IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION COMPLAINT

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION DENISE SCHIPPERS and SHARON COX-ESTEP, v. Plaintiffs, THE UNITED STATES OF AMERICA, Defendant. CIVIL ACTION NO. COMPLAINT Plaintiffs Denise Schippers and Sharon Cox-Estep (collectively, the Plaintiffs ), by and through their counsel, for their Complaint against Defendant The United States of America (the Defendant ), seek to recover damages for the wrongful deaths of Richard Schippers and Shane Schippers pursuant to the Federal Tort Claims Act, 28 U.S.C. 1346(b) and 2671, et seq., and the Texas Wrongful Death Act, TEX. CIV. PRAC. &REM. CODE , et seq., and hereby state and allege as follows: I. THE PARTIES 1. Plaintiffs Denise Schippers and Sharon Cox-Estep are individuals who reside in the State of Florida. 2. Defendant The United States of America is a sovereign nation and exists under the U.S. Constitution and the laws enacted by the U.S. Congress. The Federal Aviation Administration (the FAA ) is, and at all times relevant to this lawsuit was, an agency of the United State Department of Transportation, organized and existing under the laws of the United States. 3. To the extent that this action is governed by the Texas Wrongful Death Act, TEX. COMPLAINT Page 1

2 CIV. PRAC. &REM. CODE , et seq., this is an action to recover damages for the Plaintiffs as the surviving children or parents of decedents Richard Schippers and Shane Schippers. II. JURISDICTION & VENUE 4. This Court has Subject Matter Jurisdiction over Defendant pursuant to the Federal Tort Claims Act, 28 U.S.C. 1346(b) and 2671, et seq., because The United States of America is the defendant in this action, and Plaintiffs have complied with all conditions precedent for the filing of this action. On or about December 9, 2010, Plaintiffs served their initial administrative claims with the FAA. The United States denied said claims on or about December 22, At all times relevant to this action, employees for the FAA were acting in their official capacity and under the authority of the Defendant. 5. Under the Federal Tort Claims Act, 28 U.S.C. 1346(b) and 2671, et seq., the whole law, including choice of law rules, of the state where the alleged act or omission occurred governs rights and liabilities of parties. As such, Texas law applies to this case. 6. Pursuant to 28 U.S.C. 1402(b), venue is proper in the Southern District of Texas because all or a substantial part of the events and/or omissions complained of herein occurred in Duval County, Texas. 7. Pursuant to the Texas Wrongful Death Act, TEX. CIV. PRAC. & REM. CODE , et seq., Defendant is liable to Plaintiffs for damages arising from the deaths of Richard Schippers and Shane Schippers, which were caused by an FAA employee s wrongful act, neglect, carelessness, unskillfulness, and/or default. COMPLAINT Page 2

3 II. FACTUAL ALLEGATIONS 8. On October 26, 2009, Plaintiffs decedents, Richard Schippers and Shane Schippers, were passengers aboard a Beechcraft B100 King Air multi-engine aircraft bearing the FAA registration number N729MS on a flight from Garner Field Airport in Uvalde, Texas to the Leesburg (Florida) Airport (the Flight ). 9. The Flight was a private trip being conducted pursuant to Title 14 C.F.R. Part 91 1 and was not a commercial flight for hire. 10. The Flight was operating under Instrument Flight Rules ( IFR ) 2 and, at all times material to this matter, was flying in Instrument Meteorological Conditions ( IMC ) Prior to the Flight, the pilot sought and obtained the required weather briefings from an Automated Flight Service Station. 12. The Flight was operating under the direct control of air traffic controllers ( ATC ) employed by the FAA at all times throughout its duration. 13. ATC maintained real-time weather radar data reflecting the location and intensity of precipitation and squall line convective activity along the Flight s path. 4 ATC facilities relevant to this flight have WARP NEXRAD radar, a system that displays the weather in 3 different colors or patterns and portrays precipitation as moderate, heavy, or extreme. 14. ATC had real-time data concerning the flight s location, altitude and ground speed provided by the Flight s onboard radar altitude reporting equipment. 1 The flight was private, and not a commercial flight for hire or compensation. 2 Under IFR, the pilot continuously operates under the positive control of air traffic controllers and is generally required to comply with the clearances (altitudes, routes, vectors, and procedures) assigned by the ATC controllers. 3 IMC denotes generally poor visibility conditions. In IMC, the pilot may not be able to see outside of the cockpit or navigate visually and, therefore, must rely on the aircraft s instruments and ATC instructions to navigate. 4 See FAA Bulletin , Thunderstorms and Weather Events (May 2008). COMPLAINT Page 3

4 15. The Flight proceeded as follows: At 10:58 a.m. (Central Standard Time), the Flight departed from Uvalde, Texas and traveled on a southeasterly heading. At 11:05 a.m., the pilot contacted the FAA s Houston Air Route Traffic Control Center ( ARTCC ) and reported an altitude of 10,200 feet, climbing to 23,000 feet. The pilot then said, All right if you don t mind helping us we re looking at the radar it might be better for us to go down toward Laredo <unintelligible> route looks like a squall line. ATC responded, Niner mike sierra yes there is a very significant squall line between you and your destination. Not sure how you ll get through, but we ll work on it somehow. The pilot responded, All right I sure appreciate the help. At 11:07:44 a.m., the pilot requested to proceed directly to Laredo, Texas. ATC responded, direct Laredo, direct Corpus, direct Leesville, rest of route unchanged. The pilot read back the route, and ATC cleared the accident airplane to climb to 25,000 feet, which was the pilot s requested final altitude. At 11:08 a.m., the Flight flew on this southerly heading for approximately 15 minutes before it turned back to a southeasterly heading toward Benavides, Texas. At 11:22:23 a.m., the pilot stated that he had a request, and ATC acknowledged. The pilot continued, uh, we re looking at a hole um going towards Corpus is it possible we could get about a 150 degree heading try and work through that way <unintelligible>. The controller replied, November niner mike sierra fly heading of 120 degrees when able proceed direct Corpus Christi rest of route unchanged. The pilot responded, sounds great 120 degrees and when able direct Corpus for mike sierra thank you. At 11:40 a.m., when approximately 6½ miles north of Benavides, Texas, at an altitude of 25,000 feet, the Flight entered a right turn toward the northwest and started to descend. At 11:40:43 a.m., the pilot advised ATC that he was in turbulence and had descended to 24,000 feet. There were no further verified communications between ATC and the flight. At 11:41:56 a.m., the last radar return was received at an altitude of 22,200 feet. At 11:42:55 a.m., the radar went into coast status, indicating that the radar data processing system had lost track of the Flight. COMPLAINT Page 4

5 The aircraft s main wreckage was located approximately 6 ½ miles north of Benavides, Texas, and showed damage consistent with an in-flight break-up prior to impact. All aboard were fatally injured in the crash, including decedents Rick and Shane Schippers. A post-crash review of the Flight s radar track data overlaid on weather radar data revealed that it had entered a line of level 5 (moderate to extreme) thunderstorms. The National Weather Service had issued a warning in its Convective SIGMET 38C, which was provided to the FAA, alerting the FAA that the storms in the vicinity of the Flight had tops of up to 37,000 feet, the possibility of extreme turbulence, severe icing, and low-level wind shear at the Flight s altitude. III. CAUSES OF ACTION COUNT I: WRONGFUL DEATH PURSUANT TO TEX.CIV.PRAC.&REM.CODE (AGAINST DEFENDANT THE UNITED STATES OF AMERICA) 16. Plaintiffs incorporate Paragraphs 1 15 above as if set forth fully herein. 17. As an IFR flight, the Flight remained under the direct control of the United States at all times, through the FAA s air traffic controllers. 18. The FAA has actual knowledge that heavy precipitation and thunderstorms can cause catastrophic in-flight airframe failure The FAA also has actual knowledge that most general aviation aircraft are not equipped with sufficient, on-board equipment capable of detecting such severe weather with reasonable accuracy, and such equipment is not required on 14 C.F.R. Part 91 flights. 20. At all times relevant to this matter, the FAA had actual knowledge as to the Flight s location, altitude, and ground speed, as well as the location and intensity of precipitation and squall line convective activity along the Flight s path. 5 See generally, FAA Advisory Circular AC-00-24, Thunderstorms (1983). COMPLAINT Page 5

6 21. When controlling a flight operating under IFR, especially when the flight is operating in IMC, ATC owes the pilot and passengers of flights under their control a duty of care to act reasonably and to comply with the provisions of the FAA Manual, including the duties: (a) (b) (c) (d) to closely monitor the progression of the flight on ATC s radar equipment; to closely monitor adverse weather conditions on the flight s assigned path; to advise of adverse conditions that affect the route of flight; and to assign alternative routes and/or altitudes to avoid hazardous weather. 22. More specifically, FAA Operational Order (the FAA Manual ) prescribes the course of conduct for FAA air traffic controllers in the situations and conditions relevant to the present matter. 23. FAA Manual requires that controllers remain aware of pertinent weather information while on duty. 24. FAA Manual 2-6-4(a) mandates that controllers issue pertinent, observed weather reports, including thunderstorms and lines of thunderstorms. It further instructs that, when requested by the pilot, the controller should provide radar navigational guidance and approve deviations around hazardous weather, including thunderstorms. This section directs ATC to do more than issue broad observations. It requires controllers to advise pilots as to the type of weather, its location in respect to the aircraft, and distance. The FAA Manual requires controllers to specifically report: (a) the area of coverage in relation to the aircraft s direction by referring to the 12-hour clock; (b) the distance from the aircraft; (c) the level of echo intensity in terms of moderate, heavy, or extreme, in the aircraft s path when available; and (d) the areas of significant weather (line of thunderstorms). The controllers are expected to suggest, upon pilot s request, alternative routes and/or altitudes. COMPLAINT Page 6

7 25. FAA Manual explains that, while ATC s primary purpose is the prevention of collisions, controllers are required to provide critical weather information to pilots. The provisions of these additional services are not optional, but rather are required when the work situation permits. This critical information was readily available to the controllers responsible for ensuring that both known and observed weather information were issued to the pilot. 26. During the 11:05 a.m. radio transmission, ATC expressly assured the pilot that it would assist the Flight in avoiding the adverse weather. Alternatively, ATC acquiesced to having the aforementioned duties by advising that we ll work on it somehow in response to the Pilot s concern about navigating through the squall line. This statement affirmed and conveyed to the pilot that ATC was undertaking the mission to keep the Flight clear of convective activity. Having expressly undertaken the mission to do so, it owed the occupants a duty to perform this task with reasonable care. 27. The Flight s pilot had a reasonable right to, and did, rely upon ATC s superior view of the flight path and real-time radar to keep the Flight clear of hazardous convective activity. 28. The Flight s pilot had a reasonable right to, and did, rely upon ATC s express agreement to assist him in navigating around hazardous weather. 29. The Flight s pilot had a reasonable right to, and did, rely upon ATC s instructions in that the provided clearances would not direct the Flight into the hazardous weather. 30. By correlating the weather and flight data, ATC had superior knowledge to that of the pilot, specifically that the Flight was unable to safely circumnavigate the squall line of severe thunderstorms along its ATC-assigned flight path. COMPLAINT Page 7

8 31. The United States of America, through the FAA and its air traffic controllers, breached its duty when it negligently failed to use the reasonable care and diligence exercised by other air traffic controllers under the same or similar circumstances, committing acts and/or omissions constituting negligence, as the term is defined by law, in the following respect or manner: (a) (b) (c) (d) (e) (f) (g) (h) ATC controllers negligently failed to timely and accurately acquire, and to closely monitor, the weather conditions affecting the Flight s position and intended route of flight; ATC controllers failed to ensure that the radar equipment being used to handle the Flight was appropriately configured for the weather conditions that existed at the time of the mishap and, had they been properly configured, the moderate to extreme weather conditions that existed along the Flight s assigned route would have become obvious to the controllers; ATC controllers negligently failed to properly warn the Flight of the substantial information available to ATC concerning the adverse weather conditions that existed along the Flight s assigned route by timely conveying an accurate and complete description of the then current adverse conditions affecting the Flight, including the sizes, locations, distances, and intensities of the various cells in the squall line, each of these factors were known and/or available to the FAA controller handling the Flight; Having agreed to help the Flight negotiate the squall line, ATC then negligently failed to reasonably perform that task so as to keep the Flight clear of the convective activity; ATC ignored the pilot s requested deviation to 150º to avoid the weather and, instead, substituted its own vector to 120º, which directed the Flight directly into the very worst of the adverse weather; The FAA controller handling the Flight prior to, and at the time of the accident, was required by FAA regulations to wear corrective lenses for distant vision but was not wearing them while handling the Flight; The FAA controller handling the Flight prior to, and at the time of, the accident provided ATC services to the Flight that were not in compliance with the FAA requirements per FAA Order , 2-6-4; and Other deficiencies to be revealed during the course of this proceeding. COMPLAINT Page 8

9 32. The crash was directly and proximately caused by the negligence of FAA personnel acting within the course and scope of their employment with the FAA. 33. The FAA s aforesaid negligence directly and proximately caused the severe injuries and ultimate fatality of the Plaintiffs decedents Richard Schippers and Shane Schippers, for which each would have had a cause of action against the Defendant had he survived. 34. As a direct, probable, foreseeable, and proximate result of Defendant s negligence, Plaintiffs have been deprived of the value of Richard Schippers and Shane Schippers companionship and protection. They have also lost the past and future support and services that Richard Schippers and Shane Schippers would have contributed to them during their lifetime, had they lived, with interest. Plaintiffs have experienced great mental pain and suffering from the date of the deaths of their loved ones and will continue to experience great mental pain and suffering in the future. IV. DEMAND FOR JURY TRIAL Plaintiffs hereby request trial by jury of all issues triable by jury under Texas and Federal law and will tender such fees as necessary to this end. V. PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Plaintiffs Denise Schippers and Sharon Cox-Estep respectfully request that the Court enter judgment against Defendant The United States of America granting Plaintiffs actual and consequential damages to the maximum extent allowable under law, pre- and post-judgment interest, costs of court, attorney s fees, and such other and further relief that the Court deems just and proper. COMPLAINT Page 9

10 Dated: February 14, Respectfully submitted, By: /s/ Charles W. Branham, III Charles W. Branham, III Attorney-in-Charge Texas Bar No Federal ID No GOLDFARB BRANHAM LLP Saint Ann Court 2501 N. Harwood Street, Suite 1801 Dallas, Texas (Telephone) (Facsimile) ATTORNEYS FOR PLAINTIFFS DENISE SCHIPPERS AND SHARON COX-ESTEP OF COUNSEL: HARTLINE DACUS BARGER DREYER, LLP Richard W. Crews, Jr. State Bar No Federal ID No North Shoreline, Suite 2000 North Tower Corpus Christi, Texas (Telephone) (Facsimile) COMPLAINT Page 10