Commemorative Air Force Faces Lawsuit in Fatal Midair Collision

The family of the B-17 pilot killed during the Wings Over Dallas WWII Airshow is suing, alleging negligence.

The B-17 ‘Texas Raiders’ from the Commemorative Air Force Gulf Coast Wing. [Courtesy: Jim Allen]

The family of Len Root, one of six people killed in the midair collision of a B-17G and a P-63F during the Wings Over Dallas WWII Airshow last year, is suing the Commemorative Air Force, the organizers of the event, for negligence that allegedly caused the death of Root and five other men.

The lawsuit was filed last week in Dallas County, Texas, on behalf of Angela Root, the wife of Len Root, and his daughters, Larisa Lichte, Kendra Hockaday, and Rebekah Lowery. Angela Root was at the airshow and witnessed the crash that killed her husband.

Len Root, a retired airline pilot, was one of the pilots aboard the B-17G Texas Raiders. Also lost that day were crewmembers Terry Barker, Dan Ragan, Curt Rowe, and Kevin “K5” Michels. Craig Hutain was the pilot of the Bell P-63F. All were volunteer pilots with the Commemorative Air Force (CAF).

The lawsuit seeks monetary relief of more than $1 million for the plaintiffs.

The Accident

The accident occurred on November 12, 2022. The owner of the aircraft at the time of the accident was the American Airpower Heritage Flying Museum. The aircraft were part of a military showcase flying to honor veterans.

According to the preliminary investigation by the National Transportation Safety Board (NTSB), there were two show lines—one 500 feet from the audience, the other 1,000 feet away. Show lines are established at airshows to keep aircraft from flying directly over the crowd.

As previously reported in FLYING, video of the event shows the aircraft were flying on a northerly heading parallel to Runway 31 at Dallas Executive Airport (RBD) as part of the parade of planes. The P-63F was third in a three-ship formation of fighters, and the B-17G was lead of a five-ship formation of bombers.

According to the NTSB, there were no altitude deconflictions briefed before the flight or while the airplanes were in the air. Altitude deconfliction procedures are established in the event pilots find themselves at an improper altitude during the flight.

The lawsuit also names air boss Russell Royce as a defendant, alleging negligence by failure to maintain control of the flight paths of the aircraft involved, failure to maintain safe and adequate lateral, linear and temporal separation between all participating aircraft, failure to conduct a proper preflight briefing, and failure to ensure that a safe and adequate flight plan was properly developed.

In addition, the lawsuit alleges the CAF allowed "an unsafe, unqualified air boss to serve as the primary person responsible for the active taxiways, runways, and flight paths of the subject aircraft; failing to properly monitor the subject aircraft and intervene in a timely manner; reckless incompetence and lack of airmanship awareness in failing to properly direct the subject aircraft flight paths and their operations; failing to establish proper safety management systems for the subject aircraft; and failing to establish safe minimum qualification standards for an air boss."

According to the recorded audio of the airshow radio transmissions, Royce directed both the fighters and bombers to maneuver southwest of the runway before returning to the flying display area, which was the designated performance area. ADS-B data shows the aircraft complied.

Royce then directed the fighter formation to transition to a trail formation and fly in front of the bombers, then proceed near the 500-feet show line.

The bombers were directed to fly the 1,000-foot show line. In the final transmission before the moment of impact, Royce can be heard saying, “Nice job, fighters. Come on through. Fighters will be a big pull up and to the right.”

When the fighter formation approached the display area, the P-63F was in a left bank. The fighter came up behind the B-17G, striking it on the port side just aft of the wings. The larger aircraft was sliced in half and exploded in flames. The P-63F disintegrated on impact.

The accident happened around 1:22 p.m. in front of thousands of spectators. The collision was captured on multiple smartphones from multiple angles, and these videos and still photographs were quickly posted to social media. The images show the P-63F in pieces, raining down on the grassy area on airport property south of the approach end of Runway 31 and the B-17G forward section tumbling forward in a ball of fire. Captured stills of the accident appear to show the copilot of the B-17 holding on to the roof as the forward section of the aircraft cartwheels to the ground.

The next audio transmission is one of urgency as Royce cries, “Knock it off! Knock it off! Roll the trucks! Roll the trucks! Roll the trucks!"

No injuries were reported on the ground.

The lawsuit alleges that Royce, as an employee/agent/representative of one or more of the defendants, "was responsible for drafting, organizing, and implementing an adequate and safe flight plan for the airshow, and for controlling the aircraft in flight during the airshow, including controlling the flight plans, flight paths and aerobatics of the aircraft during the airshow. The CAF, by and through its employees, agents, and representatives, including all other defendants, allowed Royce to serve as the air boss for the airshow knowing Royce lacked sufficient skill and experience to do so. Allowing Royce to control the flight plan, flight path, and operations of these aircraft significantly increased the risk and danger of the airshow, which was a cause of the fatal crash."

Said Kevin Koudelka, one of the attorneys representing the Root family: “Filing this lawsuit was a difficult decision for the Root family. Angela considers the CAF lifelong friends, and she didn't want to sue the CAF, but that is the only way to get answers to questions. The lawsuit provides us with legal tools to ask the questions and get answers, and find out if our assumption is correct in that this air boss screwed up and did not do what he was supposed to do."

Koudelka added that once it is determined who is to blame, the lawsuit will make sure "they are not allowed to do it again" and "help ensure safety for pilots participating in airshows."

CAF Response

FLYING reached out to the CAF for its response. 

"We learned last week that a lawsuit was filed against the Commemorative Air Force on August 31," Leah Block, vice president of marketing for the CAF, said in an email. "The suit was filed by the family of one of our members who was tragically killed in the accident at the Wings Over Dallas Airshow in November 2022. Our attorneys are looking into the petition and will respond through the appropriate channels."   

Koudelka noted that there are still many unknowns about the accident. For example, it is not known if Len Root was acting as captain or first officer during the flight. In addition, Koudelka anticipates more lawsuits will be filed, in particular one by the family of Hutain, the P-63F pilot.

Koudelka said both the plaintiffs and defendants are awaiting the conclusion of the NTSB investigation and subsequent final report, which is likely several months away.

Meg Godlewski has been an aviation journalist for more than 24 years and a CFI for more than 20 years. If she is not flying or teaching aviation, she is writing about it. Meg is a founding member of the Pilot Proficiency Center at EAA AirVenture and excels at the application of simulation technology to flatten the learning curve. Follow Meg on Twitter @2Lewski.

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