Joseph Turturro v. United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 14-3834
______________
JOSEPH N. TURTURRO, ADMINISTRATOR OF THE
ESTATE OF ADAM B. BRADDOCK, DECEASED;
CHARLES ANGELINA, INDIVIDUALLY AND AS
PERSONAL REPRESENTATIVE OF THE ESTATE OF
CHARLES ANTHONY ANGELINA, DECEASED;
VIRGINIA ANGELINA, INDIVIDUALLY AND AS
PERSONAL REPRESENTATIVE OF THE ESTATE OF
CHARLES ANTHONY ANGELINA, DECEASED,
Appellants
v.
UNITED STATES OF AMERICA,
FEDERAL AVIATION ADMINISTRATION;
AGUSTA AEROSPACE CORPORATION
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 2-10-cv-02460)
Honorable R. Barclay Surrick, District Judge
______________
Submitted under Third Circuit LAR 34.1(a)
October 6, 2015
BEFORE: SHWARTZ, KRAUSE, and GREENBERG, Circuit Judges
(Filed: October 9, 2015)
______________
OPINION*
______________
GREENBERG, Circuit Judge.
I. INTRODUCTION
These consolidated cases arise out of a tragic airplane crash at Northeast
Philadelphia (“the airport”) Airport that resulted in the death of flight student Charles
Angelina and his instructor Adam Braddock. The crash occurred when Angelina’s and
Braddock’s Grumman AA-1C airplane (the “Grumman”) stalled while making a right
turn during departure. Decedents’ estates brought suit for negligence against both the
United States of America as air traffic controller (“ATC”) and Agusta Aerospace
Corporation (“Agusta”), which owned an Agusta 139 helicopter that was departing from
the airport at the same time as the Grumman. Plaintiffs claim that ATC breached its duty
of care by clearing the Agusta helicopter for a westerly departure in the direction of the
Grumman’s operation and then suddenly and urgently instructing the Grumman to turn
right, placing it on a potentially conflicting path with the Agusta; they claim that the
Agusta pilots breached their duties of care by making the westerly departure and
inadequately communicating their intentions. Although the Grumman and the Agusta did
not come close to colliding, plaintiffs claim that defendants’ conduct caused Angelina to
____________________
*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
experience an involuntary startle reaction when he saw the Agusta, leading him to lose
control of the Grumman. Defendants each moved for summary judgment, and the
District Court granted the motions on August 22, 2014. Because plaintiffs did not
produce sufficient evidence that the Agusta pilots breached any duty of care or that
Angelina actually experienced the alleged startle reaction, we conclude that plaintiffs,
now appellants, cannot support their claims against either defendant and therefore we will
affirm the order for summary judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The crash occurred at approximately 11:58:05 A.M. on May 22, 2008, at the
airport. The airport houses several flight training schools and has two intersecting
runways: Runway 33 which runs to the northwest at 330 degrees, and Runway 24 which
runs to the southwest at 240 degrees. Agusta’s facility and the Federal Aviation
Administration (“FAA”) Air Traffic Control Tower are both located around midfield, to
the east of the intersection of the two runways.
The Grumman AA-1C is a small, two-seat airplane, and the Agusta 139 is a much
larger, fifteen-seat helicopter. Angelina was operating the Grumman from the left seat,
while Braddock was in the right seat. They were practicing touch-and-go takeoffs and
landings on Runway 33. At that time Agusta company pilot Steven Farr and his customer
trainee pilot Alan Baldwin were in the Agusta, preparing to depart on a training flight to
Lancaster, Pennsylvania, to the west of the airport.
Local controller Jennifer Richburg at the airport took over responsibility for active
runways about five minutes before the crash, at 11:53:04 A.M., facing a “light to
moderate” air traffic load. J.A. 798. She almost immediately began having trouble. The
Air Traffic Control Manual (“ATCM”) provides that when communicating with aircraft,
ATC should use an identification prefix such as the aircraft’s type, model, or
manufacturer’s name, followed by the last three digits or letters of the aircraft’s
registration number. ATCM §§ 2-4-9.a., 2-4-20.a.1. J.A. 814-15. For example, the
Grumman, which had registration number N9555U, would be referred to as “Grumman
55U.” Plaintiffs’ ATC expert, Richard P. Burgess, explained that the purpose of these
ATCM provisions “is to avoid confusion caused by just using only numbers and also to
identify the type aircraft for other traffic in the pattern or airport traffic area.” J.A. 973.
Throughout the period leading up to the crash, however, Richburg referred to aircraft
based on identification prefix or its registration number.
There was an additional problem because Richburg gave instructions to the wrong
aircraft and then misidentified another aircraft. First, after the Grumman pilots requested
a left downwind touch-and-go, she directed, “55U altitude and speed permitting make
right traffic runway 33.” J.A. 1441. After the Grumman pilots pointed out the error in
this instruction, Richburg corrected herself: “55U disregard that call[;] correction 76M
make right traffic runway 33.” J.A. 1441. Richburg made a further error because she
incorrectly identified an aircraft called a Caravan as a Cheyenne, a different aircraft.
At 11:56:06 A.M., the Agusta pilots requested a “westerly departure.” J.A. 1443.
The wind at the time was blowing at eight knots from a northwest direction of 330
degrees, a significant fact because aircraft should take off into the wind. Indeed, one of
the plaintiffs’ experts, Vernon Albert, testified that “aircraft are supposed to take off and
land into the wind,” J.A. 1685, and that “as far as wind direction, [the Agusta pilots’
requested takeoff] was probably appropriate.” J.A. at 1687. After the Agusta pilots
requested the westerly departure, Richburg momentarily held them due to the Grumman’s
intended departure on Runway 33 and asked the Agusta pilots if they had “that
Grumman” in sight. J.A. 1444. When the Agusta pilots confirmed that they did,
Richburg informed them that “that Grumman will be in a left downwind departure” and
cleared the Agusta to “proceed on course” with its departure. J.A. 1444.
The Agusta took off and began moving to the northwest while the Grumman
began its climb for its “left downwind departure” on Runway 33. Suddenly, Richburg
directed, “55U make right traffic.” J.A. 1444. Unlike in an earlier instruction, she did
not use the phrase “altitude and speed permitting” at this time. Burgess testified that the
timing of the instruction and the sound of Richburg’s voice conveyed a sense of urgency.
J.A. 1029-30. As a result, Angelina immediately commenced a right-hand turn, a move
that surprised the Agusta pilots as they had not heard Richburg change her directions to
the Grumman. Albert noted that this missed transmission by the Agusta pilots may have
indicated that they were not aware of the situation, although he acknowledged that a
single missed call generally does not reflect such a loss of situational awareness. Another
of plaintiffs’ experts, Carlos Diaz, a medical doctor, testified that a pilot reasonably might
not hear a communication between ATC and another aircraft due to other factors
requiring the pilot’s attention, including operation of the pilot’s own aircraft as well as
the pilot’s own communications with ATC. Burgess added that other pilots could have
missed this particular transmission because by referring to “55U” without using the prefix
“Grumman,” “it’s questionable . . . whether the other pilots would know exactly what
airplane [Richburg was] talking about.” J.A. 1029.
Upon seeing the Grumman begin its right-hand turn, Baldwin uttered “what the
F,” J.A. 1385, and the Agusta pilots immediately executed a maneuver called a “quick
stop” to prevent the two aircraft from “converging on each other” if they each continued
on their respective paths. J.A. 745, 838. The Grumman, however, banked too far to the
right, stalled, and crashed into the ground, killing both Angelina and Braddock.
At the time of the accident, Agusta and the airport were developing a Letter of
Agreement (“LOA”) to facilitate Agusta helicopter departures to the east and south, away
from the two active runways. The LOA provided that Agusta pilots would request such
departures “[u]nless otherwise coordinated” by the pilot and ATC. J.A. 1367. Although
the LOA was not yet in effect at the time of the crash, on request Agusta helicopters at
that time could utilize similar eastern and southern routes. Furthermore, the helicopters
could turn and depart in such directions even if the wind required them to take off to the
north or west.
Different witnesses offered different meanings of the Agusta pilots’ request for a
“westerly” departure, ranging from within five degrees of due west (270 degrees) to
anywhere up to due north (360 degrees). Plaintiffs’ ATC experts opined, however, that
the Agusta’s northwest departure complied with the clearance that it received: Burgess
testified that from an ATC perspective, the Agusta pilots did nothing wrong based on
“the clearance that they received and how they responded,” J.A. 1700, and another
plaintiffs’ expert, Joseph Gramlich, testified: “Based on an air traffic control perspective,
no, I did not see anything wrong from the Agusta pilots.” J.A. 471. Plaintiffs’ accident
reconstruction expert, Douglas Stimpson, likewise testified that the Agusta pilots’
northwest departure was “within their ATC instructions.” J.A. 446. Finally, plaintiffs’
pilot expert, John L. Suchocki, testified that the Agusta pilots complied with their duties
under the Federal Aviation Regulations (“FARs”) and that they did not do anything
wrong on the day of the accident. J.A. 455. In addition, Richburg testified that she saw
no problem with the Agusta pilots’ request for a westerly departure or their taking off to
the northwest after receiving clearance.
When Baldwin took off he intended to turn the Agusta even further to the right
and fly parallel with Runway 33 to give the Grumman space for its touch and go on
Runway 33. Plaintiffs’ pilot and accident reconstruction expert, Donald E. Sommer,
noted in his report that the Grumman pilots “would have been aware that a westerly
departure from the location of the Agusta could well have included an initial turn to the
north around the departure end of runway 33,” consistent with normal operations at the
airport. J.A. 1510. Baldwin ultimately did not make the additional turn north as the
crash occurred before the Agusta was “near close enough to get going.” J.A. 1387.
Sommer estimated that the Agusta was 2,678 feet from the Grumman when
Richburg gave the direction to “make right traffic” and 2,627 feet from the Grumman
when it stalled. J.A. 1747. Based on Sommer’s reconstruction, the Agusta had not yet
reached Runway 24. Although he testified that the Agusta could have collided with the
Grumman if the two aircraft had continued on their paths, Sommer conceded that “there
[was] no collision hazard with the Grumman” provided the Agusta stopped, which it did.
J.A. 1744. Albert opined that the Agusta was closer to 1,000 feet from the Grumman
based on the ability of the Agusta pilots to describe the angles at which the Grumman
banked, but he later acknowledged that he might have been underestimating the distance
and would acquiesce to the Agusta pilots on that point. Furthermore, Albert testified that
even a distance of 1,000 feet between the aircraft would not have created an emergency.
Nevertheless, plaintiffs contend that the cause of the crash was Angelina’s
involuntary startle reaction when he saw the Agusta. They contend that this reaction
caused him to pull back on the yoke and stall the aircraft. Plaintiffs relied on expert
testimony from Diaz, who described the “startle response” as an unreasoned, involuntary
brainstem reflex that often results in a “jerking, rapid movement of the voluntary
muscles, such as rapid flexion of the arms or clenching of the hands.” J.A. 1117. Diaz
explained that any stimulus perceived as a threat, no matter how small or unlikely the
threat may seem upon conscious reflection, may cause a startle response which is an
unreasoned reflex. J.A. 1144. Diaz ultimately opined that the Grumman stalled because
Angelina experienced a startle reaction. Nevertheless, he acknowledged that pilot error
could have caused the stall. J.A. 1145.
Plaintiffs filed suit in the District Court asserting claims of negligence against the
United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80
(“FTCA”), based on federal employees’ performance as ATC and against Agusta under
Pennsylvania law based on the Agusta pilots’ operation of the helicopter. They also
claimed that the Agusta pilots’ operation of the helicopter breached a provision of
Agusta’s lease agreement with the City of Philadelphia requiring it to “observe and
comply with all requirements of the constituted public authorities and with all federal,
state, or local statutes, ordinances, regulations and standards applicable to [Agusta] or its
use of the Premises,” including the FARs. See J.A. 1638.1
Defendants each moved for summary judgment, which the District Court granted
on August 22, 2014, in an exceptionally detailed and thoughtful opinion. Turturro v.
United States, 43 F. Supp. 3d 434 (E.D. Pa. 2014). The Court reasoned in part that
plaintiffs could not show that the Agusta pilots breached any duty of care and that, even
if ATC did commit a breach of a duty of care, plaintiffs’ startle theory of causation rested
on insufficient speculation to support a cause of action. See id. at 452, 458-59. Plaintiffs
appealed to this Court.
III. STATEMENT OF JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction over plaintiffs’ FTCA claims against the
United States pursuant to 28 U.S.C. § 1346(b)(1). It had supplemental jurisdiction over
their state law claims against Agusta pursuant to 28 U.S.C. § 1367. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.
We exercise plenary review over a district court’s grant of summary judgment,
employing the same standard that applied in the district court. Blunt v. Lower Merion
1
Plaintiffs also brought a claim against the United States based on spoliation of evidence,
obstruction of justice, and violation of due process of law. The District Court rejected
this claim and plaintiffs do not challenge that ruling on this appeal.
Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014), cert. denied, 135 S.Ct. 1738 (2015). Under
this standard, “[t]he court shall grant 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). There is a genuine dispute if the evidence is
sufficient for a reasonable factfinder to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). If,
however, the moving party can demonstrate that its opponent has “fail[ed] to make a
showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial,” then the court should
award the moving party summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 2552 (1986). In addressing this question a court must view the evidence
and all reasonable inferences that can be drawn from the evidence in the light most
favorable to the nonmoving party. Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010).
But a mere “scintilla of evidence” in the nonmovant’s favor does not create a genuine
issue of fact. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. Nor may the nonmovant rest
on speculation or conjecture. Jackson v. Danberg, 594 F.3d 210, 226-28 (3d Cir. 2010).
IV. DISCUSSION
Plaintiffs assert claims of negligence against both ATC and Agusta. The FTCA
holds the United States liable in tort for damages “caused by the negligent or wrongful
act or omission of any employee of the Government while acting within the scope of his
office or employment, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b)(1). Inasmuch as all the events in this case
transpired in Pennsylvania, to the extent that this case implicates state law we are
applying Pennsylvania law.
“In Pennsylvania, the general rules of negligence apply to negligence actions
involving airplane crashes.” Remo v. U.S. F.A.A., 852 F. Supp. 357, 365 (E.D. Pa.
1994); see Himmler v. United States, 474 F. Supp. 914, 929 (E.D. Pa. 1979). To
establish negligence under Pennsylvania law, a plaintiff must show that “(1) the
defendant had a duty to conform to a certain standard of conduct; (2) the defendant
breached that duty; (3) such breach caused the injury in question; and (4) the plaintiff
incurred actual loss or damage.” Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa.
2011). In aviation accident cases, federal law preempts state law on the first of these
elements, as federal law provides the standard of care applicable to air safety. Abdullah
v. Am. Airlines, Inc., 181 F.3d 363, 367-68 (3d Cir. 1999). But state law governs with
respect to the other elements of breach, causation, and damages to establish a negligence
claim. See Elassaad v. Indep. Air, Inc., 613 F.3d 119, 125 (3d Cir. 2010).
Plaintiffs have no trouble establishing the first and fourth elements needed to
establish a cause of action for negligence: the existence of a duty to conform to a standard
of care and their ultimate damages. Pilots and air traffic controllers owe concurrent
duties of care over aircraft safety. Rodriquez v. United States, 823 F.2d 735, 746 (3d Cir.
1987); Redhead v. United States, 686 F.2d 178, 182 (3d Cir. 1982). Thus, the dispute
focuses on the second and third elements of a negligence claim: whether defendants
breached their duties of care and, if so, whether the breach was the but-for and proximate
cause of plaintiffs’ damages. A plaintiff carries the burden of proof on each of these
elements. Rice v. Shuman, 519 A.2d 391, 395 (Pa. 1986). Although the issues of breach
and causation ordinarily present questions of fact, a court may decide them as a matter of
law where reasonable minds could not differ as to their resolution. Summers v.
Certainteed Corp., 997 A.2d 1152, 1163 (Pa. 2010) (citation omitted); Emerich v. Phila.
Ctr. for Human Dev., Inc., 720 A.2d 1032, 1044 (Pa. 1998).
We address plaintiffs’ claims against Agusta and ATC in turn. We agree with the
District Court, that the Agusta pilots did not breach their duties and that even if ATC
breached its duties, such breach did not proximately cause plaintiffs’ damages.
A. Claim Against Agusta
Aircraft pilots must comply with the duties set forth in the FARs, which have “the
force and effect of law.” Rodriquez, 823 F.2d at 739. Plaintiffs primarily assert that the
Agusta pilots breached their duties under two FAR provisions: 14 C.F.R. §§ 91.13(a) and
91.111(a). Section 91.13(a) provides generally that “[n]o person may operate an aircraft
in a careless or reckless manner so as to endanger the life or property of another.” 14
C.F.R. § 91.13(a); accord Abdullah, 181 F.3d at 365 (describing this provision as creating
“an overarching general standard of care”). Section 91.111(a) provides that “[n]o person
may operate an aircraft so close to another aircraft as to create a collision hazard.” 14
C.F.R. § 91.111(a). Plaintiffs also assert that the Agusta pilots violated parts of the
Aeronautical Information Manual (“AIM”) and other FAA publications. The FARs
require pilots to know and use relevant portions of the AIM and FAA advisory circulars.
14 C.F.R. § 61.105(b)(3); see Rodriquez, 823 F.2d at 739.
In arguing that the Agusta pilots breached their safety duties, plaintiffs point to
three categories of conduct: (1) the Agusta pilots’ request for a “westerly” departure, in
the direction of two active runways; (2) their failure to clarify that they planned to go
further to the northwest; and (3) their failure to hear Richburg’s direction to the
Grumman to “make right traffic.” We address each of these acts or omissions below and
conclude that, whether considered individually or collectively, they cannot support a
finding that Agusta breached its duties.
First, plaintiffs contend that the Agusta pilots should have requested a departure to
the east or south, which would have directed them away from the active runways and the
flow of fixed-wing traffic. Although the LOA had not yet been implemented at the time
of the crash, plaintiffs emphasize that Agusta helicopters already could seek departures to
the east and south. Plaintiffs, however, have not provided adequate evidence to show that
the Agusta pilots breached their duties by not requesting such a departure.
The undisputed evidence establishes that the Agusta pilots acted properly in
seeking to take off to the west. At the time of takeoff, the wind was blowing from the
northwest at a speed of eight knots, and the record demonstrates that helicopters should
take off into the wind. Section 9-5 of the FAA Rotorcraft Flying Handbook directs pilots
on takeoff to “head the helicopter into the wind, if possible.” J.A. 1750. Several
witnesses echoed this sentiment. Indeed, plaintiffs’ expert Albert testified that “aircraft
are supposed to take off and land into the wind,” J.A. 1685, and that “as far as wind
direction, [the Agusta pilots’ requested takeoff] was probably appropriate.” J.A. at 1687.
Plaintiffs concede the foregoing but argue that after taking off to the west, the
Agusta pilots should have turned the helicopter in a different direction. Although
plaintiffs presented evidence that the Agusta pilots could have executed such a maneuver,
they have not shown that the pilots were required to do so in the circumstances here.
Plaintiffs point to language in AIM § 4-3-17.a.2. that “[i]nsofar as possible, helicopter
operations will be instructed to avoid the flow of fixed-wing aircraft.” J.A. 1484. But the
remainder of that sentence clarifies that the provision’s purpose is “to minimize overall
delays” and that “there will be many situations where faster/larger helicopters may be
integrated with fixed-wing aircraft for the benefit of all concerned.” AIM § 4-3-17. a.2.,
J.A. 1484. Thus, section 9-18 of the FAA Rotorcraft Flying Handbook informs pilots
that “[w]hen a control tower is in operation, you can request the type of departure you
desire. In most cases, helicopter departures are made into the wind unless obstacles or
traffic dictate otherwise.” J.A. 1751.
The Agusta pilots desired to depart to the west in the direction of both the wind
and their destination, Lancaster, Pennsylvania, and traffic did not “dictate” against such a
departure because it was “light to moderate” at the time. J.A. 798. Indeed, even after the
LOA took effect, helicopters could depart in directions besides east and south if, as here,
the pilot and ATC so coordinated. Furthermore, according to plaintiffs’ expert Sommer’s
reconstruction of the accident, the Agusta pilots had not reached Runway 24, let alone
Runway 33, by the time the Grumman lost control and crashed. The mere showing that
the Agusta pilots could have sought a departure away from these runways does not create
a genuine issue of fact as to whether they breached their duties by requesting a different
departure; if it did, such an issue as to breach would arise in each of the “many
situations” where helicopters integrate in the flow of fixed-wing traffic. AIM § 4-3-
17.a.2., J.A. 1484.
Second, plaintiffs argue that the Agusta pilots should have clarified that they
planned to go northwest rather than due west after ATC cleared them for a “westerly”
departure. In support of this argument, plaintiffs emphasize that “[t]he single, most
important thought in pilot-controller communications is understanding.” AIM § 4-2-1.b.,
J.A. 1481. They further note that pilots should “[r]equest[] clarification or amendment,
as appropriate, any time clearance is not fully understood.” AIM § 5-5-2.a.3., J.A. 1486.
In addition, plaintiffs suggest that the Agusta pilots’ unexpressed intention to turn right
and fly further north to parallel Runway 33 violated the AIM provision dealing with
“Unexpected Maneuvers in the Airport Traffic Pattern”: “Should a pilot decide to make
maneuvering turns to maintain spacing behind a preceding aircraft, the pilot should
always advise the controller if at all possible.” AIM § 4-3-5., J.A. 1483.
We realize that according to Sommer’s report, the Grumman pilots “would have
been aware that a westerly departure from the location of the Agusta could well have
included an initial turn to the north around the departure end of runway 33,” consistent
with normal operations at PNE. J.A. 1510. But the Agusta pilots never made the
referenced right turn because the crash occurred before they were anywhere “near close
enough to get going.” J.A. 1387. We do not see how the Agusta pilots could have
violated any communication responsibilities by failing to warn of a maneuver that they
did not make.
Plaintiffs’ other accusations regarding the Agusta pilots’ alleged failure to clarify
their intentions led to different witnesses expressing somewhat varying views on the
meaning of the term “westerly.” But plaintiffs’ own experts opined that the Agusta pilots
responded appropriately to their clearance. Burgess testified that from an ATC
perspective, the Agusta pilots did nothing wrong based on “the clearance that they
received and how they responded.” J.A. 1700. Gramlich testified that “[b]ased on an air
traffic control perspective, no, I did not see anything wrong from the Agusta pilots.” J.A.
471. Stimson likewise testified that the Agusta pilots’ departure to the northwest was
“within their ATC instructions.” J.A. 446. Finally, Richburg, the very individual to
whom plaintiffs suggest that the Agusta pilots should have clarified their intentions,
similarly did not express any problem with the Agusta pilots’ request for a westerly
departure or their taking off to the northwest after receiving clearance. Given these views
of both plaintiffs’ ATC experts and the controller involved, plaintiffs cannot demonstrate
that there was a defect in how the Agusta pilots communicated with ATC.
Third, plaintiffs fault the Agusta pilots for not hearing Richburg’s direction, “55U
make right traffic.” They contend that this missed communication by the Agusta pilots
violated a portion of AIM § 4-2-1.b. which provides that “[p]ilots are to maintain
vigilance in monitoring air traffic control radio communications frequencies for potential
traffic conflicts with their aircraft especially when operating on an active runway.” J.A.
1481.
But the evidence that plaintiffs produced belies the conclusion that this single
missed transmission shows that the Agusta pilots lacked diligence. Cf. Transco Leasing
Corp. v. United States, 896 F.2d 1435, 1447 (5th Cir. 1990) (holding that duty “to
exercise vigilance so as to see and avoid other aircraft” did not create “absolute duty to
see and avoid”), amended on reh’g on other grounds, 905 F.2d 61 (5th Cir. 1990); In re
Greenwood Air Crash, 924 F. Supp. 1518, 1535 (S.D. Ind. 1995) (same). Albert testified
that the mere fact that a pilot missed a single call generally does not reflect the pilot’s
loss of situational awareness. J.A. 1689. Diaz added that a pilot reasonably might not
hear a communication between ATC and another aircraft due to other factors requiring
the pilot’s focus, including operation of the pilot’s own aircraft as well as the pilot’s own
communications with ATC. J.A. 1146. Moreover, after referring to “that Grumman,”
without registration numbers, in notifying the Agusta pilots of the Grumman’s initial left
downwind departure plan, Richburg used the registration numbers alone in redirecting the
Grumman to the right. J.A. 1444. As Burgess explained, such a discrepancy could
justify other pilots in missing the transmission as in the absence of the prefix
“Grumman,” “it’s questionable . . . whether the other pilots would know exactly what
airplane [Richburg was] talking about.” J.A. 1029. Notwithstanding their missing of the
single transmission, the Agusta pilots kept the Grumman in sight and stopped as soon as
the Grumman began to turn right. In these circumstances, plaintiffs cannot demonstrate
that the Agusta pilots lacked vigilance or situational awareness.
Plaintiffs finally argue that the Agusta pilots’ collective conduct violated 14
C.F.R. §§ 91.13(a) and 91.111(a) by bringing them too close to the Grumman. Certainly
pilots violate § 91.13(a) if they engage in careless or reckless conduct that causes
potential, even if not actual, danger. See GoJet Airlines, LLC v. F.A.A., 743 F.3d 1168,
1172 (8th Cir. 2014); Cooper v. Hinson, 109 F.3d 997, 1001 (4th Cir. 1997); Roach v.
Nat’l Transp. Safety Bd., 804 F.2d 1147, 1157 (10th Cir. 1986). Moreover, pilots violate
§ 91.111(a) if they fly so close to another aircraft as to create a collision hazard even if
there is not a collision. See Bennett v. Nat’l Transp. Safety Bd., 66 F.3d 1130, 1135-36,
1138 n.11 (10th Cir. 1995).
Nevertheless, Sommer conceded that “there [was] no collision hazard with the
Grumman” given that the Agusta pilots executed the quick stop. J.A. 1744. Based on
Sommer’s reconstruction of the accident, the Agusta pilots were more than half a mile
from the Grumman and flying slowly when the Grumman received the instruction to
“make right traffic,” and the Agusta traveled only 50 feet closer to the Grumman before
the Grumman pilots lost control. J.A. 1747. Even if we accepted Albert’s speculative
estimate that the Agusta pilots were only about 1,000 feet from the Grumman when they
turned, he acknowledged that even this distance was not so close as to create an
emergency. J.A. 1100. The Agusta pilots’ precautionary decision to execute the quick
stop no more demonstrates that they came so close as to breach their duties under the
FARs than it demonstrates that the Grumman pilots breached these same duties by
making the right turn that more immediately put the two aircraft on potentially
conflicting paths. Cf. Transco, 896 F.2d at 1447 (“Without more, the fact that two
airplanes collide in mid-air in visual meteorological conditions is not evidence of
negligence on the part of both pilots or of negligence on the part of one, but not the other,
pilot.”). Finally, plaintiffs’ own pilot expert, Suchocki, testified that the Agusta pilots
complied with their duties under the FARs and did nothing wrong on the day of the
accident. J.A. 455. Plaintiffs therefore have failed to raise a genuine issue of fact as to
whether the Agusta pilots breached their duty of care.2
B. Claim Against the United States
ATC’s duties mainly derive from the ATCM, FAA Order 7110.65. See
Rodriquez, 823 F.2d at 740; Remo, 852 F. Supp. at 368. As set forth in the ATCM,
“[t]he 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.” ATCM § 2-1-
1., J.A. 811. ATC must also provide other services if “permitted by higher priority duties
and other circumstances.” ATCM, § 2-1-1., J.A. 811. In addition, having assumed the
responsibility of safely organizing the flow of air traffic, ATC owes a duty beyond those
provided for in the ATCM to exercise reasonable care in performing that service. See,
e.g., Zabala Clemente v. United States, 567 F.2d 1140, 1147-48 (1st Cir. 1977); Yates v.
2
In addition to their negligence claim, plaintiffs assert a contract claim against Agusta
based on Agusta’s lease agreement with the City of Philadelphia. Specifically, plaintiffs
contend that Agusta breached the provision of the lease requiring it to “observe and
comply with all requirements of the constituted public authorities and with all federal,
state, or local statutes, ordinances, regulations and standards applicable to [Agusta] or its
use of the Premises,” including the FARs. See J.A. 1638. This claim, however, merely
repackages plaintiffs’ negligence claim under a contract heading and therefore falls under
Pennsylvania’s “gist of the action” doctrine that is designed to prevent such duplicative
claims from arising under both tort and contract law. See Craig v. Amateur Softball
Ass’n of Am., 951 A.2d 372, 377 (Pa. Super. Ct. 2008) (citing Reardon v. Allegheny
Coll., 926 A.2d 477, 486-87 (Pa. Super. Ct. 2007)); Padalino v. Standard Fire Ins. Co.,
616 F. Supp. 2d 538, 549-50 (E.D. Pa. 2008). In any event, plaintiffs cannot demonstrate
that Agusta breached the lease agreement for the same reasons that they cannot show that
Agusta violated any duty of care.
United States, 497 F.2d 878, 883-84 (10th Cir. 1974); Hartz v. United States, 387 F.2d
870, 873-74 (5th Cir. 1968); cf. Indian Towing Co. v. United States, 350 U.S. 61, 69, 76
S.Ct. 122, 126-27 (1955) (“[O]nce [the Coast Guard] exercised its discretion to operate a
light on Chandeleur Island and engendered reliance on the guidance afforded by the light,
it was obligated to use due care to make certain that the light was kept in good working
order; and, if the light did become extinguished, then the Coast Guard was further
obligated to use due care to discover this fact and to repair the light or give warning that
it was not functioning.”). ATC breaches its duty of care if it gives a pilot deficient
instructions upon which the pilot relies. See Rodriquez, 823 F.2d at 740; Yates, 497 F.2d
at 883; Himmler, 474 F. Supp. at 928 (“Where, as here, a pilot places himself in the
hands of the controller and thereafter follows the controller’s suggestions or instructions,
the pilot is entitled to rely upon such information and directions and is not free or
expected to disregard same.”).
We will assume for purposes of this opinion that Richburg breached her duties as
an air traffic controller by suddenly and urgently directing the Grumman to “make right
traffic” after clearing the Agusta to depart in a potentially conflicting direction and
without warning the Grumman pilots of the Agusta’s location. Nevertheless, “an
admittedly negligent act does not necessarily entail liability; rather even when it is
established that the defendant breached some duty of care owed the plaintiff, it is
incumbent on a plaintiff to establish a causal connection between defendant’s conduct
and the plaintiff’s injury.” Hamil v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978); see
Redhead, 686 F.2d at 182. In Pennsylvania, establishing such a causal connection
requires demonstrating both but-for causation and proximate cause. Reott v. Asia Trend,
Inc., 55 A.2d 1088, 1103 (Pa. 2012). We conclude that plaintiffs have not established a
genuine question of fact on the issue of proximate causation.
To prove proximate causation, a plaintiff must show that the defendant’s breach
was a substantial factor in bringing about the plaintiff’s harm. See Powell v. Drumheller,
653 A.2d 619, 622 (Pa. 1995). The plaintiff may rest on circumstantial evidence of such
proximate causation. See Harvilla v. Delcamp, 555 A.2d 763, 764 (Pa. 1989) (opinion
announcing the judgment of the court); Hamil, 392 A.2d at 1285. But the plaintiff may
not rely on speculation and conjecture. See Young v. Commonwealth Dep’t of Transp.,
744 A.2d 1276, 1277 (Pa. 2000); Hamil, 392 A.2d at 1288 n.9 (“A mere possibility of . . .
causation is not enough; and when the matter remains one of pure speculation and
conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the
court to direct a verdict for the defendant.” (quoting Restatement (Second) of Torts §
433B cmt. a (1965)) (internal quotation marks omitted)).
Plaintiffs’ theory of causation is that upon heeding Richburg’s instruction and
turning the Grumman to the right, the sight of the Agusta startled Angelina and caused
him to pull back reflexively on the yoke leading to the aircraft stalling. Plaintiffs point to
Marks v. Mobil Oil Corp., 562 F. Supp. 759, 765-66 (E.D. Pa. 1983) aff’d, 727 F.2d 1100(3d Cir. 1984), and Rich v. Finley, 89 N.E.2d 213, 215 (Mass. 1949), as showing that a
defendant may be liable for causing another individual’s involuntary startle reaction that
results in harm to the plaintiff. Unlike the plaintiffs in those cases, however, plaintiffs
here did not provide reliable evidence that there actually was a startle reaction. Plaintiffs
reason that the Agusta pilots’ surprise at seeing the Grumman turn right and their
execution of a quick stop indicates that Angelina may have experienced a “similar
response” upon seeing the Agusta. Appellants’ br. at 62. But the Agusta pilots’
conscious decision to execute a controlled deceleration maneuver offers inadequate
support to find that Angelina experienced an unreasoned brain stem reflex that led him to
yank back on the yoke and stall his aircraft. In these circumstances, plaintiffs only can
surmise that Angelina had an involuntary startle response upon seeing the Agusta
decelerating from an already slow speed, half a mile away. Even plaintiffs’ accident
reconstruction expert Stimpson stated that “[t]here’s absolutely no way [he] could” say
that the Gruman pilots even observed the Agusta while making the right turn to “a
reasonable degree of certainty.” J.A. 1817. Such speculation regarding the cause of the
crash is an insufficient basis for plaintiffs to avoid summary judgment.
V. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s grant of summary
judgment, entered on August 25, 2014.