# Petition for Writ of Certiorari — Rawl v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 814

## Text

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
i

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

1

74
a

n" FE Raw!
aa ave sw

we

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

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=

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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.

VV

Page

ho

38

39

58

- 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

V

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
51
t
1
28
ca
29
46
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)

Vi

.39,61

45

49

45

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

iJ

Dis

WwW

PhO

cn
Oo

wn
©O

I>
OY

I>
~~

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

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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

ry
ctr
n

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

y
en

review.

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light Service was at p.m.

approximately eleven minutes prior

+
a
—
-

U

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)

0)

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

ct

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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pt y 4 i Ww 4
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+ > + My + y
= 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

4)
ry
_
40
Qs
se
2 i
O
or
ct
as
nt
7)

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

J

nade, it is known at least two

S

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 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

W

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

r
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.

12

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 ) ~ + =
. . = re 4 i og @ | r eo a S = os
* + - -
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

7
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asCA 44

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!

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
he

asked to state
responded that

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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

we

=

slanting, uneven cloud bank or

sunlight through haze hitting

03)

propeller. It may also be induced

W

by putting the plane through turn

or by head movements by the pilot.

=)

Mr. Rawl developed spatial

Gisorientation

bY

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.

20

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-

i

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

4

tTCD _ &
t

QD
O
.
¢
re
+

=| 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.
t
With roaqardac + 7) the mi10t in
ae Se ee reqaras L ic Mii UL mo
~““Ammanse Jefence +ho tat hh ao ATW AINN
Si al a ae Tense ’ oh 6% Low Ms © qaualiil
- 5
ry | + -“LD 735 — . : 1
Trouna cCnueirt LOU oi ne avy |a WN1C Nn AL
oO a rnman + conten Jan oe
Y ae oe \ L GW. eSenusSsu O48 ©. ee Se a Cs
nt+yr } + * nNonmliianranre = +ho Wart

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

i.

WwW

io : >
4+ 4+
- bu
r4 rj
a x
. we
+ ~

See anc Mere ee en ee

"clearly erroneous" standard. In

ion decided December

>
~

tv
a
O
@)}
be:
J

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
Cc
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
h

Corrections of the
District Court's Error (
Law.

The Fourth Circuit Court of
\ppeals decision in this case 1S 4

} ) -« in the instant case the

dictates that findings of fact of a

lower court may be overturned only

} - ‘ " .
when "clearly erroneous, and then

26

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

4

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

27

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

29

CO

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

30

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.

See also Kloster Vv Steamship

e)

Chatham 475 F 2a 43 (4th Cir.
1973).

The Fourth Circuit simply
cannot correctly state that it is
making no finding of facts when,in

32

TT

actuality, it finds many of the
facts to be opposite to those
determined by the District Court.
Questions of fact have been defined

as those whose resolution is based

those based in

b]
0)
i @ |
oe
fans
=
Q
m
ct
be
O
3
O
hh

legal standard. See Note, Federal

Rule of Civil rocedure 52(a) and
the Scope of Appellate Fact Review:
Has application of the clearly
erroneous rule been clearly
erroneous.” 52 St. John's L.Rev.
68 (1977). The Fourth Circuit's
decision is replete with such

contra Panaings, however,

Hh

petitioner gives the ollowing as

exemplification.

Mr. Rawl was reasonable to rely

upon the conditions as he knew then

when he departed frcm Myrtle Beach

ana on the weather forecasts which

were reported by the Flight Service
Station (that have been shown to be
incorrect) in deciding to make the
return flight to Myrtle Beach. The
District Court further found that
the deterioration of weather
conditions following Mr. Rawl's
deperture was most unusual. When
t
Mr. Rawl departed he had
experienced no problem with the
cloud cover obscuring his view.
There were certainly other VFR
pilots, namely 6996 Yankee and
46309 Baron, in the vicinity along
with Mr. Rawl. Without any mention
that the finding by the District
Court was clearly erroneous, the
Fourth Circuit, citing nothing in
the record as support, makes the
sweeping determination that
"When he, Rawl, departed
Greenville on the return
flight, he knew or should
have known that
conditions precluded VFR
landing at Grand Strand."
App p. Ol.

34

Te

Likewise and without citing any
support in the record the Fourth
Circuit states

" . it is at least true

that Rawl was flying in

circumstances that 4

reasonable pilot with

similar qualifications,

or perhaps, more accu~

rately with similar lack

of qualifications would

have shunned." App.p. 50

Such a broad indictment of
plaintiff's decedent is tragic,
specially when, if the court of

appeals had reviewed the record it

would have realized that it is

uncontroverted that at the time the
turns commenced, as directed by
Hennessey, Mr. Rawl was flying in

VFR conditions for which he was

undisputably qualified. App-P- 50.
The record further reflects that
instrument qualification is not
necessary for VFR flying. There
were, incidentally, at least two
other VFR pilots attempting to land

at Myrtle Beach at approximately

35

the same time.

The District Court further
determined that Mr. Rawl was
unaware of the difficulty that
Cessna 46309 experienced in trying
to land. The District Court had
presented to it the actual tapes of
the transmissions, printed
transcript from those tapes and two
air traffic control experts to help
it make that determination. Again
the Fourth Circuit without finding
tne District Court clearly
erroneous and without any refer-
ence to the record states, Pg a
was on the same frequency 4S that

of the Cessna..." App-P- 51.

As a further finding of fact,
characterized as a correction of an
error of law the Fourth Circuit
states "Rawl insisted upon landing
at Grand Strand despite the
conditions there..." That the

Fourth Circuit could and would make

a determination of Mr. Rawl's state

36

of mind without any credible evi-

dence and certainly without

disturbing. This finding con-
cerning the state ol mind of Mr.
Rawl prior to the crash come:
completely "out of the blue."

Based upon the foregoi

~
2
cy
3-4

findings of fact or, as the Fourth

Mr Rawl wa: "not only negligent
but contributoril neaqligent." It
ls notable that the I ure
Circuit' statement ear t

imply that contributor negligence
} ‘ e+} Lina y y* ( + } y W Y r
than neq] 1¢ e, however, South

con - 7 . - ‘ ~ ™~ - .
contributory neaqligqence 1s the
Cc _ ~~ - ~Iartmant nein 4 eh
negligenc © OF a op Gg. F Fit Fees wri Cr
_ ~— Wa ac + +a 1 a 11 YR? Ma . oman am 5 e ~ ma A = 4 4 .
vy Bryant 265 S.&.
an apvpeiiacve Ourt of a
& 3 £ . ~ 7 N ~~ +
ww. G S ) et oe & | IS 4
.
Ar
a7
Cc

rc

crt

€

Y)

oad

sv

mA CcTMmM
Mural

43

Ww

A\
a/ aw
-
-
J
Fone ond
~~
p44
of
ond
uy
4J
‘ }
s
we
ad
r
> ce
bo
ado
4J
ed a |
> vt

4
ae |

4

=

et

4J
“4

ient

-
WA om™
WwUAtal

>

ce

Y)

5 |
4

T
a

44

i eee a —

erroneous, thereby holding that

findings of neqligence are

reviewable only under the "clearly
erroneous" standard.

A majority ofr the courts oO!
appeal have applied the ruling in
McAllister 1! determining that
findings of negligence and
contributory negligence ire
reviewable under the “clearly
erroneous" standard. Oblensky v.

>
Saldana Sc yhmier, 409 F.2d 52 (lst

~} ° 5 AAT 5 > c
Whantwarac Tnr f tT 7 ¢ h
onipyaras, L Vey se ie | . « &Y 006 ¢t
_—_
QO | 7 aR al
j = - ( " _ ~ c +> . | ry =
oo? & 1971). This standara 1aS alSO
Ka ry ’ ~ 3 +r + }, “2 1 + 4 -~cC}
Dee! abvpilied U Chie Le iatve@d issue
r
+ + ) - , 4 +
rY . ,mD > »=HA1I3C { snr , Yr 7 |
Ol Drox] € cause wun Ve. § 1ltea

Wh
ct
c
$d
+
4)
n
I
>
A
,
L
ae 9
e
P
cf
h2
lr
A>.
J
_
Or
(Tt
c
~~
ry
.

The Second Circuit, however,
has tended to traditionally ignore
McAllister by determining that
findings of negligence are not
Subject to the "clearly erroneous"

standard. The Second Circuit

continued to apply this view after

McAllister without even discussing

the applicability of McAllister.

Verbeeck v. Black Diamond S.S.

Corp., 269 F.2d 68, cert. den. 361

U.S. 934 (1961); Dale v. Rosenfeld,

229 ¥F.28 855 (20 Cie. 1996). The

Second Circuit held in Mamiye Bros.

¥. Barber §&.S. . Lines, iIne., 360

F.2G 778, Cert. den. 39835. 0.8. 835
(i966), that its view that
negligence findings were freely
reviewable was sound despite

McAllister.

More recent cases decided by
the Second Circuit indicate a
possible shift in its position
regarding the reviewability of
negligence findings. In two cases
decided in 1974, the court
strengthened the deference to be
given to findings of negligence by
a trial court by holding that

although findings of negligence are

46

reviewable as findings of law, they

should not be overturned by the
appellate court unless the lower
court manifests an incorrect

conception of the law. Whelan v.

Penn Central Co.; 503 F.2d 886 (2d

Cir. 1974) and Erie Lackawanna Ry

Co. v. Timpany, 495 F.2d 830 (2d

The Second Circuit has even
gone as far as to uphold findings
of negligence on the ground that it
could not hold the findings were

SLrTOonecous. rucnstadt Ve

Vemes Soe £sea 36/7 (2a Cir. 1970).

Fuchstadt involved an action for

negligence against the United
States for personal injuries
resulting from an automobile
accident. The Second Circuit
stated:

"We are not left here
with a definite and firm
conviction that a mistake
has been committed by the
trial judge,... and hence
we are unable to hold
that these findings of

47

ante

fact (emphasis ours) are
clearly erroneous within
the meaning of Rule

D2 UA) aes”

The Third Cizreuae has been
influenced by the Second Circuit
decisions. Prior to 1967, the
decisions of the Third Circuit had
held that findings of negligence,
contributory negligence and
proximate cause could not be set
aside unless clearly erroneous
regardless of what the Court o

~ yy rm?) fr 1 + share Aq
Appeals would have found if charged

with the responsibilit Of tne
finding in the Tiret place.
Wiseman v. United States, 32/7 F.2d

~ 77 7} | a y C
Pennsylvania Railroad Co. v. S.S.
2
a Sire eae a des ia ae de =
Marie Leonhardt, 32 F.2d 262 (3rd

Circuit departed from is earlier
decisions to hold that a finding

contributory negligence 1S one o
law and is reviewable on appeal

D

A
+

free from the restrictions of the

clearly erroneous standard. Nolan

v. Sullivan, 372 F.2d 776, 778 (3rd

was brought

ct
+
5
/
‘
=
ry
O
QO
rh
c
—
Qu
an
er)
wlio
ey

resulting from an automobile
accident. The District Court found
that the defendent was guilty of
negligence and that the decedent
was guiity of contributory
negligence. The Third Circuit
reversed on the grounds that the

conclusion that the decedent had

The Fourth Ci eceusit has
vacillated between the view
traditionally espoused by the
Second Circuit that findings’ of

negligence are findings of law and
are freely reviewable, and the view
that the clearly erroneous standard

applies to negligence findin

Q
”

49

fs ee cree ek Ed

ea ee

clearly erroneous standard to

findings of negligence. Darter v.

Greenville Community Hotel Corp.,

Darter involved an action against a

hotel owner for personal injuries

Fourth Circuit held that negligence

The court then cited Rule
52(a). Factual questions settled
by the findings of the District

Court must be accepted by the

appellate court. Thompson _v.

United States, 268 F.2 426 (4th

Cir. i359).

In Johnson v. U.S., 336 F.2d

801 (4th Cir. 1964), the Fourth
Circuit again applied the clearly
erroneous test to the District
Court's finding of no negligence on
the part of the defendant. In

Johnson, an action was7 brought

under the Federal Tort Claims Act
for the wrongful death of a child
run over by a bus. The court
upheld the findings of no

negligence by the District Court on

appeal. The court stated that it
was for the District Judge to make
the Subsidiary and ultimate

findings and that his findings were
binding upon appeal.
The clearly erroneous standard

waS again applied in Taylor ov.

ot
.
W
.
7
WW
‘en
Y
-
>

F.2d 488 (4th Cir. 1966),
a case involving negligence and

contributory negligence findings.

21

f

mi.

a4

~

rmment
iil Li |

4

ee

finding of negligence was freely
reviewable. Hicks involved an
action under the Federal Tort
Claims Act alleging negligence of a
doctor in diagnosing and treating a
patient's illness. The District
Court dismissed the case on the
grounds of insufficient evidence to
establish negligence or proximate
cause. The Fourth Circuit
reversed, holding that the doctor
was negligent and that this holding
| was not inconsistent with Rule
| rae) The court stated that Rule
52(a) comes into play where the
trial judge as fact finder has
: reconciled conflicting testimony or
evidence and prevents a disturbance
of those findings unless clearly
erroneous, however, where the trial
court's conclusions are
"based on undisputed
facts, they are not
entitled to the finality
customarily accorded
basic factual findings

under Rule 52(a)..."

53

aie eine

The court in Hicks did not

refer at all to its earlier
decisions, which had _ generally
applied the clearly erroneous
standard to findings of negligence.

The Hicks decision has been
severely criticized in the Fourth

Circuit case Bonds v. Mortensen and

Lange, @€t a1, 717 F.2d 123 (4th

Cir. 1983). In Bonds, a shipowner,
challenged the District Court's
findings of fact regarding the
"responsibility and fault" of the
shipowner for the injuries’ and
death of a longshoreman by

contending that the findings of the

OZ ServrZ.et Court regarding
"responsibility and fault" were
mixed questions of law nd fact
which were not entitled tc the
protection of the clearl erroneous
standard of Rule 52(a), but rather
subject to full review under ic

= re ee + AtieanreccoaA +¢ +

> ass & ee ee ee — sa & 4 » —=
the findings were Subject t a

PO aes

4 ENS Ae EB QI he

review under Hicks The Fourth

Circuit disagreed that the findings
were subject to full review under
Hicks and stated:

"More recent decisions of
our circuit indicate that
the ruling in Hicks on
this point has to a large
degree been abandoned,
see Famous Knitware Corp.
v. Drug Fair, iInc., 493
FeaGQ @£298, @32 Rive (4th
Cir. 1974), and indicate
that a District Court's
findings of negligence
are generally treated as
findings of Fact
reviewable under Fed. R.
Civ. P. 52(a). Scheel v.
Conboy, 551 F.2d 41, 43
(4th Cir. 1977); Lane v.
United States, 529 F.2d
L739, 400 (400 Ciz. 2975) 3
Kloster v. Steamship
Chatham C.A., 475 F.2d

a3, G4 Stn Cit. 197335
T,ecrer Vv Calmar
Steamship Corp., 457 F.2

440, 444 (4th Cir. 1972)”

The other eight of the eieven
circuits follow the majority view
that findings of negligence cannot
be disturbed by an appellate court
uniess clearly erroneous.

The Supreme Court's decision

Supreme Court decision Anderson v.

City of Bessemer City, Supra.

Support this majority view.

In Anderson, the Fourth

Circuit was held by this court to
have misapplied the clearly
erroneous standard in overturning
the District Court's finding of sex

adiscriminaiton. In Anderson a

female teacher with college degrees
in social studies and education
applied for and was rejected for a
job managing a city's recreational
facilities and programs. A male
who had recently graduated with a
degree in physical education was

sition. The

O

chosen for the p

selection was made by a committee.

testimony from Anderson, the male
applicant who was _ hired, and
members of the committee was heard,
the District Court found that
Anderson had been denied the
position because of her sex.

56

The Fourth Circuit reversed
the District Court's decision,
holding that the District Court's
findings were clearly erroneous.
On certiorari, this Court held that
the Fourth Circuit misapprehended
and misapplied the clearly erron-
eous standard and thereby comitted
error, and reversed the decision of
the Fourth Circuit. This Court
stated that a finding of inten-
tional discrimination is a finding
of fact and as such, the standard
governing appellate review is that
set forth in Federal Rule of Civil
Procedure 52 (a)"

This court then discussed the

Qu

meaning of "clearly erroneous" an

"A finding is clearly
erroneous’ when although
there is evidence to
support it, the reviewing
court on the entire
evidence is left with the
definite and firm
conviction that a mistake
has been committed. U.S.
v. U.S. Gypsum Co., 333
U.S. 364, 395, 92 L Ed

a7

re

746, 68 S$. Ct. 523
(1948). This standard
plainly does not entitle
a reviewing court to
reverse the finding of
the trier of fact simply
because it is convinced
that it would have de-

cided the case
differently. The
reviewing court oversteps
the bounds of its duty
under Rule 52 if it
undertakes to duplicate
the role of the lower
court. “In applying the
clearly erroneous
standard to findings of a
District Court sitting
without a jury, appellate
courts must constantly
have in mind that their
function is not to decide
factual issues de novo.'
zenith Radio Corp. v.
Hazeltine Research, Inc.,
395 U.S. 100, 123, 23 L
Ed 2a 129, 89 S. Ct. 1562
(1969). If the District
Court's account of the
evidence is plausible in
light of the record
viewed in its entirety,
the Court of Appeals may
not reverse it even
though convinced that had
it been sitting as the
trier of fact, it would
have weighed the evidence
differently. Where there
are two permissible views
of the evidence, the fact
finder's choice between
them cannot be clearly
erroneous. United States
v. Yellow Cab Co., 338
U.S. 336, 242; 35 G Ga
150, 70 S. Ct. 177
(1949); see also Inwood

58

Laboratories, Inc. Vv.
Ives Laboratories, Inc.,
456 U.S. 844, 72 L Ed 2d
606, 102 Bs Gee 2182
raS82)." An

Supra.

This court further stated that Rule

52 does not exclude any particular

categories of factual findings from
the appellate court's obligation to
accept a District Court's findings
unless clearly erroneous.

2 oe . eae D - er ; — .
Deference is given to the trial

sEtlelet= - +h +o} ri nde 7
udde as the original finder of
+ a a ae ~— _ oe “ a @ _ ~
fact because ofl his superior
7 ~j5> +4
- ~— > .
Le : » ¥ + + 5,ceAR 1a ¢ nec
I U est reas iS ,
. + + 7
review oO I factual
f i 11 S under the
=m - : s - ~
\ i e me 4 y e r Y T e oO of S
stance rad-witi! its
+ Y + 4 } a > £
‘
t=1& t gt ee , t tne
Al ~ 5 .
exrycenpti A A rect .
et haha
Supra.
ee
+ ¥ + ¢ > y
- ~ +> > + — . *
”” »¥ + 8 e a}?
+ - > ~ ~
Thi
£ + - . + _ _
l } I e
‘ P

a

record, this Court refused to find
that the District Court’ s
interpretaion of the facts in

Anderson was ALiogicea: or

implausible and declined to find
them clearly erroneous, and
therefore reversed the appellate
Court.

In addition to the existence
of a conflict regarding the
reviewability oF negligence
findings within the circuits and
within the Fourth Circuit itself,
there is a conflict present in the
instant case between the law of
South Carolina and the law applied
by the Fourth Circuit.

A federal District Court and
federal Court of Appeals must apply
the law of the state in which it is

sitting. Richards v. United States,

369 U.S. 1, 10 (1962). Therefore,
in the instant case, the Fourth
Circuit was required to apply South

Carolina law regarding negligence,

60

a \A

icy
ag

7 .
‘Se

s trie

_

1

t

evidence,

issues to

the

+

subm1

to

c

Whitaker,

required

294

CO /

1t10Nn

a

Plant

Under South Carolina law,

contributory negligence only
becomes a matter of law when the
evidence admits but one reasonable

inference. House v. European

Health Spa, 239 S.E. 2d 653, 269

Sst 644 ‘is7y 7) 2 Williams a

Kinney, 226 8.8. #G@ 5353, 467 S.€.,
163 (1976). Where evidence on the
issue of contributory negligence is
susceptible to more than one

reasonable inference, the issue

Fourth Ci Teust ignored the

Tanah , x } 14 \%
applicable law of South Carolina by

/

4

finding contributory negligence on
the part of Mr. Rawl as a finding
of law. There was clearly more
than one reasonable inference to be
drawn from the evidence, therefore
the issues of negligence and

62

contributory negligence were

questions of fact for the trier of
fact, rather than questions of law.

The Fourth Circuit failed to
even address whether the District
Court's decision as to its findings
of no contributory negligence on
the part of Mr. Rawl was a

reasonable inference from the

record. The court merely concluded
from its de novo review of the
record, that Mr. Rawl was
contributorily negligent "as a
matter of law", thereby igncring
the applicable law of South
Carolina.

Certiorari should be granted

1ssue of the reviewability of

findings of negligence as findings
far

O Tract.

Conclusions

For the above reasons, a writ

ade BPEL REGIE ER rpaer

pe

‘ ss * ‘
no. i aa le a le alate a ag nae i ai | cries ideas actos o "

distin:

Q4 G4
O O oe)
q)
Q)
a $y
2 © cH
ber od - ve @ AN Wer Y4 .
5 ” ve MNO da w Y
7s a J) OM Ve dade Ala
O Q EM S Wo ce)
a) 4 ) yHhHnmeEo om 4 Ce ae . ° ar

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1779%3A1. Public record. Not legal advice.