EAA asks court to overturn verdict in RV crash trial
by Bob Collins

The RV-6A in the case crashed on the departure end of Runway 16 at Arlington Airport in Washington.

(See an update on this story)

Attorneys for the EAA and the Northwest EAA fly-in will ask a Snohomish County, Washington court judge on Tuesday (2/6/07) to throw out the verdict handed down by a jury in December, awarding $8.9 million in damages to the estate of a low-time pilot who was killed in his RV-6A, while departing the 1999 Northwest fly-in in Arlington. The judgment, erroneously reported earlier as $10.5 million, caused an understandable stir on some of the RV bulletin boards. However, since no media covered the trial, no particular details on what the judgment was based on were available until the motions were obtained this week.

In its filing, the EAA presents a 15-point argument for why Judge David A. Kurtz should throw out the verdict he signed in January. The EAA maintains the pilot was responsible for his own death, that -- despite claims of slow response on the part of firefighters -- the pilot would've died from his injuries in any case, that the attorney for the pilot's estate inflamed the jury in his closing statement by noting the 1999 air show went on despite the crash, that multiple judges who handled parts of the case ignored each others' rulings, and that the key witness for the pilot's estate was unqualified to do much more than speculate on the survivability of the crash.

In their response, attorneys Franklin Smith and Robert Hedrick of Seattle said the EAA motion "is so full of inaccuracies, half truths, and self-serving argument that it is difficult, if not impossible to respond in any meaningful manner without resort to publication of the entire trial transcripts and exhibits."

THE BACKGROUND

The case centers around the July 7, 1999 crash in Arlington. Don Corbitt had flown his RV-6A from Seattle to Arlington Municipal Airport to conduct market research, according to the EAA, on an unspecified avionics product he wanted to develop. Corbitt, according to witnesses, rushed his pre-flight in order to take off before the airport was closed for the daily air show. According to the NTSB investigation, several other pilots saw the passenger-side seat belt wrapped around the control yoke, fueling speculation that Corbitt took off with the elevators locked . He stalled at approximately 70-100 feet above runway 16, and crashed nearly nose first, according to one witness quoted in the final NTSB report on the crash.

However, Corbitt didn't die in the crash, at least right away. He survived, but couldn't escape the wreckage, and was burned to death. According to the EAA filing, the Corbitt estate argued that if an Airport Rescue Fire Fighting (ARFF) crash truck had been stationed at the airport, the fire might have been extinguished quicker and Corbitt would have survived. "Mere speculation," according to the EAA.

According to the original lawsuit, "the firemen did not rush in to assist; and did not have proper equipment and training to deal with the emergency. They were not prepared when they arrived. their fire suits were not on, so they took time at the scene to put them in, as bystanders yelled at them to hurry. The bystanders urgently demanded fire extinguishers from he fire truck, but none were available or provided ... One line from the fire truck was prepared to spray water on the fire, but a different line was charged with water, which caused further delay in getting water on the fire. By the time the correct line was charged, it was too late..."

WOULD A CRASH TRUCK HAVE MADE A DIFFERENCE?

But the EAA says no evidence was presented at the trial, that Corbitt could have survived the crash, even with the ARFF "crash" truck. It appears that the jury, instead, believed James Nilo, the Corbitt estate's expert witness, who criticized the response time and suggested it didn't meet standards, and most certainly not the standards at the Richmond, Virginia airport, where he is in charge of rescue operations. The EAA, however, noted that Nilo admitted during his testimony that it takes "30-40 seconds" at the Richmond airport for a crash truck to "get rolling."

In his response to the court this week, however, Atty. Smith reminded the court that Nilo's testimony "was that proper planning, organization and preparation would have required, in the exercise of reasonable care, trained Airport Rescue Fire Fighting (ARFF) firefighters and ARFF equipment to be on duty and stationed at mid-field through the five-day fly-in." Atty. Smith said testimony showed the equipment was "at the far end of the field" at the time of the crash.

But according to the EAA, Nilo suggested under cross examination, that the ARFF "crash" truck would not have gotten to the crash site any quicker than the fire truck used by the city of Arlington that day.

Nilo testified that Corbitt would have survived had the fire been extinguished within 90 seconds of the crash. However, according to the EAA motion, "even Mr. Nilo ultimately conceded that he did not know what Mr. Corbitt's injuries were 30, 60, 90, or 120 seconds after the crash.

Others did know, and they painted a grim picture during the trial. Patrick Swift, an eyewitness called by the plaintiff (prosecution) testified, "it took an extremely short period of time for me to get to the wreckage, and it isn't a matter of going around the tail or anything. It was a straight shot. It was an extremely short period of time." He estimated he was at the crash within 15 seconds.

"Did you ever talk to him?" Swift was asked.

"Not an open conversation," Swift testified.

"What were the first things he said to you?"

"He said, 'I'm a dead man.,'" Swift said.

Swift tried to pull Corbitt out of the cockpit, but couldn't. He moved the RV's tail and returned to the cockpit area. By then, he testified, the seat belts had burned off and Corbitt was dipping his head toward the right, into the fire.

"He kept working on the right-hand side, putting his face, his hands, everything into the fire. the whole right side, right seat was on fire. The fuselage was on fire. The instrument panel was on fire. Everything. By then, the aluminum from the fuselage had melted away on the right side," he said.

The fire truck had not yet arrived. On cross examination, Swift testified that when the fire truck arrived, Corbitt had already died.

"He was dead," Swift said. "That's my opinion. He was still moving around, but he was burned beyond recognition." Swift then described in graphic detail the condition of Corbitt's body.

A juror asked Swift, "do you feel that he could have been saved?"

"I'm not a doctor," Swift said, "but I do know burns. In my opinion, no, at that point. If [the firefighters] were on the scene at the time of the impact, possibly, but he would still have had extensive burns."

In its motion to throw the verdict out, the EAA said, "there was simply no evidence presented at trial to demonstrate or support a verdict that required the jury to find that Mr. Corbitt would have survived on a 'more likely than not' basis had there been a 'crash truck' on site. Given the lack of evidence, the jury could only speculate regarding 'survivability.'"

Even Nilo, according to the EAA, admitted his testimony regarding the response time's effect on survivability was "speculation."

"Chief Nilo, without speculating, you don't know whether a person can ultimately survive burn injuries sustained in a fire where the temperatures are measured in thousands of degrees?" Nilo was asked.

"You said without speculation. So it's almost impossible to answer that question without speculation," he replied.

But testimony from two witnesses suggested, according to Attorney Smith, that Corbitt was "alive and well" when they arrived at the crash site. Peter Ali and Simon Butler submitted depositions in February 2006 to that effect. Ali said he arrived at the crash site about three minutes after the crash and, "the pilot was standing up in the middle of the aircraft and it looked like he still had some straps on -- apparently seat belt straps -- and he stood during the entire ordeal as the men were trying to keep the flames at bay with small extinguishers. People were yelling at the pilot to try and cut loose and get out of the aircraft," he said.

"I kept thinking, 'where is the fire department?'" Ali said.

Butler, in his deposition, said "when the firemen did finally arrive with the engine, it appeared that they were in absolutely no hurry. At that time, I was screaming at the firemen to hurry up, that the pilot was still alive within the wreckage. However, it did not appear that the firemen knew what they were doing, as they were slowly uncoiling hose, and putting on equipment and not seeming to understand the urgency of this situation."

HOW MUCH KNOWLEDGE?

Nilo said his opinion on the response time and its effect was based on information he was provided about the case. But, according to the EAA, Nilo had never been at the Arlington airport, was not provided with a copy of the NTSB report, didn't see the depositions of the firefighters on the scene, did not hear the testimony of Patrick Swift and other witnesses, and was not qualified to testify on the issue of survivability "and should not have been permitted to do so during trial," the EAA said.

But the attorneys said the defendants offered no testimony to rebut Nilo. In fact, they said, there was no evidence that the defendants took any steps to even ascertain what, if any aircraft fire services, including equipment and personnel, would be at the 1999 Fly-in.

They said testimony from NWEAA executive director Barbara Tolbert indicated the group had "no idea what, if any, fire services were on hand, citing an exchange at the trial.

"So the NWEAA requests the fire department to come out and be at the Fly-in event; is that correct," she was asked.

"No, that is not correct," she replied.

"That is not? Well, who asks the fire department to come and be at the NWEAA Fly-in?"

"I'm not aware of that (sic) anybody asking them to be at the NW EAA fly-in," she said.

The EAA contended that no evidence presented at the trial showed that Corbitt could have survived the fire, even with a response by the firefighters faster than the minutes estimated. The EAA said in his closing argument, the Corbitt's attorney claimed a 2-minute response time would have been reasonable with a "crash truck" at the airport, but did not prove that Corbitt's injuries after burning in the fuel fire for 2 minutes were survivable.

But why is the issue of what the city of Arlington provided for a fire truck a reason the EAA and the Northwest Fly-in got hit with the $8.9 million judgment? It is here that the EAA claims the conflicting rulings by more than one judge left it improperly vulnerable.

The Corbitt family alleges that NWEAA and EAA were "vicariously liable for the alleged negligence of the Arlington Fire Department." But early in the case, another judge, Snohomish County Superior Court Judge Richard J. Thorpe dismissed the suit against the city, finding that the event was not a joint venture between the city and the EAA. Under Washington state law, that makes the city immune, the EAA claimed. In effect, the judge ruled that the city had no legal obligation to save Corbitt's life. The EAA argues, that the judge who actually heard the case, by allowing the case to be heard without the city being a defendant, was ruling that the EAA and NWEAA did have such an obligation, an odd position since the original suit focused only on the actions of the city.

The Corbitt family said the NWEAA, as the sponsor of the fly-in event, had an independent duty to arrange for alternative emergency fire and rescue services; specifically, the ARFF "crash truck." But the EAA is contending that Judge Thorpe's ruling that the event was not an Arlington-EAA joint venture, meant that that the EAA and NWEAA are not liable for any failures on the part of Arlington -- real or imagined.

But Attorney Smith wrote in response that the court affirmed the existence of responsibility (duty) on the part of the EAA during the trial. "Defendants NWEAA/EAA continue to miss the point that it was their responsibility and legal duty, as promoters, organizers and sponsors of the private 1999 Arlington Fly-in to adequately plan, prepare, organize, implement and provide for reasonable emergency fire services in light of the history and foreseeability of aircraft accidents at the event.

WHAT CAUSED THE PILOT'S DEATH?

But the most critical argument in the request that the verdict be overturned -- at least for those who participated in a "lively" discussion on the RV list -- is the responsibility for the crash in the first place.

The EAA said the only aspect of Corbitt's death on which the jury did not speculate was the crash itself. Corbitt stalled his plane, the plane crashed and burst into flames, and Corbitt died in the fire.

Attorneys for the EAA said the Washington Supreme Court ruled in previous cases that when a person assumes a risk, the laws bars anyone else from trying to recover damages incurred as a result of that risk.

Before the case went to the jury, the EAA asked that the concept of "assumption of risk" be part of the instructions to the jury. But the motion was apparently denied by the judge, and the jury, ruled, in the words of the EAA, that Mr. Corbitt was negligent but was not the cause of his death. "A finding that defies any possible logic in this case," the EAA motion said.

And, finally, the EAA argued that the Corbitt's attorney inflamed the jury during his opening statement when he noted that the airshow went on despite the crash.

"And the final coup de gras in this whole thing is Don Mr. Corbitt lying there dead, a corpse, a burned corpse," the attorney told the jury. "And the decision was made that the air show had to go on. So honest to God, Don Mr. Corbitt, the testimony will be that he was covered in a tarp and the air show went on over his head, because they wanted to have the air show. It was Kids Day and they didn't want to think about the fact that a man had died. Somebody they invited to the air show had died and they didn't want to think about that. Let's just have the air show."

The EAA claimed the attorney's statement, aside from being irrelevant, prejudiced the jury and, as a result, the EAA and NWEAA did not get a fair trial.

"The excessive and logically unjustifiable jury verdict demonstrates a number of problems at trial, the cumulatively denied the defendants a fair trial -- allowing the jury to consider irrelevant and improper evidence; misconduct on the part of the plaintiff's counsel intended to taint and inflame the jury; jury instructions that were confusing, ambiguous, incomplete, internally inconsistent, and inconsistent with Judge Thorpe's initial ruling ... It defies all logic and fairness that any reasonable jury could find, based on the evidence presented at trial, that Mr. Corbitt was not the primary cause of his own death, or that the fly-in event's sponsors comparative fault could exceed that of the City of Arlington as the owner and operator of Arlington Municipal airport (and which had exclusive control over the area where Mr. corbitt crashed, and controlled the fire department) and the Arlington Fire Department that provided allegedly negligent emergency rescue services with equipment that was not 'state of the art,'" the EAA motion for overturning the verdict said.

"There was no question (in the verdict) that the NWEAA had (or assumed) the duty of safety over the entire event and airport," the Corbitt estate's attorneys countered, saying the EAA "continues to choose to ignore the most basic aspect of this unique case -- that the NWEAA was responsible for safety and emergency services at the Fly-In event. as a part of its responsibility, the NWEAA was required to negotiate and reduce to writing an agreement with the Arlington Fire Department for event fire services - it is undisputed that they did not."

The issue will be before the judge who presided over the trial on Tuesday morning.

FOR MORE INFORMATION:
NTSB crash report
See the EAA post-trial motion document (6 meg)
See the response from the Corbitt estate's attorneys (762 kb)
Archive: A look at RV accident data

(The author's intent in providing this information is merely to allow those who wish to make a judgment about the pilot and/or the judicial system to have as much information as possible. The RV Builder's Hotline maintains no editorial position on the case as described.)