ATLANTA (CN) — A Florida federal judge’s ruling that air traffic controllers were not responsible for the deaths of four people in a midair plane crash should be overturned, an attorney for the families of the deceased told a skeptical 11th Circuit panel Thursday.
Attorney Hyram Montero of the Montero Law Center urged the Atlanta-based appeals court to reverse the ruling that air traffic controllers employed by the Federal Aviation Administration at Miami Executive Airport were not the cause of the collision that killed a pilot examiner, a flight instructor and two student pilots.
Montero’s arguments that a veteran controller failed to abide by “the basic rules of air traffic control” were met with a frosty reception from the three judges on the panel, who pointed out that the July 2018 tragedy occurred outside the control tower’s airspace and questioned what responsibility air traffic controllers owed to the pilots.
Much of the arguments centered on the actions – or inaction – of one air traffic controller: Austin Frazao, who worked at the Tamiami Airport Traffic Control Tower for nearly two decades.
Arguing on behalf of the government, Justice Department attorney Guice Slawson III told the panel that Frazao had no reason to know that the two planes owned by Dean International Flight School were in “dangerous proximity” to each other that day.
On board a Piper Seneca N16281 were pilot examiner Ralph Knight and 19-year-old Nisha Sejwal, who was departing the airport during her final practical test to receive her commercial pilot certificate.
Just before 1 p.m., the Seneca collided with a Cessna N6428D which was being piloted back to the airport by Carlo Scarpati, a 22-year-old student pilot, with his flight instructor, 22-year-old Jorge Sanchez.
The July 17, 2018 crash, which killed all four people, occurred in airspace which was about nine nautical miles northwest of the airport.
After an 11-day bench trial, U.S. District Judge Darrin Gayles ruled in May 2022 that the air traffic controllers could not be held liable in four wrongful death and negligence lawsuits filed by the family members of the deceased against the government, which employed the controllers through the FAA.
Slawson told the 11th Circuit panel that Frazao’s responsibility for the Seneca ended once it left his airspace and that he had no reason to continue monitoring it during the time when the collision would have become apparent.
“[Frazao] was no longer in two-way communication with the outbound Seneca. It was five miles out of his airspace at that point,” the attorney said. “Imposing a duty under these facts would simply be contrary to the customs and practices of how the air traffic control system works.”
According to court filings, Frazao was not watching the area of his radar screen where the Seneca appeared because he was looking out a window to sequence planes in the runway pattern.
“[He] had other responsibilities. His primary responsibility was to be watching the runways and scanning the runways for incoming and outgoing flights,” Slawson explained. “[He] did a final check for traffic conflicts when the inbound Cessna crossed the five-mile [airspace] ring. He did not see any traffic conflicts he needed to convey.”
The Cessna contacted Frazao 15 seconds before the collision to report its location. At that point, Frazao noticed the two planes in conflict on his radar and immediately alerted the Cessna to the danger.
It was too late though, and the planes crashed in the sky above a remote swamp.
“With extremely limited time and information, he did everything within his power,” Slawson said.
But Montero argued that the air traffic controllers should have been on higher alert because most of the planes at the Miami Executive Airport were piloted by students. According to a legal brief filed by the plaintiffs, two-thirds of the airport’s traffic is generated by aviation schools.
“We have to understand that this particular airport is really an extension of the classroom,” Montero said. “They were dependent on the air traffic controllers to let them know through traffic advisories and safety alerts of incoming aircrafts.”
Montero also argued that the air traffic controllers knew student pilots did not usually contact radar facilities for a service known as Flight Following, which would give them radar advisories.
U.S. Circuit Judge Robin Rosenbaum, a Barack Obama appointee, questioned whether a pilot’s decision not to use Flight Following imparted any responsibility onto the air traffic controller.
“If there was Flight Following, we would be expecting the air traffic controller… to be watching this going on, but if there’s not Flight Following then the duty of the air traffic controller changed,” Rosenbaum said. “I don’t understand how the fact that [the pilot] chose not to fly with Flight Following doesn’t affect what the duty of the air traffic controller was once she leaves the space of that five-mile radius.”
Montero insisted that regardless of the pilot’s choices, it was still Frazao’s job to separate aircrafts and issue safety alerts to them.
Rosenbaum pushed back, pointing out that Frazao fulfilled his primary duty of scanning the runway for takeoff and incoming flights.
“I’m not sure I see where the duty is coming from for him to have known when she didn’t specifically ask for [Flight Following] that there was going to be an air crash there,” Rosenbaum said. “His duty isn’t to continuously look at the radar screen.”
Slawson argued that the air traffic controller’s responsibilities fell under a Florida legal doctrine known as the undertaker’s doctrine, “which is simply judging whether or not the air traffic controller has done anything that would lead to detrimental reliance or increased risk upon the cause of damage.”
Neither of those things were the case here, the attorney said.
Rosenbaum was joined on the panel by U.S. Circuit Judges Elizabeth Branch and Andrew Brasher, both appointees of Donald Trump.
The judges did not indicate when they will reach a decision in the case.Follow @KaylaGoggin_CNS
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