Trial Over Cerritos Air Collision That Left 82 Dead Begins

More than two years after an Aeromexico passenger jet and a private plane slammed together in the skies over Cerritos, a trial opened in Los Angeles on Tuesday to determine who was responsible for the fiery crash and the millions of dollars in damages claimed by survivors of the dead.

A 12-member U.S. District Court jury began hearing opening arguments from the first of 14 lawyers who will seek to affix liability for the Aug. 31, 1986, disaster that claimed 82 lives, leveled several homes and left lingering questions about the adequacy of the nation’s air traffic control system.

The trial, which opened in Judge David V. Kenyon’s courtroom after a full day of jury selection, will--over the next three months--elicit testimony from dozens of air traffic control experts, pilot representatives and witnesses to the crash to determine what percentage of liability should be assessed each defendant in the nearly 50 individual lawsuits pending before the court.

Air Traffic Control System

Though the National Transportation Safety Board has already concluded that shortcomings in the nation’s air traffic control system deserve the majority of the blame, those findings as a matter of law are not admissible in legal proceedings. Moreover, the trial must determine who is legally responsible for damages, and those legal findings of liability could differ substantially from an investigative panel’s conclusions.

Under federal law, for example, the U.S. government has asserted immunity from lawsuits targeting the design and operation of the air traffic control system as part of the government’s “discretionary function.”

But the United States has conceded that plaintiffs can collect damages from the government if they establish that Walter White--the controller who oversaw Aeromexico Flight 498’s approach into Los Angeles--was negligent in failing to alert the DC-9 to the oncoming Piper Archer private plane.

Another complicating factor is a 1929 treaty, known as the Warsaw Convention, and its subsequent amendments, which limit international carriers’ liability to $75,000 per passenger--unless willful misconduct on the part of the carrier can be established.

Aeromexico, which claims protection under the treaty, has already settled for the $75,000 maximum in the cases of 12 passengers and has reached three more similar tentative settlements.

But in a major ruling earlier this month, Kenyon refused to grant the airline’s summary judgment motion seeking to limit damages to $75,000, holding that there are “genuine issues of material fact” to be presented to a jury to determine whether the airline may, in fact, be guilty of willful misconduct.

‘Heavy Responsibility’

Government lawyers claim Aeromexico must bear “heavy responsibility” for the collision and claims that the carrier can be proven guilty of willful misconduct by failing to ensure that its pilots were adequately trained and by failing to conform to an industry standard when it did not instruct its pilots to use landing lights during daylight hours when approaching a busy airport, such as Los Angeles International.

In turn, Aeromexico--along with lawyers for the victims’ survivors and the jetliner crew’s families--claims that the controller’s failure to warn the flight crew of the private pilot’s approach is the primary reason for the midair collision.

The estate of William Kramer, the pilot of the Piper, has already admitted some liability and has asked the court to apportion proceeds of Kramer’s $1-million insurance policy after relative liability is established.

“The tort system is dealing with the events of Aug. 31. And, in that context, it is a careful examination of all the participants, and what they did or didn’t do,” said Justice Department attorney Steven J. Riegel, who is defending the government.

Attorneys for victims’ survivors, who were the only ones to present opening statements Tuesday, argued that Kramer clearly strayed illegally, but apparently not deliberately, into the Terminal Control Area overlying Los Angeles.

The real fault, plaintiffs’ lawyer Joseph T. McCarthy said, is with the FAA’s reliance on pilots’ ability to “see and avoid” one another in good weather, regardless of whether they have traffic warnings from ground controllers.

“Unfortunately in the jet age and with the closing speeds we’re talking about here, this concept is full of imperfections and inadequacies,” McCarthy told the jury. “It may be the best thing that we have, but by itself, the evidence will show, it cannot work.”

The controller on duty has testified in past hearings that, probably because of equipment malfunctions, the radar “blip” that was Kramer’s oncoming plane did not show up on his screen. Subsequent readings of the radar computer tapes show that Kramer’s plane was picked up by the Los Angeles radar, but government lawyers say there is still a possibility that that target, nonetheless, did not appear on the controller’s screen.

In any case, they say, the controller had no way of knowing that Kramer’s plane was on a collision course with the airliner, because Kramer’s plane did not have an electronic transponder that would have automatically notified controllers of his altitude.

The controller might well have assumed that Kramer was either above or below the restricted airspace in which the Aeromexico jet was traveling, Riegel said.

After testimony concludes, a final jury of six of the 12 jurors will be asked to make recommendations on relative liability. However, the panel’s findings will be binding only as to the matter of Kramer’s estate.

In the case of the U.S. government and Aeromexico, the jury will make recommendations and the judge will issue a final determination.