NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 20 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JANET BROWN, an individual; et al., No. 22-17025
Plaintiffs-Appellants, D.C. Nos. 3:19-cv-00207-MMD-CSD v. 3:19-cv-00383-MMD-WGC 3:19-cv-00418-MMD-WGC UNITED STATES OF AMERICA, 3:19-cv-00424-MMD-WGC
Defendant-third-party- plaintiff-Appellee, MEMORANDUM*
v.
FLYING START AERO, LLC; ESTATE OF JOHNNY BROWN, AKA John Brown,
Third-party-defendants- Appellants.
JOCELYN ELLIKER; et al., No. 22-17027
Plaintiffs-Appellants, D.C. Nos. 3:19-cv-00207-MMD-CSD v. 3:19-cv-00383-MMD-WGC 3:19-cv-00418-MMD-WGC
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
1 UNITED STATES OF AMERICA, 3:19-cv-00424-MMD-WGC
Defendant-Appellee.
Appeal from the United States District Court for the District of Nevada Miranda Du, Chief District Judge, Presiding
Argued and Submitted May 16, 2024 San Francisco, California
Before: LEE and BRESS, Circuit Judges, and KANE,** District Judge.
John Brown and his passenger, James Elliker, flew into Reno-Tahoe
International Airport in August 2016. Gregory Nicoll, a local air traffic controller,
sequenced Brown for landing. As Brown neared the airport, he flew into the wake
turbulence of a nearby Boeing 757, which caused his plane to crash. Brown and
Elliker were both killed. Their families sued the United States under the Federal
Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., alleging negligence on the part
of air traffic control. The district court, after a bench trial, rejected those claims,
finding that Nicoll neither breached his duties nor was the cause of the crash. We
reverse the district court’s no-breach finding and remand for the district court to
reconduct its causation analysis.
1. The FTCA provides a limited waiver of sovereign immunity for
** The Honorable Yvette Kane, United States District Judge for the Middle District of Pennsylvania, sitting by designation.
2 “personal injury or death caused by the negligent or wrongful act or omission” of
federal employees acting within the scope of their employment. 28 U.S.C.
§ 1346(b)(1). FTCA claims are governed by the law of the state where the act or
omission occurred—here, Nevada law. Richards v. U.S., 369 U.S. 1, 11 (1962). In
Nevada, to prevail on a negligence claim, plaintiffs must “establish four elements:
(1) the existence of a duty of care, (2) breach of that duty, (3) legal causation, and
(4) damages.” Clark Cnty. Sch. Dist. v. Payo, 403 P.3d 1270, 1279 (Nev. 2017).
Appellants, the Brown and Elliker parties, contend that the district court erred
in determining the scope of Nicoll’s duties. We review that question of law de novo.
Armstrong v. U.S., 756 F.2d 1407, 1409 (9th Cir. 1985); see also Rudelson v. U.S.,
602 F.2d 1326, 1329 (9th Cir. 1979).
There are two types of separation procedures that are generally used to prevent
wake turbulence encounters like the one that occurred here. The first procedure is
controller-applied radar separation, in which air traffic controllers use radar to guide
pilots according to established minimum spacing requirements. The second
procedure is pilot-applied visual separation, in which pilots make visual contact with
other planes and maintain separation without direction from controllers. The Federal
Aviation Administration (FAA), in its guidance manual for controllers, prescribes
procedures and phraseology by which a controller terminates radar separation and
transfers responsibility to the pilot to maintain visual separation. See FAA Order
3 7110.65 (the “ATC Manual”).1 Specifically, section 7-2-1 of the ATC Manual
instructs controllers to (1) “tell the pilot about the other aircraft”; (2) “obtain
acknowledgement from the pilot that the other aircraft is in sight”; and (3) “instruct
the pilot to maintain visual separation from that aircraft.” One of the notes in the
ATC Manual elaborates that “[p]ilot-applied visual separation between aircraft is
achieved when the controller has instructed the pilot to maintain visual separation
and the pilot acknowledges with their call sign or when the controller has approved
pilot-initiated visual separation.”
The parties agree that Nicoll failed to follow ATC Manual section 7-2-1. At
5:58 p.m., Brown relayed to Nicoll that he had a “visual” on the “airliner . . . for the
right.”2 But Nicoll did not instruct Brown to maintain visual separation, nor did
Nicoll receive express confirmation from Brown that he was engaging in visual
separation. This reflected a clear breach of the ATC Manual. The parties dispute,
however, whether this was likewise a breach of Nicoll’s legal duty of care.
1 On the date of the accident, version JO 7110.65W of the ATC Manual was in effect. 2 The district court did not clearly err in concluding that the “airliner . . . for the right” referred to FedEx 1359, the Boeing 757 involved in Brown’s fatal crash. See Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, 960 F.3d 603, 612 (9th Cir. 2020) (standard of review). But this factual determination does not necessarily resolve the question of whether (i) Nicoll complied with the ATC Manual’s requirements and (ii) any non-compliance would be a breach under Nevada state law. 4 In airplane tort cases, courts “seek guidance on the standard of care from the
Federal Aviation Regulations and from general aviation law.” Dyer v. U.S., 832 F.2d
1062, 1069 (9th Cir. 1987). Under that guidance, controllers “have the duty to
perform their required functions with reasonable care, and to at least issue
instructions and clearances in accordance with the air traffic control manual.”
Armstrong, 756 F.2d at 1409 (internal citations omitted). As an internal agency
order, the ATC Manual does not carry the force of law necessary to support a
negligence per se claim under Nevada law. See Price v. Sinnott, 460 P.2d 837, 840
(Nev. 1969). But it is still “evidence of the standard of care” and thus should be
considered when evaluating the reasonable actions of an air traffic controller. Dyer,
832 F.2d at 1069.
We conclude that Nicoll’s failure both to instruct Brown to maintain visual
separation and to obtain confirmation from Brown that he began applying visual
separation constituted a breach of Nicoll’s duty. Requiring air traffic controllers to
follow these procedures imposes a minimal burden, yet provides an obvious safety
benefit by clearly delineating responsibilities between the pilot and air traffic control
during a potentially perilous situation. Cf. Lee v. GNLV Corp., 22 P.3d 209, 212
(Nev. 2001) (“The law is clear that if a legal duty exists, reasonable care under the
circumstances must be exercised.”). Notably, Nicoll offered no justification for his
failure to issue that instruction or his failure to confirm that Brown was safely
5 visually separating. To be clear, we are not mandating strict adherence to the ATC
Manual nor requiring “magic words” from air traffic controllers. But given the de
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 20 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JANET BROWN, an individual; et al., No. 22-17025
Plaintiffs-Appellants, D.C. Nos. 3:19-cv-00207-MMD-CSD v. 3:19-cv-00383-MMD-WGC 3:19-cv-00418-MMD-WGC UNITED STATES OF AMERICA, 3:19-cv-00424-MMD-WGC
Defendant-third-party- plaintiff-Appellee, MEMORANDUM*
v.
FLYING START AERO, LLC; ESTATE OF JOHNNY BROWN, AKA John Brown,
Third-party-defendants- Appellants.
JOCELYN ELLIKER; et al., No. 22-17027
Plaintiffs-Appellants, D.C. Nos. 3:19-cv-00207-MMD-CSD v. 3:19-cv-00383-MMD-WGC 3:19-cv-00418-MMD-WGC
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
1 UNITED STATES OF AMERICA, 3:19-cv-00424-MMD-WGC
Defendant-Appellee.
Appeal from the United States District Court for the District of Nevada Miranda Du, Chief District Judge, Presiding
Argued and Submitted May 16, 2024 San Francisco, California
Before: LEE and BRESS, Circuit Judges, and KANE,** District Judge.
John Brown and his passenger, James Elliker, flew into Reno-Tahoe
International Airport in August 2016. Gregory Nicoll, a local air traffic controller,
sequenced Brown for landing. As Brown neared the airport, he flew into the wake
turbulence of a nearby Boeing 757, which caused his plane to crash. Brown and
Elliker were both killed. Their families sued the United States under the Federal
Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., alleging negligence on the part
of air traffic control. The district court, after a bench trial, rejected those claims,
finding that Nicoll neither breached his duties nor was the cause of the crash. We
reverse the district court’s no-breach finding and remand for the district court to
reconduct its causation analysis.
1. The FTCA provides a limited waiver of sovereign immunity for
** The Honorable Yvette Kane, United States District Judge for the Middle District of Pennsylvania, sitting by designation.
2 “personal injury or death caused by the negligent or wrongful act or omission” of
federal employees acting within the scope of their employment. 28 U.S.C.
§ 1346(b)(1). FTCA claims are governed by the law of the state where the act or
omission occurred—here, Nevada law. Richards v. U.S., 369 U.S. 1, 11 (1962). In
Nevada, to prevail on a negligence claim, plaintiffs must “establish four elements:
(1) the existence of a duty of care, (2) breach of that duty, (3) legal causation, and
(4) damages.” Clark Cnty. Sch. Dist. v. Payo, 403 P.3d 1270, 1279 (Nev. 2017).
Appellants, the Brown and Elliker parties, contend that the district court erred
in determining the scope of Nicoll’s duties. We review that question of law de novo.
Armstrong v. U.S., 756 F.2d 1407, 1409 (9th Cir. 1985); see also Rudelson v. U.S.,
602 F.2d 1326, 1329 (9th Cir. 1979).
There are two types of separation procedures that are generally used to prevent
wake turbulence encounters like the one that occurred here. The first procedure is
controller-applied radar separation, in which air traffic controllers use radar to guide
pilots according to established minimum spacing requirements. The second
procedure is pilot-applied visual separation, in which pilots make visual contact with
other planes and maintain separation without direction from controllers. The Federal
Aviation Administration (FAA), in its guidance manual for controllers, prescribes
procedures and phraseology by which a controller terminates radar separation and
transfers responsibility to the pilot to maintain visual separation. See FAA Order
3 7110.65 (the “ATC Manual”).1 Specifically, section 7-2-1 of the ATC Manual
instructs controllers to (1) “tell the pilot about the other aircraft”; (2) “obtain
acknowledgement from the pilot that the other aircraft is in sight”; and (3) “instruct
the pilot to maintain visual separation from that aircraft.” One of the notes in the
ATC Manual elaborates that “[p]ilot-applied visual separation between aircraft is
achieved when the controller has instructed the pilot to maintain visual separation
and the pilot acknowledges with their call sign or when the controller has approved
pilot-initiated visual separation.”
The parties agree that Nicoll failed to follow ATC Manual section 7-2-1. At
5:58 p.m., Brown relayed to Nicoll that he had a “visual” on the “airliner . . . for the
right.”2 But Nicoll did not instruct Brown to maintain visual separation, nor did
Nicoll receive express confirmation from Brown that he was engaging in visual
separation. This reflected a clear breach of the ATC Manual. The parties dispute,
however, whether this was likewise a breach of Nicoll’s legal duty of care.
1 On the date of the accident, version JO 7110.65W of the ATC Manual was in effect. 2 The district court did not clearly err in concluding that the “airliner . . . for the right” referred to FedEx 1359, the Boeing 757 involved in Brown’s fatal crash. See Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, 960 F.3d 603, 612 (9th Cir. 2020) (standard of review). But this factual determination does not necessarily resolve the question of whether (i) Nicoll complied with the ATC Manual’s requirements and (ii) any non-compliance would be a breach under Nevada state law. 4 In airplane tort cases, courts “seek guidance on the standard of care from the
Federal Aviation Regulations and from general aviation law.” Dyer v. U.S., 832 F.2d
1062, 1069 (9th Cir. 1987). Under that guidance, controllers “have the duty to
perform their required functions with reasonable care, and to at least issue
instructions and clearances in accordance with the air traffic control manual.”
Armstrong, 756 F.2d at 1409 (internal citations omitted). As an internal agency
order, the ATC Manual does not carry the force of law necessary to support a
negligence per se claim under Nevada law. See Price v. Sinnott, 460 P.2d 837, 840
(Nev. 1969). But it is still “evidence of the standard of care” and thus should be
considered when evaluating the reasonable actions of an air traffic controller. Dyer,
832 F.2d at 1069.
We conclude that Nicoll’s failure both to instruct Brown to maintain visual
separation and to obtain confirmation from Brown that he began applying visual
separation constituted a breach of Nicoll’s duty. Requiring air traffic controllers to
follow these procedures imposes a minimal burden, yet provides an obvious safety
benefit by clearly delineating responsibilities between the pilot and air traffic control
during a potentially perilous situation. Cf. Lee v. GNLV Corp., 22 P.3d 209, 212
(Nev. 2001) (“The law is clear that if a legal duty exists, reasonable care under the
circumstances must be exercised.”). Notably, Nicoll offered no justification for his
failure to issue that instruction or his failure to confirm that Brown was safely
5 visually separating. To be clear, we are not mandating strict adherence to the ATC
Manual nor requiring “magic words” from air traffic controllers. But given the de
minimis burden placed on Nicoll and the substantial interest to Brown of knowing
precisely when he was no longer receiving controller-applied radar separation, we
cannot say that Nicoll acted reasonably in the circumstances before us.
2. In addition to concluding that Nicoll did not breach any duty to Brown,
the district court also concluded that Brown’s negligence claim failed because
“Brown’s negligence was the sole and proximate cause of the crash.” That finding,
however, appears to have been premised in part on the district court’s view that
Nicoll did not act negligently. But for the reasons we have explained, we do not
agree that Nicoll satisfied his duty of initiating pilot-applied visual separation. We
therefore cannot affirm the district court’s no-causation finding on the grounds
currently offered in its support.
On remand, the district court should reevaluate whether Brown was the sole
proximate cause of the crash in light of our conclusion that Nicoll breached his duty
of reasonable care. We express no opinion on whether Nicoll’s breach was a
substantial factor in the accident. The district court should conduct a renewed
causation analysis that, if applicable, considers Nevada’s doctrines of intervening
cause and comparative negligence.
VACATED and REMANDED.