‘A nightmare we can’t wake up from.’ Families’ lawsuit: Air controller caused Kentucky crash

This is what NTSB does when it investigates plane crashes and other accidents

The National Transportation Safety Board, established in 1967, conducts independent investigations into all civil aviation accidents in the U.S. and major accidents in other modes of transportation.
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The National Transportation Safety Board, established in 1967, conducts independent investigations into all civil aviation accidents in the U.S. and major accidents in other modes of transportation.

An air-traffic controller did not provide the safest options after a Kentucky pilot flew into an area of limited visibility and asked for help, family members of crash victims have charged in a federal lawsuit.

The plane crashed as a result of the “illegal and negligent instruction” of the air-traffic controller, the lawsuit alleges.

“This case is about shining the light of truth on what happened that day and what air traffic control did to substantially contribute to that plane crashing,” said Henry Queener, an attorney who represents the estates of three people who died in the crash.

The crash happened on Nov. 12, 2017, as Scott T. Foster, 41, an attorney in Somerset, and his son Noah, 15 returned from a hunting trip in western Tennessee with Kyle P. Stewart, 41, a dentist in Somerset, and Doug Whitaker, 40, who had served as chaplain for the Somerset Police Department and also was a lawyer.

Foster was the pilot.

Foster’s plane, a Piper PA32 built in 1965, hit trees in a heavily-wooded area near Fountain Run, in Barren County, and came to rest wedged between tree trunks.

The three men died at the scene. Rescuers found Noah alive, but he was pronounced dead at a hospital in Bowling Green.

In a report issued this week, the National Transportation Board said the probable cause of the crash was that Foster, who wasn’t rated to fly by instruments alone, flew into an area where less visibility would have required flying by instruments and became disoriented.

Somerset plane crash
Four Somerset residents were killed in a plane crash in Barren County in November 2017 that happened after the pilot encountered reduced visibility. Kentucky State Police

The report included a discussion of how pilots rated to fly by sight alone can become disoriented in conditions requiring instrument flight.

A pilot in that circumstance can have the sensation that the plane is flying in a direction it is not, and may as a result change course in a way that feels correct, but makes the descent worse, the NTSB said.

The NTSB did not mention the icing on the wings of Foster’s plane as a potential cause of the accident, but the lawsuit raises that potential.

There was a report of light icing from another pilot in the area before the crash, the lawsuit says.

Foster and his passengers were flying home from a hunting trip in Tennessee when Foster called the air-traffic control center in Memphis to report he’d encountered conditions requiring instrument flight.

Foster requested information on a flight path to better visibility.

The controller radioed other planes and called back to Foster to report that the clouds topped out at an altitude of about 8,000 feet.

Foster said he would climb to that altitude, but instead radar showed the plane made a series of shallow turns between 7,000 feet and 7,300 feet, followed by a downward right turn with increasing rates of banking and descent.

Less than a minute after saying he would climb to 8,000 feet, Foster radioed that the plane was gown down.

A witness on the ground said the plane was in a nosedive when it dropped out of the clouds.

The lawsuit said the air-traffic controller failed to suggest that Foster make a level turn of 180 degrees to go back the way he’d come before entering the area of lower visibility.

That is the primary maneuver flight instructors tell visual-only pilots to use if they inadvertently encounter conditions requiring instrument flight, the lawsuit says.

The controller knew, or should have known, that the second alternative was to divert Foster’s flight and descend to the nearest airport he could see, according to the lawsuit.

The controller radioed Foster to tell him the nearest airfield was in Tompkinsville, but only after Foster had reported his plane was going down.

Instead of suggesting the two safer alternatives, the controller told Foster to climb through 3,000 feet of icing conditions, the lawsuit says.

The controller’s instruction to an aircraft “piloted by a visual-only pilot to climb through 3,000 feet of icing conditions was illegal and grossly negligent,” the lawsuit charges.

“Mr. Foster was not offered any of the many safer alternatives and instead was led down a terrible path of clouds and icing when the air traffic controller knew Mr. Foster was a visual only pilot, and his plane had no deicing equipment,” Queener said in a release.

The lawsuit seeks unspecified damages for the estates of Scott and Noah Foster and Whitaker.

The plaintiffs are Scott Foster’s widow, Amy; the administrator of his estate, Michael Foster; and Whitaker’s widow, Sara.

The defendant is the federal government. The Federal Aviation Administration employed the controller.

An FAA spokeswoman said the agency doesn’t comment on litigation.

Somerset attorney Scott T. Foster Somerset Commonwealth-Journal

Amy Foster said in a release that she hopes the lawsuit turns up more information.

“It has been absolutely without a doubt devastating to not just our family, but the whole community,” she said of the crash. The family includes two other children.

Foster said there is no getting over such a loss.

“You learn to live with it. It becomes a part of who you are, and you just find a way to keep going,” Amy Foster said.

Sara Whitaker said in the release that her husband’s death is “a nightmare we can’t wake up from.” She is raising three children without their father.

Stewart’s daughter, Kamryn Stewart, has sued Foster’s estate, alleging he acted recklessly and negligently in flying into conditions he wasn’t trained to handle.

The estate has denied that Foster acted improperly.

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