Wojciechowicz v. U.S., 08-2454.

• Decision Date: 09 September 2009
• Docket Number: No. 08-2454.,08-2454.
• Citation: 582 F.3d 57
• Parties: Carol WOJCIECHOWICZ, Individually and in Her Capacity as Executrix of the Estate of Alexander Wojciechowicz and on behalf of the Conjugal Partnership with Decedent Alexander Wojciechowicz; et al., Plaintiffs, Appellants, v. UNITED STATES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

582 F.3d 57

Carol WOJCIECHOWICZ, Individually and in Her Capacity as Executrix of the Estate of Alexander Wojciechowicz and on behalf of the Conjugal Partnership with Decedent Alexander Wojciechowicz; et al., Plaintiffs, Appellants, v. UNITED STATES, Defendant, Appellee.

No. 08-2454.

United States Court of Appeals, First Circuit.

Heard June 4, 2009.

Decided September 9, 2009.

Louis R. Martinez with whom Richard Ritorto, Martinez & Ritorto, PC, Jaime E. Morales, Morales-Morales Law Offices, Franklin F. Bass, Locke Lord Bissell & Liddell LLP, Doris Quinones Tridas, and Quinones Tridas Law Office, PSC were on brief for appellants.

Henry B. Goddard, Jr., Trial Attorney, U.S. Department of Justice, Torts Branch, with whom Michael F. Hertz, Acting Assistant Attorney General, Rosa Emilia Rodriguez-Velez, United States Attorney, Andrew M. Eschen, Trial Attorney, and

Sarah S. Keast, Trial Attorney, were on brief for appellee.

Before LYNCH, Chief Judge, EBEL^* and LIPEZ, Circuit Judges.

LYNCH, Chief Judge.

Sadly, this court is once again addressing the legal aftermath of a small plane crash killing several people. It has been some years since we last had to decide such a case. See In re N-500L Cases, 691 F.2d 15 (1st Cir.1982); see also Fed. Express Corp. v. Rhode Island, 664 F.2d 830 (1st Cir.1981); Delta Air Lines, Inc. v. United States, 561 F.2d 381 (1st Cir.1977). We affirm the entry of judgment for the United States against plaintiffs' claim of air traffic controller liability in a highly fact based tort case.

On the afternoon of January 5, 2002, a small Cessna Conquest airplane flown by Alexander Wojciechowicz crashed into high terrain in the Carribean National Forest near the El Yunque mountain peak in Puerto Rico. Wojciechowicz and his four passengers, members of his family, were killed. Plaintiffs, who include Wojciechowicz's surviving relatives, his and his daughter's estates, the aircraft's registered owner, and the aircraft's insurer, sued the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671, alleging the air traffic controller on duty in San Juan, Marcos Santiago, was negligent.

After a twelve-day bench trial, the district court ultimately found that Santiago could not have reasonably foreseen Wojciechowicz would take the actions he did, which were in direct violation of a pilot's duties, that Santiago's actions or inactions were not a proximate cause of the crash, and that Wojciechowicz's own negligence was the sole cause of the crash. The court also found that the controller had not violated any duty of care; but even if the controller did violate a duty, the court found that any violation did not cause the crash. The judge apportioned no liability to the government. Wojciechowicz v. United States, 576 F.Supp.2d 241, 278 (D.P.R.2008).

On appeal, plaintiffs claim the district court primarily erred in finding there was no duty of care stemming from a Federal Aviation Administration ("FAA") operations manual and FAA training instructions. They say this error infected the later findings, which, they say, are clearly erroneous anyway. First, they argue, the court erroneously held that ¶ 5-5-9 of the FAA Air Traffic Control Manual ("ATCM"), FAA Order 7110.65M, which requires controllers to maintain separation of aircraft from prominent obstructions depicted on the radar screen by specified minimum distances, did not apply to Wojciechowicz's flight, which was under Visual Flight Rules ("VFR") (as opposed to Instrument Flight Rules ("IFR")), and that Santiago owed no duty to warn Wojciechowicz to change course. Second, they argue the court erred in holding that the air traffic control authority, the San Juan Combined Enroute and Radar Approach Control Facility ("CERAP"), was authorized to depart from the FAA's curriculum in training Santiago and that it trained him adequately. See FAA Air Traffic Technical Training Manual, FAA Order 3120.4J.

The record supports the district court's findings that plaintiffs nonetheless failed to meet their burden to show negligence or causation. We reject plaintiffs' arguments that these findings were clearly erroneous and affirm.

I.

We outline the facts. Greater detail may be found in the district court's opinion. Wojciechowicz, 576 F.Supp.2d at 246-51.

Wojciechowicz owned a vacation home on Culebra Island and was an experienced pilot with nearly four thousand hours of flight experience. He had flown the route between Culebra Island and the San Juan airport over two hundred times and was familiar both with the approach to the airport and with El Yunque and the surrounding terrain. He was rated for flight under both IFR and VFR.

At approximately 2:00 p.m. that day, Wojciechowicz took off from Culebra Island, which is eighteen nautical miles east of the east coast of Puerto Rico, for a flight to San Juan International Airport. The trip can be completed in twenty to thirty minutes.

Wojciechowicz chose to fly under VFR. His choice had several consequences. Under VFR procedures, set forth in FAA regulations and the FAA-published Aeronautical Information Manual ("AIM"), a pilot navigates by observing the surroundings rather than by relying on instruments. As a pilot under VFR, Wojciechowicz was forbidden by FAA regulations from flying into clouds or into areas of reduced visibility unless he asked the controller for permission to do so. See 14 C.F.R. § 91.155; In re N-500L Cases, 691 F.2d at 28-29; Cappello v. Duncan Aircraft Sales of Fla., Inc., 79 F.3d 1465, 1467, 1469 (6th Cir.1996). Although he never asked for permission, the pilot did exactly that.

By contrast, pilots under IFR must file a special flight plan, must navigate by use of their instruments, and may not fly below Minimum Vectoring Altitude ("MVA"), which is generally set at two thousand feet above the elevation of the terrain. VFR pilots are not so restricted and may fly below both the MVA and the elevation of nearby terrain. See Biles v. United States, 848 F.2d 661, 663 (5th Cir.1988). In sparsely populated areas, such as the area in which the crash occurred, there is no restriction on how low a VFR pilot may fly except that the pilot must maintain a minimum distance of five hundred feet laterally from any structure, vehicle, or person. 14 C.F.R. § 91.119(c). Wojciechowicz operated under VFR procedures throughout the flight.

Wojciechowicz contacted CERAP by radio in San Juan at 2:18 p.m., about eighteen minutes after he left Culebra, to request landing at Luis Muñoz Marin International Airport in San Juan. He was then ten miles east of Fajardo, Puerto Rico, and traveling at 190 knots, or about three miles per minute. At 2:18:30 p.m., Santiago requested that Wojciechowicz "squawk" 0477 into his aircraft's transponder to allow Santiago's radar scope to better identify the aircraft.¹ Wojciechowicz complied. Santiago responded to Wojciechowicz's landing request at 2:19:54 p.m., providing him with an approach vector to the airport from the traffic pattern south of Plaza Carolina and weather information for San Juan. Santiago asked Wojciechowicz to state his altitude. Wojciechowicz replied that he was at 1600 feet above sea level and stated he would stay south at Plaza Carolina. During his communications with Santiago, Wojciechowicz gave no indication that he was in any distress, that he was unaware of his altitude or location, that he could not maintain his own separation from terrain, or that he was in need of navigation assistance.

This was the first and only conversation between the controller Santiago and the pilot and it took place between 2:18 and 2:20:37.

At that point, the plane was in clear air and had at least ten miles of visibility. That meant the pilot could clearly see the rising terrain to El Yunque ahead and the north coast of Puerto Rico, where the airport was, to his right. The pilot could also see there was a cloud base intersecting the rising terrain ahead.

After the conversation ended, the plane continued on Santiago's radar for nearly one more minute but disappeared from the radar scope shortly before the accident. In the time the aircraft remained on the radar, Wojciechowicz made no further attempts to contact Santiago by radio. The last radar data for the plane was received at 2:21:18. After radar contact was lost, the plane's data on the airport radar scope entered "coast" mode, in which the computer indicates radar contact is lost and predicts the aircraft's position.² The last coast data was displayed at 2:21:42. Within forty-three seconds, Santiago was on the radio trying to get a response, without success, from the pilot. The endpoint, the crash, occurred at approximately 2:23 p.m. at a point 1.43 miles northeast of the El Yunque peak and at an elevation of 1561 feet (El Yunque itself is 3637 feet tall).

We return to what Santiago knew from the radar. At the point the plane disappeared from the radar, the plane was approximately 4.7 miles from the peak of El Yunque. Wojciechowicz at that point had ample visibility (of approximately three nautical miles) to allow him to see the clouds he was approaching ahead and an area of clear weather and lower terrain to the north to which he could safely turn. The government's expert testified that Wojciechowicz could easily have avoided the crash by changing course. He testified that Wojciechowicz would have needed only seventeen to eighteen seconds to maneuver away from the accident site.

The district court made findings about what information was available to Santiago when there was radar contact. Santiago's radar scope showed Wojciechowicz's altitude above sea level and displayed MVA data for the surrounding area, but it did not display terrain features, the elevation of the terrain, or the aircraft's altitude above the ground. The scope did display prominent obstructions, including El Yunque peak, which had a communications tower located on it. It did not, however, display the elevation of...