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Court Clears Aeromexico in Fatal Crash : Disaster: Appeals panel upholds decision that FAA and the pilot of a small plane were responsible for 1986 Cerritos midair collision that killed 82. Action may clear way for U.S. payments to some families.

September 21, 1993|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

A federal appeals court in San Francisco ruled Monday that Aeromexico pilots bear no responsibility for the 1986 Cerritos air crash that resulted in 82 deaths, signaling the end to a lengthy court battle where the surviving families of some victims have yet to be compensated by the U.S. government.

The U.S. 9th Circuit Court of Appeals rejected a Justice Department argument that because an Aeromexico DC-9 jet crashed into a small plane, Aeromexico had to be at least partially liable for the crash.

At a 1989 Los Angeles trial, U.S. District Judge David V. Kenyon exonerated the airline, ruling that the Federal Aviation Administration and William Kramer, the pilot of a single-engine Piper aircraft who died in the crash, were equally responsible for the Labor Day weekend tragedy.

That ruling paved the way for trials in which several families were awarded millions of dollars in damages for their losses.

But the government declined to make payments to some families because its appeal on the liability issue was pending. The Justice Department has settled at least 45 other cases and has paid out more than $25 million so far.

At trial, Kenyon ruled that the standard of vigilance for pilots under federal statutes is what "a reasonably prudent pilot" would exercise under such circumstances. Kenyon said that "without a warning from the air traffic controller, the crew of (Aeromexico Flight 498) may have failed to see (the Piper) without any negligence on their part."

Kenyon rebuked the FAA, saying controllers were negligent for failing to advise the DC-9 that Kramer's plane posed a threat to the jetliner.

In the unanimous decision Monday, the appeals court upheld Kenyon's decision. It spurned the government's contentions that the pilot of the Aeromexico plane should have been held to a higher standard than the "reasonably prudent pilot" test enunciated by Kenyon.

The judges noted that in an earlier case where a small plane crashed into a radio tower, the 9th Circuit had rejected the argument that "the pilot is always negligent when an air crash occurs."

"We agree with the government that the evidence is overwhelming that the Aeromexico pilots would have been negligent not to have seen the Piper at any time before the collision. But there was a great deal of expert evidence that a reasonably vigilant crew would not have seen the Piper until it was too late to do anything about it," wrote Judge Robert Boochever. His opinion was joined by judges William C. Canby Jr. and William A. Norris.

At trial, various experts testified that the unwarned Aeromexico crew, scanning the sky for other planes, probably did not see the Piper until it was too late to avoid a collision.

Joseph T. Cook, an Irvine attorney who represented plaintiffs in the case, said he was pleased by the decision "because my clients, Mrs. Theresa Estrada and her two sons, who received a $2.8-million damage award at a December, 1990, trial, are now entitled to get paid."

Estrada's husband, her only daughter and one of her sons were killed in a fire after part of the DC-9 crashed in the back yard of their Cerritos home.

It took more than three years for the government's appeal on the liability issue to be heard by the 9th Circuit because a court reporter was unable to finish a transcript that was needed.

Cook said that the decision provided new clarity on the standards for pilot liability in midair crashes. "This decision will be cited in almost every midair collision case that occurs," said Cook, a veteran attorney, who specializes in air crash cases.

The thrust of the decision is that "the human eye can't do it all," said George Archer, a Chicago attorney who represents families of Aeromexico crew members who perished in the crash. "This decision conforms with everything the experts found at the National Transportation Safety Board and what the jury and Judge Kenyon found."

"Hopefully, this will encourage the government to improve the electronic safeguards that we have to rely on," said Archer. He said he has settled two cases, is awaiting the outcome of one trial and still has four cases pending.

Cook said he doubts the Justice Department will appeal the ruling and predicted that if it does appeal, the Supreme Court would decline to review the case.

A Justice Department spokesman said the government had not received a copy of the decision and declined to comment.

Aeromexico's attorney was out of the country and unavailable for comment.

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