Redhead v. United States

686 F.2d 178, 11 Fed. R. Serv. 1115

Opinions

OPINION OF THE COURT

WEIS, Circuit Judge.

Plaintiffs sued the government under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., alleging that' an airplane crash was caused by the negligence of an air traffic controller in failing to direct the pilot of the plane to proceed to a safe altitude rather than allowing him to attempt a landing under marginal weather conditions. The district court held that, under the circumstances, the controller was entitled to assume the pilot was in command of the situation and was operating the aircraft in accordance with Federal Aviation Administration regulations. Accordingly, judgment was entered for the defendant. We will affirm.

The complaint in the district court alleged that their decedent, Hugh Redhead, was killed in the crash and that the government was liable in damages. After a bench trial, the district judge absolved the government of negligence.

Plaintiffs’ decedent was a passenger in a private plane that crashed into Sugarloaf Mountain near Nemacolin, Pennsylvania, on September 12, 1975, killing the pilot, co-pilot and the two passengers. The aircraft was a twin-engine turboprop equipped with radio navigational equipment, including that necessary for travel under instrument flight rules (IFR).¹ The pilot and co-pilot were well qualified, each having more than forty-eight hundred hours of flight time. Both had flown into the Nemacolin Airport on two occasions before the accident.

The plane left the Pittsburgh Airport at 11:38 a. m. for its destination at Nemacolin, a short distance away. According to the briefing the crew received before takeoff, the weather was generally poor, although improving, with low ceilings and low visibility within the area of the five weather reporting stations closest to Nemacolin.

The Nemacolin Airport is uncontrolled and does not have an FAA-approved instrument approach procedure. The ground elevation at the airport is 2,000 feet above sea level and the surrounding mountainous area has peaks of 2,900 feet.

After leaving the Pittsburgh airport, the plane flew under instrument flight rules and was in radar contact with an air controller located in Cleveland, Ohio. Approximately nine minutes after takeoff, the crew requested and received a cruise clearance of 5,000 feet mean sea level, telling the controller, “we’ll take a look at Nemacolin and, ah, let you know.”

A cruise clearance is not discretionary; it must be issued by an air controller upon request. The cruise clearance authorized the plane to fly at 5,000 feet and would permit the pilot to descend below that altitude to land only if visual flight rule conditions prevailed. FAA regulations provide that once a cruise clearance is granted, the pilot reserves a block of air space up to the limit specified in the clearance. Once the pilot “reports” leaving that altitude in the block, he may not return to it without air traffic controller clearance.

Immediately after the air controller granted the cruise clearance, an army helicopter reported that it could not see plaintiffs’ plane, which was then about eight miles away. A minute later the controller told the helicopter that the plane was now at 4,100 feet on a cruise clearance, and they were about three miles apart.

At 11:55, three minutes after the cruise clearance had been granted, the decedent’s aircraft descended to approximately 3,400 feet. As the air traffic controller observed this on the altitude data block on his radar screen, he radioed the pilot “what are your intentions?” The crew replied, “We just tak’n a look [Wje’re getting some ground contact here, and I think we’re gonna make it. But, uh, just standby with us, and, uh, we’ll give you a call here in a minute.” A few seconds later one of the crew told the controller “if we, uh, we lose radio contact with you and we make the AP, the landing ok, I’ve got an eight hundred number to call to cancel it [the flight plan].” The plane continued its gradual descent until 11:56 when it leveled off at about 2,600 feet. Two minutes later the controller lost radar contact with the plane. The next day the plane was found; it had crashed into the hillside at approximately 2,600 feet above sea level.

According to FAA regulations, an air traffic controller is required to issue a “low altitude alert” to radar-identified aircraft if, in the judgment of the controller, radar shows the aircraft to be in an unsafe proximity to terrain or obstructions. However, information about the terrain is not displayed on the radar screen, nor does it indicate most weather conditions or whether the pilot is flying under instrument or visual flight rules.

The trial court found that the controller was not required to affirmatively solicit weather information from the plaintiffs’ plane to determine if it was flying in visual flight conditions. Since the plane had left its assigned 5,000 feet altitude, and the crew knew that they could not descend unless they were in visual flight circumstances, the controller was entitled to assume that the aircraft was operating under VFR. The descent was normal and the transmissions from the crew were made in a calm manner, not indicating any anxiety or fear. The pilot did not “report” his change of altitude and, therefore, was free to return to 5,000 feet without prior permission.

The radio message that they were getting some ground contact was found by the court to be an indication that the crew was able to glimpse the ground through occasional breaks in the clouds. There was no finding whether there was sufficient visibility to operate under visual flight rules.

The trial court concluded that because the plane’s flight path did not exhibit any significant or extreme deviations from what normally would be expected during a descent, the controller did not have a duty to issue a low altitude alert. The controller was aware that the region was mountainous, but that fact would not have prevented a safe landing in VFR conditions, which the controller reasonably expected was the situation in this case. The court concluded that there was no negligence on the part of the controller.

Plaintiffs appeal on the grounds that the controller was not entitled to assume that the crew was obeying the regulations at the time of the descent, so that he was negligent as a matter of law in not soliciting a weather report from the plane and for not issuing a low altitude alert. Plaintiffs also allege trial court error in the refusal to receive deposition testimony of the controller, denial of an amendment to the complaint, and allowance of certain hypothetical questions.

Both the pilot and the air traffic controller owe a duty of care to passengers in an airplane. Negligence by the pilot does not, in and of itself, absolve the government of liability. Each is responsible for the safe conduct of the aircraft and the safety of its passengers. See Rudelson v. United States, 602 F.2d 1326 (9th Cir. 1979); Dickens v. United States, 545 F.2d 886 (5th Cir. 1977); Spaulding v. United States, 455 F.2d 222 (9th Cir. 1972). Thus, there may be concurrent liability.

The pilot is in command of the aircraft, is directly responsible for its operation, and has final authority as to its operation. In re Air Crash Disaster at New Orleans (Moisant Field), 544 F.2d 270 (6th Cir. 1976). He must be aware of those facts which are material to its proper operation and is charged with that which he should have known in the exercise of the highest degree of care. American Airlines, Inc. v. United States, 418 F.2d 180 (5th Cir. 1969).

Tower personnel and air traffic controllers are often a source of vital information. If there is negligence on the part of such persons, it must have a causal relationship to the happening of the accident — in other words, their conduct must be a proximate cause. DePriest v. Kooiman, 379 Mich. 44, 149 N.W.2d 449 (1967).²

In this case, as in most negligence litigation, factual issues predominate. While the nature and extent of the duty of due care is a question of law, in reviewing the district court’s decision we are bound to sustain the factual findings unless they are clearly erroneous. Rudelson v. United States, 602 F.2d at 1329.

Plaintiffs’ theory of liability essentially is that either by soliciting weather information from other pilots or by interrogating the crew of the aircraft, the controller should have learned what the conditions were in the precise area where the plane was descending. With that knowledge, plaintiffs argue, the controller would or should have ordered the pilot to return to or remain at the safe 5,000 feet altitude.

The record does not support plaintiffs’ contention. As the district court found, the fact that the weather in the general area was poor did not preclude the possibility of better conditions at a particular location, which would permit a pilot to use visual flight rules. Plaintiffs did not identify any sources, other than the decedent’s plane, through which the controller could determine precise weather conditions in that immediate area. The controller testified that he did not have weather information at his disposal, other than the report of poor visibility by the army helicopter that was flying in the same general area as decedent.

The record shows that the weather conditions were caused by a slow-moving cold front which was traveling in a southeasterly direction through the area. The plane, flying in the same southeasterly direction, was therefore approaching the weather conditions from the backside, rather than heading directly into it. The crew reported getting some ground contact, indicating that there were breaks in the clouds rather than a solid overcast as the plane approached Nemacolin.

Plaintiffs’ expert testified that this message would lead him to believe that the plane was not proceeding in compliance with visual flight regulations. The government’s expert, an air traffic controller specialist, testified to the contrary that he would assume that the pilot was conducting the flight according to regulations in visual flight conditions and that he would “probably [be] breaking out underneath whatever weather that might have been there at the time and breaking [sic] down so that he could safely proceed to and land at his destination.”

The controller who monitored the flight testified that “[t]he man seemed to be handling his craft well. His conversation indicated to me that he had everything under control. I had no reason to [give a low altitude alert] from where I was sitting.” The controller said that he would not have expected the pilot to make the transmission about ground contact if he were in instrument flight conditions and, furthermore, that the pilot was required to contact the controller if he could not comply with the clearance.

Assessing the testimony of the witnesses in this case depends largely upon their credibility. Although the plaintiffs’ expert was helpful to their cause, the controller and the government’s experts made out a case of non-liability which persuaded the trial judge. In circumstances like these, the appellate court must extend great deference to the superior ability of the trial judge to determine where lies the believable- evidence.

Plaintiffs contend that the controller should have solicited weather reports (PI-REPS) from the decedent’s plane and other pilots in the area, so as to become familiar with the situation at Nemacolin.³ But there is nothing in the record to indicate that any such information would have been of value in the situation that existed here, since the weather was variable in specific locations. The people who were best informed about the weather at the critical area were the crew members of the plane. The controller had a right to assume that, in the absence of evidence to the contrary, conditions there were such that the aircraft could operate under visual flight rules. He could expect that out of concern for their own lives, if for no other reason, the crew members were flying in conformance with PAA regulations.

The pilot of an aircraft is in com-’ mand of the flight. The controller, at some distant point, has the duty to aid and assist the crew and furnish whatever information he has that would be helpful. But decisions that depend upon conditions known in detail only by the pilot must be made by him. See Spaulding v. United States, 455 F.2d at 226-27; American Airlines, Inc. v. United States, supra.

The cases where the controller has superi- or knowledge of weather conditions are not applicable here. This was not an emergency situation or one where the controller failed to inform or warn the pilot of a sudden change in the weather. Martin v. United States, 586 F.2d 1206, 1209-10 (8th Cir. 1978); Delta Air Lines, Inc. v. United States, 561 F.2d 381, 397 (1st Cir. 1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978). See also Himmler v. United States, 474 F.Supp. 914, 923-26 (E.D.Pa.1979). In variable conditions such as existed here, the pilot could well have found visibility sufficient to land once he descended. See In re Air Crash Disaster at New Orleans (Moisant Field), 544 F.2d at 278.

The controller was in no better position to inform the pilot about the weather than the pilot was himself. It is not negligence not to repeat information already given or that is already known to the pilot. Spaulding v. United States, 455 F.2d at 227. When the pilot decided to go below 5,000 feet, he reserved the right to return to that altitude if he did not find adequate visual conditions to proceed. It is the pilot’s duty to keep the visual flight mínimums necessary for a visual approach landing, and if he encounters conditions below prescribed mínimums, he must execute a missed approach. American Airlines, Inc. v. United States, 418 F.2d at 189-90.

In view of these general principles and the factual findings, which were not clearly erroneous, we cannot say that the trial judge erred as to the ultimate finding that negligence may be not ascribed to the government here.

Plaintiffs also contend that the trial judge erred in denying them permission to amend the complaint so as to charge the FAA with negligence in the supervision, training, and evaluation of air traffic controllers. The motion was denied at a pretrial conference, the judge noting that the proposed amendment would require reopening of discovery and would be unfair to the defendant. The case had been pending for some years and the plaintiffs had had ample opportunity to amend before pretrial. The trial judge did not abuse his discretion in denying the motion which would have delayed the projected trial date. Moreover, as the factual record demonstrates, the proffered amendment would not have served to establish the proximate cause of the crash in any event.

Plaintiffs also complain that the court erred in refusing to allow portions of the air controller’s deposition taken during discovery to be read into evidence during trial. The judge pointed out that the controller was in the courtroom, available to testify in person. We find no error in the trial judge’s ruling, since there were no unique procedural circumstances present which dictated that portions of the deposition be used instead of live testimony. If indeed there was any error, it was harmless because the controller testified in full about his part in the ill-fated flight.

Finally, plaintiffs argue that the trial judge erred in permitting the defense to pose hypothetical questions without proper record bases. If there was any error in the trial judge’s rulings, it was harmless error at most.

There being no reversible error, we will affirm the judgment of the district court.

1 . The flight of general aviation aircraft may be conducted under either one of two different sets of flight rules — visual flight rules (VFR), or instrument flight rules (IFR). Under VFR, a pilot directs his aircraft according to what he can see, navigating from place to place according to visual cues outside his aircraft. Under IFR, it is presumed that pilots are unable to see either other aircraft or the ground and are guided by air traffic controllers. A pilot flying under IFR must file an IFR flight plan, indicating his destination, proposed route of flight and requested altitude. Control of the aircraft is maintained by reference to various instruments on board, and navigation is accomplished through various electronic navigational aids, which receive and interpret data broadcast from ground stations.

2 . The district court applied the general negligence law of Michigan based upon Ohio’s conflict of law principles. This is not disputed on appeal and will not be discussed.

3 . The FAA manual requires that such information be solicited when certain weather conditions exist, and it is then passed on to aircraft approaching the area.