Originally Posted by
WillowRun 6-3
Website of the Clifford Law Office in connection with the press event today has posted the Complaint. Notably, the Kreindler & Kreindler law firm also is on the Complaint (these two firms are massive heavy hitters - nobody asked for my view I realize - I'm not familiar with a third firm also listed).
Perhaps this SLF/attorney should "do the reading" ...... I am quite curious whether, and if so how, these preeminent aviation accident litigators have dealt with the discretionary function exception to the statutory waiver of federal government sovereign immunity.
Edit: case number is 1:25 -cv-03382 (United States District Court for the District of Columbia)
I skimmed through the complaint. The defendants are American and PSA (which I will refer to as the airlines) and the USA as responsible for the actions of the air traffic controllers (which I will refer to as the FAA) and for the actions of the helicopter crew (which I will refer to as the army). Perhaps somewhat notable is who is not being sued. This includes the manufacturers of both aircraft and their components and the manufacturer of the night vision goggles.
The best (in my view) argument against the airlines is that it was PSA policy that their pilots should not accept a diversion from runway 1 to runway 33 if they had not already briefed this approach (in addition to briefing the approach to runway 1). The pilot in charge hadn't done this but nevertheless accepted the diversion. This looks bad of course but there is little reason to believe that the omission of the briefing made any difference. It is also argued that the response to the TCAS conflict alert was inadequate which seems only clear in hindsight. Finally there were also insinuations to the effect that airlines should not serve busy airports because they are dangerous that I didn't find convincing.
The argument against the FAA is that the ATCs had actually violated various regulations starting with having one controller handle both helicopters and airplanes and continuing with the specific instructions and information provided to the helicopter and airplane. I suspect these purported violations are not as clear cut as claimed. In any case it is unclear they made any difference.
The argument against the army is that the blackhawk crew violated specific regulations and rules that they were required to observe. Most seriously that they were too high, knew they were too high but didn't correct this in a timely way. This clearly did make a difference and in my view if proven would be sufficient to establish liability.
I didn't notice any references to the discretionary function exception. In general the arguments against the government are based on purported specific violations of established rules and regulations by low level personnel and not on debatable broad policy decisions. The case that an army pilot doesn't have discretion to violate altitude limits seems easy to make to me. Any more than an army driver has discretion to ignore stop signs.