A horrible legal precedent may have been established in a Chicago courtroom on March 8, 2004, in the case of Canty (N5323K)/Walker (N2071L) vs. Segal (N305MM), in which the defendant, a general aviation pilot dealing with a landing gear problem, was found to have been negligent for allegedly monopolizing the Meigs Field tower frequency and distracting two pilots from their see-and-avoid responsibilities. Walker, the pilot of a Beechcraft A-36, along with two passengers, and Canty, the pilot of a Cessna C-172 with three souls on board, collided in midair on July 19,1997, killing all.
Because I am a licensed general aviation pilot, as well as an aviation insurance adjuster and investigator, I was retained by the insurer of the defendant, Marshall Segal, to be present in the courtroom and observe the progress of the jury trial. My assigned task was to assist defense counsel in pilot and aviation issues and to try to put myself in the non-aviation jurors' seats and report each day what I, as the unofficial 13th juror, saw and heard. I had not realized before what a difficult assignment this was going to be, not only because of the long days in court coupled with late nights of writing reports. The most difficult thing was sitting quietly in the courtroom when I wanted to jump up and scream, "That's a misrepresentation," or, "That's not true," when testimony was contrary to the facts or my aviation training.
Segal had a rather gruff demeanor that came across negatively to the jury. It was alleged that he had been disruptive and had monopolized the radio while dealing with his gear difficulties. The plaintiff's counsel played recordings of Segal's radio transmissions with air traffic control during the trial, and I expected to hear him rambling on the air, the kind of pilot who is so unprofessional that he gives me fits. Such was not the case.
Segal's transmissions were concise, professional, and to the point, and he worked very well with the controller at Meigs. As a matter of fact, the controller testified that Segal had done everything perfectly.
Segal had a yellow gear-in-transit light, a trouble indicator that the landing gear in his Beechcraft A36 TC had not fully extended and, as a result, he had been invited by the Meigs controller to do a fly by, which confirmed that the gear was not down and locked. He then flew out over Lake Michigan to a visual flight rule reporting point to analyze and, if possible, correct his gear problem. This all happened 10 or 12 minutes before the two accident pilots were even in the area or on the Meigs frequency.
Distractions
The involved area is at the west shore of Lake Michigan, directly in front of the numerous high-rise buildings comprising the skyline of downtown Chicago. The museums, Wrigley Field, Soldier Field, Grant Park, and many other attractions obviously would have been sights to point out to the tourists in Canty's Cessna C-172.
The area is under the Class B airspace of O'Hare International Airport and close to Midway Airport's airspace, where airplanes need to stay under altitudes of 1,900 feet mean sea level or 1,300 feet above ground level. There is a marked visual flight rule corridor on the Terminal Control Chart right along Lake Michigan, and this funnel makes it a very busy place and requires pilots to pay close attention to their surroundings.
Canty, a certified flight instructor, was flying an introductory sightseeing flight from Lansing Airport, located some 25 miles away, at the south end of Lake Michigan. She spoke with Meigs tower and described her intentions of following the lake shore northbound and reporting to the tower when she was performing a 180 degree turn to head back southbound. She had been instructed by the Meigs controller to report abeam on her way back.
Just north of Navy Pier, she made her turn southbound and made that report to the controller. Contrary to her instructions, however, she did not report being abeam the airport. The controller testified that such a report would have been the trigger to alert her that two airplanes were working in the same general area. In the controller's thinking, she had traffic north and Segal 6.2 miles southeast over Lake Michigan dealing with his gear difficulties.
Walker then reported that he was nine miles south and inbound with x-ray, the hourly code for current weather. In reality, he was nine miles southeast. Segal heard this transmission and reported that he was 1,700 feet mean sea level.
The tower informed Segal that Walker was looking for him. That particular transmission was blown up and printed on display boards and repeated several times until the seed was planted in the jury's mind that Walker was spending all of his time and energy looking for Segal. We know that is not what happens when you fly visual flight rule, but that is the impression that was planted in the jury's mind.
One minute and 31 seconds later, Walker was cleared to land by air traffic control and he acknowledged, saying "Cleared to land, three six seven one lima, still no joy on the crib traffic." This was another quote from the tower transcript that was blown up for the jury to see and remember. The meaning of this transmission was that Walker could not locate Segal visually where Segal was understood to be.
Many of the actions taken by Segal were good and proper choices, but were presented as sinister and self-serving. Even selected wording in the Beechcraft Aircraft Operating Manual was made a major issue regarding the gear-extension procedure. All of these were, in my opinion, simply smoke screens for non-pilot jurors.
Very recently, a pilot flying from a northern Chicago area airport also could not get his gear down and spent two and a half hours talking to the DuPage Airport tower, circling, performing fly bys, and following all of the procedures prescribed for that emergency. He was recognized in the local newspapers as a hero. As performed by Segal, the identical procedures were characterized in court as negligent.
The final part of the plaintiff's case was to obtain admissions from the Meigs controller that it was her job to keep traffic separated in her area. She testified that a pilot should be able to assume that if he is cleared to land, no traffic should be between his aircraft and the airport or, if there were, it would be pointed out. The impression left with the jury was that it was no longer Walker's job to see and avoid, as that responsibility had been eliminated by Meigs tower when he was cleared to land.
Another graphic aid used by the plaintiff's counsel was an animation showing that both pilots, facing an imminent head-on collision, had only four seconds to react. This was in comparison to the National Transportation Safety Board's report that estimated that the pilots had 25 and 27 seconds, respectively, on this clear, 10-mile visibility day.
Canty passed Meigs, did not report abeam, and descended to 1,500 feet, the traffic pattern altitude, right into the final approach of Walker. The two pilots and all five passengers were killed, and both aircraft were destroyed.
Apportioning Blame
The testimony continued for 10 days and the defense counsel did a great job representing the insurer and the insured. All the issues stemmed from the responsibility to see and avoid. The plaintiff's theory of liability was that Segal had monopolized and confused the tower controller, and distracted the converging traffic on the tower radio frequency, by trying to work on getting his airplane ready to land, even though he was some six miles southeast of Meigs Field while doing so.
Illinois is a modified comparative negligence state, so the judge's instructions to the jury were to compare the pilots individually as to their respective share of negligence: Canty vs. Segal and Walker vs. Segal. The last thing that the jury heard during closing arguments was the plaintiff's attorney giving his last comments to the effect that Segal was "Big Shot blabbing, blabbing, blabbing, and all that you heard from defense counsel and his experts are a bunch of lies." The jury was left with the impression that all see-and-avoid responsibility had been eliminated and that Walker was occupied watching for Segal.
The jury recognized Canty's responsibility and that Segal was less responsible than she. Such was not the case when the jury compared Walker and Segal. The jury felt that Segal, in talking to Meigs tower, took on the responsibility for the accident to a greater degree than the pilot who flew his airplane into an oncoming aircraft. The jury awarded $2.2 million. This was offset by other recoveries, but still a major verdict against a pilot who was out on a beautiful day to enjoy the clear summer late afternoon and did nothing wrong.
The precedent set by this case is horrible. A comparable example might be a student pilot who is lost and calls air traffic control for a steer to find his way home. He could be found to be a contributing factor in an accident if something should happen in that controller's sector while dealing with the student pilot's predicament. The jury instruction in the case was similar to picking two witnesses to an auto accident, both standing by the side of the road and asking them who had been the most responsible for the accident.
In that Walker was actually involved in the mishap, let's go one step further and assume that he was a driver who had been broadsided by someone disobeying a red light and that his attorney compared him to the roadside witness. Between the two, the witness was found more responsible for the accident than the driver. Such was the verdict that was handed down a year ago last month.
William L. Hall is president of LJ Shaw and Co., an independent claim adjustment firm in Lombard, Ill., as well as past president of the Organization of Flying Adjusters.
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