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Peggy S. Legrande v. United States of America

March 31, 2011

PEGGY S. LEGRANDE, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Plaintiff Peggy LeGrande brought this negligence action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2674. LeGrande alleges that the defendant United States was responsible for injuries which she suffered while working as a flight attendant on Southwest Airlines Flight 2745 ("Flight 2745") when Flight 2745 hit turbulence. LeGrande alleges that Federal Aviation Administration ("FAA") Air Traffic Controllers negligently failed to warn the plane's pilot that severe turbulence was forecasted. Both LeGrande and the United States move for summary judgment. For the following reasons, LeGrande's motion for summary judgment is denied and the United States' motion for summary judgment is granted.

I.BACKGROUND

LeGrande alleges that while she was working as a flight attendant on Flight 2745 on February 10, 2006, she fell when the airplane hit severe turbulence resulting in her suffering physical injuries. (Am. Compl. ¶ 4, 5, 9 and 10.)*fn1 After the FAA rejected LeGrande's administrative claim, LeGrande brought this FTCA claim against the United States.

A. Factual Background

1. Overview of FAA Air Traffic Control Responsibilities Relating to Weather

The FAA provides air traffic control services to airplanes. The Cleveland Air Traffic Control Center ("Cleveland Center"), which was providing services for Flight 2745 at the time of the turbulence,*fn2 is responsible for planes flying at certain altitudes over a six-state area that is divided into fifty-six sectors. (Def.'s Stmt. ¶ 36.)*fn3 Air Traffic Control's ("ATC") primary purposes are to: "(1) prevent a collision between aircraft operating in the system, (2) to organize and expedite the flow of traffic, and (3) to provide support for national security and homeland defense." (Id. ¶ 37.) Air traffic controllers may also provide lower-priority services, such as broadcasting certain specific weather information, depending on controllers' workload and other factors. (Id.) Air traffic controllers communicate with pilots only via radio. (Id. ¶ 38.)

As part of an interagency agreement between the FAA and the National Weather Service ("NWS"), the NWS has Center Weather Service Units ("CWSU") at FAA centers. (Pl.'s Stmt. ¶¶ 35-37.) CWSU meteorologists provide weather information for ATC by issuing various weather products, including a Central Weather Advisory ("CWA") and Meteorological Impact Statement ("MIS"). (NWS Instructions 10-803, Def.'s Ex. N (Doc. 60-14), at 7.) CWSU meteorologists provide weather briefings for supervisors at Cleveland Center at the beginning of the 7:00 AM and 3:00 PM shifts. (Pl.'s Stmt. ¶ 40.) After the CWSU briefings, the supervisors then generally brief the controllers. (Id. ¶ 42; Leonard Dep. at 21-22.)

Air traffic controllers are trained to read the products issued by CWSU meteorologists that are printed at the controller's station on General Information Strips; controllers are not trained to forecast or predict weather events or provide pilots with any weather-related information not contained on an Information Strip. (Def.'s Stmt. ¶¶ 44, 50.) At Cleveland Center, the controllers read the information contained on the General Information Strip out loud over the radio one time so that all pilots on the frequency can hear it, and then place the strip in an "out box" indicating it has been read on the frequency. (Def.'s Stmt. ¶ 50.) If the information strip includes certain significant weather, the controller, after reading it, informs pilots that more detailed weather information can be heard on the Hazardous In-flight Weather Advisory Service ("HIWAS"). (Id.) HIWAS is broadcast on a different radio frequency and is dedicated solely to disseminating hazardous weather information. (Id.)

According to the Air Traffic Control Handbook, FAA Order 7110.65P (hereinafter "ATC Handbook"), "Controllers are required to be familiar with the provisions of this order that pertain to their operational responsibilities and to exercise their best judgment if they encounter situations that are not covered by it." (ATC Handbook, Pl.'s Ex. R (Doc. 63-17) and Def.'s Ex. CC (Doc. 68-10), § 1-1-1.) The ATC Handbook states that Controllers "shall advise pilots of hazardous weather that may impact operations within 150 [nautical miles] of their sector or area of jurisdiction. . . . The broadcast is not required if aircraft on [the controller's] frequency(s) will not be affected." (Id. § 2-6-2). The hazardous weather information contained in a HIWAS broadcast includes an Airmen's Meteorological Information ("AIRMET"), Significant Meteorological Information ("SIGMET"), Convective SIGMET, Urgent Pilot Weather Reports ("UUA"), and CWAs. (Id. § 2-6-2.) Air traffic controllers at Cleveland Center do not do HIWAS broadcasting. (Id.; Behary Dep. at 50.) In contrast to the FAA's ATC, the FAA's Flight Service Stations, which are run by an independent contractor, have the primary purpose of providing weather information to pilots operating in the air traffic system. (See NWS Instructions 10-803 at 4-5; see also Turner Rep. at 6.) Personnel at Flight Service facilities are trained in the weather briefing process and provide the majority of weather information to pilots. (Turner Rep. at 6.)

NWS Weather products are incorporated into a weather package given to the pilots and flight dispatcher prior to a flight. (Pl.'s Stmt. at 23; Miga Dep. at 130.) An airline's flight dispatcher is required to keep pilots apprised of weather conditions both before and during a flight, including giving the pilots all available weather reports and forecasts of weather phenomena "that may affect the safety of flight." (Def.'s Stmt. ¶ 9.)

Because turbulence occurs and changes extremely rapidly and requires the subjective analysis of multiple sources of data, it is extremely difficult to predict and forecast. (Def.'s Stmt. ¶¶ 41, 70.) Accordingly, there is no weather radar that displays turbulence, and a meteorologist generally knows if turbulence is actually occurring only based on reports from pilots. (Id. ¶¶ 43, 71.) Pilots report turbulence, as well as other weather conditions, to ATC in reports called "PIREPS."

2. CWAs, MISs, and PIREPS

Three of the weather products used by the FAA, and relevant to this case, are CWAs, MISs, and PIREPS. While CWAs and MISs are issued by CWSU meteorologists, PIREPS are reports of bad weather conditions from pilots. A CWA is an "aviation weather warning for conditions meeting or approaching national in-flight advisory (AIRMET, SEGMET or SIGMET for convection) criteria . . . [it] is primarily used by air crews to anticipate and avoid adverse weather conditions in the en route and terminal environments." (NWS Instructions 10-803 at 11.) A CWA is specifically tailored to pilots and has a narrow focus, warning of specific weather issues for approximately two hours after its issuance. (Def.'s Stmt. ¶ 76.) Meanwhile, an MIS is an "unscheduled flow control and flight operations planning forecast . . . for personnel at [ATC centers] responsible for making flow control-type decisions . . . enabl[ing] ATC facility personnel to include the impact of specific weather conditions in their flow control decision making." (NWS Instructions 10-803 at 10; see also NWS Product Description for MIS, Def.'s Ex. S (Doc. 60-19) at 1.) The FAA uses an MIS to predict traffic volume and flow so that the FAA can properly staff air traffic control positions; each MIS specifically states that it is "FOR ATC PLANNING PURPOSES ONLY." (Def.'s Stmt. ¶ 56.) According to the NWS's product description, an MIS should be issued for certain conditions, including moderate or greater turbulence, if "in the forecasters [sic] judgment, the condition[] . . . will adversely impact the flow of air traffic within the Air Route Traffic Control Center area of responsibility" and "the forecast lead time (the time between issuance and onset of a phenomenon), in the forecasters [sic] judgment, is sufficient to make issuance of a CWA unnecessary or premature." (NWS Product Description for MIS at 1.) Although CWAs and MISs are both publicly available in real time on the internet, a CWSU meteorologist creates a CWA intending it will be used by a pilot but creates an MIS with the intention it will be used internally and not by pilots. (Def.'s Stmt. ¶¶ 66, 72, 76; Janus Decl. ¶¶ 5-7.)

When a CWSU meteorologist issues a CWA, the controllers make a one-time broadcast to advise that more information can be obtained through HIWAS or a Flight Service Station. (Def.'s Stmt. ¶ 78.) In contrast, a CWSU meteorologist's MIS is not printed on a General Information Strip, is not read to pilots by controllers, and pilots are not generally familiar with what an MIS weather product is. (Id. ¶¶ 58, 61; Behary Decl. ¶ 21.) The FAA Facility Operation and Administration Order does not require any specific action after a CWSU meteorologist issues an MIS. (Defs,' Stmt. ¶ 86; FAA Order 7210.3T, Def.'s Ex. R (Doc. 60-14).) The information contained in an MIS is not listed as a type of hazardous weather information that is to be included in a HIWAS broadcast. (See ATC Handbook § 2-6-2.) Additionally, Southwest Airlines has not authorized the use of an MIS for flight operations. (Def.'s Stmt. ¶ 59.)

PIREPS are put into the ATC computer system and broadcast over relevant controllers' frequencies to other planes. (Id. ¶ 40.) Additionally, PIREPS are immediately dispersed throughout the aviation weather system to airlines and pilots and are also made freely available to anyone over the internet. (Id. ¶ 46-47.) Cleveland Center receives hundreds to thousands of PIREPS every day. (Id. ¶ 39.) In general, PIREPS provide useful weather data for 30 to 60 minutes, unless pilots continue to report the same weather condition in the same location. (Id. ¶ 52.) Controllers do not read old PIREPS over and over again on a frequency because the information is available from other sources, such as an airline's dispatcher or an FAA Flight Service Station, and the controller's radio frequency would be unusable for ...


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