United States District Court, N.D. Illinois, Eastern Division
May 2, 2005.
DOLORES C. PINO, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER:
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 right side of the plaintiff's body, and thereby caused
physical injury to her," including damaging her hearing. Id. ¶¶
The government has moved for summary judgment. The Court may
grant the motion only if there is no genuine 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 assessing 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
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.*fn1 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.
LR 56.1(b)(3)(A) Stmt. ¶ 5. 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 (7th 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 Plaintiff 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.
Pl. 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 (7th 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
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 the doctrine of
res ipsa loquitur. See Pl. 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 asks
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 required 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. Federal
Aviation Admin., 830 F.2d 1044, 1048-49 (9th Cir. 1987);
Colorado Flying Academy, Inc. v. United States, 724 F.2d 871,
876-77 (10th Cir. 1984).
For the reasons stated above, the Court grants the government's
motion for summary judgment [docket # 25-1]. The Court denies
plaintiff's motion for denial of the motion for summary judgment
[docket # 39-1]. Plaintiff's 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.