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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 907

## Text

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....

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0746%3A1. Public record. Not legal advice.