(CN) – The government cannot be held liable for the fatal midair collision of two small planes that tried to land at the same time at an Illinois airport, the 7th Circuit ruled. The court acknowledged the air traffic controller’s mistake in giving both planes clearance to land, but concluded that he was not a federal employee.
Instead, he was employed by Midwest Air Traffic Control Services, a contractor hired by the Federal Aviation Administration to provide air traffic control services to the Waukegan Regional Airport in Illinois.
The airport’s control tower lacked radar, so the controller had to rely on what he could see from the tower and on what the pilots told him over the radio. In 2000, two planes – one containing a pilot and passenger, and one flown by a student pilot – were given clearance to land. They collided in the air and crashed into a medical center, killing both pilots and the passenger and damaging the building.
The accident sparked numerous lawsuits, nearly all of which were settled. The remaining claim was a lawsuit against the United States, brought by representatives of those who died. They sued the government under the Federal Tort Claims Act for the controller’s mistake and the FAA’s failure to install a radar system.
Writing for the three-judge panel, Judge Posner rejected the government’s claim Midwest’s settlement on the eve of trial barred the government from liability.
Posner then echoed the court’s ruling in a nearly identical case, which held that air traffic controllers, though extensively controlled by the FAA, are not government employees.
“We decline to revisit that decision,” Posner wrote.
The court then turned to the issue of radar, which the FAA opted not to install at the Waukegan airport. The government’s decision to prioritize where its money goes “is quintessentially a discretionary function,” Posner said.
“The agency might prioritize so unreasonably that its decision could be adjudged negligent, but the Tort Claims Act is explicit that once a decision is classified as an exercise of discretion, the fact that the discretion was abused or even not exercised at all is irrelevant.”
The FAA’s decision to install radar at some airports and not others was a discretionary policy judgment and is therefore “behind the liability shield,” Posner concluded.
The court affirmed judgment for the United States.