Full opinion text
AMENDED ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT ON LIABILITY MARCUS, District Judge. THIS CAUSE comes before the Court upon the PSC’s motion for partial summary judgment as to the issue of liability in the passenger cases, filed July 14, 1997, and the cabin crew Plaintiffs’ separate motion for summary judgment as to liability, filed July 14, 1997. With their motion, the passengers seek entry of an Order finding Defendant American Airlines, Inc. (“American” or the “Defendant”) liable for compensatory damages flowing from the crash of American Airlines Flight 965 on December 20, 1995 in the mountains near Cali, Colombia. The passengers also ask the Court to find that their compensatory damages are not capped by certain provisions of the Warsaw Convention, which limit an air carrier’s liability except in eases of “willful misconduct.” The cabin crew members, whose lawsuits do not implicate the Convention, seek entry of an Order finding American liable for negligence under Florida law. The Plaintiffs’ motions are ripe for resolution, and this Court took extensive argument on them during pre-trial hearings on August 18, 19, 20 and 25, 1997. After an exhaustive review of the parties’ submissions, which include lengthy memoranda and voluminous exhibits, the Court concludes that the Plaintiffs are entitled to the relief that they seek. Simply put, no reasonable jury could find that acts of the pilots of Flight 965—and in particular the pilots’ decision to continue their descent at night from a grievously off course position in mountainous terrain— amounted to anything less than willful misconduct, whether that term is construed to require an objective or a subjective inquiry. Moreover, no reasonable juror could find that the pilots’ conduct was not among the proximate causes of the crash. We reach this conclusion with considerable hesitance, mind-fill of the significance of the litigation and the heavy burden that must be met before summary judgment may be entered in a Warsaw Convention case. Nevertheless, even giving the Defendant every benefit of the doubt, and drawing every reasonable inference in its favor, the record cannot fairly be read to support any other result. Accordingly, for the reasons detailed at length below, the pending motions for summary judgment must be, and are, GRANTED in their entirety. I. As noted above, this litigation arises out of the tragic crash of American Airlines Flight 965 on the evening of December 20, 1995 as the plane attempted to navigate its arrival to the Alfonso Bonilla Aragon airport at Cali. One hundred fifty-one passengers and the six members of the cabin crew died as a result of the crash, with another four suffering nonfatal injuries. The two cockpit pilots, Captain Nicholas Tafuri and First Officer Donnie Ray Williams, also perished in the crash. The initial lawsuit was filed on December 29, 1995. Since then, almost 160 additional eases have been consolidated before this division of the Southern District of Florida, including a number of lawsuits that were filed in other federal judicial districts, but subsequently-transferred here by the Judicial Panel on Multidistrict Litigation. A nine-member steering committee (the “PSC”) represents the Plaintiffs in these consolidated eases with respect to liability issues. The Defendants are American Airlines, Inc., the estates of the two pilots and, in the six cabin crew cases, American’s parent corporation, AMR. Honeywell, Inc., the manufacturer of the flight management computer (“FMC”) used by the pilots of Flight 965, and Jeppesen-Sanderson, Inc. (“Jeppesen”), the manufacturer of certain materials used in conjunction with the FMC, have been impleaded by American in several recently-filed eases, although the Court has denied American’s motion to join these third parties in the other consolidated lawsuits. The parties agree that the claims of the passenger Plaintiffs arise under what is commonly labeled the Warsaw Convention, an international treaty binding on the United States that, by its terms, applies to “all international transportation of persons, baggage, or goods performed by aircraft for hire.” See 49 Stat. 3000, reprinted at 49 U.S.C. § 40105. Article 17 of the Convention, in the official English translation, states that “[t]he carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” At the time of this accident, Article 22, as modified, limited American Airlines’ potential liability for compensatory damages flowing from the death or personal injury of the passengers on Flight 965 to $75,000 per victim. Article 25, however, created an important caveat to this language by explaining that “[t]he carrier shall not be entitled to avail [itjself of the provisions of this convention which exclude or limit [its] liability, if the damage is caused by [its] willful misconduct.” The PSC contends that many acts by the pilots of Flight 965 deviated so markedly from the standard of care, in the face of so plain and obvious a danger, that a finding of willful misconduct is inevitable. The Plaintiffs allege a large number of subsidiary errors by the pilots, including flying the plane at an excessive speed and leaving the speed brakes on while attempting an abrupt ascent shortly before colliding with the mountain, but focus primarily on four discrete acts. First, and principally, the Plaintiffs assert that the phots violated American Airlines policy and Federal Aviation Regulations (“FAR’s”) by knowingly permitting Flight 965 to descend after the plane veered far off the prescribed approach path to the Cali airport. Second, the Plaintiffs contend that the pilots violated American Airlines policy by knowingly deviating from the flight plan and attempting a “short cut” into the airport. Third, the Plaintiffs allege that the pilots violated American Airlines policy by failing to verify that the identifier for a waypoint on the route they elected to fly was correct before entering it in the FMC. Finally, the Plaintiffs insist that the pilots, once off course, violated American Airlines policy by ignoring the instructions of the Colombian air traffic controller (“ATC”) and attempting to bypass one of the required waypoints. The PSC suggests that these acts, standing alone or in the aggregate, demonstrate willful misconduct within the meaning of the Convention. American does not deny that the pilots made what it calls “human mistakes.” Def. Resp., at 3. Indeed, it squarely acknowledges at least two breaches of the applicable standard of care and concedes that the accident was “an avoidable controlled flight into terrain.” Pre-Trial Stipulation, August 13,1997 (“PTS”), at § V ¶ 20. The Defendant maintains, however, that a reasonable jury could find that the acts of the pilots did not, individually or in the aggregate, amount to willful misconduct. Moreover, according to American, even if the pilots did commit wrongful acts, a reasonable jury could find that these acts did not proximately cause the crash of Flight 965. Rather, the wrongful acts of Jeppesen, Honeywell and the Colombian ATC’s superseded any misconduct by the pilots. On the strength of these arguments, American contends that it is not liable to the crew members on a theory of negligence, and the $75,000 limitation on damages in the passenger eases should remain in place. II. We begin by laying out the undisputed, material facts of this litigation, pausing occasionally to identify some of the parties’ points of disagreement. Although many of these facts will be repeated and discussed in greater detail at subsequent points in this Order, it is helpful to provide an initial overview of the acts and omissions that both parties acknowledge took place on the night of the accident. Unless otherwise noted, the following facts have been proposed, stipulated to or left uncontested by American Airlines. Flight 965 left Miami International Airport on the afternoon of December 20, 1995, bound for Cali, Colombia to the south. The aircraft pushed back from the departure gate 34 minutes late, and experienced an additional ground delay of one hour and 21 minutes before departing. PTS, at § V ¶4-. The airplane used was a Boeing 757 which the parties acknowledge was airworthy and in good mechanical and structural condition when it left Miami. Id. at ¶ 30. In the cockpit were Captain Tafuri, the pilot, and First officer Williams, the co-pilot. Id. at ¶31. Both Tafuri and Williams were Federal Aviation Administration (“FAA”) licensed' pilots, each with over 2200 total flight hours in Boeing 757’s or 767’s and extensive experience with American Airlines. Id. 9¶ 5-11, 15-16. Tafuri had flown 13 American Airlines flights as Captain to Cali prior to December 20, 1995, and indeed, an American supervisor carried out Tafuri’s annual international line check on December 9, 1995— just eleven days before the accident—on a flight from Miami to Cali. Id. ¶¶ 14, 42. Williams had, never flown an American Airlines aircraft into Cali prior to December 20th. Id. ¶ 41. At all material times during the flight, Williams was flying the aircraft and Tafuri was primarily handling radio communications. Id. ¶44. Prior to their departure, Tafuri and Williams were given a “dispatch package” which included a printed, computer-generated flight plan. The flight plan, among other things, called for Flight 965 to follow a specified route during the arrival and approach to the airport at Cali. The arrival phase is typically conducted in accordance with a specified STAR (Standard Terminal Arrival Route), which consists of a series of way-points or “fixes” in the terminal area defining the path along which the aircraft must descend toward the airport. These waypoints are often radio beacons of various types known as navigation aids or “navaids.” Navaids may consist of VOR’s (“VHF Omnidirectional Range” stations) or NDB’s (non-directional beacons), both of which emit radio waves that can be tuned in from the cockpit. By tuning radio receivers to the specified frequency for a VOR, for example, an aircraft’s pilots can determine the compass direction to and in some instances the distance from the VOR in question. These navaids can help pilots establish their position in the sky as well as distances from point-to-point. Approaches, like arrivals, are typically defined in terms of a series of waypoints, and are intended to guide the aircraft from the arrival path onto the prescribed runway at the airport. Flight 965 was equipped with a flight management computer. In an aircraft without an FMC, phots fly by relying on “raw data”—specifically, the navigational information, such as magnetic compass heading, speed and altitude, that is displayed on dials and gauges on the instrument panel. The FMC, however, can be used to translate data received from navaids into a map-like pictorial view of the aircraft’s position in the sky. This view appears on electronic horizontal situation indicator (“EHSI”) screens that are located opposite each phot on the cockpit’s main instrument panel. FMC inputs are made on a device known as a CDU, which resembles a calculator with a keypad and a small digital screen. Some or all of a preprogrammed flight plan, or the approach and arrival paths for particular airports, may be called up by the pilots from the computer’s database simply by making certain keystrokes on the CDU. In other words, if a pilot elects to follow a particular STAR for an arrival, he need not type separately all of the waypoints that make up that STAR; instead, he may simply call up the STAR by its identifier(s). Similarly, all of the waypoints along a desired approach path may be called up by typing the appropriate identifier. Once these steps are taken, the computer can be instructed to fly the aircraft automatically along the selected route (placing the plane in “L-Nav” mode). Alternatively, the pilots can simply use the EHSI screens for visual assistance while they manually fly the aircraft by relying on raw data. In this case, we are concerned principally with four waypoints defining the arrival and approach to the Cali airport. These way-points are, traveling north to south, the Tulua VOR (identified as “ULQ”), the fix known as “D21 CLO,” the Rozo NDB and the Cali VOR (identified as “CLO”). The Cali VOR, located nine miles south of the airport, is the benchmark for the other waypoints. The Tulua VOR is located 43 miles to the north of the Cali VOR on a radial of 202°. The D21 CLO waypoint is located 21 miles to the north of the Cali VOR on a radial of 193°. The Rozo NDB is located roughly 12 miles to the north of the Cali VOR, on or slightly offset from the same 193° radial. The strip of concrete on which Flight 965 was expected to land at the airport is known as Runway 1 when approached from the south and Runway 19 when approached from the north. The Cali airport is located in a valley approximately 43 miles long and 12 miles wide and surrounded by high terrain. The arrival and approach paths for aircraft landing at the airport are designed to keep planes in an “airway” in the center of the valley. American Airlines pilots flying into Central and South America must receive special training intended to acquaint them with the unique features of these regions. Among other things, pilots are trained to keep in mind two critical precepts when attempting to land airplanes in Latin America. First, they are instructed, in no uncertain terms, not to rely on local ATC’s for information about their location or position in the sky. For example, the July, 1995 Pilot Reference Guide for Latin America, in a section titled “Warning! Arrivals May be Hazardous,” makes the following points, all of which have powerful significance in this litigation: Controllers will clear you to descend below minimum safe altitude in mountainous terrain____ The controller will make assumptions that you must understand before you learn it the hard way. The controller assumes that: • You are on course; • You are where you say you are; • You know where the high terrain is; • You will not accept a clearance that will take you into the terrain. If you do accept the clearance, the controller will conclude that all of the above are true. PSC Mot., exh. 8, at 62-63 (emphasis in original). The Guide goes on to emphasize that: If the airport is in high terrain, you are best advised to assume the controller will become distracted and allow you to fly into a mountain. It has happened. Never rely on terminal controllers to keep you from hitting mountains! Do not trust them.... Know exactly where you are and do not accept descent instructions unless you know it is safe to do so. Id. at 63 (emphasis in original). The second critical precept American Airlines pilots are trained to observe is a corollary of the first. Specifically, pilots are warned of the dangers associated with flying into Latin American airports, many of which, like that at Cali, are located at high altitudes amid rugged mountainous terrain. Consequently, it is literally, as the Guide makes clear in a section entitled “Staying Alive,” a matter of life or death for pilots to ensure that they are absolutely certain where they are in the sky, and suspend any descent until they know where they are: There have been more major aircraft accidents in South America than anywhere else. There are good reasons for this. The most important factor, however, is you. You must know what is going on and where you are---- It seems obvious to say that you must know where you are at all times when operating in the southern divisions. The reason for saying this is to emphasize that you must be able to pinpoint your location on the enroute charts. If you are not used to flying with the charts out and open, then you must learn to do that down south because of the notes on the charts. These notes often define procedures you won’t find anywhere else.... While knowing your enroute location can be critical, knowing where you are in the terminal area, around the dangerous high terrain airports of Central and South America, can be vital. Most of the aircraft that have hit the mountains did so because the crew apparently did not know where they were. The tolerances get finer and finer as you get into high mountains. For that reason, it is essential to monitor and rely upon raw data from ground-based Navaids, whenever you descend from altitude. Id. at 63, 71-72 (emphasis in original). In a section titled “Terminal Procedures,” the Guide continues, in a passage with significant implications here, that “[bjecause of high terrain, it is imperative when operating in Central and South America that you continually verify your exact location by every means available.” Id. (emphasis added). In a section titled “Hazards,” the Guide offers the following advice: There are few areas of the world that are as potentially dangerous to flight operations as Central and South America. The reasons include terrain, weather, ATC, runways, and communications, but by far the most dangerous element in this environment is a flight crew that lacks situational awareness. High mountains, bad weather, and possibly poor or missed communication, coupled with lack of planning, ignorance of the environment and procedures, or inattention, are the ingredients for disaster. It is not possible to over-emphasize, nor to repeat too often, the warnings and rules you will find in this chapter. If you fail to heed them, if you arrive in the terminal area listless after a long night of quiet tedium and fail to prepare for the approach, fail to rouse your energy and concentration, you and all the people in your charge may join the long list of wasted lives and wreckage that have littered the high slopes of the Andes. Id. at 77 (emphasis in original). A section entitled “Knowing the Altitude of the Terrain Below” emphasizes that pilots, in order to be sure where they are, must rely on more than the EHSI map, and therefore must “[t]ake the time to study the several ways in which terrain elevation is depicted on the enroute charts and arrival/departure plates.” Id. short, pilots are required to “[e]xamine the charts and plates to locate your position, cross-check every available indication and know where you are before you accept a descent. ” Id. 79-80 (emphasis added). These precepts are summarized in a series of rules for pilots flying into Latin America. The rules appear under the heading “Situational Awareness: A Working Definition.” Situational awareness implies an alert active assessment of the aircraft’s position relative to terrain, other aircraft, and the airport____ [Njowhere is it more of a requirement than in the vicinity of the high terrain airports of Central and South America. The natural instinct to employ the rules that follow is the mark of a pilot who has situational awareness. Situational awareness may become second nature after years of experience and training, but it can also be acquired through personal discipline, motivation, and a willingness to learn from the mistakes of others____ The challenge to those who devise and present training to the American Airlines crews who will fly into Latin America has been to shatter the complacency that comes with years of experience flying in a predictable environment. With that in view we offer this warning in the form of a rule, when flying into Central and South America: Rule 1: You must take responsibility for your own survival! In Latin America, the relationship between the ATC controller and the flight crew is different from that in the US. It is different in this way: US controllers have rigid guidelines for descent and vectoring clearance, separation standards, communications protocols, complete coordination between adjacent control functions, and superb equipment. They have a directive role which we have come to accept without question. In contrast, the attitude of the Central and South American controller is much less directive. This is a subtle but vital philosophical difference you must grasp, because it can save your life. Controllers in Latin countries have a role that is more in the nature of a coordinator, negotiator, or facilitator than U.S. controllers. In the US, we respond to the instructions of the controller with confidence that we will have terrain and traffic separation, that there is a clear plan for our sequence to the final approach. We request deviations as we think necessary, but normally not. We entrust ourselves to the person in front of the scope. But the Latin American terminal controller may not even see you on a scope. If radar is available, high mountains between you and the destination airport may prevent contact. So when the controller issues a clearance for descent, it will normally be based upon the controller’s assumption that you are taking charge of your own terrain separation. The burden rests squarely upon you. Even the routing is really in your own hands. The controller is used to dealing with crews who have made hundreds of approaches into the area and know where every high point is. The controller, in an effort to expedite your approach (as a courtesy or sometimes to optimize sequencing), may clear you direct to a fix over high intervening terrain. A red flag should go up if you are given a clearance direct in terminal areas with high terrain. You should accept an abbreviated procedure only if you really know where you are, and what’s below you, it’s VFR [visual flight rules, as opposed to instrument flight rules (“IFR”), which Flight 965 was following], and the sun is shining. Whenever this is not the case, follow this next rule: Rule 2: Insist on the complete published approach/departure, unless you know exactly where you are and what’s below you! Is it really possible that a controller will issue a descent to an altitude below the MEA [minimum enroute altitude], AMA [area minimum altitude], MORA [minimum off-route altitude], or M.S.A. § [minimum safe altitude]? Yes, it is done routinely. If you’ll examine some of the approaches into airports surrounded by high terrain, you will see that if you don’t descend below these guideline altitudes, in some cases, you won’t be able to make the approach. The trick is to remember the first rule: You must take responsibility for your own survival! That brings us to the next rule: Rule 3: Do not descend unless you know exactly where you are and the safe minimum altitude, There are two parts to this rule: knowing where you are and knowing the safe minimum altitude. The two issues are entwined. You can determine terrain elevation below you only if you know where you are. Id. at 77-79 (emphasis in original) (boldface added). In a post-accident document that succinctly reiterates pre-accident training, the Defendant reminded its pilots of the following points: • “[C]ontinually verify [your] exact position by every means available [when flying in Latin America]” • “Assume nothing. When clearances are received, check the MEA prior to deseending. Always have an enroute chart open to the correct area being flown.” • “Know where you are; know where you are going; and know how to get there.” • ‘You will be operating in an antiquated ATC environment, with usually little or no radar contact (Circa 1940’s). You are the Captain, with much more responsibility than at any time in your career. Remember, it’s your license and your life. Guard both!” • “Constant Awareness of Position. The only safe place to descend below the MEA, MOCA [minimum obstruction clearance altitude], etc. is in a published holding pattern. You must use it to assure adequate terrain clearance at or above the MEA.” • “Do not request or accept direct clearances which result in off-airway flying.” • ‘You must know the MEA versus your present position.” • “Terminal Area Charts [ ] depict holding patterns along published routes that must be used for any unplanned maneuvering in the terminal area. They must be flown exactly as depicted.” • “Prior study [of arrivals and approach charts] is essential. You cannot wait until you get there.” • “Be aware of the MEA at all points on the approach and missed approach.” • “The Captain [must] thoroughly brief each departure, arrival and landing, regardless of weather, with particular attention to obstacle clearance and terrain. Appropriate area charts depicting terrain and approach charts will be used in this briefing during the approach.” • “It is totally the pilot’s responsibility to avoid terrain.” • “If there is any question as to position, do not descend. ” Id., exh. 17 (emphasis added). There is no dispute that Tafuri and Williams knew about, and had been trained to observe in most if not all situations, these principles, which undoubtedly make the mistakes that occurred during the final minutes of Flight 965 more patent, and far more egregious, than they might otherwise be. A great deal of our understanding of what unfolded ■ during the final minutes of Flight 965 is based on the cockpit voice recorder (“CVR”), which recorded the interchange of remarks among Tafuri, Williams and the Colombian ATC’s. The summary judgment record contains two transcriptions of the CVR. One version, quoted by the PSC in its motion, apparently is based on the work of an investigatory group of the National Transportation Safety Board (“NTSB”) and was adopted by American in its May 31, 1996 NTSB submission. Recently, American Airlines retained an expert, Michael McDermott, to prepare a second transcript which reflects, at some critical points, a different interpretation of what was said. For purposes of this Order, we will, unless otherwise noted, use the “second” American Airlines transcript, although the differences between the first and second transcripts are generally of little moment and, where differences exist, they are not easy to square with words actually recorded on the tape played before and submitted to this Court. The other principal source of information about Flight 965 is the digital flight data recorder (“DFDR”), from which we can discern, among other things, the heading and altitude of the aircraft during the descent. See id., exh. 2. What follows is an initial survey of the CVR transcript, which we present largely to provide some of the background for our analysis of what the Court sees as the critical issue in the lawsuit: did the pilots know, or was it so plain they must have known, that Flight 965 was out of the valley and off the published route while the aircraft was descending toward the dangerous terrain below? Originally, Flight 965 was expected to follow an arrival path that called for it pass over the Tulua VOR and continue south to the Cali VOR, and at that point turn completely around for the approach to Runway 1. The applicable charts generally provide that an incoming aircraft should be no lower than 15,000 feet above mean sea level (“MSL”) at Tulua, 5000 feet at the D21 waypoint and 3900 feet at Rozo. The airport itself is located approximately 3100 feet above MSL. The initial conversation excerpted here records the final communication between the pilots and the Colombian ATC stationed in Bogota. This communication took place with the aircraft about to commence the crucial stages of its arrival to the Cali airport. Over the prior seven minutes, the aircraft had descended from its cruising altitude of 37,000 feet to approximately 25,000 feet above MSL. 21:33:50 Tafuri [A]merican Nine Six Five, request lower [altitude clearance] 21:33:53 ATC (Bogota) American Nine Six Five, can do[,] now descend to flight level two zero zero, report leaving two four zero 21:33:59 Tafuri We’re leaving two four zero now and descending to two zero zero [(3)27] 21:34:04 ATC And then call Cali [ATC, on] frequency one one niner decimal one, buenos noches 21:34:07 Tafuri Please say the frequency again 21:34:09 ATC One one niner decimal one 21:34:13 Tafuri One one niner decimal one uh, feliz navidad señorita 21:34:16 ATC Muchas gracia, la mismo 21:34:19 Tafuri Gracias 21:34:22 Tafuri Center, American Nine Six Five leaving flight level two four zero, descending to two zero zero, buenos tardes From this point forward, the pilots communicated with the ATC in Cali. The aircraft was, at this time, just over 63 miles from the Cali VOR, flying at roughly 320 knots on a heading of approximately 190°. In the course of the conversation excerpted below, the ATC cleared Flight 965 to the Cali VOR, instructed the pilots to “descend and maintain [15,000] feet” and told them to “report uh, Tulua VOR.” Tafuri acknowledged these directions, including the duty to “report Tulua,” but remarked that he understood the flight to be “cleared direct to Cali VOR” (emphasis added). After the ATC responded by saying “Affirmative,” Tafuri programmed the FMC to fly the aircraft directly to Cali: 21:34:37 Williams Nineteen one or 21:34:39 Tafuri That’s Cali 21:34:40 Tafuri Cali approach, American Nine Six Five 21:34:41 Williams Yeah 21:34:44 ATC (Cali) American Niner Six Five, good evening, go ahead 21:34:47 Tafuri Uh, buenos ñochas señor, American Nine Six Five leaving two three zero, descending to two zero zero, go ahead sir 21:34:55 ATC What your distance DME from Cali? 21:34:57 Tafuri The DME is six three 21:34:57 ATC Roger, is cleared to Cali VOR uh, descend and maintain one five thousand feet, altimeter three zero zero two 21:35:09 Tafuri one five 21:35:09 ATC No delay expect for approach, report uh, Tulua VOR 21:35:14 Tafuri Okay, understood cleared direct to Cali VOR uh, report Tulua and uh, that altitude one five, that’s fifteen thousand, three zero zero two, is that all correct sir? 21:35:25 ATC Affirmative 21:35:27 Tafuri Thank you 21:35:28 Tafuri I put direct Cali for ya in there 21:35:29 Williams Okay, thank you 21:35:44 Williams Two fifty below ten here? 21:35:47 Tafuri Yeah It is American’s view that the ATC, by answering “Affirmative” after Captain Tafuri remarked “cleared direct to Cali VOR,” authorized Flight 965 to fly to the Cali VOR without having to follow the published route (which included, among other things, passing over Tulua). The PSC makes two points in response. It contends that ATC’s in Latin America used the word “direct” to mean direct along the published route, and that Tafuri and Williams were trained to know this fact. The Plaintiffs also observe that the pilots’ apparent belief that the aircraft was allowed to ignore the published route was wholly at odds with the instruction (acknowledged by Tafuri) to report at Tulua. These arguments may have merit. For our purposes, though, it is enough simply to acknowledge this dispute, since the pilots’ route was clarified moments later after an additional exchange with the ATC: 21:36:20 Tafuri And flight attendants please prepare for landing, thank you [on public address channel] 21:36:24 Tafuri I sat 'em down and 21:36:27 ATC Niner Six Five, Cali 21:36:28 Tafuri Nine [on public address channel] 21:36:29 Tafuri Niner Six Five, go ahead please 21:36:31 ATC Kay sir, the wind is calm, are you able to approach Runway One Niner? 21:36:36 Tafuri Would you like to shoot the One Nine straight in? 21:36:38 Williams Uh, yeah, we’ll have to scramble to get down, we can do it 21:36:40 Tafuri Uh, yes sir, we need lower altitude right away though 21:36:43 ATC Roger, Nine Six Five is cleared to VOR DME approach to Runway One Niner, Rozo Number One arrival, report Tulua VOR 21:36:52 Tafuri Cleared the VOR DME to One Nine, Rozo One uh, arrival, we’ll report the VOR, thank you sir 21:36:58 ATC Report uh, Tulua VOR 21:37:01 Tafuri Report Tulua There is no dispute that the ATC offered, and the pilots accepted, an arrival and approach path that called for Flight 965 to follow the Rozo 1 STAR and the VOR DME Rny 19 approach. The Rozo 1 STAR begins at the Tulua VOR and ends at the Rozo NDB; the VOR DME Rny 19 approach route largely, if not entirely, complements and extends the Rozo 1 STAR. What ensued, however, was at least initial confusion in the cockpit concerning just where the pilots were supposed to be flying. First Officer Williams seems to have been under the misconception that the Rozo 1 STAR began at the Rozo NDB instead of Tulua; Captain Tafuri, however, indicated to him (presumably by referring to the published charts) that the Rozo NDB could be reached only after the aircraft touched Tulua. It is at this point that Tafuri asked the ATC for permission to go “direct to Rozo,” a remark that set in motion a chain of events that culminated in the crash: 21:37:03 Tafuri I’m gonna give you to Tulua first of all, you, you wanna go right to Ca, uh, to Tulua? 21:37:08 Williams Uh, I thought he said the Rozo One arrival though 21:37:10 Tafuri Yeah, he did, we have time to pull it out 21:37:12 Tafuri And 21:37:17 Tafuri Rozo 21:37:20 Tafuri There it is 21:37:25 Tafuri Yeah, see that comes off Tulua 21:37:27 Williams Okay 21:37:29 Tafuri Uh, can, American Airlines uh, Nine Six Five go direct to Rozo and then do the Rozo arrival sir? 21:37:36 ATC Affirmative, take the Rozo One and Runway One Niner, the wind is calm 21:37:42 Tafuri Alright, Rozo, the Rozo One to One Nine, thank you, American Nine Six Five 21:37:46 ATC Affirmative, report Tulua on uh, twenty-one uh, miles uh, five thousand feet 21:37:53 Tafuri Okay, report Tulua at twenty-one miles and five thousand feet, American Nine uh, Six Five 21:37:59 Williams Okay, so we’re cleared down to five now? 21:38:01 Tafuri That’s right 21:38:02 Tafuri And 21:38:08 Tafuri Off Rozo, which I’ll tune here As noted below, there is a substantial dispute about whether Tafuri meant what he plainly said: “can [Flight 965] go direct to Rozo ... ?” The PSC asserts that Tafuri, having observed on the charts that flying directly to Rozo would allow the aircraft to follow a straighter path to the runway than would be the case if the aircraft had to make the slight “detour” required to pass over Tulua, knowingly sought permission to follow a “short cut” to the airport. Moreover, says the PSC, the ATC did not authorize this maneuver; rather, the ATC construed Tafuri’s reference to “direct” to mean direct along the applicable published route, and for this reason reminded the crew to “take the Rozo One and Runway [19]” path, and specifically instructed them again to “report Tulua.” See supra note 8. American takes the position that Tafuri meant to ask “can [Flight 965] go direct to [Tulua] ... ?” as prescribed by the published route. In any event, it was during this exchange that one of the pilots sought to program the FMC to fly automatically to the Rozo NDB by typing the letter “R,” which he apparently thought was the identifier for Rozo, into the CPU keypad. A total of twelve waypoints appeared on the screen of the CPU; the first of these was a beacon known as Romeo, located approximately 132 miles to the northeast of the aircraft’s position. It was the identifier for this waypoint that the phot executed, sending the aircraft on a prolonged, and pronounced, turn to the left, towards the east and the mountains. There is no dispute that the pilots were required to, but did not, verify that the chosen waypoint was actually Rozo. Within seconds, instruments in the cockpit reflected a substantial turn to the left, since the FMC, unbeknownst to the pilots, had begun to fly the aircraft automatically the direction of Romeo. Notably, when “R” was entered, the aircraft was already adjacent to or slightly to the southwest of Tulua. 21:38:26 Tafuri See where you get 21:38:27 Williams Yeah, we’re gettin’ 21:38:28 Tafuri At twenty-one miles and five thousand is part of the approach 21:38:30 Tafuri Okay? 21:38:31 Williams Okay 21:38:33 Tafuri Uh off ULQ, so let me put ULQ in here, seventeen seven, cause I wanna be on raw data with ya 21:38:39 ATC Niner Six Five, distance now 21:38:42 Tafuri Uh, what did you want sir? 21:38:45 ATC Distance DME 21:38:46 Tafuri Okay, the DME is uh from Cali is uh, thirty,-eight The initial exchange in this excerpt is transcribed quite differently, and far more plausibly, in the original CVR transcript as “See what I get?” ... “Yeah”—presumably in reference to Tafuri’s attempt to tune the Rozo NDB on another navigational radio some 23 seconds earlier. The PSC suggests that, once Rozo was tuned, the radio’s navigation needle would have been pointing toward the right rather than basically straight ahead, which is perfectly consistent with the aircraft’s ongoing turn to the left and wholly inconsistent with the published route. In any event, it is undisputed that, by this point, Tafuri wished the aircraft to fly to Tulua: 21:38:49 Williams Uh, were we 21:38:49 ATC Roger 21:38:52 Williams We’re going out to 21:38:54 Tafuri Let’s go right 0 uh, Tulua first of all, okay? 21:38:58 Williams Yeah, where are we headed now? 21:38:58 Tafuri Seventeen seven, ULQ uh, I don’t know, what’s this ULQ, what hap, what happened here? 21:39:04 Williams Manual heat 21:39:05 Tafuri Let’s come to the right a little bit 21:39:06 Williams Yeah, he’s wanting to know where we’re headed 21:39:07 Tafuri ULQ, I’m gonna give you direct Tulua 21:39:10 Williams Okay 21:39:10 Tafuri Right now 21:39:11 Tafuri Okay you got it? 21:39:13 Williams Okay 21:39:14 Tafuri And 21:39:18 Tafuri It’s on your map, should be 21:39:19 Williams Yeah that’s a left uh, left turn to ULQ 21:39:22 Tafuri Yeah, I gotta identify that fucker though, I 21:39:25 Tafuri Okay I’m getting it, seventeen seven, it just doesn’t look right on mine, I don’t know why 21:39:30 Williams Left turn, so you wanna left turn back around to ULQ? 21:39:32 Tafuri No 21:39:33 Tafuri Hell no, let’s press on to 21:39:35 Williams Well we’re 21:39:36 Williams Press on to where though 21:39:37 Tafuri Tulua 21:39:39 Williams That’s a right, no that As discussed in more detail below, it was during this period that the pilots discontinued the left turn and initiated a turn back toward the right and the valley. By 21:39:39, the aircraft was south of Tulua, and well to the east of the valley and the 2029 and 1939 degree radials that define the Rozo 1 STAR. Of greater significance, the aircraft had continued its descent, and had dropped over 5000 feet since the “R” was entered into the FMC. 21:39:40 Tafuri Where’re we going, one (twe) [partial word], come to the right, let’s go to Cali first of all, let’s, we got fucked up here didn’t we? 21:39:45 Williams Yeah 21:39:46 Tafuri Go direct CLO 21:39:47 Williams Okay, oh 21:39:51 Tafuri How did we get fucked up here? 21:39:54 Tafuri Come to the right, right now, come to the right right now 21:39:55 Williams Yeah, we’re, we’re in a heading select to the right 21:39:58 Tafuri And 21:40:01 Tafuri And American uh, we’re thirty-eight miles north of Cali and you want us to go to Tulua and then do the Rozo uh, to the uh Runway right, One One, One Nine? 21:40:11 ATC Kay the RO, you, you can land it, Runway One Niner, you can use Runway One Niner, what is your altitude and the DME from Cali? 21:40:21 Tafuri Okay, we’re thirty-seven DME at ten thousand feet The aircraft, during this period, is continuing to fly back toward the west, although it remains far from the valley and the published arrival and approach path. Although the PSC contends that Tafuri acted unconscionably by instructing Williams to “go direct [to Cali VOR]” without having first obtained permission from the ATC, the record suggests that the command was never actually executed in the FMC. 21:40:24 Tafuri You’re okay, you’re in good shape now 21:40:25 ATC Roger 21:40:26 Tafuri We’re headin’, headin’ the right direction, you wanna 21:40:27 ATC Report at five thousand on a final to one one, Runway One Niner 21:40:29 Tafuri Oh shit, you wanna take the One Nine yet? 21:40:34 Tafuri Come to the right, come, come right to Ca, Cali for now, kay? 21:40:34 Williams Uh, yeah 21:40:37 Williams Okay 21:40:40 Tafuri It’s that fuckin’ Tulua I’m not getting for some reason 21:40:44 Tafuri See I can’t get, okay now, no, Tulua is fucked up 21:40:48 Williams Okay, yeah 21:40:49 Tafuri But I can put it in the box if you want it 21:40:52 Williams No, I, I don’t want Tulua, let’s just go to the extended centerline of uh 21:40:55 Tafuri Which is Rozo 21:40:56 Williams Rozo 21:40:56 Tafuri Why don’t you just go direct to Rozo then, alright, I’m gonna put that over ya By this point, it seems clear that the pilots are uncertain about where to fly or at least in which direction the plane is headed. The PSC asserts that the decision to abandon Tulua and fly directly to the Cali VOR or Rozo, while perhaps an attractive shortcut at that point, was both legally impermissible and in violation of American Airlines’ policy. American, for its part, suggests that the ATC’s comments at 21:40:11 gave the crew permission to bypass Tulua and simply proceed to maneuver for a landing on Runway 19. Consequently, says American, the phots justifiably continued to fly to the west in order to intercept the 1939 radial. 21:40:58 Williams Okay, let’s get some altimeters, we’re out of uh, ten now 21:41:01 Tafuri Alright, sa 21:41:02 ATC And Nine Six Five, altitude? 21:41:05 Tafuri Nine Six Five, nine thousand feet 21:41:10 ATC Roger, distance now? 21:41:15 Terrain, terrain, whoop, whoop [sounds on cockpit microphone from aircraft’s ground proximity warning system] 21:41:17 Tafuri Oh shit. Pull up baby 21:41:18 Whoop, whoop pull up, whoop, whoop, pull up 21:41:20 Williams It’s okay 21:41:20 Tafuri Okay, easy does it, easy does it 21:41:23 Williams Help 21:41:23 Tafuri Up baby more, more 21:41:23 Whoop whoop 21:41:26 Pull up 21:41:26 Okay. Williams 21:41:46 Tafuri Up up up. 21:41:26 Whoop whoop pull up. 21:41:28 [Collision; end of recording] When the crash occurred, the aircraft had dropped to approximately 8900 feet above mean sea level, and was still some 33 miles northeast of the Cali VOR and ten miles east of the airway. The aircraft hit close to the summit of El Deluvio, one of the peaks lining the east side of the valley. It was not until the initial terrain warning, though, that the pilots halted their descent and attempted to climb. There is conflicting evidence about the speed of the aircraft when the collision occurred. The Defendants assert that the plane never violated the FAR prohibiting air speeds in excess of 250 knots below 10,000 feet; the Plaintiffs disagree, but apparently base their position on the ground speed of the aircraft. The ability of the plane to ascend rapidly was hampered by the fact that the speed brakes, deployed several minutes earlier, had. not been pulled back. III. The standard to be applied when reviewing summary judgment motions appears in Rule 56(e) of the Federal Rules of Civil Procedure: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. As the Eleventh Circuit has explained: In assessing whether the movant has met [its] burden, the courts should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. All reasonable doubts about the facts should be resolved in favor of the non-movant. If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial. Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. If reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment. Clemons v. Dougherty County, 684 F.2d 1365, 1368-69 (11th Cir.1982) (citations omitted). In addition, the district court must view the record through the prism of the substantive evidentiary burden applicable to the particular cause of action before it. Celotex Corp. v. Catrett, All U.S. 317, 322-23,106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., All U.S. 242, 254,106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Nevertheless, to withstand a summary judgment motion, the non-moving party must establish that, based on the evidence in the record, there can be more than one reasonable conclusion as to the proper verdict. Id. at 250, 106 S.Ct. at 2511. Consequently, “[t]he mere existence of a scintilla of evidence in support of the position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Id. 252, 106 S.Ct. at 2512; see also Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990) (noting that “once the moving party has met [its] burden by presenting evidence which, if uncontradicted, would entitle it to a directed verdict at trial, [Rule] 56(e) shifts to the non-moving party the burden of presenting specific facts showing that such contradiction is possible”). Moreover, a response that consists of conclusory allegations and unreasonable inferences is insufficient to withstand the motion. See Peppers v. Coates, 887 F.2d 1493, 1498 (11th Cir.1989). In short, “[i]f the evidence is merely color-able, or is not significantly probative, summary judgment may be granted.” Anderson, All U.S. at 250-51, 106 S.Ct. at 2511; see also Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525, 1527 (11th Cir.1985) (noting that a motion for judgment as a matter of law should be granted unless there is “ ‘substantial evidence opposed to the motion[ ], that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions’ ”) (quoting Boeing v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc)). We measure the pending motions for summary judgment against these familiar standards. Before proceeding further, we pause to address American’s observation that the PSC has not identified any case where a court entered summary judgment in favor of the plaintiffs on a claim of willful misconduct under the Warsaw Convention. Our own research confirms the absence of any published ruling to this effect. However, contrary to American’s sweeping suggestion that “the concept of willful misconduct defies determination as a matter of law,” Def. Resp., at 2, there are instances where courts have granted judgment as a matter of law in favor of defendants in Warsaw Convention lawsuits where the evidence could not support a finding of willful misconduct. See, e.g., Saba v. Compagnie Nationale Air France, 78 F.3d 664 (D.C.Cir.1996) (reversing district court’s conclusion that air carrier acted with willful misconduct, and remanding with instructions that judgment be entered for the plaintiff subject to the liability limitations of the Convention). More to the point, the principles of Rule 56 apply to all lawsuits encompassed by the Federal Rules of Civil Procedure. There is no exception for Warsaw Convention proceedings, and nothing in the case law of this Circuit sustains the proposition that even if no reasonable juror could disagree that a defendant’s employees engaged in willful misconduct, a plaintiff nevertheless must be compelled to take his claims to trial. Undeniably, there are broad pronouncements in some cases that, at first blush, can be read to support the Defendant’s belief. See, e.g., In re Hijacking of Pan Am World Airways, Inc. Aircraft at Karachi, etc., 713 F.Supp. 1483, 1483 (S.D.N.Y.1989) (suggesting that, under the applicable Second Circuit law, “since an allegation of willful misconduct involves the state of mind of the defendant, that issue should normally be resolved by the trier of fact”). The most that can be said for these opinions, though, is that they turn on the assumption that willful misconduct may involve an inquiry into the state of mind of the defendant’s employees, and that state of mind issues are especially difficult to resolve on summary judgment. But this is nothing more than a “general rule,” Chanel, Inc. v. Italian Activewear of Florida, Inc., 931 F.2d 1472,1476 (11th Cir.1991), and in this Circuit, as noted below, the willful misconduct inquiry is not entirely subjective. Moreover, even assuming that the term willful misconduct requires a subjective inquiry under all circumstances, there are many instances in the law where the evidence of state of mind is so unequivocal that summary judgment is proper and, indeed, expressly mandated by Rule 56. In employment discrimination litigation, for example, the Eleventh Circuit has remarked that “[a]s a general rule, summary judgment is not a proper vehicle for resolving [Title VII] claims ... which often turn on an employer’s motivation and intent.” Delgado v. LocJcheed-Georgia Co., 815 F.2d 641, 646 (11th Cir.), reh’g denied, 820 F.2d 1231 (1987). Yet courts often enter judgment as a matter of law in employment discrimination lawsuits that rest on circumstantial evidence if no reasonable juror could find that the defendant intended to discriminate against the plaintiff. See, e.g, Combs v. Plantation Patterns, 106 F.3d 1519, 1538-43 (11th Cir. 1997). All that being said, it seems incomplete to describe the PSC’s application as an “ordinary” summary judgment motion. We recognize that the motion has substantial implications for American Airlines as well as the roughly 160 individual Plaintiffs who have sued on behalf of the victims of Flight 965. For this reason, and given the lack of direct precedent for the ruling we make today, the Court has undertaken a painstaking scrutiny of the parties’ submissions, and devoted the better part of four days to argument and close questioning on the issues of negligence, willful misconduct and causation. Summary judgment motions are never entered lightly, and this ease is surely no exception. In the end, though, what makes this case unique, and so powerfully supports the entry of summary judgment in favor of the Plaintiffs, is not just the pervasiveness of the pilots’ misconduct, but American Airlines’ multiple, express admissions about this misconduct and its consequences under the applicable law. Even drawing all reasonable inferences in favor of American, and focusing only on the most egregious of a series of acts that, standing alone or in the aggregate, might also support summary judgment, there is only one fair result on this record, and nothing in Rule 56 permits a Court to abdicate its responsibility under these circumstances. IV. At the outset, it is vital to clarify precisely what “willful misconduct” signifies in the passenger cases. The parties agree that the meaning of willful misconduct as used in the Warsaw Convention remains a question of federal law. Our analysis begins with the Eleventh Circuit’s opinion in Butler v. Aeromexico, 774 F.2d 429 (11th Cir.1985). In Butler, the court addressed the defendant carrier’s argument that the conduct of its crew did not amount to willful misconduct. The court disagreed, and offered the following comments: The term “willful misconduct’ ... has been interpreted in Koninklijke Luchtvaarb Maatschappij N.V. v. Tuller, 292 F.2d 775, 778-79 [(D.C.Cir.), cert. denied, 368 U.S. 921 [82 S.Ct. 243, 7 L.Ed.2d 136] (1961) ], by a panel of which retired [Supreme Court] Justice Reed and future Chief Justice Burger were members, as meaning ‘the intentional performance of an act with [1] knowledge that the ... act will probably result in injury or damage’ or [2] ‘reckless disregard of the consequences’ or [3] ‘a deliberate purpose not to discharge some duty necessary to safety.’ ” Id. at 430 (emphasis and brackets supplied). The first and third theories for proving willful misconduct plainly require the jury to consider the state of mind of the pilots, although the third theory requires a far more culpable mental state. The parties disagree about whether the phrase “reckless disregard of the consequences” also contemplates an inquiry into the pilots’ state of mind. The PSC asserts that “reckless disregard” creates an objective standard that does not turn on whether the pilots actually perceived the likely consequences of their intentional acts when they performed these acts. According to the PSC, to prevail on this theory, the plaintiffs must show not just mere negligence, but an extreme deviation from the standard of care in the face of a plain and obvious danger. American counters that, the phrase “reckless disregard for the consequences” requires an examination of the state of mind of the pilots, in order to ascertain if the pilots apprehended that their conduct posed a risk of harm. American concedes, as it must, that the PSC may use circumstantial evidence to show the pilots’ state of mind, but insists that we must inquire into what the pilots thought and perceived at the time of the alleged deviations from the standard of care. As support for its position, American relies almost entirely on Saba v. Compagnie Nationale Air France. In that case, which arose out of damage to a shipment of cargo, a majority of a panel from the United States Court of Appeals for the District of Colombia Circuit ostensibly construed “reckless disregard” to require a finding that the defendant acted improperly despite being aware of the damage that likely would result from its misconduct. The majority began by explaining that the courts “have never been very clear as to what we mean[ ] by reckless disregard,” and then acknowledged that recklessness can have a subjective as well as an objective dimension: There is a continuum that runs from simple negligence through gross negligence to intentional misconduct. Recklessness, or reckless disregard, lies between gross negligence and intentional harm. The critical analytical division between the tort that can be made out through presentation of merely objective evidence—without regard to the defendant’s state of mind—and one that requires a showing of a subjective state of mind cuts recklessness in half. One meaning of recklessness, then, is simply a linear extension of gross negligence, a palpable failure to meet the appropriate standard of care. The second ... is a legitimate substitution for intent to do the proscribed act because, if shown, it is a proxy for that forbidden intent. If it were not used as a proxy, it might be all too easy for the wrongdoer to deliberately blind himself to the consequences of his tortious action. [As under the securities laws], reckless disregard, in the Warsaw Convention context, requires a showing that the defendant engaged in an act that is known to cause or to be likely to cause an injury. 78 F.3d at 668-69. The court stressed that this subjective standard could not be met merely by showing “an extreme departure from standards of ordinary care.” That would be nothing more than gross negligence. [I]f it can be shown that a defendant gazed upon a specific and obvious danger, a court can infer that the defendant was cognitively aware of the danger and therefore had the requisite subjective intent. Intent can, of course, always be proved through circumstantial evidence. That is by no means the same thing as saying that the defendant should have known about the danger[. In this ease w]e read the Warsaw Convention to limit liability in “situations where a reasonable employee should have but did not understand that her actions posed a substantial risk of harm to a shipper’s goods. Id. at 669. The majority acknowledged that this standard might make it more difficult for plaintiffs to avoid the Convention’s limitations on liability, but “the signatories obviously thought the economies of air travel, and therefore the overall welfare of passengers, dictated those limitations [and] it simply will not do for courts to chip away at that liability limit, out of a natural desire to remedy the negligence that can be all too apparent in any individual case.” Id. 671. Judge Wald, in a persuasive dissent, criticized the majority’s ostensible approval of a subjective definition of recklessness, suggesting that the majority’s analysis created a standard that differs little, if at all, from the objective definition of recklessness applied in prior precedent. As Judge Wald put it, since under the majority’s view a plaintiff may use circumstantial evidence to convince a jury to infer that the defendant was subjectively aware of the likely negative consequences of its act, there is no palpable difference between this ostensibly subjective inquiry and allowing a plaintiff to prove objective recklessness by showing that the defendant’s conduct deviated significantly from the standard of care in the face of a plain and obvious danger. Id. at 674r-75. In other words, the majority’s “subjective” standard of reckless disregard requires awareness by the carrier of the likely consequences of its actions, but permits an inference of that state of mind from circumstances in which the carrier departs in an extreme fashion from standards of ordinary care. I agree that either direct or circumstantial evidence of this kind of heedless indifference may suffice to show reckless disregard. A de minimis departure from standards of ordinary care would not suffice____ But my basic problem is that this is already the law, the same law we have long applied in this court____ [I]n practice, the subjective test will never stray far afield from the objective one. If the majority concedes the legitimacy of an inference of subjective knowledge of consequences from extreme circumstances, the dividing line between these two standards all but evaporates. Since intent can be inferred from, the circumstances, what we are really saying to the parties is that if your behavior deviates substantially from the norm, we will assume that you knew your actions created a very substantial risk of harm to others. Id. at 673, 675 (Wald, J., dissenting) (emphasis added). We find little support in Saba for American’s argument. To begin with, and of paramount importance, it is Butler, not Saba, that we are unequivocally bound to follow here. Contrary to American’s suggestion, the Butler opinion does not adopt whatever definition of willful misconduct is currently used in the District of Columbia Circuit; rather, Butler approves a specific definition from a specific opinion, Fuller, authored by a specific panel in that Circuit. Moreover, as Judge Wald observed, Judge Silberman’s majority opinion, although at times professing to adopt a wholly subjective standard of recklessness, becomes much cloudier upon close examination. Whatever the intention of the majority, Saba plainly does not adopt a purely subjective “actual knowledge” standard. For purposes of comparison, consider the Supreme Court’s opinion in Fanner v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In Farmer, the Court refused to apply the standard for objective recklessness, and instead held that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official “knows of and disregards an excessive risk to inmate health and safety.” Id. 837,114 S.Ct. at 1979. The Court emphasized that, due to the subjective nature of the inquiry, the official “must be both aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. (emphasis added). The Saba majority, by contrast, expressly acknowledges that the requisite subjective element can be presumed, even if the plaintiff cannot prove that the defendant realized its actions were likely to cause harm, so long as it “can be shown that