FAA, O.C. Airport Cleared in Ruling on Jet Crash Suit

A federal judge has rejected a $25-million lawsuit alleging that the Federal Aviation Administration and air-traffic controllers at John Wayne Airport were to blame for a December 1993 plane crash that killed five people, including the two top executives of the In-N-Out Burger restaurant chain.

It was the crew of the chartered Westwind jet that “essentially did everything wrong” as they attempted to land at John Wayne Airport and found themselves caught in a vortex of turbulent air kicked up by a large United Airlines jet landing ahead of them, according to the ruling by U.S. District Judge James M. Ideman in Los Angeles.

Barring appeal, the ruling closes lawsuits filed after the fiery crash, which led to scrutiny of FAA policies regarding wake turbulence, the tornado-like air movement that small planes can encounter as they trail far larger Boeing 757 jets.

Amid criticism that the FAA had ignored a pattern of wake turbulence incidents, the agency in August 1996 redrafted safety policies to order small planes to keep five nautical miles away from the larger planes. The standard buffer space at the time of the Santa Ana crash was three miles.

Ideman stated in his Sept. 11 ruling that expert testimony and the crew’s own words on radio transcripts showed crew error and misjudgment preceded the crash of the corporate jet. By flying too low and descending too sharply, Ideman wrote, the crew set in place “all the elements necessary” to put themselves and their passengers in harm’s way.

Transcripts of radio communications indicate that, in the minutes before the plane crashed into a field near the Santa Ana Auto Mall, pilot Stephen R. Barkin and co-pilot John O. McDaniel acknowledged that they were “pretty close” to the jet ahead of them and that “we might still get a little wake turbulence.”

The judge also ruled that John Wayne Airport air-traffic controllers were efficient in their guidance of the flight.

“The controllers had every right to believe, and did reasonably believe, that the crew of the Westwind would maintain a safe distance above and behind the flight path of United 103,” the ruling states. “No action or inaction of any controller caused or contributed in any way to the accident.”

The crash, which occurred near the Costa Mesa Freeway at the peak of the afternoon rush hour, claimed the lives of Barkin, McDaniel and their three passengers: In-N-Out President Richard A. Snyder of Newport Beach; the fast-food company’s executive vice president, Philip R. West of Irvine; and Jack Sims, a consultant and friend of Snyder.

The owner of the aircraft, Management Activities Inc. of Long Beach, previously agreed to pay $20 million to the families of the crash victims. The company then sued the FAA and airport traffic controllers to recoup that amount. The company’s lawsuit portrayed the crew and passengers as unwitting victims who could have been saved by more effective safety policies and more diligent guidance from the control tower.

“Obviously, we’re very disappointed in the results,” the plaintiff’s attorney, Garry L. Montanari of Pasadena, said Wednesday. “I haven’t seen the ruling, so it’s inappropriate to comment. We thought we had put on sufficient evidence of negligence.”

In his opening statement, U.S. Justice Department attorney Robert J. Gross had compared the small twin-engine plane to a car racing to beat an oncoming train at a railroad crossing. Gross said Wednesday that the ruling “was the just decision” but would not comment further.

The Santa Ana crash and at least three similar incidents across the nation touched off a swirl of criticism aimed at the FAA after internal documents surfaced suggesting that the agency for years had ignored warnings that a larger buffer space should be adopted to keep 757s and smaller planes farther apart. A congressional subcommittee in 1994 concluded that the regulatory agency may have mishandled the wake turbulence issue by not acting on those warnings in a more timely manner.

But the 49-page ruling by Ideman states that the FAA acted within reasonable limits to balance its obligations to air safety.

“The propitiation of aviation risks is clearly the type of decision that is a matter of FAA policy,” Ideman wrote. “In the field of aviation there is an infinite number of potential risks. The FAA has the responsibility of determining how to allocate its resources to best operate the air traffic system.”

Ideman stated in his ruling that the FAA in this case was protected from lawsuits under a section of the Federal Tort Claims Act that allows government agencies to operate with “discretionary function,” a protection that recognizes the need of the agency to balance practicality and safety in its policies.

“It is theoretically and practically impossible for the FAA to maximize both safety and efficiency,” Ideman wrote. “The agency could maximize either one or the other. In many circumstances, the interests of safety and efficiency conflict.”

Ideman also cited previous rulings of the U.S. Supreme Court that have “held that the FAA’s statutory duty to promote safety is broad and discretionary. . . . Thus, the FAA’s decision not to warn of 757s’ wake turbulence was a matter of judgment.”