Industries, Inc. v. Berman, 423 F. Supp. 275, 310 (E.D.Pa.1976); and Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959). Since these cases are cited for general propositions, no extended discussion of them is warranted. However, we feel compelled to comment on the defendant's reliance upon Yania v. Bigan, supra, cited for the proposition that the conduct of Rothschild putting himself in instrument weather conditions would be labeled reckless under Pennsylvania law. Yania was an adult male in full possession of his faculties, who deliberately jumped into a strip-mine trench with walls sixteen to eighteen feet high, and water eight to ten feet deep, and drowned as a result. The complaint against defendant-owner of the strip mine alleged that the owner had urged and enticed Yania to jump into the trench. Preliminary objections in the nature of a demurrer were sustained. The court held that the mental input of talking an adult male into jumping into a ditch was not actionable. Recklessness on Yania's part had nothing to do with the court's decision on the issue of jumping into the ditch. The issue was clearly, whether the defendant was responsible for the jumping; not whether Yania was contributorily negligent by recklessly jumping. To attempt to draw a parallel between Yania and Rothschild is unavailing at least as a defense in a suit by the Himmlers who, with their family, were enjoying a night's rest when suddenly their slumbers were interrupted by death, injury and destruction. Moreover, in Yania the danger was obvious before the jump, while in the present case, the pilot, when airborne for some twenty minutes, stated, "I didn't realize conditions were as bad as they are".
The thrust of the defense in the instant matter is that the pilot of 91L Amos Rothschild, was negligent in taking off in instrument weather conditions, and that his negligence in taking off was the Sole proximate cause of the crash. Plaintiffs argue that even if Rothschild was negligent in taking off, his negligence ceased when the take-off was successful, and the controller's negligence intervened; and, that by failing to properly advise the pilot and by advising him in a way which caused spatial disorientation, the subsequent acts of the controller were the sole proximate cause and a substantial factor in the events which followed. In the alternative, they argue that the controller was Concurrently negligent and that this concurrent negligence was a proximate cause of the crash. Under Pennsylvania law, if Rothschild were found to have been 99% At fault and the controller only 1% At fault, the plaintiffs are entitled to recover their damages from the defendant.
The defendant, both at trial and in its discussion of the law, has sometimes ignored the question of the controller's intervening and/or concurrent negligence. In fact, it has cited many cases in support of its position where recovery was denied plaintiffs because of their own Contributory negligence, an issue not here involved. See Prashker v. Beech Aircraft Corp., 258 F.2d 602 (3d Cir. 1958); Kullberg v. United States, 271 F. Supp. 788 (W.D.Pa.1964); United States v. Miller, 303 F.2d 703 (9th Cir. 1962); Deal v. United States, 413 F. Supp. 630 (W.D.Ark.1976), 552 F.2d 255 (8th Cir. 1977); Baker v. United States, 417 F. Supp. 471 (W.D.Wash.1975); Michelmore v. United States, 299 F. Supp. 1116 (C.D.Calif.1969); Messick v. United States, 14 Avi. 17, 290 (S.D.W.Va.1976); Somlo v. United States, supra; Crossman v. United States, 378 F. Supp. 1312 (D.C.Ore.1974); Neff v. United States, 136 U.S.App.D.C. 273, 420 F.2d 115 (1969); Ross v. United States, 365 F. Supp. 1138 (D.C.Vt.1972); Todd v. United States, 384 F. Supp. 1284, 1291 (M.D.Fla.1975); and Allegheny Airlines, Inc. v. United States, 420 F. Supp. 1339 (S.D.Ind.1976). All of the above cited cases are immediately distinguishable from the case at bar because here there was admittedly no contributory negligence on the part of plaintiffs, who were asleep in their home. If the estate of the deceased pilot were a party plaintiff, we could better understand the defendant's reliance upon these cases. However, in the absence of that fact, much of the legal reasoning is inapplicable here.
Four aviation cases have been cited by defendant for more or less general propositions of law. In none of these was the issue of an air traffic controller's negligence present. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975), was a products liability case where the Government has, in our view, misinterpreted the holding of the case. We agree with the Pennsylvania Supreme Court's holding that foreseeability is not a test of proximate cause; it is a test of negligence. Whether an injury could have been foreseen is irrelevant in a strict liability case. But, that is not in issue here; this Is a negligence case. Air Transport Associates, Inc. v. United States, 221 F.2d 467 (9th Cir. 1955), involved a breach of contract where the Government admitted negligence, but sought to escape liability for certain damages under an exculpatory contract clause held to be void as against public policy. Clemente et al. v. United States, 422 F. Supp. 564 (D.C.P.R.1976), 567 F.2d 1140 (1st Cir. 1977), involved FAA inspectors' alleged negligence, not controller's negligence. However, the case includes an excellent discussion about the controller's high duty of care. Gibbs v. United States, 251 F. Supp. 391 (E.D.Tenn.1965) involved pilot error in overloading a plane and the question of the Government's negligence in certifying the plane as airworthy. These cases need not be discussed further as they have, in our opinion, no real or direct applicability to the instant case.
The defendant has cited several cases which we deem worthy of discussion. Some of these will be accorded brief treatment. Others, which we perceive as being relied upon more heavily, will receive fuller discussion. Those cases deserving only brief treatment are as follows: United States v. Schultetus, 277 F.2d 322 (5th Cir. 1960) and United States v. Miller, supra, are both cited to support the proposition that the ultimate responsibility for the operation of the aircraft is the pilot's, not the controller's. Both cases involved mid-air collisions between planes piloted by private VFR pilots in good VFR weather conditions. In Schultetus, the question of contributory negligence was not reached. In Miller, the plaintiff was found to have been contributorily negligent. In both cases the controllers were absolved because the pilots were in fact in good VFR weather conditions, and should have seen and avoided the other aircraft. In Schultetus, the pilot had even acknowledged having the other plane in sight. Therefore, these cases are distinguishable on their facts.
DeVere v. True-Flite, Inc., 268 F. Supp. 226 (E.D.N.C.1967) was cited for the proposition that a pilot must find out the forecasted weather and cannot ignore weather information or conditions. We agree, but we are here concerned with the negligence of the controller and for that purpose the negligence of the pilot may be assumed and, for practical purposes, was assumed or admitted throughout the trial. In the DeVere case the pilot took off in VFR conditions and crashed several minutes after take-off after flying into some thick clouds and attempting to reestablish visual contact. No emergency was declared and there was no pilot-controller contact after take-off. Unlike the instant case, the controller in DeVere had correctly given the pilot, prior to take-off, the latest weather information that he had. The information was accurate and, thus, the controller was not negligent. Controller Gasker, to the contrary, failed to give any weather information to the pilot in this case, after initially observing the plane on radar, after contact, and after he had become aware of the emergency situation.
Messick v. United States, supra, involved the issue of a controller's authority to deny a landing clearance. The accident involved a scheduled air carrier on an ILS flight plan which crashed in fog short of the runway. The alleged negligence of the controller was that he had misinformed the pilot of the location of the fog, vis-a-vis, the runway threshold. The court found that the controller had given accurate information, and that the crew was negligent in failing to execute a missed approach. There was no emergency situation involved. It is interesting to note that the defendant, in its abbreviated quote from the opinion omitted the following:
" * * * there is no provision in the Air Traffic Control Manual which provides for the denial of a landing clearance to a Scheduled air carrier due to weather conditions." (Emphasis added) (Id. 17,298)