In Re Air Crash Disaster at John F. Kennedy International Airport on June 24, 1975 , 635 F.2d 67 ( 1980 )

MOORE, Circuit Judge:

This case involves the tragic crash of an Eastern Air Lines, Inc. (“Eastern”) Boeing 727 jet aircraft at John F. Kennedy International Airport (“JFK”) in New York City on June 24,1975. Defendant Eastern, operator of the aircraft, appeals from a judgment of liability after a jury trial in the Eastern District of New York (Honorable Henry Bramwell, District Judge). Eastern alleges various reversible errors committed during the trial and in the Judge’s charge to the jury, and requests a new trial. Although many facts dealing with this disaster will be discussed as specific points are addressed, a brief overview of the crash and subsequent legal actions is required.

On June 24, 1975, Eastern Flight 66 left New Orleans at 1:19 P.M. (all times are Eastern Daylight Time) bound for JFK. The plane made an uneventful trip to the New York area and prepared to land at the airport beginning around 3:30 P.M.¹ At that time, a severe thundershower was in the vicinity of the airport. Eastern 66 was aware of the thundershower both by observation and by reports of wind shifts and lower visibility at the airport (App. 3545-47, 3537). Eastern Flight 902, which preceded Eastern 66 by about seven minutes, implemented a missed approach on Runway 22L at JFK because of severe wind shear experienced at the approach end of Runway 22L. Two other planes subsequently landed on Runway 22L. The next plane in the sequence to land was Flight 66. As Eastern 66 approached the runway, it evidently was caught in a wind shear which caused it to crash some 2500 feet short of the runway. The accident killed 113 persons; 11 survived.

Much litigation arose from the tragedy. Many plaintiffs brought suit against a variety of defendants, and the Judicial Panel on Multidistrict Litigation transferred all cases to Judge Bramwell in the Eastern District of New York. On December 15, 1977, after pretrial discovery, Judge Bramwell transferred all passenger cases to his court in the Eastern District. These actions, some of which form the basis of this appeal, were set for trial on the question of liability only against defendants Eastern and the United States of America (employer of the allegedly negligent JFK air traffic controllers).

Before trial, the United States chose not to contest liability. Eastern then decided to go to trial on the liability issue, after Judge Bramwell refused to let the damages trial against the government go forward until Eastern’s liability was ascertained. On October 31, 1978, a jury found Eastern liable for its negligence in the crash. Eastern sought to appeal the liability judgment under 28 U.S.C. § 1292(b) based on certain alleged reversible errors. The certification to appeal was granted by the District Court, and this Court granted the appeal on January 16, 1979.

I.

Eastern’s appeal sets out purported errors made during the six week trial. The airline does not claim that there was insufficient evidence to present to the jury, but rather claims that the refusal to admit evidence and the prejudicial charge to the jury denied Eastern a fair trial. Before addressing the individual allegations of error, we must review the evidence of negligence offered by the plaintiffs.

Plaintiffs claimed that both Eastern and the Government were liable for negligence resulting in the plane crash, Eastern for its operation of and failure to provide information to Flight 66, and the Government for failing to give weather data to Flight 66 as it sought to land. Eastern contested its liability after the Government had admitted liability, evidently claiming that the Government’s negligence was the sole proximate cause of the air crash.

The evidence that plaintiffs presented dealing with the negligence of Eastern’s managers, its ground staff, and the personnel on Flight 66 was substantial, and a jury could properly hold Eastern liable as the sole tortfeasor or as a joint tortfeasor based on those facts. Upon review of this evidence, the transcript of the trial, and the errors alleged by Eastern, it is our opinion that Eastern had a full opportunity to state and prove its defense and that the trial was conducted fairly and properly.

Briefly, the evidence adduced at trial showed possible negligence by Eastern’s management in allowing pilots to land in thundershowers and possible negligence by the Eastern ground personnel for not updating the weather conditions and telling the pilot that severe thunderstorms were in the area. In addition, there was much evidence of negligence by the crew of Eastern 66: The co-pilot was flying the approach rather than the Captain; the Captain failed to read out altitude, air speed and rate of descent at certain heights (400 feet and 300 feet) as required by the aircraft and Eastern’s manuals; the target speed of the plane during the landing was too low; and the co-pilot improperly proceeded below the decision height (the height at which a missed approach decision must be made) without having the runway environment clearly in view, as the Federal Air Regulation (14 C.F.R. § 91.117(b)(2) (1979)) provides.

In addition, the flight crew of Eastern 66 was aware of the severe weather conditions both by seeing white caps on the ocean (App. 3531-32), “black tunnels” in the clouds (App. 3545) (indicating severe weather conditions) and by reports from the airport concerning wind shifts and lower visibility. The crew also heard a severe wind shift report from Flight 902, another Eastern flight, which had executed a missed approach because of severe wind shear minutes before Flight 66 crashed. Thus, the Eastern 66 crew was well aware of the dangers at the end of the runway but chose to ignore all warnings, even those of their fellow flight officers, and attempted to land the aircraft. A jury, relying on all these facts, could properly find Eastern’s negligence a proximate cause of the air crash.

Any error which Eastern asserts must be prejudicial before we will grant a new trial. We are not concerned with “errors or defects which do not affect the substantial rights of the parties”. 28 U.S.C. § 2111 (1976); Fed.R.Civ.P. 61. Furthermore, appellant Eastern has the burden of proving that the errors affected the substantial rights of Eastern as they relate to this trial. Palmer v. Hoffman, 318 U.S. 109, 116, 63 S.Ct. 477, 481, 87 L.Ed. 645 (1943). We hold that most of the errors alleged by Eastern were not error and, furthermore, that those alleged errors and other errors that may indeed have been committed were all harmless.

II.

THE ERRORS ALLEGED BY EASTERN:

1. The Refusal of the Judge to Allow Eastern to Read Stipulated Facts Into the Record.

When this litigation still involved Eastern, the United States, and the various plaintiffs, all litigants entered into a stipulation of facts for the impending trial. Some of these facts were agreed to by all, but others were disputed by one of the defendants, either Eastern or the Government. During the trial, plaintiffs’ attorneys sought to read certain of these facts into the record. These facts dealt primarily with “hard” information such as the time the plane left New Orleans, the fact that the plane was operating normally, and the fact that Eastern owned the aircraft. (App. 756-59). Eastern’s attorney followed as plaintiffs’ attorney read the facts, and assented to all of them, stating “That’s agreed” or “yes” or “Okay”. (App. 756, 758). Later in the trial, Eastern sought to read into evidence certain other facts that were in the stipulation. (App. 1971-73, A105-114). These facts not only dealt with “hard” information such as the fact that the air controllers were government employees and the dimensions and lighting of JFK runways, but also dealt with allegations which would establish the negligence of the United States. These “soft” facts included allegations that the Government air controllers knew of the adverse weather conditions but neglected to inform Eastern 66 of the conditions, that they neglected to change the' runway used for landing approaches, and that the controllers failed to solicit information from the two planes that landed immediately before Eastern 66 even though both had encountered severe wind shear. (App. A105-114). Plaintiffs’ counsel, although willing to allow in the “hard” facts such as the runway dimensions and runway lighting, vigorously objected to the “soft” facts dealing with the United States’ negligence (App. 1962-63, 1976, 1984-85). The Judge allowed Eastern to make an offer of proof as to any of these facts, but refused to allow them to read from the stipulation.

Eastern did submit evidence to the jury of the United States’ negligence (i. e. the negligence of the air controllers), which tracked the allegations of the stipulation. For example, Eastern solicited from plaintiffs’ expert witness the facts that the air controllers should have given weather information to Eastern 66 and should have requested weather information from the two planes that landed before Eastern 66. (App. 1877-80). That witness also opined that Eastern 66 would not have made a landing approach had it received such information. (App. 1879-80). Additionally, Eastern introduced a transcript of the Local Controller Communications (App. 3464-3500) which clearly shows that the Government controllers knew of the severe wind shear and that there had been requests to change the runway for landing approaches. (App. 3487-89). Thus, this information was conveyed to the jury, although not by reading from the stipulation.

It was not error to require Eastern to submit evidence of the United States’ negligence rather than read from the “stipulation”. The nature of the stipulation and the patent difference in the facts read by the plaintiff and those requested to be read by Eastern lead us to the conclusion that the trial Judge was correct.

The facts which plaintiffs read were stipulated to by all parties except in three cases. The Government partially denied two facts: (1) that Eastern 66 was being piloted by the co-pilot during the approach and up until the crash (Fact 14, App. A100), and (2) that Eastern 66’s engines were functioning properly (Fact 17, App. A101). The Government disagreed with these only because they did not agree that the co-pilot was properly operating the plane or that the engines were being properly operated. (App. A126). These partial refutations did not affect these facts as they were presented to the jury. The other disputed fact presented by plaintiffs (Fact 26(a), App. A102) concerned the instrument landing system on Runway 22L. Only Eastern denied this in the supplementary stipulation (App. A145b), and they did not object to its introduction at trial. All other facts presented by plaintiffs were undisputed stipulated facts.

The facts sought to be introduced by Eastern involved both undisputed and vigorously disputed facts. Plaintiffs did not object to the introduction of the undisputed facts such as runway dimensions (App. 1985). However, the plaintiffs did object to the introduction of the disputed facts, all dealing with the Government’s negligence, which were vigorously disputed by the Government in the stipulation. Thus, plaintiffs introduced only undisputed “hard” facts, while Eastern sought to introduce facts which were contested.

Furthermore, the settlement by the United States was a “dramatic change in circumstances” (App. A190), as Eastern’s attorney characterized it. Consequently, plaintiffs were not bound by the disputed portions of the stipulation.

2. The Refusal of the Judge to Allow the Playing of the One Channel of the Cockpit Voice Recorder² by Itself.

This purported error was an action clearly within the discretion of the trial judge. He ruled, under Fed.R.Evid. 106, that the one channel of the tape was an integral part of the entire tape. The judge heard the tape five times, and then decided it must be played all at once. It was clearly not error to require the tape to be played in that manner.

Federal Rule of Evidence 106 requires any other part of a writing or recorded statement to be admitted “which ought in fairness to be considered contemporaneously with” [the written or recorded statement], F.R.Evid. 106. Rule 106 applies to tape recordings. 1. J. Weinstein, Evidence, H 106[01] at 106-10. The Judge properly required that the entire tape be played, with adjustments in the volume to make the channels of the tape clearer.

Fountain v. United States, 384 F.2d 624 (5th Cir. 1967), cert. denied, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968), does not support Eastern’s position, but rather supports the ruling of the Judge. The relevant part of that case dealt with the admissibility of a noise-suppressed copy of a tape recording. The court allowed the noise-suppressed tape to be admitted. Appellant contends that, similarly, the cockpit tape should be played without the other channels. However, the only thing removed from the tape in Fountain was

“the noise between words.... [I]f a signal is coming through and a man stops talking or an individual stops talking and there is noise in the background, it removes this noise, but only this noise .. . This at no time is affecting the original tape.” 384 F.2d at 629 n. 4. (emphasis supplied).

3. The Refusal of the Judge to Allow in the National Transportation Safety Board (NTSB) Chart.

Eastern sought to have an NTSB chart admitted into evidence. The chart compared the established glide slope path³ with the actual path of Flight 66. This was relevant because plaintiffs sought to prove that Eastern had deviated from the glide slope path. Plaintiffs’ attorneys objected on two grounds: (1) that the evidence was misleading and confusing and (2) that 49 U.S.C. § 1441(e) (1976) (Section 701(e) of the Federal Aviation Act) precludes the use of any NTSB documents.

We hold that exclusion of this evidence was clearly within the trial court’s discretion under Fed.R.Evid. 403. The thickness of the lines on the chart, and the fact that the times of conversation marked on the chart did not match the stipulated conversation times could have misled the jury. The times are not de minimis. (App. 2407). The plane was traveling about 250 feet per second (based on 140 knots) (App. 2427) immediately before the crash. It would have made the runway in ten seconds. We believe the Judge’s ruling was correct.

4. The Remarks of the Plaintiffs’ Attorney Regarding the Failure of a Deposed Witness to Appear at Trial.

In the summation of one of the plaintiffs’ attorneys, mention was made of the fact that one of Eastern’s witnesses did not come to testify at trial, but rather that his deposition was taken and read at trial. The Judge had instructed the attorney not to make mention of that fact. Eastern seeks a new trial based on this error.

While we do not approve of counsel’s obvious disregard of an instruction to the attorneys, we do not think it affected the substantial rights of Eastern. The Judge did state in the jury charge: “[Deposition] testimony is entitled to the same consideration and is to be judged as to credibility and weighed and otherwise considered by you in the same way as if the witness had been actually present in court. . . . ” (App. 3260). This charge to the jury helped mitigate whatever impact on the jury counsel’s insinuations may have had.

With all due respect, the dissent overemphasizes the impact of this point on the jury. Plaintiffs’ counsel only mentioned that Buttion was not called to testify. (App. 3186, 3209, 3214). The reason the failure to be called was mentioned was to emphasize that testimony, not to indicate that Buttion was to be disbelieved or was unwilling to testify. As plaintiffs’ counsel stated “They [Eastern] were hoping that you [the jury] would fall asleep when Button's deposition testimony is read”. (App. 3209). In fact, plaintiffs’ counsel stressed the fact that deposition testimony is to be treated the same as live testimony. “It’s [Button’s deposition] their admission, just as if it came from that witness stand”. (App. 3209). We feel the curative instruction mitigated the adverse impact, if any, on Eastern which this comment may have had.

5. The Refusal of the Judge to Allow in Evidence That the United States Had Consented to a Liability Judgment.

The Judge refused to allow in the fact that the United States had consented to liability or that the United States and Eastern had agreed to a 40/60 split of any damages. It was not error to do so. Federal Rules of Evidence 403 allows the trial judge to exclude misleading evidence. We believe the Judge properly excluded the information because it would have only served to mislead the jurors and confuse the issues. (App. 177).

6. The Charge to the Jury.

Finally, Eastern asserts that the charge to the jury was prejudicial and deprived Eastern of a fair trial. Plaintiffs counter that the charge was fair and balanced, and that objection to some portions of the charge were not properly made. We reject the latter contention: Federal Rule of Civil Procedure 51 read in conjunction with Rule 46 requires only a minimal objection to a jury charge. 5A J. Moore, Federal Practice 11 51.04 (2d ed. 1979). Eastern satisfied that requirement. However, the charge, although not a paradigm of clarity and succinctness, was, on balance, sufficient to apprise the jurors of their function and of the law they were to consider in rendering their verdict. We treat the allegations of error seriatim:

(a) The duty to others charge.

Eastern asserts that various paragraphs of its Proposed Charge dealing with the duty of others to Eastern should have been charged. These included basically the duty of the air controllers to report weather conditions to Flight 66 and the duty of the planes that landed before Eastern 66 to report wind shear to the tower. We feel that the charge sufficiently addressed these points. Judge Bramwell charged “However, before a pilot can be held legally responsible, he must be supplied with those pertinent facts that he is not in a position to know for himself. Those pertinent facts which the air traffic controllers . . . were expected to provide included current weather information”. (App. 3281). Additionally, the Judge charged the jury with two Federal Aviation Regulations, one which dealt with strict adherence to Air Traffic Controller directions (App. 3280) (suggesting that Eastern had to land once cleared to land) and the other which dealt with the requirement that pilots flying under Instrument Flight Rules (IFR) must immediately report “Any unforecast weather conditions encountered”. (App. 3281). Finally, the Judge allowed Eastern to argue the essence of these Proposed Charges in its summation.

This aspect of the charge was clearly correct. It conveyed to the jury the fact that the Eastern crew could rely on the Air Controllers and other pilots to provide them with weather information, but that the crew was not absolved from responsibility for negligence related to weather they could clearly see (the black tunnels) and hear about (Flight 902’s report of wind shear). The law is clear that one cannot fail to use his or her own eyes and ears to offset obvious negligence by another. Boerio v. Haiss Motor Trucking Co., 7 A.D.2d 228, 181 N.Y.S.2d 823, 827 (1959); Townes v. Park Motor Sales, Inc., 7 A.D.2d 109, 180 N.Y.S.2d 553, 556 (1958). Indeed, the Judge charged language from an opinion which pinpointed this aspect of negligence in airline crashes:

The pilot has a continuing duty to be aware of danger when he can gather adequate information with his own eyes and instruments. Spaulding v. United States, 455 F.2d 222, 226-27 (9th Cir. 1972) (footnote omitted) App. 3282.

We think the judge properly instructed the jury as to the duty of others to the Eastern personnel and the duty of the Eastern crew to use all reasonable means and information to avoid a crash.

(b) The New York State Aeronautical Statute Charge.

Judge Bramwell charged the jury that they should consider whether Section 245(1) of New York’s General Business Law⁴ applied to the facts as they found them. That statute prohibited the operation of an aircraft in a careless or reckless manner. Eastern contends that the Judge improperly delegated to the jury his obligation to present and decide the law, and that the state statute was preempted by federal statutes.

We find both arguments to be meritless. By stipulation, New York Law applied to this section, and the federal statute does not preclude common law remedies. 49 U.S.C. § 1506 (1976). Furthermore, the Judge allowed the jury to find the facts, and instructed them only to “say whether this section of the law has any application to the facts as you find them to be from the evidence”. (App. 3272). Surely whether the pilot was reckless or not was a fact question for the jury. Eastern’s argument is not persuasive.

(c) The “special knowledge” charge.

Judge Bramwell charged the jury that the Eastern personnel must be held to a higher standard of care because of their professional status. Eastern objects to this charge contending that Eastern’s Radio Controller did not possess special skills. Eastern does not contest the charge as to its pilots. (Appellant Br. 46). Suffice it to say that the operations clerk must have had some skill in gathering weather data and relaying it to Eastern pilots, sufficient to warrant a charge of “special training and experience”. Regardless, this portion of the charge was not such to amount to reversible error. Sufficient evidence of the negligence of the pilots and Eastern management was presented to sustain the verdict. We do not think this portion of the charge, even if it were error to charge, was so misleading as to preclude the jury from fair consideration of the case.

(d) The Federal Air Regulations (FAR) charge.

The Judge charged the jury to consider certain FAR and to determine if “any of these regulations are applicable to the facts as you find them”. (App. 3279). If they were, the Judge then instructed the jury to consider whether Eastern had failed to comply with those regulations and whether non-compliance was a proximate cause of the crash. Then, “such noncompliance may be considered by you as some evidence of negligence on the part of Eastern Airlines”. (App. 3279).

Eastern makes two objections to this aspect of the charge: first, that these regulations were not “minimum standards of safety” as the Judge charged, and that second, various regulations that were charged, were inapplicable or confusing.

To begin, these regulations do outline minimum standards of safety. The language in 49 U.S.C. § 1421(a)(6) (1976) is clear:

“The administrator is empowered and it shall be his duty to promote safety of flight of civil aircraft in air commerce by prescribing and revising from time to time:

(6) Such reasonable rules and regulations, or mimimum standards, governing other practices, methods, and procedure, as the Administrator may find necessary to provide adequately for . . . safety in air commerce.” (emphasis supplied).

The legislative history is also clear:

“This title deals primarily with the powers and duties of the Administrator relating to minimum standards of safety . . ..” H.R.Rep.No. 2360, 85th Cong., 2d Sess. reprinted in [1958] U.S.Code Cong. & Admin.News, pp. 3741, 3756 (emphasis supplied).

Thus, these regulations do prescribe minimum standards of safety for aircraft personnel.

Concerning the various regulations that were charged, although they were not very eloquently outlined, they were potentially applicable to the facts as the jury might find them. Eastern maintains that there was no evidence of non-compliance with certain of these regulations.⁵ However, as the plaintiffs clearly outline (Ap-pellee Br. at 47-48) these regulations cumulatively create a duty of the aircraft dispatcher to relay information to the pilot concerning the weather, and a duty of the pilot to make sure he is so informed. There was evidence that the pilot and the aircraft dispatcher had not complied with these regulations. (App. 1225-46; 1366-72). This included evidence that an Eastern clerk had not passed on information of a “strong wind warning” to Flight 66 and that certain other relevant weather information had not been given to Flight 66.

Eastern also objects to other charged regulations which dealt with control of the aircraft and the necessity of preparing Operating Manuals.⁶ FAR 91.3(a) might have been relevant to the facts that the co-pilot was piloting the aircraft and that, according to the regulation, the pilot had final authority, even over the air traffic controllers. The other regulations established that the Eastern Manual might be some evidence of the standard of care which Eastern was required to use. The “high degree of safety” language in FAR 121.135(a)(1) did not confuse the jury, but was consistent with the charge concerning the duty to others owed by specially trained and experienced personnel. On balance, we feel that this aspect of the jury charge properly conveyed to the jury that these regulations, as applied to the facts, outlined a standard of care against which Eastern could be tested. Thus, non-compliance with these regulations could be considered by the jury as “some evidence of negligence on the part of Eastern Airlines.” (App. 3279).

(e) The Federal Aviation Administration Advisory Circular (AC) Charge.

Eastern complains of the charge which related to the admission in evidence of certain AC’s. (App. 3284-86). Eastern claims they are advisory only and do not attempt to set standards of conduct. The court in Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir. 1975), addressed this problem and stated:

“The relevance of the [AC’s] to the [issue] of the defendant’s negligence ... is manifest. Evidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence. Compliance or noncompliance with such custom, though not conclusive on the issue of negligence, is one of the factors the trier of fact may consider in applying the standard of care.” 519 F.2d at 1180-81 (footnotes omitted).

Judge Bramwell charged the jury in this case:

“[The AC’s] may be considered by you in determining the standard of care that a reasonably prudent person would have exercised under the circumstances.” (App. 3285).

The advisory material was admissible to aid the jury in formulating a standard of care, and the Judge properly charged the jury regarding these circulars and that standard.

(f) The res ipsa loquitur charge.

The last problem Eastern raises is that Judge Bramwell improperly charged the jury that the doctrine of res ipsa loquitur might apply to this situation. We believe that the res ipsa loquitur charge might have been applicable to this fact situation. As Eastern admits, the doctrine is generally applicable to aircraft crash cases. (Appellant Br. 48). Abbott v. Page Airways, Inc., 23 N.Y.2d 502, 297 N.Y.S.2d 713, 245 N.E.2d 388 (1969). Eastern claims it should not be used when evidence of a specific reason for the crash (e. g., air turbulence) is undisputed. The cases Eastern cites (Appellant’s Br. 48) are not on point. All deal with “clear air turbulence” involving sudden unexpected lurches of planes, and none deals with a crash of an aircraft. Citrola v. Eastern Air Lines, Inc., 264 F.2d 815 (2d Cir. 1959) is controlling. The court there allowed a res ipsa loquitur charge even though there was evidence of what was the specific cause of the crash.

It was not solely the known and anticipated wind shear which caused this accident, for plaintiffs offered evidence that other negligent acts of various parties (including Eastern personnel) caused the crash. Other planes had landed during the same time period, some landing and one “going around”, but none crashed. Eastern’s statement that the evidence showed that the accident would not have occurred had there not been violent weather at the end of the runway (Appellant Reply Br. 21) is misleading. Certainly, the evidence was also to the effect that the plane would not have crashed if the pilot had received all pertinent weather reports and had not attempted to land.

We note that the Judge charged “this is an inference you may draw but are not required to draw”. (App. 3252). Furthermore, the way the charge to the jury was structured, the jury would have had to find Eastern negligent before res ipsa loquitur was even considered. Although this aspect of the charge could have caused minimal jury confusion, based on the jury charge read as a whole we are of the opinion that any possible error or confusion caused by the res ipsa charge was remedied by the warning concerning the drawing of the inference and the remainder of the charge.

On the whole, this case was properly presented to the jury, and the jury was subsequently charged in accordance with the law. We are convinced that the few errors which may have occurred during this six week trial did not affect the substantial rights of Eastern. Based on the evidence the jury found that Eastern Airlines was negligent in its operation of Flight 66, and was liable to the ill -fated passengers.

We affirm the judgment of liability.

1 . This is the time at which Kennedy Approach Control began giving radar vectors to Eastern 66. These vectors were given to allow the flight to land (in the proper sequence) on Runway 22L at JFK.

2 . The aircraft had on board a crash-resistant tape recorder which recorded the last 30 minutes of conversation in the cockpit area. The tape has four channels: one picks up intra-cockpit sounds from a microphone in the cockpit, the other three pick up radio transmissions from the headsets worn by the pilot, co-pilot and flight engineer. Eastern wanted only the intra-cockpit sound channel to be played.

3 . The glide slope is part of the Instrument Landing System. It is an electronic beam fixed at a 3 ° descent and was used by landing aircraft for vertical guidance.

4 . N.Y. General Business Law § 245(1) (McKinney)

§ 245. Air traffic rules

The following air traffic rules shall govern the operations and use of aircraft in New York state, except that they shall not apply to aircraft used exclusively in the govern-

mental service of the United States, or exclusively in the service of the national guard of this state:

1. Careless or reckless operation. No person shall operate an aircraft in a careless or reckless manner so as to endanger the life or property of others.

5 . 14 C.F.R. (1979):

§ 91.5 Preflight action.

Each pilot in command shall, before beginning a flight, familiarize himself with all available information concerning that flight. This information must include:

(a) For a flight under IFR or a flight not in the vicinity of an airport, weather reports and forecasts, fuel requirements, alternatives available if the planned flight cannot be completed, and any known traffic delays of which he has been advised by ATC.

§ 121.101 Weather reporting facilities.

(a) Each domestic and flag air carrier must show that enough weather reporting services are available along each route to ensure weather reports and forecasts necessary for the operation.

§ 121.533 Responsibility for operational control: domestic air carriers.

(a) Each domestic air carrier is responsible for operational control.

(b) The pilot in command and the aircraft dispatcher are jointly responsible for the preflight planning delay, and dispatch release of a flight in compliance with this chapter and operations specifications.

(c) The aircraft dispatcher is responsible for-

(1) Monitoring the progress of each flight;

(2) Issuing necessary information for the safety of the flight; and

(3) Cancelling or redispatching a flight if, in his opinion or the opinion of the pilot in command, the flight cannot operate or continue to operate safely as planned or released.

(d) Each pilot in command of an aircraft is, during flight time in command of the aircraft and crew and is responsible for the safety of the passengers, crewmembers, cargo, and airplane.

(e) Each pilot in command has full control and authority in the operation of the aircraft, without limitation, over other crewmembers and their duties during flight time, whether or not he holds valid certificates authorizing him to perform the duties of those crewmem-bers.

§ 121.551 Restriction or suspension of operation: domestic and flag air carriers.

When a domestic or flag air carrier knows of conditions, including airport and runway conditions, that are a hazard to safe operations, it shall restrict or suspend operations until those conditions are corrected.

§ 121.601 Aircraft dispatcher information to pilot in command: domestic and flag air carriers.

(b) During a flight, the aircraft dispatcher shall provide the pilot in command any additional available information of meteorological conditions and irregularities of facilities and services that may affect the safety of the flight.

6 . 14 C.F.R. (1979):

§ 91.3 Responsibility and authority of the pilot in command.

(a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft. § 121.133 Preparation.

(a) Each domestic and flag air carrier shall prepare and keep current a manual for the use and guidance of flight and ground operations personnel in conducting its operations. § 121.135 Contents.

(a) Each manual required by § 121.133 must-

(1) Include instructions and information necessary to allow the personnel concerned to perform their duties and responsibilities with a high degree of safety....