Kula v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRIANNA APFELBAUM KULA, et No. 4:17-CV-02122

al.,

(Judge Brann)

Plaintiffs,

v.

UNITED STATES OF AMERICA,

Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MAY 18, 2021

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.

I. FINDINGS OF FACT

A. Definitions and Background

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.

1 Tr. (May 10, 2021) at 52:5-12.

B. The Accident

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

3 For purposes of consistency, the Court uses Zulu time (more commonly known as “Greenwich

Mean Time”) when discussing the events that occurred in this case.

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

5 Tr. (May 11, 2021) at 140:6-19.

6 Tr. (May 10, 2021) at 194:5-23.

7 Id. at 83:9-12.

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

9 Id. at 83:13-21.

10 Tr. (May 11, 2021) at 138:17-139:6; 146:8-11.

11 Id. at 147:13-25; 160:12-161:4.

12 Id. at 161:3-4.

13 Tr. (May 10, 2021) at 86:9-23.

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

15 Id. at 116:7-17.

16 Id. at 116:15-17.

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 spatial disorientation and how it is a result of what

18 Id. at 159:16-22.

19 Tr. (May 11, 2021) at 163:23-164:9.

20 Id.

occurs in a pilot’s inner ears.22 It also addresses the specific situation where a VFR

pilot enters into instrument conditions.23

28. At 1559:35Z, Garland asked Apfelbaum if he could accept a no-gyro

turn. A no-gyro turn requires the air-traffic controller to verbally tell a pilot to

initiate a turn in a particular direction (either left or right).24 After being directed to

turn, the pilot is supposed to make a standard-rate turn in that direction until he is

told to stop.25 No-gyro turns are generally used when an aircraft’s vacuum pump is

not working properly; when this occurs, an aircraft’s instruments may not be

reading correctly or functioning in an adequate manner.26 Here, however,

Apfelbaum had not told Garland that he was suffering from a vacuum-pump

issue.27 Nevertheless, Garland offered him this turn to help Apfelbaum descend.28

Apfelbaum responded “we can accept.”

29. Burgess offered testimony suggesting that, at this point, Garland

should have been aware that Apfelbaum was spatially disoriented and should have

attempted to help Apfelbaum ascend to a higher altitude and out of the clouds.29

Burgess’s testimony on whether Garland should have known that Apfelbaum was

22 Id. at 167-15:18.

23 Id. at 167:20-23.

24 Id. at 169:1-7.

25 Id. at 169:8-15.

26 Id. at 168:8-14.

27 Id. at 168:15-18.

28 Tr. (May 10, 2021) at 148:14-23.

spatially disoriented is undercut by the fact that Burgess is not an expert on spatial

disorientation and did not offer any explanation as to why he believed Apfelbaum

was spatially disoriented.

30. At 1559:43Z, Garland told Apfelbaum to initiate the no-gyro turn by

turning left. He did not, however, tell Apfelbaum when to stop the turn. Garland

did not inform Apfelbaum when to cease turning because Apfelbaum had already

exited the turn and was going in the direction Garland wanted him to go.

31. At 1559:59Z, Garland asked if Apfelbaum could maintain an altitude

of at least 2,500 feet.

32. At 1600:16Z, Garland told Apfelbaum to turn right. Again, Garland

did not tell Apfelbaum when to stop turning right.

33. At 1600:47Z, Garland informed Apfelbaum of a “low altitude alert,”

and asked Apfelbaum to state his altitude. Apfelbaum did not respond.

34. At 1601:24Z, while Apfelbaum was half-way through a third loop,

Garland told Apfelbaum to climb and maintain an altitude of 4,000 and stated that

he would see if he could get Apfelbaum above the clouds.

35. At 1601:35Z, Garland asked if Apfelbaum was “up,” and that the last

altitude showed Apfelaum was at a height of 2,100 feet.

36. At 1601:41Z, Apfelbaum replied “three six hotel tango.” Garland

shortly thereafter asked Apfelbaum to climb to an altitude of 4,000 feet.

37. The Apfelbaum plane crashed approximately a minute and a half later.

38. At no point did Apfelbaum explicitly inform Garland that he was in an

emergency situation or use terms such as “Mayday” or “Pan-Pan” that would

unambiguously signal an emergency to Garland.

39. Testimony from Plaintiffs’ aviation accident reconstruction expert,

Colin Sommer, established that the crash was not caused by an engine, vacuum-

pump (instrument), control system, or electrical failure.30 Sommer also determined

that he could not rule out spatial disorientation as a cause of the crash.31 The Court

agrees with Sommer’s findings that the crash was not caused by an engine,

vacuum-pump, or electrical failure. The Court also determines that spatial

disorientation has not been ruled out as a causal factor.

40. However, because Plaintiffs’ spatial disorientation expert was found

to be unreliable and thus precluded from offering testimony at trial, the Court finds

that it cannot be established that Apfelbaum was actually spatially disoriented at

the time of the crash. Without expert testimony on this issue, the Court has no

basis for finding that Apfelbaum was spatially disoriented, when he became

spatially disoriented, or how spatial disorientation impacted his ability to fly the

Bonanza. While Apfelbaum’s statement at 1559:17Z that he was “almost

disoriented” shows that he may have been or was about to be disoriented in some

fashion, the Court cannot conclude that this is sufficient to show that Apfelbaum

30 Tr. (May 13, 2021) at 162:5-7, 166:9-10, 208:8-10.

was spatially disoriented. Moreover, no testimony or evidence was offered

explaining how an air-traffic controller should respond when discovering that a

pilot is spatially disoriented.

41. Evidence was, however, introduced by Plaintiffs’ witnesses regarding

Apfelbaum’s ability to fly the Bonanza in instrument conditions. Plaintiffs’

piloting expert, Mark Fruchter, testified that “we don’t know” if Apfelbaum flew

the six instrument approaches in the year prior to the crash necessary to satisfy

Apfelbaum’s instrument currency requirements.32 Fruchter also testified that,

based on Apfelbaum’s logbooks, it does not appear that Apfelbaum was current.33

He further testified that instrument currency “impacts safety” and “is required by

the federal aviation regulations.”34

42. While there is evidence that Apfelbaum had safely piloted the

Bonanza in instrument conditions before,35 one of Apfelbaum’s friends (and a

fellow pilot) testified that he had previously expressed concerns about Apfelbaum

making the trip from Florida to Pennsylvania if he were to encounter instrument

conditions.36 Apfelbaum’s flight instructor also indicated that he had warned

32 Tr. (May 12, 2021) at 30:14-18.

33 Id.

34 Id. at 42:7-9.

35 Tr. (May 13, 2021) at 9:25-10:3.

Apfelbaum not to fly the Bonanza in instrument conditions until he had gained

more experience with it.37

II. CONCLUSIONS OF LAW

A. Standard of Review

43. The Court has jurisdiction over this action pursuant to the Federal

Tort Claims Act (“FTCA”).38 The FTCA permits individuals to seek compensation

for tort claims against the United States “in the same manner and to the same

extent as a private individual under like circumstances.”39 The Court applies “the

law of the place where the act or omission occurred,” which is, in this case, the law

of North Carolina.40

44. Actionable negligence in North Carolina is the “failure to exercise that

degree of care which a reasonable and prudent person would exercise under similar

conditions.”41 A plaintiff establishes negligence against the defendant when she

shows: “(1) the defendant owed the plaintiff a duty of care; (2) the defendant’s

conduct breached that duty; (3) the breach was the actual and proximate cause of

the plaintiff’s injury; and (4) plaintiff suffered damages as a result of the injury.”42

37 Tr. (May 12, 2021) at 32:19-23.

38 28 U.S.C. §§ 1346(b), 2671-80.

39 28 U.S.C. § 2674.

40 28 U.S.C. § 1346(b)(1).

41 Hart v. Ivey, 420 S.E.2d 174, 177-78 (N.C. 1992).

42 Hamby v. Thurman Timber Co., LLC, 818 S.E.2d 318, 323 (N.C. App. 2018) (citing Wallen v.

45. Duty: An air-traffic controller’s legal duties are largely defined by the

FAA Air Traffic Control Order 7110.6543 and state common law.44 Order 7110.65

sets forth procedural requirements with which all air-traffic controllers must

comply. Common law may further impose duties beyond those set forth in Order

7110.65.

46. Examples of duties contained in Order 7110.65 include the

requirements that air-traffic controllers “assign headings that will permit final

approach course interception on a track that does not exceed the interception angle

of 30 degrees”45 and inform pilots when to both start and stop turning when

attempting a no-gyro turn.46 Order 7110.65 also discusses the process of declaring

an emergency, however, it does not set forth specific procedures governing air-

traffic controller conduct in every type of emergency.47 Rather, it gives pilots

discretion to determine when an emergency exists, and authorizes controllers to

“select and pursue a course of action which appears to be most appropriate under

the circumstances and which most clearly conforms” to Order 7110.65.48

47. Common law also establishes additional duties above and beyond

what is required by Order 7110.65. For example, courts have recognized a duty to

43 Rodriquez v. United States, 823 F.2d 735, 740 (3d Cir. 1987).

44 In re Greenwood Air Crash, 924 F. Supp. 1518, 1538 (S.D. Ind. 1995).

45 J.O. 7110.65 ¶ 5-9-2.

46 Id. ¶ 5-10-3.

47 Id. ¶ 10-1-1.

issue warnings to pilots where a controller (1) has access to information not

available to the pilot49; (2) is aware the pilot is about to encounter an immediate

and extreme danger50; (3) is better qualified to make a determination51; or (4) is

faced with dangers “reasonably apparent to him” of which the pilot is not aware.52

Air-traffic controllers also have a duty “to issue all warnings that reasonable [air-

traffic controllers] would issue under the same circumstance.”53

48. Nevertheless, “[p]ilots and air traffic controllers ‘are burdened with

concurrent duties of care for the protection of the aircraft and its occupants.’”54

“Necessarily, the pilot’s knowledge of his own, his crew’s, and his aircraft’s

capabilities and limitations, is of preeminent importance in this cooperative

situation.”55 This is because “none of these matters can be known” by air-traffic

control.56 Moreover, air-traffic controllers are not expected “to get into the cockpit

and fly the plane for the pilot,” nor are they “presumed to have X-ray vision and

extrasensory perception.”57

49 Hochrein v. United States, 238 F. Supp. 317, 319-20 (E.D. Pa. 1965) (air-traffic controller was

negligent in failing to advise a pilot of another aircraft which had repeatedly failed to comply

with the air-traffic controller’s signals and directions).

50 United States v. Furumizo, 381 F.2d 965, 968 (9th Cir. 1967).

51 Hartz v. United States, 387 F.2d 870, 873 (5th Cir. 1968).

52 Springer v. United States, 641 F. Supp. 913, 935 (D.S.C. 1986).

53 In re Greenwood Air Crash, 873 F Supp. 1257, 1265 (S.D. Ind. 1995).

54 Turner v. United States, 736 F. Supp. 2d 980, 1000 (M.D.N.C. 2010) (citations omitted).

55 Id. (citations omitted).

56 Id.

57 Badilla v. Nat’l Air Cargo Inc., 433 F. Supp. 3d 428, 442 (W.D.N.Y. 2020) (internal quotation

49. In general, “[t]he pilot in command of an aircraft is directly

responsible for, and is the final authority as to, the operation of that aircraft.”58

And because the pilot in command “is directly responsible for [the aircraft’s]

operation, and has final authority as to its operation . . . He must be aware of those

facts which are material to its proper operation and is charged with that which he

should have known in the exercise of the highest degree of care.”59

50. Causation: “Any recovery for wrongful death must be based on

actionable negligence under the general rules of tort liability. ‘In a case involving

an airplane crash . . . there must be a causal connection between the negligence

complained of and the injury inflicted.’”60 “Proximate cause is a cause which in

natural and continuous sequence, unbroken by any new and independent cause,

produced the plaintiff’s injuries, and without which the injuries would not have

occurred.”61

51. Contributory Negligence: Under North Carolina law, contributory

negligence is a complete bar to a plaintiff’s recovery.62 A plaintiff is contributorily

58 14 C.F.R. § 91.3.

59 Redhead v. United States, 686 F.2d 178, 182 (3d Cir. 1982) (citations omitted).

60 Haley v. United States, 654 F. Supp. 481, 484 (W.D.N.C. 1987) (quoting Mann v. Henderson,

134 S.E.2d 626, 629 (N.C. 1964), aff’d, 829 F.2d 1120 (4th Cir. 1120).

61 Hairston v. Alexander Tank & Equipment Co., 311 S.E.2d 559, 565 (N.C. 1984).

negligent when he fails to exercise the degree of care which a reasonable and

prudent person would exercise under similar conditions to avoid injury.63

52. Contributory negligence will not preclude recovery, however, “when

the defendant’s gross negligence, or willful or wanton conduct, is a proximate

cause of the plaintiff’s injuries.”64 Gross negligence is “wanton conduct done with

conscious or reckless disregard for the rights and safety of others.”65 An “act is

wanton when it is done of wicked purpose, or when done needlessly, manifesting a

reckless indifference to the rights of others.”66 Gross negligence also may exist

where a defendant exhibits “the absence of even slight care,” “indifference to the

rights and welfare of others,” and “negligence of an aggravated character.”67

53. Further, notwithstanding a plaintiff’s negligence, North Carolina law

allows recovery where “‘the defendant’s negligence in failing to avoid the accident

introduces a new element into the case, which intervenes between [the] plaintiff’s

negligence and the injury and becomes the direct and proximate cause’ of the

accident.”68

63 Proffitt v. Gosnell, 809 S.E.2d 200, 204 (N.C. Ct. App. 2017) (quoting Cone v. Watson, 736

S.E.2d 210, 213 (N.C. Ct. App. 2012)).

64 Yancey v. Lea, 550 S.E.2d 155, 157 (N.C. 2001).

65 Id.

66 Id.

67 Morgan v. Cavalier Acquisition Corp., 432 S.E.2d 915, 924 (N.C. Ct. App. 1993) (internal

citations omitted).

68 Outlaw v. Johnson, 660 S.E.2d 550, 556 (N.C. Ct. App. 2008) (quoting Scott v. Darden, 130

54. To succeed on a last clear chance argument, a plaintiff must prove:

(1) that the plaintiff negligently placed himself in a

position of helpless peril; (2) that the defendant knew or,

by the exercise of reasonable care, should have discovered

the plaintiff’s perilous position and his incapacity to

escape from it; (3) that the defendant had the time and

ability to avoid the injury by the exercise of reasonable

care; (4) that the defendant negligently failed to use

available time and means to avoid injury to the plaintiff;

and (5) as a result, the plaintiff was injured.69

B. Application of the Law to the Facts of This Case

1. Negligence

55. Plaintiffs have not met their burden of proving that the Government

was negligent. Plaintiffs present several theories of negligence. Each is addressed

in turn.

a. Heading of 360

56. First, Plaintiffs argue that Kendall Garland’s decision to give Michael

Apfelbaum a heading of 360 at approximately 1552:52Z constituted negligence.

Specifically, Plaintiffs claim that, at the time, Apfelbaum would have safely landed

had he been told to simply alter his course by a few degrees rather than make a

wider turn at a heading of 360. Plaintiffs allege that assigning this heading

breached Garland’s duty under 7110.65 to assign headings that permit a final

approach course interception on a track at an angle that does not exceed 30

degrees, as well as Garland’s general duty of care to not issue warnings that a

reasonable air-traffic controller would not issue.

57. Plaintiffs have not introduced sufficient evidence to show breach of

Garland’s duty under Order 7110.65. Plaintiffs’ expert witnesses (and Garland

himself) acknowledged that Garland’s decision to issue a 360 heading at the time

he did would have violated Order 7110.65 had Garland subsequently instructed

Apfelbaum to turn onto the localizer for a final approach. But Garland did not

instruct Apfelbaum to make a final approach, nor did he respond to Apfelbaum’s

request for a vector for final approach. Instead, he checked in with Apfelbaum to

ask him if he was established on the localizer and after determining that he was

not, gave him a new heading.

58. Plaintiffs have also not proven that Garland breached his duty to not

issue warnings that a reasonable air-traffic controller would not issue. Plaintiffs’

expert testimony largely focused on the reasonableness of Garland’s directive in

light of Order 7110.65’s requirement regarding localizer interception angles. As a

result, it does not establish that a reasonable controller in Garland’s position would

have necessarily given Apfelbaum a different heading. Additionally, there is no

evidence showing that Garland’s decision to issue this heading was inherently

unsafe. While it might have been more expedient for Garland to have kept

Apfelbaum on a relatively straight course, the Court cannot say that Garland’s

decision to not do so was unreasonable.

59. The Court notes that the evidence does not support a finding that

Garland could have or should have been aware that Apfelbaum was facing an

emergency at the time Garland gave Apfelbaum a heading of 360. Up to that

point, aside from Apfelbaum asking Garland if he liked Apfelbaum’s route of

flight, none of the communications between Garland and Apfelbaum suggest that

Apfelbaum was distressed or in any sort of danger. Consequently, the Court

cannot conclude that Garland’s decision to issue this heading, given the

circumstances, was negligent.

60. In any event, Plaintiffs have not shown that Garland’s decision to give

Apfelbaum this heading proximately caused the crash. Plaintiffs’ primary theory

on this point was that issuing this heading caused Apfelbaum to become spatially

disoriented which then resulted in Apfelbaum losing control and crashing. They

contend that, had Garland not given this heading (and instead directed Apfelbaum

to make a small adjustment), Apfelbaum would not have become disoriented and

would have landed safely, thus preventing the crash.

61. But Plaintiffs have not offered evidence showing that Apfelbaum was

in fact spatially disoriented or that a turn to 360, on its own, would have caused

Apfelbaum (or any other pilot) to become spatially disoriented. While it is

certainly possible that Apfelbaum was spatially disoriented, Plaintiffs have not

affirmatively established that this was the case. Any determination that Apfelbaum

was spatially disoriented would therefore be based on speculation and conjecture.

The Court does not believe this sufficient to satisfy Plaintiffs’ burden of proof on

causation.

62. Consequently, Plaintiffs cannot succeed on their first theory of

negligence.

b. Failure to Declare an Emergency

63. Second, Plaintiffs claim that Garland negligently failed to treat the

situation with Apfelbaum as an emergency. Plaintiffs argue that Garland breached

his duty under Order 7110.65 to be aware of emergencies even where specific

emergency codes (“mayday” and “pan-pan”) are not used, and to respond

accordingly. In light of Apfelbaum’s inability to maintain his heading and altitude

and his statements that he was “close to” and “almost disorientated,” Plaintiffs

assert that Garland should have treated the situation as an emergency and directed

Apfelbaum to level his wings and climb. They cite both Order 7110.65 and

Garland’s generalized duty to monitor as establishing Garland’s duty to inquire as

to Apfelbaum’s situation and take steps to rectify it.

64. The Court determines that Order 7110.65 does not create a duty of

care to investigate Apfelbaum’s situation or to order Apfelbaum to level his wings

and climb. Order 7110.65 section 10-1-1 provides only that, once an air-traffic

controller has already determined that an emergency exists, the controller must

“select and pursue a course of action which appears to be most appropriate under

the circumstances.” This clearly does not require any specific course of action in

the event of an emergency.70 Accordingly, the Court cannot find that Garland

breached a federal duty of care that was not specifically prescribed.

65. Plaintiffs have also failed to show that Garland breached his general

duty of care. As discussed above, courts have found breach where air-traffic

controllers failed to warn pilots of dangers that the controller knew or reasonably

could have known existed. However, courts have also recognized that air-traffic

controllers are not expected to know what occurs inside the cockpit, and that pilots

have a concurrent duty of care regarding an aircraft’s safety. Because Garland

could not have known what was occurring within the Bonanza, and because

Apfelbaum could have easily informed Garland of what he was experiencing, the

Court cannot hold that Garland was negligent in failing to inquire specifically

about Apfelbaum’s status.

66. Moreover, even if breach were established, Plaintiffs would not be

able to satisfy causation. Plaintiffs have introduced no evidence that Garland’s

failure to declare an emergency caused Apfelbaum to crash or caused him to

become spatially or otherwise disoriented. Plaintiffs have not factually developed

what it means for an air-traffic controller to designate a situation an emergency

(are more resources available, is a supervisor called, etc.). It is thus not possible

70 In any event, Garland had not deemed the situation an emergency, thus triggering application

for the Court to determine how not declaring an emergency made the situation

worse.

67. Conversely, the lack of evidence on this issue precludes the Court

from concluding that declaring an emergency would have necessarily made the

situation better. Plaintiffs repeatedly assert that all Garland needed to do was

direct Apfelbaum to level his wings and climb; however, they do not explain why

Garland would have been more or less likely to do that if the situation were

deemed an emergency. Further, Plaintiffs offer no evidence showing that

Apfelbaum would have actually been able to level his wings and climb had he been

directed to do so. The Court accordingly cannot hold that causation has been

satisfied.

c. No-Gyro Turn

68. Third, Plaintiffs assert that Garland’s decision to offer Apfelbaum a

no-gyro turn, as well as his execution of the turn, constitutes negligence. Plaintiffs

cite both Order 7110.65 and Garland’s general duty of care. Plaintiffs argue that

Garland’s offer of a no-gyro turn was inappropriate because such turns are difficult

to maneuver, are generally only used where vacuum-pump failure is involved, and

can exacerbate spatial disorientation. This theory is built in large part on

Plaintiffs’ assertion that Garland should have been aware that Apfelbaum was

spatially disoriented.

69. Plaintiffs’ theory that Garland improperly offered a no-gyro turn fails

on breach because it was not unreasonable for Garland to offer Apfelbaum a no-

gyro turn. Immediately prior to asking Apfelbaum if he could accept a no-gyro

turn, Garland was told by Apfelbaum that Apfelbaum needed to descend because

he was almost disoriented. Garland thus testified that he was primarily focused on

giving Apfelbaum directions that could help get him established on the localizer.

While such a turn may have been inappropriate had Garland been aware that the

turn might put Apfelbaum in danger, there is no evidence showing that that was the

case. Further, the Court notes that Garland did not order Apfelbaum to make a no-

gyro turn, but simply asked if he could accept one.

70. By way of comparison, Plaintiffs’ theory that Garland improperly

executed the no-gyro turn succeeds on breach but fails on causation. Garland

admits, and expert testimony established, that Garland violated the clear

procedures of Order 7110.65 which require that a controller executing a no-gyro

turn tell a pilot when to both start and stop the turn. Because Garland did not

inform Apfelbaum when to stop, he plainly breached the duty of care set forth in

Order 7110.65.

71. However, Plaintiffs have not shown that Garland’s breach of Order

7110.65 in executing the no-gyro turn proximately caused the crash. As Garland

convincingly testified, he did not instruct Apfelbaum to stop turning because

Apfelbaum had already stopped and was flying in the direction that Garland had

initially wanted him to fly. Further, because Plaintiffs offer no evidence on spatial

disorientation, the Court cannot conclude that this turn necessarily contributed to

or caused spatial disorientation.

d. Radar Relay

72. Fourth, Plaintiffs suggest that Garland may have acted negligently by

failing to zoom his radar relay beyond the minimum zoom required. However,

beyond referencing this fact in their arguments, Plaintiffs have not produced

sufficient evidence to show that the zoom Garland used on his radar relay was

inappropriate, negligent, or had any causal relationship to Apfelbaum’s crash.

e. Failing to Explain His Instructions

73. Fifth, Plaintiffs suggest that Garland acted negligently by failing to

explain the purposes of the vectors and headings he gave to Apfelbaum. Plaintiffs

claim that Garland made Apfelbaum more confused by not explaining the purpose

of his vectors to Apfelbaum. They also have introduced some expert testimony

tending to support this assertion and further establishing that it is generally helpful

to explain why a certain heading has been given.

74. Nevertheless, no evidence has been presented showing that failing to

explain instructions in detail constitutes negligence or is unreasonable. While it

may have been more helpful for Garland to explain why he was giving Apfelbaum

certain headings, the Court cannot say his decision to not do so was unreasonable

or a breach of his general duty of care.

2. Contributory Negligence

75. Finally, the Court concludes that Apfelbaum was contributorily

negligent. Evidence adduced by Plaintiffs’ experts show that Apfelbaum was,

based on his logbooks, not current to fly in instrument conditions. As this is

required by federal regulations, Apfelbaum’s decision to fly in instrument

conditions without being current constituted a breach of his duty of care. Given

that Apfelbaum, as the pilot in command of the Bonanza, was ultimately

responsible for the operation of his aircraft, it can also be reasonably inferred that

his decision to fly in instrument conditions under these circumstances contributed,

at least in part, to the crash.

76. The last clear chance doctrine also does not preclude application of

contributory negligence. As discussed above, there is no evidence showing that

Garland would have been able to avoid the plane crash. While Plaintiffs maintain

that Garland could have and should have simply directed Apfelbaum to level his

wings and fly, they did not show that Apfelbaum would have been able to do that,

or whether that instruction would have necessarily prevented the crash. Moreover,

the assertion that Apfelbaum would have been easily able to follow these

instructions is undercut by the fact that when Garland did eventually tell

Apfelbaum that he would clear air-space at a higher altitude to allow Apfelbaum to

fly into the clouds, Apfelbaum was unable to comply.

77. For these reasons, the Court determines that Apfelbaum was

contributorily negligent and that any recovery he might have been entitled to is

barred.

III. CONCLUSION

78. Plaintiffs have failed to present sufficient evidence to bear their

burden of proof on the question of liability. Accordingly, the Court concludes it

appropriate to enter judgment in favor of the Defendant pursuant to Rule 52(c).

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge