Badilla v. Midwest Air Traffic Control Serv., Inc.

• Decision Date: 09 August 2021
• Docket Number: August Term, 2020,Docket No. 20-608-cv
• Citation: 8 F.4th 105
• Parties: Jessica T. BADILLA, Consorcia A. Castillo, and Acea M. Mosey, Erie County Public Administrator, as Co-administrators of the Estate of Bernardo G. Castillo, Deceased, Josephine R. Elbanbuena, and Acea M. Mosey, Erie County Public Administrator, as Co-administrators of the Estate of Wilo M. Elbanbuena, Michelle S. Medina, and Acea M. Mosey, Erie County Public Administrator, as Co-administrators of the Estate of Nilo T. Medina, Deceased, Nela A. Padura, and Acea M. Mosey, Erie County Public Administrator, as Co-administrators of the Estate of Eduardo P. Padura, Deceased, Ingrid S. Bulos, and Acea M. Mosey, Erie County Public Administrator, as Co-administrators of the Estate of Henry Beltran Bulos, Deceased, Acea M. Mosey, Erie County Public Administrator, as Co-administrators of the Estate of Rene Badilla, Deceased, Plaintiffs-Appellants, v. MIDWEST AIR TRAFFIC CONTROL SERVICE, INC., a Kansas Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

8 F.4th 105

Jessica T. BADILLA, Consorcia A. Castillo, and Acea M. Mosey, Erie County Public Administrator, as Co-administrators of the Estate of Bernardo G. Castillo, Deceased, Josephine R. Elbanbuena, and Acea M. Mosey, Erie County Public Administrator, as Co-administrators of the Estate of Wilo M. Elbanbuena, Michelle S. Medina, and Acea M. Mosey, Erie County Public Administrator, as Co-administrators of the Estate of Nilo T. Medina, Deceased, Nela A. Padura, and Acea M. Mosey, Erie County Public Administrator, as Co-administrators of the Estate of Eduardo P. Padura, Deceased, Ingrid S. Bulos, and Acea M. Mosey, Erie County Public Administrator, as Co-administrators of the Estate of Henry Beltran Bulos, Deceased, Acea M. Mosey, Erie County Public Administrator, as Co-administrators of the Estate of Rene Badilla, Deceased, Plaintiffs-Appellants,

v.MIDWEST AIR TRAFFIC CONTROL SERVICE, INC., a Kansas Corporation, Defendant-Appellee.^*

Docket No. 20-608-cv

August Term, 2020

United States Court of Appeals, Second Circuit.

Argued: December 1, 2020

Decided: August 9, 2021

Thomas Routh, Nolan Law Group, Chicago, IL (Michael S. McArdle, Nolan Law Group, Chicago, IL, Howard B. Cohen, Gross Shuman Brizdle & Gilfillan, P.C., Buffalo, NY, Kenneth Goldblatt, Goldblatt & Associates, Mohegan Lake, NY, on the brief), for Plaintiffs-Appellants.

John P. Freedenberg, Goldberg Segalla LLP, Buffalo, NY for Defendant-Appellee Midwest Air Traffic Control Service, Inc., a Kansas Corporation.

Before: SACK, CHIN, and LOHIER, Circuit Judges.

SACK and LOHIER, Circuit Judges:

In October 2010, a civilian flight ("Flight 662") crashed into a mountain near Kabul Afghanistan International Airport ("KAIA"), killing all on board. The estates of the crew members and pilots of Flight 662 brought state-law wrongful death claims against Midwest Air Traffic Control Service, Inc. ("Midwest") and others, alleging in relevant part that a Midwest air traffic controller had negligently provided instructions to Flight 662's pilot that put the flight on a collision course with mountainous terrain surrounding KAIA.

Following discovery, the District Court (Frank P. Geraci, Chief Judge ) granted Midwest's motion for summary judgment on the grounds that (1) the Plaintiffs-Appellants’ claims against Midwest, a military contractor, were preempted by the combatant activities exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq. ; and (2) Midwest neither had a duty to provide "terrain separation" for the flight nor proximately caused the accident. For the reasons set forth below, we VACATE the District Court's judgment and REMAND for further proceedings consistent with this opinion.

BACKGROUND¹

I

In October 2010, Midwest provided air traffic control services at KAIA, which had been designated as a civilian airport. Both KAIA and its air traffic control tower belonged to the Ministry of Transportation and Civil Aviation of the Islamic Republic of Afghanistan. At the time, the air traffic flying into and out of KAIA consisted of a "mix" of civilian, combat, and combat-support operations. Insurgents regularly attacked the airport.

Although the airport and control tower belonged to Afghanistan, the North Atlantic Treaty Organization ("NATO") supervised the tower, largely for the purpose of training Afghan civilians as tower controllers. The Afghan and NATO controllers primarily trained and operated the tower during the day. Midwest personnel took over the tower's air traffic control operations at night and were not responsible for training the Afghan civilian controllers.

The KAIA air traffic control tower was equipped with a radar presentation that was used as a visual aid for the purpose of sequencing aircraft. However, the KAIA tower lacked equipment that would alert an air traffic controller to an aircraft's proximity to terrain, such as the mountains that surround the airport.

Midwest operated at KAIA as an approved subcontractor for a prime contract with the U.S. military. The prime contract obligated Midwest to "provide all personnel, supervision, logistics support, and other items necessary to perform [air traffic control] services as defined in this [statement of work]." App'x 1946. The contract further required that "[a]ll work performed by the Contractor in support of this [statement of work] shall be in accordance with applicable Federal Aviation Administration (FAA) or International Civil Aviation Organization (ICAO) standards and Department of Defense (DoD) regulations as applicable." App'x 1946.²

Midwest's tower controllers at KAIA reported to the senior air traffic control officer and his deputy, both of whom were United States Air Force officers. For example, in September 2010, after a Midwest employee raised a staffing issue with his employer rather than with the military officers responsible for the tower's operations, the senior air traffic control officer emailed the chief executive of Midwest stating: "Please advise all [Midwest] tower controllers on the ground here at KAIA that [although] personnel ... issues [may be directed to a Midwest manager], ALL operational issues WILL BE DIRECTED to/through myself or [the deputy] first." App'x 268. In response, Midwest's chief executive confirmed that, while Midwest controllers needed to advise their Midwest supervisors about all issues that arose, the controllers had been instructed to direct all operational issues to the senior air traffic control officer and that there was no question that the senior officer was "in charge at the tower." App'x 266.

Midwest personnel directed air traffic around KAIA pursuant to a hierarchy of rules and regulations. Documents or instructions issued by the senior air traffic control officer or his deputy controlled. In the absence of such guidance, the local operating procedures for KAIA applied. If the local operating procedures did not address an issue, then the standard operating procedures for KAIA applied. If the standard operating procedures were silent, then the Afghanistan Aeronautical Information Publication ("AIP") applied. And, finally, if a procedure was not covered by the AIP, then the ICAO standards for air traffic management applied. App'x 999–1000.

The standard operating procedures provided that KAIA air traffic controllers were "responsible for providing safe, orderly and expeditious control to all aircraft operating" in KAIA-controlled airspace. App'x 1364. The AIP classified the area within 6 nautical miles surrounding KAIA and up to 9,500 feet above sea level as "Class D" airspace for which the KAIA control tower was responsible. The AIP further provided that the "[u]ltimate responsibility for aircraft and terrain avoidance rests with the pilot in command." App'x 1458. The ICAO similarly provided that, for flights conducted in accordance with visual flight rules, "[t]he objectives of the air traffic control service ... do not include prevention of collision with terrain." App'x 1688.

II

On October 12, 2010, after sunset at about 14:50 UTC or 7:20 p.m. local Afghanistan time, Transafrik International Flight 662 departed the U.S. Bagram Air Base, some thirty miles north of Kabul, Afghanistan, for KAIA, located just north of Kabul city. The plane was a Lockheed model L-100 cargo aircraft, registered to Transafrik in Uganda and leased to National Air Cargo ("NAC"), an American airline that flies chartered cargo planes. As was typical for Transafrik-NAC cargo flights, there were eight people on board, including the six plaintiffs-decedents: the pilot, Captain Henry Bulos; the co-pilot, former Philippines air force general Rene Badilla; and crew members Bernardo Castillo, Wilo Elbanbuena, Nilo Medina, and Eduardo Padura—all of whom were Transafrik employees and residents of the Philippines.

The crew had already flown on that plane several times that day; the Bagram-to-KAIA flight was the last sortie scheduled for the day, with the crew and plane—likely empty of cargo—returning to their base of operations in Kabul. However, the plane had problems with some of its avionics equipment, according to an email that another Transafrik pilot, Michael Terrell, had sent three days earlier to others at Transafrik, including Captain Bulos. Terrell described the terrain avoidance warning system as inoperable. Normally, the terrain avoidance warning system would display a topographic map and indicate the plane's position relative to the surrounding terrain, with the map showing red when the plane was at a dangerous relative elevation. This plane's terrain avoidance warning system did not present such a display. The plane also lacked or had an inoperable ground proximity warning system, which, when working, sounds an alarm to alert the cockpit that the plane is in dangerous proximity to an obstacle. Terrell's email also reported that the traffic collision avoidance system, designed to help the plane avoid collisions with other aircraft, worked only sporadically. There is no evidence that Transafrik resolved any of these issues in the days following Terrell's email; it appears to have been the airline's practice to keep a plane in operation until new parts could be installed. There is also no evidence that Midwest personnel, including those working in the control tower on the evening in question, were aware of any of these issues with the plane's avionics.

Kabul, KAIA, and the Bagram Air Base are located in a mountainous region in or near the Hindu Kush mountain range. Bagram's elevation is about 4,860 feet above sea level while KAIA, to its south, is some two thousand feet higher. Kabul has been described as lying within the "bowl" of its surrounding mountains. Gregory Scott Adams Dep. at 83, App'x 519.

While the city itself may be well-lit at night, the nearby mountains "are all jet black." Michael Terrell Dep. at 105, App'x 726. As one witness described the terrain:

Most of the world, there would be lights all over the place, even on mountains

...