Petition for Writ of Certiorari — Pino v. United States

themselves are not pilots and have no actual data on

the subject of air-crash negligence.

In this case, the primary facts regarding the causation of

the air pressure wave involve matters which are readily

available and known to the general public - wake vortices

and sonic boom shock waves, since they are covered in

much aviation-related information on plane crashes and

sonic boom events in the media, newspapers and television

news programs. The fact-finder in this case should be able

to use this common understanding and common sense to

comprehend the basic aspects of these matters from

Plainiffs evidence well enough to draw correct

conclusions without the aid of the testimony of wake vortex

experts or sonic boom shock wave experts.

Third, this holding violates the bedrock rule of tort law

that the cause of the occurrence is to be determined within

the context in which it occurs, not taken from those

circumstances and considered in isolation or in the

theoretical realm. Milwaukee & St. P. R. Co. v. Kellogg, 94

U.S. 469 (1876) (the proximate cause of an injury is

ordinanly a question for the jury, not a question of science

or legal knowledge, and “is to be determined as a fact in

view of the circumstances of fact attending it.) The

Seventh Circuit panel decision’s holding that the Plaintiff

had to prove that “air pressure waves arise only from

aircraft under negligent control” removed the consideration

of the event that injured the Plaintiff from the

circumstances and reality in which it occurred a

residential neighborhood on an otherwise uneventful

evening - and took it to the realm of isolated theory

where placing it into other circumstances may well show

the government was clearly not negligent, such as when

military jets fly supersonicaliy at air shows and create sonic

boom shock waves in a controlled, careful way like at the

Chicago lakefront every summer, or like dumng_ the

exigencies of the months just after the Sept. 11, 2001 when

a military jet chased a passenger jet near O’Hare and

created a sonic boom shock wave which hit the ground in

the residential suburb of Arlington Heights, which the

Defendant’s attorney referenced in her summary judgment

documents. To take the creation of the air pressure wave

out of the specific facts and circumstances of this case is

prohibited by the rules of tort law.

Fourth, the Seventh Circuit’s holding here that the

Plaintiff had to prove that “air pressure waves arise only

from aircraft under negligent control” violates the binding

legal precedent that plaintiffs may use circumstantial

evidence to prove their cases. E.g., Desert Palace, Inc. v.

Costa, 539 U.S. 90, 99 (2003). Imig v. Beck, 115 Tll.2d 18

(1986) (“res ipsa loquitur raises an inference of negligence

from otherwise inexplicable facts by allowing proof of

general negligence through circumstantial evidence’). The

Plaintiff was entitled to use the facts that the air pressure

wave hit her, that there was nothing other than planes

around at the time that could cause air pressure waves, and

that the Defendant committed the negligent acts and

omissions regarding its duty of care in the system of jet

noise control, summarized in Pl.’s Brief at 35-36 (total

failure to measure jet noise in her neighborhood despite

harmful and increasing levels of jet noise in the area, Pl.’s

Ex. M, I; total failure to do anything about highly humid

days — close to 100%, such as the day at issue, when it is

widely known that greater levels of noise reach the ground

on such days, Pl.’s Ex. J, K, P; failure to implement a noise

compatibility program around O’Hare; and failure to obey

the general requirement from Congress that jet noise be

reduced to safe levels), to ask the fact finder to infer that

14

this negligence was more probably than not a substantial

and material factor in causing the Plaintiff's injury.

The Seventh Circuit’s holding also ignores the rule of

tort law that a defendant may be found negligent if its

actions increased the nsk of harm in general to a plaintiff as

well as if it is found to have specifically caused the injury.

Fifth, the panel decision’s holding that the Plaintiff had

to prove that “air pressure waves arise only from aircraft

under negligent control” violates the binding legal

precedent that the burden of proof in civil cases is the

preponderance of the evidence. F.g., Desert Palace, Inc. v.

Costa, 539 U.S. 90, 99 (2003). -

The plaintiff was entitled to the use of the res ipsa

loquitur inference to survive summary judgment and at

trial. “In [Ilinois, the plaintiff is entitled to a presumption of

negligence under res ipsa loquitur if the ‘thing which

caused the injury is shown to be under the control or

management of the party charged with-megligence,’ and if

‘the occurrence is such as in the ordinary course of things

would not have happened if the person so charged had used

proper care.”” Neace »- Laimans, 951 F.2d 139, 141 7

Cir. 1991) (emphasis added).

The plaintif’ proved both requirements. First the

Defendant federal government controls the system of jet

noise control because it almost totally preempts the field of

jet noise control. Pl.’s brief at 33-34; City of Burbank v.

' Kolakowski v. Voris, 83 Tll.2d 388. 389 (1981) (introduction of

some evidence of specific negligence does not bar the doctrine of

res ipsa loquitur where the cause of the injury is not

conclusively established).

1S

Lockheed Air Terminal, Inc., 411 U.S. 624, 628-40 (1973)

(in interpreting the Noise Control Act of 1972, 42 U.S.C.

A. § 4901 et seqg., this Court held that the fedeia:

government — through the FAA and U.S. EPA - holds

comprehensive control over aircraft noise, preempting state

and local control, because of the pervasive nature of the

scheme of federal regulation of aircraft noise).

Second, it is a very reasonable conclusion that in the

facts and circumstances of the occurrence, the air pressure

wave that hit the plaintiff was caused because the defendant

was negligent in allowing it to happen in a residential

neighborhood, on a normal evening, to a _ pedestrian

walking along. Pl.’s brief at 34-35, Reply bnef at 19. To

find otherwise, one has to remove the air pressure wave

hitting the ground from the circumstances of this case and

place it into the theoretical realm, or the general realm,

which tort law, including the Supreme Court precedent on

proximate cause,” prohibits. The Seventh Circuit’s holding

also ignores the moral aspect of this case, where the injured

person was the victim of clear non-reciprocal risk. See Dan

B. Dobbs, The Law of Torts, Vol. 1, “Substitutes for

Factual Evidence, Res Ipsa Loquitur, Estimating the

Probabilities of Negligence” at 376 (2001):

even where literal control is compromised, the

nonreciprocal feature of res ipsa is often very

prominent, as where the plaintiff is injured by an

exploding soda bottle or a collapsing chair. The

* Milwaukee & St. P. R. Co. v. Kellogg, 94 U.S. 469 (1876) (the

proximate cause of an injury is ordinarily a question for the jury,

not a question of science or legal knowledge, and “is to be

determined as a fact im view of the circumstances of fact

attending it.”’).

16

defendant may lack literal control in such cases, but

the risk is a one way street. The nonreciprocal

character of many res ipsa cases is not the function

of a rule, but it is a charactenstic that often appears

and may suggest a moral basis for the inference

when otherwise the case might be doubtful.

The panel decision holding also violates the way this

Court applies the res ipsa loquitur doctrine, e.g., Johnson v.

U.S., 333 U.S. 46 (1948) (“No act need be explicable only

in terms of negligence in order for the rule of res ipsa

loquitur to be invoked, since the rule deals only with

permissible inferences from unexplained events.”) In

Johnson, a seaman suffered injury when a block held by

another above him fell on his head, with no specific

evidence as to why it fell. Jd. at 47-48. This Court wrote:

“A man who is careful does not ordinarily drop a block on

a man working below him. Some external force might

conceivably compel him to do so. But where, as here, the

injured person is not implicated (citation omitted), the

falling of the block is alone sufficient basis for an inference

that the man who held the block was negligent.” /d. at 48.

“The inquiry . . . is not as to possible causes of the accident

but whether a showing that petitioner was without fault and

was injured by the dropping of the block is the basis of a

fair inference that the man who dropped the block was

negligent. We think it is, for human experience tells us that

careful men do not customarily do such an act.” /d. at 50.

In this case, there were two gaps in the causal sequence,

how exactly the air pressure wave was generated (from

which planes and what physical track it took to the

plaintiff's body), and how the defendant’s breaches of its

duty of care caused the generation of the air pressure wave

from the plane(s), both of which can be reasonably inferred

17

from the circumstances of the event and plaintiffs

evidence.

In many cases the inference to be drawn is a

double one, that the accident was caused in a

particular manner, and that the defendant’s

conduct with reference to that cause was

negligent. The inference of negligence may

arise either where a definite cause is known,

or where the accident is more or less a

mystery, with no particular cause indicated.

When a gasoline filling station mysteriously

explodes, many possible explanations can be

suggested, but the most likely one may be

negligence on the part of those in charge.

The plaintiff is not required to eliminate

with certainty all other possible causes or

inferences, which would mean that the

plaintiff must prove a civil case beyond a

reasonable doubt. All that is needed is

evidence from which reasonable persons can

say that on the whole it is more likely that

there was negligence associated with the

cause of the event that that there was not. It

is enough that the court cannot say that the

jury could not reasonably come to that

conclusion.

W. Page Keeton ef al., Prosser and Keeton on the Law of

Torts, Circumstantial Evidence — Res Ipsa Loquitur, § 39,

pp. 247-48 (5" ed. 1984). The plaintiff should have been

allowed these two inferences to survive summary judgment

because the elements as in the Neace case were met.

In the last sentence of the quoted passage from the

opinion below, the Seventh Circuit panel also alludes to

“negligent design of the airspace,” something the plainuff

has not alleged in this case.

b. The Seventh Circuit decision is in conflict with

other legal authority regarding the factors

involved in a court’s determination that the

estimation of the probabilities of negligence in a

case are enough to allow the use of the res ipsa

loquitur doctrine at trial, specifically, the

common knowledge required and the moral

basis for its use in cases of clear non-reciprocal

risk.

While the specific holdings in the Seventh Circuit panel

decision are not in accord with this Court’s precedent,

underlying the opinions below may well have been the

courts’ concern as to whether enough common knowledge

exists regarding how jet aircraft create air pressure waves

through wake vortices and sonic boom shock waves, and

their hesitance about the unstated moral basis for the use of

res ipsa loquitur in this case.

However, reference to the latest tort law treatise by

Prof. Dobbs, as well as making the affirmative choice to

protect the public safety, answers these concerns. See

passages quoted, supra. Dan B. Dobbs, The Law of Torts,

Vol. 1, “Substitutes for Factual Evidence, Res Ipsa

Loquitur, Estimating the Probabilities of Negligence” at

373, 376 (2001).

Other res ipsa cases which are analogous to this case

include: Leathem Smith-Putnam Nav. Co. v. Osby, 79 F.2d

280 (7 Cir. 1935) (res ipsa loquitur applicable in case of

19

explosion on shipping vessel where owner shown by

circumstantial evidence to have allowed explosive gases to

accumulate in dangerous quantities, with no evidence

anything else that might explode); Duerr v. Consol. Gas

Co. of N.Y., 86 App. Div. 14, 835 NY Supp. 714 (1* Dep’t

1903) (brick fell on head of pedestrian and court held res

ipsa loquitur applied, because bricks handled properly do

not fall on the heads of pedestrians). Viera v. Atchison,

Topeka & Santa Fe Railway Co., 10 Cal. App. 267, 101 P.

690 (1909) (it was reasonable to infer negligence from the

fact that soon after a train passed a fire started beside the

track). :

2. The Seventh Circuit decision is in conflict with the

decisions of this Court regarding whether a

proposed amendment to a negligence complaint

which changes the manner of the breach of duty of

care to conform to the evidence and anticipate the

use of res ipsa loquitur at trial constitutes a “new

claim” barred by Fed. R. Civ. Pro. 15.

The first paragraph of the Seventh Circuit decision

contains major and fundamental errors in summanzing

plaintiff's case and denies plaintiff the ability to develop

her case beyond the complaint.

The statement, “because she says employees of the

Federal Aviation Administration (FAA) at O’Hare caused

her injury by negligently directing a plane to fly too low

over her neighborhood”, Panel Decision at 1-2, is not

supported by citation to the record, and is wrong in the

following ways. Plaintiff nowhere limited her case to

“employees of the FAA at O’Hare”, and nowhere in her

case did she ever limit the negligence allegations against

the federal government to “directing a plane to fly to low

over her neighborhood.”

From the beginning of this case, the defendant had

notice that this case involved how the FAA guided planes

around O’Hare in relation to the safety of persons on the

ground in the surrounding suburbs, and involved their

hearing in relation to air pressure waves caused by planes,

albeit focused on one specific United plane.

The plaintiff's descnption of the occurrence in her

initial complaint was “the defendant agency’s air traffic

controllers negligently and wrongfully guided a United

Airlines jet airplane taking off from O’Hare Airport in the

air over the plaintiff and allowed it to cause a great noise

disturbance over this highly populated residential area. This

noise disturbance was so- great that it involved an air

pressure wave powerful enough to actually have struck the

entire right side of the plaintiff's body, and thereby caused

physical injury to her.” Pl.’s 7" Cir. Appdx. at 13.

The panel decision failed to recognize that the “great

noise” referenced in the complaints is the same as the “air

pressure wave,” stated in the next sentence of all the

complaints, the first phrase being just a broader set with

“air pressure waves” as a subset. This is clear from the

plain language of the complaints.

The plainuff's description of the occurrence in her Ist

Amended Complaint, which superseded the _ initial

complaint, and governed most of the discovery period of

this case, contained the same concepts but added “‘and other

staff’ to emphasize that other FAA staff besides air traffic

controllers were involved in the system of how the FAA

guides planes in relation to how they create air pressure

21

waves. That description is: “the FAA’s air traffic

controllers and other staff negligently and wrongfully

directed and guided a United Airlines jet airplane taking off

from O’Hare Airport in the air over the plaintiff and

allowed it to cause a great noise disturbance over this

highly populated residential area. This noise disturbance

was so great that it involved an air pressure wave powerful

enough to actually have struck the entire right side of the

plaintiff's body, and thereby caused physical injury to her.”

Pl.’s 7" Cir. Appdx. at 14.

After the close of discovery and in conjunction with

responding to Defendant’s motion for summary judgment,

Plaintiff submitted a motion for leave to file a second

amended complaint in order to make the complaint

conform with the evidence, which was denied. PI.’s Brief at

8-16.

- The evidence included that in addition to confirming

the United plane flew over plaintiff as she documented over

a year earlier — making her testimony highly credible to the

fact finder - there were a line of planes landing near her, as

well as the possibility of a military jet(s) flying overhead,

since those were excluded by the FAA from the flight data

held by the City of Chicago’s Dept. of Aviation. Pl.’s brief

at 9-10, PI.’s Ex. H.

It also included information showing the plausibility of

planes causing air pressure waves through the action of

wake vortices an sonic boom shock waves in general, and

the defendant’s knowledge of these facts. Pl.’s Ex. V,

second document citied in Pl.s Supp. Mem. at 4-5 n.1, Pl,’s

bnef at 14-15 n. 9 citing Def.’s Ex. 4, Reply, FAA

Advisory Circular on Aircraft Wake Turbulence, filed

3/16/04.

Nw

N

Since plaintiff was unable to determine what specific

way the air pressure wave that hit her was caused by the

planes in the air around her that evening, she submitted her

request to rely on the res ipsa loquitur doctrine to cover the

gap in proof of causation in her response to defendant’s

motion for summary judgment (not “in this Court” as the

panel decision states — the plaintiff never changed her

testimony as to the event; she only changed the allegation

as to how the air pressure wave was specifically caused),

that gap specifically involving exactly which planes and the

specific physics and mathematical equations explaining

how the air pressure wave was generated by the plane(s).

The plaintiffs proposed second amended complaint

contained this description: “the FAA’s air traffic controllers

and other staff negligently and wrongfully operated the

FAA’s aircraft regulatory activities so as to allow the

airplanes in Plaintiff's vicinity to create a great noise

disturbance over her in this highly populated residential

area. This noise disturbance was so great that it caused an

air pressure wave powerful enough to actually have struck

the entire right side of the plaintiff's body, and thereby

caused physical injury to her.” Pl.’s 7 Cir. Appdx. at 16.

This changed the theory of the United plane causing the

air pressure wave to the general negligence allegation

involving any or all of the planes in plaintiffs vicinity that

night, but it did not Change the concept that the FAA staff.

negligently and wrongfully allowed planes to cause the air

pressure wave -- the systemic aspect of jet noise control

(“noise” including air pressure waves). Defendant was on

notice that this case involved the FAA’s system of jet noise

control from the beginning, from the complaint as well as

to

tue

from the_plaintiffs discovery requests, so there was no

prejudice from this change. Pl.’s brief at 12.

Throughout the panel decision, the rest of plaintiffs

negligence case was entirely disregarded. Plaintiff

submitted at least four specific allegations of negligence on

the systemic aspects of jet noise control, which increased

the risk of harm to plaintiff. Pl.’s brief at 34-36, Reply brief

at 20-25, Pl.’s Response to Sum. Judgmt. at 11-13. For the

court to so limit the plaintiff's entire case to the specific

content of her first amended complaint was equivalent to

denying her the ability to develop the case, in violation of

the notice pleading standards. F.g., Smith v. Piper Aircraft

Corp., 18 F.R.D. 169, 175 (D.C. Pa. 1955) (“there is no

rule of law which freezes the further development of the

case within the limits of plaintiff's knowledge when she

filed the complaint’).

Here, the operative facts involved the air pressure wave

hitting the plaintiff as she walked home one night in her

neighborhood, causing her hearing damage (severe pain

and lasting tinnitus). The cause of action was always

negligence, involving how the FAA guided planes in

relation to the protection of people on the ground. A

plaintiff may substitute one legal theory for another without

altering the complaint. Mayle v. Felix, 162 L. Ed. 2d 582,

595 n. 5 (2005) (adding a new legal theory To a complaint

a fraud charge — based on the same operative facts as those

initially plead, was properly allowed).

This Court has specifically held that an amendment. to a

complaint which changes the manner of breach of duty

does not constitute a new cause of action. Tiller v. Atlantic

Coast Line, 323 U.S. 574, 581 (1945) (changing the

specific forms of negligence alleged as cause of death of

-—

railroad yard worker did not state a new cause of action);

Maty v. Grasselli Co., 303 U.S. 197, 199 (1937) (an

amendment broadening the place of employment where the

injury occurred did not change the plaintiff's cause of

action).°

The Seventh Circuit’s holding limiting the plaintiff here

to the exact content of her original complaint also violates

this Court’s rule in Leatherman v. Tarrant County

Narcotics Intelligence and Coordination Unit, 507 U.S.

163 (1993), that the imposition of heightened pleading

standards ~ those of greater specificity — is prohibited,

absent statutory requirements (which do not exist for

Federal Tort Claims Act cases).

* See also, e.g., Blair v. Durham, 134 F.2d 729, 731 (6" Cir.

1943) (amendment changing negligence allegation from use of

scaffold to construction of scaffold did not state different cause

of action because allegations were only different breaches of the

same duty), Humphries v. Going, 59 F.R.D. 583, 587 (D.C.N.C.

1973) (although amendment to complaint must not introduce a

cause of action substantially different. an alteration of modes in

which defendant nas breached a legal duty or caused an injury is

not an introduction of a new cause of action); Davis v. Yellow

Cab Co., 35 F.R.D. 159, 161 (D.C. Pa. 1964) (as long as a

plaintiff adheres to a legal duty breached or an injury originally

declared on, an alteration of the modes in which defendant has

breached the legal duty or caused the injury is not an

introduction of a “new cause of action”; the true test is whether

the proposed amendment is a different matter or the same matter

more fully or differently laid); Smith v. Piper Aircraft Corp., 18

F.R.D. 169, 175 (D.C. Pa. 1955) (an alteration of the modes in

which defendant has breached a legal duty or caused an injury is

not an introduction of a new cause of action).

CONCLUSION

The petition for certiorari should be granted.

Resp¢etfully PE ] 4

NMbtioL 5,

nae C. Pino,

Petitioner pro se

May 4, 2006

26

APPENDIX

United States Court of Appeals

For the Seventh Circuit

Chicago, Lilinois 60604

February 3, 2006

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-3255

Appeal from the

United States District

Court for the

Northern District of

Illinois, Eastern

Division.

DOLORES C. PINO

Plainuff-Appellant

V. No. 03 C 7466

UNITED STATES OF AMERICA

Defendant-Appellee.

ORDER

On consideration of plaintiff-appellant’s petition for

rehearing en banc, filed in the above-captioned case on

January 17, 2006, no judge in active service has requested a

vote on the petition for rehearing en banc and all of the

judges on the original panel have voted to deny rehearing.

The petition for rehearing is therefore DENIED.

28

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 29, 2005*

Decided November 30, 2005

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. AN'N CLAIRE WILLIAMS, Circuit Judge

No. 05-3255

Appeal from the

United States District

Court for the

Northern District of

Illinois, Eastern

Division.

DOLORES C. PINO

Plaintiff-Appellant

Vv No. 03 C 7466

UNITED STATES OF AMERICA

Defendant-Appellee.

" After an examination of the briefs and the record, we have

concluded that oral argument is unnecessary. Thus, the appeal is

submitted on the briefs and the record. See Fed. R. App. P.

34(a)(2).

ORDER

Dolores Pino, a resident of Morton Grove, Illinois,

believes that in February 2001, while she was walking near

her home, an airplane in the Chicago/O’Hare airspace

created an atmospheric disturbance that caused her to suffer

from severe tinnitus ~ a ringing sensation in the ears. She is

suing the United States under the Federal Tort Claims Act,

28 U.S.C. § 1346(b)(1) (FTCA), because she says

employees of the Federal Aviation Administration (FAA)

at O’Hare caused her injury by negligently directing a

plane to fly too low over her neighborhood. The district

court granted summary judgment in favor of the United

States, and Pino appeals that order as well as an order

denying her leave to file a second amended complaint. We

affirm.

We review de novo whether the district court was

correct that Pino failed to present evidence of a genuine

issue of material fact. Cont'] Cas. Co. v. Nw. Nat'l Ins. Co.,

427 F.3d 1038, 1041 aay Cir. 2005). To state a claim under

the FTCA, Pino must show that the FAA owed her a duty

and, through its breach of that duty, proximately caused her

injury. 28 U.S.C. § 1346(b)(1); Bajwa v. Metro. Life Ins.

Co., 804 N.E.2d 519, 526 (Ill. 2004). Pino argues that the

district court erroneously failed to regard her personal

affidavit as sufficient to defeat summary judgment. In the

affidavit, Pino asserts that the following is evidence of

FAA negligence: a United plane flew over her making a

loud noise, at the same moment she was hit by an “air

pressure wave,” and after this incident she experienced

tinnitus. But in this Court, Pino expressly denies that this

United plane caused her injury.

tua

om)

Instead she argues in her brief that an unknown aircraft

caused her tinnitus and that she need not identify a specific

plane that caused her injuries because an air pressure wave

(which arguably did injure her) had to have been generated

by a negligently controlled aircraft. While we must draw all

reasonable inferences from the evidence in Pino’s favor,

Cont'l Cas. Co.. 427 F.3d at 1041, we do not think the

causation sequence that Pino suggests is one that a

layperson can reasonably infer based on_ personal

experience, Payne v. Pauley, 337 F.3d 767, 772 (7" Cir.

2003) (“although personal knowledge may include

reasonable inferences, those inferences must be grounded

in observation or other first-hand personal experience. They

must not be flights of fancy. hunches, intuitions, or rumors .

...) (internal citation and quotation marks omitted). Pino

has not asserted that she is an expert on the causes of air

pressure waves, nor has she presented an expert witness to

say that air pressure waves arise only from aircraft under

negligent control. Therefore, the district court’s grant of

summary judgment was correct.

Pino also argues that the district court should have

allowed her to amend her complaint to include a new claim

that the FAA negligently designed the flight paths around

her neighborhood. The district court found Pino’s proposed

amendment would be untimely, prejudicial, and futile.

These are all valid grounds for refusing leave to amend,

Dubicz vy. Commonwealth Edison Co., 377 F.3d 787, 792

(7"" Cir. 2004), and we agree with the district court that

Pino’s proposed amendment would be futile, although for

slightly different reasons than the court stated. Pino, after

having over a year to conduct discovery, failed to present

any competent evidence that a plane caused her injury. In

the absence of such evidence of causation, Pino is just as

unable to prove that her injury was caused by the FAA’s

Lee)

pan

negligent design of the airspace as she is unable to prove

that it was caused by the FAA’s negligent guidance of

planes.

Accordingly we AFFIRM the district court’s decision.

Us

No

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DOLORES C. PINO

Plaintiff,

VS. Case No. 03 C 7466

UNITED STATES OF AMERICA,

Defendant.

Me

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Dolores Pino has filed a pro se complaint under the

Federal Tort Claims Act in which she alleges that on

February 5, 2001, she was in Morton Grove, Illinois

walking south from Golf Road on Harlem Avenue, “when

the FAA’s air traffic controllers and other staff negligently

and wrongfully directed and guided a United Airlines jet

airplane taking off from O’Hare Airport in the air over

plaintiff and allowed it to cause a great noise disturbance

over this highly populated residential area... First Am.

Compl. £ 3. The disturbance was so great, Pino says, that

“it involved an air pressure wave powerful enough to

actually have struck the entire nght side of the plaintiff's

body, and thereby caused physical injury to her,” including

damaging her hearing. /d. {{f 3, 5.

The government has moved for summary judgment.

The Court may grant the motion only if there is no genuine

Loe

le

issue as to any material fact and the government is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(c). In

asserting the government’s motion, the Court views the

facts in the light most favorable to Pino and draws

reasonable inferences in her favor. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).

The government is liable to Pino under the FTCA if,

under the circumstances, a private person would be liable to

her under the law of Illinois, where the allegedly negligent

act occurred. 28 U.S.C. § 1346(b). Under Illinois law, to

sustain a claim for negligence, Pino must show that the

government owed her a duty of care and breached the duty,

proximately causing her injury. See, e.g., Curatola v.

Village of Niles, 154 Ill.2d 201, 207, 608 N.E.2d 882, 885

(1993).

Pino has offered no evidence that anything that any air

traffic controller did caused her injury. Pino’s claim in her

complaint was that air traffic controllers permitted a United

Airlines jet to fly too low over her neighborhood and that

this caused her injury.' In her response to the government’s

motion, however, Pino disavows the claim that the air

pressure wave was caused by the United Airlines jet,

suggesting that it must have been caused by some other

aircraft that passed overhead earlier or that was traveling

greater than the speed of sound. See Pl. L.R. 56.1(b)(3)(A)

‘ Pino now concedes that the United Airlines jet that she

originally claimed caused the air pressure wave was at an

altitude of over 6300 feet at the time she claimed to have been

injured. Pl. Ex. F. The Federal Aviation Administration’s

departure procedures for O’Hare Airport require an aircraft to be

at least 3000 feet above mean sea level — around 2300 feet above

ground ~ by the time it passes Pino’s neighborhood. See Def. Ex.

2 at 6. Thus the jet was well above the minimum altitude.

Stmt. 45. But Pino’s speculation over possible causes does

not qualify as evidence. “Inferences ... supported by only

speculation or conjecture will not defeat a summary

judgment motion.” McDonald v. Village of Winnetka, 371

F.3d 992, 1001 (7 Cir. 2004).

At this stage of the case, Pino must provide evidence

that would enable a fact finder to find in her favor at trial.

All that Pino offers on this score is the following:

The Plainff was unable to reconstruct exactly how

the aircraft created the air pressure wave, but based

on communications with jet noise experts, the two

likely modes are “wake vortices” from the wings or

a military jet flying over at or above the speed of

sound which created a sonic boom.

Pi. Affid. { 18. Though it is possible that Pino is correct

about the likely cause of the air pressure wave, her affidavit

does not suffice to create a genuine issue of fact. To be

considered in connection with a motion for summary

judgment, evidence must be admissible in_ content.

Specifically, an affidavit must be based on_ personal

knowledge in order to be considered. See; e.g., Juarez v.

Menard, Inc., 366 F.3d 479, 484 n. 4 (7" Cir. 2004). The

statement in Pino’s affidavit about the possible causes of

the air pressure wave concededly is not based on her

personal knowledge - rather it is based on hearsay

statements from unnamed individuals.

Pino says that the only thing capable of causing an air

pressure wave of the type she says hit her is an aircraft, and

that because an aircraft must have been involved, the FAA

is responsible. She says in her response to the motion for

summary judgment that her claim may be sustained under

35

the doctrine of res ipsa loquitur. See P|. Mem. at 9. But to

establish res ipsa loquitur under Illinois law, a plaintiff

must show that he or she was injured in an occurrence that

ordinarily does not happen in the absence of negligence,

and by an agency or instrumentality within the defendant’s

exclusive control. See Dyback v. Weber, 114 Ill.2d 232,

242, 500 N.E.2d 8, 12 (1986). Pino does not have evidence

sufficient to permit a finding in her favor on either of these

points. Her own statement that her injury was caused by an

air pressure wave amounts to unsupported surmise, and in

any event she has no evidence that air pressure waves

ordinarily do not reach the ground unless someone is

negligent. Finally, it is questionable whether the FAA’s

provision of air traffic control services puts it in exclusive

control of aircraft within the meaning of the doctrine of res

ipsa loquitur.

For these reasons, the Court concludes that the

evidence, even when viewed in the light most favorable to

Pino, would not support a decision in her favor under the

FTCA. The government is therefore entitled to summary

judgment.

In her response to the motion for summary judgment,

Pino asked the Court to permit her to amend her complaint

to add a claim that the FAA was negligent in its regulation

of aircraft noise around O’Hare Airport. See Pl. Mem. 8. -

The Court denies this request. The request is untimely, as it

comes long after the close of discovery, and the

government would be unfairly prejudiced were it to now

defend against entirely new allegations. In any event, the

amendment would be futile, as the FTCA contains an

exception for discretionary functions, 28 U.S.C. § 2860(a),

which would bar any claim regarding the design of

departure routes from O’Hare Airport. See, e.g., West v.

36

Federal Aviation Admin., 830 F.2d 1044, 1048-49 (9" Cir.

1987); Colorado Flying Academy, Inc. v. United States,

724 F.2d 871, 876-77 (10" Cir. 1984).

Conclusion

For the reasons stated above, the Court grants the

government’s motion for summary judgment [docket #25-

1]. The Court denies plaintiffs motion for denial of the

motion for summary judgment [docket #39-1]. Plaintiffs

motion to shorten deadline and to compel answer [# 27-1 &

2] was dealt with by Judge Lefkow and is terminated as

moot. The Clerk is directed to enter judgment in favor of

the defendant.

MATTHEW F. KENNELLY

United States District Judge

Date: May 2, 2005

Federal Rule of Civil Procedure 15 (in relevant part):

(a) Amendments. . . . a party may amend the party’s

pleading only by leave of court or by written consent of

the adverse party; and leave shall be freely given when

justice so requires.

(b) Amendments to Conform to the Evidence. When issues

not raised by the pleadings are tned by express or

implied consent of the parties, they shall be treated in

all respects as if they had been raised in the pleadings.

Such amendment of the pleadings as may be necessary

‘ to cause them to conform to the evidence and to raise

these issues may be made upon motion of any party at

any time, even after judgment; but failure so to amend

does not affect the result of the trial of these issues. If

evidence is objected to at the trial on the ground that it

is not within the issues made by the pleadings, the court

may allow the pleadings to be amended and shall do so

freely when the presentation of the merits of the action

will be subserved thereby and the objecting party fails

to satisfy the court that the admission of-such evidence

would prejudice the party in maintaining the party’s

action or defense upon the merits. The court may grant

a continuance to enable the objecting party to meet such

evidence.

(c) Relation Back of Amendments. An amendment of a

pleading relates back to the date of the orginal pleading

when ... (2) the claim or defense asserted in the

amended pleading arose out of the conduct, transaction,

or occurrence set forth or attempted to be set forth in

the original pleading....