As pilots, one of our responsibilities before each flight, per FAR 91.103, is to make ourselves “familiar with all available information concerning that flight” including weather reports and forecasts when the flight is “not in the vicinity of an airport.” With the proliferation of weather services available on the internet, many pilots look to those services first when preparing for a flight. Many pilots will also still call their local flight service station (“FSS”) to obtain a weather briefing for their intended flight.
When you call FSS, how much information is the FSS specialist/briefer required to give you? Or, from a legal perspective, what duty does the FSS Specialist owe to a pilot who calls for a weather briefing? A recent Eighth Circuit Court of Appeals decision answers this very question.
The case, Glorvigen v. Cirrus Design Corp. (“Cirrus”), arose out of an aircraft accident involving a Cirrus SR-22. Unfortunately, the pilot and his passenger did not survive the accident. Subsequently, their representatives sued Cirrus alleging, among other things, that Cirrus had improperly designed the SR-22 and had failed to properly instruct the pilot in the operation of the aircraft. Cirrus then brought a third-party complaint against two FSS specialists and, ultimately, the United States, alleging that the specialists were negligent because they failed to adequately inform the pilot of the weather conditions and weather forecast the morning of the accident.
The non-instrument rated pilot was a low-time pilot with 18.9 hours in the SR-22. Based upon his limited experience, the pilot and his flight instructor developed a set of “personal weather minimums” for the pilot of 3,000-4,000 foot ceilings and visibility of at least 4-5 miles. The pilot apparently agreed that he would not fly when the weather conditions were less than these minimums. He was also advised by his flight instructor not to fly at night when snow was on the ground to avoid the difficulty of trying to distinguish between clouds and snow-covered ground.
The flight departed from Grand Rapids, Minnesota, at 6:30 a.m., over an hour before sunrise, on a flight to St. Cloud, Minnesota. Snow was on the ground. The aircraft initially climbed to 3,300 feet above mean sea level (“MSL”) but then the aircraft’s altitude began to fluctuate erratically. The pilot attempted to return to the airport, but the aircraft crashed approximately 8 minutes after takeoff.
Prior to the flight, the pilot had called FSS and obtained two briefings: a standard briefing over an hour before departure and an abbreviated briefing less than an hour before departure. In the first briefing, the FSS specialist advised the pilot of an AIRMET for potentially instrument flight rules (“IFR”) conditions over the intended route due to low ceilings. The specialist reported low ceilings for St. Cloud and other airports along the route and informed the pilot that the ceilings were forecast to increase later in the day.
The second FSS specialist provided the pilot with much of the same information conveyed in the earlier weather briefing including the AIRMET for IFR conditions. However, the FSS specialist also stated that none of the airports along the route of flight were reporting actual IFR conditions at the time of the briefing. The FSS specialist concluded the briefing by updating the pilot on the current conditions at the airports along the route.
The District Court Grants Summary Judgment To The United States
The United States moved for summary judgment (dismissal of the case against it), arguing that the FSS specialists had not been negligent in briefing the pilot and that, even if they were negligent, that negligence did not cause the accident. The district court agreed. The district court concluded that although the specialists could have provided the pilot with some additional information, neither of them breached the duty of care owed to the pilot. It also concluded, in the alternative, that any breach of the duty of care in the briefings could not have been a substantial cause of the accident. Cirrus then appealed the district court’s decision.
The Eighth Circuit’s Affirms The Grant of Summary Judgment
The Court initially observed that FSS specialists have a duty to provide pilots with an accurate and complete summary of the relevant weather information. It noted that the FAA has assumed a general duty to advise requesting pilots of weather conditions. Further, the FAA publishes a Flight Services Manual (FAA Order JO 7110.10P Flight Services) instructing FSS specialists on how to conduct briefings and pilots rely on the service.1 As a result, FSS specialists are under a duty to ensure that the information which they furnish to pilots is accurate and complete.
However, the Court went on to state that a FSS specialist does not need to recite verbatim the contents of every weather report before him or her. Additionally, a FSS specialist is not required to provide a pilot with every detail from every relevant weather source. Rather, the FSS specialist must provide an accurate and complete synthesis or summary of the relevant weather information. As a result, the Court concluded that some information and repetitive facts will inevitably be left out of a FSS specialist’s briefing.2
The Court concluded that both FSS specialists provided the pilot with an accurate and complete summary of the relevant weather information. The Court found that the first specialist warned the pilot of the possibility that he would encounter IFR conditions and accurately conveyed the current conditions and forecast for the departure airport, the destination and along the intended route of flight. By advising the pilot of the AIRMET for potential IFR conditions along the route of flight, the specialist sufficiently conveyed the fact that the AIRMET called for occasional ceilings below a thousand feet and/or visibility below three miles. The Court held that the specialist did not need to specifically state that the AIRMET called for occasional ceilings below VFR minimums because it would be “gratuitous and counter-productive” to demand that FSS specialists reiterate those minimums during every VFR weather briefing. After all, the Court observed, the pilot should know those minimums and, if the pilot wanted more details or clarification, the onus was on him to request them.
With respect to the second briefing, the Court initially observed that the pilot’s request for an abbreviated briefing limited the specialist’s duty to providing an update on appreciable changes in the weather conditions, advising of adverse conditions and only providing additional specific information if requested by the pilot. The Court found that the second FSS specialist fulfilled his duty when he informed the pilot of any significant changes in forecast or current conditions that arose since the pilot’s last briefing, described the current conditions at the pilot’s destination, advised the pilot of any relevant pilot reports, and described any present or forecast adverse conditions.
Finally, the Court determined that the FSS specialists were not negligent for failing to give the pilot a VFR Flight Not Recommended (“VNR”) warning.3 Since the current and forecast weather conditions on the morning of the flight were not so extreme, the Court found that the specialists did not have a duty to give a VNR warning. As a result, the specialists’ failure to give a VNR recommendation did not constitute negligence.
The Court affirmed the district court’s grant of summary judgment. It concluded that the FSS specialists had provided accurate and complete weather briefings to the pilot. As a result, they did not breach their duties to the pilot.
What can we learn from this case? First, FSS specialists have specific standards and obligations for conducting pilot weather briefings established by both the FAA and Courts with the expectation that pilots will rely upon the information that is provided, and in some cases not provided, to them during a weather briefing. Second, FSS specialists’ standards are minimums. Although many specialists will exceed those minimums when they conduct a briefing, if a pilot receives a briefing that only meets the minimum standards and the pilot would like more, it is the pilot’s obligation to ask for further, more specific information.
At the end of the day, it is the pilot whose certificate and/or life are at stake when he or she flies. Pilots should heed the requirements of FAR 91.103 and obtain all the available information necessary to conduct a flight. With that information in hand, pilots can then use good judgment to determine whether a flight can be conducted safely, legally and consistent with their personal minimums. Better to learn from court opinions than to be the subject of a court opinion.
1 Part 4 of FAA Order JO 7210.3V Facility Operation and Administration also addresses how a FSS specialist is to conduct a pilot briefing.
2 Interestingly, the Court felt that a verbatim recitation would likely overwhelm a pilot with information and confuse, rather than clarify, the prevailing weather conditions. (I am not so sure I agree, since the pilots I know who brief themselves using the internet aren’t overwhelmed by the weather reports and information they review.) It also opined that “a verbatim recitation would make FSS specialists superfluous, since the rote recitation of weather reporting information could probably be accomplished more effectively through the use of a computer or automated phone system.” (This statement may have some merit, although it ignores the value of an FSS specialist’s experience and ability to synthesize and communicate weather information.)
3 The FAA instructs FSS specialists to give a VNR recommendation when, in the specialist’s judgment, conditions would make VFR flight doubtful.” However, the VNR recommendation is advisory in nature and the pilot bears the ultimate responsibility for whether a VFR flight can be conducted safely and legally.
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