concurring and dissenting.
I respectfully dissent.
While I agree with the conclusions the court reaches today with respect to the joint venture issue and concur fully in that aspect of the opinion, I believe that the court has cast aside plausible findings of the district court based on substantial evidence, ignoring the limitations placed on our review by Fed.R.Civ.P. 52, as recently discussed in Anderson v. City of Bessemer City, 470 U.S. 564, 573-76, 105 S.Ct. 1504, 1511-13, 84 L.Ed.2d 518 (1985). The Supreme Court made clear in Anderson the importance of the role of the district court and its particular experience and expertise in fact-finding. It cautioned that an appellate court should not duplicate the district court’s fact-finding function by making its own determination of the facts and reversing if it would have decided the case differently. This is precisely .what the court has *1346done today, ignoring Anderson’s teaching that “[w]here there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574, 105 S.Ct. at 1512 (citing Inwood Laboratories, Inc. v. Ives Laboratories Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982)). The court today has simply taken the evidence most favorable to its conclusion, ignoring that to the contrary, and has substituted its findings for those of the district court.
The district court found that plaintiffs had failed to show by a preponderance of the evidence that icing was the proximate cause of the crash. It found that radar information indicated a lack of echoes in the area, which meant that only small water droplets were present. There was meteorological evidence that the clouds necessary to produce moderate or severe icing were not present. Evidence at the crash site indicated that Largent did not encounter the type of weather the several lay witnesses reported. The temperature at the crash site was at or below freezing, and there was no evidence of ice near the point of impact.1 The Beech Baron flight manual indicates that an airplane could fly with at least one-half to one inch of ice, because the manual only recommended using deicing equipment once that amount of ice had accumulated. Only one-eighth of an inch was found on the Largent plane, which would be considered light icing and would not be significant enough to cause the crash. Another Beech Baron flying some thirty miles south of the crash site was able to climb above 8,000 feet with one-eighth to one-quarter inch of icing on its wings.2 The court today ignores these findings in reaching its conclusion that icing was the cause of the accident.
The Largent plane was in the air between five and thirteen minutes. It took off at 6:25 and made radio contact with Denver at approximately 6:26. When the Garnets heard the crash, they called the sheriff’s office. Their call was timed at 6:30. The clocks in the plane both stopped at 6:38. The district court found that the crash occurred between 6:30 and 6:38. The court today finds that the crash occurred at 6:38. According to either finding, there was a very short period of time during which sufficient ice could have formed on the plane to cause the crash.
A key finding of the court today, based on the testimony of plaintiffs’ expert, is that the pieces of ice “melted immediately or at least shortly after impact.” Joseph Garnet, who lived closer than any other witness to the crash site and heard both the plane and the crash, went to his pick-up truck to drive to the crash site. There was no ice on the truck. It did not slip or slide, nor did he when walking. While Garnet testified to a temperature inversion, and that there was moisture on his cap, he also testified (and the district court found) that he reached the crash site within twenty or thirty minutes and the temperature at the scene of the crash was close to freezing. To cast aside findings of the district court and conclude that sufficient ice to cause the crash — in all likelihood an inch or more — melted in twenty or thirty minutes in such conditions ignores not only the evidence in the record, but reality.
Garnet’s testimony, together with that of other witnesses, supports the finding of the district court that weather conditions encountered by several of the lay witnesses were not encountered by the plane. James Geddis, the truck driver, said the fog bank that coated his truck with ice “was not very long at all,” approximately two football fields in length. Gerald Bruce identified the mile-long icy area he encountered as about six miles, west of the crash site and about six miles south and slightly west of Judy Kaufman’s house. Kaufman described only snow grains or ice pellets beneath her feet when she heard the plane *1347flying overhead at 6:30, and she did not see the one-eighth to one-fourth inch ice coating on her car windshield until 7:45 a.m.
This testimony demonstrates differing weather conditions in the area. Allen Pearson, the government’s weather expert, explained that the weather conditions Bruce and Kaufman encountered were caused by terrain or orographic effects. Pearson testified that the lift provided by air coming up the side of a hill creates clouds and brief weather changes. He stated that the plane would have not come close to the area where the weather conditions were as Bruce described them.
There was ample evidence in the record to support the district court’s conclusion that the plaintiffs did not prove ice caused the crash.
The court today seems to reach its factual determination on the assumption that only two choices were presented for the cause of the crash, either icing or spatial disorientation. The district court declined to speculate as to the specific cause of the crash, but found that “spatial disorientation is a more plausible explanation.” The court today sets up and demolishes a straw man based on an assumption of an excessive speed crash. However, the district court did not make a specific finding of spatial disorientation, but simply recognized it as a plausible explanation.
The government’s expert witness, Allen, testified that the plane came to earth in an uncontrolled state consistent with a stall. There was testimony that the loading of the plane placed the center of gravity toward the rear, which would have altered the handling characteristics. The plane entered the clouds with the strobe lights on, which can accentuate the effects of spatial disorientation. The district court did not make further choice from among the various factors that might have contributed to the collision, but simply held that the plaintiffs had not borne their burden of proof by showing that icing was the cause of the crash. Suffice it to say that the court’s assumption today that the only possible causes of the crash were spatial disorientation or ice simply does not follow.
The court’s finding that Kasen was negligent is based upon a further fact-finding expedition by the court. It converts the question “what have you got up there,” and inquiries about Casper and Rock Springs into a general inquiry on weather conditions, imposing upon Kasen the additional duty to provide weather conditions relative to the flight and to go back to the earlier briefing given by Shields and to bring it up to date. Again, what the court does goes beyond determining that the district court was clearly erroneous in its findings, and substitutes this court’s findings for those of the district court. Under Anderson, we may not do this.
The court discounts evidence that Largent was not IFR qualified, reasoning that such evidence had bearing only on the spatial disorientation theory, which the court rejects. The court completely overlooks the fact that Largent’s failure to have IFR qualification itself constituted negligence on Largent’s part, as it was in violation of 14 C.F.R. § 61.57(e) (1986) (amended 1986), and (as the district court found) negligence per se.
In reaching its conclusion today, this court ignores substantiated factual findings of the district court and substitutes its own. It violates the teaching of Anderson v. Bessemer City and the requirements of Rule 52. I would affirm the judgment of the district court with respect to Largent and remand only as to a consideration of Altringer’s liability.
. Sheriff Bray could only speculate as to whether ice would have been knocked off the plane when it contacted the tree, since the plane brushed rather than directly hit the tree.
. The pilot of the other Beech Baron testified the ice accumulated in four or five minutes. The plane he flew had more horse-power and gross weight, but no significant handling or performance difference as compared with the Largent plane.