APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Aldisert, Weis and Becker, Circuit Judges. Becker, Circuit Judge, dissenting.
Plaintiffs sued the government under the Federal Tort Claims Act, 28 U.S.C. § 2671, 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).*fn1 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 We'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 ...