Brown v. United States
| Docket Number | Case No. 3:19-cv-00207-MMD-CSD,Member Case: 3:19-cv-00383-MMD-CSD,Member Case: 3:19-cv-00424-MMD-WGC,Member Case: 3:19-cv-00418-MMD-WGC |
| Decision Date | 26 October 2022 |
| Citation | 637 F.Supp.3d 1140 |
| Parties | Janet BROWN, et al., Plaintiffs, v. UNITED STATES of America, Defendant. And Consolidated Actions and Third Party Action |
| Court | U.S. District Court — District of Nevada |
Mark H. Gunderson, Austin Kent Sweet, John R. Funk, Gunderson, Sweet, and Funk, Reno, NV, for Plaintiffs Janet Brown, Laura Melendez, John Bradley Brown, and Third-Party Defendants Flying Start Aero, LLC, and the estate of Johnny Brown aka John Brown.
Robert J. Gross, Senior Trial Counsel, Ashley E. Dempsey, Trial Attorney, William D. Adams, Trial Attorney, U.S. Department of Justice, Civil Division, Torts Branch, Aviation, Space & Admiralty Litigation Section, Washington, DC, Holly A. Vance U.S. Attorney's Office, Reno, NV, for Defendant United States of America.
John P. Echeverria, Echeverria Law Office, Reno, NV, for Plaintiffs Megan Romo Elliker and the estate of James Elliker.
Ian Herzog, Thomas F. Yuhas, Herzog, Yuhas, Ehrlich & Ardell, A.P.C., Los Angeles, CA, Matthew L. Sharp, Matthew L. Sharp, Ltd., Reno, NV, for Plaintiffs Jocelyn Elliker and Carrie Romo, as the parent and guardian ad litem for B.E.
Daniel Dell'Osso, The Brandi Law Firm, San Francisco, CA, for Plaintiffs Dustin Elliker, Katelynn Hansen.
AMENDED ORDER1
This consolidated case arises from a fatal plane crash at the Reno-Tahoe International Airport ("RNO"). Plaintiffs2 sued the United States of America under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1) and 2671-2680,3 alleging that the negligence of Federal Aviation Administration ("FAA") air traffic controllers at RNO was the sole cause of the crash. The Court held a bench trial (the "Trial"). (ECF Nos. 148-156 (minutes of proceedings); see also ECF Nos. 158-165 (trial transcripts).) The Court makes the below findings of fact and conclusions of law following the Trial. And as further explained below, the Court finds in pertinent part that Plaintiffs failed to establish by a preponderance of the evidence that the air traffic controllers' negligence caused the crash. To the contrary, the government proved that the pilot's negligence caused the crash by a preponderance of the evidence and that the air traffic controllers did not breach their duty of care. The Court accordingly will direct judgment in the government's favor.
The Court makes the following findings of fact based on the testimony and other evidence admitted during the course of the Trial,4 along with the pre-trial and post-trial briefing the parties filed in this case.5
1. The plane that crashed was a Beechcraft A-36 Bonanza (Registration No. N985CA). (ECF No. 115 at 3.)
2. The Bonanza was on the final leg of the traffic pattern (coming in for a landing) for Runway 16 Left at RNO when it encountered wake turbulence (also known as wake vortices)6 from a FedEx Boeing 757 landing ahead of it on Runway 16 Right, a parallel runway. (Id.)
3. The Bonanza's encounter with the FedEx 757's wake vortices caused John Brown, the pilot of the Bonanza, to lose control of it. (Id.) The plane hit the ground, killing Brown and his sole passenger, James Elliker, and destroying the plane. (Id.)
4. At the time of the crash, Brown was an FAA certified flight instructor with over 11,000 hours of flight time. (Id.) Brown was the CEO and primary instructor for Flying Start Aero, LLC, "a flight school and Cessna Pilot Center based at RNO." (See id.) In 2015, the FAA awarded Brown the title of "Master Pilot" in recognition of his "professionalism, skill, and aviation expertise for at least 50 years while piloting aircraft." (ECF No. 165 at 4-5.)
5. Elliker was a co-founder and president of Victory Woodworks, Inc., in Sparks, Nevada. (ECF No. 161 at 16.)
6. At the time of the crash, Brown and Elliker were returning from a one-day trip to southern California. (ECF No. 163 at 4-9.)
7. Visual Metrological Conditions ("VMC") existed at the time of the crash, and Brown was operating the flight under Visual Flight Rules ("VFR"). (ECF No. 115 at 3.) Pilots are required to maintain vigilance when flying in VMC. (ECF No. 164 at 94.)
8. RNO tower controllers provide air traffic control services to aircraft operating within a zone close to the airport, known as "Class C" airspace. (ECF No. 158 at 198.) See also 14 C.F.R. § 71.51. Such airspace generally consists of a five-mile inner ring going from the surface to 6,000 feet above the airport elevation. (ECF No. 159 at 185.)
9. At the time of the accident, air traffic controller Gregory Nicoll operated the local control position at the RNO tower. (ECF No. 158 at 140.) Erik Edney operated the ground control and clearance delivery positions. (Id. at 271.) Edney also served as the Controller-In-Charge of the RNO tower at the time. (Id.)
10. But as Brown approached RNO on the ultimately tragic flight on August 31, 2016, before he entered the Class C airspace that surrounds it, Brown was first in contact with air traffic controllers from the Northern California Terminal Radar Approach Control ("TRACON") facility, which controls the airspace surrounding the area of responsibility of the RNO tower. (See Ex. 25 at 0044:35 UTC to 0045:04 UTC; see also generally id.)
11. At 5:44:35 p.m. on the day of the crash, Brown contacted a Northern California TRACON controller, Mark Ward. Brown advised Ward that he was 35 miles to the southeast of Reno. In subsequent communications, Brown requested to land on runway 25 at RNO. (See id.)
12. At 5:54:10, as Brown was approximately 8 miles southeast of RNO, Ward informed him that there would be a delay for runway 25, and that he was number four in the sequence for landing at the airport.7 Ward also informed Brown that his traffic-"a Boeing seven fifty-seven"-was on a "15-mile straight in" for runway 16R. (See id. at 0054:10 UTC.)
13. At 5:54:18, Brown responded, "yeah understand we can take runway one six left." Ward replied, "five Charlie alpha, proceed to the uh downwind and contact Reno tower one one eight point seven." In response, Brown stated, "okay, contact the tower, thanks for the help, five Charlie alpha." (See id. at 0054:21 to 0054:26 UTC.)
14. Sure enough, Brown's next radio contact was with the RNO tower. At 5:54:33, Brown contacted the RNO tower, stating, "reno tower, good afternoon, bonanza nine eight five charlie alpha, restricted heading three five zero, eight thousand five hundred." (See Ex. 26 at 0054:33 UTC.) This means that, at the time of this transmission, Brown's Bonanza was located southeast of RNO at 8,500 feet in elevation, heading north on a heading of 350 degrees.
15. Nicoll responded that Brown should proceed to runway 25, and Brown confirmed that he understood. (See id. at 0054:50 UTC to 0054:58 UTC.)
16. Brown then asked Nicoll if there were any restrictions. (See id. at 0055:09 UTC.)
17. Nicoll did not respond to Brown. Nicoll instead began conversing with FedEx Flight 1359, UPS Flight 9706, and American Airlines Flight 1497, during which conversation Nicoll cleared FedEx Flight 1359 to land, and FedEx Flight 1359 confirmed its plan to land. (See id. at 0055:38 UTC to 0056:15 UTC.) Nicoll also advised FedEx Flight 1359 that there was another Boeing 757 cleared to land on Runway 16 right ahead of it. (See id. at 0055:51 UTC.) FedEx Flight 1359 confirmed it received this transmission. (See id. at 0056:00 UTC.)
18. Nicoll expected Brown to have been listening to these radio communications with the other three aircraft to paint a mental picture of where his traffic was located. (ECF No. 158 at 223-24.)
19. Indeed, from the radio transmissions, Brown should have known there were three aircraft ahead of him at RNO and their general locations and intentions. (ECF No. 164 at 134-136; see also supra n. 6.)
20. At 5:56:20, Brown advised Nicoll in the RNO tower that he was, "on a wide downwind one six left." Nicoll responded, "roger continue inbound for one six left." Brown responded, "wilco," meaning he would comply. (See Ex. 26 at 0056:20 UTC to 0056:32 UTC.) This means that Brown and Nicoll agreed Brown would land on Runway 16 L.
21. At 5:57:13, Brown told Nicoll that he "is turning a wide left base8 for one six left." (See id. at 0057:13 UTC.) Nicoll explained at Trial that Brown initiated this base turn himself, not at Nicoll's direction. (ECF No. 158 at 251-52.)
22. When he initiated his base turn operating under VFR, Brown was required to maneuver his aircraft to RNO in such a way as to see and avoid other aircraft and avoid their wake turbulence. (ECF Nos. 159 at 163, 228-29, 164 at 94.)
23. At 5:57:18, in response to Brown's report that he was turning a wide left base, Nicoll issued the following traffic advisory, cautionary wake-turbulence advisory, wind information, and clearance to Brown: "bonanza five charlie alpha roger, traffic niner mile final for one six right is a boeing seven fifty seven, caution wake turbulence, wind two six zero at one three, gusts one eight, runway one six left, cleared to land." (See Ex. 26 at 0057:18 UTC.)
24. At 5:57:31, Brown replied: "cleared to land one six left negative contact on the inbound for the right five Charlie alpha." (See id. at 0057:31 UTC.)
25. At 5:58:18, within one minute of his prior transmission advising he was looking for traffic on his right, Brown reported: "and tower five charlie alpha got a visual on the airliner for the for the right." (See id. at 0058:18 UTC.) This was the final recorded transmission from Brown.
26. During the approximately one-minute period between the time when Nicoll advised Brown of a Boeing 757 on a nine-mile final, to the time Brown reported "a visual on the airliner," FedEx Flight 1359 continued inbound and was at approximately a six-mile final. (See Ex. 105 at Figure 1 (included below).)
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27. At the same time,...
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