Appendix — Rawl v. United States

Supreme Court brief1986

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Text

In The

COURT OF THE

SUPREME

1986

October Term,

n E. Rawl,

ate of Edwi

United States

APPENDIX

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that the Plaintiff's alleged

injuries "were due solely to the

acts and omissions of others."

(Defendant's Answer, affirmative

defense #3). The defendant also

alleges that "(t)he sole proximate

cause of this Plaintiff's injuries

was the negligence of the Plaintiff

Jose (sic) Rawl." (Defendant's

Answer, affirmative defense #4),

Rule 8(c) of the Federal Rules of

Civil Procedure requires that an

affirmative defense be pled if a

‘party intends to rely upon *

This rule has been construed to

mean that such defenses may be pled

in general terms, and are

sufficient if they give defenses

may be pled in general terms, and

are sufficient if they give the

Plaintiff "fair notice of the

nature of the defense." 5 C.

WRIGHT & A. MILLER, FEDERAL

PRACTICE AND PROCEDURE Section 1274

(1969).

Although the Defendant in the

instant action failed to

specifically denominate the

affirmative defense of contributory

negligence, there is no doubt the

Plaintiff was aware that the

Defendant intended to rely on such

a defense. In his pretrial brief

submitted to the court, the

Plaintiff referred to the

contributory negligence of Mr. Rawl

as one of the issues in this case.

Adhering to the command of Federal

Rule of Civil Procedure 8 (f) that

"Dleadings should be so construed

as to do substantial justice," this

court has no trouble in holding

that the Plaintiff was put on

notice that the Defendant intended

On May 26, 1983, this

Court entered an order of dismissal

in this case, allowing the parties

sixty days to reopen the action if

the settlement was not consummated

with that time period. The case

to rely on the affirmative defense

of contributory negligence of Mr.

Rawl.

Further, Federal Rule of Civil

Procedure 15 (b) allows th ourt

to treat issues not raised by the

pleadings, but tried by the express

or implied consent of the parties,

to "be treated in all respects as

if they had been raised in the

pleadings." There is absolutely no

question that the issue of the

contributory negligence of Mr. Rawl

was fully tried by the parties, and

the court can see no prejudice

which would inure to the Plaintiff

by the consideration of this issue.

There was no objection by the

Plaintiff to the introduction of

vidence by the Defendant going to

prove its defense that Mr. Rawl was

contributorily negligent in causing

the accident. There is also no

indication that the Plaintiff has

been prejudiced by the trial of

that issue, or was unable to meet

it. 6 C. WRIGHT & A. MILLER,

supra, Section 1492. Therefore,

the court will consider the

affirmative defense of the

contributory negligence of Mr. Raw]

as if that issue had been ra

specifically in the Defer

answer.

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Mr.

ee Pa

Rawl was outside

7Beginnin

the following

place between

RAPC(

FIVE

RAPCON

HEADING TWO

»7

23-TWO oN

SEV

RAPCOM-FIVE TWO THREE, SAY Y

HEADING

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RAPCOM-UH, ROGER, UH TURN RIG

TURN RIGHT HEADING ONE TWO 2E

TWO ZE!

“ZERO;

NOW

Mr. Rawl 523)

IHL mrtpxrI

O THhhow. TURN

JEN ZERO

ZERO,

RO, FIVE TWO

—1 Att anot

SAY YOU WER

WAS TURNING B

Pa IN

ri & 4

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VIS.

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E TWO THREE YB

HEE MDrn ata

HREE THREE ZER

i en ne ae

N LEFT HEADIN

the

THREE

opal

ont

—

present between the cloud layers,

arkness limited visibility, and no

utside visual references were

- - + ec My Raw] r Tes ~nN

resent for Mr. Rawl to rely n.

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l'F | T Y ~ A S

18. The end of Mr. Rawl':

4 1

ia pa ia Ce aaa os aa ~~ er ee -*

ast transmission at approximatel

“eG OF | rr mm c c\l1Yr eq W ] +h tne

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7 =| ~ - ~ > a } -

11° _ ) 2 | rvY) 1 WCy ¥- , <

siee ) Lieve ld Qropp1ingd et | i @

" - . 7 i 7 were tT,

icrophone was being pulled away

rom his mouth Shortly

I iis moOutnNn. oo NG DP ai oie he”

“0

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| an

)

pad

—

)

pace of five seconds. Within five

seconds more, the plane had

disappeared from the radar screen

19. Spatial disorienta-

ion is a condition which results

rom a conflict between one's

isual clues and inner feelings.

hen pilot is deprived of normal

isual clues, false sensations may

nvelope him, and he quite simply

may not be able to tell which end

is up. For example, he may

the sensation of climbing

plane is actually descendi

condition may occur while

is in straight flight i

uneven light sources, a sl

uneven cloud bank, or

through haze hitting a pro

It may also be induced by

the plane through turns or

movements by the pilot.

20. Mr. Rawl dev

Spatial disorientation bec

was deprived of outside vi

references in the black cc

was flying through and beca

was directed to execute sev

Sharp turns within a perio

than two minutes by Hennes

a result of developing tha

condition, Mr. Rawl lost con

his airplane, which went in

, a. (}.

power dive and crashed, ki

and his wife.

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in accordance with the

law of the place where

the act or omis

occurred

B. The action was fi

in a timely manner, as provided

26 UsS.L«. SECELOR: £402 - te?

Cs The claim was fil

pursuant to the Federal Tort Cl

Act, 28 U.S.C. Section 2671-80.

The provision relevant t this

RCtiOn 16 26 U.8.€. Section 267

which provides that "(t)he Unit

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Richards v. United States, 36

1, 30 (1962).

E. South Carolina law

provides that "(a)ll crimes, torts

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against an aeronaut or passenger

while in flight over this Stat

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ond

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03)

55-3-80 (1976). An aeronaut 1s

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F. South Carolina as é

wrongful death statute whicn

provides:

f a person shal

caused by the

act, neglect or defau

of another and the act,

neglect or default is

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: nited States, 4/4 F. Su

929 (E.D. Penn. 1979) (quot

Hennessey v. United States

ee - ,

Ag & 4 nT Wa ~ . 4 ry

44 , a ae (N.D. Cal . ADIT] i 26,

Section 159: r 4

ea! ‘

Traffic Control Manual is e

"Radar A 1stance Techniaue

ie)

moar

rm 7

+hoa

ey:

h +

m™ > 9

T€

WW 4

197

- 4

y + |

] l

it provides as follows:

Use the following

techniques to the extent possible

when you provide radar assistance

to a pilot not qualified to operate

in IFR conditions:

a. Avoid radio frequency

changes except when necessary to

provide a clear communications

channel.

b. Make turns while the

aircraft is in VFR conditions so it

will be in a position to fly a

straight course while in iFR

Conditions.

c. Have pilot lower gea

Slow aircraft to approach spe

while in VFR conditions.

dad. Avoid requiring a climb or

descent while in a turn if in IFR

conditions.

e. Avoid abrupt maneuvers.

f. Vector aircraft to VFR

conditions.

It was a violation of this section,

and negligence, for Airman

Hennessey to direct Mr. Rawl tc

make the turns that were ordered

between 8:05:17 p.m. and 8:06:53

p.m.8 Within a span of one minute

and thirty-six seconds, Mr. Raw]

was directed to turn left 135

degrees, then back t

()

the right 18(

“See note 7, supra.

——_—_sa____

3 €

degrees,

]

Aanu

yroximate

The

sequence,

ontinuous

—

)

ine Oo

leme

> =

; =

i +

neg

that the

nm OV? 57TO Yr

nowever ’

’

intelligence should have

anticipated the danger

to others by his

negligent act ....

Fritzgerald v. Manning 6/9 F

}

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If a VFR

aircraft requests radar

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conditions,

pilot if he is qualifi

and capak

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for

tates

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refuses to

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whichever o

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emergency.

(b) Refuses to

declare an emergency and

you have determined the

exact nature of the

radar services the pilot

desires.

(3) If the

aircraft has already

encountered IFR

conditions, inform the

pilot of the minimum

safe altitude. Tf the

aircraft is below the

minimum safe altitude

and sufficiently

accurate position

information has been

received or radar

identification is estab-

lished, furnish a

heading or radial on

which to climb to reach

the minimum safe

altitude.

Although Mr. Rawl was about to

encounter IFR weather conditions,

and the RAPCON knew he was not

qualified to fly IFR, Mr. awl was

never told of airports where VFR

conditions were reported, nor was

he given available pertinent

weather information and asked if he

wanted to conduct a VFR flight to

another airport. Shortly before

the accident, r. Rawl was told

rae a

—

40)

—

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7 ~ mam - - ANF

layer of clouds were at least 100('

feet, yet he did not relay this

sntn . t.7 ar

information to Mr. Rawl. am fact,

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RAPCON:

OK.

GRAND STRAND TOWER:

BUT IF YOU WERE TO, Ul

THE WORD CLEARANCE, MAYE

THAT'LL RING A BELL.

RAPCON :

OK.

It would appear from the above

discussion that the controllers

were seeking to induce Cessna 46309

to request a special VFR clearance,

which would be in derogation of the

controller's own manual. It

appears that Mr. Rawl probably did

request a special VFR clearance,

although there did seem to be some

prompting from the RAPCON

controller, as the following

illustrates:

7:20:52 p.m.

RAPCON:

UH, I CAN'T LET YOU IN,

UH, I CAN LET YOU IN

SPECIAL VFR.

mwnuo

mJ NO

mim Ww

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These exchanges woul

further examples of

provided to pilots t

which were below the

care expected of air

controllers and out s

reguired operating pro

enunciated in the Air

Control Manual.

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at BE.

Assuming arguendo

Rawl was negligent in

pursuing his plans to land at the

Grand Strand Airport, the court

must then look to the concept of

intervening or superseding

negligence.1!° The doctrine was

recognized in South Carolina in the

case of Matthews v. Porter, 124

ef. 24 321, 324 ($.C. 1902), which

held:

At or about 8:04:51 p.m.,

Oo a

yuan anacC He.

07) )

my Mw €

ct Q

a/ ¥

te =A

a -

vy . aw

as told to descend

: F

00 feet. He did not do this and

tained an altitude of 250¢ feet

til he developed spatial

sorientation and began the power

ve that led to his death. T£ the

fendant pesits that this

nstituted negiigence on Mr.

wl's part, then this conclusio!

es not dispose of that

ntention. A careful review of

e record, however, convinces the

urt that the failure of Mr. Rawl

reduce his altitude as requested

RAPCON n no way whatsoever

}

ntributed to the crash complained

and was not, therefore, a

oximate cause of Mr Ra a

-~ + }. :

“ 4q

i |

To exculpate a negligent

Defendant, the intervening

cause must be one which

breaks the sequence or

causal connection between

the Defendant's negligence

and the injury alleged.

The superseding act must

so intervene as to exclude

the negligence of the

Defendant as one of the

proximate causes of the

injury. Riggs v. Akers

motor line, 233 N.C. 160,

Se Bak. 20 197.

The test, the court said,

"is to be found in the probable

consequences reasonably to be

anticipated, and not in the number

or exact character of events,

subsequently arising." te. at 324.

That is to say, "the intervening

negligence of a third person will

not relieve the wrongdoer to

responsibility if such intervention

should have been foreseen in the

exercise of reasonable care.

Mickle v. Blackmon, 166 S.E. 2d

173, 181 (S.C, 1969). See Gardner

the issue is whether the acts of

Hennessey in directing Mr. Rawl

through several sharp turns in a

short time span, and in not

suggesting an alternate landing

Site and providing additional

information to Mr. Rawl, were

sufficient to break any causal

chain established by Mr. Rawl's own

negligence. This case is not

analogous to the cases cited by the

Defendant where a pilot had equal

knowledge of hazardous weather

conditions, and yet continued to

fly into a storm at his peril, see

Black v. United States, 441 F. 2d

741 (5th Cir. 1971), cert. denied

404 U.S. 913 (1971), or continued

to fly at an altitude which proved

to be too low to avoid a hillside.

Redhead v. United States, 686 F. 2d

£78 {3rd Cis, 1962). Here, it is

reasonable to assume that the pilot

would have been able to safe land

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circumstances. A few

seconds of inattention by

a controller always makes

possible a tragic, and

too often fatal,

accident.... Because the

Government, through air

traffic control, has

undertaken to promote

safe air travel, pilots

and especially passengers

are entitled to rely on

controllers' full

performance of their

exacting duties.

While it is true that Mr.

Rawl knew, or should have krown, of

the causes and effects of spatial

disorientation,!/ he also should

have been entitled to rely upon the

directions given by the air traffic

controller. "Once he received and

followed the controller's

instructions with respect to

l7Fyen assuming that Mr. Rawl

had information regarding the

weather equal to that of the tower

personnel, and assuming that he

understood the causes and effects

of spatial disorientation equally

well, this would not necessarily

"obviate the need for warning when

he is proceeding in the face of

extreme danger known to the tower.

Stork v. United States, 430 F. 2d

1104, 1108 (9th Cir. 1970).

landing he was not free to

disregard the directions given and

exercise independent initiative.

For all practical purposes, he was

in complete control of the tower."

Yates v. United States, 497 F. 2d

878, 883 (10th Cir. 1974). It goes

without saying that once Mr. Rawl

developed spatial disorientation,

induced by the turns ordered by the

controller, he was unable to

extricate himself from his plight

as his plane went into a power dive

that mere seconds later resulted in

the crash. As the court in Yates,

supra, at 883, noted,

(i)t is familiar law that

one in the care and

custody of another where

the circumstances deprive

the person exercising the

custody shall use reason

able care and caution for

his protection. see

Restatement of the Law of

Torts Second Section 314

and 320.

Mr. Rawl had a reasonable

expectation that the RAPCON

—

personnel would use suc

either help him

Obviousl

been flying that nig

» a

the circumstances

would not have occurred

he came within

requi

and safel

nother la

had Mr.

ht, hi

e ambit a

authority of the RAPCON

controllers had a duty to

reasonable care to bring h

a. ee 1 ae »? n ee 2 nm

Sareily, which duty ana res

} _—— _ . - yc + -~

breach thereof were not re

“3 ~ ~ h a 7 hen @ 7)

foreseeable, and, tnus, 1n

and hroke the cada | cConne

a LA LU URS Eu = Of > 25 o. Ta | Lo\veeane

- itis ee ‘ ye

any negligence by Mr. Rawi

l18pthe foregoing analy

J ;

not mean the court is hold

= 7 1} oo =

Rawl o have been negligen

+ ™ £ . > = ITA 75

time of his crasn. He was

s <7 — > ° te 1 -

in VFR conditions at tnat

7 — ~ C7 - - tir ;

under a VFR rating. He wa

ooo oe a Le om » 7 -

outside the control zone,

£ -n arcrer

former negligence 1n accep

— = 7T _ -_ 2 |

special VFR clearance woul

longer have been applicaol

: ie -

Relying on his recollectl

eae " ' Pm ga

yeather conditions when Ne

Ax? ; = > - “ -

Myrtle Beach earlier in th

evening, and the informatl

—/

bend ©

8 >) =

\ a+

a v

— he

} .

In the instant case, the

air traffic controller failed in

the duty he owed to Mr. Rawl, by

not furnishing information

sufficient to make a sound decision

as to whether to attempt to land at

the Grand Strand Airport. Further,

that controller improperly directed

Mr. Rawl through several “abrupt

maneuvers,"19 which resulted in the

crash and death of Mr. Rawl.

Therefore, the Defendant United

States of America is liable to the

Plaintiff for damages, the next

received on the flight back to

Myrtle Beach, Mr. Rawl elected to

pursue his course and attempt a

landing at the Grand Strand

Airport. The court's ruling that

the Defendant's negligence was

superseding and intervening, and

broke the causal connection of any

negligence by Mr. Rawl, makes it

unnecessary to determine if Mr.

Rawl was, in fact, negligent at the

time of the crash-

19Not only were the maneuvers

abrupt, but they were also unnec~

essary to achieve the Gesired end

of landing at the Grand Strand

Airport.

matter the court must consider.

M. Damages, in a wrongful

death action in South Carolina, are

governed by S.C. Code Ann. Section

15-51-40 (1976), which provides as

follows:

In every such action

the jury may give such

damages, including

exemplary damages when

such wrongful act,

neglect or default was

the result of

recklessness, wilfulness

or malice, as they may

think proportioned to the

injury resulting from

such death to the parties

respectively for whom and

for whose benefit such

action shall be brought.

And the amount so

recovered shall be

divided among the before~

mentioned parties in such

shares as they would have

been entitled to if the

deceased had died

intestate and the amount

recovered had been

personal assets of his or

her estate.

In determining the damages

recoverable under that statute,

"the guestion is not one of the

value of the human life lost,

4 ‘

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proper element of loss for them

either. Zorn v. Crawford, 165 S.E.

2a 640, 645 (S.C. 1917).

P. The Plaintiff

maintains damages should be allowed

for the sale of some family

property in Virginia. There was

net a shred of credible evidence as

to what the actual fair-market

value of the property was at the

time of the sale, or of what loss,

if any, the Plaintiff sustained as

a result of that sale. There is

also no evidence to substantiate

the assertion that the sale of the

lana was causally connected to the

death of Mr. Rawl, as opposed to

other possible factors, such as a

slumping economy. Therefore, the

proof of that element, if it be

recoverable at all, is much too

speculative to allow for recovery.

Q. The Plaintiff also

contends that recovery should be

allowed

suffered by Edwin

after the

Plaintiff

Court of Appe

for the mental problems

death

subm

Florida law fo

that "(t)he me

parent resulti

death of a chi

for considerat

for mental pa

Supreme Count

where the sho

08)

me)

Q 4

bud 0

re ct

Ys.

348, 354 (S.C. 1954). While grief

or mental suffering is a

recoverable element of damage under

the South Carolina wrongful death

ac=, the court is of the opinion

that such does not include the

manifestations of a heretofore

dormant manic-depressive illness.

Rather, those terms for elements of

damage encompass "the natural

feelings of grief," Mock v.

Atlantic COAST Line Railroad, 87

S.E. 24 830, 836 (S.C. 1955), oF

"the mental suffering resulting

from emotions such as grief and

despair." Martin v. United States,

Supra, at 876. In addition, the

court is unable to determine from

the record the true magnitude of

the mental problems suffered by

Fdwin E. Rawl, III, after the death

of his father and the extent to

which same were causally related to

that death. We, therefore, also

conclude that no damages are

recoverable therefor because it is

not established that nay mental

problems suffered by the said

beneficiary were proximately caused

by the negligence of the Defendant.

R. Intangible factors of

damage are recoverable "regardless

of whether a statutory beneficiary

was, at the time of the death,

dependent upon the decedent for

support." Elliott v. Black River

Electric Cooperative, 104 S.E. 2d

$57. 373 (816% 2998); Those

intangible factors include "mental

anguish and suffering by reason of

the death," and "loss of companion-

ship as a father, Brickman Vv.

Southern Railway, 54 S.E. 553, 854

(S.c. 1906), as well as wounded

feelings, grief, and sorrow, « ind

"deprivation of the use and comfort

of the decedent's society,

including the loss of his

—————————————

experience, knowledge, and judgment

in managing the affairs of himself

and of his beneficiaries." Smith

v. Wells, 188 S.E. 2d 470, 471

(S.C. 1972). "It is quite

impossible to fix with anything

approaching mathematical certainty

the damages which one may suffer

from the wrongful death of a father

or husband, or to place a measure

upon the grief which accompanies

it." Norwood v. Atlantic Coast

Line Railroad, et al., 27 S.E. 2d

603, 807 (S.C. 1943). See i9

S.C.L. Rev. 228 (1967). "Although

their estimation may be enhanced by

evidence of the closeness of the

family and the affectionate or

kindly disposition of the deceased,

the existence of this kind of loss,

in the absence of evidence to the

contrary, is normally assumed by

th jury." 19 S.C.L. Rev. at 228.

All three of Mr. Rawl's

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resul

iate

of the negligence of the Defen-

dant's agent, Airman Hennessey, the

Piaintiff suffered cenaeen, and is

entitled to compensation therefor

in the amount of $300,000.00 for

mental anguish and suffering,

wounded feelings, grief and sorrow,

loss of companionship as a father,

and deprivation of the use and

comfort of the decedent's society,

including the loss of his

experience, knowledge, and judgment

in managing the affairs of himself

and his beneficiaries. 29

T. The Plaintiff, having

20tn arriving at this amount,

the court has taken into consid-

eration “the increased cost of

living and the diminishing

purchasing power of money, since

damages that might be a fair

compensation in value for a given

wrong when money is dear and its

purchasing power is great will not

suffice when money is cheap and its

purchasirg power is small."

Sanders v. Green, 208 F. Supp. 873,

878 (E.D.S.C. 1962). See Smoak v.

Seaboard Coast Line Railroad, 193

Same ee eees oer (5.C. 1972);

Lucht, supra, at 858.

established the three elements of

his case, negligence, proximate

cause, and damages, by the greater

weight or preponderance of the

evidence, is entitled to have

judgment against the Defendant in

the amount of $300,000.00 actual

5 .

¢ T] ‘e ie ian Sf °F a

128 U.S.C. Section 26/74

nravidee that the Plaintiff shé }

proviages Ullat tile FLashnReLiL SUG 4

~ ee ee _— - - rs

not recover for interest prior to

eer ie “ frnr mn —tr- ee

judgment or for punitive damages.

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COMORNT™

APPEALS

RT OF

COU

INITED STATES

rquea

Yr)

MURNAGHAN, Circuit Judge:

The United States

Government appeals from a decision

in the district court awarding

damages in a wrongful death action.

Edwin E. Rawl, Jr., and his wife

Josie W. Rawl died ina small

airplane crash out side of Grand

Strand Airport at Myrtle Beach,

South Carolina.! Plaintiffs, the

Rawl's children, claimed damages

under the Federal Tort Claims Act,

28 U.S.C. Section 1346(b) for the

death of Edwin E. Rawl, Jr.,

arguing that the United States Air

Force air traffic controllers and

the Federal Aviation Administration

were negligent in providing

assistance to the decedent. Judge

C. Weston Houck of the District of

Itfhe claim for the death of

Mrs. Rawl have been settled

previously and are not here

involved.

ke i

South Carolina found that the

government was negligent and that

the negligence proximately caused

Rawl's death. Judge Houck assumed

for argument's sake that Rawl, the

pilot of the airplane, also was

negligent, but declined to bar the

claims on grounds of contributory

negligence because he deemed the

government's negligence to be an

intervening and superseding

occurrence, relieving Rawl of

responsibility for his own death.

We do not disturb the lower court's

finding as to negligence on the

part of the government, but reverse

the contributory negligence ruling,

vacating the award of $300,000.

I. Background

The facts are far from

simple. The incident occurred in

airspace around the Grand Stran

Airport near Myrtle Beach, South

Carolina. Grand Strand functioned

principally for non-military

aircraft. Because Grand Strand

Airport had no radar of its own,

the nearby Mrytle Beach Air Force

base operated radar approach

control ("RAPCON") for Grand

Strand.

Rawl was an experienced

pilot with over 2500 hours of

flight time. He was certified to

fly airplanes by visual flight

rules ("VFR"), under which a pilot

must be able to fly by sight, with

a visibility of at least three

alone. 14 C.F.R. Section 91.115-

On February 1/7, 19/78,

Rawl planned to fly his Beechcraft

from Grand Strand Airport to

Greenville, North Carolina, pick up

his wife there and return to Myrtle

Beach in order to host an 8:00 p.m.

dinner associated with his primary

business activities. Prior to

take-off from Grand Strand, Rawl

contacted the Flight Service

Station ("FSS") several times for a

weather report: the report called

for VFR conditions with hazy

visibility and forecast the

deterioration of those conditions

in mid-evening. When Rawl departed

Grand Strand at 5:45 p.m.,

conditions had already deteriorated

to visibility of less than two

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There was a broken layer of cloud

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so rapidly that, Rawl wa

and accepted -- an IFR c

order to depart Grand Stra

clearance in order to depar

Strand, a clearance he was

certified to accept.

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Section 91.107 (e) (1985).

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of country to the west further

limited Rawl's ability to orient

his aircraft by visual reference

points. Rawl requested vectors for

the airport so that he could "slip

right down under” the weather and

land. RAPCON instructed him to

descent to 1600 feet.

The key series of

instructions began at 8:05:17 p.m.

Rawl was flying on a heading of 45°

and was told to turn left 135° to a

heading of 270°. At 8:06:36

RAPCON asked Rawl to state his

heading, whereupon a miscom-

munication occurred. Rawl stated

that his heading was 300°, but a

portion of the transmission was

inaudible; RAPCON did not ask for a

clarification and instead upon that

false assumption, told Rawl to turn

right to 120-"

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few moments later, <

supervisor at RAPCON pointed out

the possibility of a

miscommunication to the air

controller on duty, and the latter

asked Rawl for a clarification.

Rawl advised that his response had

been 300° and that his heading at

the time of clarification was 330°.

RAPCON told Rawl to turn left to

220°. Shortly after the

instruction, the plane crashed,

killing Rawl and his wife.

Experts at trial agreed

that "spatial disorientation"?

caused Rawl to go into a power dive

and crash. Understandably, there

was great dispute as to the

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proximate cause of Rawl's spatial

disorientation.

The district court found

that the neaqligence of the air

traffic controller at RAPCON caused

the spatial disorientation and the

accident, and rejected the

government's defense of

contributory negligence on the part

of Rawl. The district court relied

on two theories of government

negligence. Under the first

theory, RAPCON failed to follow

standards of due care in directing

Rawl back toward the airport: the

result was spatial disorientation.

According to the district court,

the RAPCON controller violated

section 1592 of the Air Traffic

control Manual ("the Manual") by

directing Rawl to make a series of

maneuvers with no visual cues

outside the aircraft can cause

6Section 1592 of the Manual

outlines procedures designed to

help controller assist pilots not

qualified to operate in IFR

conditions.

Lo32. Radar Assistance

Techniques

Use the following techniques

to the extent possible when you

provide radar assistance to a pilot

not qualified to operate in IFR

conditions.

a. Avoid radio frequency

changes except when necessary to

provide a clear communications

channel.

b. Make turns while the

aircraft is in VFR conditions so it

will be in a position to fly a

straight course in IFR conditions.

c. Have pilot lower gear

and slow aircraft to approach speed

while in VFR conditions.

ad. Avoid requiring a climb

or descent while ina turn if in

IFR conditions.

e. Avoid abrupt maneuvers.

f. Vector aircraft to VFR

conditions. (Emphasis added).

spatial disorientation. The

district court also found RAPCON

negligent in relying on Rawl's

"obviously incomplete" heading

report of "30 degrees." The

district court concluded that

“reasonable prudence and care"

required RAPCON to ask for a

Clarification before issuing the

initial vector change; the result

of the initial vector followed by

the heading given just after the

Clarification was a hard right turn

followed by a hard left turn within

less than one minute. Both acts of

negligence, the court found, caused

the spatial disorientation and the

The second theory of

negligence faults RAPCON for

failing to suggest alternative

airports where VFR conditions

prevailed. The district court

found that the RAPCON controller's

omission violated section 1591 of

the Manual.’ The court reasoned

that the omission was a proximate

cause of the crash because "it is

reasonable to assume that Mr. RAwl

might have chosen to land

elsewhere, thus avoiding the

subsequent crash" because another

pilot diverted to another airport

7TSection 1591. Radar

Assistance to VFR Aircraft in

Weather Difficulty.

a. If a VFR aircraft

requests radar assistance when it

encounters or is about to encounter

IFR weather conditions, ask the

pilot if he is qualified for and

capable of conducting IFR flight.

c. If the pilot states he is

not qualified for or not capable of

conducting IFR flight ... take

whichever of the following actions

is appropriate:

(1) Inform the pilot of

airports where VFR conditions are

reported, provide other available

pertinent weather information, and

ask if he will elect to conduct VFR

flight to such an airport.

view, the negligence of RAPCON was

the sole cause of the accident, and

Rawl's negligence did not

contribute. Hence, it was claimed,

it did not nullify the negligence

of the government.

II. Discussion

We do not address the

issue of whether the goverment was

negligent at any length, given that

the record on appeal shows

substantial evidence to support the

district court's findings in that

regard. Accepting the district

judge's determination as to

negligence on the apart of the

government, we turn to the legal

standard applied in determining a

lack of relevant contributory

not reasonably foreseeable, and,

thus, intervened to preclude the

causal connection to any negligence

by Rawl.

Slip op. at 40-41.

- B

the part of Rawl.

that the district

find

1eW1ing

St anda

we 6424464 4

findings are based upon physical or

documentary evidence, or inferences

from the facts. Anderson v. City

of Bessemer City, U.S. ’

105 Ss. Ct. 1504 (1985). In the

case Sub judice, however, 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.?

The common law doctrine

9IThough some courts have taken

the view that the clearly erroneous

standard applies to mixed guestions

of law and fact, Manning v.

Trustees of Tafts College, 613 F.

2a 1200 (lst Cir. 1980); United

States v. McConney, 728 F. 2d 1195

(9th Cir. 1984), cert. denied, 105

S. Ct. 101 (1984), a greater number

have held that an appellate court

may exercise independent review.

Karavos Compania Naviera, S.A. Vv.

Atlantic Export Corp., 588 F. 2d 1

(2nd Cir. 1978); First National

Bank v. Pepper, 547 F. 2d 708 (2d

Cir. 1976); William B. Tanner Co.

v. WIOO, Inc., 528 F. 2d 262 (3rd

Cir. 1975); Stafos v. Jarvis, 477

eS. 24 369 (10th Cir. 1973), cert.

denied, 414 U.S. 944 (1973).

of contributory negligence has deep

roots in South Carolina law. The

rule has been described as:

a want of ordinary care

upon the part of the

person injured by the

actionable negligence of

another, combining and

concurring with that

negligence, and

contributing to the

injury as a proximate

cause thereof, without

which the injury would

not have occurred.

Easler v. Railway co., 59 S.C. 3ll,

Boe, 37 SE. 938, 941 (1901);

accord Horne v. Atlantic Coast Line

Soom, tft S&C. 461, 469, 181 S.E.

642, 646 (1935). Generally, under

South Carolina law, a finding of

contributory negligence on the part

of the Plaintiff bars recovery of

damages from the Defendant. See 5/7

Am. Jur. 2d Section 288 ("(T)here

can be no recovery of damages for

negligence if the injured person,

by his own negligence, or by the

negligence of another legally

imputable to him, proximately

contributed to the injury.");

Horne, 177 S.C. at efi, 181 3.3. wt

647.

The government argued at

trial that Rawl was contributorily

negligent in two respects: First,

Rawl persisted in his plan of

landing at Grand Strand Airport

despite deteriorating weather

conditions (about which he knew or

should have known) and despite

difficulties of other Pilots, at

least one of which Rawi knew about;

second, Rawl could have avoid

(48)

Spatial disorientation had he

maintained proper instrument

Skills. Without Passing on these

assertions for the moment, it is at

least true that Rawl flew in

circumstances that a reasonable

pilot with similar qualifications,

Or, perhaps, more accurately, with

Similar lack of qualifications,

would have shunned. He flew from

Grand Strand under deteriorating

conditions and after accepting an

IFR flight clearance for which he

was not qualified. When he

departed Greenville on the return

flight, he knew or should have

known that conditions precluded VFR

landing at Grand Strand. He

insisted upon landing at Grand

Strand despite the conditions

there, the difficulties experienced

by the Cessna in landing,19 and his

own lack of instrument flight

training. The district court at

least recognized that “had Mr. Rawl

not been flying that night, his

10The district court's

findings of fact indicate a brief

that Rawl was unaware of the

Cessna's problems in locating the

airport, and in landing. However,

Rawl was on the same frequency as

that of the Cessna, and after the

Cessna had landed, Rawl queried

RAPCON as to the altitude at which

the Cessna had broken through the

cloud cover in descending to the

runway.

282 S.E. 2d 854 (1981), a woman

suffered injury to her marriage and

her emotions when a doctor

erroneously found that she had

become infected with syphilis.

Among the damages, plaintiff

attempted to recover from the

doctor for injuries caused when her

husband committed a battery against

her. Based on the erroneous

diagnosis, the husband had

suspected that plaintiff had been

unfaithful. The Supreme Court of

South Carolina held that the doctor

could not be held accountable for

the injury from the battery because

the husband's reaction was an

unforeseeable intervening cause of

the injury. Id. at 8/-88, 282 S.E.

2a at 835. In Matthews v. Porter,

239 §.C. 620, i294 8.2. 24 323

(1962), the Supreme court of South

Carolina wrote:

enim

Evidence of an

independent negligent act

of a third party is

directed to the question

of proximate cause. To

exculpate a negligent

defendant, the

intervening cause must be

One which breaks the

sequence or causal

connection between the

defendant's negligence

and the injury alleged.

The superseding act must

sO intervene as to

exclude the negligence of

the defendant as one of

the proximate causes of

the injury. (Citation).

239 S.C. at 628, 124 S.E. 2d at

3235 The doctrine of intervening

and superseding negligence

traditionally has not been asserted

by a plaintiff against a

contributory negligence claim by a

defendant. It is usually a rule

allowing a defendant to avoid

liability where damages have been

caused by a third party or a force

that was entirely unforeseeable, so

much so that it could hardly be

Said that the injury was the result

Se ee ern a oe, a ee

of the defendant's negligence!!

llsee Prosser & Keeton on

Torts Section 44 (1984) ("The

guestion is always one of whether

the defendant is to be relieved of

responsibility, and the defendant's

liability superseded, by the

subsequent event.")

The problem of whether the

superseding and intervening

negligence theory is available only

for the benefit of defendants may,

however, be simply no more than a

matter of labels, for the doctrine

of intervening and superseding

negligence is very similar to a

rule of law which allows a

plaintiff to avoid the consequences

of contributory negligence by

showing that his own negligence did

not proximately cause the injury he

suffered. Thus, contributory

negligence will not bar recovery

where the plaintiff can show that

his own conduct did not expose him

to a foreseeable risk of the

particular injury that in fact

occurred through the negligence of

the defendant. See Restatement of

torts Section 468 (1965) ("The fact

that the plaintiff has failed to

exercise reasonable for his own

safety does not bar his recovery

unless his harm results from one of

the hazards which make his conduct

negligent."). The doctrine has

been characterized in terms of lack

of proximate cause: if the harm

that occurred wa not a foreseeable

hazard of plaintiff's negligence,

the plaintiff may recover from

defendant. The proximate cause of

the injury was the defendant's

intervening negligence, and the

;

ae etna te tl a te ne ee es

causal connection between the

plaintiff's negligence and the

injury was broken. See Fahringer

v. Rinehimer, 283 Pa. Super. 93,

97-98, 423 A.2da 731, 734 (1980)

('(R)egardless of whether or not

appellee was negligent, he is not

. . » barred from recovery, for his

injury did not result from one of

the hazards he was under a duty to

foresee.")

Hence, even assuming that the

district court in Rawl intended to

apply the rule, of which _Fahringer

is an example, we cannot state, on

the basis of the trial record, that

Rawl has met the requirements to

avoid the bar of contributory

negligence. The hazard, spatial

disorientation, was a foreseeable

result of flying at night, in

conditions of poor visibility, and

without IFR training. The

consequence, loss of control of the

plane and death was a foreseeable

result. Even the cause, the

negligence of RAPCON, was a

foreseeable event. Thus, however

the legal theory employed by the

district court is denominated is of

little consequence since the result

is the same under either.

101

a ii ite

See Restatement of Torts 2d Section

440 ("A superseding cause is an act

of a third person or other force

which by its intervention prevents

the actor from being liable for

harm to another which his

antecedent negligence is a

substantial factor in bringing

about").

In any event, even

accepting that the doctrine

denominated intervening and

superseding negligence may operate

to immunize a plaintiff from a

claim of contributory negligence,

nevertheless, in the instant case,

the government's negligence was not

intervening or superseding. The

negligence of RAPCON simply did not

gualify as an entirely

unforeseeable and unexpected force

breading the causal connection.

The district judge did not discuss

at length the elements of an

102

intervening and Superseding cause,

and found simply that the

negligence of RAPCON broke the

causal connection with Rawl's

negligence. Several considerations

have traditionally been analyzed in

deciding whether an intervening

cause should be called Superseding.

For instance, courts have examined

whether the harm caused was

different in kind from that which

would have followed from the

Defendant's negligence. See

Johnson v. Kosmos Portland Cement

Co., 64 F. 2d 193 (6th Cir. i333),

cert. denied, 290 U.S. 641 (1933).

Whether the operation or the

consequences of the intervening

cause "appear after the event to be

extraordinary rather than normal in

view of the circumstances existing

at the time of its operation" has

been considered important as well.

Restatement of Torts Section 44?

103

1ether

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(1965

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and extraordinary an occurrence as

to be unforeseeable. Finally,

RAPCON's negligence was not a force

independent of the situation and it

was certainly not an action by a

third party.

The district court

incorrectly applied the doctrine of

intervening and superseding cause.

The doctrine was intended to

relieve a party of responsibility

for injuries which he could not

have foreseen and ultimately did

not cause -- injuries arising from

a force or actor wholly outside of

the circumstances of the original

negligence.

Rawl's negligence and

RAPCON's negligence were

substantial, concurring causes of

the crash. See Odom v.

Steigerwald, 260 S.C. 422, 196 S.E.

2d 635 (1973); Smith v. Blackwell,

250 S.C. 163, 156 8.2. 2a 672

105

(1967); ("In order to be

contributory, the negligence of an

injured person must combine and

concur with the negligence of

another as a proximate cause of the

injury."); Seay v. Southern Ry.,

eeemeeewemesare, 31 S.E. 2d 133,

138 (1944). Our conclusion does

not represent a redetermination of

a finding of fact made by the

district court; it is the

application of a different, and

correct, legal standard to the

facts as developed in the record.

The record on appeal and

the findings of fact by the

district court show clearly that

Rawl was negligent in attempting to

land his aircraft at the Grand

Strand airport at Myrtle Beach

under the circumstances. Rawl had

ultimate responsibility for his

aircraft, and had a duty to

exercise care to avoid unreasonable

106

hazards. Mattschei v. United

States, 600 F. 2d 205, 208 (9th

Cir. 1979) (obligation to exercise

due care is "a concurrent one

resting on both the control tower

personnel and the pilot."). Rawl

violated that duty of care by

flying back to Grand Strand after

dark, in weather conditions that he

knew or should have known would bar

a VFR landing. Upon approaching

Grand Strand airport, he had

readily to perceive that landing

would not be possible in VFR

conditions. Rawl lacked instrument

flight qualification. He knew that

at least one other plane with

Special VFR clearance landed only

with great difficulty. Despite

the foregoing, Rawl insisted upon

landing at Grand Strand in order to

avoid missing a business dinner

party in Myrtle Beach for which he

was the host.

107

Finally, Rawl accepted

IFR clearance upon departure from

Grand Strand, a clearance he was

not qualified to accept, and

accepted Special VFR clearance to

land at Grand Strand, despite the

fact that pilots with only VFR

gualification may not accept

Special VFR clearance after sunset.

We conclude that Rawl's negligence

was a concurrent proximate cause of

the crash, and under the doctrine

of contributory negligence,

operated to bar recovery frcm the

government.12

REVERSED.

l2Numerous cases, on varied

facts, have held that a pilot's

carelessness constituted

contributory negligence. See e.g.,

Kullberg v. United States, 271 F.

Supp. 788 (W.D. Pa. 1964); Somlo v.

United States, 416 F. 2d 640 (7th

Cir. 1969), cert. denied, 397 U.S.

989 (1979); Michelmore v. United

States, 299 F. Supp. 1116 (C.D.

Cal. 1969), aff'd sub nom.,

Spaulding v. United States, 445 F.

ae age teen Cir. i972).

108

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 84-2333

Julian W. Rawl, Administrator of

the Estate of Edwin E. Rawl, Jr.,

Appellee,

versus

United States of America,

Appellant.

Appeal from the United States

District Court for the District of

South Carolina, at Charleston. C.

Weston Houck, District Judge

The appellee's petition

for rehearing and’suggestion for

rehearing in banc were submitted to

this court. As no member of the

Court requested a poll on the

suggestion for rehearing in

banc,and

As the panel

considered the petition for

rehearing and is of the opinion

that it should be denied.

109

—————————————<—< —h

IT IS ORDERED that the

petition for rehearing and

suggestion for rehearing in banc

are denied.

Entered at the direction

f Judge Murnaghan, with the

concurrence of Judge Phillinos and

HY CA 241%

Judge Butzner.

/S/ Jonn M, Greacen

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