not

requesting Mr. Rawl to repeat the

ort until it was clear.

The court found these acts

proximately caused the crash and

subsequent death of Mr. Rawl.

The court further found

petitioner's decedent lacked any

contributory negligence.

The government contended Mr.

Rawl was contributorily negligent

on two basic grounds. The first

being on the basis of an FAA

14 C.F.R. Section 32.2

(a), which states;

"The pilot in command of

an aircraft is directly

responsible for and is

the final authority as to

the operation of that

sirerart.™

This defense is commonly called the

"pilot an command" defense.

Secondly, the government asserted

that Mr. Rawl's acceptance of the

special VFR after sunset consti-

oh oo oe m Fee die

tuted negligence on his part. re

court determined, and the

government conceded with reference

to the second defense, that at the

time of the crash, Mr. Rawl was

clearly outside the control zone in

tTCD _ &

=| Ka ~ , ~ eo

The court there held that any acts

sAH43O-} ‘ t.7 , ~ - rc I;

which Mr. Rawl may have done

aarli 73 +) - rAc - we

earlier with regards to accepting a

5, a7 7’ R +mMmnN 1 ro vata

special VFR Simply were not

-A\vIM + cr A p- h

proximate to the crasn.

With roaqardac + 7) the mi10t in

ae Se ee reqaras L ic Mii UL mo

~““Ammanse Jefence +ho tat hh ao ATW AINN

- 5

ry | + -“LD 735 — . : 1

Trouna cCnueirt < was nO caus

ee eT ’ y mee? % awa eh

connection between Mr. Rawl's crash

A hee Is _ L - - hare sae

ana his reliance on the weatner as

he knaw - ; A . . ods om x

he knew had it had been when he

left Myrtle Beach and as it had

been forecast by the government via

flight service in making his

decision to pursue his course to

+ 1

~leaarl, Eninnr the Ato hich the

v C - - > LOU oi ne avy |a WN1C Nn AL

oO a rnman + conten Jan oe

nt+yr } + * nNonmliianranre = +ho Wart

\ LCi AWU I PU —3o Oe a= Cc L C wMWali

WwW

‘ >

io : >

4+ 4+

- bu

r4 rj

a x

. we

+ ~

See anc Mere ee en ee

"clearly erroneous" standard. In

ion decided December

@)}

be:

1 r . :

+} V5 ++ri at Court ryt ~+ n+ 4A NO

es = S L Y = = if 45 es. Ge ~/ y S -Aw tilts y

Ww ~A mM + ho $F- n+ wre

r } J itl ae GT LA aw i @ , Wo

Cry a 17 ae 4 = + ~~» €

UY UWilu od UA L1iGAt » a oO a

matTtTargT CC) T 7 ty Raw! JAR c

Aw .. J + » A V¥ A\A¥ ¥ oe

— mw ler ma lanan?t hiit

iIVL On i y ne dis ae Sil. g Ayu L

= 2

— * " ~ 4 , r ,rlinoan?

eWVilildl AVNWULCYSA aw y ssa - =

o : » : _

~ . “gi ho mero 7 ‘rT ,acr48t Ss Y c

i ¢ oS ee 4 a il1U Su Ss > an ws OE Bok x

rohe _r4ang en L nro \ c nAonian r

+ “ > 4 a4 ~Y y i

T ry 27 19R¢

} A ACA SL y “= A sf a A

REASONS FOR GRANTING THE WRIT

Certiorari Should Be

Granted to Review the

Fourth Circuit's Practice

of Circumventry the

Protections Afforded “the

Findings of Fact of a

Trial Court Under Rule 52

(a), Federal Rules of

Civil procedure, by

Characterizing its De

Novo Findings of Fact as

Corrections of the

District Court's Error (

Law.

The Fourth Circuit Court of

\ppeals decision in this case 1S 4

} <7 7 ' sntonac

now » ey Lili_tciitiio

‘3

— =

to circumvent Federal Rule oO!

Procedure 52(a) and this court Ss

very recent admonition to the

- °

Foourth Circuit for misapplying

52(a) in Anderson v_ Bessemer Caty

( = 1905 c cm 1504

40 swe eS Be wewss+t eo + =

= . — as * _

fi9S>) -« in the instant case the

dictates that findings of fact of a

lower court may be overturned only

} - ‘ " .

when "clearly erroneous, and then

quite amazingly says it need not

? erronnenic"

-—~x~T-e« é "

apply the clear]

standard if it recharacterizes

findings of fact as matters of law.

This portion of the order bears

repeating:

"Of course, we are aware

of the limits placed upon

uS aS an appellate court

reviewing a trial court's

decision. We may not

overturn findings of fact

unless they are "clearly

erroneous" Fed. R. CW. P.

52(a). --- The clearly

erroneous rule applies

even when the trial

court's findings are based

upon physical or

documentary evidence, or

inferences from the facts.

Anderson v City of Besse-

mer City, 407 U. S. ’

105 S.CT. 1504 (1985). In

the case sub judice, how-

ever, we find a mistake in

the rule of law, or

perhaps, a mistake in the

application of law to the

facts. Characterized in

either fashion, the

Situation permits us_ to

correct the error in the

District Court.’" Ap

48-49, (Emphasis adde

u's

After espousing the above

proposition the Court of Appeals

goes on to decide

"From the facts, we

i$.C. App. 1985);3 Darter Vv

Greenville Community Hotel Corp.,

301 FF. 24. 0 (isd).

Determinations that there is

but one reasonable inference to be

drawn from the facts presented are

to be made by the trial court and

usually when determining whether to

submit an issue of fact to a jury.

The corresponding standard at the

appellate level is the "clearly

erroneous" test. Hence, the Court

of Appeals cannot circumvent the

appropriate standards by denoting

hey have made their findings of

fact as a matter of law.

Although the Fourth Circuit

stated it made its findings as a

matter of law it never addressed

the question regarding

contributory negligence whether

there was but one reasonable

inference to be drawn from the

evidence in the record. The reason

the Court of Appeals failed to so

mention is because where there is

more than one permissible view of

the evidence, the fact finder's

choice between them cannot be

clearly erroneous. Inwood

Laboratories, Ine. v Ives

Laboratories, Inc.-, 456 U.S. 844

of Bessemer

City 407 U.S. , 105 S.Ct.

1504 (1985). In making its skewed

view of the facts, the Fourth

Circuit Court of Appeals has done

precisely what Rule 52(a) guards

against. That is, it has made an

independent, de novo finding of

fact without regard to the lower

court's determination. If this be

the appropriate workings of the

appellate courts then today in

Maryland, Virginia, West Virginia

and the Carolinas, the rule of

federal district judges in cases

involving negligence findings of

fact is merely to compile the

record on which the Fourth Circuit

will base its de novo

determination. In any case in

which a district judge decides to

role for the plaintiffs, the

drafting of the findings of fact

‘ale ate ~*lusi ne a } ) -Or1i Kran Ks

eele| ho Ga & % US L,vVvuils Od Liaw Leuuliired W\y

Rule 52(a) 1s generally pointless,

ince such findings will ordinarily

carry no weight and should this

court make demand that findings f

fact be given weight as: it lid in

Anderson . rr then the Fourth

Circuit will simply rename them and

makin . ~ rY Fannin + + + ~+ ve

making its Own findings of fac anda

} — . n= b - } ~ -_e «CO 4 »

Say tney are making tnem as matter

£ 7 "

Law.

ry ~ ? 7 \y T ) } ’ "

rraqgi illy, tne |! rt 'wWaeoGuat

ley } ] } ¢ ‘

ic kK wledaqed that the facts of thi

. , ] 4 1 } ]

Ise welt COMPLEX, ye qisreqaraeada

the deference t be alive! 1 the

: ) ' y

trial Judge's positi 1! seeing

y 4+ } ‘ 7. |

ind hearl J the ( ien rirst-

oxo

As an alternative position the

Fourth Circuit in footnote nine

states that the "clearly erroneous"

standard is inapplicable where the

court 1s reviewing mixed questions

of law and fact. App.p. 49. In

support of this proposition, the

court cites decisions from the

Second, Third, and Tenth circuits.

Noticeably absent are citations

from the Fourth Circuit and a close

examination of those cases reveals

why. The matter is well settled in

the Fourth Circuit. Where there

are mixed questions of law and fact

the Fourth Circuit applies the

"clearly erroneous standard of

review. See Tucker V Calmar S.S.

Corp 45/7 F.2d 440 (4th Cie 19728.