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IN RE KOREAN AIR LINES DISASTER OF SEPTEMBER 1

November 7, 1988

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 UNITED STATES DISTRICT JUDGE.

 On September 1, 1983, 269 persons aboard Korean Air Lines Flight 007 ("KE 007") tragically died while en route from New York to Seoul, South Korea. The first leg of the trip -- from New York to Anchorage, Alaska -- was uneventful; but during the trip from Anchorage to Seoul the flight strayed off-course into Soviet airspace, and Soviet military aircraft shot it down over the Sea of Japan. Many of decedents' representatives filed suits against several defendants; as a result of prior decisions of this Court, Korean Air Lines ("KAL") is the sole remaining defendant. *fn1"

 THE MOTION FOR PARTIAL SUMMARY JUDGMENT

 This Court has already held that KAL may avail itself of the limitation on damages established by the Warsaw Convention. *fn2" In re Korean Air Lines Disaster of September 1, 1983, 664 F. Supp. 1463 (D.D.C. 1985), aff'd, 265 U.S. App. D.C. 39, 829 F.2d 1171 (D.C. Cir. 1987). The Warsaw Convention limits an air carrier's liability to $ 75,000 for each passenger death unless the carrier is guilty of willful misconduct. *fn3" Thus the issue is whether KAL has established that Plaintiffs will not be able to adduce sufficient evidence to support a finding that KAL was guilty of willful misconduct in conducting the fateful flight.

 Two venerable decisions from this Circuit have produced an established, yet alternatively stated, definition of willful misconduct. See Koninklijke Luchtvaart Maatschappij N.V. KLM Royal Dutch Airlines Holland v. Tuller, 110 U.S. App. D.C. 282, 292 F.2d 775 (D.D.C. 1961) (hereinafter KLM v. Tuller); American Airlines, Inc. v. Ulen, 87 U.S. App. D.C. 307, 186 F.2d 529 (D.C. Cir. 1949). In KLM, the court defined willful misconduct as meaning "the intentional performance of an act [or failure to act] with knowledge that the act will probably result in injury or damage, or in some manner as to imply reckless disregard of the consequences of its performance, [or] a deliberate purpose not to discharge some duty necessary to safety." KLM v. Tuller, 292 F.2d at 778; see also Butler v. Aeromexico, 774 F.2d 429, 430 (11th Cir. 1985) (quoting KLM)

 Despite these various formulations there are several factors that are constant: the wrongdoer must consciously be aware of his wrongdoing, i.e., the actor must not only intend to do the act found to be wrongful but also must know that his conduct is wrongful; he or she must consciously be aware that his or her wrongdoing entails a probable risk of danger; and his or her wrongdoing must cause the injuries for which recovery is sought. As is apparent, however, both by the nature of the problem of proving an actor's intent and by the formulation equating a "reckless disregard of the consequences" with intentional wrongdoing, the actor's intent may be inferred from indirect evidence and the reckless nature of his acts.

 Parsing the definition into elements, then, it can be said that a claim for willful misconduct within the meaning of Article 25 of the Warsaw Convention has three essential elements:

 
One, an intentional act or omission done with the conscious awareness that such an act or omission was wrongful; two, an awareness of the probable consequences of the act or omission; and three, a causal relationship between the act or omission and the injury sustained.

 See Rashap v. American Airlines, Inc., 1955 U.S. Aviation Rep. 593, 605 (S.D.N.Y. 1955).

 Procedurally, KAL, as the party moving for summary judgment, has both the initial burden of production and the ultimate burden of persuasion. Initially, it must pinpoint for the court those portions of the record it asserts establishes that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law; i.e., it must make a prima facie showing that it is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 331, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (Brennan, J., dissenting). *fn4" The nonmoving party, here Plaintiffs, must then designate, by reference to the evidentiary materials listed in Rule 56(c) -- depositions, answers to interrogatories, admissions on file and affidavits *fn5" -- "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (quoting F.R.C.P. 56(e)). In the end, the moving party must carry its burden of persuasion, which has been characterized as a "stringent one." Id. at 330 n.2 (Brennan, J., dissenting):

 
Summary judgment should not be granted unless it is clear that a trial is unnecessary, and any doubt as to the existence of a genuine issue for trial should be resolved against the moving party. . . . "If . . . there is any evidence in the record from any source from which a reasonable inference in the [nonmoving party's] favor may be drawn, the moving party simply cannot obtain a summary judgment."

 Id. (citations omitted) (quoting In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 258 (3rd Cir. 1983), rev'd on other grounds sub nom. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)).

 KAL has attempted to show that Plaintiffs' evidence is insufficient, as a matter of law, to establish that KAL was guilty of willful misconduct. As Plaintiffs will bear the burden of proving at trial KAL's willful misconduct, in order to recover damages greater than $ 75,000, if Plaintiffs' proof on any element necessary to establish willful misconduct is indeed inadequate as a matter of law, then KAL is entitled to summary judgment. See Celotex, 477 U.S. at 322-23. Giving Plaintiffs the benefit of all reasonable doubts, however, as the Court must do at this stage of the litigation, their evidence is capable of permissible inferences that would establish each and every necessary element of willful misconduct.

 Plaintiffs' primary theory, *fn6" advanced primarily by two expert witnesses who have submitted affidavits on their behalf, is that the crew of KE 007 knew early on that, because of crew error prior to take-off, they were operating without a reliable Inertia Navigation System ("INS"), *fn7" the primary means of navigating the flight. Instead of temporarily aborting the flight, however, to reprogram the INS, the crew decided to navigate the flight without the benefit of a reliable INS. This decision, in clear contravention of established procedures, was made to conceal their initial error that caused the INS to be either misprogrammed or misaligned. If they aborted the flight to correct their error, they would have had to dump fuel; and other KAL pilots have been disciplined for having to take such action.

 Plaintiffs' experts have claimed that they have been able to simulate the most probable course of KE 007 on the night it was shot down. This determination was based on their review of the available F.A.A., United States military, *fn8" U.S.S.R. and Japanese radar data, the estimated location of wreckage, the wind reports of KE 007, and the crew's inability to directly communicate with various air traffic control facilities. KAL has failed to mount a sufficient attack on the evidentiary support for the expert's conclusion as to the most probable course. Although KAL asserts that there is no evidence as to the most probable course, this is insufficient, in light of Plaintiffs' witnesses' conclusions to the contrary. See Celotex Corp. v. Catrett, 477 U.S. 317, 332-33, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (Brennan, J., dissenting) ("if the record disclose[s] that the moving party ha[s] overlooked a witness who would provide relevant testimony for the nonmoving party at trial, the court [cannot] find that the moving party ha[s] discharged its initial burden of production unless the moving party . . . demonstrate[s] the inadequacy of this witness' testimony."). All this shows is that there is a difference of opinion as to whether a most probable course can be charted. There is nothing in the record establishing that the evidence relied upon by Plaintiffs' witnesses to formulate their opinion as to the most probable course is insufficient, as a matter of law, to support such an opinion. *fn9" Thus, the court is amply justified in concluding, at this stage, that Plaintiffs' witnesses' testimony as to the most probable course flown would be admissible. *fn10"

 Rather than focusing on invalidating Plaintiffs' evidentiary support for their witnesses' determination as to the most probable course flown by KE 007, *fn11" KAL has concentrated on attacking the inferences drawn by the witnesses as to the cause of the substantial deviation from the planned course represented by the most probable course simulated by Plaintiffs. More particularly, KAL asserts that the only inference that can be drawn from the "assumed deviation" is that the crew was negligent in failing to notice their deviation and take corrective action. The Court disagrees. A failure to notice that the flight was off-course at point A, or point B, or Point C, etc. indeed may be evidence only of negligence; but a failure to notice that the flight was off-course at point A and point B and Point C, etc. is susceptible to a different interpretation -- that the crew was aware of its deviation but elected not to report it and take corrective action. The magnitude and duration of the deviation alleged here supports the inference that the crew realized its deviation some time prior to its last position report but nevertheless continued the flight and continued to report being on-course. The evidence as to the cause of the deviation supports the inference that such knowledge was sooner rather than later, because the alleged cause itself provided early and continuous indications of the deviation, the alleged cause provided a basis for the false reports, and the alleged cause provides an explanation for the crew's decision to conceal their error rather than simply correct it -- the only appropriate action sufficient to correct the alleged cause and allow the flight to return to its assigned course would have subjected the crew to disciplinary action.

 Clearly, whether there is sufficient evidence for a conclusion that the KE 007 crew knew that their INS system was unreliable is crucial. *fn13" The Court finds that there is sufficient evidence.

 Before examining the evidence in support of Plaintiffs' theory, the Court will briefly address KAL's general attempt to discredit this theory. In its reply, KAL states that 1) there is no evidence to indicate whether or not the INS was functioning properly or improperly, and 2) there is no evidence that the alleged misprogramming or improper alignment of the INS was deliberate. Reply Affidavit of George N. Tompkins, Jr. at 8, para. 10; Reply Memorandum at 14 n.4. The first claim is clearly erroneous. The second misses the mark.

 There is no dispute that the initial leg of the flight, from New York to Anchorage, was uneventful and that the INS was operating properly. Following the New York to Anchorage leg, the INS was checked and found to be accurate and in working order. Plaintiffs' Opposition to Motion for Partial Summary Judgment at 6 n.8; Plaintiffs' Exhibit I, Deposition Testimony of Myong-Ok So at 85; Plaintiffs' Exhibit J, Deposition Testimony of Taek-Yong Choi at 257-58; Plaintiffs' Exhibit H, Deposition Testimony of Il-Kyu Park at 33-34. This is a sufficient evidentiary basis to support an inference that the systems did not malfunction. *fn14"

 Of course, this still leaves the question of whether there is enough support for the conclusions that the crew misprogrammed or misaligned the INS systems and knew, sometime after takeoff, that an error had been made but nevertheless decided to continue the flight. First, a programming error of ten percent would be consistent with the most probable flight path formulated by Plaintiffs' affiants. Plaintiffs' Exhibit B, Affidavit of Frank L. Houston at 16. The ICAO Report also concluded that a ten percent error in programming of the INS system could have produced the significant track deviation they determined to have existed. ICAO Report at 56, KAL's Exhibit A.

 Second, the duration and magnitude of the course deviation and Plaintiffs' evidence that the crew must have known it was off-course support the inference that the crew knew early on that they had misprogrammed or misaligned the INS. According to Plaintiffs, use of ground based navigational aids and of ground mapping radar in the plane and the crew's inability to communicate directly with air traffic control centers along the route ...


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