Turturro v. United States, Civil Action No. 10–2460.

• Citation: 43 F.Supp.3d 434
• Decision Date: 22 August 2014
• Docket Number: Civil Action No. 10–2460.
• Parties: Joseph N. TURTURRO, Administrator of the Estate of Adam B. Braddock, Deceased, et al. v. UNITED STATES of America, Federal Aviation Administration, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

43 F.Supp.3d 434

Joseph N. TURTURRO, Administrator of the Estate of Adam B. Braddock, Deceased, et al.
v.
UNITED STATES of America, Federal Aviation Administration, et al.

Civil Action No. 10–2460.

United States District Court, E.D. Pennsylvania.

Signed Aug. 22, 2014

Motion granted.

[43 F.Supp.3d 439]

Cynthia Marie Devers, The Wolk Law Firm, Philadelphia, PA, Richard E. Genter, Jenkintown, PA, for Joseph N. Turturro, Administrator of the Estate of Adam B. Braddock, Deceased, et al.

Alan Mattioni, United States Department of Justice, Washington, DC, for United States of America, Federal Aviation Administration, et al.

John E. Salmon, Zachary Joseph Ballard, Salmon, Ricchezza, Singer & Turchi LLP, Philadelphia, PA, John M. Socolow, Pino & Assoc., White Plains, NY, for Agusta Aerospace Corporation.
MEMORANDUM
SURRICK, District Judge.

Presently before the Court are Defendant United States of America and Defendant Agusta Aerospace Corporation's Motions for Summary Judgment (ECF Nos. 92, 98). For the following reasons, the Motions will be granted.

I. BACKGROUND A. Procedural Background

These consolidated cases arise from an airplane crash that caused the death of flight instructor Adam Braddock and his student Charles Angelina. Plaintiffs are Joseph Turturro, the administrator of Braddock's estate, and Charles and Virginia Angelina, representatives of Angelina's estate. As a result of the crash, Turturro and the Angelinas filed separate but similar Standard Form 95s (“Form 95s”) with the Federal Aviation Administration (“FAA”). Turturro v. United States, Nos. 10–2460, 10–3063, 2012 WL 1758154, at *1 (E.D.Pa. May 17, 2012). On June 17, 2012, the FAA denied both administrative claims. Id. at *2.

Turturro and the Angelinas filed lawsuits on May 21, 2010 and June 24, 2010, respectively.¹ In their Second Amended

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Complaint, Plaintiffs assert claims against the Government for negligence (Count I), spoliation of evidence, obstruction of justice, and unconstitutional violation of due process (Count II), and against Agusta Aerospace Corporation (“Agusta Corp.”) for negligence (Count III) and breach of contract (Count IV). (Second Am. Compl.) On June 1 and 2, 2011, the Government moved to dismiss the Second Amended Complaint for lack of subject matter jurisdiction. (ECF Nos. 34, 36.) We denied the Government's motions, finding that the Form 95s filed by Plaintiffs properly put the Government on notice of the claims that Plaintiffs ultimately included in the Second Amended Complaint. Turturro, 2012 WL 1758154.

On August 31, 2012, the Government and Agusta filed the instant Motions for Summary Judgment. (Agusta Corp.'s Mot., ECF No. 92; Agusta Corp.'s Mem., ECF No. 93; Gov't's Mot., ECF No. 98.) On November 30, 2012, Plaintiffs filed a joint Response in opposition to the Motions. (Pls.' Resp. to Gov't, ECF No. 114; Pls.' Resp. to Agusta Corp., ECF No. 127.) On January 25, 2013, both the Government and Agusta filed a Reply. (Agusta Corp.'s Reply, ECF No. 145; Gov't's Reply, ECF No. 157.) On July 23, 2013, the Court heard oral argument on the Motions. (July 23, 2013 Hr'g Tr., ECF No. 164.)

B. Factual Background ²

On May 22, 2008, Angelina was taking flight lessons from Braddock in a small aircraft, a Grumman AA–1C airplane (the “Grumman”) at the Northeast Philadelphia Airport (“the Airport”). (Pls.' Resp. to Gov't. 2.) Braddock was in the right seat and Angelina was in the left. ( Id. at 3.) Angelina had 87 hours of flight time in the Grumman, while Braddock had approximately 800. ( Id.) Angelina was in the final stage of his training. (McGrath Dep. 61–64, Pls.' Resp. to Gov't Ex. 1.)

Braddock was employed by Hortman Aviation Services, Inc. (“Hortman”), which operates an FAA approved flight training school based at the Airport. (Pls.' Resp. to Gov't 3.) At the time of the crash, there were three air traffic controllers (“Controllers”) in the Airport Tower: Jennifer Richburg (who was working local control); Joseph Fabozzi (who was working ground control); and Jonathan Swingle (who was acting as Controller–in–Charge and overseeing Richburg and Fabozzi). ( Id. at 5.) Richburg categorized her workload during this time as “light to moderate” based upon the number of aircraft in flight at the time. (Richburg Dep. 271, Pls.' Resp. to Gov't Ex. 5.) The Air Traffic Manager at the Airport, Edward Wolfe, also described Richburg's traffic workload and complexity as “light to medium.” (Wolfe Dep. 12–13, 193, Pls.' Resp. to Gov't Ex. 18.)

The Airport has two intersecting runways—Runways 24 and 33. (Airport Overhead, Agusta Corp.'s Mot. Ex. 1.) At the time of the accident, the pilots of the Grumman were performing touch and go's. (Pls.' Resp. to Gov't 4.) During a touch and go, an aircraft lands on a runway and takes off again without coming to a complete stop. The pilot enters into a traffic pattern, circles the airport, communicates with air traffic control (“ATC”) for clearance, and then repeats the process. ( Id. at 3.) Circuits can be done to either the left (“left traffic”) or to the right (“right traffic”). (H. Hortman Dep. 34–35, Gov't's Mot. Ex. A.) The standard traffic pattern in the United States is left traffic, and

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right traffic is an alternate traffic pattern. ( Id. at 34.)

Angelina's first touch and go was performed on Runway 24. (Accident Tr. 3, Gov't's Mot. Ex. D.) ³ A few minutes later, at 1543:35, while the Grumman was preparing for its second touch and go, ATC instructed it to “set up for left traffic runway three three report turning downwind.” (Accident Tr. 4.) Richburg informed the Grumman at 1553:20 that there was “one departure off runway two four prior to your arrival,” but did not identify the nature of the aircraft that was departing. ( Id. at 5.) The aircraft that Richburg was referring to was Exec Jet 802 (the “Exec Jet”). (Pls.' Resp. to Gov't 50–52.) The Exec Jet departed from Runway 24 approximately two minutes and thirty seconds before the Grumman performed its second touch and go. ( Id. at 52.)

While the Grumman was preparing for its second touch and go, the Agusta was hovering near taxiways “G” (“Golf”) and “J” (“Juliet”). The Agusta was operated by Agusta Corp. flight instructor Steven Farr and his customer training pilot, Alan Baldwin, and was preparing to depart on a training flight of its own. (Pls.' Farr Dep. 155–156, Pls.' Resp. to Gov't Ex. 2.) ⁴ Farr and Baldwin were both very experienced pilots in both helicopters and fixed wing aircraft. Agusta Corp. pilots routinely conduct flight operations in and out of the Airport, including training flights, and the pilots are aware that flight school training operations occur on a regular basis. (Pls.' Farr Dep. at 73.)

Prior to commencing flight, the Agusta was ground taxied. The pilots requested permission to leave the ground to perform hover check maneuvers. ( Id. at 155–56.) After these hover checks were completed, the Agusta requested clearance from ATC to commence forward flight in a westerly direction. ( Id. at 181–82.) Farr requested a westerly departure because the Agusta was headed to Lancaster, Pennsylvania, which is west of the Airport, and because the pilots wanted to take off into the wind ( id. at 41, 184), which was traveling out of the west/northwest at 8 knots (Pls.' Resp. to Agusta Corp. 21 n. 7; Agusta Corp.'s Reply 4 n. 3). Richburg understood the Agusta's request for a westerly departure to mean that the Agusta wanted to depart out of the west. (Richburg Dep. 201.) Farr testified that by westerly departure he meant 270 degrees, which is due west. (Pls.' Farr Dep. 182.) Baldwin, who was flying the helicopter, thought the flight path of the Agusta was northwest bound. (Pls.' Baldwin Dep. 57, Pls.' Resp. to Agusta Corp. Ex. 10.)

At 1553:44, Richburg told the Grumman “altitude and speed permitting make right traffic runway three three.” (Accident Tr. 5.) The Grumman pilots informed Richburg that the Grumman was left downwind. ( Id.) Richburg responded, “five five uniform disregard that call correction seven six mike make right traffic runway three three.” ( Id.) ⁵ At 1557:24, Richburg radioed the Agusta pilots and inquired “do you have that grumman off your left on uh

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runway three three?” (Accident Tr. 5.) The Agusta responded, “we got the grumman in sight.” ( Id.) At 1557:30, Richburg informed the Agusta that the “grumman will be in a left downwind departure from Gulf and Juliet....” ( Id. at 6.) Richburg then cleared the Agusta for takeoff and instructed the pilots “proceed on course....” ( Id.) Within approximately five to ten seconds of receiving clearance, the Agusta commenced forward flight to the northwest. (Pls.' Farr Dep. 134, 139–40.)

At 1557:55, as the Grumman was climbing out after its second touch and go, Richburg instructed the Grumman to “make right traffic.” (Accident Tr. 5.) Seconds after receiving the instruction, the Grumman initiated its turn at an altitude of 200–300 feet. (Richburg Dep. 236; C. Hortman Dep. 39, Gov't's Mot. Ex. E; Agusta Corp.'s Baldwin Dep. 94, Agusta Corp.'s Reply Ex. F; July 23, 2013 Hr'g Tr. 49, 60.) Prior to the turn, the Grumman was observed climbing at an abnormally slow speed. (Pls.' Farr Dep. 150–51; Farr Accident Report 1, Agusta Corp.'s Mot. Ex. 4; Gov't's Baldwin Dep. 36, 106, Gov't's Mot. Ex. B; C. Hortman Dep. 19–20, 27, 36, 78–79.) Farr witnessed the Grumman's “nose move right, vice left in a shallow bank angle.” (Farr Accident Report 1; Pls.' Farr Dep. 151.) Baldwin observed that the “aircraft's nose started to come right with about 15° of bank.” (Baldwin Statement, Pls.' Resp. to Agusta Corp. Ex. 14.) The Grumman then began to bank more sharply, at an angle of almost 80 to 90 degrees. (Farr Accident Report 1; Baldwin Statement 14.) Baldwin testified that:

The initial right-hand turn was fine in the way it looked. It looked a little uncoordinated, but as soon as the aircraft came around and the nose dropped and it was...