Potential Legal Claims Arising From the Crash of Comair Flight 5191 (Delta Flight 5191) article

Potential Legal Claims Arising From the

Crash of Comair Flight 5191 (Delta Flight 5191)

     On August 27, 2006 Comair Flight 5191 crashed shortly after take off from the Blue Grass Airport in Lexington, Kentucky.  All 47 passengers and two of the three crew members perished in the crash.  The crash occurred at approximately 6:00 a.m. local time and the weather conditions at the time of the crash were described as foggy with a light rain falling. 

     In the coming months representatives from the NTSB (National Transportation Safety Board), along with attorneys and investigators hired to represent individuals who perished in the crash, will attempt to determine the cause of the nation’s worst aviation disaster since 2001.  It is important to recognize that the focus of the NTSB is distinctly different from the focus of investigators who work for the families of the victims.  NTSB is concerned with protecting the flying public from a repeat of this disaster.  Accordingly, the NTSB will attempt to determine whether FAA regulations and procedures should be strengthened to prevent a similar accident in the future.  Investigators for the families will attempt to determine which parties are civilly liable for causing the crash. Although these inquiries necessarily overlap, the purpose of the each investigation is quite different.    The following issues should be carefully examined by attorneys who represent the families of the crash victims.

     A. Pilot Error

     Initial reports from the crash scene suggest that the plane may have crashed for the tragically simple reason that the plane took off from the wrong runway.  Runways are aligned along a magnetic heading and are described using the shorthand for the magnetic degree which corresponds to the direction a plane takes off or lands on the runway.  An airport with multiple runways like Bluegrass Airport are typically aligned with one having a north – south configuration and one having an east – west configuration.  The runway has a number painted at the end of the runway (or threshold) that corresponds to its heading number.  For example in the illustration below the runaway is aligned in an east - west manner at 90 degrees and 270 degrees.  The runway would therefore be described as “Niner – Two Seven.”

     Comair Flight 5191 was cleared to take off on runway 22 or the runway that corresponds with a magnetic heading of 220 degrees.  This runway would be described as ‘Four – Two Two.”  Instead the pilots mistakenly took off from runway 26 or the runway which corresponds with magnetic heading 260 degrees (Runway “Eight – Two Six”).  A number of factors could explain this error.  For example, the runway threshold may have been poorly lit or ongoing construction at the airport could have made the taxiway leading to the runway confusing.  It is not uncommon for even experienced pilots to become confused by poorly marked or confusing taxiways at an unfamiliar airport.  Nevertheless, the pilot should have immediately known that he was aligned on the wrong runway prior to takeoff because his instruments would have shown that the plane was aligned 40 degrees off from the assigned runaway.  Poor pre-flight planning, lack of proper rest, and a failure to follow proper pre-flight checklists may have allowed this oversight to spiral into tragedy. 

     If runway 26 had been a longer runway then the pilot’s error may not have resulted in a crash.  However, a Canadair RJ aircraft like that involved in this crash needs approximately 3600 feet of runway to “rotate” or begin to fly.  Runway 26 was approximately 3500 feet long and was typically used by small general aviation aircraft that do not need a lengthy runway for taking off and landing.  Runway 22 on the other hand was approximately 7000 feet long and was used by commercial aircraft like the RJ which need greater take off roll distance.  Thus, the pilots’ error in selecting the wrong runway insured that the plane did not have sufficient runway to get airborne.  As a result the plane crashed into an embankment and several trees located off the end of runway 26.

     Crash investigators have also revealed that the plane did not engage its spoilers or speed brakes – items designed to slow the plane down – indicating that even after the pilots began to move down the runway they never realized they were in the wrong place.  Investigators will undoubtedly be focused on the significant issues of pilot error which appear to be prevalent in this case.   Because the pilots were employees of Comair and the flight was operated as a Delta connection flight, both Delta and Comair are potentially responsible in a civil lawsuit for the deaths of the passengers.  Further, because the accident occurred after Delta filed bankruptcy (which generally only provides immunity for pre-bankruptcy claims) and the airline typically carries considerable insurance coverage for domestic flights, the carrier’s bankruptcy would not likely interfere with the ability of family members to recover for any negligence on the part of the pilots. 

     B.  Air Traffic Control (“ATC”)

     Whenever a plane takes off from an airport the pilot must first have clearance from the ATC.   The same is true when a pilot taxis an airplane into position to take off or land.   Before doing so the pilot must receive “clearance” from the ground controller or the controller who supervises the movement of airplanes and vehicles on the runways and taxiways of an airport.  At many large airports there are several different controllers who oversee ground and flight operations.  At the Bluegrass Airport there was one controller in charge of traffic control operations.  The air traffic controllers have an obligation to use reasonable care and diligence in performing their jobs or they may be subject to civil liability.  In particular, the ATC controller had an obligation to warn the pilots if the controller observed the plane about to depart form the wrong runway.  Although the responsibility for insuring a safe flight typically rests with the pilots, the ATC in many circumstances has concurrent duties.  Initial reports indicate that the runways and taxiways may have been poorly lit.  Thus, the ATC may have had a special duty to warn pilots about potential confusion regarding the runway configuration.  Further, the weather reports from the crash scene indicate that they pilots may not have been able to see clearly due to rain and fog.  Such weather creates conditions where pilots must rely solely on their instruments to fly and create a circumstance where the pilots are even more reliant on the ATC to act as there “eyes and ears.”  Investigators should carefully analyze whether the ATC properly performed its job in controlling flight 5191’s ground movement. 

     C.  The Airport Authority

     The airport authority at Bluegrass Airport has responsibility to insure that the runways and taxiways have proper markings which conform with FAA regulations.  The purpose of these regulations is to insure that airports are uniformly marked so pilots do not become confused about the location of runways and taxiways.  The Bluegrass Airport was undergoing construction and there had been at least one previous incident where a pilot had been confused about the location of runway 22.  Therefore investigators need to carefully examine whether the authority properly discharged its duties. 

     D.  Other Potential Factors

     Although the initial reports suggest that the three primary potential defendants in a civil action arising from this crash are the pilots, the ATC and the Airport Authority, a prudent investigator must insure that the plane and its components functioned properly.  Thus, investigators need to carefully examine whether the planes engines and instruments performed as expected. 

     The crash of flight 5191 was a tragedy and investigators working on behalf of the government and the victims must exhaustively investigate this crash to determine who was at fault and to insure that such a crash never happens again.