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IN RE KOREAN AIR LINES DISASTER OF SEPTEMBER 1

May 7, 1986

In re KOREAN AIR LINES DISASTER OF SEPTEMBER 1, 1983


The opinion of the court was delivered by: ROBINSON, JR.

 AUBREY E. ROBINSON, Jr., Chief Judge.

 On September 1, 1983, 269 passengers including plaintiffs' decedents tragically died while en route from New York to Seoul, South Korea when Soviet military aircraft shot down Korean Air Lines Flight 007 over the Sea of Japan. Plaintiffs filed these suits for damages against several defendants including the United States government for allegedly breaching a duty it owed to the passengers. The Judicial Panel on Multidistrict Litigation transferred the cases, which had been filed in judicial districts across the country, to this Court.

 Before the Court is the Motion by the United States for Summary Judgment. This is not the first time the government has so moved. On April 18, 1984, this Court denied the same motion on procedural grounds holding that "at present, . . . and giving the plaintiffs 'the benefit of inferences favorable to [their] cause, the record in its nebulous state simply does not establish the absence of a triable issue of fact.'" In re Korean Air Lines Disaster of September 1, 1983, 597 F. Supp. 613, 618 (D.D.C.1984) (quoting Founding Church of Scientology v. National Security Agency, 197 U.S. App. D.C. 305, 610 F.2d 824, 836 (D.C.Cir.1979)). Both parties have taken a great deal of discovery since April, 1984 culminating in the presentation of oral argument on November 8, 1985. After extensive consideration of the entire record in its present state, the Court holds that there exist no triable issues of material fact that could support Plaintiffs' claims against the United States. The government's motion for summary judgment under Rule 56(f) shall therefore be granted.

 Although the cases at hand may be more historically significant than most tort claims, the legal analysis must follow the same pattern used in every negligence case; that is to say that the United States can be held liable for damages only if plaintiffs can prove that the government had "a legal duty to warn or advise civilian aircraft in the position of KAL 007 on August 31, 1983 and September 1, 1983," and that it breached this duty. Id. at 618-619. For plaintiffs to prevail there must also have been no superceding cause of harm. As outlined below, the Court finds that the United States Government did not breach any duty to Plaintiffs' decedents in its handling of this incident. Furthermore, even if it had breached such a duty, the action of the Soviets in shooting down a civilian aircraft was a superceding cause of harm insulating the United States from liability.

 I. Alleged Sources of Duty to Warn

 Plaintiffs have diligently explored every avenue from which an actionable duty could arise on the part of the United States to warn civilian aircraft in the position of KAL 007. With the exception of a duty on the part of air traffic controllers to provide certain services in the Alaskan Flight Information Region which plaintiffs have failed to establish the controllers breached, Plaintiffs have found no such duty either imposed by law or voluntarily undertaken by the government. Each of their contentions will be explored below.

 A. Air Traffic Controllers

 Plaintiffs correctly assert, and the government does not deny that "the United States can be held liable for the failure of air traffic controllers to provide their services with due care." Plaintiffs' Steering Committee's Opposition to the Government's Motion for Summary Judgment at 11 (citing Indian Towing Co. v. United States, 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955)). Four controllers had contact with KAL 007 on the night in question. Although Plaintiffs have deposed all of them, they have failed to present evidence that any one performed his or her job negligently.

 KAL 007 left Anchorage International Airport from runway 32 after receiving the air traffic control clearance to fly "direct Bethel when able." It is undisputed that this clearance allows the pilot discretion to proceed from where he is cleared to take a reasonable course towards Bethel. Deposition of Robert Hale, manager of the Accident/Incident Analysis Branch of the Air Traffic Service at 35-37. Although Plaintiffs make much of the undisputed fact that KAL 007 was flying north of Cairn Mountain about the time the first controller, Douglas Porter, terminated radar service to it, *fn1" the record is complete with undisputed testimony and documentary evidence that this flight path was normal. Plaintiffs have failed to present evidence to refute the statements of Mr. Hale and Mr. Porter or the evidence of comparable tracks which indicate that aircraft departing Anchorage from runway 32 customarily fly north of Cairn Mountain.

 With regard to Mr. Porter, Plaintiffs also claim that he breached a duty to record the "observed position" of the aircraft on the plane's flight data strip. In light of the undisputed evidence that the flight path during the period of radar coverage was normal, nothing that the controller might have recorded would have altered the fate of the plane. It is simply illogical to conclude that the controller's actions while KAL 007 was under radar coverage led to the deaths of the passengers.

 As for the other three controllers, Plaintiffs have presented no credible evidence that any of them breached a duty to Plaintiffs or their decedents. These controllers' sole contact with KAL 007 was through voice reports of the pilot. Nothing was unusual about these reports so they could not have alerted the controllers that the aircraft was off-course. Plaintiffs' allegations involving uncertified radar scopes *fn2" and unevidenced telephone calls *fn3" are not supported in the record and do not present issues of material fact that can defeat the government's motion.

 B. Search and Rescue Plan and ...


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