Section II, Professor Franks

Final Examination, Fall 1993

1. Carefully analyze the facts and grasp the issues in each question before beginning to write. Spend time reading the question slowly and carefully.

2. State the issues and answers to each question concisely. Lengthy answers are not necessary.

3. Do not repeat questions in your answers. Write neatly and legibly on only one side of each page.

4. Number your answers to correspond with the question, e.g., "II-C."

5. If you feel it necessary to assume additional facts in any of the questions, give the facts that must be added and state why.

6. Do not write in the margin of the book.

7. All major questions are equally weighted unless otherwise indicated. Subparts are approximately equal but may be weighted slightly differently according to the number of issues involved in that subpart.

8. Write your fictitious name and number and the name and section number of the course on which you are being examined on the cover of each examination book.

9. If you use more than one book, indicate "Book One," "Book Two" and so forth on the cover of each book and write your fictitious name and number and the name and section number of the course on the cover of each examination book.

10. A GOOD ANSWER IS NOT NECESSARILY A LONG ANSWER.

Upon graduation from Southern University Law Center, you pass the bar on your first attempt and immediately accept an offer of employment as an associate in the law firm of Simpson Bart & Associates. Shortly before you went to work for the firm, a Cajun Charter Air Lines flight from Las Vegas crashed one foggy night on final approach to Ryan Field in Baton Rouge, the 727 striking the Southern University overpass bridge and killing all aboard except the co-pilot, one stewardess and three of the seventy-nine passengers.

An airplane's cockpit voice recorder contains the last conversations between the pilot and the air traffic controller. This one went as follows:

In addition to a cockpit voice recorder, every large airplane has a flight data recorder that contains the airplane's last instrument readings. Flight 982's flight data recorder reveals that at the time of the crash the 727's altimeter showed it to be at an altitude of 269 feet above sea level.

The FAA's published instrument approach procedures prohibit aircraft from descending below a "decision height" (also known as a "minimum descent altitude") until the pilot has the runway in sight. The published instrument approach procedures for Runway 22-Right also prohibit descent below that altitude when runway visibility is less than 2,400 feet. For Baton Rouge's Runway 22-Right, the decision height is 278 feet.

The National Weather Service office at Baton Rouge maintains a "recording transmissometer" which keeps a continuous tape of the visibility on each of the airport's runways. At the time of the crash, visibility on Runway 22-Right was running at 2,400 feet.

Immediately after the accident, the co-pilot, Charles Peters, told Jerry Journalist, a reporter for the Morning Advocette, "I tried to tell Captain Smithers that we were forty degrees off the glide path and too low. He just wouldn't listen." The story appeared in the paper the next day.

Following the accident, the National Transportation Safety Board (NTSB) took the testimony of the air traffic controllers at Ryan Field, the surviving co-pilot, the surviving stewardess, and various accident investigators for the NTSB and the Federal Aviation Administration. The NTSB also considered the flight data recorder and the cockpit voice recorder aboard the aircraft.

The NTSB has now issued its findings, and finds that the accident was the fault of pilot error in descending below the minimum descent altitude (decision height) without having the runway clearly in sight.

Cajun Charter Air Lines' theory of the case is that the altimeter was in error by forty feet, erroneously showing the plane to be lower than it really was. (According to FAA rules, altimeter errors of up to 75 feet are permissible.) Thus (according to Cajun Charter's aviation accident reconstruction specialist, Dr. M. A. Hooker), the plane never descended below 278 feet altitude and therefore never violated the regulations.

This was not the first incident involving Captain Smithers (though most assuredly it was the last). In 1986, he was fined $3,000 for landing in below-minimums weather. In 1987, he was convicted and served one year's probation for writing bad checks at K-Mart. And in 1988, his pilot's license was suspended for ninety days for flying on July 1st when his medical certificate had expired one day before, on June 30th.

Co-pilot Charles Peters had his pilot's license suspended for six months back in 1990 for landing at the wrong airport. Thinking he was going into Baton Rouge one night, he instead arrived unexpectedly with a planeload of intoxicated LSU football fans at England Air Force Base in Alexandria.

Your employer, Simpson Bart, filed suit against Cajun Charter Air Lines in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, alleging negligence of the pilot in descending below the minimum descent altitude (or decision height) without having the runway in sight. Your firm represents the following two clients:

1. Mildred McGruder has filed a wrongful death claim. Her late husband, Mitchell McGruder, was president of Hamilton State Bank in Baton Rouge. Prior to his demise, Mitchell McGruder regularly ate lunch at Larry's Lounge. The cocktail waitress there, Passionada von Climax, had been having an affair with McGruder. Before his death, McGruder confided to Passionada, "I've been stealing from the bank. They're going to find me out. My career is over. Will you visit me if I go to prison?"

Two weeks before the accident, Mildred told her best friend, Freda Bestfriend, "Mitchell is a no-good philanderer and I'm afraid with his nocturnal habits he's going to give me AIDS. I'm divorcing the bum as soon as I can scrape up my lawyer's retainer."

2. Fred Flammard, age 32, survived the crash, but sustained severe burns, has permanent scarring, and lost two fingers on his right hand. A concert pianist before the accident, he now works as a fry cook at McDonald's.

Your employer is preparing a "trial book" listing all witnesses, the facts to be adduced from each witness, the evidentiary rules that might allow such testimony to be admitted, all exhibits to be used, and the evidentiary rules that might allow such exhibits to be admitted.

For each of the following listed witnesses, state the principal facts you intend to develop from that witness and state the rule or principle involved (reference to rule numbers is not necessary). How do you intend to prove the negligence of Cajun Charter Air Lines?

For each of the following listed exhibits, state how you intend to get such exhibit admitted.

I-A. FRED FLAMMARD. On his way to the hospital, Fred Flammard told the ambulance driver, "I am in pain." State every possible basis on which you might get this statement admitted.

I-B. CO-PILOT CHARLES PETERS. First, what facts will you bring out through his testimony? Second, how if at all may you use his prior license suspension?

I-C. JERRY JOURNALIST. What will you bring out through his testimony? Is is relevant? Is it admissible? Under what circumstances? On what theories?

I-D. MIRANDA MARTINEZ is an aviation accident investigator for the Republic of Mexico. She was on loan to the United States National Transportation Safety Board at the time of the accident, and participated in the investigation of the crash. She has her own theories of how the accident happened, and her theories are helpful to the plaintiffs' case. Unfortunately, they are based on techniques of aviation accident investigation developed in Mexico and not yet used in the United States. May she testify as an expert witness, and may she express an opinion based on her techniques?

I-E. EXHIBIT: COCKPIT VOICE RECORDER TAPE. How if at all do you intend to get it into evidence?

I-F. EXHIBIT: FLIGHT DATA RECORDER TAPE. How if at all do you intend to get it into evidence and the data thereon interpreted so a jury can understand it?

I-G. EXHIBIT: NTSB REPORT. How if at all do you intend to get it into evidence? What use, if any, may be made of it at the trial.

II-A. If the co-pilot fails to show up for trial, can you instead use his testimony given before the National Transportation Safety Board? Why or why not?

II-B. How if at all might you use the article that appeared in the Morning Advocette? Can you get the article into evidence? How? Under what circumstances? On what evidentiary bases?

II-C. May the NTSB report be used to prove the pilot's negligence? How?

II-D. You have subpoenaed the aircraft mainenance records to show that the altimeter was absolutely accurate when tested just one week before the accident. How will you get the records into evidence?

II-E. How do you intend to prove the 278-foot minimum descent altitude applicable on the runway in question? How do you intend to prove the weather that day?

II-F. The defense wants to use Mitchell McGruder's statement to Passionada Von Climax. Will they succeed? Discuss.

II-G. The defense wants to use Mildred McGruder's statement to Freda Bestfriend. Will they succeed? Discuss.

II-H. How if at all may Captain Smithers's prior incidents be used against him at trial?

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