# Appendix — Rawl v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1779%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 814

## Text

In The

COURT OF THE

SUPREME

1986

October Term,

n E. Rawl,

ate of Edwi

+

ES

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

4

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(

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FIVE

RAPCON
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RAPCOM-FIVE TWO THREE, SAY Y
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present between the cloud layers,
arkness limited visibility, and no

utside visual references were

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resent for Mr. Rawl to rely n.
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18. The end of Mr. Rawl':
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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

Hh
?

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).

4

E. South Carolina law
provides that "(a)ll crimes, torts
and other wrongs committed by or
against an aeronaut or passenger

while in flight over this Stat

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F. South Carolina as é
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Situation
United States,

870
when
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information or make mc
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Stated differently, the dut

government agent or employe

circumscribed by the govern
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own regulations, policies c
- 1: . — ~~ ‘ec A :

manuals, but rather is dete

Niinder Co rmiimartk- ar oon en a urhe ~

UlilU A Lz Cun > to G62 Sa WNETE

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nitea states, 1f a private

sa ie ~~ } os, ie, ee ate: ‘. i 2

WOUlLd De liable t the clal

A F ape

accordance with the law whe

aA oO+ —_ micainn Corre A A

ict I 1S$S10! ) urred.

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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.

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intelligence should have
anticipated the danger
to others by his
negligent act ....

Fritzgerald v. Manning 6/9 F

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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

43

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sntn . t.7 ar
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as told to descend

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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
as
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).

57

ee

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

58

—

personnel would use suc

as

either help him

Obviousl

been flying that nig

.7
y
» a

the circumstances

would not have occurred

he came within

h

ai

t

=

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 ° 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

—/

=)

ct

ct

4

bend ©

O
in
in

wl

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+
pt
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\ a+
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e
ry
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le
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Yr

ae

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.

60

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,

61

eS

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resul

iate

mM

i

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.

71

J

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 .

A

COU

INITED STATES

T
L

rquea

-
=

i

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

78

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

19

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

ei)

N
>)

ry

69)

D
3

ct
t

miles with fog and h

There was a broken layer of cloud

2Conditions had deter
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.

80

Myrtl

at

\PCON

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f

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rt
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were

aitions

n

>ather co

We

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concurred.
\S Rawl approached the

airport, he was told to expect a

nother

ctr
D
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RXAPCON attempted to brina the
‘ ~_. : 4 = « . ~ rm)
Cessna into the airport. The
XS -=c ry TY q o U7 a 7 ~ \
Cessna made several passé ver tne
, Yr ~+ lanl reac 2) h 7 7
airport and was unable t locate
i t Arn NMA Fr7TTO Nn At? Te cr 4 a -—.
1 ° All merge nhnhCcy mah & ae Cl i Wa S

. -¢ :) 5 - .)
hts -babanbe| Ixy +h a 7 Wa ~> +
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} 7 ai heal = + ~
> + Yr + + > - ~ —
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the end ¢ 1€@ runw ,
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an" aid | A Os b . * 7 naw J
7 1
was cleared t ipproac! the
.s . ’
+ +Y a & ran rT . » a neon meé ) D . .
alrport. RAP ( y J tructed Rawl t
~ , ,
mY) Y ,TY y . L7R'T + } 7
maintal! Spe Lal ¥vEFR at r DeELOW
4n y > 1 + mijat h nes: ,nct »y Bee) Yr +
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Flidh » + ale! thaich » cr
Tlignt rating, which Raw Qid not
h atre ' Aree Cr ~4 . wer
nave, TO a ¢ ept 2. eClal J] rm

clearance after sunset. 14--CiP eR.

U
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-"

a
}

few moments later, : : . } £7
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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

"abrupt maneuvers."© Abrupt
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

88

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.

89

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

A.

+

1eW1ing

5%

Te

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).

33

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

94

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,

35

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.

96

vw

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:

98

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

99

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

or

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

O

f Judge Murnaghan, with the

concurrence of Judge Phillinos and

HY CA 241%

Judge Butzner.

/S/ Jonn M, Greacen

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1779%3A2. Public record. Not legal advice.