While the duty in an airplane tort case is a concurrent one, resting on both air traffic controllers and pilots, `under VFR conditions, ultimate responsibility for the safe operations of an aircraft rests with the pilot.'" Beech Aircraft Corp., 51 F.3d at 840 (9th Cir. 1995) (quoting Hamilton v. United States, 497 F.2d 370, 374 (9th Cir. 1974)). An air taxi operator has a duty to exercise the highest degree of care in protecting his passengers from injury.
11. In Hamilton v. United States, 497 F.2d 370 (9th Cir. 1974), a case involving a mid-air collision in the traffic pattern at Oakland Airport in Northern California, the Ninth Circuit in absolving the air traffic controller said: "Nor was the controller negligent in failing to inform each aircraft of the other's position." 497 F.2d at 376.
The ultimate responsibility for the safe operation of aircraft under visual flight rules rests with the pilot, regardless of air traffic clearance. Hamilton v. United States, 497 F.2d 370, 374 (9th Cir. 1974); United States v. Miller, 303 F.2d 703, 710 (9th Cir. 1962), cert. denied, 371 U.S. 955, 83 S.Ct. 507, 9 L.Ed.2d 502 (1963). Flight under visual flight rules, as compared to instrument flight rules, is guided by the overriding principle: "see and be seen" or "see and avoid."
This additional duty which arises with the knowledge of the extreme danger or severe hazard has been appropriately described as an "emergency situation." See Hamilton v. United States, 497 F.2d 370, 375 (9th Cir. 1974). In the present case there was no finding that the controller knew that the Miller aircraft faced an extreme danger or severe hazard (emergency situation).
(ECF Nos. 115 at 3, 170 at 24, 172 at 5.) See also, e.g., Hamilton v. United States, 497 F.2d 370, 372 (9th Cir. 1974) (noting case alleging negligence of air traffic controllers arose under FTCA but not noting a lack of jurisdiction). Venue is also proper because the crash occurred at RNO.
While the duty in an airplane tort case is a concurrent one, resting on both the control tower personnel and the pilots, "under VFR conditions, ultimate responsibility for the safe operations of an aircraft rests with the pilot." Hamilton v. United States, 497 F.2d 370, 374 (9th Cir. 1974) (holding where the pilot is flying under VFR conditions, it is the pilot's obligation to see and avoid other traffic, even if he is flying with a traffic clearance). Moreover, "controllers are not required to foresee or anticipate the unlawful, negligent or grossly negligent acts of pilots."
At issue in the present case is the meaning of "vigilance" to see and avoid other aircraft under ยง 91.67(a); the other cited cases address different aviation pilot regulations, common law standards, and airplane manufacturer standards, none of which use the term "vigilance." See Dyer v. United States, 832 F.2d 1062 (9th Cir. 1987) (addressing liability of helicopter pilot under 14 C.F.R. ยง 91.89, which requires all helicopters to "`avoid the flow of fixed-wing aircraft'"); Hamilton v. United States, 497 F.2d 370 (9th Cir. 1974) (addressing liability of Cessna pilots under 14 C.F.R. ยง 91.65(a), "which prohibits the operation of `an aircraft so close to another aircraft as to create a collision hazard'"); United Air Lines v. Wiener, 335 F.2d 379 (9th Cir.) (addressing liability of United Air Lines pilot under common carrier standard of care), cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964); Elsworth v. Beech Aircraft Corp., 37 Cal.3d 540, 691 P.2d 630, 208 Cal.Rptr. 874 (1984) (addressing liability of airplane manufacturer), cert. denied, 471 U.S. 1110, 105 S.Ct. 2345, 85 L.Ed.2d 861 (1985); McGee v. Cessna Aircraft Co., 139 Cal.App.3d 179, 188 Cal.Rptr. 542 (Dist. 4 1983) (same); Mittelman v. Seifert, 17 Cal.App.3d 51, 94 Cal.Rptr. 654 (Dist. 1 1971) (addressing liability of pilot under willful misconduct standard of care).
Murff v. United States, 785 F.2d 552, 554 (5th Cir.), cert. denied, 479 U.S. 823, 107 S.Ct. 95, 93 L.Ed.2d 46 (1986). See also United States v. Schultetus, 277 F.2d 322, 328 (5th Cir.), cert. denied, 364 U.S. 828, 81 S.Ct. 67, 5 L.Ed.2d 56 (1960); Bibler v. Young, 492 F.2d 1351 (6th Cir.), cert. denied, 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974); Coatney v. Berkshire, 500 F.2d 290 (8th Cir. 1974); Hamilton v. United States, 497 F.2d 370 (9th Cir. 1974); Colorado Flying Academy, Inc. v. United States, 724 F.2d 871 (10th Cir. 1984), cert. denied, 476 U.S. 1182, 106 S.Ct. 2915, 91 L.Ed.2d 544 (1986); Rodriquez v. United States, 823 F.2d 735 (3d Cir. 1987). The Ahart estate satisfied its Celotex burden by demonstrating, through Taylor's testimony, the absence of evidence on a key element of the government's contributory negligence claim: the breach of a duty by pilot Ahart. Taylor's testimony that either or both of the pilots acted negligently, and that he knew of no evidence to indicate which pilot was negligent, or whether both were negligent, is sufficient to demonstrate the absence of evidence to support an essential element of the government's defense of contributory negligence.
The pilot's responsibility for separation stems from his superior ability to see aircraft close to him, and to maneuver his plane to avoid such other aircraft, and from his limited area of concern, i.e., his own aircraft and the area immediately surrounding it. While "ultimate responsibility for the safe operation of aircraft rests with the pilots, regardless of the air traffic clearance," Hamilton v. United States, 497 F.2d 370, 374 (9th Cir. 1974); United States v. Miller, 303 F.2d 703 (9th Cir. 1962), cert. denied, 371 U.S. 955, 83 S.Ct. 507, 9 L.Ed.2d 502 (1963), the duty to exercise due care to avoid accidents is a concurrent one resting on both the control tower personnel and the pilot. See Hamilton, supra; Miller, supra.
; 14 C.F.R. ยง 91.3. Under Visual Flight Rules, and in Visual Flight Rule weather conditions, it is the pilot, and not the air traffic controller, who has the primary responsibility for preventing collisions between aircraft. Tilley v. United States, 375 F.2d 678, 682-684 (CA4 1967); American Airlines v. United States, supra; United States v. Miller, supra; United States v. Schultetus, 277 F.2d 322 (CA5 1960); Hamilton v. United States, 497 F.2d 370 (CA9 1974) aff'g, 343 F. Supp. 426 (N. D.Cal. 1971). Here, in the controller's last instruction, which Coatney acknowledged, he was told to report at the bridge for sequence and warned, "I'll have traffic ahead of you."