Suits over DCA disaster will struggle to overcome discretionary function exception to sovereign immunity

View on my approach to DCA on a 2020 Southwest flight.
RJ Peltz-Steele CC BY-NC-SA 4.0

Media coverage of the air disaster at Reagan Washington National Airport (DCA) is moving on to prospective litigation, and abundant news outlets are warning aptly that the road to compensation for victims' families will not be smooth.

Potential defendants include the Federal Aviation Administration (FAA), which employs air traffic controllers; the U.S. military, which owned and crewed the Black Hawk helicopter in the crash, and American Airlines, which bears responsibility for the regional jet in the crash.

As the facts have shaken out thus far, with black-box content yet to be reported at the time of this writing, it's hard to see any fault on the part of American Airlines or its commercial operator. The plane had banked to change runways per traffic control instructions and was on a lesser used but still ordinary approach when it collided with the Black Hawk. There's likely nothing the pilots could have done to avoid the collision, if they even saw it coming.

Responsibility on the part of air traffic control has focused on the fact that one controller was managing both helicopter and plane traffic, while sometimes there are two. Thus far, though, one- or two-person staffing of the two traffic streams seems to be a choice of practice, based on the volume of traffic, rather than a violation of any rule.

Early armchair analysis points to responsibility on the part of the military. The helicopter seems to have been above 300 feet, for reasons unknown, when it was required to be at or below 200 feet. The pilot said he saw the plane and would avoid it, though it's not clear he saw the right plane. 

My cousin is a military pilot and has flown in this dense D.C. thicket, inset from SkyVector (DCA). He told me that avoiding flight paths entirely would be prohibitive, but that following the 200' rule should have averted collision even if the pilot mistook the approach of the plane.

With government defendants in the sights of plaintiff lawyers, frantic analysis is no doubt underway in an attempt to circumnavigate federal sovereign immunity.  Within the statutory framework of sovereign immunity, the concept of "discretionary function immunity" looms large in this case. Some time back, I recorded a video for SCOTUSbrief about a case in which discretionary function immunity figured, if collateral to a problem of a federal agency that doesn't have it. Here, the defendants do.

The instant case, such as it is as yet, is reminiscent of United States v. Varig Airlines (U.S. 1984), in which, in 1973, a fire on board a trans-Atlantic Boeing 707 flight killed 123. The plaintiffs blamed in part the FAA, alleging negligence in the issuance of a safety certificate.  The Supreme Court held unanimously that the FAA was shielded by discretionary function immunity.

The purpose of discretionary function immunity—which is really an exception to waiver of sovereign immunity in the Federal Tort Claims Act—is to preclude the courts from second-guessing policy determinations by the political branches of government. The government is willing to concede liability when it negligently deviates from obligatory practices, the logic goes, but claimants ought not be able to challenge policy choices just because they turned out to be bad ones, that is, resulted in injury.

The DCA crash reminded me of an excellent article from seven years ago on sovereign immunity and discretionary function, discussing Varig, in Advocate magazine, by L.A. attorney Steven B. Stevens. He parsed the doctrine.

If the use of only one air traffic controller is indeed customary and not contrary to any rule, then probably that's a staffing decision shielded against liability as discretionary function. The military might be vulnerable, though, on the issue of the Black Hawk's altitude. The 200' limit is an FAA rule for the Potomac-DCA corridor, CNN reported, and my cousin confirmed.

Even upon circumvention of immunity, plaintiffs will have to prove the usual negligence elements of unreasonable carelessness and causation with the crash. Black-box data will help, and plaintiffs might as well avail of the doctrine of res ipsa loquitur. "RIL" can afford plaintiffs a favorable inference when evidence, such as the pilot's motive, is unascertainable, and plane crashes, historically, have been fertile ground for invocation of the rule.

All that said, litigation against the government might never reach an immunity determination. Reuters reported on the history of limited government settlements in such cases.

As a frequent traveler to DCA, I hope that the airport can be made safer while preserving convenient access to the capital.

Possibility that 'Titan' victims died instantly works curious disadvantage in tort claims over disaster

Still image of Titan wreckage from USCG video (below).

Hearings over the Titan submersible disaster point to the problem of compensation for instant death in tort law.

As The New York Times reported yesterday (subscription), a U.S. Coast Guard (USCG) inquiry into the underwater implosion of the Titan submersible (60 Minutes Austl.) has raised doubts over whether the five persons who died on the voyage knew they were in trouble. The family of one crew member filed a $50 million lawsuit against the sub manufacturer in August (N.Y. Times).

Titan was capable of dropping all of its weights to surface rapidly in an emergency. It was known before the present inquiry that Titan had dropped weights before the implosion, and experts read that as a sign that the crew knew they were in trouble. The inquiry so far has revealed, though, that Titan might have dropped only some weights as part of its routine surfacing procedure, and that communications with the surface suggested no cognizance of the impending disaster.

The rapid compression resulting from compromise of the Titan's hull at a depth of 3,346 meters (10,978 feet) would have raised the temperature in the sub so quickly as to incinerate the interior in a split second. So if the crew did know there was trouble, they did not know for long.

 Remotely-operated-vehicle video of Titan tail cone on seafloor (USCG).

Besides the natural desire of victims' families to understand what their loved ones experienced in their last moments of consciousness, the question of conscious awareness of impending death points to a curious problem of damages doctrine in tort law.

In its long history, Anglo-American common law has struggled with the problem of compensation in event of accidental death. The conventional approach to calculate damages in tort law asks what it would take to restore a plaintiff to status quo ante, as if the accident had not occurred. When a loss is non-economic, such as physical injury or emotional distress, the loss is nonetheless quantified as financial compensation.

The problem in a death case, besides the obvious difficulty of quantifying life itself, is that there is no plaintiff to compensate. The person who experiences loss of life can in no sense be made to feel restored; she or he can derive no satisfaction from a financial award, nor even spend it. So what is the social utility in transferring wealth from a responsible defendant to a non-corporeal estate?

Tort law does mean to accomplish more than mere compensation. Tort awards set norms for socially acceptable conduct, deter others from misconduct, and keep the peace by cooling the vengeful desires of a victim's kin. So the law of accidental death came around in the 19th and 20th centuries to compensate surviving family for at least some of the losses that they suffer upon the death of a loved one; and also to compensate a decedent's estate for what the decedent suffered while alive.

That latter measure incorporates a serious limitation: the decedent's suffering necessarily ended at the time of death. Compensation of an estate thus poses a peculiar problem in a narrow class of cases. Should the estate receive anything at all when a person dies instantly? If so, what is the measure of suffering?

In modern times, airline disasters especially added another twist to the problem. One could imagine that airplane passengers sometimes are conscious of an impending crash. They therefore suffer emotionally. But they suffer before the crash. American law on negligence and strict liability compensates emotional distress only when it is a consequence of physical injury. The doomed airline passengers experienced physical injury and death simultaneously; there was no consequential emotional distress. So there is, again, no basis on which a tort award can be measured out.

Is there really, though, a legally significant difference between, on the one hand, suffering for moments after impact and before death, and, on the other hand, suffering for moments before impact and before death? Personally, I'd like to avoid both. And the toll on kin, the revelation of a loved one's suffering for moments in anticipation of death, seems about the same whether before or after impact.

Accordingly, many courts faced with such cases have been willing to suspend the usual rule of causation and award an estate damages for "pre-impact fear," if only in this narrow class of cases when it could be proved, at least by circumstantial evidence, that the decedent suffered emotional trauma upon an awareness of impending death.

The solution creates collateral problems, namely: in evidence, as to how one proves the pre-impact state of mind of a person who perished; and in torts, in the valuation of damages, for fear that jurors might let the fact of physical fatality improperly amplify their assessment of only momentary and purely emotional suffering. These problems are surmountable, if one decides they should be, through adversarial process, careful jury instructions, and court supervision.

American jurisdictions remain reluctant, though, to compensate for life itself. So damages awarded to wrongful death complainants, the kin of decedents, still are measured according to their losses, such as financial support and loss of companionship. However remunerative, that approach can leave victims' families feeling like the lives of their loved ones were undervalued by the legal system, and the loss of life was insufficiently impressed upon the defendant. After all, if there were no kin, there would be no liability.

An award for pre-impact fear usually is small, because of the short time frame in which the harm occurs. But the award can be important symbolically to victims' families, because, in the absence of compensation for life itself, the modest award for pre-impact fear at least recognizes suffering in the decedent's confrontation with mortality.

In the Titan case, then, a revelation of instant death might bear a bittersweet edge for families. Certainly, they would like to know that their loved ones did not suffer at all and had no cognizance of their fate aboard the sub. At the same time, a revelation of instant death will mean that the victims bore no compensable suffering, even pre-impact. In tandem with a failure to compensate for life itself, victims' families might well conclude that the legal system failed to recognize the fullness of their loss.

There are, by the way, better ways to handle wrongful death. The gold standard for my money was articulated by my friend and former colleague Andrew McClurg in his Dead Sorrow: A Story About Loss and a New Theory of Wrongful Death Damages, 85 B.U. L. Rev. 1 (2005).

Follow the dollar, name politicians in train disaster

Sen. John Thune (R-S.D.) blocked rail safety measures.
Medill DC via Flickr CC BY 2.0

Government "tried" to regulate rail, but industry "resisted" and "won."

That's what I heard tonight in a news break on National Public Radio about the East Palestine, Ohio, derailment disaster.

As if public safety regulation were a football match. Government just couldn't stop that offensive drive late in the second half.

No.

Blame industry, sure.  There's plenty blame to go around. But profits ahead of people? You can't be surprised. That's American industry's MO. And, to be fair, as long as no one gets hurt, we applaud.

Rather, save a big helping of blame for government. The same government now in Ohio trumpeting how Norfolk Southern will be held accountable.

Buck passed.

Government wasn't defeated in some contest with industry on the gridiron. Government failed. The people who are the government lacked the will to do the right thing, or worse, chose to do wrong.

Lee Fang for The Intercept dug into how the U.S. Senate, namely Sen. John Thune (R-S.D.), blocked industry safety regulations eight years ago.

Follow the dollar.  Thune turns up, too, as a top-five recipient of rail lobbying dollars in 2021-22. Here's that list from Open Secrets:

• Rep. Sam Graves (R-Mo.), $107,343
• Sen. Jerry Moran (R-Kan.), $85,548
• Sen. Eric Schmitt (R-Mo.), $72,900
• Sen. John Thune (R-S.D.), $69,550
• Rep. Earl Blumenauer (D-Ore.), $61,015

I think I know where we should send the contaminated soil from Ohio.

Nonprofit, nonpartisan Open Secrets has plenty of data. Check it out. If your congresspersons are on Big Rail's donee roster, don't send them back to Washington to try again.