Opinion
No. 1:08-cv-31 (AJT/TRJ).
March 26, 2009
MEMORANDUM OPINION
This case is before the Court on the Government's Motion for Summary Judgment. This Court heard oral argument on this motion on December 12, 2008, following which this Court took the motion under advisement. For the reasons stated herein, the Government's Motion is GRANTED.
I. BACKGROUND
This consolidated action arises out of the tragic crash of a Cessna 72R airplane, registration number N3536C ("N3536C"), in Prince George's County, Maryland on February 22, 2006. The pilot, Juan Alfonso ("Alfonso"), and the co-pilot, Edward Seuter ("Seuter"), were both killed on impact. Laura Kelley ("Kelley") was a passenger on board N3536C and sustained serious injuries from the crash. Kelley and her husband, Jacy Kelley, brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), alleging that the negligence of federal air traffic controllers was a proximate cause of the crash and her injuries.The Government has moved for summary judgment on the grounds that as a matter of law the air traffic controllers did not breach any duties owed to Plaintiffs and that any alleged breach of duties was not a proximate cause of the crash. Plaintiffs have opposed that motion and the parties have submitted a Stipulation of Facts. Based on the undisputed facts, this Court concludes as a matter of law that, with one possible exception, the air controllers did not breach any duties owed to the pilots of N3536C; but that in any event, none of the allegedly negligent acts or omissions of the air controllers was a proximate cause of the crash.
The possible exception, as discussed in this Memorandum Opinion, pertains to the fact that Potomac TRACON did not notify N3536C of deviations of 300 feet or more from its assigned altitude during its first approach to Freeway Airport.
Because of the parties' respective contentions concerning the standard of care and causation, it is necessary to provide a detailed recitation of the undisputed facts.
II. UNDISPUTED FACTS
A. The Aircraft, Its Pilots and Passengers
On the day of the crash, Kelley was an employee of Explosive Countermeasures, Inc. ("ECI"), a company based in Marshall, Virginia. Stipulation of Facts at ¶ 18. Seuter was the President of ECI and scheduled a business meeting to be held in Atlantic City, New Jersey on February 22, 2006. Id. He requested that Kelley and Jeff Cottle ("Cottle"), another employee of ECI, attend the meeting with him. Id. Seuter, who was a licensed, non-instrumented rated pilot, chartered N3536C and hired Alfonso to fly himself, Kelley, and Cottle to Atlantic City for the February 22 meeting. Id. at ¶¶ 18, 19, 20. Alfonso, an experienced, instrument-rated pilot, had been Seuter's flight instructor. See id. at ¶ 20. Seuter viewed the flight as an opportunity to receive instrument controlled flight experience under Alfonso's supervision. Id. at ¶ 20. Alfonso was the pilot in command during the flight. Id. at ¶ 12. Seuter and Alfonso planned to fly from Warrenton-Fauquier Airport ("Warrenton") to the Freeway Airport ("Freeway") near Mitchellville in Prince George's County, Maryland where they had arranged to pick up Cottle. Id. at ¶¶ 19-21.
Seuter held a private pilot certification and had logged approximately 180 hours of flight time before the date of the crash. Stipulation of Facts at ¶ 13.
N3536C was owned by Tracey Corporation ("Tracey") and Skyworld Aviation, Inc. ("Skyworld"). Alfonso was employed by Tracey. This action was originally brought against the United States, Tracey, and Skyworld. By Order dated October 14, 2008, the actions against Tracey and Skyworld were dismissed based on a stipulation of voluntary dismissal.
Alfonso held an airline transport pilot ("ATP") certification for multi-engine planes, the highest certification available, and also a commercial pilot certificate for single-engine airplanes. He was certified as a flight instructor for single and multi-engine airplanes and instrument flight instruction. Stipulation of Facts at ¶¶ 9, 10. He was also rated a "Class I" pilot, the highest available rating. See Pls.' Opp. Br., Ex. J (Rigler Report) at 9. He had logged over 3,200 hours of flight time before the crash and his certificates and ratings allowed him to act as pilot-in-command of airplanes operating under Instrument Flight Rules ("IFR"). Stipulation of Facts at ¶ 10. Because of these certifications and ratings, Alfonso was permitted to enter clouds and fly in weather conditions where navigation and aircraft control cannot be accomplished visually. Id. at ¶ 11.
Illustrative of Seuter's view of this opportunity was his remark before the flight, "the cloudier, the better." Stipulation of Facts at ¶ 20.
B. The Freeway Airport
Freeway is a privately owned airport and has a single paved runway that runs in a north-south direction. Id. at ¶ 26. The airport does not have a control tower, a Federal Aviation Administration ("FAA") facility or FAA personnel located on the premises. Id. at ¶ 22. The airport also has no weather observation equipment and no certified weather observer to provide official reports of weather conditions directly to the National Weather Service ("NWS"), the FAA or pilots. Id. at ¶ 24. For these reasons, pilots flying into Freeway will not receive any reports concerning the weather conditions at Freeway from air traffic controllers. However, Freeway has a few weather instruments that indicate wind speed and direction and a "basic hookup to the WJLA-TV Doppler weather radar." Id. at ¶ 25. In addition, personnel working in the office at Freeway, although not certified weather observers, may provide current unofficial weather information to pilots. Id. However, in order to communicate with Freeway's ground personnel, pilots arriving at and departing from Freeway must use a common radio frequency assigned to the airport, known as the "advisory frequency" or the "UNICOM" frequency. Id. at ¶ 23. The UNICOM frequency is not used by air traffic controllers; air controllers use the air traffic control ("ATC") frequency. Id. In order for pilots to communicate with Freeway office personnel over the UNICOM frequency, pilots must switch from the ATC frequency to the UNICOM frequency. Id. The FAA has developed and published three standard instrument approach procedures ("SIAP") for Freeway: (1) a VOR approach to Runway 36, (2) a NAV/GPS approach to Runway 36 and (3) a RNAV/GPS approach to Runway 18. The published minimum flight visibility required for descent into Freeway is one statute mile and the airport has a minimum descent altitude ("MDA") of 700 feet above mean sea level ("MSL"). Id. at ¶ 30.
When the runway is used to takeoff and land to the north, it is referred to as Runway 36 (because north on a compass is 360 degrees). When the runway is used to take off and land to the south, it is referred to as Runway 18 (because south on a compass is 180 degrees). Stipulation of Facts at ¶ 26. The runway at Freeway is 40 feet wide and 2,433 feet long. Due to trees located south of the runway, the pavement authorized for landing on Runway 36 begins 243 feet north of the southern edge of the runway. As a result, only 2,190 of the 2,433 feet of the runway is available for landing on Runway 36 while the full 2,433 feet of pavement is available for landing on Runway 18. Id. at ¶ 27.
During oral argument, the parties agreed that a pilot must reestablish the connection with air traffic control and that air controllers cannot override the UNICOM frequency.
An SIAP consists of a series of predetermined courses and altitudes followed by a pilot using instruments from the beginning of the approach to the airport down to a minimum descent altitude ("MDA"). Stipulation of Facts at ¶ 29.
A VOR approach is a ground based electronic navigation aid that emits very high frequency signals used for navigation. An RNAV/GPS approach requires a pilot to use an on board area navigation ("RNAV") instrument such as a Global Position System ("GPS") to fly the published approach procedure. The main difference between a VOR approach and a GPS approach is that the latter does not utilize ground-based navigation aids. Stipulation of Facts at ¶¶ 30, 31. N3536C was equipped with a Bendix/King KLN GPS certified for operation under instrument flight rules. Although the data card in the GPS had expired in October 2005, the information on the card had not changed in any material respect between October 2005 and February 22, 2006. Id. at ¶ 73.
A pilot may descend below MDA and attempt to land in accordance with the requirements of 14 C.F.R. § 91.175. Stipulation of Facts at ¶ 29. Briefly summarized, that regulation authorizes descent below MDA when the pilot has at least minimum visibility, is "continuously in a position from which a descent to a landing . . . can be made at a normal rate of descent" and has certain "visual references" such as runway lights. If a pilot is unable to complete the approach, the SIAP contains a published "missed approach procedure" designed to return the aircraft to a higher altitude away from the airport. Id. In the case of a missed approach at Freeway, the published SIAP required the aircraft to re-establish an altitude of 2,000 feet. See 14 C.F.R. § 91.175(e)(i) and (ii).
"MSL" or "mean sea level" is the elevation or altitude of an object relative to the average sea level datum. "AGL" or "above ground level" is a measure of altitude with respect to the ground surface. To determine the mean sea level of an object in flight, its above ground level measurement is simply added to the MSL measurement of a given ground location. Thus, a cloud at 500 AGL over Freeway Airport, which is at 168 MSL, would be 668 feet MSL. Stipulation of Facts at ¶ 28; see also Def. Br. at 9. N3536C's altimeter measured altitude in terms of MSL. Stipulation of Facts at ¶ 40.
N3536C's flight plan was within the air space monitored by the FAA-operated air traffic control facility located in Warrenton, Virginia, known as Potomac TRACON. Potomac TRACON is located approximately 30 miles from Freeway. Potomac TRACON does not receive weather information for Freeway, but it does have access to weather forecasts and other weather information, known as TAFs, METARs, and SPECIs, for major airports surrounding Freeway, including Ronald Reagan Washington National Airport ("DCA"), Washington Dulles International Airport ("IAD"), Baltimore-Washington International Airport ("BWI") and Andrews Air Force Base ("ADW" or "Andrews"). Id. at ¶ 34. Among the information conveyed in these reports are the prevailing visibility at the surface ground level and also the height of forecasted and observed cloud layers, rounded to the nearest 100 feet. Id. at ¶¶ 37, 38. The National Weather Service does not issue weather reports for Freeway. Id. at ¶ 41.
"TRACON" is the acronym for Terminal Radar and Approach Facility. Stipulation of Facts at ¶ 53. Potomac TRACON provides air traffic control services to aircraft operating in the greater Baltimore-Washington-Richmond-Norfolk area. The services themselves are provided from a windowless room using radar antennas located at various ground stations. Id. The air space monitored by Potomac TRACON is divided into four areas and each area is divided into four sectors. Depending on the volume of air traffic, each sector may be worked by a separate air traffic controller or a single controller may work more than one sector at a time from a single work station. At the time of the crash, as a result of traffic volume being "no more than moderate," the sector for the air space covered by N3536C, known as DCAFE sector, was combined with sectors known as the ADW radar and DEALE sectors. Id. at ¶¶ 54, 55. Potomac TRACON monitors air traffic in the vicinity of Freeway through three different radar sensors (antennas) that are located at ADW. DCA is located nine miles from Freeway and ADW is located 14 miles from Freeway. The DCA radar sensor is the assigned primary radar sensor for the air space sector traveled by N3536C. Id. at ¶ 56. A Potomac TRACON air traffic controller can use only one radar sensor at a time although a controller has the capability to transfer to other radar sensors. Id.
These reports included: (1) a "Terminal Aerodrome Forecast" or "TAFs", issued every six hours by the National Weather Service; (2) "Aviation Routine Weather Reports" or "METARs," issued once per hour from airports with weather reporting capability and (3) a special weather observation, or "SPECIs," which can be issued in between METARs. Stipulation of Facts at ¶¶ 34, 35. TAFs state forecast weather conditions at an airport during a specified period, usually 24 hours, while METARs and SPECIs are not forecasts but rather observations of an airport's weather conditions at a particular time. Id. at ¶¶ 34, 35. DCA and Andrews have TAFs, METARs and when weather conditions warrant, SPECIs. Id. at ¶ 42. Freeway does not issue METARs. Id. at ¶ 41.
Cloud layers are described as "few," "scattered," "broken," or "overcast." Clouds described as few and scattered do not constitute a ceiling. Cloud layers described as broken or overcast constitute a ceiling. Stipulation of Facts at ¶ 37. Cloud layers described as few cover one-eighth to two-eighths of the sky. Scattered clouds cover three-eighths to four eighths of the sky. Broken clouds cover five-eighths to seven-eighths of the sky, and overcast clouds cover seven-eighths to all of the sky. Id. at ¶ 36.
The official reports of cloud altitudes at DCA and Andrews are given in AGL. Stipulation of Facts at ¶¶ 38, 39. Andrews is 282 feet above sea level, DCA is 10 feet above sea level, and Freeway is 168 feet above sea level. Id. at ¶ 28, 42. Therefore, to convert AGL reports into MSL reports, the airport's elevation (stated in mean feet above sea level) must be added to the reported AGL number. Conversely, to convert an MSL report into AGL report, the airport's elevation must be subtracted from the reported MSL altitude.
C. The Flight of N3536C
On the morning of February 22, Kelley, Seuter and Alfonso met at the Warrenton Airport. See id. at ¶ 20, 71. At approximately 7:30 am, Alfonso logged onto the Direct User Access Terminal System and filed an IFR plan from Warrenton to Freeway. Stipulation of Facts at ¶ 65. Alfonso also obtained an electronically accessed preflight briefing for the proposed flight. Id. at ¶ 66. The briefing contained NOTAMs, one of which indicated that the VOR approach to Runway 36 was not authorized. Id. at ¶¶ 66, 70. The briefing also indicated that it was snowing at IAD and in Culpeper, Virginia and included a textual weather description of forecasts and reports, including TAFS and METARS, along the proposed route of flight. Id. at ¶ 68. Snow was falling at Warrenton when Kelley, Seuter, and Alfonso boarded the aircraft, and as it turned out, the weather in the vicinity of DCA and Andrews deteriorated faster than was predicted in the weather reports. Id. at ¶ 71.
The estimated flight time from Warrenton to Freeway was 39 minutes. Stipulation of Facts at ¶ 67.
A "NOTAM" is time-critical aeronautical information that is of a temporary nature or is not sufficiently known in advance to permit publication on aeronautical charts or in other operational publications. Examples of common NOTAMs are runway closures, navigational aids being placed out of service, and changes to instrument approach procedures. Stipulation of Facts at ¶ 64.
Kelley observed Seuter sweep snow from the wings of the plan with a broom. Stipulation of Facts at ¶ 71.
N3536C departed from Warrenton between 8:41 and 8:46 am. At 9:11 am, N3536C established radio contact with Potomac TRACON, which confirmed N3536C's altitude at 3,000 MSL. Id. at ¶ 67. Approximately twenty minutes later, N3536C made its first approach towards Freeway and made at least one other attempt to land at Freeway before crashing. Id. at ¶¶ 81, 82.
1. The First Missed Approach
N3536C began its first approach at 9:23 am after having been cleared by Potomac TRACON for a RNAV/GPS approach to Runway 36. Id. at ¶ 109. At 9:25 am and again at 9:28 am, Potomac TRACON announced weather observations issued from DCA at 9:21 am and 9:26 am, respectively. Those reports indicated that visibility had decreased at DCA from 2 miles to 1.5 miles with broken cloud ceilings at 600 AGL. Id. at ¶¶ 111, 112. At 9:29 am, when N3536C was approximately 6 miles from Freeway, Potomac TRACON stated to the pilots of N3536C: "change to advisory's approved." Id. at ¶ 113. This instruction authorized N3536C to begin communicating on the Freeway UNICOM frequency and to terminate communications with Potomac TRACON on the ATC frequency.
The pilots of N3536C initially requested a VOR approach to Runway 36. The air controller on duty informed N3536C that the VOR approach to Runway 36 was not authorized. Seuter asked for a few seconds to "regroup," and about twenty-five seconds later, requested the RNAV/GPS approach to Runway 36. Stipulation of Facts at ¶¶ 89-94. Potomac TRACON confirmed the request. Potomac TRACON then provided N3536C flight instructions, which Seuter confirmed, and also informed N3536C of air traffic, which the crew of N3536C did not immediately confirm. At that point, Williamson told Seuter that he needed to "pay a little more attention." Id. at ¶¶ 96-99.
At approximately 9:31 am, N3536C established its minimum descent altitude ("MDA") of 700 MSL (532 feet above ground). See Def. Br., Ex. 11 (Slide 6). The parties have stipulated that N3536C flew over Freeway at an altitude of approximately 650 MSL between 9:29 and 9:33 am and executed a "missed approach procedure" in accordance with the applicable procedures. Stipulation of Facts at ¶ 117. It also appears that N3536C descended to as low as 500 MSL (332 AGL) by the time it reached the air space over the runway at 9:32 am. See Def. Br., Ex. 11 (Slide 6). At 9:33 am, N3536C reestablished contact with Potomac TRACON and informed Potomac TRACON that it had missed the runway. Stipulation of Facts at ¶ 118. N3536C then stated that it wanted to execute the same approach for another Runway 36 landing. Id. at ¶¶ 120, 122. After receiving the necessary vectors and instructions from Potomac TRACON, Alfonso established an altitude of 2,000 MSL and prepared to attempt another landing. Id. at ¶¶ 124, 125. At some point during this period, Seuter remarked: "Let's give it one more try and if it doesn't work out we'll just go to Atlantic City without Jeff [Cottle]." Id. at ¶ 126.
Def. Br., Ex. 11 (Slide 6) is a chart created by Plaintiffs' radar expert Robert Cauble based on transmissions from N3536C's Mode C transponder to the radar antenna located at Andrews.
At 9:35 am, following the first missed approach, Potomac TRACON provided N3536C with the previously announced weather report from DCA issued at 9:26 am. Id. at ¶ 127. At approximately 9:36 am, Alfonso reported his own observations of the weather at Freeway to Potomac TRACON as follows: "ah some scattered like ah mile visibility and it's broken at ah at ah six seven hundred but we couldn't see the runway." Id. at ¶ 131.
Pilot reports of cloud altitudes are typically given in mean sea level ("MSL") as opposed to height "above ground level" ("AGL"). See Stipulation of Facts at ¶ 40. The parties appear in agreement that this statement refers to 600-700 feet MSL. See Def. Br., Ex. 7 (Rigler Depo.) at 140:15-141:6.
2. The Second Missed Approach
At approximately 9:45 am, when N3536C was approximately 5 miles from Freeway, N3536C again changed to the UNICOM frequency upon Potomac TRACON's instruction. Id. at ¶¶ 136, 137. N3536C never again established radio communication with Potomac TRACON. Id. at ¶ 138. During the second approach, N3536C established a MDA of 700 MSL approximately two miles away from the runway. See Def. Br., Ex. 11 (Slide 10). Shortly thereafter, the plane descended to 500 MSL and maintained that altitude for approximately one minute until it was nearly one quarter mile from the runway. Id. From this point, N3536C continued its descent to as low as 50 to 100 AGL before aborting its landing. Id.; Stipulation of Facts at ¶ 139. N3536C then climbed and continued northbound over Route 50. Stipulation of Facts at ¶ 140. N3536C reappeared on Potomac TRACON's radar when the plane again reached 400 MSL, at which point it was turning left in a northwesterly direction, and executing a circling maneuver to fly south towards Runway 18. See id., Ex. A. At 9:50 am, N3536C again descended below radar range after it had circled back toward Runway 18 and was approaching Runway 18 in a southbound direction. Id. at ¶ 140. N3536C descended as it approached Runway 18, but did not touch down on the runway. Rather, it began a climb, banked left and crashed near the end of Runway 18 sometime after 9:50 am. Id. at ¶ 141. Plaintiffs' expert has opined that the crash occurred after Alfonso "likely reentered an area of instrument conditions that lacked a horizon [i.e. clouds] where he probably experienced spatial disorientation (vertigo)." Pls.' Mem. in Opp. to Summ. J. ("Pls.' Opp. Br."), Ex. J at 15, ¶ 13.
According to Plaintiffs' expert, it is likely that N3536C initiated its descent from MDA after a break in the clouds allowed Alfonso to see Runway 36. Def. Br., Ex. 7, (Rigler Deposition) at 192:8-9.
The Government's reconstruction of the accident suggests, without challenge, that the landing was aborted because the aircraft was not sufficiently aligned with the runway. See Def. Br. at 25; Stipulation of Facts at ¶ 139.
III. STANDARD OF REVIEW
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The mere existence of some alleged factual dispute between the parties "will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (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 considered. Id. at 248.
Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute of fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). At that point, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted); Holland v. Wash. Homes Inc., 487 F.3d 208, 213 (4th Cir. 2007). In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255.
IV. DISCUSSION
A. The Applicable Duty of Care
Since the events that gave rise to this action occurred in Maryland, the substantive law of Maryland will apply to the facts of this case. Under Maryland law, a plaintiff asserting a claim of negligence must prove (1) the existence of a duty, (2) a breach of that duty and (3) actual loss or injury to the plaintiff resulting from the breach of the duty. Bobo v. State, 346 Md. 706, 714, 697 A.2d 1371, 1375 (Md. 1997). In order for negligence to be a proximate cause of a loss under Maryland law, the negligence must be a cause in fact of the loss and a legally cognizable cause. Atlantic Mutual. Ins. Co. v. Kenney, 323 Md. 116, 126, 591 A.2d 507, 512 (Md. 1991); see also Board of County Commissioners v. Bell-Atlantic Maryland, 346 Md. 160, 184, 695 A.2d 171, 183 (Md. 1997). Maryland courts have held that "[t]he existence of a legal duty . . . is a question of law to be decided by the court." Patton v. United States Rugby Football, Union Ltd., 381 Md. 627, 636, 851 A.2d 566, 570 (Md. 2004); see also Miller v. United States, 587 F.2d 991, 994 (9th Cir. 1978) ("The nature and extent of an air traffic controller's duty of care to pilots is a question of law.).
Liability under the Federal Tort Claims Act is assessed in accordance with the law of the place where the act or omission occurred. See Richards v. United States, 369 U.S. 1, 11 (1962). The alleged acts or omissions occurred in Virginia. Since Virginia applies the doctrine of lex loci delicti, and the crash occurred in Maryland, Maryland substantive law applies to the facts of this case.
The duties of air traffic controllers are defined by FAA Order 7110.65R ("ATC manual"). Rodriguez v. United States, 823 F.2d 735, 740 (3d Cir. 1987). Air controllers are also subject to a common law duty of reasonable care. In re Greenwood Crash, 924 F. Supp. 1518, 1536-39 (S.D. Ind. 1995). Under their common law duty, air traffic controllers are required to do what a reasonable air traffic controller of their experience and training would have done under the totality of the circumstances. Worthington v. United States, 807 F. Supp. 1545, 1567 (S.D. Ga. 1992), rev `d on other grounds 21 F.3d 399 (11th Cir. 1994). The parties are in agreement that Potomac TRACON's duties are set forth in the ATC manual. See Def. Br. at 5; Pls.' Opp. Br. at 3; Pls.' Opp. Br., Ex. B (Expert Report of Richard P. Burgess) at 2 ("The duties and responsibilities of Air Traffic personnel are set forth in FAA Order 7110.65."); Pls.' Opp. Br., Ex. J (Expert Report of Erik Rigler) at 11 ("Service duties of Air Traffic Controllers are outlined in Chapter 2, General Control, of FAA Order 7110.65.").
B. Plaintiffs' Claims
Paragraph 2-1-1 of the ATC manual is the centerpiece of Plaintiffs' claim that the controllers breached the applicable standard of care and were therefore negligent. Under Paragraph 2-1-1 of the ATC manual, air traffic controllers are obligated to provide "additional services" under certain conditions. Paragraph 2-1-1 provides in pertinent part:
The primary purpose of the ATC system is to prevent a collision between aircraft operating in the system and to organize and expedite the flow of traffic. In addition to its primary function, the ATC system has the capability to provide (with certain limitations) additional services. The ability to provide additional services is limited by many factors, such as the volume of traffic, frequency congestion, quality of radar, controller workload, higher priority duties, and the pure physical inability to scan and detect those situations that fall into this category. It is recognized that these services cannot be provided in cases in which the provision of services is precluded by the above factors. Consistent with the aforementioned conditions, controllers shall provide additional service procedures to the extent permitted by higher priority duties and circumstances. The provision of additional services is not optional on the part of the controller, but rather is required when the work situation permits. Provide air traffic control service in accordance with the procedures and minima in this order except when:
a. . . .
c. A deviation is necessary to assist an aircraft when an emergency has been declared.
FAA Order 7110.65R at ¶ 2-1-1. The parties differ over what "additional services" were required of Potomac TRACON under the facts and circumstances of this case and both parties have offered the opinions of designated experts on the duties of air traffic controllers. Specifically, Plaintiffs claim that the controllers breached their duties of care in the following respects:
The FAA Pilot-Controller Glossary states that "additional services" include, but are not limited to, traffic advisories, vectors when requested by the pilot, deviations of 300 feet or more from an assigned altitude, weather and chaff information, and weather assistance. FAA Order 7110.65R at ¶ PGC-1.
(1) failing to provide N3536C with available weather reports from Andrews Air Force Base;
(2) failing to suggest that N3536C hold or divert to another airport rather than attempt a landing at Freeway;
(3) failing to advise N3536C when it deviated from its assigned altitude;
(4) failing to maintain radio communication with N3536C during its second approach;
(5) failing to issue a safety alert during N3536C's second approach; and
(6) failing to instruct N3536C to follow missed approach procedures following the second missed approach.
1. Andrews Weather Report
Plaintiffs claim that Potomac TRACON was under a duty to provide N3536C with the weather reports from Andrews as an "additional service." Plaintiffs argue that the weather information reported from Andrews was superior to that reported from DCA because Andrews is closer in distance to Freeway than DCA. See Pls.' Opp. Br. at 9-10. Plaintiffs also claim that there were no "higher priority duties" or other workload constraints that prevented or justified not providing the Andrews reports and that the air traffic controllers at Potomac TRACON "merely had to push a button on their ACE-IDS computer screen to access relevant weather for Andrews." Id. at 4. Plaintiffs also claim that "both controllers spoke directly with the tower controllers at Andrews and could have obtained immediate weather observations from Andrews on each such occasion but failed to do so." Id.
The Government does not contend that Potomac TRACON's workload prevented it from providing such services. However, the Government does contend that Potomac TRACON was not under a duty to provide N3536C with weather observations from Andrews. The ATC manual, the Government argues, only requires controllers to determine whether a pilot has received the latest reports from a destination airport when that airport has official weather reporting capability. Because Freeway does not possess weather reporting capability, the Government claims that the controllers could not have reported the weather at Freeway and in fact satisfied their burden by informing N3536C that weather information was not available. See Def. Br. at 5; see also Stipulation of Facts at ¶¶ 84, 88 (air traffic controllers advised N3536C at 9:11 am and 9:12 am that no weather or landing information was available at Freeway). Moreover, the Government argues that the ATC manual, on its face, does not impose a duty upon air controllers to provide weather information for an airport that is not the pilot's intended destination. See Def. Br. at 5.
Paragraph 4-7-10.b of the ATC manual states: "Upon pilot request, controllers shall inform pilots of the frequency where automated weather data may be obtained and, if appropriate, that airport weather is not available." FAA Order 7110.65R at ¶ 4-10-10.b; Stipulation of Facts at ¶¶ 84, 88. There is no evidence in the record that N3536C requested additional automated weather data.
The Government also argues that Plaintiffs have failed to show a causal link between the failure of the controllers to provide the reports from Andrews and the crash of N3536C. See id. at 6. The Government claims that the conditions that existed at Andrews — as they were reported by the National Weather Service — were not materially different from what was reported at DCA. See id. at 8-10. In fact, the Government contends that the most pertinent conditions contained in these reports — in particular, visibility — were less hazardous at Andrews than DCA. See id. The Government also contends that the Andrews reports depicted conditions less severe than those observed and reported by the pilots of N3536C at Freeway. See id. For these reasons, the Government argues that the omission of the Andrews reports could not have had any significant impact on Alfonso's decision-making and that the failure of air controllers to provide those reports could not have been a proximate cause of the accident.
Between 8:50 am and the crash, Andrews issued two weather reports that could have been accessed and passed on to N3536C. DCA issued four weather reports during the same time period. See Stipulation of Facts at ¶¶ 44-52. The first Andrews report, recording observations at 8:55 am, indicated 5 miles visibility with light rain and snow showers, a broken cloud layer at 500 AGL (782 MSL) and overcast cloud layer at 1,500 AGL (1,782 MSL). The second Andrews report, recording observations at 9:41 am, indicated 2 miles visibility with light snow mist, an overcast cloud layer at 500 AGL (782 MSL), and a scattered cloud layer at 300 AGL (582 MSL). Id. at ¶¶ 50, 51.
The DCA reports issued before the crash indicated a visibility that had decreased from 5 miles at 8:52 am to 1.5 miles at 9:26 am. Id. at ¶ 44, 47. During the same time period, Andrews reported a decrease in visibility from 5 miles to 2 miles. Id. at ¶¶ 44-52. With respect to cloud ceilings, the DCA reports described a broken cloud ceiling that dropped to 600 AGL (610 MSL) with an overcast cloud ceiling between 1,100 and 1,300 AGL. Id. at ¶¶ 43-47. Andrews, on the other hand, reported an overcast cloud ceiling at 500 AGL (782 MSL) with a "scattered" cloud layer at 300 AGL. Id. In addition to the DCA reports, N3536C was able to observe the conditions at Freeway first-hand. Following its first missed approach, N3536C reported visibility of 1 mile, broken clouds between 600 and 700 MSL (432-532 AGL) and some additional scattered clouds. Id. at ¶ 131. N3536C also descended to an altitude as low as 500 MSL (332 AGL) on its first approach and reported that it could not see the runway from an altitude between 600 and 700 MSL (532 AGL). Id. at ¶¶ 117, 131.
DCA reported an overcast cloud layer that descended from 1,600 AGL at 8:52 am to 1,100 AGL at 9:21 am. This cloud layer then rose to 1,300 AGL at 9:26 am. Stipulation of Facts at ¶¶ 43-47.
Section 6 of the ATC manual sets forth the obligation of air traffic controllers with respect to weather information. Paragraph 2-6-1 of the ATC manual requires that air traffic controllers "[b]ecome familiar with pertinent weather information when coming on duty, and stay aware of current weather information needed to perform ATC duties." FAA Order 7110.65R at ¶ 2-6-1. Paragraph 2-6-2 of the ATC manual states that air traffic controllers "shall advise pilots of hazardous weather that may impact operations within 150 NM [nautical miles] of their sector or area of jurisdiction." Id. at ¶ 2-6-2. Paragraph 2-6-4 provides that air traffic controllers should "[i]ssue pertinent information on observed/reported weather or chaff areas." Id. at ¶ 2-6-4. It also directs air controllers to "[p]rovide radar navigational guidance and/or approve deviations around weather . . . areas when requested by the pilot" and "[i]n areas of significant weather, plan ahead and be prepared to suggest, upon pilot request, the use of alternative routes/altitudes." Id. (emphasis added). There is nothing in the applicable regulations that requires air traffic controllers to provide weather reports from any particular airport when the destination airport is a non-towered airport and has no official weather reports such as Freeway.
Potomac TRACON provided N3536C with information of weather conditions at DCA, which is approximately 14 nautical miles away from Freeway. The record does not establish whether the controllers at Potomac TRACON actually accessed the Andrews reports, but assuming that they did or should have, the information in the two Andrews reports did not materially augment the information that was actually communicated to N3536C or obtained by N3536C based on its own weather observations at Freeway. The only differences between the two Andrews reports and the DCA reports were:
(1) the DCA reports indicated visibility as low as 1.5 miles whereas the Andrews reports indicated visibility as low as 2 miles;
(2) the DCA reports indicated a cloud ceiling as low as 600 AGL formed by broken clouds whereas the Andrews report indicated a cloud ceiling at 500 AGL formed by overcast clouds; and
(3) Andrews reported a scattered cloud layer at 300 AGL at 9:41 am.
It cannot be precisely determined how, or even whether, these descriptions described materially different conditions since the definitions of "broken cloud" and "overcast cloud" ceilings overlap to a certain extent, and the altitudes of reported cloud layers are rounded to the nearest 100 feet. See Stipulation of Facts at ¶ 38. In any event, none of these reports described actual conditions at Freeway, which Alfonso had observed before his second approach from as low as a few hundred feet above ground, which was lower than the cloud ceilings reported at Andrews. In sum, particularly when one factors in what Alfonso knew from his own observations, the Andrews reports would not have added materially to what N3536C already knew about conditions at Freeway before attempting its second missed approach.
In support of their position, Plaintiffs rely on Abrisch v. United States, 359 F. Supp. 2d 1214 (M.D. Fla. 2004), a case that involved weather-based allegations of negligence against air traffic controllers. In Abrisch, the court found the controllers to be negligent because they failed to provide current weather information for the airport at which the plane intended to land. Id. at 1227-28. This case is distinguishable because Freeway did not have any official weather information. Furthermore, Andrews was not N3536C's destination airport. The facts of this case are more analogous to the facts in Bieberle v. United States, 255 F. Supp. 2d 1190 (D. Kan. 2003), where the court also considered contentions similar to those advanced here.
In Bieberle, a plane departed from an uncontrolled airport that lacked weather reporting capability. Id. at 1195. The air controller failed to provide the pilot with weather information from an airport located nine miles away from the point of departure. Id. at 1205. The plane crashed shortly after take off. The plaintiffs argued that the air controller's failure to provide the weather report from the neighboring airport was a proximate cause of the crash. The court concluded, however, that the controller was under no duty to report weather conditions from an airport that was 9 miles away from the airport at which the flight was operating. Id. The court also reasoned that such an omission could not have caused the crash because the airport was not along the plaintiffs' flight route and because the "plaintiffs would not be landing or performing operations there." Id. at 1204. Similarly, the report Alfonso would have received was from an airport at which N3536C was not going to land.
Plaintiffs also rely on their expert's opinion that Alfonso would have diverted or entered a holding pattern had Alfonso known that the cloud ceiling at Andrews had dropped to 500 AGL. In that regard, Plaintiffs' expert has submitted the following opinion:
Alfonso would have greatly benefited from knowledge that weather conditions at Andrews Air Force Base, the closer available weather source, existed at lower altitudes than those found at [DCA], more distant from his location. Had he known the actual weather conditions, a reasonably prudent pilot with the level of training and experience of Alfonso would have asked for an alternate route, alternate airport or reentered a holding pattern. He was precluded from the option of asking the controller for additional services because he lacked crucial information.
Pls.' Opp. Br., Ex. J at 15, ¶ 15. Plaintiffs' expert has also opined that the crash occurred after Alfonso experienced "spatial disorientation" when he entered clouds after the second missed approach and that "Alfonso was placed in this position by the air traffic controllers, who led him to believe that the weather at Washington Ronald Reagan Airport [DCA] would be similar to the weather at Freeway." Pls.' Opp. Br., Ex. J at 15, ¶ 13.
While expert opinions may often satisfy a non-moving party's obligation to raise a triable issue of fact, a speculative theory of causation, even though endorsed by an expert, does not. In Stokes v. Geismar, the court summarized the law on this point as follows:
"If the cause of the event is left to conjecture, guess, or random judgment, the plaintiff cannot recover." An expert witness' endorsement of a wholly speculative theory of causation does not cure the plaintiff's case under Virginia law, or any other law. Courts are, in fact, "particularly wary of unfounded expert opinion when causation is an issue."Stokes v. Geismar, 815 F. Supp. 904, 909 (E.D. Va. 1993) (citations omitted). As the Supreme Court observed in Gen. Elec. Co., v. Joiner, 522 U.S. 136, 146 (1997), "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Id. at 146. A court may conclude that "there is simply too great an analytical gap between the data and the opinion proffered." Gilbert v. Gulf Oil Corp., 175 F.2d 705, 709 (4th Cir. 1949) ("expert testimony may not be received unless it appears that the witness is in possession of such facts as would enable him to express a reasonably accurate conclusion as distinguished from guess or conjecture.").
Based on the record in this case, as discussed above, the opinion of Plaintiffs' expert that the Andrews weather reports, had they been received, would have caused Alfonso or any "reasonable pilot" to divert or enter a holding pattern is simply not sufficiently anchored in fact to be reliable under Rules 702 and 703. See Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987) (ruling that the court may determine reliability and foundation of an expert opinion on summary judgment). Likewise, the record is insufficient to support the factual claim that Alfonso was precluded from asking for additional services from Potomac TRACON because he lacked "crucial" information that would have been supplied by the Andrews Report. There is no evidence that the air traffic controllers said or did anything to lead Alfonso into a false sense of security or to believe that the weather at DCA was comparable to the weather at Freeway. The air controllers did not characterize the DCA reports that were communicated to N3536C nor did they compare conditions at DCA with the conditions at Freeway. There is "simply too great an analytical gap between the data and the opinion proffered" to create a triable issue of fact based on these contentions. Gilbert, 175 F.2d at 709.
In the end, Plaintiffs' weather-based claims are ultimately about the limitations inherent in non-tower controlled airports with no official weather reporting capabilities. Those limitations, however, are not the basis for liability in this case. The Court concludes as a matter of law that Potomac TRACON had no duty to report weather conditions at Andrews and therefore Potomac TRACON was not negligent with respect to the dissemination of weather information to N3536C. The Court also concludes as a matter of law that, even if such a duty existed, the failure to provide the Andrews reports to N3536C was neither a material omission nor a proximate cause of the crash.
2. Diversion of the Aircraft
Plaintiffs claim that the air controllers were negligent because they did not suggest that N3536C engage in a holding pattern or attempt to land at another airport. This duty, Plaintiffs claim, also arises from the "additional services" provision of Paragraph 2-1-1 of the ATC manual. The Government, on the other hand, claims that the manuals do not impose such a duty. Furthermore, the Government argues that the pilot is the person who has control of such decisions and that Alfonso never expressed an intent to either divert or hold. See Def. Br. at 11. The Government also contends that Alfonso was permitted to attempt a second approach and descend to MDA to determine if he had the visual cues necessary for landing. The air traffic controllers, in the Government's view, had no authority to deny Alfonso his requested instrument approach on the basis of weather conditions.
See Def. Br. at 11; see also FAR § 91.175(c).
The controllers were not under a duty to divert N3536C to another airport or suggest that it divert or engage in a holding pattern. Paragraph 4-7-8 of the ATC manual requires controllers to "issue appropriate instructions to the aircraft to hold or proceed to another airport" when the "arriving aircraft reports [that] weather conditions are below his/her landing minima." FAA Order 7110.65R at ¶ 4-7-8. The accompanying note to Paragraph 4-7-8 states that the "[d]etermination that existing weather/visibility is adequate for approach landing is the responsibility of the pilot/aircraft operator." Id. This language conditions a controller's duty to instruct an aircraft to divert or hold on the pilot's reporting that conditions in the sky do not permit a landing. See Redhead v. United States, 686 F.2d 178, 183 (3d Cir. 1982) ("[D]ecisions that depend upon conditions known in detail only by the pilot must be made by him.").
The record establishes that Alfonso was a very experienced pilot. There is no evidence in the record that suggests that Alfonso thought he was at risk or that he had inadequate weather information for the purposes of deciding whether to land, divert or hold. There is also no evidence that Alfonso ever suggested to Potomac TRACON that he had any doubts about whether he should attempt the second missed approach or that weather conditions were too severe for landing. He requested a second landing approach after observing the weather at Freeway on his first approach. A finding that Alfonso would have changed his mind had Potomac TRACON, which was thirty miles away, advised a diversion would be speculative and cannot be inferred from the facts. Instead, the evidence points to the contrary conclusion; Alfonso and Seuter thought that conditions in the air were acceptable for the second approach. There is no evidence that Potomac TRACON had information that conditions at Freeway were too severe for landing. As a matter of law, the Court finds that no duty existed on part of the controllers to divert N3536C or suggest that the plane divert or engage in a holding pattern.
3. Notification of Altitude Deviations
Plaintiffs also argue that Potomac TRACON should have alerted N3536C that it had deviated from its assigned altitude at various points during both of its approaches to Freeway. See Pls.' Opp. Br. at 6; see id., Ex. B at 3-4.
The Government contends that there was no obligation to alert N3536C of any deviations less than 300 feet, and that with one exception, all of the deviations were less than 300 feet and did not trigger any obligation to notify N3536C. See Def. Br. at 14. With respect to the one instance where N3536C deviated more than 300 feet from an assigned altitude, the Government contends that it occurred more than twenty minutes before the crash and therefore could not have been a cause of the crash. Id. at 14-16. In reply, Plaintiffs contend that N3536C's overall pattern of altitude deviations should have suggested to Potomac TRACON that N3536C's altimeter may have been malfunctioning and that the pilots were not in adequate control of the aircraft. According to Plaintiffs, this possibility should have prompted intervention on the part of the controllers. Pls.' Opp. Br. at 6.
The record establishes the following:
• During the first missed approach, at points more than 10 miles from Freeway, N3536C, with authorization to descend to 2,000 feet, descended at points to altitudes of 1,800 and 1,900 MSL. Between the 10 mile point (known as "CUKAT") and the 5 mile point from Freeway (known as "BOKVE"), with authorization to descend to 1,800 MSL, N3536C descended to altitudes between 1,500 and 1,800 MSL. The two instances when N3536C descended 300 feet below the assigned altitude of 1,800 MSL occurred at approximately 9 and 7 miles from Freeway and at least 20 minutes before the crash and before N3536C began its second attempted landing. See Def. Br., Ex. 11 (Slide 6).
• During the second missed approach, and before reaching CUKAT, N3536C had authorization to maintain 2,000 MSL. N3536C had at times an altitude of 1,900 MSL. Between CUKAT and BOKVE, with authorization to descend to 1,800 MSL, N3536C descended to altitudes of 1,700 and 1,600 MSL. Def. Br., Ex. 11 (Slide 10).
Potomac TRACON had no duty to alert N3536C of any altitude deviations of less than 300 feet. Whether Potomac TRACON had a duty to alert N3536C of its brief deviations of 300 feet or greater depends on a variety of considerations, including whether a reasonable air controller should have observed those deviations. The Court finds, however, that the controllers' failure to notify N3536C of any brief altitude deviations during its first approach was not a proximate cause of the crash that occurred after its second approach.
Plaintiffs have implied that N3536C's altimeter may have malfunctioned and that Potomac TRACON's failure to detect the problem may have caused the plane to crash. See Pls.' Opp. Br. at 6. There is nothing in N3536C's overall flight pattern to suggest that Alfonso was not in control of his aircraft or that N3536C's altimeter may have malfunctioned. After taking off from Warrenton at approximately 8:45 am, Potomac TRACON confirmed, as required, N3536C's altitude at 3,000 MSL. Stipulation of Facts at ¶ 81. Potomac TRACON issued altimeter readings to N3536C several times during the flight. Nothing in the record suggests that these readings were not received or were disregarded. See id. at ¶¶ 80, 111, 112, 127. N3536C established, as required, a MDA of 700 feet MSL before descending further on both approaches. Plaintiffs have failed to identify facts that imposed a duty on Potomac TRACON to depart from its standard procedures under the ATC Manual based on the possibility that N3536C's altimeter was malfunctioning.
Based on the above, the Court concludes that Potomac TRACON's failure to notify N3536C of any altitude deviations was not a proximate cause of the crash.
4. Maintaining Radio Contact with N3536C
Plaintiffs also argue that Potomac TRACON breached a duty to maintain N3536C on the ATC frequency during and after its second missed approach. Plaintiffs contend, with supporting expert opinions, that Potomac TRACON's duty to maintain radio communication with N3536C arises from Paragraphs 5-9-4.c (Terms), 5-9-2 (Final Approach Course Interception), 5-9-4.d (Arrival Instructions Note) and 5-9-5 (Approach Separation Responsibility) of the ATC manual. See Pls.' Opp. Br. at 14, Ex. B (Expert Report of Richard P. Burgess) at 3; Pls.' Opp. Br., Ex. L (Rigler Deposition) at 157-59 (opining generally that the continued services and monitoring of N3536C during the second approach and landing would have been of great benefit to the pilots under the circumstances.).
The Government argues that the controller had no duty to keep N3536C on the ATC frequency until landing. Indeed, the Government emphasizes that Potomac TRACON authorized the switch to the advisory frequency so that N3536C could receive potentially critical information about Freeway. See Def. Br. at 18-20. Furthermore, the Government argues that Paragraph 5-9-4.c of the FAA manual, on which Plaintiffs and their experts rely to infer a duty, does not apply to airports without operating control towers.
None of the sections of the Manuals relied on by Plaintiffs and their experts requires or even suggests that Potomac TRACON had a duty to maintain radio communication with N3536C during its second landing attempt. Pilots are instructed to switch to the common frequency as soon as practicable when approaching a non-towered airport for a variety of reasons related to public safety. The Aeronautical Information Manual ("AIM"), an FAA-published document that contains basic flight information and procedures, instructs pilots to "make an expeditious change to the [common frequency] and employ the recommended traffic advisory procedures" when operating under IFR conditions. AIM at ¶ 4-1-10.a. The AIM also informs pilots that "[t]he key to communicating at an airport without an operating tower is selection of the correct common frequency," AIM at ¶ 4-9-1.b, and that inbound pilots "should monitor and communicate as appropriate on the designated [common frequency] from 10 miles until landing." AIM at ¶ 4-1-9.c. Pilots are further advised to "look for other traffic and exchange traffic information" and "transmit/receive on a common frequency for the purposes of airport advisories." AIM at ¶ 4-1-9.a. 1. These "advisories" include weather information. Stipulation of Facts at ¶ 25 (personnel working at the Freeway office, although not certified weather observers, may provide pilots with current unofficial weather information). The advisory frequency at Freeway — the UNICOM frequency — is an incoming aircraft's sole means of communicating with the airport and other aircraft at the airport. Potomac TRACON does not communicate with aircraft on this frequency. Id. at ¶ 23. A transfer to an advisory frequency, such as the UNICOM frequency at Freeway, is necessary so that a pilot may announce to the non-towered airport his presence, position, and the type of approach he intends to make. The transfer is also necessary so that a pilot may obtain information about the status of runways, runway lights and information from other pilots in the area. See AIM at ¶ 5-4-4.d. Potomac TRACON and N3536C followed these frequency transfer procedures. See Stipulation of Facts at ¶ 116.
The only paragraph of the ATC manual that by its terms pertains to maintaining ATC frequency rather than transferring to a local frequency is the Note to Paragraph 5-9-4.d. Paragraph 5-9-4.d states that "at times it will be desirable to retain an aircraft on the approach control frequency to provide a single-frequency approach or other radar services." FAA Order 7110.65R at ¶ 5-9-4.d. The note states that "it will be necessary to relay tower clearances or instructions to preclude changing frequencies prior to landing or approach termination." Id. This note contemplates, however, approaches to towered airports where coordination may be necessary between the approach controller and the tower controller. Freeway does not have a control tower and therefore there were no clearances or instructions to relay.
Paragraph 5-4-4.d of the AIM provides in pertinent part:
When making an IFR approach to an airport not served by a tower or FSS, after ATC advises "CHANGE TO ADVISORY FREQUENCY APPROVED" you should broadcast your intentions, including the type of approach being executed, your position, and when over the final approach fix inbound (nonprecision approach) or when over the outer marker or fix used in lieu of the outer marker inbound (precision approach). Continue to monitor the appropriate frequency (UNICOM, etc.) for reports from other pilots.
AIM at ¶ 5-4-4.d.
For these reasons, this Court cannot credit as a matter of law the opinions of Plaintiffs' expert that Potomac TRACON had a duty to ignore these regulations and maintain N3536C on the ATC frequency during the second missed approach. The applicable regulations required, absent emergency circumstances which were not present here, that N3536C be permitted to transfer to the UNICOM frequency so that it would be in a position to receive critical information from ground observers or other pilots in the area. The transfer to the UNICOM frequency also allowed N3536C to pass on to other pilots approaching Freeway such critical information, including first-hand observations of weather conditions. The standard of care that Plaintiffs' expert seeks to create would have required Potomac TRACON controllers to stay on the ATC frequency and not instruct N3536C to transfer to the UNICOM frequency. Such a standard of care not only may compromise pilot safety, it also in effect creates a new regulation that conflicts with the actual operative regulation. One could easily imagine a well justified complaint had Potomac TRACON not authorized the transfer from the ATC frequency to the UNICOM frequency, thereby foreclosing N3536C's opportunity to receive weather observations from Freeway ground personnel.
This Court finds as a matter of law that Potomac TRACON did not have a duty to maintain radio communication with N3536C during its second approach. The Court also concludes as a matter of law that Potomac TRACON's termination of the ATC frequency was not a proximate cause of the crash. As discussed in the previous section, Potomac TRACON did not have access to weather information that would have materially added to the information already possessed by N3536C before the crash. Potomac TRACON also had no duty to suggest that N3536C divert or enter a holding pattern.
5. Issuance of Safety Alert
Plaintiffs claim that Potomac TRACON should have provided a "safety alert" when N3536C descended 200 feet below the minimum descent altitude of 700 MSL on its second approach. Pls.' Opp. Br., Ex. B (Burgess Report) at 4; Pls.' Opp. Br., Ex. J (Rigler Report) at 13. Paragraph 2-1-6 of the ATC manual directs air traffic controllers to issue a safety alert if aware that an aircraft under ATC control is at an altitude that, in the controller's judgment, places the aircraft in an unsafe proximity to terrain, obstructions or another aircraft. FAA Order 7110.65R at ¶ 2-1-6. In the case of a "Terrain Alert," the controller must immediately issue the alert to the aircraft. Pls.' Opp. Br., Ex. C (Rigler Report) at 11. Under the ATC manual and the AIM, these services are considered "radar services" that are terminated upon instruction to the aircraft to switch to an advisory frequency. FAA Order 7110.65R at ¶ 5-1-13.b ("Radar service is automatically terminated and the aircraft need not be advised of termination . . . 2. An aircraft conducting an instrument, visual, or contact approach . . . has been instructed to change to advisory frequency."); see also AIM at ¶ 5-4-3.b.3 ("radar service is automatically terminated . . . when instructed to change to advisory frequency at uncontrolled airports.").
Paragraph 2-1-6 of the ATC manual provides in pertinent part:
Issue a safety alert if you are aware the aircraft is in a position/altitude, which, in your judgment, places it in unsafe proximity to terrain, obstructions, or other aircraft . . .
. . .
Note-1 The issuance of a safety alert is a first priority (see para 2-1-2, Duty Priority) once the controller observes and recognizes a situation of unsafe aircraft proximity to terrain, obstacles, or other aircraft . . . While a controller cannot see immediately the development of every situation where a safety alert must be issued, the controller must remain vigilant for such situations and issue a safety alert when the situation is recognized.
The Government contends that at the time N3536C descended below the minimum descent altitude of 700 MSL during the second missed approach, it had already switched to the UNICOM frequency and that Potomac TRACON therefore did not have the duty or ability to issue a safety alert. See Def. Br. at 21. The Government further contends that there was nothing about N3536C's descent below the minimum descent altitude that would have triggered an obligation to issue a safety alert. See id.
In this case, N3536C had already switched to the advisory frequency more than five miles from Freeway during the second missed approach. Radar service had therefore been properly and automatically terminated at the time that N3536C descended to 500 MSL. This occurred when N3536C was approximately 2 miles from the runway. Thus, the air controllers no longer had the ability to issue any alerts. Furthermore, under applicable regulations, Alfonso was permitted under certain circumstances to descend below the minimum descent altitude. See 14 C.F.R. § 91.175(c) and (e). Accordingly, there was nothing necessarily improper about N3536C's descent to 500 MSL that should have prompted air controllers to issue a safety alert even had they maintained their ability to do so.
Plaintiffs' expert agreed that the use of radar was the only manner in which the controller could have determined that N3536C was in unsafe proximity to land. See Def. Br., Ex. 2 (Burgess Deposition) at 59:23-60:5.
6. Failure to Instruct N3536C to Follow Missed Approach Procedures Following the Second Missed Approach
Plaintiffs also contend that Potomac TRACON was required to instruct N3536C to climb to 2,000 feet in accordance with the missed approach procedure following its second missed approach. The record establishes that N3536C reappeared on Potomac TRACON's radar following its second missed approach. Plaintiffs claim that if Potomac TRACON had instructed N3536C to execute the applicable missed approach procedure rather than allow it to continue its circling maneuver, N3536C would not have crashed. Supporting this theory are Plaintiffs' two experts.
First, Plaintiffs' claim is premised on Potomac TRACON's maintaining N3536C on the ATC frequency rather than approving its transfer to the UNICOM frequency. For the reasons previously discussed, Potomac TRACON had no duty to maintain N3536C on the ATC frequency. When N3536C switched to the UNICOM frequency, Potomac TRACON lost its ability to instruct N3536C and N3536C did not reestablish contact with Potomac TRACON following the second missed approach. Since there was no duty to maintain N3536C on the ATC frequency during the second attempted landing, Potomac TRACON's failure to instruct N3536C to execute the missed approach procedure cannot be a basis for liability. Similarly, there was nothing foreseeable about N3536C's actions after the second missed approach that should have caused Potomac TRACON to maintain N3536C on the ATC frequency. N3536C had properly executed the first missed approach procedure. There is nothing in the record to suggest that Alfonso would act in an irresponsible, negligent or reckless manner in the event of a second missed approach. In fact, according to Plaintiffs' expert, Alfonso's conduct may have complied with applicable regulations and procedures. See Pls.' Opp. Br., Ex. H (Rigler Deposition) at 166-67. For these reasons, this Court finds as a matter of law that Potomac TRACON did not breach any duty to N3536C following the second missed approach.
V. CONCLUSION
Based on the undisputed facts in this case, this Court concludes as a matter of law that, with the one possible exception discussed in Section IV.B.3, the air controllers did not breach any duties owed to the pilots of N3536C; but that in any event, none of the allegedly negligent acts or omissions of the air controllers was a proximate cause of the crash. For these reasons, the Government's Motion for Summary Judgment is GRANTED.
An appropriate Order, dated March 20, 2009, has been issued.