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Click here for the full text of this decision FACTS:Plaintiff-appellant Sherry Bursztajn, M.D., a professor at Louisiana State University Medical Center in Shreveport at the time she was injured, appeals the district court’s grant of judgment as a matter of law, dismissing her and her husband’s personal injury claims advanced against the United States Army under the Federal Tort Claims Act. Likewise, intervenor plaintiff-appellant the state of Louisiana 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 judgment as a matter of law was based on an incorrect legal premise, that the Army owed Bursztajn a 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, the court affirms. 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 of Louisiana intervened against the United States Army to recover workers’ compensation benefits that it paid to 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 an Army helicopter, under the command of Chief Warrant Officer Yingling, was actually being flown by its co-pilot, CWO Richardson, in the course of transferring a head-trauma patient from another hospital to LSUMC. At the time that the aircraft was landing at LSUMC, Bursztajn was arriving for work and parking her car in a hospital parking lot near the helicopter-landing pad. 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. 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. 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. Yingling’s visibility was restricted to looking only straight ahead and to his right. When the aircraft was approximately 65 feet above the ground, Yingling spotted Bursztajn just as she was exiting her car, which was parked almost directly to his right, at the 3 o’clock position. Yingling further testified that by the time he saw 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 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 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 judgment as a matter of law. Bursztajn and the state filed timely notices of appeal, insisting that the district court committed legal error in concluding that the Army owed no duty of care to Bursztajn. They also contend that the district court committed clear error by finding that the Army did not breach a duty to her; and she alone argues that the district court committed legal error in assigning any portion of liability to the state. HOLDING:The court affirms the district court’s decision of judgment as a matter of law in favor of the Army. After a discussion of Federal Rule of Civil Procedure 52(c), the Federal Tort Claims Act, and Louisiana tort law, the court launches into a discussion of whether the Army owed a duty to Bursztajn and, if so, whether it breached that duty. Bursztajn contends that, because the district court dismissed the case on the legal ground that the Army owed her no duty, the court’s review should be de novo. The Army counters that, because that court based its jmol on the factual finding that the Army did not breach any duty, the court’s review is for clear error. The court notes that its standard of review 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, but adds that the conflation is understandable, as the Louisiana Supreme Court itself has had difficulty making a clear distinction between the questions of breach and duty. The court says Bursztajn does not address this breach/duty dichotomy, contending instead that the district court wrongly held that the Army owed her no duty whatsoever, then says she either misunderstands or misrepresents the district court’s ruling. The court finds that the district 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 general duty of reasonable care. The court finds that it 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. The court finds Bursztajn waives the issue of whether the Army owed a more specific duty of care to her than the general duty of reasonable care to avoid endangering persons on the ground by failing to brief the issue. 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 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 Yingling had flown more than 70 times. Indeed, 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 the court must give substantial deference. The court concludes 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 Yingling should have seen Bursztajn sooner and thus been able to abort the landing when he saw her in the parking lot. Ross’ 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,” the court construes this ruling as a factual finding that the pilot did not breach his general duty of care by failing to notice Bursztajn sooner. The court notes that it owes considerable deference to the trial court’s determination that Ross’ opinions were incredible and “totally wrong.” 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. Construing the district court’s decision as a factual finding that the pilots did not breach a general duty of care, the question whether they breached the Army’s duty to Bursztajn is resolved by determining whether the pilots acted reasonably under the circumstances. The district court’s conclusion that the pilots acted reasonably is not clearly erroneous. 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’ 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, 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 Yingling should have seen 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 Bursztajn while she was still in her car, and that there was nothing wrong or unreasonable about the helicopter’s approach except that Bursztajn’s car was in the parking lot. Ross conceded further that, during the approach, 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 Yingling did see 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 Yingling was not in a position to have recognized any danger to 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. The district court concluded that the LSUMC police were at fault for failing to secure the area of the helipad after receiving notice that a helicopter would be arriving. Bursztajn argues that the district court erred by assigning fault to the state because it is not subject to strict liability under Louisiana law. The court then moves on to the issue of state fault, finding that assessing fault to the state was not contrary to Louisiana law, which requires the assessment of the fault of each person who contributes to the plaintiff’s harm, regardless of the person’s immunity from suit, including worker’s compensation immunity. 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 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. Bursztajn shows no legal or factual error with respect to the district court’s conclusion that LSUMC was at fault. The court finds the district court’s factual findings to be free of clear error, as are its conclusions regarding the law of Louisiana applicable to those facts. Inasmuch as the Army had no special duty of care to Bursztajn and did not breach its general duty to her, the court affirms the district court’s grant of judgment as a matter of law in all respects. OPINION:Per curiam; Jolly, Wiener and Pickering, JJ.

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