Closing the Gap - John C. Wunsch, P.C.
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Closing the Gap

Eyewitness testimony speaks to observation. Circumstantial evidence is different. It relies upon corollary, interpretation, and inference. “What we see could not exist unless something else had occurred as well.” To match an end result with process and means. Physical properties of a particular instrument that lead to an identifiable marking. Remains which suggest the presence of something else having occurred. Conduct or behavior that can be inferred based on an end result. Etc. We’re saying: “This had to have happened otherwise would we not see this.” Circumstantial evidence implicates sight and sound as well as common sense physical laws coupled with the additional step of reasoning. Reasoning in this context is simple inference. The closer and more obvious the causal link the easier it is for others to draw the inference. The absence of an eyewitness gives rise to what can best be characterized as “distance.” Thus we exert some significant effort to close that distance.

On October 29, 1953, the great American pianist William Kapell died in a plane crash. He was on a plane coming from Honolulu which crashed near the San Francisco Airport: “This is a diversity action for damages for wrongful death arising out of an airplane accident on October 29, 1953. In 1953 a pilot for defendant British Commonwealth Pacific Airlines, Ltd. (BC PA), an Australian corporation, in a plane coming from Honolulu, began an instrument landing, during which operation it crashed against a mountain near the San Francisco, California, airport. All aboard were killed, including plaintiffs’ deceased, the noted pianist William Kapell.”

Notwithstanding fine lawyering, the jury returned a verdict in favor of the Defendant. Eventually the matter came before the Second Circuit Court of Appeals. The Court upheld the jury’s defense verdict, writing: “There is no justification for the conclusion that the only permissible inference from all the evidence was that the pilot had been guilty of wilful misconduct — whether under Judge Ritter’s standard or under that stated by the prior cases. Defendants argue that a reasonable inference for the jury to have made was “that the pilot from some inscrutable cause, became confused as to his actual position and commenced his let-down from a point he believed to be the proper one.” If that were so, wilful misconduct would not have been established under any standard. We cannot doubt that a jury could reasonably have thought it so on this record. The evidence shows that the pilot quite possibly thought he was making a proper landing — in most respects he was, apart from location. There is evidence from which the jury could have inferred that the pilot would not have been likely to have tried to land without having received the requisite signals, thereby violating his clearance. The evidence also suggests that there may have been some radio communication trouble.”

Rule out inconsistent explanations. The Defense argued pilot confusion, not willful misconduct, was the cause of the crash. The Appeals Court agreed. It assessed that a possible inference to be drawn from the voluminous (and conflicting) evidence in the record was the “confusion” of the pilot. It seems reasonable to conclude that there was no direct testimonial evidence of the pilot’s confusion. Confusion on the part of the pilot was a theory argued by the defense, but not supported by any direct evidence from an eyewitness.

One approach to refute this would have been theoretical, perhaps arguing that confusion is not inconsistent with a finding of willfulness––one can willfully ignore tower instructions and still be confused at the same time. The two are not mutually exclusive. In fact, one might argue that a confused pilot will be more likely to intentionally disregard tower instructions since he may have reached a point of making intentionally wrong decisions using incorrect, or inaccurate, methods based on his confused state of mind. Such an argument would not have been semantic, but in fact consistent with certain lines of caselaw. See, e.g., Wortman vs. Voylan R. Reinsbach, 18cv2419 (US Dist. Ct. Colorado 2020)(“The Court described “willful and wanton” conduct as “conduct is so aggravated as to be all but intentional.” It is a concept that “differs in quality, rather than degree, from ordinary lack of care.” Id. For example, in addressing an auto accident that was caused by a driver falling asleep while operating the vehicle, “the question of whether any forewarning of danger from drowsiness” was the question that differentiated the driver’s ordinary negligence (when there was no “forewarning of sleep or admitted drowsiness”) from willful and wanton conduct (if the driver had previously observed “warnings of impending sleep”).)

A second approach would have been to point to existing evidence. This was done. “Against this, plaintiffs argue that, because of the technical and electronic characteristics of the indicators involved — which they assert to have been operating properly — the pilot could not have received all the signals which he was required by his clearance to receive before beginning his let-down. Because of this, they say, the pilot must have let down knowing that he had not received the proper signals, or with reckless disregard for whether or not he had. However, all these questions depend upon inferences to be drawn from essentially circumstantial evidence. Those who alone could provide direct evidence as to what in fact led the pilot to act are, unfortunately, not able to do so. One can hardly imagine a clearer case in which such questions should have been left to the jury. See, e. g., LeRoy v. Sabena Belgian World Airlines, 344 F.2d 266, 271 (2d Cir. 1965). We cannot even say that the pilot’s or the airline’s negligence was established as a matter of law, much less wilful misconduct. Once the case went to the jury, its verdict should not have been upset if reasonable men could find in defendant’s favor, as they certainly could here.”

Rule in consistent explanations. This case involved an airline pilot who flew his airplane into the side of a mountain, killing all on board. According to the District Court: “Three times the flight was ordered to maintain at least five hundred feet above all clouds. Twice—at 0827 by ARTC to fly from the Half Moon Bay fan marker “direct to the San Francisco ILS outer marker; maintain at least 500 above all clouds“, and, at 0839 by San Francisco Approach Control to “cross the outer marker initial(ly) at least 500 on top”— twice the flight was ordered to fly to the ILS outer marker, and to maintain at least 500 feet above all clouds between Half Moon Bay fan marker and the ILS outer marker. All three of these clearances were by voice contact with the crew, and the two clearances directing the flight to go to the ILS outer marker were acknowledged and read back by a crew member, no doubt the pilot. No one, seriously, could urge that the crew did not receive or understand these three clearances. And, there could have been no doubt in this pilot’s mind as to what he should have done. Nevertheless, it is obvious that the flight did not maintain at least 500 on top…”

The flight crew acknowledged and read back their clearance orders issued by the tower––direct, not circumstantial, evidence of those communications having been received and understood. That was argued to the Appeals Court to support a finding of willfulness, but it was not enough. Perhaps, looking back, the most fundamental issue on appeal was simply one of permissible scope. Pilots are duty bound not to be confused. They must be aware of their position and altitude at all times. This is definitional. For a Court to permit a purported state of confusion as a “defense” was arguably incorrect in this context since a pilot’s most primary role and obligation is defined by being held to know and to take steps to become aware. Confusion does not work to excuse such a fundamental obligation. It falls outside the scope of what’s allowable. Further, a misinterpretation of what should have been interpreted correctly does not imply mere negligence. This too can be seen as an element of willfulness. Any professional must be held to know. The failure to reach that state works to aggravate, not excuse, any later decisions made. Etc.

From time to time you will see in caselaw the following statement: “When circumstances are consistent with either of the two facts and nothing shows that one is more probable than the other, neither fact can be inferred.” Rule out inconsistent explanations, rule in consistent explanations––it’s not merely arguing evidence, it’s arguing the basis and framework against which the evidence should be assessed. Yes, the absence of an eyewitness gives rise to “distance”–– and the trick, as always, is somehow to close that gap.

Berner vs. British Commonwealth Airlines, Ltd., 346 F.2d 532 (1965). Berner vs. British Commonwealth Airlines, Ltd., 219 F. Supp. 289 (1963)