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Turturro v. United States

United States District Court, E.D. Pennsylvania

August 22, 2014

JOSEPH N. TURTURRO, ADMINISTRATOR OF THE ESTATE OF ADAM B. BRADDOCK, DECEASED, ET AL.
v.
UNITED STATES OF AMERICA, FEDERAL AVIATION ADMINISTRATION, ET AL

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For JOSEPH N. TURTURRO, ADMINISTRATOR OF THE ESTATE OF ADAM B, BRADDOCK, DECEASED, Plaintiff: CYNTHIA MARIE DEVERS, LEAD ATTORNEY, THE WOLK LAW FIRM, PHILADELPHIA, PA; RICHARD E. GENTER, JENKINTOWN, PA.

For UNITED STATES OF AMERICA, FEDERAL AVAITION ADMINISTRATION, Defendant, Counter Claimant, Cross Defendant: ALAN MATTIONI, UNITED STATES DEPARTMENT OF JUSTICE, WASHINGTON, DC.

For AGUSTA AEROSPACE CORPORATION, Defendant: JOHN E. SALMON, ZACHARY JOSEPH BALLARD, SALMON RICCHEZZA SINGER & TURCHI LLP, PHILADELPHIA, PA; JOHN M. SOCOLOW, PRO HAC VICE, PINO & ASSOC, WHITE PLAINS, NY.

For JOSEPH N. TURTURRO, ADMINISTRATOR OF THE ESTATE OF ADAM B, BRADDOCK, DECEASED, Counter Defendant: JONATHAN S. ZISS, LEAD ATTORNEY, SALEEL V. SABNIS, GOLDBERG SEGALLA LLP, PHILADELPHIA, PA; CYNTHIA MARIE DEVERS, THE WOLK LAW FIRM, PHILADELPHIA, PA; RICHARD E. GENTER, JENKINTOWN, PA.

For JOSEPH N. TURTURRO, ADMINISTRATOR OF THE ESTATE OF ADAM B, BRADDOCK, DECEASED, Counter Defendant, Counter Claimant: JONATHAN S. ZISS, LEAD ATTORNEY, SALEEL V. SABNIS, GOLDBERG SEGALLA LLP, PHILADELPHIA, PA; RICHARD E. GENTER, JENKINTOWN, PA.

For AGUSTA AEROSPACE CORPORATION, Counter Claimant, Cross Claimant: JOHN M. SOCOLOW, PINO & ASSOC, WHITE PLAINS, NY; ZACHARY JOSEPH BALLARD, SALMON RICCHEZZA SINGER & TURCHI LLP, PHILADELPHIA, PA.

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MEMORANDUM

SURRICK, J.

Presently before the Court are Defendant United States of America and Defendant Agusta Aerospace Corporation's Motions for Summary Judgment (ECF Nos. 92, 98). For the following reasons, the Motions will be granted.

I. BACKGROUND

A. Procedural Background

These consolidated cases arise from an airplane crash that caused the death of flight instructor Adam Braddock and his student Charles Angelina. Plaintiffs are Joseph Turturro, the administrator of Braddock's estate, and Charles and Virginia Angelina, representatives of Angelina's estate. As a result of the crash, Turturro and the Angelinas filed separate but similar Standard Form 95s (" Form 95s" ) with the Federal Aviation Administration (" FAA" ). Turturro v. United States, Nos. 10-2460, 10-3063, 2012 WL 1758154, at *1 (E.D. Pa. May 17, 2012). On June 17, 2012, the FAA denied both administrative claims. [WL] at 2.

Turturro and the Angelinas filed lawsuits on May 21, 2010 and June 24, 2010, respectively.[1] In their Second Amended

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Complaint, Plaintiffs assert claims against the Government for negligence (Count I), spoliation of evidence, obstruction of justice, and unconstitutional violation of due process (Count II), and against Agusta Aerospace Corporation (" Agusta Corp." ) for negligence (Count III) and breach of contract (Count IV). (Second Am. Compl.) On June 1 and 2, 2011, the Government moved to dismiss the Second Amended Complaint for lack of subject matter jurisdiction. (ECF Nos. 34, 36.) We denied the Government's motions, finding that the Form 95s filed by Plaintiffs properly put the Government on notice of the claims that Plaintiffs ultimately included in the Second Amended Complaint. Turturro, 2012 WL 1758154.

On August 31, 2012, the Government and Agusta filed the instant Motions for Summary Judgment. (Agusta Corp.'s Mot., ECF No. 92; Agusta Corp.'s Mem., ECF No. 93; Gov't's Mot., ECF No. 98.) On November 30, 2012, Plaintiffs filed a joint Response in opposition to the Motions. (Pls.' Resp. to Gov't, ECF No. 114; Pls.' Resp. to Agusta Corp., ECF No. 127.) On January 25, 2013, both the Government and Agusta filed a Reply. (Agusta Corp.'s Reply, ECF No. 145; Gov't's Reply, ECF No. 157.) On July 23, 2013, the Court heard oral argument on the Motions. (July 23, 2013 Hr'g Tr., ECF No. 164.)

B. Factual Background[2]

On May 22, 2008, Angelina was taking flight lessons from Braddock in a small aircraft, a Grumman AA-1C airplane (the " Grumman" ) at the Northeast Philadelphia Airport (" the Airport" ). (Pls.' Resp. to Gov't. 2.) Braddock was in the right seat and Angelina was in the left. ( Id. at 3.) Angelina had 87 hours of flight time in the Grumman, while Braddock had approximately 800. ( Id. ) Angelina was in the final stage of his training. (McGrath Dep. 61-64, Pls.' Resp. to Gov't Ex. 1.)

Braddock was employed by Hortman Aviation Services, Inc. (" Hortman" ), which operates an FAA approved flight training school based at the Airport. (Pls.' Resp. to Gov't 3.) At the time of the crash, there were three air traffic controllers (" Controllers" ) in the Airport Tower: Jennifer Richburg (who was working local control); Joseph Fabozzi (who was working ground control); and Jonathan Swingle (who was acting as Controller-in-Charge and overseeing Richburg and Fabozzi). ( Id. at 5.) Richburg categorized her workload during this time as " light to moderate" based upon the number of aircraft in flight at the time. (Richburg Dep. 271, Pls.' Resp. to Gov't Ex. 5.) The Air Traffic Manager at the Airport, Edward Wolfe, also described Richburg's traffic workload and complexity as " light to medium." (Wolfe Dep. 12-13, 193, Pls.' Resp. to Gov't Ex. 18.)

The Airport has two intersecting runways--Runways 24 and 33. (Airport Overhead, Agusta Corp.'s Mot. Ex. 1.) At the time of the accident, the pilots of the Grumman were performing touch and gos. (Pls.' Resp. to Gov't 4.) During a touch and go, an aircraft lands on a runway and takes off again without coming to a complete stop. The pilot enters into a traffic pattern, circles the airport, communicates with air traffic control (" ATC" ) for clearance, and then repeats the process. ( Id. at 3.) Circuits can be done to either the left (" left traffic" ) or to the right (" right traffic" ). (H. Hortman Dep. 34-35, Gov't's Mot. Ex. A.) The standard traffic pattern in the United States is left traffic, and

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right traffic is an alternate traffic pattern. ( Id. at 34.)

Angelina's first touch and go was performed on Runway 24. (Accident Tr. 3, Gov't's Mot. Ex. D.)[3] A few minutes later, at 1543:35, while the Grumman was preparing for its second touch and go, ATC instructed it to " set up for left traffic runway three three report turning downwind." (Accident Tr. 4.) Richburg informed the Grumman at 1553:20 that there was " one departure off runway two four prior to your arrival," but did not identify the nature of the aircraft that was departing. ( Id. at 5.) The aircraft that Richburg was referring to was Exec Jet 802 (the " Exec Jet" ). (Pls.' Resp. to Gov't 50-52.) The Exec Jet departed from Runway 24 approximately two minutes and thirty seconds before the Grumman performed its second touch and go. ( Id. at 52.)

While the Grumman was preparing for its second touch and go, the Agusta was hovering near taxiways " G" (" Golf" ) and " J" (" Juliet" ). The Agusta was operated by Agusta Corp. flight instructor Steven Farr and his customer training pilot, Alan Baldwin, and was preparing to depart on a training flight of its own. (Pls.' Farr Dep. 155-156, Pls.' Resp. to Gov't Ex. 2.)[4] Farr and Baldwin were both very experienced pilots in both helicopters and fixed wing aircraft. Agusta Corp. pilots routinely conduct flight operations in and out of the Airport, including training flights, and the pilots are aware that flight school training operations occur on a regular basis. (Pls.' Farr Dep. at 73.)

Prior to commencing flight, the Agusta was ground taxied. The pilots requested permission to leave the ground to perform hover check maneuvers. ( Id. at 155-56.) After these hover checks were completed, the Agusta requested clearance from ATC to commence forward flight in a westerly direction. ( Id. at 181-82.) Farr requested a westerly departure because the Agusta was headed to Lancaster, Pennsylvania, which is west of the Airport, and because the pilots wanted to take off into the wind ( id. at 41, 184), which was traveling out of the west/northwest at 8 knots (Pls.' Resp. to Agusta Corp. 21 n.7; Agusta Corp.'s Reply 4 n.3). Richburg understood the Agusta's request for a westerly departure to mean that the Agusta wanted to depart out of the west. (Richburg Dep. 201.) Farr testified that by westerly departure he meant 270 degrees, which is due west. (Pls.' Farr Dep. 182.) Baldwin, who was flying the helicopter, thought the flight path of the Agusta was northwest bound. (Pls.' Baldwin Dep. 57, Pls.' Resp. to Agusta Corp. Ex. 10.)

At 1553:44, Richburg told the Grumman " altitude and speed permitting make right traffic runway three three." (Accident Tr. 5.) The Grumman pilots informed Richburg that the Grumman was left downwind. ( Id. ) Richburg responded, " five five uniform disregard that call correction seven six mike make right traffic runway three three." ( Id. )[5] At 1557:24, Richburg radioed the Agusta pilots and inquired " do you have that grumman off your left on uh

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runway three three?" (Accident Tr. 5.) The Agusta responded, " we got the grumman in sight." ( Id. ) At 1557:30, Richburg informed the Agusta that the " grumman will be in a left downwind departure from Gulf and Juliet . . . ." ( Id. at 6.) Richburg then cleared the Agusta for takeoff and instructed the pilots " proceed on course . . . ." ( Id. ) Within approximately five to ten seconds of receiving clearance, the Agusta commenced forward flight to the northwest. (Pls.' Farr Dep. 134, 139-40.)

At 1557:55, as the Grumman was climbing out after its second touch and go, Richburg instructed the Grumman to " make right traffic." (Accident Tr. 5.) Seconds after receiving the instruction, the Grumman initiated its turn at an altitude of 200-300 feet. (Richburg Dep. 236; C. Hortman Dep. 39, Gov't's Mot. Ex. E; Agusta Corp.'s Baldwin Dep. 94, Agusta Corp.'s Reply Ex. F; July 23, 2013 Hr'g Tr. 49, 60.) Prior to the turn, the Grumman was observed climbing at an abnormally slow speed. (Pls.' Farr Dep. 150-51; Farr Accident Report 1, Agusta Corp.'s Mot. Ex. 4; Gov't's Baldwin Dep. 36, 106, Gov't's Mot. Ex. B; C. Hortman Dep. 19-20, 27, 36, 78-79.) Farr witnessed the Grumman's " nose move right, vice left in a shallow bank angle." (Farr Accident Report 1; Pls.' Farr Dep. 151.) Baldwin observed that the " aircraft's nose started to come right with about 15 of bank." (Baldwin Statement, Pls.' Resp. to Agusta Corp. Ex. 14.) The Grumman then began to bank more sharply, at an angle of almost 80 to 90 degrees. (Farr Accident Report 1; Baldwin Statement 14.) Baldwin testified that:

The initial right-hand turn was fine in the way it looked. It looked a little uncoordinated, but as soon as the aircraft came around and the nose dropped and it was truly, for lack of a better description, like a kite on a string as it came down. There was no - there was no forward momentum to cause any type of lift ultimately.

( Gov't's Baldwin Dep. 33-34.) Another eyewitness, Cameron Hortman, described the last few moments of the Grumman's takeoff and turn as follows:

Was out checking the dipstick on my tomahawk. Saw [the Grumman] touch down, put the dipstick back in, looked up, saw an Agusta helicopter hovering off the right (no factor), looked back, saw [the Grumman] lift off. Not more than a hundred yards or so past the threshold and no higher than 200 ft. The plane went vertical to the point where I could see the red nose cone. The plane kicked hard right. Looked like the takeoff stalls I would practice but they also had the right turn with the high angle of attack added in. After the plane kicked hard right, it came down on an angle on its side and went behind the trailers where I could no longer see the plane.

( C. Hortman Statement, Agusta Corp.'s Mot. Ex. 5.)

The Agusta pilots were surprised by the Grumman's right-hand turn because they had expected the Grumman to make left traffic based on ATC's instruction at 1557:30. They had not heard the " make right traffic" instruction at 1557:55. (Pls.' Farr Dep. 126, 141-42; Pls.' Baldwin Dep. 66.) The Agusta pilots were further surprised by the fact that the Grumman initiated its turn at such a low altitude. Baldwin uttered " [w]hat the fuck," because he expected the Grumman to turn left, not right, and did not expect the Grumman to turn at an altitude of 200 feet above the ground. (Agusta Corp.'s Baldwin Dep. 94.) Farr testified that " [w]e saw the aircraft move to the right, we both anticipated it moving to the left, and we both

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kind of felt that it was odd. So . . . I think I started reaching for the controls and [Baldwin] started to stop his transition." (Pls.' Farr Dep. 126-27.) At this point, Farr took control of the Agusta and executed a quick stop, which is a rapid deceleration of the helicopter or a maneuver to stop the forward momentum of the aircraft. (Pls.' Baldwin Dep. 49, 67-68, 94; Pls.' Farr Dep. 206.)

The Agusta was approximately 2,678 feet away from the Grumman (Agusta Corp.'s Reply Ex. K; July 23 Hr'g Tr. 40-41), and traveling at a speed of 5 to 7 knots when the Grumman received ATC's instruction to " make right traffic" (Gov't's Farr Dep. 227-28, Gov't's Mot. Ex. H). After Farr executed the quick stop, the Agusta slowed to a " minimal creep." ( Id. at 228.) When the Grumman departed from controlled flight, the Agusta was at the most conservative estimate, 2,627 feet away. (Gov't's Sommer Dep. 128-29, Gov't's Mot. Ex. K.) During this time, the distance between the Agusta and the Grumman decreased by 51 feet. (Agusta Corp.'s Reply 10 n.7 & Ex. K.)

Almost immediately after the Grumman began its turn, the plane stalled and crashed into a nearby parking lot. (Pls.' Resp. to Gov't 45 n.32; Farr Accident Report 1; Richburg Dep. 236.) Both Angelina and Braddock were killed in the crash.

II. LEGAL STANDARD

A party is entitled to summary judgment " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (" Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." ). Where the nonmoving party bears the burden of proof at trial, the moving party may identify an absence of a genuine issue of material fact by showing the court that there is no evidence in the record supporting the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). If the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c)(1) (" A party asserting that a fact is genuinely . . . disputed must support the assertion by . . . citing to particular parts of materials in the record." ); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (noting that the nonmoving party " must do more than simply show that there is some metaphysical doubt as to the material facts" ). " Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Id. at 587 (citations omitted). When deciding a motion for summary judgment, courts must view facts and inferences in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. Courts must not resolve factual disputes or make credibility determinations. Siegel Transfer v. Carrier Express, 54 F.3d 1125, 1127 (3d Cir. 1995).

III. DISCUSSION

Plaintiffs bring claims of negligence against the Government and Agusta Corp. pursuant to the Federal Tort Claims Act, 28 U.S.C. § § 1346(b) and 2671, et seq., a claim for spoliation of evidence against the

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Government, and a claim for breach of contract against Agusta Corp. Section 1346(b) of the Federal Torts Claims Act provides that the Government shall be liable for personal injury, death, or property damage caused by the negligent or wrongful act or omission of a Government employee in accordance with the law of the place where the act or omission occurred. This accident occurred in Pennsylvania. Therefore, the law of the Commonwealth of Pennsylvania governs.

A. Negligence Claims

Under Pennsylvania law, the general rules of negligence apply to negligence actions involving plane crashes. Remo v. United States, 852 F.Supp. 357, 365 (E.D. Pa. 1994); Himmler v. United States, 474 F.Supp. 914, 929 (E.D. Pa. 1979). To prevail on a negligence claim, Plaintiffs must establish the following elements: (1) a legally recognized duty that requires that Defendants conform to certain standards of conduct; (2) a breach of that duty evidenced by a failure to conform to the standards required; (3) a causal connection between the conduct and the resulting injury; and (4) damage resulting to the interests of another. Morena v. South Hills Health Sys., 501 Pa. 634, 462 A.2d 680, 684 n.5 (Pa. 1983); Markovich v. Bell Helicopter Textron, Inc., 805 F.Supp. 1231, 1236 (E.D. Pa. 1992). Plaintiffs must establish that Defendants' conduct was both the cause in fact (physical cause) and proximate (legal) cause of the injury. Galullo v. Fed. Exp. Corp., 937 F.Supp. 392, 394 (E.D. Pa. 1996). Cause in fact involves '" a de minimis standard of causation, under which even the most remote and insignificant force may be considered the cause of an occurrence." ' Herman v. Welland Chem., Ltd., 580 F.Supp. 823, 827 (M.D. Pa. 1984) (quoting Takach v. B.M. Root Co., 279 Pa.Super. 167, 420 A.2d 1084, 1086 (Pa. S.Ct. 1980)). Proximate cause involves a determination that the nexus between a defendant's wrongful acts or omissions and the injury sustained by the plaintiff is such that society would want to hold the defendant liable for their conduct. Galullo, 937 F.Supp. at 395. Plaintiffs must prove each of these elements by the fair weight or preponderance of the evidence. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1284 (Pa. 1978).

While the " nature and extent of the duty of due care is a question of law," United States v. Redhead, 686 F.2d 178, 182 (3d Cir. 1982), if there is a finding of a breach of a duty of care and a causal connection between the breach and the injury, " both the degree of negligence in performing those duties and the extent to which the negligent performance of those duties causes the accident are questions of fact," Rodriquez v. United States, 823 F.2d 735, 746 (3d Cir. 1987).

1. Legal Duties of Agusta and ATC

Pilots and air traffic controllers have concurrent duties of care. Remo, 852 F.Supp. at 365 (citing Redhead, 686 F.2d at 182). The Third Circuit has explained these duties as follows:

The pilot is in command of the aircraft, is directly responsible for its operation, and has final authority as to its operation. He must be aware of those facts which are material to its proper operation and is charged with that which he ...

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