Supreme Court won't hear appeal of airplane crash lawsuit

Chris Rizo Dec. 1, 2009, 7:11am

U.S. Supreme Court building

WASHINGTON (Legal Newsline) - The U.S. Supreme Court has declined to hear an appeal by a Michigan woman who wants to sue the federal government over claims air traffic controllers acted negligently.

Susan Hertz wants to sue the government because air traffic controllers told the pilot of a homemade plane to continue flying in a thunderstorm before it crashed. Her husband, Roger Hertz, was one of three people who died in a May 31, 2004, plane crash in Michigan.

Hertz said she learned about a month after the crash that the pilot had asked air traffic controllers for alternative directions to avoid the storm. But rather than redirect the plane, she claims they sent the plane directly into the storm.

She filed a lawsuit June 6, 2006. Since the Federal Torts Claims Act requires that lawsuits against the government be filed within two years of the time of the action for which the person is suing, her lawsuit has been tossed out of court.

For her part, Hertz said the time limit should have begun from the point that she found out that air traffic controllers were allegedly negligent.

The original lawsuit was filed in the United States District Court for the Eastern District of Michigan. Hertz's appeal case was heard by the 6th U.S. Circuit Court of Appeals, which sided with the trial court's April 2007 decision to toss the lawsuit.

"Plaintiff's spouse died, tragically, in a plane crash. The record makes plain-and Plaintiff herself concedes-not only that she should have been able to determine in the two-year period whether to file a claim, but that she in fact made that determination, when the NTSB investigator told her, less than a month after the crash, that 'the NTSB believed that the cause of the accident was related to air traffic controller negligence,'" the appeals court ruled. "The problem was simply that, for whatever reason, her then-counsel chose not to file the claim in the remaining 22 months of the period prescribed by Congress."

The case is Hertz v. United States, 09-26.

From Legal Newsline: Reach staff reporter Chris Rizo at

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