In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 03-1071 & 03-1080

KRISTY SPURGIN-DIENST, Executor of the Estate of

Terry A. Spurgin, Deceased, and LINDA J. BAUER,

as Executor of the Estate of John H. Bauer, Deceased,

and as Executor of the Estate of William H. Bauer III,

Deceased,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

____________

Appeals from the United States District Court for

the Northern District of Illinois, Eastern Division.

Nos. 00-CV-8075 & 01-CV-385—Harry D. Leinenweber, Judge.

____________

ARGUED DECEMBER 4, 2003—DECIDED FEBRUARY 20, 2004

____________

Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.

EVANS, Circuit Judge. With mechanical error ruled out,

the issue in this case, tried to the court under the Federal

Tort Claims Act (FTCA), was whether pilot error or ground

error caused a single-engine Beechcraft Bonanza airplane

to crash in an Indiana field killing all four persons aboard.

The estates of the three deceased passengers brought the

case alleging ground error: negligence by the United States

through the Federal Aviation Administration (FAA) and
2 Nos. 03-1071 & 03-1080

personnel at Air Traffic Control (ATC) and the Flight

Service Station (FSS). The government defended the suit

claiming the proximate cause of the crash was the negligence of the pilot.

As is the norm in many tort cases, the trial here became

a battle of expert witnesses, with those called by one side

pointing the finger of blame at the other side. The district

judge, Harry D. Leinenweber, ultimately found for the government, and the estates appeal, arguing essentially that

the defense witnesses were incredible, that the federal

employees the pilot communicated with were negligent, and

that the pilot was blameless.

The pilot on the ill-fated March 20, 1998, flight was

Daniel Sanders. The passengers were John Bauer (40), his

son William (20), and Terry Spurgin (42). The departure

point was Louisville, Kentucky, with Aurora, Illinois, as the

destination. While en route, the plane encountered icing

conditions, forcing Sanders to attempt an emergency

landing at a small airport near New Lebanon, Indiana. It

didn’t make it.

Judge Leinenweber concluded that Sanders’ decision to

fly the plane into known icy conditions was the proximate

cause of the crash. In reaching his conclusion, the judge

rejected the claim that Sanders was not given pertinent

weather information and that he was misdirected as he

attempted to land the plane. The estates also argue that the

judge misapplied Indiana law and that he should have

ordered a new trial based on discovery violations.

When reviewing a bench trial, legal decisions are reviewed de novo, Johnson v. West, 218 F.3d 725, 729 (7th Cir.

2000), and findings of fact are reviewed under a deferential

clearly erroneous standard. Anderson v. Bessemer City, 470

U.S. 564, 573 (1985). Under this standard, one who contends that a finding is clearly erroneous has an exceptionally heavy burden to carry on appeal. This is especially true
Nos. 03-1071 & 03-1080 3

1 According to the evidence, there are two types of icing: rime

icing and clear icing. Rime icing is caused by freezing of micro

droplets. When the droplets freeze, some air is trapped, and the

result is something similar to frost that can attach to the airplane.

When water droplets are bigger than micro droplets, the drops hit

the plane, lose their shape, run backwards, and form clear ice.

Either kind of icing destabilizes a plane.

when, as here, the estates argue that the district court

erred in crediting the testimony of experts called by the

defense. This is so because, as we have frequently stated,

the “trial judge is in the best position to judge the credibility of witnesses who offer conflicting testimony . . . .” United

States v. Woods, 233 F.3d 482, 484 (7th Cir. 2000). Such a

credibility determination “can virtually never be clear

error.” United States v. Archambault, 62 F.3d 995, 999 (7th

Cir. 1995). With these principles in mind, we turn to the

evidence presented at trial.

Prior to departing, Sanders told the Louisville FSS that

he would be flying to Aurora. In response to Sanders’

concern about possible icing conditions, a weather briefer,

Charles Gilpin, provided a weather advisory, called an

Airman’s Meteorological Information (AIRMET), that

warned of occasional “moderate rime or mixed icing along

the entire route of flight” to Aurora.1

 In addition, Gilpin told

Sanders that a surface observation made in the Terre

Haute, Indiana, area (which was along Sanders’ flight

path about halfway between Louisville and Aurora) indicated light snow and mist and a surface temperature of 2

degrees Celsius. For the Aurora airport, surface observations also indicated a surface temperature of 2 degrees

Celsius, along with winds at 18, gusting to 26, knots.

Sanders also received pilot reports, called PIREPs. These

are pilot observations of actual weather conditions recently

encountered. Sanders was told of one PIREP received from

Louisville which reported “light to moderate rime icing.”
4 Nos. 03-1071 & 03-1080

A second PIREP, also from the Louisville area, reported

“moderate to severe mixed icing.” A third PIREP from

Lafayette, Indiana, reported “light rime” icing. After receiving this weather briefing, Gilpin asked Sanders if he

needed more information. Sanders declined. The weather

briefing ended at 6:22 p.m.

Thirty minutes later, Sanders filed a flight plan from

Louisville to Aurora stating that he would be flying at 4,000

feet. The weather briefer asked if he needed another

briefing, but Sanders said it wasn’t necessary because he

received one earlier.

At 7:15 p.m., the plane left Louisville. About 25 minutes

later, the aircraft entered the jurisdiction of the Evansville

approach controller, some 50 miles from Louisville. Sanders

asked for icing reports for the area. The controller, Kyle

Koop, responded that there were none for the last 2 hours.

This was not true. In fact, there were two PIREPs which

confirmed icing conditions. One was received 55 minutes

earlier from a pilot about 30 miles to the south. The pilot

reported that he encountered icing conditions at 8,000 feet,

continued to pick up ice until below 4,500 feet, and the ice

melted at 2,500 feet. The second pilot, reporting about 40

minutes before Sanders checked in, reported icing at 7,000

feet. Koop stated that he didn’t give these reports to

Sanders because they were not pertinent to his flight path.

About this time, Sanders’ aircraft began accumulating ice.

Less than 4 minutes later, at 7:45, the aircraft entered

the jurisdiction of the Terre Haute approach controller, and

Sanders requested icing reports for the area. The controller,

Jennifer Stahley, told Sanders that there hadn’t been any

for several hours, but she did convey several earlier reports

of icing.

Sanders then requested and was given clearance to descend to 3,000 feet. At 7:52, after reaching 3,000 feet, he
Nos. 03-1071 & 03-1080 5

2 The Federal Tort Claims Act provides a remedy for personal

injury caused by the negligent or wrongful act of any government

employee acting within the scope of his employment “under circumstances where the United States, if a private person, would be

liable to the claimant in accordance with the law of the place”

where the act occurred. 28 U.S.C. § 1346(b)(1); see also Midwest

Knitting Mills, Inc. v. United States, 950 F.2d 1295, 1297 (7th Cir.

(continued...)

reported that the plane had accumulated ice and asked for

permission to land at Terre Haute, which he received. Nine

minutes later, however, Sanders reported that he was

losing airspeed and requested a closer airport. Stahley

directed Sanders to the Sullivan County Airport, which was

about 5 miles ahead of him. Stahley advised Sanders that

he had a choice of two approaches, a VOR-Alpha approach

or an NDB (Non-Directional Beacon) approach. The VOR is

a circling approach that requires making several turns. The

NDB approach, in contrast, is almost straight in. Stahley

did not tell Sanders of Robinson airport, which was 11 miles

due west of Sanders’ flight line.

Sanders chose the VOR-Alpha approach, and Stahley

attempted to lead Sanders to the airport, directing him to

make what she thought were the necessary turns. About

8:05, she said Sanders was 2-1/2 miles from the final approach point, and she gave him a vector to the northeast to

intercept the final approach course.

The final radio contact with Sanders occurred one minute

later when he said, “Heck, we’re all over the place right

now.” At about this time, all radar and radio contact was

lost. One minute later, the plane crashed about 5 miles

from Sullivan airport.

With these facts in mind, we turn to the merits of the

appeal. As an initial matter, the district court identified the

correct inquiry under Indiana tort law.2

 As the court stated,
6 Nos. 03-1071 & 03-1080

(...continued)

1991). Because the alleged negligent act or omission occurred in

Indiana, we apply Indiana choice-of-law rules. Those rules require

application of Indiana law. See In re Bridgestone/ Firestone, Inc.,

288 F.3d 1012, 1016 (7th Cir. 2002) (“Indiana is a lex loci delicti

state: in all but exceptional cases it applies the law of the place

where harm occurred.”).

“[T]o prevail on the facts the plaintiffs must show by the

preponderance of the evidence that some act or omission on

the part of the flight service briefer, or a traffic controller

was a proximate cause of the icing and/or the inability of

Sanders to land the plane safely.” This is correct. The

Indiana Supreme Court recently noted that “a negligent

defendant may be liable for a plaintiff’s injury if his or her

action is deemed to be a proximate cause of that injury.”

Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 108

(Ind. 2002).

Applying this standard, the district court’s factual

determinations are not clearly erroneous. The Air Traffic

Control Service had no duty to restrain Sanders from taking

off in hazardous weather, see Davis v. United States, 824

F.2d 549, 551 (7th Cir. 1987), and the court’s conclusion

that Sanders’ decision to fly into known icing conditions was

the proximate cause of the crash and that nothing government agents on the ground did or did not do made a

difference is amply supported by the record.

To begin, contrary to the estates’ argument that Sanders

flew into only “forecasted” or “suspected” icing conditions,

the evidence supports the conclusion that Sanders left

Louisville in the face of weather reports and forecasts that

put him on notice that he would be flying through “known”
Nos. 03-1071 & 03-1080 7

3 Under federal law, “no person may operate a civil aircraft without complying with the operating limitations specified in the approved Airplane . . . flight manual . . . or placard.” 14 C.F.R.

§ 91.9. The flight manual in Sanders’ plane stated, “FLIGHT IN

KNOWN ICING CONDITIONS IS PROHIBITED.” 

icing conditions for his entire route.3 The weather briefing

Sanders received warned of “occasional moderate rime

or mixed icing along the entire route of flight . . . .”

More significantly, he also was told of surface observations

and actual pilot reports of icing. It is these icing conditions that he encountered that caused an ice buildup on the

plane and that, in turn, caused the crash.

Of course, FAA personnel committed errors. For example,

Gilpin failed to provide the Area Forecast (FA) and the

Meteorological Impact Statement (MIS) to Sanders which

contained information about icing conditions. Furthermore,

Koop incorrectly told Sanders that he had not had any

PIREPs of icing in 2 hours. The district court’s conclusion

that having this information would not have led Sanders to

change course, however, is not clearly erroneous. With

respect to the FA and MIS, Sanders already knew he was

flying into icing conditions. Considering he departed

Louisville despite knowing that other pilots had encountered icing conditions, there is no reason to conclude these

additional forecasts would have made a difference. As for

the pilot reports Koop failed to give, one, received about 55

minutes before Sanders’ request, stated that the pilot had

encountered icing conditions at 8,000 feet, which stopped

accumulating when he fell to 4,500 feet and melted at 2,500

feet. That pilot was 30 miles south of Sanders’ location,

however, and all it would have told Sanders is that in the

warmer air to the south he could lose ice if he descended to

2,500 feet. The other pilot reported icing conditions at 7,000

feet, which was 3,000 feet above Sanders’ altitude. Like the
8 Nos. 03-1071 & 03-1080

FA and MIS reports, it is speculation whether either of

these reports would have led Sanders to change his flight

plan.

Furthermore, the evidence suggests that Stahley gave

Sanders improper information when directing him to

land at Sullivan airport. Stahley told Sanders that he

was “about two and a half miles” from the final approach

point and to turn right to intercept the final approach

course. The estates’ experts stated, however, that the actual

distance was 3-1/2 or 4-1/2 miles. The National Track

Analysis Program (NTAP) radar data suggests the distance

was closer to 5 miles.

It was reasonable for the district court to hold that

Sanders, due to icing on the plane, could not have made the

VOR approach to Sullivan airport. The evidence at trial

showed that the plane was doomed once the pilot turned

away from Sullivan for the VOR approach. The accumulating ice caused the aircraft to lose thrust and lift. The plane

simply did not have enough speed and altitude to make the

airport. Thus, nothing Stahley did in vectoring him contributed to the accident. Nor, as the estates argue, would

knowing about Robinson airport have made a difference.

First, Sullivan was closer and was on his flight plan.

Moreover, since the plane was not able to reach Sullivan

airport safely, nothing suggests it could have landed at

Robinson. Considering these facts, the estates fail to meet

their heavy burden of establishing that the district court’s

factual findings were clearly erroneous.

The estates’ reliance on Pierce v. United States, 679

F.2d 617 (6th Cir. 1982) (Pierce I), is misplaced. In an FTCA

suit arising from an airplane crash in which the pilot was

not warned of weather problems, the district court had

granted judgment to the United States on the grounds that

the plaintiffs were unable to prove whether the plane

crashed due to weather or pilot error. The Sixth Circuit
Nos. 03-1071 & 03-1080 9

reversed and remanded, holding that even if the plaintiffs

could not distinguish between pilot error and weather as

the proximate cause of the crash, the possibility remained

that the United States could have contributed to the accident by failing to give weather information. Id. at 619-21.

On remand, the district court held that the United States

was negligent in failing to provide the necessary weather

information but that the proximate cause of the crash was

pilot error resulting from vertigo when the pilot unnecessarily flew into a cloud. On appeal after remand, the Sixth

Circuit affirmed. Pierce v. United States, 718 F.2d 825, 828

(6th Cir. 1983) (Pierce II).

Unlike Pierce I, the district court here carefully considered whether the government’s negligence contributed to

the crash. Consistent with Pierce II, however, the district

court held that the proximate cause of the crash was pilot

error.

The estates’ other arguments are equally unavailing.

First, the district court did not err in failing to apply

Indiana’s Comparative Fault Act, Ind. Code. Ann. § 34-51-2-

7 et seq. Here, there was no finding of proximate cause

attributed to the United States. Therefore, there was no

need to apportion liability.

Second, the district court did not commit error by denying

the estates’ Rule 60(b) motion for a new trial due to alleged

discovery violations. The estates argue that they were not

given evidence, an Event Reconstruction Recording (EVR)

that records the data Gilpin used in formulating the

weather briefing for Sanders, until the middle of trial.

However, the United States did not use the EVR in its casein-chief, and the estates’ counsel had ample time to review

it and decide whether to use it, an agreement the estates’

counsel admitted was “a good solution.” By accepting this

arrangement, the estates waived their objection to any

possible discovery violation. Nor do we believe, considering
10 Nos. 03-1071 & 03-1080

the limited import of the EVR (evident by the fact that

neither party used it at trial), that the court abused its

discretion in denying the Rule 60(b) motion.

Finally, we have considered the estates’ remaining arguments and deem them to be without sufficient merit. This

was, of course, a sad and tragic case. But we think Judge

Leinenweber carefully heard and analyzed the evidence,

and we do not believe his findings of fact are clearly erroneous. Nor did he misapply controlling Indiana law.

The judgment of the district court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-20-04