Perry Hodges v. United States
78f4th1365
| 11th Cir. | 2023Background
- On July 17, 2018, two VFR airplanes (a Seneca and a Cessna) collided mid‑air outside Tamiami Tower’s Class D airspace, killing all on board. Both aircraft were not receiving Approach "Flight Following."
- Plaintiffs (estates) sued the United States under the FTCA alleging negligence by Tamiami Tower FAA controllers for failing to warn/prevent the collision.
- Tamiami Tower controllers had given the Seneca a takeoff clearance and a sequencing instruction to "follow" an earlier outbound Cessna; the controller discarded the Seneca’s flight strip when the Seneca left Class D airspace.
- Tower radar display (TDW) at Tamiami is optional and intended as an aid; controllers primarily use visual scanning for aircraft within the tower’s surface area. Controllers and pilots testified that controllers’ responsibility ends at the tower airspace boundary.
- The district court (bench trial) found no duty owed outside the Tower’s airspace, no breach (including no negligence in issuing/failing to rescind the "follow" instruction), and entered judgment for the United States; the Eleventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether controllers owed a duty to monitor/issue alerts to aircraft outside Class D | Controllers have a general duty (per ATCM) to prevent collisions and must monitor beyond Class D | Controllers' duty ends at their jurisdiction boundary; pilots do not expect monitoring outside Class D | Held: No duty outside tower jurisdiction; duty limited to Class D airspace |
| Whether controllers were required to monitor tower radar display (TDW) | ATCM authorizes traffic advisories via TDW and safety‑alert provisions imply a monitoring obligation | ATCM says TDW "may" be used; TDW is optional and primarily an aid for surface area; no mandated monitoring intervals | Held: TDW use is optional; no legal requirement to monitor it at particular intervals |
| Applicability of undertaker’s doctrine (prior advisories creating duty) | Past voluntary advisories/alerts outside tower created an assumed duty to continue those services with due care | No evidence of increased risk, reliance, or that pilots expected continuous monitoring outside Class D; prior acts do not create generalized duty here | Held: Undertaker’s doctrine inapplicable — no duty arose from past advisories in these facts |
| Negligence in issuing/failing to rescind the "follow" instruction | Controller was responsible for Seneca until he deleted the instruction and thus negligent for not deleting it | "Follow" is a sequencing instruction intended for the traffic pattern; a reasonable VFR pilot would not follow indefinitely after leaving pattern | Held: No negligence; reasonable inference that "follow" applied to pattern only and pilot would not follow it indefinitely |
Key Cases Cited
- Daley v. United States, 792 F.2d 1081 (11th Cir. 1986) (air traffic controllers’ duties are measured by reasonable care and the ATCM’s standards)
- Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182 (Fla. 2003) (Florida recognizes the undertaker’s doctrine and Restatement § 324A factors)
- Gill v. United States, 429 F.2d 1072 (5th Cir. 1970) (ATC procedural manuals can define government’s duty of care)
- Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (Fifth Circuit precedents are binding in the Eleventh Circuit)
- Abrisch v. United States, 359 F. Supp. 2d 1214 (M.D. Fla. 2004) (applying undertaker’s doctrine to ATC when controllers voluntarily provide services)
- Tartell v. S. Fla. Sinus & Allergy Ctr., Inc., 790 F.3d 1253 (11th Cir. 2015) (standards for appellate review of bench trial findings)
- Zelaya v. United States, 781 F.3d 1315 (11th Cir. 2015) (FTCA requires identifying an analogous state tort cause of action)