Cerritos Crash Lawsuits Will Put Government to Test

To an almost unprecedented degree, the flood of lawsuits growing out of the Cerritos air disaster places the nation’s air traffic control system on trial for its ability to guarantee safe passage to the flying public.

Though blame ultimately may be assessed against Aeromexico, the estate of the pilot whose private plane collided with the airline’s DC-9 and a host of other legal targets, it is the federal government’s control of the skies that is likely to attract the most debate as the crash investigation moves from the laboratory into the courtroom.

“I think this is a case in which the government’s responsibility for providing air traffic services will be litigated to the full,” said Rod Margo, a lawyer for Aeromexico and a professor of aviation law at UCLA.

“What this case is going to crystallize is the whole problem of congestion caused by civilian traffic and commercial traffic coming into the Los Angeles Basin,” said William Blum, a lawyer for heirs of some of the Aeromexico passengers. “I think it will have a very beneficial social purpose, apart from what it does for the individual litigants involved.”

A total of 48 lawsuits seeking compensation for the injured, the homeless and the families left behind after the deadly collision of a heavily loaded DC-9 and a Piper Archer last Aug. 31 are scheduled to go to trial within the next 18 months before U.S. District Judge David V. Kenyon.

Nearly all the lawsuits target the federal government, which is at once the most elusive legal target in the case and the only one capable of paying the hundreds of millions of dollars in damages asked by the air crash’s victims.

It would seem easy to prove some liability against the government, since the National Transportation Safety Board has found that “limitations” in the nation’s air traffic control system and the controller’s failure to see the Piper on his radar screen were factors in the accident.

Plaintiffs’ lawyers point repeatedly to the board’s findings, raising questions about the controller’s failure to warn the jetliner’s pilots of an impending collision and whether the controller did not see the small plane because his radar equipment was outdated or poorly maintained.

But the board’s findings are not directly admissible in court, and in any case, the federal government is protected by a web of legal immunities that may prove difficult to penetrate.

The government, for example, is arguing that the pilots themselves had a responsibility to look more carefully ahead of them and to avoid the collision.

Moreover, since the federal government is automatically immune from any suits stemming from government policy decisions, plaintiffs may find it impossible to attack the government’s failure to allocate additional funds for air traffic control resources.

“The government’s position basically is that neither the air traffic controllers nor the federal government caused the mid-air collision,” said Amy Brown, a spokeswoman for the Department of Justice.

But the government stands beside nearly a dozen other defendants, all with potential liability to share in the disaster.

Nearly all the parties have also sued Aeromexico, suggesting that the airliner’s cockpit crew should have been more vigilant in looking out for other aircraft and that the passenger jet should have been equipped with collision-avoidance equipment.

Aeromexico is countersuing, seeking indemnification from the estate of the Piper Archer pilot, William K. Kramer, and the government for its legal costs and compensation for the $10-million passenger jet destroyed in the crash.

Kramer left a $1-million insurance policy and about $20,000 in other assets, most of which his insurance company has deposited with the court to determine who is entitled to it.

Other plaintiffs also have targeted Kramer’s estate. They claim that Kramer’s plane should not have strayed into the terminal control area surrounding Los Angeles International Airport without permission from controllers.

Wrongful Death Suits

Families of victims injured or killed on the ground have sued for wrongful death and damage to their homes. At least two lawsuits have been filed by residents whose homes were not damaged but who suffered emotional scars from the hail of charred body parts that descended onto their neighborhood.

Damages may be particularly difficult for victims to collect because of the 1929 Warsaw Convention, under which Aeromexico claims it is limited to paying $75,000 in damages for each passenger on international flights.

The airline has already offered settlements in that amount to the passengers’ heirs, subject to proof of damages. Two have accepted so far.

Some lawyers will attempt to get around the convention limits by arguing that the notification of the damage limits was not printed prominently enough on passenger tickets or attempting to prove that a stewardess was in the cockpit within moments of the crash, in violation of federal air regulations.

Enter ‘Deep Pockets’

Thus, with Kramer’s assets limited and Aeromexico’s liability to passenger heirs also apparently limited, the federal government remains as one of the few “deep pockets” from which to collect whatever damages ultimately are assessed.

For that reason, a key issue in the litigation will be whether the damage-limiting provisions of California’s Proposition 51 apply, lawyers say.

If they do, as some attorneys in the case believe, it will be impossible to collect large sums of damages for non-economic losses from the federal government unless a large share of liability has been assessed against it.

That means that some survivors could be awarded large--but uncollectable--judgments.

Few attorneys, however, expect the litigation to reach that stage. Though some say it may be possible to persuade Kenyon to rule early on the federal government’s level of liability, most say the parties will likely settle on damage awards long before the case actually goes to trial.