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Southwest Airlines Flight Attendant's Suit Against The FAA Grounded
By Daniel Baxter

July 23, 2012 - On Wednesday the Circuit Court of Appeals ruled that the Federal Aviation Administration (FAA) could not be sued in the case of a Southwest Airlines flight attendant who was knocked unconscious due to in-flight turbulence.  

While working as a flight attendant on Southwest Airlines on February 10, 2006, Flight 2745 was on its final trip of the day and was on its return trip from Cleveland Hopkins International to Chicago Midway when Peggy LeGrande was injured as a result of the aircraft encountering severe turbulence.  

LeGrande brought a lawsuit against the FAA under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674, before the United States District Court for the Northern District of Illinois, Eastern Division (Peggy S. Legrande, V. United States Of America) alleging that air traffic controllers employed by the FAA negligently failed to warn the flight’s captain that turbulence had been forecast along the flight path. 


LeGrande contended in her suit that her injuries resulted from the negligence of a National Weather Service (“NWS”) meteorologist and that the FAA breached a duty owed to LeGrande. The District Court concluded that the employees of the FAA did not breach any duty owed to LeGrande. She then sought a reversal of the district court’s judgment before the United States Court of Appeals for the Seventh Circuit. 

During the course of that day, a NWS meteorologist on duty at the Cleveland Center Weather Service issued three weather services; MIS 02, MIS 03 and a CWA. Both MIS 02 and MIS 03 warned the FAA’s Traffic Management Unit that, over the twelve-hour period following the issuance of each MIS, frequent moderate turbulence to isolated severe turbulence could develop over portions of Michigan, New York, Ohio and Pennsylvania, a large part of the airspace within the Cleveland Center’s area of responsibility. The employee issued the first of these weather services, MIS 02, at 2:42 p.m. He limited it to altitudes of 17,000 to 27,000 feet.  

The second weather service, MIS 03, was issued at 9:06 p.m. and related to the same geographic area but to altitudes of 17,000 to 32,000 feet. He also issued a CWA at 8:31 p.m., in response to a PIREP of severe turbulence at 32,000 feet in airspace east of Cleveland. The parties involved agreed that the employee believed the weather system was moving east from Cleveland.



Prior to departure on the final leg of the aircraft’s daily schedule, a Southwest Airlines dispatcher provided the captain of Flight 2745 with a pre-flight information packet. The packet contained weather-related information, including a private meteorologist’s forecast of moderate turbulence at 20,000 to 26,000 feet and a number of PIREPs, one of which was a report of severe turbulence at 20,000 to 22,000 feet over Windsor, Ontario. Based on this information, the Southwest Airlines dispatcher advised the captain of Flight 2745 to fly at 30,000 feet.

However, the captain elected to fly at 20,000 feet because he had encountered turbulence above 24,000 feet on the previous flight from Chicago to Cleveland. The captain requested and received permission from the controller at the Cleveland Center to fly at 20,000 feet; he did not inform his Southwest Airlines dispatcher of his decision. Neither the dispatcher nor the air traffic controller informed Flight 2745 of MIS 02, MIS 03 or the CWA that NWS meteorologist had issued earlier. 

Flight 2745 took off from Cleveland Hopkins International Airport at 9:40 p.m. Shortly thereafter, the aircraft encountered a light to moderate bump, and the pilots instructed the flight attendants to take their seats. Within five seconds of the pilots’ order, Flight 2745 encountered severe turbulence for approximately fifteen seconds. LeGrande, who presumably had not had time to secure herself in a seat, was injured and rendered unconscious during the episode. Flight 2745 provided the air traffic controller with a PIREP describing severe turbulence at 9:58 p.m. Several physicians aboard Flight 2745 cared for LeGrande until the aircraft landed at Chicago Midway International Airport. 

LeGrande filed an administrative Claim for Damage, Injury, or Death with the FAA. She sought $25 million for her turbulence-related injuries. In her claim, Ms. LeGrande alleged that the Federal Aviation Administration, its employees, agents and representatives, were negligent in that they breached their duties under the rules and regulations governing the performance of their job duties. 

The district court concluded that the United States, through the FAA, owes a duty of reasonable care to an aircraft, passengers, crews and cargoes in the performance of air traffic control responsibilities and that this duty includes warning pilots of certain weather conditions. Nevertheless, the district court determined that the FAA had not breached that duty here. Specifically, the district court concluded that the duty owed by air traffic controllers does not include an obligation to disseminate MIS notifications to pilots because such weather products are designed for traffic planning purposes rather than for providing immediate navigational guidance to aircraft already aloft.  

The court further determined that the CWA issued before the departure of Flight 2745 was not pertinent because it was limited to airspace east of Cleveland through which Flight 2745, heading west from Cleveland to Chicago, did not travel. The Circuit Court of Appeals ruled that the district court correctly determined that LeGrande had failed to establish that FAA personnel breached any duty owed to her. Additionally, the allegations of the NWS meteorologist’s negligence are barred for failure to comply with the statutory requirement that suit under the Federal Tort Claims Act be preceded by an administrative complaint. "Ms. LeGrande... has pointed to no statute, regulation or other directive that imposes on FAA traffic controllers the responsibility to transmit MIS weather products to pilots. Indeed, a review of the governing directives makes clear that no such obligation exists," Circuit Court of Appeals Judge Kenneth Ripple wrote.

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