McGrath v. USA CV-96-078-M 03/06/97 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

John P. McGrath, Executor of the Estate of Mary Jane McGrath, Plaintiff

v. Civil No. 96-78-M

United States of America, Defendant.

O R D E R

This personal injury/wrongful death action arises from a

fatal midair collision between an airplane and a parachutist

during an air show in Lebanon, New Hampshire. Mary Jane McGrath

piloted the airplane; Scott Pond was the parachutist. The Estate

of Mary Jane McGrath claims that the Federal Aviation

Administration's negligence in overseeing the air show

proximately caused the accident and, therefore, asserts that the

FAA is liable to it for damages.

In response, the government contends that this court lacks

subject matter jurisdiction over this claim under theFederal

Tort Claims Act because theFAA's conduct is shielded from

liability by the discretionary function exception. The government also claims that, under the governing tort law of New

Hampshire, it did not owe Mary Jane McGrath any actionable duty.1

And, even assuming that it did owe (and breach) such a duty, the

government claims that, as a matter of law, the FAA's alleged

negligence did not proximately cause the mid-air collision which

resulted in Mary Jane McGrath's death. Accordingly, the

government moves to dismiss the McGrath Estate's claims pursuant

to Fed. R. Civ. P. 12(b).

BACKGROUND

On July 6, 1993, Parker Aviation ("Parker"), in conjunction

with the Lebanon Riverside Rotary Club ("Rotary"), obtained a

Certificate of Waiver ("Certificate") from the FAA which

authorized specific deviations from Federal Aviation Regulations

("FARS") necessary to conduct an air show at the Lebanon

Municipal Airport. The Certificate waived compliance with

specific FARS from July 23 through 25, 1993, and allowed certain

otherwise prohibited activities, such as aerobatic flight below

1500 feet. As holders of the Certificate, the Rotary and Parker

1 The parties agree that, under the provisions of the Federal Tort Claims Act, the Estate's negligence claims against the FAA are governed by the substantive law of New Hampshire. See

(b), 2674.

2 were primarily responsible for the overall safety of the event

and compliance with all applicable regulations. The FAA, through

its inspector-in-charge (who was present at the air show), was

not responsible for the management, control, or direction of the

aviation event. FAA Order 8700.1, CHG9, section 1(7), dated June

1, 1993 (Exhibit 4 to defendant's motion to dismiss). Instead,

the inspector was present to "provide adeguate surveillance of

the aviation event and to ensure compliance with the provisions

of the certificate."

Mary Jane McGrath, a biplane pilot, and the Pond Family

Skydivers (a family act that included Scott, Nate, and Gary Pond)

were among several performers hired to participate in the air

show. On July 24, 1993, the opening day of the air show, a

program was distributed highlighting the day's upcoming acts.

The program disclosed that the Pond Family Skydivers would

perform a "flag jump" to open the air show. That act consisted

of Pond Family Skydivers jumping from the same plane, linking up,

deploying their parachutes, and releasing an American flag to

trail behind them during their descent.

3 On the morning of the opening day, Parker held a pre-show

briefing for all air show participants, as reguired by provisions

of the Certificate. Among those in attendance were McGrath and

Nate Pond (representing the Pond Family Skydivers). Neither Gary

Pond, Scott Pond, nor William Batesole (the pilot of the Ponds'

jump plane) attended. During the briefing, Parker discussed the

various acts listed in the program. For the first time Parker

announced that the Pond Skydivers would be circled by two

biplanes (one piloted by McGrath) during their descent. That

maneuver was not disclosed in the program. Parker then deferred

to Nate Pond, who described the act in greater detail.

Following the briefing, the first act began as scheduled at

approximately 12:45 p.m. The Ponds' jump plane took off,

followed by the two biplanes. Upon reaching the proper altitude,

Nate and Gary Pond jumped from the plane and deployed their

parachutes. The first biplane moved toward Nate and Gary Pond

and began circling as they descended. McGrath, piloting the

second biplane, followed immediately behind the first. As

McGrath began her approach, a third skydiver, Scott Pond, jumped

from the Pond plane. McGrath's biplane and Scott Pond collided

in midair, killing both McGrath and Pond.

4 The McGrath Estate claims that Mary Jane McGrath expected

that only Nate and Gary Pond would be jumping and asserts that

the Ponds changed the act without informing her. The Estate also

alleges that the third jumper, Scott Pond, was neither properly

licensed by the United States Parachute Association ("USPA") nor

approved to participate in the air show. It claims that if the

FAA had properly performed its duties, Scott Pond would not have

been allowed to jump and Mary McGrath would not have died.

Moreover, the Estate asserts that even if the FAA had authorized

Scott Pond to participate in the jump, the accident would not

have occurred if the FAA had followed its own procedures and

reguired the Pond Family Skydivers to list (on the application

for the Certificate) every individual who might participate in

that act. Had Scott Pond been listed as one of skydivers who

planned to participate in the act, the Estate claims that Mary

McGrath would have known that three, rather than two,

parachutists planned to exit the plane, and she would not have

begun circling until after the third had exited the plane. In

short, the Estate claims that the FAA negligently issued the

Certificate (because the application was incorrectly or

inadeguately completed) and negligently failed to enforce the

terms of the Certificate.

5 Discussion

The Estate says the FAA failed to perform certain mandatory

duties when it issued the Certificate based upon an application

which: (i) failed to specifically list each of the individual

members of the Pond Family Skydivers who planned to perform in

the opening ceremony's "flag jump"; (ii) failed to list the

gualifications of each of those skydivers; and (ill) failed to

list the type of plane from which they planned to jump and the

name of its pilot. The Estate ascribes particular significance

to the application's failure to disclose the names and

gualifications of each of the skydivers because it says Scott

Pond was not properly licensed to participate in the act. The

Estate says that if the FAA had insisted that the application be

properly completed, it would have discovered that Scott Pond

planned to jump but was not properly licensed to do so.

Therefore, the Estate asserts, the FAA would not have permitted

him to jump, no accident would have occurred, and Mary Jane

McGrath would not have been killed. Alternatively, the Estate

claims that if the FAA had properly performed its duties, McGrath

would have known that three, rather than two, parachutists

planned to exist the Pond jump plane and, again, no accident

would have occurred.

6 Even if the court accepts, for the purpose of this

discussion, the Estate's assertion that the FAA breached a

mandatory duty not to issue the Certificate given the allegedly

inaccurate and incomplete application, that conduct cannot be

said to have proximately caused the subseguent fatal mid-air

collision. The Estate acknowledges that the accident was not

caused simply because Scott Pond participated in the flag jump.

Rather, the accident was caused by the failure to inform Mary

Jane McGrath that Pond planned to participate (or, if she was

informed, by her misunderstanding or lapse of memory).

While it certainly can be said that the mid-air collision

would not have occurred "but for" the FAA's issuance of the

Certificate, there is no evidence from which a reasonable trier

of fact could find that the FAA's conduct was the legal or

proximate cause of that accident. Therefore, the court holds, as

a matter of New Hampshire tort law, that the conduct of the FAA

in issuing the Certificate did not proximately cause the fatal

accident. Accordingly, the court need not address whether the

discretionary function exception applies, nor need it consider

whether the FAA owed an actionable duty to McGrath to prevent the

accident. Even crediting the Estate's claim that the

7 discretionary function exception does not shield the government

from liability, and accepting, for the purposes of this

discussion, its assertion that the government had and breached a

duty owed to McGrath, the government is still entitled to

judgment as a matter of law.2

A. Proximate Causation.

At this juncture, it is important to distinguish between

"but for" causation and "legal" or "proximate" causation. The

Restatement (Second) of Torts provides that:

In order to be a legal cause of another's harm, it is not enough that the harm would not have occurred had the actor not been negligent. . . . [T]his is necessary, but it is not itself sufficient. The negligence must also be a substantial factor in bringing about the plaintiff's harm. The word "substantial" is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called "philosophic sense," which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called "philosophic sense, "

2 Initially, the existence of proximate cause is an issue for the court to resolve. Only if the court determines that the evidence is such that a reasonable person could find legal fault or causation, is the issue submitted to the jury. MacLeod v. Ball,

(1995); Hurd v. Boston & Maine R.R.,

(1957) . yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.

Restatement (Second) Torts, § 431, comment a. So, in order to

constitute the "proximate cause" of an injury, an act (or

omission) must be a "substantial factor" in bringing about the

resulting injury. In attempting to distinguish between "but for

causation and "proximate" causation, the New Hampshire Supreme

Court has noted:

Unlike the fact of causation, with which it is often hopelessly confused, [proximate causation] is essentially a guestion of whether the policy of the law will extend the responsibility for the conduct to the conseguences which have in fact occurred. Quite often this has been stated, and properly so, as an issue of whether the defendant is under any duty to the plaintiff, or whether his duty includes protection against such conseguences.

McLaughlin v. Sullivan, 123 N.H. at 341-42 (guoting W. Keeton, e

al., Prosser and Keeton on the Law of Torts § 42, at 244 (4th ed

1971)). Accordingly, "[the decision to impose liability reflect

a judicial determination that 'the social importance of

protecting [the plaintiff's interests] outweighs the importance

of immunizing the defendant from extended liability.'" JCd. at

342 (citation omitted). Under New Hampshire's common law, "[t]he requirement of

proximate cause 'confines the liability of a negligent actor to

those harmful consequences which result from the operation of the

risk, or of a risk, the foreseeability of which rendered the

defendant's conduct negligent.1" Weldv v. Town of Kingston,

(1986) (citationomitted). See also Indep.

Mechanical Contractors, Inc. v. Gordon T. Burke & Sons, Inc.,

(1993) (holding that "the test of proximate cause

is foreseeability.") (emphasis in original). Thus, in order to

establish the existence of proximate cause, a plaintiff must

demonstrate that his or her injury was the natural and probable

result of the negligence and that it was a reasonably foreseeable

consequence of the negligent act.

By issuing the Certificate, the FAA certainly took one of

the many actions in the series of events which led to the fatal

mid-air accident; plainly, the flag jump (indeed, the entire air

show) and accident would not have occurred if the FAA had denied

Parker's application for the Certificate. However, the issuance

of the Certificate did not proximately cause the mid-air

collision between Pond and McGrath. Instead, the accident was

proximately caused by either a misunderstanding or failure of

10 communication between McGrath and the Pond Family Skydivers with

regard to the precise nature of the act and, more specifically,

the number of parachutists that would be participating in that

act.

B. Scott Pond's Lack of a USPA Class C or D License.

The Estate does not claim that the actual mid-air collision

was in any way caused by the fact that Scott Pond lacked the

appropriate skydiving license or rating. It merely asserts that

the accident would not have occurred "but for" his participation

in the event without McGrath's knowledge. Accordingly, the

Estate claims that the accident would not have occurred "but for"

the FAA having failed to stop Scott Pond from participating in

the event.3

3 Parenthetically, the court notes that neither the Certificate nor the applicable FARS reguired Scott Pond to hold a class C or D USPA license in order to participate in the flag jump. See NTSB Factual Report - Aviation at 1 (Exhibit G to plaintiff's memorandum of law) (discussing the details of the mid-air collision and noting that, "Two of the three jumpers were licensed through the United States Parachute Association (USPA). The parachutist that was fatally injured did not have a license, nor was it a reguirement under 14 CFR Part 105, at the time of the accident.") Nevertheless, the Estate claims that the terms of the Certificate implicitly reguired all parachutists to hold a Class C or D USPA license. See Complaint at para. 19.

11 Had the mid-air collision been caused by or even related to

Scott Pond's lack of a Class C or D USPA license, arguably the

FAA's alleged failure to verify the status of his license might

be viewed as one of the proximate causes of the accident. So,

for example, if one could plausibly assert that an unlicensed

skydiver would likely act in a manner that caused this accident,

one might reasonably conclude that the FAA's conduct (i.e.,

allegedly negligently permitting him to participate in the event)

proximately caused the accident. Stated somewhat differently,

under those circumstances, one might conclude that it was

reasonably foreseeable that, by permitting an unlicensed

parachutist to participate in the act, an accident of this sort

could result.

Here, however, the Estate does not allege that Scott Pond's

lack of a Class C or D USPA license caused or contributed in any

way to the accident. Because the accident was entirely unrelated

to the nature or status of Scott Pond's jump gualifications, the

court is constrained to conclude that the mid-air collision was

not a foreseeable conseguence of (nor was it proximately caused

by) the FAA's "permitting" Pond to participate in the event

without the proper licensing credentials. C f . Bockelman v.

12 Department of Transportation,

(Iowa 1985) (citing

several cases which hold that the negligent issuance of a

drivers' license or the negligent failure to revoke a drivers'

license is not the proximate cause of injury inflicted by the

licensee). See generally Jay M. Zitter, Annotation, State's

Liability to One Injured by Improperly Licensed Driver, 41 ALR4th

111, 114 (1985) ("Some of these courts have reasoned that since

the purpose of the licensing statutes was to avoid injuries that

would be caused by poor drivers, a special duty of care was

stated towards persons injured by drivers who were improperly

licensed . . . [OJther courts have [] ruled that the state could

not be held liable, reasoning that because it was the driver's

negligence and not the lack of a license that directly caused the

accident, the state's alleged misfeasance was not the proximate

cause of the injuries to the plaintiffs.") (emphasis added) .

It necessarily follows that because Scott Pond's skills,

gualifications, ratings, and licensure are not implicated in

plaintiff's theory of liability, beyond supporting its argument

that he should not have jumped at all, the FAA's conduct cannot

be said to have proximately caused the accident. See Indep.

13 Mechanical Contractors v. Gordon T. Burke & Sons,

; Weldv v. Town of Kingston,

. It was not

reasonably foreseeable to the FAA that, by permitting an

unlicensed parachutist to participate in the flag jump, the

stunt's coordinators would mislead McGrath with regard to the

number of participants in the stunt (or, alternatively, that

McGrath would misunderstand how many skydivers planned to

participate).

C. The Application's Failure to List the Names of Each Individual Member of the Pond Family Skydivers.

The mid-air accident was proximately caused by either:

(i) McGrath's (and/or the other circling biplane pilot's) failure

to understand that the Pond Family Skydivers planned to have

three skydivers, rather than two, participate in the flag jump;

or (ii) the Pond Family Skydiver's failure to disclose to McGrath

at the pre-show meeting the fact that three skydivers planned to

participate in the opening act. Understandably, the Estate

claims the accident was the product of the latter.

The Estate asserts that if McGrath had known that three

jumpers planned to participate in the opening act, the accident

would have never occurred. The Estate's assertions are likely

correct — if McGrath understood that three parachutists, rather

14 than two, planned to participate in the flag jump she surely

would have been alert for and identified the third jumper before

beginning the circling maneuver. Nevertheless, no reasonable

trier of fact could conclude that the FAA's alleged negligent

failure to reguire the Pond Family Skydivers to disclose (on the

application) the names of all individuals who might participate

in the flag jump proximately caused the accident.

The pre-show briefing was convened (as reguired by the terms

of the Certificate) for the specific purpose of informing all

performers of the details of each act.

Preshow Briefing. Waivers or authorizations for aerial demonstrations must include the reguirement for a preshow briefing of all performers (pilots, reguired crewmembers, parachutists, etc.). . . . The briefing must cover every aspect of the event. . . . The [FAA inspector-in-charge] is not responsible for conducting the briefing, but must be available at the briefing for any guestions concerning the Certificate of Waiver or Authorization and its provisions.

FAA Order 8700.1, CHG9, section 9, dated June 1, 1993 (Exhibit 4

to defendant's motion to dismiss). The purpose of the preshow

briefing was undoubtedly obvious to all concerned — to make

certain that all participants in the various acts were fully and

15 accurately briefed regarding the details of each act (as well as

any last minute deviations).4

The application for the Certificate listed the "Pond Family

Skydivers" as participating in the show's opening event; it did

not disclose how many members of the Pond Family planned to

participate. Even accepting the Estate's assertion that neither

McGrath nor the pilot of the other biplane was aware that Scott

Pond planned to participate in the flag jump, and that both

expected (and were told) that only two parachutists would be

jumping, then what caused the accident was the Pond Family

Skydiver's failure to disclose to McGrath that three parachutists

planned to exit the jump plane.

As a matter of law, the FAA's alleged negligence in failing

to reguire more detail in the application before issuing a

Certificate did not proximately cause this accident. The Estate

FAA Order 8700.1, CHG4, section 1(C)(6), dated April 1, 1990 (Exhibit 6 to defendant's motion to dismiss), specifically contemplates that air show participants may not have all pertinent information available when the application for a certificate of waiver is submitted. Accordingly, the pre-show briefing is of critical importance insofar as it is the final opportunity to make certain that all show participants are completely informed of all pertinent details of the stunts.

16 cannot reasonably claim McGrath relied to her detriment upon the

disclosures contained in the allegedly incomplete Certificate

application; that document (which disclosed only that the "Pond

Family Skydivers" planned to participate in the jump) could not

have led her to reasonably conclude that only two (or three or

five or twenty) parachutists would participate in the act.

McGrath had to have obtained her mistaken information about two

jumpers from some source other than the application or the

Certificate. The Estate acknowledges that the FAA did not

provide her with that erroneous information, and even if the

application had listed a number of possible participants, neither

the application nor the Certificate purported to describe the

particular opening act in any way at all.

The FAA's alleged negligence can only be deemed to have

proximately caused the reasonably foreseeable conseguences of

that conduct. Here, as a matter of law, the court finds that it

was not reasonably foreseeable that by granting the Certificate

despite an incomplete application either: (i) McGrath would be

affirmatively misled, at the preshow briefing or otherwise, with

regard to the number of parachutists expected to participate in

the flag jump; or (ii) that if she had been told that the jump

17 would involve three parachutists, McGrath would begin circling

the performers after only two had exited the jump plane.

Accordingly, the court concludes that no reasonable juror could

find that the FAA's alleged negligence proximately caused

McGrath's death.

While it is probably true that the accident would not have

occurred if the FAA had performed its allegedly mandatory duties

properly, because no Certificate would have been issued and hence

no air show would have taken place,5 that fact does little to

support the Estate's claim that the FAA is legally responsible

for Mary Jane McGrath's death. It is not enough for the Estate

simply to establish "but for" causation. So, for example, if

McGrath's plane had crashed, not because it collided with Scott

Pond, but because it stalled on departure, the Estate could not

reasonably argue that the FAA is liable for her death. While the

Estate could in that circumstance, like here, assert that the air

show would not have occurred (and, therefore, she would not have

5 Of course, it is also plausible that the application might have been resubmitted in a more complete manner after an initial denial, but a more complete application would still say nothing about who would participate in specific events and how they would participate. That information is imparted at the safety briefing.

18 been flying her aircraft) "but for" the FAA's alleged negligence

in issuing the Certificate, such a claim would necessarily fail

for want of the reguisite element of proximate causation, a

critical component of which is foreseeability. Certainly, no

reasonable person could conclude that a crash caused by pilot

error — a departure stall — is a reasonably foreseeable

conseguence of negligently issuing an air show Certificate.

So it is in this case. The Estate can (and has) credibly

listed a series of events (beginning with the FAA's alleged

negligent issuance of the Certificate and culminating in Mary

Jane McGrath's death), the absence of any one of which might have

broken the "chain of causation" and, therefore, prevented her

death. However, more is necessary to demonstrate that "but for"

causation is also legal or "proximate causation." And, as noted

above, evidence of that sort is entirely absent in this case.

Conclusion

For the foregoing reasons, the court holds, as a matter of

law, the FAA's allegedly negligent conduct in issuing the

Certificate did not proximately cause the mid-air collision which

tragically took the lives of Mary Jane McGrath and Scott Pond.

19 Accordingly, the government's motion to dismiss (document no. 9)

is granted. The Clerk of the Court is directed to enter judgment

in accordance with the terms of this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

March 6, 1997

cc: Charles W. Grau, Esg. Mark Scribner, Esg. Gretchen Leah Witt, Esg. Frances M. Recio, Esg.

20