48. The testimony of Mark H. Goodrich, a pilot expert for the Port authority, was taken out of turn and presented during plaintiff's case. Mr. Goodrich testified that, in his opinion, the only way the incident could have occurred was if the Aircraft was taxiing too fast down taxiway Yankee. However, Mr. Goodrich also testified that a pilot may use reverse thrust in an emergency situation and that if a pilot is about to run into something with an aircraft, he should do whatever is necessary to stop the plane. Also, Mr. Goodrich testified that if it is dangerous for aircraft to operate on a taxiway it is the responsibility of the airport operator, which in this case he understood to be the Port Authority, to close the taxiway.
J. The Case Against The United States
49. Plaintiff's own witnesses testified that the area in question was substantially flat and there was nothing to obstruct the view of the flight crew as to any vehicles in that area.
50. According to Captain Bellows and First Officer Piper, they did not see the sand trucks or plows until the Aircraft was 70-100 feet from the intersection.
51. Captain Bellows testified that when he put the brakes on, the Aircraft started to slide; accordingly, he put the wing engines in 80% reverse thrust because he thought the Aircraft was going to slide into the sand trucks.
K. The Case Against The Port Authority
52. With respect to the Port Authority, the jury is the trier of the facts. The Port Authority and Pan Am asked for a jury trial with regard to the Port Authority, and in any case where a jury is involved, they are the trier of the facts, not the Court.
53. In this case, the Port Authority moved to dismiss on the grounds that Pan Am failed to prove a prima facie case as against the Port Authority.
54. For the reasons stated on the record following the close of plaintiff's case, the Court granted the motion of the Port Authority for judgment as a matter of law, and dismissed the case against the Port Authority on the grounds that Plaintiff failed to prove a prima facie case.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over plaintiff Pan Am's claims against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671, et seq.
2. This court has ancillary jurisdiction over plaintiff Pan Am's claims against the Port Authority.
B. Applicable Law
3. Because the incident occurred in New York, and because the JFK tower is in New York, New York law applies to this case. See 28 U.S.C. § 1346(b); see also Texasgulf Inc. v. Colt Electronics Co, 615 F. Supp. 648, 660 (S.D.N.Y. 1984).
C. Actionable Negligence in New York
4. To establish a cause of action for negligence in New York, plaintiff has the burden of proving, by a preponderance of the evidence, that the conduct of FAA personnel in the JFK air traffic control tower "fell below the standard established by law for the protection of others against unreasonable risks." Texasgulf Inc. v. Colt Electronics Co, 615 F. Supp. 648, 660 (S.D.N.Y. 1984). Plaintiff must prove a legal duty owed by the defendant to the plaintiffs, a negligent breach of this duty, and injury proximately resulting therefrom. Id. (citations omitted).
5. Under New York law, plaintiff must also prove that the failure to use due care on the part of FAA personnel in the JFK air traffic control tower was a "substantial contributing factor", let alone a factor, in producing the subject injury. Id. (citations omitted).
D. Pilot Duties and Responsibilities
6. Pilots "must know and abide by the Federal Aviation Regulations" (FARs). Texasgulf Inc. v. Colt Electronics Co, 615 F. Supp. 648, 660 (S.D.N.Y. 1984) (citations omitted). The FARs have the force and effect of law. Tilley v. United States, 375 F.2d 678 (4th Cir. 1967); United States v. Schultetus, 277 F.2d 322 (5th Cir. 1960), cert. denied, 364 U.S. 828, 81 S. Ct. 67, 5 L. Ed. 2d 56 (1960). Under New York law, a violation of the FARs is evidence of negligence. Texasgulf, 615 F. Supp. at 660 n.21.
7. The pilot in command of an aircraft is directly responsible for and has final authority over the safe operation of his aircraft. 14 C.F.R. § 91.3; Yates v. United States, 497 F.2d 878, 883 (10th Cir. 1974); Spaulding v. United States, 455 F.2d 222 (9th Cir. 1972); American Airlines v. United States, 418 F.2d 180, 193 (5th Cir. 1969); United States v. Schultetus, 277 F.2d at 322, 327 (5th Cir. 1960); Texasgulf Inc. v. Colt Electronics Co, 615 F. Supp. 648, 660 (S.D.N.Y. 1984). The "ultimate decision is the pilot's, since he knows the condition of his aircraft, its capabilities and must deal with the unusual and unexpected during flight." Neff v. United States, 136 App. D.C. 273, 420 F.2d 115, 120 (D.C. Cir. 1969), cert. denied, 397 U.S. 1066, 25 L. Ed. 2d 687, 90 S. Ct. 1500 (1970); Wenninger v. United States, 234 F. Supp. 499, 516-517 (D. Del. 1964), aff'd, 352 F.2d 523 (3d Cir. 1965).
8. Flight crew members have a continuing duty to be aware of dangers which they can perceive with their own eyes. Spaulding v. United States, 455 F.2d 222 (9th Cir. 1972); Associated Aviation Underwriters, 462 F. Supp. 674, 681 (N.D. Tex. 1978); Thinguldstad v. United States, 343 F. Supp. 551, 558 (S.D. Oh. 1972); Black v. United States, 441 F.2d 741 (5th Cir. 1971), cert. denied, 404 U.S. 913, 30 L. Ed. 2d 186, 92 S. Ct. 233 (1971); DeVere v. True-Flite, Inc., 268 F. Supp. 226 (E.D.N.C. 1964). Pilots cannot fail to use their own eyes and ears to be aware of danger. In Re Aircrash Disaster at John F. Kennedy Int'l Airport on June 24, 1975, 635 F.2d 67, 74 (2d Cir. 1980); Spaulding, at 227. Pilots are charged with a duty to see that which is plainly visible. Finfera v. Thomas, 119 F.2d 28 (6th Cir. 1941).
9. Pilots are required by regulation and common sense to maintain a sharp lookout so as to "see and avoid" other aircraft. 14 C.F.R. § 91.67(a).
10. A pilot's duty to see and avoid ground vehicles is not excused because he may have to look thoroughly and diligently in the area where ground vehicles are located. See United States v. Miller, 303 F.2d 703, 709 (9th Cir. 1962).
11. Whenever ATC issues a clearance to a pilot, which in the pilot's judgment would jeopardize the safety of the aircraft and its occupants, that pilot has an absolute duty to reject that clearance, to inform ATC, and request a new clearance. In Re Air Crash at Dallas/Fort Worth Airport, 720 F. Supp. 1258, 1290 (N.D. Tex. 1989), aff'd, 919 F.2d 1079 (5th Cir.), cert. denied sub nom. Connors v. United States, U.S. , 112 S. Ct. 276, 116 L. Ed. 2d 228 (1991); In Re Air Crash Disaster at Boston, Mass., July 31, 1973, 412 F. Supp. at 989.
12. If a pilot does not fully understand a clearance, he shall immediately request clarification from ATC. 14 C.F.R. § 91.75.
13. Pursuant to the FARs, pilots are required, before undertaking a flight, to obtain all available information concerning that flight. 14 C.F.R. § 91.5. Pilots are specifically required to obtain weather reports, weather forecasts, and NOTAMS as a part of their pre-flight duties. 14 C.F.R. § 91.5; DeVere v. True-Flite, Inc., 268 F. Supp. 226, 228 (E.D.N.C. 1967).
14. Airline pilots are charged with that knowledge which in the exercise of due care they should have known. American Airlines v. United States, 418 F.2d 180, 193 (5th Cir. 1969); Air Service, Inc. v. United States, 18 Av. Cas. (CCH) 17,556, 17,566 (N.D. Miss. 1983). They are charged with the knowledge of those facts which are material to the safe operation of their flights. American Airlines, 418 F.2d at 193; Associated Aviation Underwriters, 462 F. Supp. 674 (N.D. Tex. 1978).
15. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another. 14 C.F.R. § 91.9; Air Service, Inc. v. United States, 18 Av. Cas. (CCH) 17,556, 17,565 (N.D. Miss. 1983); In re Air Crash Disaster at New Orleans (Moisant Field), La., 422 F. Supp. at 1174; Baker v. United States, 417 F. Supp. 471, 485 (W.D. Wash. 1975).
E. Controller Duties and Responsibilities
16. Controllers need not warn of things the pilot ordinarily would know. Crossman v. United States, 378 F. Supp. 1312 (D. Ore. 1974). Similarly, there is no duty to warn a pilot of a condition that he should already be aware of based on his training, experience and personal observations. Neff v. United States, 136 App. D.C. 273, 420 F.2d 115 (D.C. Cir. 1969), cert. denied, 397 U.S. 1066, 25 L. Ed. 2d 687, 90 S. Ct. 1500 (1970).
17. Controllers have the right to rely on the assumption that pilots know and will abide by all applicable Federal Aviation Regulations. See In re Air Crash Disaster at New Orleans (Moisant Field), Louisiana on March 20, 1969, 422 F. Supp. 1166 (W.D. Tenn. 1975), aff'd, 544 F.2d 270 (6th Cir. 1976); Crossman v. United States, 378 F. Supp. 1312, 1318 (D. Ore. 1974).
18. Controllers are not required to foresee or anticipate the unlawful, negligent or grossly negligent acts of pilots. See In Re Air Crash at Metropolitan Airport, 619 F. Supp. at 20; Colorado Flying Academy, Inc. v. United States, 506 F. Supp. 1221, 1228 (D. Col. 1981), aff'd, 724 F.2d 871 (10th Cir. 1984), cert. denied, 476 U.S. 1182, 106 S. Ct. 2915, 91 L. Ed. 2d 544 (1986); First of America Bank-Cent. v. United States, 639 F. Supp. 446, 456 (W.D. Mich. 1986); Air Service, Inc. V. United States, 18 Av. Cas. (CCH) 17,556, 17,566 (N.D. Miss. 1983).
In sum, the JFK air traffic control tower had warned the flight crew of Flight 219A of both the presence of the sanding trucks and of the icy condition of taxiway Yankee; the Port Authority NOTAM also warned the flight crew of Flight 219A of the icy condition of taxiway Yankee. The DC-10 was required to yield the right-of-way to the sanding vehicles if they encountered each other at or near the intersection of Foxtrot and 4 Left.
The United States did not breach any duty owed to Pan Am. Further, no act or omission by the United States was in any way a factor, let alone a substantial factor, in causing the incident.
Accordingly, it is Ordered and Adjudged that the plaintiff take nothing, that judgment be entered for the defendants, and that the defendants recover of the plaintiff their costs of action.
Dated: New York, New York
February 26th, 1992
UNITED STATES DISTRICT JUDGE
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