Update - September 22, 2006


The Pilots Bear the Ultimate Responsibility

There has been much in the news about the fact that the FAA had understaffed the air traffic control tower at the airport and that the airport had been undergoing repair and revisions to its runways and taxiways. The focus on those entities is appropriate, but not truly central to the primary cause of the crash. The pilots of the airplane, by law, bear the first and ultimate responsibility for the safety of the flight. This rule, expressed in Federal Aviation Regulation 14 CFR 91.3 is known to every pilot and airline, and cannot be shunted to one side in the debate over what else may have been contributing causes of the crash.

The FAA Tower Being Staffed By Only One Controller Is Legitimate Area of Criticism

Certainly, the fact that the FAA tower was being staffed by only one controller, when, by its own rules (not to mention common sense), at least two controllers had to be on duty, is a serious and legitimate area of criticism. The controller had a clear view of the runways and taxiways, and presumably was fully conversant with their layout. Had he been free to keep his attention on the departing aircraft, it is highly probable that he would have noticed the pilots' mistake. He would have had ample opportunity to call them on his radio and tell them that they were on the wrong, short runway, and were not cleared for takeoff on it. That the controller had the opportunity to prevent this accident does not, however, relieve, in the slightest, the obligation of the pilots to verify that they were on the correct runway.

Pilots Might Have Been Initially Misled

The airport was reconstructing its taxiways, and providing for a safer overrun area, as should have been done at Chicago's Midway airport before last year’s Southwest Airlines Flight 1248 ran off the end of its runway with deadly consequences. The reconstruction idea was good, but the execution of it was terrible. It appears that the airport did not provide adequate signs and instructions, and pilots might have been misled. However, even then, the pilots had more than adequate means to be sure that they were on the correct runway before takeoff, and failed to employ them. Even assuming that the airport failed in its responsibility to ensure correct information gets into the hands of airlines and pilots, a matter surely serious and demanding of investigation and accountability, the pilots have the ultimate and final duty to ensure the safety of the flight.

Whatever the degree to which the airport configuration or signage might have contributed to the happening of the accident, the vast lion's share still rests on the shoulders of Comair and Delta Airlines, and their pilots, for failing to adhere to and enforce rules designed to prevent this type of occurrence.

Airport Diagrams Were Obsolete

Moreover, our investigation will also examine the question of whether or not Jeppesen (a Boeing subsidiary, based in Englewood, Colorado) the company that publishes airport charts commonly in use, had or should have had information that pilots would need to consult in order to have accurate information to guide them around the airport.

Pilots rely on charts to properly navigate an airport. Chart publishers have a duty to publish and distribute charts that accurately detail airport runways, taxiways and radio frequencies (means of communication). In this day and age of electronic means of communication, it would seem to be a simple step for a publisher, such as Jeppesen, to send to airline dispatchers a notice about important changes in taxiways, signs, and runways on airports used by commercial airlines.

An important issue is whether the airport gave current information to the FAA so that a proper FAA issued Notice to Airman (NOTAM) could have been published warning of taxiway and runway changes. Were pilots warned that printed maps in their possession were out-of-date, and could not be trusted?

The FAA’s National Aeronautical Charting Office (NACO) warns that obsolete charts or publications for navigation may be dangerous, and stresses that it is vitally important that pilots check the effective dates on each chart and publication to be used. Moreover, pilots "should also consult the Aeronautical Chart Bulletin available online or contained in an Airport/Facility Directory and Notice to Airmen (NOTAMs) for changes, essential to the safety of flight, that may occur during the effective dates of a chart or publication." Were these sources of information up-to-date, and, if not, why not? The investigation will have to have answers to these questions.

We now know that the printed and published charts available to pilots using Lexington’s Blue Grass Airport on the day of the crash contained inaccurate information. They did not reflect the actual signage and markings in use on August 27th. The last issue date of the Blue Grass Airport chart was January 27, 2006. The last NOTAM by the FAA advised that part of the taxiway to the main runway was closed but it did not tell pilots the correct route to the correct runway.

Although the airport diagram was updated on September 8, since the Comair Flight 5191 crash, it still does not reflect the runway’s shift 325 feet to the southwest completed the weekend of August 19. It also omits vital information that the taxiway connector, normally used by pilots leading to Runway 22, is closed.

Possible Actionable Negligence by the FAA, Blue Grass Airport, Jeppesen, but Nothing Excuses the Failure of the Pilots

News that focuses on causes other than the dereliction of duty which lies at the feet of Comair and Delta Airlines must be taken in context. The FAA’s, Lexington’s Blue Grass Airport and Jeppesen’s actions or inactions may well be contributing causes to the tragedy. If confirmed by investigation, those responsible must be held to account, and they should not be heard to deny their own responsibility. Those organizations must make clear statements to the public that they recognize their duties and obligations, and demonstrate that they have taken steps that will prevent such violations from being repeated.

But, nothing they did or did not do excuses the failure of the pilots to verify the fact that they were on the wrong, short runway. The pilots had numerous clues that, had they paid attention, would have warned them that they could not take off from the runway they were on. In fact, a simple look at their compass would have avoided this entire tragedy.

Update - September 1, 2006

Suggestions that families who suffered losses as result of the crash of Comair Flight 5191 might lose valuable rights to recover full damages for the wrongful death of their loved ones unless claims are filed within 7 days of the crash are simply wrong.
The statute of limitations for wrongful death in Kentucky is found in KRS 413.180, and it provides that, depending on when a Personal Representative is appointed, families will have up to two years to file their lawsuit.
There is a law, set out in KRS 411,115 which provides a 7 day period for filing claims against an airport, but, in our opinion, that statute will not apply to wrongful death lawsuits as the period is unreasonably short. The statute most likely applies only to claims for property damage. It is further our opinion that any attempt to apply that statute to wrongful death claims would be stricken down by the courts.
In any event, the conduct that primarily caused the tragic crash will, inevitably, have to be shouldered by the airlines, Delta and Comair. They, alone, will have sufficient insurance and assets to more than cover all the damages which will be recovered by the families, and that assumes very substantial awards will be won.
Further, the conduct of the FAA for under-staffing the Kentucky Blue Grass Airport, for allowing its only controller on duty to work after only two hours sleep, and his failure to notify the air crew of its mistake, will be the other primary area of investigation, and probable suit. There is ample time to file a claim against the FAA under the Federal Tort Claims Act.
It is hoped that families, in this time, are not pressured to make important decisions based upon erroneous information. Their rights, and time to grieve, should be respected. Efforts to create an atmosphere of panic insinuating that valuable rights could be forfeited unless action is taken immediately must stop. It does a serious disservice to those most in need and most vulnerable.
Ronald L. M. Goldman
Aviation Attorney, Pilot and Former Adjunct Professor of Aviation Accident Law & Torts

Update - August 31, 2006


As the NTSB and FAA release evidence, we now learn that the single controller who was on duty when Flight 5191 was cleared for takeoff was also exhausted. He apparently had but 2 hours sleep before he came on duty. This intolerable fact discloses the artificial and technical ways that the FAA has been neglecting its duty. While the controller technically had the prescribed 9 hours off between shifts, it must have occurred to the bureaucrats at some time in their life that it would be likely that a controller, with only 9 hours between shifts, would probably not jump straight into bed as he left the tower. What if he had something going on in his life other than work, like eating, showering, dressing, etc? Did they expect him to live in the tower, so that they were assured he had no commute time? This fact, piled on top of the fact that the FAA violated its own rules, such that a bedraggled, exhausted, controller was the only one to man the tower cries out for a congressional investigation into these practices. Those responsible must be held accountable. This must never happen again.

Ever since I represented the Professional Air Traffic Controllers Organization in the late 1960's, I have been aware of FAA practices that dangerously overworked air traffic controllers. We fought then for better staffing, facilities and working conditions because we understood that anything less could compromise the safety of the flying public. The lessons then learned seem to have been forgotten. Any congressional investigation which is convened to probe these issues must look at the unvarnished facts. Tragedies such as this are completely preventable. While the clear negligence of the pilots cannot be ignored, and must be addressed fully, the air traffic control system is a vital link in the air safety chain – and it, too, failed the passengers of Flight 5191.

Written by Ronald L. M. Goldman
Ronald L. M. Goldman
Aviation Attorney, Pilot and Former Adjunct Professor of Aviation Accident Law & Torts

Update - August 30, 2006


The investigation into the crash of Comair Flight 5191 demands an answer to the question: If one person survived the crash, why did not more? If proper passenger restraints were in place, would more people have survived? We no longer have lap belts only in our cars because we know that those alone cannot do the job of saving lives in more severe crashes. Doesn’t the same principle apply to passenger aircraft? The pilots have lap and shoulder belts, and one of them did survive. We believe this issue needs to be explored by the NTSB and examined by the FAA before the investigation into this case is concluded.


The FAA admitted that its Air Traffic Control Tower at Lexington Blue Grass Airport had violated its own rules by allowing only one controller to be on duty at the time Comair Flight 5191 was cleared for takeoff. While the FAA could have stayed within its policy by shifting radar responsibilities from the tower to Indianapolis Center and keeping only one controller on duty, it did not do so. Information to date indicates that the controller on duty cleared Flight 5191 for takeoff on the correct runway, Runway 22, but it also suggests that the controller turned his attention away from the flight immediately thereafter, and therefore did not see that it had turned onto Runway 26, a runway one-half as long as 22. The Comair jet, a CRJ 100, cannot take off with only 3500 feet of runway available; the airplane does not have enough runway length to achieve the necessary speed for a safe takeoff in that distance. It needs about 5800 feet to gain flying speed. The FAA will have to answer to the families of the victims: Why was the tower understaffed? If it had a full compliment of controllers on duty, wouldn’t the controller handling the flight have taken action to prevent it from taking off on the wrong runway? There is no question about the fact that the view from the control tower to the departure ends of both runways was unobstructed. There is no evidence that weather was a factor in causing the crash. The investigation in this case will have to determine why the tower controller diverted his attention from the flight he was handling, a diversion with tragic consequences.


It is now confirmed that the runway centerline lights for Runway 22, the only runway authorized for commercial jet traffic, were not on at the time Flight 5191 was cleared for takeoff. Why? Apparently for “re-paving” which was already completed. Although it appears that the lights along the sides of the runway were lit, they are of much lower intensity than the centerline lights. Could the absence of the centerline lights on both runways have contributed to the pilot error in taking off from Runway 26? The investigation will have to go into this issue. If they were off, was that information given to the pilots, as it should have been? Would not the fact that the lights were not operating normally, if they were not, have been apparent to the controller and wouldn’t that cause him a heightened concern to monitor departing aircraft? Did the fact that notice to the pilots indicating that the centerline lights were out actually confuse the crew when they were confronted with unlit Runway 26?

Baum Hedlund Aviation Attorneys' Original Comair Crash Analysis

© 2006, Baum Hedlund