Pino, Dolores C. v. United States ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 29, 2005*
Decided November 30, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-3255
Appeal from the United States District
DOLORES C. PINO, Court for the Northern District of
Plaintiff-Appellant, Illinois, Eastern Division
v. No. 03 C 7466
UNITED STATES, Matthew F. Kennelly,
Defendant-Appellee. Judge.
ORDER
Dolores Pino, a resident of Morton Grove, Illinois, believes that in February
2001, while she was walking near her home, an airplane in the Chicago/O’Hare
airspace created an atmospheric disturbance that caused her to suffer from severe
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-3255 Page 2
tinnitus—a ringing sensation in the ears. She is suing the United States under the
Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1) (FTCA), because she says employees
of the Federal Aviation Administration (FAA) at O’Hare caused her injury by
negligently directing a plane to fly too low over her neighborhood. The district court
granted summary judgment in favor of the United States, and Pino appeals that
order as well as an order denying her leave to file a second amended complaint. We
affirm.
We review de novo whether the district court was correct that Pino failed to
present evidence of a genuine issue of material fact. Cont’l Cas. Co. v. Nw. Nat’l Ins.
Co., 427 F.3d 1038, 1041 (7th Cir. 2005). To state a claim under the FTCA, Pino
must show that the FAA owed her a duty and, through its breach of that duty,
proximately caused her injury. 28 U.S.C. § 1346(b)(1); Bajwa v. Metro. Life Ins. Co.,
804 N.E.2d 519, 526 (Ill. 2004). Pino argues that the district court erroneously failed
to regard her personal affidavit as sufficient to defeat summary judgment. In the
affidavit, Pino asserts that the following is evidence of FAA negligence: a United
plane flew over her making a loud noise, at the same moment she was hit by an “air
pressure wave,” and after this incident she experienced tinnitus. But in this Court,
Pino expressly denies that this United plane caused her injury.
Instead she argues in her brief that an unknown aircraft caused her tinnitus
and that she need not identify a specific plane that caused her injuries because an
air pressure wave (which arguably did injure her) had to have been generated by a
negligently controlled aircraft. While we must draw all reasonable inferences from
the evidence in Pino’s favor, Cont’l Cas. Co., 427 F.3d at 1041, we do not think the
causation sequence that Pino suggests is one that a layperson can reasonably infer
based on personal experience, Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003)
(“although personal knowledge may include reasonable inferences, those inferences
must be grounded in observation or other first-hand personal experience. They must
not be flights of fancy, hunches, intuitions, or rumors . . .”) (internal citation and
quotation marks omitted). Pino has not asserted that she is an expert on the causes
of air pressure waves, nor has she presented an expert witness to say that air
pressure waves arise only from aircraft under negligent control. Therefore, the
district court’s grant of summary judgment was correct.
Pino also argues that the district court should have allowed her to amend her
complaint to include a new claim that the FAA negligently designed the flight paths
around her neighborhood. The district court found Pino’s proposed amendment
would be untimely, prejudicial, and futile. These are all valid grounds for refusing
leave to amend, Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 792
(7th Cir. 2004), and we agree with the district court that Pino’s proposed amendment
No. 05-3255 Page 3
would be futile, although for slightly different reasons than the court stated. Pino,
after having over a year to conduct discovery, failed to present any competent
evidence that a plane caused her injury. In the absence of such evidence of
causation, Pino is just as unable to prove that her injury was caused by the FAA’s
negligent design of the airspace as she is unable to prove that it was caused by the
FAA’s negligent guidance of planes.
Accordingly we AFFIRM the district court’s decision.