Experts Should Not Conclude Pilot Inattention is Crash Cause

In response to “Midair collisions like McKinney crash are rare but often caused by pilot inattention, experts say,” (Source Article)

Pilot inattention is one of MANY possible causal factors in a midair collision. Out of respect for fellow brothers-in-arms Lieutenant Colonel Gregory Barber, US Air Force (retired) and his son Cadet Tim Barber, US Air Force Reserve (Air Force Academy), and experienced pilot Robert Navar, Napoli Shkolnik aviation attorneys will not engage in speculative discussions about the possible root causes that took the lives of these three souls on December 31, 2016.

Each and every near midair and actual midair collision is unique. Weather conditions, visibility, sun angle, air traffic control, aircraft avionics, piloting, airspace congestion, and a host of numerous other issues can be root causes. I should know. I’ve been involved in several near midair collisions flying combat missions in Iraq. In a direct action high value target/individual (HVT/I) heliborne raid, airspace integration (deconfliction) is tight, and conducting these missions at “zero dark thirty” and in marginal weather provides the best opportunity to catch HVIs with their pants down. I’ve also been involved in near misses in day VFR CAVU (ceiling and visibility unlimited) weather. I assure you, none of these near misses involved pilot inattention.

When the NTSB investigates this crash, they will do several different visibility studies from the view inside the cockpit of the pilot at controls/pilot flying each aircraft at the time of the collision. See hyperlinked NTSB final report for an outstanding analysis of a midair collision that happened at Brown Field in San Diego summer 2015 that took the lives of several talented aviators and systems specialists, including an Air Force Air Mission Commander of the Year recipient. There, air traffic control error was identified as the sole probable cause factor by the NTSB.

Read the National Transportation Safety Board Aviation Accident Final Report here.


Please see below for an article written after a different 2015 midair collision. This article is written more as a legal discussion and less as an investigatory analysis, but it does highlight an issue reaffirming that each and every midair collision is unique. As you can see from the San Diego midair and the Monks Corner midair, there is always MUCH more to the story than what can be discerned at first blush.

“See and Avoid?”

The July 7, 2015 tragic midair collision between an Air Force F-16 and a Cessna 150 in the vicinity of Moncks Corner, South Carolina raises a unique legal question involving a pilot’s responsibility to see and avoid other aircraft. News reports and preliminary National Transportation Safety Board (NTSB) comments suggest the Cessna 150 was flying VFR, or Visual Flight Rules, whereas the F-16 was on an instrument approach, presumably flying IFR, or instrument flight rules.

Here, according to eyewitness testimony, the weather at the time the two planes collided was clear and likely close to CAVU (“ceiling and visibility unlimited”). One aircraft, the F-16, was on an instrument approach, presumably under positive ATC control. The other aircraft, the CESSNA, had just taken off from Berkeley County Airport and was flying VFR and very likely not under positive control of an ATC facility such as a Control Tower. The weather was relatively clear that day, so shouldn’t the F-16 pilot have been able to see the Cessna and/or vice versa (maybe, maybe not), or shouldn’t air traffic control have alerted the F-16 pilot of traffic (yes)?

A pilot flying IFR on an instrument approach is typically “heads-down” looking inside the cockpit at his or her flight instruments, not outside of the aircraft. I say typically because that might not be the case here. Almost all modern US fighter aircraft have heads-up display (“HUD”) technology. A HUD displays the pilot’s flight instruments on the windscreen/canopy so he or she can potentially look outside while flying on the instruments. One of the many advantages of flying with a HUD is that it increases the pilot’s situational awareness because the transition from an inside instrument scan to an outside VFR scan is seamless and even overlapping.

If this F-16 pilot was flying an instrument approach on a clear day with a HUD, then he might have been able to see the Cessna. Not to relieve ATC of blame here–as ATC positively controlled at least one of these two aircraft–but a strong argument can be made that an F-16 pilot flying with a HUD might have been able to prevent this midair collision from happening; however, while flying an instrument approach, he had no duty to do so. This last statement is crucial from a legal prospective. This midair collision occurred in South Carolina, and therefore South Carolina law most likely applies.

South Carolina is one of the twenty-two states that apply a modified comparative law 51% bar to negligence-based causes of action. See Nelson v. Concrete Supply Co., 303 S.C. 243, 245 (1991) (holding that a plaintiff in a negligence action may recover damages if his or her negligence is not greater than that of the defendant). Here, if a judge or jury were to decide that ATC and the VFR pilot were 50/50 equally negligent, then the VFR pilot plaintiffs would be barred from any recovery in a negligence action. Had the midair occurred a few hundred miles to the north in North Carolina, the VFR pilot plaintiffs would have virtually no chance of recovery because North Carolina is one of the five holdout jurisdictions which espouse pure contributory negligence (meaning that if the plaintiff is found even 1% responsible, he or she recovers nothing [Alabama, D.C., Maryland, and Virginia are the other jurisdictions]).

As it stands, a wrongful death action against a US government entity would need to be filed in federal court as required by the Federal Tort Claims Act. Alleging and proving some level of negligence by both ATC AND the F-16 pilot might be the only way Joseph and Michael Johnson’s next of kin would recover money damages in a federal court applying South Carolina law.

Tragically, pilots and passengers and/or their families can encounter unjust legal hurdles when seeking justice after a crash or fatal event.  There are many legal options.

At Napoli Shkolnik PLLC, our aviation attorneys leave no stone un-turned when finding liability and seeking maximum compensation for the injured persons and family members we represent. Please contact Hunter Shkolnik for more information.

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