Kula v. United States
| Decision Date | 18 May 2021 |
| Docket Number | No. 4:17-CV-02122,4:17-CV-02122 |
| Citation | 540 F.Supp.3d 451 |
| Parties | Brianna Apfelbaum KULA, et al., Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Middle District of Pennsylvania |
James E. Beasley, Jr., Lane R. Jubb, Jr., Peter J. Johnsen, The Beasley Law Firm, LLC, Philadelphia, PA, for Plaintiffs.
Alan D. Mattioni, U.S. Department of Justice, Civil Division, Orla M. Brady, Aviation, Space & Admiralty Litigation, Washington, DC, Melissa Swauger, U.S. Attorney's Office, Harrisburg, PA, for Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case arises from an aircraft accident resulting in the deaths of Michael Apfelbaum, Christina Apfelbaum, and Charles Imgrund. Plaintiffs brought this wrongful death suit alleging that the United States negligently caused Michael and Christina Apfelbaum's deaths. A bench trial commenced on May 10, 2021. On May 14, 2021, after Plaintiffs presented their case-in-chief on the question of liability, the United States moved for an entry of judgment on partial findings under Federal Rule of Civil Procedure 52(c).
After considering the evidence presented, the Court finds judgment under Rule 52(c) appropriate. The Government's motion is therefore GRANTED . The Court's findings of fact and conclusions of law, as required by Rule 52(a), are set forth below.
1. Instrument Meteorological Conditions ("IMC") are weather conditions that require pilots to fly primarily by reference to instruments. Clouds or fog or any conditions where a pilot is unable to see surrounding geography constitute IMC. Pilots flying in IMC are subject to Instrument Flight Rules. Pursuant to these rules, a pilot flying in IMC must be instrument current, which requires pilots to satisfy specific criteria.
2. Visual Flight Rules ("VFR") are the rules governing pilots when operating aircraft under visual conditions. In contrast to IMC, visual conditions exist where a pilot can make visual reference to geography and other objects within their line of sight.
3. An Instrument Landing System ("ILS") is a tool which allows aircraft to land at an airport in instrument conditions. In this system, two radio beams are emitted which indicate the location of the runway and the angle at which a pilot must fly to safely approach. The area between these two beans is called the localizer, and the halfway line between these beams is called the localizer centerline. To make a final approach (land), a pilot must first locate and fly (be established) on the localizer centerline. When a pilot enters the localizer (by crossing one of the two beams), a plane's HSI "needle" will start moving to the center of the HSI instrument as the pilot gets closer to the localizer centerline. The HSI needle reaches the center of the instrument when the pilot is established on the localizer centerline.
4. A heading is the direction in which an aircraft is pointed. A heading may also be referred to as a vector. Air-traffic controller provide headings, or vectors, to guide aircraft as they approach.
5. A track is the path which an aircraft actually follows. The track is determined by how the aircraft actually moves throughout the air and is often impacted by wind speed and direction. For example, a plane flying on a certain heading may have a flight track that deviates from the heading based on wind or other conditions.
6. A radar replay or radar scope is a tool used by air-traffic controllers to view aircraft within a specific area. The radar replay used by air-traffic controller Kendall Garland showed white lines demonstrating fixed areas on the radar, such as the location of the airport, and the localizer.1 Non-fixed objects, such as aircraft, appear as blinking green dots that update approximately every 4.8 seconds.2 These dots show only where an aircraft's present location is, not the track that the aircraft has followed. As a result, the only way for a person viewing the radar replay to determine a plane's track is to follow the plane's radar location and visually evaluate the plane's actual path.
7. On September 7, 2015, Michael Apfelbaum, his wife Christina Apfelbaum, and his father-in-law Charles Imgrund perished when a Beechcraft A36 Bonanza airplane, registration number N36HT (N-36-Hotel-Tango) crashed after attempting an instrument approach at the Piedmont Triad International Airport in Greensboro, North Carolina.
8. At the time of the crash, Michael Apfelbaum was the pilot in command of the Bonanza. Christina Apfelbaum and Charles Imgrund were passengers.
9. The crash occurred during a flight from Sarasota, Florida to Greensboro, North Carolina. Apfelbaum had planned to stop at Greensboro for fuel before continuing to Northumberland, Pennsylvania.
10. Kendall Garland was the air-traffic controller at the Piedmont Airport responsible for facilitating Apfelbaum's approach.
11. At 1544:00Z (11:44:00 local time), Apfelbaum initiated contact with Garland.3
12. At 1548:08Z, Apfelbaum told Garland that he was "about to go IMC." Apfelbaum shortly thereafter entered instrument conditions.4
13. At 1548:39Z, Garland instructed Apfelbaum to turn to a heading of 010 (ten degrees). Apfelbaum confirmed and accepted this heading.
14. At 1550:35Z, Garland told Apfelbaum to turn right to a heading of 020 and to maintain an altitude of 3,000 feet until he could become established on the localizer.
Garland also gave Apfelbaum clearance for an approach. Plaintiffs’ air-traffic controller expert, Richard Burgess, testified that this was an inappropriate heading because it would have forced Apfelbaum to turn onto the localizer at an angle greater than 30 degrees.5
15. At 1552:48Z, Apfelbaum asked Garland "how do you like this route of flight."
16. At 1552:52Z, Garland responded by saying that Apfelbaum looked a "little bit right of course" and that he should turn to a heading of 360. At this point, Apfelbaum was near or on the edge of the localizer.6 Garland believed at the time that Apfelbaum was flying parallel to the localizer, and thus would not be able to intercept it by flying straight.7 Garland's objective evaluation is somewhat contradicted by testimony from Plaintiffs’ radar-reconstruction expert, Robert Cauble, who testified that Apfelbaum would have in fact intercepted the localizer had he simply been directed to make a 5-degree turn.8
17. In issuing Apfelbaum a heading of 360, Garland apparently did not intend to give Apfelbaum a second vector for final approach because he believed that giving Apfelbaum such a vector would be illegal.9 Burgess confirmed that doing so would have been inappropriate,10 however, he opined that Garland should have informed Apfelbaum that he would not be receiving a final vector at that time as it could be confusing.11 But Burgess also acknowledged that "[h]ow that affected the pilot, I guess we'll never know."12
18. At 1553:59Z, Garland asked Apfelbaum if he was established on the localizer, to which Apfelbaum responded that he was and requested a vector for final approach.
19. At 1554:07Z, Garland again asked Apfelbaum if he was established on the localizer. Apfelbaum replied that he believed he was. At the time, Garland was aware that Apfelbaum was not established on the localizer.13 Garland also did not give Apfelbaum a vector for final approach because, as previously discussed, he believed that would result in an illegal turn.14
20. At 1554:13Z, Garland told Apfelbaum that it appeared Apfelbaum had passed through the localizer. Apfelbaum then requested a vector for final approach, and Garland directed Apfelbaum to turn left at a heading of 320.
21. At 1556:54Z, Garland directed Apfelbaum to turn left at a heading of 230. Apfelbaum confirmed.
22. At 1557:29Z, after it appears Apfelbaum made a loop, Garland asked Apfelbaum to confirm that he was on a 230 heading. It does not appear that Garland was aware that Apfelbaum had made a loop.
23. At 1557:35Z, Apfelbaum responded "negative and three six hotel tango is close to." The feed cutoff after Apfelbaum said "close to." Garland did not follow up to confirm what Apfelbaum meant or to ask what Apfelbaum was close to.15 Garland did not appear to have read much into Apfelbaum's statement; he testified that he believed Apfelbaum might have been trying to say that he was not on the 230 heading, but was perhaps close to it.16 Burgess testified that a reasonable air-traffic controller would have asked Apfelbaum to clarify what he was close to.17
24. At 1557:57Z, Garland informed Apfelbaum to stay at an altitude of 3,000, and informed him that Apfelbaum appeared to be at an altitude of 2,500. Apfelbaum responded that he would then "climb to three." Burgess testified that a 500-foot deviation in altitude, combined with Apfelbaum's previous statement that he was not on the 230 heading, would be concerning to a reasonable air-traffic controller.18
25. At 1558:40Z, Garland stated that the altimeter showed Apfelbaum was at an altitude of 2,900, and asked Apfelbaum if that was correct. Apfelbaum responded that it was.
26. At 1559:17Z, after Apfelbaum makes what appears to be an almost 180-degree turn, Garland asked Apfelbaum to confirm his heading. Apfelbaum responded that his heading was 166. Apfelbaum also indicated that he was at an altitude of 2,700 feet and stated that "we need a descent we are almost disoriented." Burgess testified that this was "absolutely an emergency," and that a reasonable air-traffic controller would have believed it to be one as well.19 Burgess cited Apfelbaum's previous statement that he was not on the 230 heading Garland had given him, Apfelbaum's inability to maintain altitude, and the statement that Apfelbaum was almost disoriented as establishing an emergency situation.20
27. The air-traffic controller training handbook briefly discusses unusual situations and how air-traffic controllers should address them.21 It appears to briefly explore the topic of...
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