Judge rules air controller not at fault in Kentucky plane crash in which four died

An air traffic controller was not at fault in an airplane crash in Kentucky that killed four people, a federal judge has ruled.

U.S. District Judge Robert E. Wier said in his decision that the controller, Reggy Richins, was not negligent in handling radio calls from the pilot, Scott Foster.

Rather, poor decisions and mistakes by Foster were to blame for the crash, Wier said in a detailed analysis of evidence in the case.

“The crash circumstances are heart-wrenching and reflect the gravest imaginable losses for the families before the Court,” Wier wrote in the decision, dated March 30. “Although the Court has deep sympathy and respect for the human cost, the evidence in this case points this fact-finder to only one conclusion — (Foster) alone bears responsibility for the crash.”

Those who died in the crash on Nov. 12, 2017, were Foster, 41, an attorney in Somerset; his son Noah, 15; Kyle Stewart, 41, a Somerset dentist; and Doug Whitaker, 40, an attorney and chaplain for the Somerset Police Department.

The four were returning to Somerset from a hunting trip in Western Kentucky.

The crash happened after Foster contacted the air traffic center in Memphis to report he had flown into an area where conditions required flying by instrument.

Foster was not rated to fly by instruments alone. He was qualified to fly by visual flight rules, or VFR, meaning he wasn’t supposed to fly through clouds or in weather with a low cloud cover or poor visibility.

Foster asked for information on an altitude that was clear of cloud cover.

The controller who answered the radio call, Richins, would not have been able to see on his radar scope the weather conditions Foster was encountering.

Richins asked other pilots in the area for information and relayed to Foster that one pilot said the clouds topped out at about 8,000 feet, asking if Foster could climb to that altitude.

Foster told Richins he would climb to get above the clouds, but radioed less than a minute later that the plane was going down.

Radar showed that the plane began making downward right turns with increasing rates of descent, according to the National Transportation Safety Board (NTSB).

The board said the stress that the steep dive placed on the plane caused it to partially break up as it went down. It crashed in a wooded area in Barren County.

Federal investigators concluded Foster likely became disoriented, causing him to lose control.

The NTSB said there was no record that Foster obtained an official weather briefing before the flight, but his widow told federal authorities earlier that he was “careful and meticulous,” always checking weather conditions before flying.

Attorneys for crash victims said Foster had checked the weather on a hand-held device before lifting off and had an app to monitor weather as he flew.

Relatives of the crash victims sued the federal government, alleging that Richins was negligent in his handling of the calls from Foster.

They argued that Richins should have recognized Foster was in an emergency situation but did not act with sufficient urgency; that Richins didn’t give Foster adequate information on weather and icing conditions; and that he should have provided other options for avoiding reduced visibility, including directing Foster to turn back or descend to the nearest airport.

The opinion of one witness for those suing the government, Charles Copley, was that if Richins had declared an emergency and provided proper assistance, Foster’s “loss of control and the resulting accident could have been avoided,” according to the ruling.

However, Wier said he found witnesses for the government more substantive, consistent and persuasive on key issues.

One of those witnesses, pilot Vickie Norton, who had about 17,000 hours flying time, said that in her opinion Foster fell short of his duty by not getting a proper pre-flight briefing, including seeking adequate weather information; by flying into doubtful conditions despite having relatively little experience; and by failing to make clear to the air traffic controller that he was in an emergency situation.

Norton “strongly opined” that a full briefing would have recommended Foster not fly that day, Wier said.

Wier noted that Foster didn’t tell Richins he was in an emergency situation and that the tone of his voice also didn’t communicate that, remaining “professional, steady and level” before his final call that the plane was going down.

When Richins told Foster he would find clear air at an altitude of 8,000 feet, Foster had a duty to object or express concerns if that would have put him in peril or worsened the situation, but didn’t, Wier said in his ruling.

Wier ruled that Richins acted reasonably and fulfilled his duty to Foster even while dealing with other planes, saying Richins ran his radar scope “with organization and aplomb.”

Henry S. Queener, an attorney for survivors of those who died in the crash, said his team did not see anything in Wier’s ruling to justify an appeal, but are “deeply disappointed in the court’s refusal to apply the FAA emergency standard to what we believe we proved was an emergency.”

Wier said Foster was a talented and accomplished person who undoubtedly loved his son and cared deeply for his two friends on the flight, but made mistakes that included not turning back or diverting to a safe landing when he hit deteriorating conditions, and not being clear with Richins about the circumstances he faced.

“Regrettably, Foster simply got himself and his plane in an avoidable circumstance that exceeded his abilities as a pilot; the consequence was four lives lost,” Wier wrote.