Badilla v. Nat'l Air Cargo Inc.

• Decision Date: 14 January 2020
• Docket Number: Case # 12-CV-1066-FPG
• Parties: Jessica T. BADILLA, et al., Plaintiffs, v. NATIONAL AIR CARGO INC., et al., Defendants.
• Court: U.S. District Court — Western District of New York

433 F.Supp.3d 428

Jessica T. BADILLA, et al., Plaintiffs,

v.NATIONAL AIR CARGO INC., et al., Defendants.

Case # 12-CV-1066-FPG

United States District Court, W.D. New York.

Signed January 14, 2020

DECISION AND ORDER

HON. FRANK P. GERACI, JR., Chief Judge

This case arises from an October 2010 airplane crash that occurred near Kabul Afghanistan International Airport. Plaintiffs are the personal representatives of six crew members killed in the crash, who brought suit against several entities alleged to be responsible. See generally ECF No. 95. The only remaining defendant is Midwest Air Traffic Control Service, Inc. ("Midwest"), a government contractor that provided air traffic control services at the airport. Plaintiffs allege that Midwest employed the air traffic controller who negligently instructed the pilot and thereby caused the crash.¹ Id. at 12-13.

Before the Court is the Report & Recommendation ("R&R") of United States Magistrate Judge Jeremiah J. McCarthy, in which he recommends granting Midwest's motion for summary judgment. ECF No. 170. Plaintiffs timely filed their objections to the R&R. See ECF Nos. 174, 176.

When a party makes specific objections to portions of a magistrate judge's R&R, the district court reviews those portions de novo. Loc. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C). An objection must "specifically identify" the portions of the R&R to which the party objects, and provide a "basis for each objection" that is "supported by legal authority." Loc. R. Civ. P. 72(b).

Judge McCarthy granted Midwest's motion for several independently dispositive reasons. Plaintiffs object to each of those reasons. The Court need not address them in detail, however, because each of Plaintiffs' objections is adequately addressed by Judge McCarthy's comprehensive and well-reasoned R&R. It suffices to say that, even after de novo review, the Court agrees with Judge McCarthy's rejection of Plaintiffs' arguments.

Accordingly, the Court ADOPTS Judge McCarthy's R&R (ECF No. 170) and GRANTS Midwest's summary judgment motion (ECF No. 155). The claims against Midwest, and Midwest's counterclaim for indemnification, are DISMISSED. Because this disposes of the only remaining claims, the Clerk of Court shall enter judgment in accordance with this Order and the prior dispositive orders, see ECF Nos. 120, 154, and shall close this case.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

JEREMIAH J. McCARTHY, United States Magistrate Judge

This action arises from the crash of National Airlines Flight 662 (a/k/a TKU662) into a mountain near Kabul Afghanistan International Airport ("KAIA") on October 12, 2010, while en route from Bagram Air Base. Before me is the motion of defendant Midwest Air Traffic Control Service, Inc. ("Midwest ATC") for summary judgment [155], which has been referred to me for preparation of a Report and Recommendation [13].¹ Having reviewed the parties' submissions [155, 162, 165, 166] and heard oral argument on March 21, 2017 [167], I recommend that the motion be granted.

BACKGROUND

Plaintiffs, the alleged personal representatives of six crew members killed in the crash, commenced this action on October 2, 2012 by filing a Summons and Complaint in State of New York Supreme Court, County of Erie [1-3], asserting state law negligence claims.² At the time of the accident, Midwest ATC³ provided certain air traffic control services at KAIA pursuant to a subcontract with Readiness Management Services, LLC ("RMS"), which had a prime contract with the United States military for those services. Midwest ATC's Statement of Material Facts [155-2], ¶¶15, 27, 36. Under the prime contract, RMSW employees were designated "mission essential personnel", and provided "mission critical capabilities supporting joint services military personnel, host nation military, and coalition forces, primarily in the [United States Air Forces Central Command Area of Responsibility]". Id., ¶¶29-30. Correspondingly, Midwest ATC's subcontract was governed by a Task Order, which stated that its air traffic control services at KAIA were in support of "Operation Enduring Freedom", and that those services were "part of an ‘essential contract service’ – therefore [its] personnel are designated as mission essential personnel". Midwest ATC's Statement of Material Facts [155-2], ¶¶36-37; Task Order [155-31], p. 3 of 19.

At the time of the accident, KAIA belonged to the Islamic Republic of Afghanistan and its air traffic control tower was supervised by NATO. Plaintiffs' Counterstatement of Material Facts [162-4], ¶102; Adams deposition transcript [155-13], p. 43. Because there were not enough NATO civilian air traffic controllers, United States Air Force air traffic controllers filled those positions prior to Midwest ATC. Adams deposition transcript [155-13], p. 28.

The main purpose of the air traffic control tower at KAIA was to train Afghans to take over responsibility for the tower. Plaintiffs' Counterstatement of Material Facts [162-4], ¶113. Therefore, there were also Afghans and NATO civilian controllers in the control tower who trained during the day. Adams deposition transcript [155-13], pp. 27-28. At night, Midwest ATC personnel took over operations, but were not responsible for any training. Id., pp. 27-29. Most Midwest ATC controllers were retired United States military members. Id., p. 29. Operational control and direction of the KAIA air traffic control tower came from the senior air traffic controller officer ("SATCO"), a United States Air Force officer. Midwest ATC's Statement of Material Facts [155-2], ¶66; Hazrati deposition transcript [155-10], pp. 17-20 ("Basically SATCO was the boss"); Adams deposition transcript [155-13], pp. 10-11. Under the Local Operating Procedures for KAIA, air traffic services were provided according to the Republic of Afghanistan Aeronautical Information Publication ("AIP") and all related International Civil Aviation Organization ("ICAO") annexes and documents. Midwest ATC's Statement of Material Facts [155-2], ¶43.

Air traffic at KAIA was approximately 25% civil, and the remaining 75% was combat and other operations, including the movement of troops and their supplies. Midwest ATC's Statement of Material Facts [155-2], ¶53. Although KAIA was designated as a civilian airport (Stevenson deposition transcript [155-14], p. 65), the movement of troops and armed combat aircraft were among KAIA's prime missions. Midwest ATC's Statement of Material Facts [155-2], ¶63. It is undisputed that the safe and efficient operation of the KAIA air traffic control tower, a pivotal hub, was central to the combat mission of the United States and NATO. Id., ¶¶54, 62. KAIA was the subject of insurgent attacks on monthly basis. Hazrati deposition transcript [155-10], pp. 25-27; Adams deposition transcript [155-13], p. 53.

The pilot of TKU662, Henry Beltran Bulos, a former Philippine Air Force pilot, was employed by defendant Transafrik since 2000, and had flown in and out of KAIA previously. Bulos deposition transcript [155-16], pp. 51-54; Terrell deposition transcript [155-17], pp. 22, 27, 134. The accident occurred on the last sortie of the day when TKU622 was returning to KAIA without cargo. Terrell deposition transcript [155-17], p. 134. The flight was operating under visual flight rules ("VFR") en route to KAIA (Midwest ATC's Statement of Material Facts [155-2], ¶14), meaning that "[i]t's the responsibility of air crew to see and avoid hazards such as terrain and other aircraft". Adams deposition transcript [155-13], p. 54; Terrell deposition transcript [155-17], p. 13.

Although it was uncommon to have VFR flights after sunset, this was a designation chosen by the pilot. Midwest ATC's Statement of Material Facts [155-2], ¶55; Adams deposition transcript [155-13], p. 55; Terrell deposition transcript [155-17], pp. 14-15. Because KAIA "resides within a ‘bowl’ of mountains" (Midwest ATC's Memorandum of Law [165], p. 14; Terrell deposition testimony [155-17], p. 64 ("it's a bowl, and you sort of go up in all directions to about 14-, 15,000 feet in some cases")), "it is difficult to fly VFR [at] nighttime". Hazarti deposition transcript [155-10], pp. 28-29; Terrell deposition transcript [155-17], pp. 63-64; Adams deposition transcript [155-13], p. 39 ("Flying into Kabul was not a place for amateurs"). However, it is undisputed that when a pilot made a VFR flight into KAIA, it was the responsibility of the pilot and his crew to see and avoid terrain and other aircraft. Midwest ATC's Statement of Material Facts [155-2], ¶56.

TKU662 was equipped with a terrain avoidance warning system ("TAWS"), but the parties dispute whether it was operational. Plaintiffs' Counterstatement of Material Facts [162-4], ¶¶24-25. After TKU662 departed from Bagram for the approximately 10-minute flight to KAIA, Bagram Approach Control instructed Mr. Bulos to "resume own navigation to Kabul" and "maintain VFR". Plaintiffs' Counterstatement of Material Facts [162-4], ¶¶142, 151. Darrell Smith, a retired United States Air Force master sergeant and Midwest ATC employee, occupied the local controller position in the KAIA air traffic control tower⁴ on the evening of October 12, 2010. Midwest ATC's Statement of Material Facts [155-2], ¶¶77, 83. The AIP designated the area of responsibility for local controllers at KAIA as Class D airspace, which encompasses a radius of six nautical miles around KAIA and up to 9,500 feet above sea level. Plaintiffs' Counterstatement of Material Facts [162-4], ¶143. Mr. Smith had a radar presentation available to him that was used as a visual aid for purposes of sequencing, but not as a control aid. Adams deposition transcript [155-13], p. 31. He had no resources available to him in the air traffic control tower that would alert him to the proximity of aircraft to terrain features. Midwest ATC's Statement of Material Facts [155-2], ¶21.

Mr. Smith established radio contact with TKU662 at 14:58:05. Plaintiffs' Counterstatement of Facts [162-4]...