of a consistent theory of the events of July 30, 1989.
Mr. Coogan concluded, based on the takeoff performance data for the Bonanza, the aircraft would have been 180 feet above ground level (580 feet MSL) at the time the Cessna was released to change to the Queen City CTAF frequency. The Bonanza would not have been visible on the ABE Airport radar in its turning configuration until reaching 700 feet above ground level (1,100 feet MSL). (FOF #36) At the time of the release, therefore, Mr. Coogan concluded that the Bonanza was flying some 520 feet below the level at which ABE Airport radar could have detected it in its turning configuration. (T. 2/15/94, p. 169) Thus, the Bonanza never appeared on Mr. Brickler's radar scope prior to the release of the Cessna to the CTAF frequency.
Despite plaintiffs' arguments to the contrary, we think Mr. Coogan was correct in discounting the significance of the testimony of Mr. Daniel Hellier, a witness to the accident.
On the day of the accident he was piloting a Piper Arrow on a sightseeing flight and was monitoring the CTAF frequency. Only minutes prior to the collision Mr. Hellier claimed to have heard transmissions from both the Cessna and Bonanza.
Like Mr. Coogan, we also have some problems with Mr. Hellier's testimony, although we feel he was well intentioned. Mr. Hellier never noted the actual distance from Queen City Airport which was reported over the radio by the aircraft that he believed to be the Bonanza. (T. 2/8/94, p. 68). Nor did he know whether the aircraft had reported being "south" or "southwest" of Queen City. (T. 2/8/94, p. 91). Although Mr. Hellier testified at trial that the radio transmission had been made by a Bonanza, he conceded on cross examination that, during his deposition, he had not been sure whether the transmission had come from a Bonanza. (T. 2/8/94, p. 88). Although he testified during trial that he heard the radio report of the Bonanza before the Cessna's "jumpers away" transmission, he specifically denied, in prior sworn testimony, knowing the order in which he heard the Bonanza and the Cessna transmissions. (T. 2/8/94, p. 96-97).
Mr. Coogan concluded that Mr. Hellier's testimony amounted to "totally useless information from a reconstruction standpoint." (T. 2/14/94, p. 211). Since we find Mr. Coogan's reconstruction to be both thorough and convincing, we agree that Mr. Hellier's testimony was properly discounted by Mr. Coogan in his flight path investigation and evaluation.
Thus, since we adopt Mr. Coogan's version of the events of July 30, 1989, we find that the Bonanza would not have appeared on Mr. Brickler's radar scope.
Consequently, plaintiffs have not met their burden of proving negligence and we also find that Mr. Brickler was justified in not reporting traffic to the Cessna because he had no way of knowing of the traffic threat posed by the Bonanza. Compare Allegheny Airlines, Inc. v. United States, 420 F. Supp. 1339, 1349 (S.D.Ind. 1976), aff'd in part, rev'd on other grounds 586 F.2d 53 (7th Cir. 1978) (finding liability for a missed traffic call where there is "no justification for such a target not to have been seen by the controller") (emphasis added).
B. Radar Services to the Cessna Were Properly Terminated
Mr. Brickler released the Cessna to switch to the Queen City CTAF frequency at approximately 33:16. (FOF #28) Mr. Brickler terminated radar services to the Cessna for several reasons: Mr. Brickler scanned his scope and saw no air traffic that posed a risk to the Cessna, the Cessna was in close proximity to the Queen City airport, and he believed that the frequency change was necessary to give Mr. Miller enough time to exchange air traffic information on the CTAF frequency. (FOF #28)
Plaintiffs allege that Mr. Brickler's decision to release the Cessna to the CTAF frequency was premature. Given the fact that the Cessna was involved in parachute activities, plaintiffs seem to suggest that Mr. Brickler was obligated to maintain contact with the jump plane. Specifically, plaintiffs assert that Mr. Brickler should have provided ATC services to 2,200 feet MSL and below. Plaintiffs' Proposed Findings of Fact, P 46. We must disagree.
The duties of an air traffic controller are set forth in the Air Traffic Control Manual, FAA Order 7110.65 ("ATCM"). Rodriquez v. United States, 823 F.2d 735, 740 (3d Cir. 1987). Paragraph 7-101 provides that Visual Flight Rule aircraft operating within an ARSA shall be provided "mandatory traffic advisories and safety alerts." (Exhibit D-7, P 7-101(a)(4)). Paragraph 7-107 provides, however, that a controller shall "terminate ARSA service to aircraft landing at other than the primary airport at a sufficient distance from the airport to allow the pilot to change to the appropriate frequency for traffic and airport information." (Exhibit D-7, P 7-107).
We have no doubt that the provision of radar services was critical to the safety of the Cessna. Equally critical to the safety of the Cessna's flight, however, was the opportunity to change to the Queen City CTAF frequency. The CTAF frequency provides pilots with the opportunity to listen to traffic information essential to the safety of their flight; it also enables pilots to inform other pilots using the CTAF frequency of their own arrival and departure information. (FOF #37)
Mr. Robert Hale, plaintiffs' expert air traffic controller, conceded at trial that an air traffic controller has the discretion to release an aircraft to the CTAF frequency one-and-one-half minutes prior to that aircraft entering the traffic pattern where that controller has determined that there is no conflicting traffic. (FOF #49) We already determined that the Bonanza did not appear on Mr. Brickler's scope. Both of plaintiffs' air traffic control experts agreed that, had Brickler not seen conflicting aircraft in the ARSA or the vicinity of Queen City Airport at the time of the actual release to the CTAF frequency, his decision to terminate radar services would not have been negligent. (FOF #53) We believe that since the Bonanza did not appear on the scope, Mr. Brickler was not negligent in releasing the Bonanza.
In concluding that Mr. Brickler was not negligent, we are mindful of the requirement of added vigilance mandated by Rule 7220.2, the Position Standards for air traffic controllers. Chapter 30 of the Rule is dedicated to "special operations," a general category which includes parachute jumping. Paragraph 30-44(c)(2) directs the Radar Controller as follows:
Issue advisory information to jump aircraft and non-participating aircraft as necessary to promote the safety of the operation.
Exhibit P-12. Not only does this rule indicate the need for vigilance, but courts have held an air traffic controller's standard of care increases according to the dangers to be reasonably apprehended in given situations. Himmler v. United States, 474 F. Supp. at 929. While we do not doubt that the parachute activities at Queen City Airport created additional safety concerns to pilots operating around the airport, we also are convinced that Mr. Brickler appreciated these concerns and acted with reasonable care. His decision to terminate radar services and release the jump plane was understandable given the need to facilitate Queen City CTAF communications. In addition, nothing in the ATCM or in the 7220.2 order requires an air traffic controller to remain in contact with the pilot of a jump plane until all the jumpers are on the ground. (FOF #54)
For all of these reasons, we find that plaintiffs have not proven that Mr. Brickler was negligent and we also find that Mr. Brickler violated no duty of care when he released the Cessna to the Queen City CTAF frequency at 33:16.
We do not believe that plaintiffs have met their burden of proving that the FAA is accountable for the tragic collision over the skies of the Queen City Airport on July 30, 1989. As FAR § 91.3, 14 C.F.R. § 91.3 (1992) provides, and as courts have long recognized, a pilot is in command of an aircraft and is directly responsible for, and is the final authority as to, the operation of the aircraft. Redhead v. United States, 686 F.2d at 182. Ultimately, responsibility for the collision must lie with one or both of the pilots of the Cessna and the Bonanza. We are constrained, however, to determine only the more limited question of the FAA's alleged negligence in this case. Accordingly, we leave the question of possible negligence on the part of the pilots of the two airplanes for its resolution in the appropriate state tribunal.
Thus, for the reasons stated, we find that plaintiffs have failed to prove by a preponderance of the evidence that the FAA was negligent in its provision of air traffic control services in connection with the mid-air collision over Queen City Airport on July 30, 1989. Accordingly, we find and enter a verdict for the defendant United States of America, Federal Aviation Administration.
An appropriate order follows.
AND NOW, this 16th day of May, 1994, consistent with the foregoing decision, the court FINDS FOR and ENTERS JUDGMENT IN FAVOR OF of the Defendant, United States of America, Federal Aviation Administration and AGAINST Plaintiffs, William A. Remo, Jr., Anjam Hanid Bhatti, and BettyJune Miller with the exception of those parties that have already settled their claims.
This case is CLOSED.
BY THE COURT:
HON. FRANKLIN S. VAN ANTWERPEN
United States District Judge