Bursztajn v. USA - Case Law

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MAY 3, 2004
IN THE UNITED STATES COURT OF APPEALS April 29, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 03-30478
Summary Calendar

SHERRY BURSZTAJN; ET AL.,

Plaintiffs,
SHERRY BURSZTAJN,

Plaintiff-Appellant,

and

STATE OF LOUISIANA, on behalf of Louisiana State Office of Risk
Management, on behalf of the Office of the Governor,

Intervenor Plaintiff-Appellant,

versus

UNITED STATE OF AMERICA; UNITED STATES DEPARTMENT OF ARMY,

Defendants - Intervenor Defendant-Appellee.

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Appeals from the United States District Court
for the Western District of Louisiana

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Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Sherry Bursztajn, M.D., a professor at

Louisiana State University Medical Center in Shreveport (“LSUMC” or

“the hospital”) at the time she was injured, appeals the district

court’s grant of judgment as a matter of law (“jmol”), dismissing

her and her husband’s personal injury claims advanced against the
United States Army (the “Army”) under the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. § 2671 et seq. Likewise, Intervenor Plaintiff-

Appellant the State of Louisiana (the “State”) appeals the jmol’s

dismissal of its claims for recovery of workers’ compensation

benefits that it had paid to Dr. Bursztajn. Appellants contend

that the district court’s jmol was based on an incorrect legal

premise, viz., that the Army owed Dr. Bursztajn no duty of care

under the circumstances in which she was injured in the LSUMC

parking lot as a result of being blown off her feet by the “rotor

wash” of an Army medical evacuation helicopter as it was landing to

deliver a patient to the hospital for emergency treatment. Finding

no reversible error, we affirm.

FACTS AND PROCEEDINGS

Dr. Bursztajn sued the Army under the FTCA for injuries she

received when she allegedly was blown down in the hospital parking

lot by the rotor wash of an Army helicopter in the act of landing

at the hospital. The State intervened against the Army to recover

workers’ compensation benefits that it paid to Dr. Bursztajn.

The district court bifurcated the trial between the issues of

liability and damages, conducting a bench trial on liability first.

Trial testimony shows that (1) An Army helicopter, under the

command of Chief Warrant Officer (CWO) Yingling, was actually being

flown by its co-pilot, CWO Richardson, in the course of

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transferring a head-trauma patient from another hospital to LSUMC.

At the time that the aircraft was landing at LSUMC, Dr. Bursztajn

was arriving for work and parking her car in a hospital parking lot

near the helicopter landing pad (helipad). Dr. Bursztajn asserted

that the force of the rotor wash (wind turbulence generated by a

helicopter’s whirling rotor blades) blew her to the ground, causing

her injuries.

CWO Yingling testified that he was seated on the right side of

the aircraft, facing forward, and that the co-pilot, Richardson,

who was seated on the left, was in actual control of the aircraft.

CWO Yingling stated that because the helipad at LSUMC is inside the

“elbow” of a multi-story, L-shaped building, the landing required

a “dead-end approach” which could not be aborted by simply applying

power and flying straight ahead. CWO Yingling’s visibility was

restricted to looking only straight ahead and to his right. When

the aircraft was approximately 65 feet above the ground, CWO

Yingling spotted Dr. Bursztajn just as she was exiting her car,

which was parked almost directly to his right, at the “3 o’clock”

position. CWO Yingling further testified that by the time he saw

Dr. Bursztajn getting out of her car, it was too late to abort the

helicopter’s landing without creating even greater rotor wash.

Unrebutted evidence at trial reveals that the Army had

notified LSUMC that this helicopter would be arriving with a

patient. Additional evidence shows that LSUMC police maintained a

policy of controlling traffic in the hospital parking lot during

3
helicopter take-offs and landings, but that —— despite prior notice

of this helicopter’s impending arrival —— no LSUMC police were

present to control the area when Dr. Bursztajn was injured.

At the close of the plaintiff’s case in the liability phase of

the bench trial, the district court granted the Army’s motion for

jmol. The court stated its findings and conclusions in an open-

court colloquy with Dr. Bursztajn’s attorney. Dr. Bursztajn and

the State timely filed notices of appeal.

ANALYSIS

Dr. Bursztajn and the State insist that the district court

committed legal error in concluding that the Army owed no duty of

care to Dr. Bursztajn.1 They also contend that the district court

committed clear error by finding that the Army did not breach a

duty to Dr. Bursztajn; and she alone argues that the district court

committed legal error in assigning any portion of liability to the

State.

The district court entered jmol in accordance with FED. R. CIV.

P. 52(c), which provides that: “[i]f during a trial without a jury

a party has been fully heard on an issue and the court finds

against the party on that issue, the court may enter judgment as a

matter of law[.]” FED. R. CIV. P. 52(c). “Findings of fact made

1
Unless otherwise noted, Dr. Bursztajn’s arguments are also
those of the State.

4
pursuant to a Rule 52(c) judgment are reviewed only for clear

error.” Samson v. Apollo Resources, Inc., 242 F.3d 629, 632 (5th

Cir. 2001). “The trial court’s conclusions of law, however, are

reviewed de novo. Id. at 633. “The credibility determination of

witnesses, including experts, is peculiarly within the province of

the district court,” and courts of appeal give “deference to the

findings and credibility choices trial courts make with respect to

expert testimony.” League of United Latin American Citizens #4552

(LULAC) v. Roscoe Indep. Sch. Dist., 123 F.3d 843, 846 (5th Cir.

1997).

A. FTCA and Applicable State Law

“The FTCA authorizes civil actions for damages against the

United States for personal injury or death caused by the negligence

of a government employee under circumstances in which a private

person would be liable under the law of the state in which the

negligent act or omission occurred.” Quijano v. United States, 325

F.3d 564, 567 (5th Cir. 2003) (citing 28 U.S.C. §§ 1346(b)(1),

2674). In this case, Louisiana law controls because the incident

occurred there.

Articles 2315 and 2316 of the Louisiana Civil Code provide

that every person is responsible for damages caused by his fault or

negligence. See Pitre v. Louisiana Tech Univ., 673 So.2d 585, 589

(La. 1996). “The relevant inquiries are:

5
(1) Was the conduct of which the plaintiff complains a cause-

in-fact of the resulting harm?

(2) What, if any, duties were owed by the respective parties?

(3) Whether the requisite duties were breached?

(4) Was the risk, and harm caused, within the scope of

protection afforded by the duty breached?

(5) Were actual damages sustained?”

Id. at 589-90. “If the plaintiff fails to satisfy one of the

elements of duty-risk, the defendant is not liable.” Id. at 590;

see Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 156-57 (5th Cir.

1994) (footnotes omitted).

The district court assumed that the rotor wash was a cause-in-

fact of Dr. Bursztajn’s fall and resulting injuries, but concluded

that the Army did not breach any duty to her. The court did not

reach the issues whether the particular injury was within the scope

of a duty owed or whether Dr. Bursztajn suffered actual damages.

We shall, therefore, address the existence and scope of any duty

owed by the Army and, if so, whether the Army breached such duty.

1. “Duty” or “Breach”: Standard of Review

Under Louisiana law, the existence of a duty presents a

question of law that “varies depending on the facts, circumstances,

and context of each case and is limited by the particular risk,

harm, and plaintiff involved.” Dupre v. Chevron U.S.A., Inc., 20

F.3d 154, 157 (5th Cir. 1994). To determine whether a duty exists,

a court is required to make a policy decision based on “various

6
moral, social, and economic factors.” Posecai v. Wal-Mart Stores,

Inc., 752 So.2d 762, 766 (La. 1999); Entrevia v. Hood, 427 So.2d

1146, 1149-50 (La. 1983). We review this legal issue de novo. See

Samson, 242 F.3d at 633.

“Whether a defendant has breached a duty is a question of

fact.” Pinsonneault v. Merchants & Farmers Bank & Trust Co., 816

So. 2d 270, 278 (La. 2002) (emphasis added); see also Boykin v.

Louisiana Transit Co., 707 So.2d 1225, 1231 (La. 1998) (“Breach of

duty is a question of fact, or a mixed question of law and fact,

and the reviewing court must accord great deference to the facts

found and the inferences drawn by the finder of fact.”). This

element concerns whether the defendants, “as ordinarily prudent

persons under all the circumstances of their conduct,” should have

reasonably foreseen an injury to the plaintiff and whether the

defendants “fail[ed] to exercise reasonable care to avoid the

injury.” Nelson v. Washington Parish, 805 F.2d 1236, 1239 (5th

Cir. 1986). We review this factual finding for clear error. See

Samson, 242 F.3d at 632. We will not set aside a district court’s

finding “unless, based upon the entire record, [it is] ‘left with

the definite and firm conviction that a mistake has been

committed.’” Southern Travel Club, Inc. v. Carnival Air Lines,

Inc., 986 F.2d 125, 128-29 (5th Cir. 1993) (citation omitted). If

the district court’s assessment of the record is plausible on the

whole, we will not reverse even though we might have weighed the

evidence differently. Id. at 129 (citation omitted).

7
Dr. Bursztajn contends that, because the district court

dismissed the case on the legal ground that the Army owed her “no

duty,” our review is de novo. The Army counters that, because that

court based its jmol on the factual finding that the Army did not

breach any duty, our review is for clear error. Our standard of

review here is problematic because the district court combined the

theoretically separate issues of “duty” and “breach” into one issue

by not making clear the point at which its duty analysis stopped

and its breach analysis began. We hasten to add that this

conflation is understandable, as the Louisiana Supreme Court itself

has had difficulty making a clear distinction between the questions

of breach and duty. See Pitre, 673 So. 2d at 596 (Lemmon, J.,

concurring); see also McGuire v. New Orleans City Park Imp. Ass’n,

835 So.2d 416, 423 (La. 2003) (finding simultaneously that

defendant exercised “reasonable care,” owed no duty, and “did not

breach a duty” where pedestrian was hit by errant golf ball);

Kenney v. Cox, 652 So. 2d 992, 992 (La. 1995) (Dennis J.,

concurring) (“I feel that our jurisprudence has not clarified the

distinction between the existence of a general duty of care (a

legal question) and the ‘legal cause’ or ‘duty/risk’ question of

the particular duty owed in a particular factual context (a mixed

question of law and fact[.]”).

The majority in Pitre rested its decision on the legal

conclusion that the defendant “had no duty under the facts of this

case” to warn the plaintiff about an obvious danger. Pitre, 673

8
So. 2d at 590. Two concurring justices stated, however, that the

“pivotal issue in this case is not the existence of a duty, but the

breach of duty.” Id. at 596 (Lemmon, J., and Kimball, J,

concurring for reasons assigned by Lemmon).

The two concurring justices in Pitre explained that the “duty”

analysis “usually focuses on the general duty imposed upon the

defendant by statute or rule of law” and that “a ‘no duty’ defense

generally applies when there is a categorical rule excluding

liability as to whole categories of claimants or of claims under

any circumstances.” Id. (emphasis added) (citing David W.

Robertson et al, Cases and Materials on Torts 161 (1989)). The

concurring justices added that “where the duty owed depends upon

the circumstances of the particular case, analysis of the

defendant’s conduct should be done in terms of ‘no liability’ or

‘no breach of duty.’” Id. (emphasis added). These two justices

concluded that “the defendant had a duty to act reasonably in view

of the foreseeable risks of danger” and that it did so because it

was not required to provide additional warnings or safeguards. Id.

Dr. Bursztajn does not address this breach/duty dichotomy,

contending instead that the district court wrongly held that the

Army owed her no duty whatsoever. Dr. Bursztajn either

misunderstands or misrepresents the district court’s ruling. That

court accepted that the pilot had a general duty of care to prevent

rotor wash mishaps, then either (1) held that no further duty was

owed; or (2) found that the pilots’ actions did not breach a

9
general duty of reasonable care. We need not resolve the

uncertainty as to the applicable standard of review, however,

because the district court’s judgment may be affirmed regardless of

whether its ruling is deemed to rest on the legal issue of the

existence of a particular duty or the factual issue whether the

pilots actually breached a general duty.

2. Extent of Duty

None contest that the Army owed at least a general duty of

reasonable care to avoid endangering persons on the ground. See 14

C.F.R. § 91.13,2 prohibiting “reckless operation” of aircraft, and

14 C.F.R. § 91.119,3 requiring safe helicopter operations at low

altitudes). Dr. Bursztajn does not argue on appeal that the Army

had any more specific duty than a general duty of care, conceding

that neither the statutes nor the jurisprudence of Louisiana

provides a more specific duty. Consequently, Dr. Burszstajn has

waived the issue of a more specific duty by failing to brief it.

See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (issues not

briefed are abandoned); American States Ins. Co. v. Bailey, 133

F.3d 363, 372 (5th Cir. 1998) (failure to provide legal or factual

analysis of issue results in its waiver). Yet, even if the issue

2
“No person may operate an aircraft in a careless or reckless
manner so as to endanger the life or property of another.” 14
C.F.R. § 91.13(a).
3
“Helicopters may be operated at less than the minimums
prescribed in paragraph (b) or (c) of this section if the operation
is conducted without hazard to persons or property on the surface.”
14 C.F.R. § 91.119(d).

10
were not waived, Dr. Bursztajn has failed to address any of the

“moral, social, and economic” policy factors relevant to the

jurisprudential creation of a duty. See Posecai, 752 So.2d at 766.

Absent a showing of a more specific duty, the Army had only “‘the

obligation to conform to the standard of conduct of a reasonable

man under like circumstances.’” See Ellison v. Conoco, Inc., 950

F.2d 1196, 1205 (5th Cir. 1992) (citation omitted; applying

Louisiana law).

Regardless, any legal conclusion by the district court that

the Army owed no more particular duty was not erroneous. The only

evidence of any more particular duty came from Dr. Bursztajn’s

expert, Ross, who testified that the pilot should have performed a

maneuver called a “high and low recon” which involves circling the

landing area once or twice to ascertain that there are no potential

hazards on the ground.

The district court concluded that the pilot did not have “a

duty to do a low recon or a high recon or any other kind of recon.”

For, on cross-examination, Ross conceded that a manual for Army

aviators did not require a high or low reconnaissance over a

familiar area such as LSUMC where CWO Yingling had flown more than

70 times. Indeed, CWO Yingling testified that it was unnecessary,

dangerous, and possibly even against federal regulations to circle

over a congested area such as the part of the city where the

hospital is located. And the district court found Ross’s opinions

incredible and “totally wrong,” to which credibility determinations

11
we must give substantial deference. See LULAC #4552, 123 F.3d at

846. We conclude that the evidence adduced at trial does not

establish that the Army pilots had a legal duty to perform a high

or low level reconnaissance maneuver before landing at LSUMC.

Ross also testified that CWO Yingling should have seen Dr.

Bursztajn sooner and thus been able to abort the landing when he

saw her in the parking lot. Ross’s opinion was based in part on

vague speculation about the speed of the helicopter’s approach, but

it rested primarily on his discredited and disbelieved opinion that

the pilot had a duty to make a reconnaissance maneuver before

attempting to land. The district court concluded that the pilot

did not have “any duty to see [Bursztajn] at any time sooner or to

take any more evasive action.” Despite the district court’s use of

the term “duty,” we construe this ruling as a factual finding that

the pilot did not breach his general duty of care by failing to

notice Dr. Bursztajn sooner. Cf. Pitre, 673 So. 2d at 596 (noting

that a warning was not “required” even while framing the issue in

terms of breach of duty). Again, we owe considerable deference to

the trial court’s determination that Ross’s opinions were

incredible and “totally wrong.” See LULAC #4552, 123 F.3d at 846.

Dr. Bursztajn has not shown that the Army pilots had a specific

duty to observe more than they did or to do so sooner than they

did.

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3. Breach of Duty

Construing the district court’s decision as a factual finding

that the pilots did not breach a general duty of care, cf. Pitre,

673 So. 2d at 596, the question whether they breached the Army’s

duty to Dr. Bursztajn is resolved by determining whether the pilots

acted reasonably under the circumstances. See Ellison, 950 F.2d at

1205 (referring to the obligation to conform to a reasonable person

standard of conduct). The district court’s conclusion that the

pilots acted reasonably is not clearly erroneous. See Samson, 242

F.3d at 632. As noted, Ross testified that the pilots breached the

duty of care by failing to circle the area once or twice to be sure

that there were no potential hazards, a maneuver that would have

taken up to five minutes. In addition to Ross’s concession that

the Army flight instruction manual does not require this maneuver

under these circumstances, Ross also conceded that a pilot would

not want to perform extra maneuvers with a critically injured

patient aboard the helicopter on a medical evacuation mission.

And, CWO Yingling testified, presumably credibly, that it would

have been unreasonable to circle the hospital. In light of this

evidence, and giving deference to the district court’s credibility

determinations, there is no clear error.

As noted, Ross also testified that CWO Yingling should have

seen Dr. Bursztajn’s car sooner and aborted the landing because she

was a “potential pedestrian.” Ross admitted, however, that the

pilot was not unreasonable for failing to see Dr. Bursztajn while

13
she was still in her car, and that there was nothing wrong or

unreasonable about the helicopter’s approach except that Dr.

Bursztajn’s car was in the parking lot. Ross conceded further

that, during the approach, CWO Yingling was responsible for

observing many things inside the aircraft in addition to looking

outside for potential risks on the ground, and that by the time CWO

Yingling did see Dr. Bursztajn exiting her car at the 3 o’clock

position relative to the helicopter, it was too late for the

landing to be aborted safely.

The trial court found that CWO Yingling was not in a position

to have recognized any danger to Dr. Bursztajn until it was too

late to do anything that would not have created an even greater

danger. The court concluded that the pilots acted reasonably in

light of the aircrew’s duty to the patient, the crew, and the

hospital. Once again, when viewed in the light of all the evidence

and the deference due the district court’s determination that Ross

was not a credible expert, there was no clear error.

B. State Fault

The district court concluded that the LSUMC police we at fault

for failing to secure the area of the helipad after receiving

notice that a helicopter would be arriving. Dr. Bursztajn argues

that the district court erred by assigning fault to the State

because it is not subject to strict liability under Louisiana law.

Assessing fault to the State was not contrary to Louisiana

law, which requires the assessment of the fault of each person who

14
contributes to the plaintiff’s harm, regardless of the person’s

immunity from suit, including worker’s compensation immunity. See

LA. CIV. CODE ANN. art. 2323(A). The district court did not hold

that LSUMC was strictly liable, only that LSUMC had an “obligation

to watch out and post guards there to stop anyone from being

injured by the approaching helicopter.” This determination was

supported by evidence that LSUMC (1) had been advised that this

flight was on its way; (2) had a policy of controlling traffic in

the parking lot during take-offs and landings; and failed to do so

on the occasion that Dr. Bursztajn was injured. She does not

contend —— nor could she —— that the Army breached any duty to

advise LSUMC of the incoming flight, as the uncontradicted evidence

shows that such advice was timely furnished. Dr. Bursztajn shows

no legal or factual error with respect to the district court’s

conclusion that LSUMC was at fault.

C. Plaintiff’s Fault

The court also concluded that Dr. Bursztajn herself could have

and should have avoided the accident by simply staying inside her

car when she heard the helicopter’s approach. Dr. Bursztajn does

not challenge this finding in her brief and is thus precluded from

showing on appeal that it is erroneous.

D. Loss of Consortium

Dr. Bursztajn’s husband, Stephen, sought damages for loss of

consortium based on her injuries. As the Army was not at fault for

15
Dr. Bursztajn’s injuries, however, her husband is not entitled to

recover.

III

CONCLUSION

The factual findings of the district court are free of clear

error. Its conclusions regarding the law of Louisiana applicable

to those facts are likewise free of error. Inasmuch as the Army

had no special duty of care to Dr. Bursztajn and did not breach its

general duty to her, the district court’s grant of jmol is, in all

respects,

AFFIRMED.