CAROL WOJCIECHOWICZ, Individually v. United States

Of the Tenth Circuit, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 08-2454
CAROL WOJCIECHOWICZ,
Individually and in Her Capacity as Executrix of the Estate of
Alexander Wojciechowicz and on behalf of the Conjugal Partnership
with Decedent Alexander Wojciechowicz; ET AL.,
Plaintiffs, Appellants,
v.
UNITED STATES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
Before
Lynch, Chief Judge,
Ebel and Lipez, Circuit Judges. *
Louis R. Martinez with whom Richard Ritorto, Martinez &
Ritorto, PC, Jaime E. Morales, Morales-Morales Law Offices,
Franklin F. Bass, Locke Lord Bissell & Liddell LLP, Doris Quinones
Tridas, and Quinones Tridas Law Office, PSC were on brief for
appellants.
Henry B. Goddard, Jr., Trial Attorney, U.S. Department of
Justice, Torts Branch, with whom Michael F. Hertz, Acting Assistant
Attorney General, Rosa Emilia Rodriguez-Velez, United States
Attorney, Andrew M. Eschen, Trial Attorney, and Sarah S. Keast,
Trial Attorney, were on brief for appellee.

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September 9, 2009

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LYNCH, Chief Judge. Sadly, this court is once again
addressing the legal aftermath of a small plane crash killing
several people. It has been some years since we last had to decide
such a case. See In re N-500L Cases, 691 F.2d 15 (1st Cir. 1982);
see also Fed. Express Corp. v. Rhode Island, 664 F.2d 830 (1st Cir.
1981); Delta Air Lines, Inc. v. United States, 561 F.2d 381 (1st
Cir. 1977). We affirm the entry of judgment for the United States
against plaintiffs' claim of air traffic controller liability in a
highly fact based tort case.
On the afternoon of January 5, 2002, a small Cessna
Conquest airplane flown by Alexander Wojciechowicz crashed into
high terrain in the Carribean National Forest near the El Yunque
mountain peak in Puerto Rico. Wojciechowicz and his four
passengers, members of his family, were killed. Plaintiffs, who
include Wojciechowicz's surviving relatives, his and his daughter's
estates, the aircraft's registered owner, and the aircraft's
insurer, sued the United States under the Federal Tort Claims Act
("FTCA"), 28 U.S.C. §§ 1346(b), 2671, alleging the air traffic
controller on duty in San Juan, Marcos Santiago, was negligent.
After a twelve-day bench trial, the district court
ultimately found that Santiago could not have reasonably foreseen
Wojciechowicz would take the actions he did, which were in direct
violation of a pilot's duties, that Santiago's actions or inactions
were not a proximate cause of the crash, and that Wojciechowicz's

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own negligence was the sole cause of the crash. The court also
found that the controller had not violated any duty of care; but
even if the controller did violate a duty, the court found that any
violation did not cause the crash. The judge apportioned no
liability to the government. Wojciechowicz v. United States, 576
F. Supp. 2d 241, 278 (D.P.R. 2008).
On appeal, plaintiffs claim the district court primarily
erred in finding there was no duty of care stemming from a Federal
Aviation Administration ("FAA") operations manual and FAA training
instructions. They say this error infected the later findings,
which, they say, are clearly erroneous anyway. First, they argue,
the court erroneously held that ¶ 5-5-9 of the FAA Air Traffic
Control Manual ("ATCM"), FAA Order 7110.65M, which requires
controllers to maintain separation of aircraft from prominent
obstructions depicted on the radar screen by specified minimum
distances, did not apply to Wojciechowicz's flight, which was under
Visual Flight Rules ("VFR") (as opposed to Instrument Flight Rules
("IFR")), and that Santiago owed no duty to warn Wojciechowicz to
change course. Second, they argue the court erred in holding that
the air traffic control authority, the San Juan Combined Enroute
and Radar Approach Control Facility ("CERAP"), was authorized to
depart from the FAA's curriculum in training Santiago and that it
trained him adequately. See FAA Air Traffic Technical Training
Manual, FAA Order 3120.4J.

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The record supports the district court's findings that
plaintiffs nonetheless failed to meet their burden to show
negligence or causation. We reject plaintiffs' arguments that
these findings were clearly erroneous and affirm.
I.
We outline the facts. Greater detail may be found in the
district court's opinion. Wojciechowicz, 576 F. Supp. 2d at 246-
51.
Wojciechowicz owned a vacation home on Culebra Island and
was an experienced pilot with nearly four thousand hours of flight
experience. He had flown the route between Culebra Island and the
San Juan airport over two hundred times and was familiar both with
the approach to the airport and with El Yunque and the surrounding
terrain. He was rated for flight under both IFR and VFR.
At approximately 2:00 p.m. that day, Wojciechowicz took
off from Culebra Island, which is eighteen nautical miles east of
the east coast of Puerto Rico, for a flight to San Juan
International Airport. The trip can be completed in twenty to
thirty minutes.
Wojciechowicz chose to fly under VFR. His choice had
several consequences. Under VFR procedures, set forth in FAA
regulations and the FAA-published Aeronautical Information Manual
("AIM"), a pilot navigates by observing the surroundings rather
than by relying on instruments. As a pilot under VFR,

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Wojciechowicz was forbidden by FAA regulations from flying into
clouds or into areas of reduced visibility unless he asked the
controller for permission to do so. See 14 C.F.R. § 91.155; In re
N-500L Cases, 691 F.2d at 28-29; Cappello v. Duncan Aircraft Sales
of Fla., Inc., 79 F.3d 1465, 1467, 1469 (6th Cir. 1996). Although
he never asked for permission, the pilot did exactly that.
By contrast, pilots under IFR must file a special flight
plan, must navigate by use of their instruments, and may not fly
below Minimum Vectoring Altitude ("MVA"), which is generally set at
two thousand feet above the elevation of the terrain. VFR pilots
are not so restricted and may fly below both the MVA and the
elevation of nearby terrain. See Biles v. United States, 848 F.2d
661, 663 (5th Cir. 1988). In sparsely populated areas, such as the
area in which the crash occurred, there is no restriction on how
low a VFR pilot may fly except that the pilot must maintain a
minimum distance of five hundred feet laterally from any structure,
vehicle, or person. 14 C.F.R. § 91.119(c). Wojciechowicz operated
under VFR procedures throughout the flight.
Wojciechowicz contacted CERAP by radio in San Juan at
2:18 p.m., about eighteen minutes after he left Culebra, to request
landing at Luis Muñoz Marin International Airport in San Juan. He
was then ten miles east of Fajardo, Puerto Rico, and traveling at
190 knots, or about three miles per minute. At 2:18:30 p.m.,
Santiago requested that Wojciechowicz "squawk" 0477 into his

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A controller gives a pilot a "squawk," or a radar 1
identification code, for the pilot to input into the plane's
transponder that identifies the flight on the radar scope. See
Cappello, 79 F.3d at 1468 n.1.
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aircraft's transponder to allow Santiago's radar scope to better
identify the aircraft. Wojciechowicz complied. Santiago 1
responded to Wojciechowicz's landing request at 2:19:54 p.m.,
providing him with an approach vector to the airport from the
traffic pattern south of Plaza Carolina and weather information for
San Juan. Santiago asked Wojciechowicz to state his altitude.
Wojciechowicz replied that he was at 1600 feet above sea level and
stated he would stay south at Plaza Carolina. During his
communications with Santiago, Wojciechowicz gave no indication that
he was in any distress, that he was unaware of his altitude or
location, that he could not maintain his own separation from
terrain, or that he was in need of navigation assistance.
This was the first and only conversation between the
controller Santiago and the pilot and it took place between 2:18
and 2:20:37.
At that point, the plane was in clear air and had at
least ten miles of visibility. That meant the pilot could clearly
see the rising terrain to El Yunque ahead and the north coast of
Puerto Rico, where the airport was, to his right. The pilot could
also see there was a cloud base intersecting the rising terrain
ahead.

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Plaintiffs say that Santiago also had available to him a 2
"vector link," a feature that, when activated by the controller,
displayed the computer's prediction of where the aircraft would fly
minutes into the future. This information is immaterial to the
district court's findings.
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After the conversation ended, the plane continued on
Santiago's radar for nearly one more minute but disappeared from
the radar scope shortly before the accident. In the time the
aircraft remained on the radar, Wojciechowicz made no further
attempts to contact Santiago by radio. The last radar data for the
plane was received at 2:21:18. After radar contact was lost, the
plane's data on the airport radar scope entered "coast" mode, in
which the computer indicates radar contact is lost and predicts the
aircraft's position. The last coast data was displayed at 2
2:21:42. Within forty-three seconds, Santiago was on the radio
trying to get a response, without success, from the pilot. The
endpoint, the crash, occurred at approximately 2:23 p.m. at a point
1.43 miles northeast of the El Yunque peak and at an elevation of
1561 feet (El Yunque itself is 3637 feet tall).
We return to what Santiago knew from the radar. At the
point the plane disappeared from the radar, the plane was
approximately 4.7 miles from the peak of El Yunque. Wojciechowicz
at that point had ample visibility (of approximately three nautical
miles) to allow him to see the clouds he was approaching ahead and
an area of clear weather and lower terrain to the north to which he
could safely turn. The government's expert testified that

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Wojciechowicz could easily have avoided the crash by changing
course. He testified that Wojciechowicz would have needed only
seventeen to eighteen seconds to maneuver away from the accident
site.
The district court made findings about what information
was available to Santiago when there was radar contact.
Santiago's radar scope showed Wojciechowicz's altitude above sea
level and displayed MVA data for the surrounding area, but it did
not display terrain features, the elevation of the terrain, or the
aircraft's altitude above the ground. The scope did display
prominent obstructions, including El Yunque peak, which had a
communications tower located on it. It did not, however, display
the elevation of the tower or of El Yunque.
II.
Plaintiffs brought three lawsuits, seeking recovery for
the wrongful deaths of Wojciechowicz and one of his passengers,
contribution for money the insurers had paid to settle a state
court suit brought by relatives of two other passengers, and
contribution for funds paid by the insurer for the destruction of
the aircraft. On December 10, 2004, the district court granted the
government's motion to consolidate the cases.
Plaintiffs conceded that Wojciechowicz had been negligent
but argued the government was partially at fault for the crash.
They claimed Santiago had negligently failed to separate the flight

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The United States argued that Santiago had no duty under 3
¶ 5-5-9 to separate Wojciechowicz's flight from El Yunque because
¶ 5-5-9 applies only for IFR flights and that even if Santiago had
a duty to separate Wojciechowicz's flight, he did not breach his
duty.
The government argued that local air traffic control 4
authorities had the authority to modify Order 3120.4J's curriculum
and that Santiago had received adequate training.
The provision refers to two exceptions. It does not 5
apply in "En Route Stage A/DARC or Stage A/EDARC." There is
nothing in the record about these exceptions, but the parties agree
they do not apply to this case.
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from El Yunque peak by at least three miles, which they claim is
required by ¶ 5-5-9 of the ATCM. They also claimed CERAP had 3
failed to train and test Santiago on significant terrain areas and
obstructions as required by a curriculum contained in the FAA's Air
Traffic Technical Training Order, FAA Order 3120.4J. They argued 4
that had Santiago been more familiar with the terrain, he would
have issued a safety alert to Wojciechowicz, and this alert would
have resulted in avoidance of the crash.
Paragraph 5-5-9 of the ATCM, titled "Separation from
Obstructions," sits within Chapter 5 of the manual, titled "Radar,"
and Section 5 of that chapter, titled "Radar Separation." It
states in relevant part:
[S]eparate aircraft from prominent
obstructions depicted on the radar scope . . .
by the following minima:
1. When less than 40 miles from the antenna -
3 miles.
2. When 40 miles or more from the antenna - 5
miles.5

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In arguing that the ATCM carries the force of law, the 6
dissent mischaracterizes the law in this circuit. This panel is
bound by circuit precedent, which only an en banc court can change.
United States v. Lizardo, 445 F.3d 73, 88 (1st Cir. 2006).
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ATCM ¶ 5-5-9 (emphasis in original). Here, the required separation
was three miles.
While plaintiffs' case rests largely on ATCM ¶ 5-5-9 and
the training order, also pertinent to the case are the FAA
regulations, other provisions of the ATCM, and provisions of other
FAA manuals. The FAA has promulgated regulations that govern
pilots' operations. See 14 C.F.R. pt. 91. These regulations have
the force and effect of law, but here the plaintiffs do not claim
a violation of the C.F.R. In addition, the FAA publishes
operations manuals, including the ATCM for controllers and the AIM
for pilots.
The controlling law of this circuit is that the ATCM is
not a statute or a regulation but an internal FAA guideline issued
to FAA controllers, which governs their conduct. As such, under
our case law the ATCM is merely an indication of the standard of
care. Fed. Express Corp., 664 F.2d at 835. Further, we treat
"substantial" failures to adhere to the ATCM guidelines as
"persuasive as an indication of a lack of due care." Id. (quoting
Delta Air Lines, Inc., 561 F.2d at 390).6
Independently of ¶ 5-5-9's separation requirement, ATCM
¶ 2-1-6 requires a controller to issue a safety alert to the pilot

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if the controller is "aware the aircraft is in a position/altitude
which, in [the controller's] judgment, places it in unsafe
proximity to terrain, obstructions, or other aircraft."
The AIM, by contrast, is an FAA publication that explains
to pilots the application of FAA regulations in different
circumstances. Like the ATCM, the AIM is merely indicative of the
standard of care. Id.; Delta Air Lines, Inc., 561 F.2d at 390.
Several of its provisions also discuss the conduct of air traffic
controllers. Paragraph 5-5-8 of the AIM states that a pilot "is
responsible to see and avoid other traffic, terrain, or obstacles."
That provision also says that a controller will issue a safety
alert "if aware the aircraft is at an altitude believed to place
the aircraft in unsafe proximity to terrain, obstructions, or other
aircraft."
A separate provision, ¶ 3-2-6(f), states that "no
separation services are provided to VFR aircraft" in Class E
airspace, the class of airspace in which Wojciechowicz was
operating at all pertinent times. In addition, AIM § 4-1-17(e)
provides that VFR pilots are not relieved of their responsibilities
to "maintain appropriate terrain and obstruction clearance, or to
remain in [VFR-appropriate] weather conditions" by the fact that
they are receiving basic radar services from a terminal.
Finally, FAA Order 3120.4J is an FAA operating manual
addressed to air traffic control authorities. It sets forth a

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Plaintiffs cite Courses 55060 and 55065. Course 55060 7
states, "Given an unlabeled chart of the local area . . . the
individual shall label or draw the following: . . . Topographical
features." Course 55065 states, "Given an unlabeled video
map/overlay, the individual shall identify all items, plus . . .
Significant terrain areas and obstructions."
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national curriculum for training controllers. Two provisions of
Order 3120.4J set forth training exercises under which a trainee is
required to label or draw topographical features on an unlabeled
chart of the local area and to identify significant terrain areas
and obstructions on an unlabeled video map.7
The district court entered judgment in favor of the
United States. It held that ATCM ¶ 5-5-9 did not apply to VFR
flights but only to IFR flights. It further found that, even
assuming ATCM ¶ 5-5-9 did apply to VFR flights, Santiago did not
violate the provision because the last radar information he had for
the flight came well before it entered the three-mile radius around
El Yunque. Wojciechowicz, 576 F. Supp. 2d at 269. Crediting the
testimony of the government's expert witness, Edward Henderson,
that ¶ 5-5-9 requires a "radar separation," the court held that
"[w]ithout the aircraft remaining in radar contact it would have
been impossible for Mr. Santiago to apply the aforementioned radar
separation criteria to N441AW. Thus, the provisions of [¶] 5-5-9
could not have been implemented because the aircraft was not
visible on Mr. Santiago's radar scope." Id.

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The court also found that Santiago did not violate his
separate duty under ATCM ¶ 2-1-6. It found the data available to
Santiago did not provide him with information about the plane's
proximity to terrain, and, because Wojciechowicz was operating as
a VFR pilot, Santiago did not know his intentions as to his route.
Santiago was therefore not aware that Wojciechowicz was in a
position which, in Santiago's judgment, placed him in unsafe
proximity to terrain. Id. at 258-60.
As to the second issue, the court held that CERAP had
leeway to adapt Order 3120.4J's curriculum to local requirements
and that it had adequately trained Santiago on terrain features by
instructing him on local MVA information. Further, the court
found, any deficiency in training did not cause plaintiffs' harm.
The general terrain knowledge the training would have provided
would not have given Santiago sufficient information regarding the
flight's unsafe proximity to terrain to require the issuance of a
safety alert. Id. at 259-60, 262.
The district court also found that "even assuming
arguendo that a duty had been owed and breached by the controller
. . ., plaintiffs ha[d] failed to prove that any such breach was
the cause of the crash . . . or that the pilot's actions in this
case were foreseeable." Id. at 277. The court found that
Wojciechowicz's actions had been negligent and that his negligence
was the sole cause of the accident. Plaintiffs appealed.

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Paragraph 5-5-9 is itself silent on the issue; other ATCM 8
provisions specify that they apply exclusively to one or the other
type. This may show that the FAA would have specified that ¶ 5-5-9
applies only to IFR flights if that were the agency's intention.
However, it may be reasonable to think, given the regulatory
framework applicable to VFR pilots, that ¶ 5-5-9 does not apply to
VFR flights because the pilot of the VFR aircraft is assumed to be
able to see obstructions and to avoid them.
We also do not address the issue of whether plaintiffs' 9
claim is ever cognizable under the FTCA, given AIM ¶ 3-2-6(f)'s
express disclaimer that separation services are not provided to VFR
aircraft in Class E airspace. Governmental liability in airline
tort cases is based on the limiting principle that "[o]nce the
Government undertakes to provide services otherwise not required of
it," it is liable for negligent performance of those services.
Delta Air Lines, Inc., 561 F.2d at 389; see also Davis v. United
-15-
III.
In an appeal from a judgment following a bench trial, we
review a district court's findings of fact for clear error.
Janeiro v. Urological Surgery Prof'l Ass'n, 457 F.3d 130, 138 (1st
Cir. 2006); Harrison v. United States, 284 F.3d 293, 297 (1st Cir.
2002). We review questions of law de novo. Janeiro, 457 F.3d at
139. "The existence and extent of a duty of care are questions of
law; whether any such duty has been breached and whether proximate
cause exists are questions for the factfinder, whose determination
is binding on appeal unless clearly erroneous." Fed. Express
Corp., 664 F.2d at 835.
We need not address the issue of whether ¶ 5-5-9 applies
to controllers over VFR flights as well as over IFR flights. We 8
assume arguendo, in plaintiffs' favor, that the provision applies
to VFR flights.9

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States, 824 F.2d 549, 550-51 (7th Cir. 1987). Thus, we make an
assumption in plaintiffs' favor.
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The FTCA grants district courts jurisdiction over claims
for injury or loss of property, or personal
injury or death caused by the negligent or
wrongful act or omission of any employee of
the Government while acting within the scope
of his office or employment, under
circumstances where the United States, if a
private person, would be liable to the
claimant in accordance with the law of the
place where the act or omission occurred.
28 U.S.C. § 1346(b)(1).
Under the FTCA, the substantive law of the state where
the injury occurred governs. See In re N-500L Cases, 691 F.2d at
27. It is undisputed that Puerto Rico law applies here; for these
purposes, Puerto Rico is treated as a state. Negligence law in
Puerto Rico is governed by the Civil Code, which imposes liability
for an "act or omission" that causes damages to another through
fault or negligence." P.R. Laws Ann. tit. 31, § 5141; see also
Rodríguez-Quiñones v. Jiménez & Ruiz, S.E., 402 F.3d 251, 254 (1st
Cir. 2005). A plaintiff must prove injury, "a negligent or
intentional act or omission (the breach of duty element)," and "a
sufficient causal nexus between the injury and the defendant's
actions or omissions." Vázquez-Filippetti v. Banco Popular de
P.R., 504 F.3d 43, 49 (1st Cir. 2007). A defendant is only liable
for injuries "reasonably foreseeable to the defendant." Irvine v.
Murad Skin Research Labs., Inc., 194 F.3d 313, 322 (1st Cir. 1999)

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(applying Puerto Rico law); see also In re N-500L Cases, 691 F.2d
at 27-28 (same).
Foreseeability is a central element in Puerto Rico
negligence law and underlies both the issue of breach and of
proximate cause. Vázquez-Filippetti, 504 F.3d at 49. To establish
proximate cause, a plaintiff must prove that the accident was
"foreseeable and could have been avoided if the defendant had not
breached its duty of care." Grajales-Romero v. Am. Airlines, Inc.,
194 F.3d 288, 296 (1st Cir. 1999). Proximate cause is not proven
if the defendant can show the occurrence of an intervening cause
that was not foreseeable. Id.; see also Marshall v. Perez Arzuaga,
828 F.2d 845, 847 (1st Cir. 1987) (noting that the causation
requirement in Puerto Rico law "limits a party's liability for
hazards flowing from its negligence to those hazards that could be
'anticipated by a prudent person'" (quoting Pacheco v. P.R. Water
Res. Auth., 112 P.R. Offic. Trans. 369, 372 (1982))).
A separate issue is the duties of care owed respectively
by controllers and pilots. The violation of FAA regulations, which
have the force and effect of law, is negligence per se. See In re
N-500L Cases, 691 F.2d at 28. The plaintiffs' case is not based on
a violation of regulations. Rather, it is based on FAA manuals,
such as the AIM and the ATCM, which do not have the force of law
but only provide evidence of the standard of care among pilots and
controllers. Id. Still, "a substantial and unjustified failure

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to follow procedures made mandatory by the manual is persuasive as
an indication of a lack of due care." Fed. Express Corp., 664 F.2d
at 835 (quoting Delta Air Lines, Inc., 561 F.2d at 390) (emphasis
added).
Pilots are assumed to have read the AIM and FAA
informational circulars and to know their provisions. In re N-500L
Cases, 691 F.2d at 28. A controller is ordinarily entitled to
assume, absent an objective manifestation of evidence to the
contrary, that a pilot is complying with his own responsibilities
under FAA regulations and those manuals and circulars. In re
N-500L Cases, 691 F.2d at 31; Fed. Express Corp., 664 F.2d at
836-37. This has been our rule for some time and a number of other
circuits have adopted the same rule. See, e.g., Thurston v. United
States, No. 95-411, 1996 WL 579929, at *3 (10th Cir. Oct. 9, 1996)
(mem.); Cappello, 79 F.3d at 1468; Biles, 848 F.2d at 663; Redhead
v. United States, 686 F.2d 178, 183 (3d Cir. 1982).
It is also clear, to be sure, that if the controller were
negligent and if this were a proximate cause for the accident,
liability could be apportioned to the controller. See Rodriquez v.
United States, 823 F.2d 735, 745-46 (3d Cir. 1987). But liability
may be imposed only if it is foreseeable that the controller's
negligent conduct will cause injury. A plaintiff who establishes
the government breached its duties must show that the negligent
conduct is a legal cause of the harm. Delta Air Lines, Inc., 561

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Plaintiffs often ignore this principle by proceeding 10
backwards from the information now known and arguing about whether
Santiago's actions were reasonable given this knowledge. The
appropriate inquiry focuses on what was known to the controller at
the time. Kelley v. Schlumberger Tech. Corp., 849 F.2d 41, 45 (1st
Cir. 1988).
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F.2d at 394. The actions of the controller must be judged against
what a reasonable person, under the same or similar circumstances,
would have done. See W.P. Keeton et al., Prosser and Keeton on the
Law of Torts § 37, at 236-37 (5th ed. 1984).10
A. Plaintiffs' Claims under ATCM ¶ 5-5-9 (Controllers'
Duties as to Separation from Obstructions)
The government argues that the standard of care under
¶ 5-5-9 of the ATCM, assuming it applies to VFR flights at all,
turns on what a reasonable controller in Santiago's situation would
have done given the information he had available to him, the fact
that Wojciechowicz was operating as a VFR pilot, and the fact that
at a point before the buffer zone the plane was no longer on the
controller's radar screen.
Plaintiffs' core argument is that Santiago was in breach
of the ATCM ¶ 5-5-9 and that this was negligence per se, so they
need not prove causation. As required by our precedent, we reject
the argument that the ATCM has the same effect as a regulation and
that any violation would be negligence per se. Fed. Express Corp.,
664 F.2d at 835.
Plaintiffs also argue that they have established both a
violation of ¶ 5-5-9 and causation. They say that although the

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last radar data Santiago received showed the flight was 4.7 miles
from El Yunque peak, outside of the three-mile buffer, (a) ¶ 5-5-9
nonetheless required Santiago to issue a warning to Wojciechowicz
at some point before he entered the buffer, and (b) this warning
was necessary to allow the pilot adequate time to change course.
The latter proposition is simply untrue on the record. We turn to
the first contention.
Plaintiffs' theory is that even though Santiago could not
have foreseen Wojciechowicz's actions, that is immaterial because
Santiago was under a legal duty to keep a separation of three miles
between the plane and the El Yunque tower marked on his radar and
because the controller breached this duty by not issuing a
separation order well before the plane neared the buffer zone. If
Santiago had done so, they argue, Wojciechowicz would have been
alerted to the danger and would have changed course.
This argument goes to when separation must be maintained.
It suffers from the obvious problem that there was no violation of
the plain text of ¶ 5-5-9, which states only the three-mile
separation minimum. The provision contains no mandatory language
stating when a controller must take action to attempt to maintain
a separation. Given the lack of mandatory language in ¶ 5-5-9 on
the issue of when to maintain the separation, the district court
correctly understood the question posed by plaintiffs as one of

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The dissent, contrary to our law, characterizes this 11
question as one of law for a judge to decide and not a question of
fact. The reasonableness of a controller's action is in this case
a question of fact. Thus we have held that "[i]n deciding what a
reasonable person could do, a jury's latitude is considerable."
Rodríguez-Quiñones, 402 F.3d at 256.
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what a reasonable controller would have done on these particular
facts.11
Further, plaintiffs have not articulated any clear theory
on when separation must be initiated. James Parham, plaintiffs'
expert on air traffic control procedures, testified that a
reasonable and prudent controller would have given a separation
order when Wojciechowicz was seven miles away from El Yunque and
four miles from the three-mile buffer zone to give the pilot time
to comply and to avoid the obstruction. However, this was merely
Parham's opinion; Parham did not testify about actual practice
under ¶ 5-5-9.
Under our case law, actual practice under a regulation or
ordinance is important to determining its meaning and may become
another source of a legal obligation. See, e.g., Pelletier v. Main
St. Textiles, LP, 470 F.3d 48, 55-56 (1st Cir. 2006); South Shore
Hosp., Inc. v. Thompson, 308 F.3d 91, 102-03 (1st Cir. 2002); Delta
Air Lines, Inc., 561 F.2d at 389-90 & n.5. No evidence of actual
practice from the plaintiffs as to the interpretation of ATCM ¶ 5-
5-9 was admitted. The court was not required to accept Parham's

-- 21 of 44 --

The dissent advances a new theory that the controller had 12
a duty to separate within thirty seconds after the last coast data
disappeared from his radar scope; however, this was not argued by
any party to the case.
Contrary to the dissent, this case does not turn on any 13
rule that mere loss of radar contact, regardless of the surrounding
circumstances, would vitiate a legal duty which had already arisen
under ¶ 5-5-9.
-22-
view, which was inherently inconsistent with the testimony of the
government's expert.
The district court found that a reasonable controller,
given the facts of this case, would not have separated the flight
at (or before) 4.7 miles. That was because it was more reasonable 12
for the controller at that point to rely on the VFR pilot, who, the
controller could assume, was complying with his duties to see and
avoid terrain and obstacles and to maintain VFR-minimum visibility.
The pilot then had clear visibility. Wojciechowicz had given no
indication that he was in distress or unable to comply with his
obligations, and he would have had ample time to change course at
four miles out.13
The court's finding was not clear error. Wojciechowicz
was under a legal duty to know the route and to have consulted maps
of the area. See Cappello, 79 F.3d at 1468. There is no serious
contention that the pilot did not know where El Yunque was. In
contrast, Santiago did not then know the plane's course or altitude
or whether it was approaching or turning away from the obstruction,
El Yunque. And of course, the plane disappeared from Santiago's

-- 22 of 44 --

There was also no evidence presented that Santiago could 14
have reached the plane by radio contact if he had tried to do so
instantaneously with losing radar contact or at any point before
the crash, or that the pilot was then in control of the plane.
Plaintiffs bear the burden of proof.
-23-
radar and Santiago's attempts to reestablish contact with it were
unsuccessful.
Moreover, the government proffered a separate defense
that ¶ 5-5-9 could not apply under these circumstances. First, the
court accepted the testimony from the government expert, Edward
Henderson, elicited on cross-examination by plaintiffs' counsel,
that even assuming ¶ 5-5-9 applied to VFR flights, there was no
violation of ¶ 5-5-9 here because, flying under VFR, the pilot
could have changed direction or altitude at any time and the
controller would therefore not have known whether the aircraft came
within three miles of El Yunque. He further testified that ¶ 5-5-9
requires "a radar separation. And [Santiago did not] have radar on
the aircraft" after the plane disappeared from the radar screen.
This testimony, against the background facts, is consistent with
and sufficient to support the district court's conclusion that
there was no breach of any standard of care under ¶ 5-5-9, even
assuming it applied to VFR flights, and further, beyond duty, that
there was no causal connection.14
Plaintiffs have also failed to show clear error in the
court's finding that, even if Santiago had owed and breached a duty
under ¶ 5-5-9, there was no causal connection between any breach by

-- 23 of 44 --

-24-
Santiago and the accident, or the court's findings that the
accident was not foreseeable to Santiago.
Wojciechowicz was already required by FAA regulations to
change course and avoid flying into the clouds. Those clouds
intersected with the terrain near the crash site and obscured
visibility. See 14 C.F.R. § 91.155; Cappello, 79 F.3d at 1469.
The district court concluded that "[h]ad Mr. Wojciechowicz not
entered the clouds he would have had ample time to see and avoid
the terrain with which he ultimately collided." Wojciechowicz, 576
F. Supp. 2d at 255. The court supportably found the cause of the
crash was not that the flight came closer than three miles to the
radar tower on El Yunque or that it was flying in high terrain, but
that the pilot flew into a cloud in violation of FAA regulations.
Further, as the district court found, Santiago could not
have reasonably foreseen that Wojciechowicz would take the actions
that the district court found led to the accident, specifically
"fly[ing] into a cloud while traversing rugged, rising terrain at
low altitude and high speed." Wojciechowicz, 576 F. Supp. 2d at
277. A VFR pilot can change course and altitude at any time and
without need to obtain permission from the controller. See In re
N-500L Cases, 691 F.2d at 31; Cappello, 79 F.3d at 1469. Santiago
had no reason other than speculation to think that the flight was
heading directly into a cloud.

-- 24 of 44 --

We recognize but do not resolve the issue of whether this 15
discretionary language triggers the discretionary function
exception to the FTCA. See Fothergill v. United States, 566 F.3d
248, 252 (1st Cir. 2009).
-25-
B. ATCM ¶ 2-1-6 (Safety Alert)
Plaintiffs argue that Santiago was also in breach of his
duty under ATCM ¶ 2-1-6 to issue a safety alert to Wojciechowicz
because of his unsafe proximity to the terrain. Whether this
provision is evidence giving rise to a duty in the controller to
issue a safety alert turns on the information available to the
controller. The duty arises when the controller is "aware that the
aircraft is in a position or altitude which, in the controller's
judgment, places the aircraft in unsafe proximity to terrain or
obstructions." Wojciechowicz, 576 F. Supp. 2d at 258 (emphasis 15
in original). Here, the district court supportably found these
provisions did not apply to Santiago. Santiago only had
information on the flight's altitude above sea level; he had no
information about the elevation of the surrounding terrain, the
aircraft's altitude over the ground, or its proximity to any
terrain or obstacles (aside from its distance from the tower on El
Yunque). When the flight disappeared from Santiago's radar shortly
before the crash, he had even less information about the flight.
Nor was there any indication from Wojciechowicz before then that he
was in distress.

-- 25 of 44 --

We do not reach plaintiffs' argument that the district 16
court erred in holding that CERAP had leeway to depart from the
FAA's national training directives.
-26-
Plaintiffs argue that Santiago should have known the
aircraft was in unsafe proximity to terrain because it was flying
toward El Yunque peak at an altitude below the peak's elevation.
The district court made a finding rejecting this argument.
Wojciechowicz, 576 F. Supp. 2d at 260. There is no clear error in
the district court's conclusion that the information available to
Santiago, who knew Wojciechowicz was operating under VFR procedures
and who received no distress calls from the pilot, was insufficient
to alert Santiago to the fact that Wojciechowicz had placed himself
in a dangerous position. See id. at 259-60. A VFR pilot flying in
a sparsely populated area may fly close to the ground and below the
altitude of surrounding terrain, so long as minimum visibility is
maintained. 14 C.F.R. §§ 91.119(c), 91.155(a); see Biles, 848 F.2d
at 663.
C. Plaintiffs' Claim under Courses 55060 and 55065 of the
Air Traffic Technical Training Order
Plaintiffs' arguments related to alleged deficiencies in
Santiago's training fail for similar reasons. Essentially, they 16
argue that certain FAA training guidelines have the force of law
and that CERAP's failure to follow the training led to Santiago
being unfamiliar with the terrain and obstructions in his area of
responsibility and that because of his unfamiliarity, he did not

-- 26 of 44 --

Plaintiffs' argument that ¶ 2-1-6 required Santiago to 17
issue a safety alert is distinct from an argument they made to the
district court that Santiago was under a duty to issue a safety
advisory because of the presence of high terrain in the area. See
Wojciechowicz, 576 F. Supp. 2d at 266-67. Plaintiffs give no
citation to support the notion that there is a free-standing
obligation to issue a safety advisory. The district court rejected
the latter argument and plaintiffs have not challenged this holding
on appeal.
-27-
recognize the danger of Wojciechowicz's situation. They argue this
led Santiago to fail to issue a safety alert as required under ATCM
¶ 2-1-6.17
The district court accepted Santiago's testimony that he
was familiar with the location of El Yunque and the mountains but
not with every peak and valley. The court also found that even if
Santiago had been aware of the high terrain over which
Wojciechowicz was flying, he would not have been aware that the
aircraft was in unsafe proximity to the terrain because of the lack
of terrain information on his radar scope, the fact that he only
knew the aircraft's elevation above sea level rather than its
elevation above the ground, and the fact that he had no reason not
to presume that Wojciechowicz was complying with VFR flight
procedures. Wojciechowicz, 576 F. Supp. 2d at 259-60. The court
also found that general terrain knowledge would not have led
Santiago to be aware that the flight was in unsafe proximity to
terrain and that a safety alert was therefore required. Id. at
262.

-- 27 of 44 --

-28-
The bottom line is that there was no clear error in the
court's finding that the purported lack of training plaintiffs rely
on did not cause Santiago's inaction. In the end, the district
court found that there was no foreseeability and no causal
relationship between any breach by Santiago and the plaintiffs'
injury. These may be mixed questions of fact and law, but they are
components of negligence, so our review is for clear error. See
Fed. Express Corp., 664 F.2d at 835. There was no clear error
here.
Plaintiffs' only argument that the court clearly erred
is, again, that because the aircraft was flying toward El Yunque at
an altitude lower than the elevation of the peak, Santiago should
have known the aircraft was in unsafe proximity to the terrain.
For the reasons stated earlier, this argument fails.
D. Conclusion
Given the evidence and our standard of review in this
fact based case, we find no reversible error.
The district court's judgment is affirmed.
-Dissenting Opinion Follows-

-- 28 of 44 --

-29-
LIPEZ, Circuit Judge, dissenting. There is no question
that the pilot bears primary responsibility for the tragic accident
at issue here. Nevertheless, that is only part of the story. This
case raises important questions about the scope of an air traffic
controller's duty of care to a plane flown under visual flight
rules ("VFR") after radar contact initiated by the pilot is then
lost. The majority accepts the district court's finding that any
possible breach of duty by the controller did not contribute to the
crash. I do not agree. If a controller's duty to separate
aircraft from terrain continues after radar contact is lost, we
could not conclude that the controller's conduct had no effect on
the accident. I believe that Santiago did have such a duty and
that, on this record, he was required to attempt radio
communication with the airplane in time to separate it from El
Yunque. Because the record shows that, if Santiago had done so,
the plane crash might have been prevented, I cannot conclude that
Santiago's breach of duty did not contribute to the accident. I
therefore respectfully dissent.
I.
Paragraph 5-5-9 of the Air Traffic Control Manual
("ATCM") requires air traffic controllers to “separate aircraft
from prominent obstructions depicted on the radar scope,” and
specifies a minimum separation distance of three miles for aircraft

-- 29 of 44 --

Paragraph 5-5-9, which is titled "Separation from 18
Obstructions," states in relevant part:
[S]eparate aircraft from prominent obstructions depicted
on the radar scope . . . by the following minima:
1. When less than 40 miles from the antenna – 3 miles.
ATCM ¶ 5-5-9.
-30-
like the one flown by Wojciechowicz. The district court held that 18
this provision applies only to flights operating under instrument
flight rules ("IFR") and further concluded that, even if VFR
flights were within the scope of ¶ 5-5-9, Santiago did not violate
the provision because Wojciechowicz's plane was off radar by the
time the three-mile limit was reached. The majority assumes for
the sake of efficient analysis that ¶ 5-5-9 applies to VFR flights,
and it holds that the district court did not commit clear error in
finding no breach of duty because, even though radar contact with
Wojciechowicz's plane was lost, the controller could reasonably
rely on the pilot to see and avoid terrain and obstacles.
I do not understand how the majority can reach that
conclusion. If ¶ 5-5-9 applies to VFR flights, it can only be
construed to impose a legal obligation on controllers to take all
reasonable steps to separate aircraft from obstructions without
regard to the VFR pilot's separate duty to prevent accidents. As
plaintiffs argue, the very point of applying ¶ 5-5-9 to VFR
aircraft is to provide a second layer of protection against
accidents like the one that occurred in this case. It is precisely

-- 30 of 44 --

-31-
in cases of unforeseeable pilot negligence that ¶ 5-5-9 would play
its most critical role for VFR flights. It thus makes no sense to
say that the provision imposes a duty whose outer limit is reached
when the controller reasonably could rely on the pilot's own duty
of care. Such a conclusion defines the concurrent duty of the
controller out of existence.
To resolve this case, therefore, we cannot avoid directly
addressing two legal questions: (1) whether ¶ 5-5-9 applies to VFR
aircraft, and, if so, (2) the scope of the controller's duty under
that provision. I consider each of those in turn.
II.
Notwithstanding its assumption that ¶ 5-5-9 applies to
VFR flights, the majority discusses the nature of that provision at
some length and appears to conclude that the classic rules of
statutory interpretation do not apply to it. It points out that
the ATCM is neither a statute nor a regulation, but only an
internal FAA guideline that does "not have the force of law." It
effectively treats the provision's scope as a question of fact by
endorsing the district court's reliance on the government's expert,
Edward Henderson, who testified that ¶ 5-5-9 could not apply once
Wojciechowicz's plane disappeared from the radar screen. Henderson
also testified that he had never seen ¶ 5-5-9 used for VFR
aircraft, which led the district court to conclude that the
provision does not apply to VFR flights.

-- 31 of 44 --

Although the regulation refers to "control tower 19
operator[s]," courts have included air traffic controllers within
its scope. See, e.g., Campos Viuda de Courtois v. United States,
778 F. Supp. 585, 591 (D.P.R. 1991); In re N-500L Cases, 517 F.
Supp. 825, 834 (D.P.R. 1981), aff'd, 691 F.2d 15 (1st Cir. 1982).
-32-
Paragraph 5-5-9, however, constitutes more than
background guidance or advisory criteria whose applicability is
left to the controller's discretion. Although this court has
acknowledged the difficulty of distinguishing between law and
practice – particularly where informal documents such as guidelines
and handbooks are involved, see Nieves-Villanueva v. Soto-Rivera,
133 F.3d 92, 100-01 (1st Cir. 1997) – no such difficulty exists
here. A Federal Aviation Regulation ("FAR"), 14 C.F.R. § 65.45(a),
states that “[a]n air traffic control tower operator shall perform
his duties in accordance with . . . the procedures and practices
prescribed in air traffic control manuals of the FAA, to provide
for the safe, orderly, and expeditious flow of air traffic.”19
Because part 65.45(a) mandates compliance with air traffic control
manuals, the manuals themselves are incorporated into the
regulation and acquire the force and effect of law. See Ross v.
United States, 640 F.2d 511, 517 (5th Cir. 1981) (per curiam,
affirming on the basis of the district court's opinion) (stating
that provisions of a similar air traffic control manual have the
effect of FAA regulations); see also Rodriquez v. United States,
823 F.2d 735, 739 (3d Cir. 1987) (stating that FAR's "have the

-- 32 of 44 --

Contrary to the majority's assertion, evaluating the ATCM 20
as a provision of law is not inconsistent with First Circuit
precedent. The case cited by the majority, Federal Express Corp.
v. Rhode Island, 664 F.2d 830, 835 (1st Cir. 1981), holds that
violations of the ATCM "do not necessarily constitute negligence"
– a point with which I agree – but it does not hold that manual
provisions do not have the force of law. Indeed, Federal Express
Corp. equates mandatory ATCM provisions with statutes and
ordinances. See id. ("Although slight deviations from manual
procedures do not necessarily constitute negligence, we have
previously indicated that 'a substantial and unjustified failure to
follow procedures made mandatory by the Manual is persuasive as an
indication of a lack of due care.' The Rhode Island courts have
embraced a similar position, holding that in an action based on
violation of a statute or ordinance, 'evidence of injury
proximately caused by the violation is prima facie evidence of
defendant's liability . . . .'") (citations omitted).
This is not to say that FAA documents that contain only
advisory criteria, and not binding rules, must also be given the
force and effect of law. Ross, 640 F.2d at 518 (noting that
another FAA manual consisted of "advisory criteria rather than
binding FAA regulations").
-33-
force and effect of law"); In re N-500L Cases, 691 F.2d 15, 28 (1st
Cir. 1982) (same).20
Thus, ¶ 5-5-9 has the status of law and, as such, its
meaning must be determined in accordance with ordinary principles
of statutory construction rather than by means of expert testimony.
See United States v. Lachman, 387 F.3d 42, 50-52 (1st Cir. 2004)
(applying canons of statutory interpretation to federal
regulations); Nieves-Villanueva, 133 F.3d at 100 ("[I]t is for the
judge, not the lawyers or the witnesses, to inform the jury of the
law applicable in the case and to decide any purely legal issue.").
I thus begin by examining the language of the provision. See
Lachman, 387 F.3d at 50 (stating that, "'if the language of a

-- 33 of 44 --

Like ¶ 5-5-9, ¶ 5-5-10 specifies the separation distance 21
that controllers must maintain depending on the distance between
the aircraft and the radar antenna, or sensor, that is being used
by the controller. After explicitly excluding certain categories
of VFR flights from its coverage, the provision continues by
directing a "radar handoff" or termination of radar service for VFR
flights approaching the excluded types of airspace under the
-34-
statute or regulation has a plain and ordinary meaning, courts need
look no further and should apply the regulation as it is written'"
(quoting Textron, Inc. v. Comm'r, 336 F.3d 26, 31 (1st Cir.
2003))).
The paragraph as written does not include an exception
for VFR aircraft and, in the absence of such an exclusion, there is
no basis for concluding that the controller lacks separation
responsibility for VFR flights that are receiving radar services.
See Wojciechowicz v. United States, 576 F. Supp. 2d 241, 252
(D.P.R. 2008) (stating that Wojciechowicz was receiving "basic
radar service"). Although it is conceivable that VFR flights by
definition would fall outside provisions requiring controllers to
separate aircraft from obstructions displayed on their radar
scopes, the next ¶ of the ATCM belies any such notion. Paragraph
5-5-10 addresses separation distances from "adjacent airspace" in
which radar separation is also being used, and it excludes certain
VFR aircraft from its dictates. See ATCM, FAA Order 7110.65M § 5-
5-10 (c) (“The provisions of subpara[graph]s a and b do not apply
to VFR aircraft being provided Class B, Class C or TRSA
services.”). This attention to VFR flights reinforces the 21

-- 34 of 44 --

control of another air traffic control facility.
The majority notes that the FAA-published Aeronautical 22
Information Manual ("AIM") expressly states that separation
services are not provided to VFR aircraft in Class E airspace. The
district court found that Wojciechowicz's plane entered Class G
airspace one minute before the collision and flew in and out of
Class G from that time until the crash, including "at least the 10
seconds prior to colliding with the terrain." Wojciechowicz, 576
F. Supp. 2d at 251.
-35-
interpretation that such flights are covered by the radar
separation provisions unless explicitly excluded. See § 5-5-10(d).
"'[W]here Congress includes particular language in one section of
a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.'" Russello v. United
States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim
Bo, 472 F.2d 720, 722 (5th Cir. 1972)) (alteration in original);
Trenkler v. United States, 268 F.3d 16, 23 (1st Cir. 2001). That 22
principle has no less force in this context.
Construing ¶ 5-5-9 to apply to VFR flights does not
conflict with the VFR pilot's responsibility to see and avoid
obstructions. Controllers and pilots have a concurrent duty to
maintain safety, see, e.g., Delta Air Lines, 561 F.2d at 392
("[A]lthough pilots are undoubtedly responsible for the safety of
their aircraft, controllers are concurrently responsible for
adhering to procedures which minimize the difficulties for the

-- 35 of 44 --

-36-
crew."), and the FAA has acknowledged that rules relating to pilots
and controllers may overlap. Section 5-5-1(e) of the AIM states:
The responsibilities of the pilot and
controller intentionally overlap in many areas
providing a degree of redundancy. Should one
or the other fail in any manner, this
overlapping responsibility is expected to
compensate, in many cases, for failures that
may affect safety.
Imposing the duty to separate under ¶ 5-5-9 on
controllers for all flights receiving basic radar services is one
obvious method to protect against unexpected "failures that may
affect safety." Hence, I can only conclude that the plain,
unlimited language of ¶ 5-5-9 governs and that the provision
applies to VFR as well as IFR flights. I therefore must consider
the scope of the duty imposed by the provision and whether it was
breached in the circumstances of this case.
III.
The majority explains why the district court could
properly find that Santiago did not act unreasonably in failing to
contact Wojciechowicz before the plane disappeared from radar, when
it was still approximately 4.7 miles from El Yunque. Paragraph 5-
5-9 prescribes a mandatory minimum of three miles, and the record
shows that Wojciechowicz still had plenty of time at the 4.7-mile
point to change course and avoid crashing into the mountain. The
majority errs, however, in deferring to the district court's
conclusion that Santiago's duty ended when radar contact was lost.

-- 36 of 44 --

The majority asserts that I have improperly treated the 23
question of the reasonableness of the controller's actions under ¶
5-5-9 as one of law rather than fact. This misrepresents my
analysis, which is consistent with our decision in Federal Express
Corp., 664 F.2d at 835. We held there that "[t]he existence and
extent of a duty of care are questions of law; whether any such
duty has been breached and whether proximate cause exists are
questions for the factfinder, whose determination is binding on
appeal unless clearly erroneous." Id. My analysis considers
"[t]he existence and extent" of the controller's duty under ¶ 5-5-9
as a question of law and the issue of breach as a factual question.
-37-
Nothing in ¶ 5-5-9 suggests that the duty to separate aircraft from
obstructions automatically dissolves when a plane receiving radar
services suddenly disappears from the screen. Indeed, no one would
suggest that the loss of radar contact with a flight operating
under instrument rules terminates the controller's duty to provide
separation services.
The majority holds that, in the absence of "mandatory
language stating when a controller must take action to attempt to
maintain a separation," the district court permissibly treated the
question of duty "as one of what a reasonable controller would have
done on these particular facts." I have no problem with the
majority's statement of the general principle. The majority goes 23
on to conclude, however, that the district court committed no clear
error in finding that it was reasonable for the controller to
assume that the VFR pilot knew where he was and could see the
mountain, and, on that basis, acted reasonably in failing to
immediately initiate contact with the pilot when the plane
disappeared from radar.

-- 37 of 44 --

-38-
As I have explained, ¶ 5-5-9 has no purpose in the VFR
context unless it is to serve as backup protection against the
possibility of pilot negligence. In imposing a concurrent duty on
controllers to separate VFR flights from obstructions, ¶ 5-5-9
effectively incorporates an assumption that pilot negligence is
foreseeable. The fact that Wojciechowicz, as a VFR pilot, should
have been aware of his surroundings is thus besides the point, and
the controller's duty under ¶ 5-5-9 is no different for VFR flights
than for IFR flights. If a plane is no longer visible on the radar
screen, the only way for the controller to be sure there is proper
separation between that aircraft and prominent obstructions is to
contact the pilot directly. From that perspective, it is apparent
that Santiago's duty under ¶ 5-5-9 could not automatically end with
the loss of radar contact. Rather, as with an IFR flight, the duty
to maintain separation required him to make reasonable efforts to
contact Wojciechowicz to ensure that the aircraft remained three
miles away from El Yunque. It was foreseeable that, in the event
of pilot negligence, Santiago's failure to take that step could be
disastrous.
Santiago’s own actions and testimony indicate that he was
aware of his responsibility to attempt to contact Wojciechowicz.
Although Santiago testified that short-term loss of radar contact
with an aircraft is not unusual, he acknowledged that if an
aircraft disappears from his scope, he would, “most frankly,”

-- 38 of 44 --

The district court found that the plane crashed about two 24
seconds later, "approximately 45 seconds" after the last coast data
appeared. Wojciechowicz, 576 F. Supp. 2d at 259.
-39-
inform that aircraft that radar contact was lost. He explained
that he does not necessarily inform a pilot that radar contact is
lost when the plane's data is in "coast" mode – the short period
immediately after the loss of radar contact when the computer
predicts the flight's likely path – because planes sometimes will
"go into coast . . . and then they'll come back." The flight
transcript shows that Santiago attempted to reach Wojciechowicz's
plane by radio more than a dozen times, starting at 43 seconds
after the plane's coast data disappeared from the radar scope
(roughly the time of the crash).24
The district court's view that Santiago's duty under ¶ 5-
5-9 ended when the plane was no longer visible on radar is thus
unsupportable. That legal error infected the district court's
fact-finding and undermines the majority's reliance on it.
Examining the record in light of the proper scope of ¶ 5-5-9, the
remaining question is whether Santiago breached his duty to
maintain separation by failing to contact the pilot for 43 seconds
after all radar information about the flight ended. I now turn to
that question.

-- 39 of 44 --

-40-
IV.
In one sense, it is undisputed that Santiago failed to
perform his duty to ensure three miles of separation between the
plane and prominent obstructions. The aircraft was permitted to
penetrate the three-mile “ring” around El Yunque and crashed 1.43
miles from the mountain’s peak. Wojciechowicz, 576 F. Supp. 2d at
246. The majority is correct, however, that simple breach of the
duty does not amount to negligence, and the issue before us turns
on "what a reasonable controller would have done on these
particular facts" to fulfill his duty under ¶ 5-5-9. Santiago did
attempt to contact the pilot. Hence, the specific question to be
addressed is whether his delay in doing so was reasonable.
The record shows that a reasonable factfinder would have
to conclude that it was not. Santiago knew or should have known,
based on the information displayed on his scope, that at the moment
actual radar contact was lost, the airplane was only 1.7 miles away
from the three-mile ring – the minimum distance for separation
specified in ¶ 5-5-9. See Wojciechowicz, 576 F. Supp. 2d at 259.
He also knew that the plane was headed toward the mountain. Even
if a three-mile separation was no longer feasible, Santiago at
least needed to take all reasonable steps to contact Wojciechowicz
early enough to guide the plane away from the mountain in case the
pilot inexplicably failed to change direction on his own.

-- 40 of 44 --

The majority states that reliance on a duty to separate 25
within thirty seconds after the coast data disappeared introduces
a new theory to the case. That is not so. Plaintiffs make the
following argument in their brief:
[T]he district court's finding that "[t]he last 'coast'
data block on the Aircraft was seen at 2:21:42 p.m.,
approximately 45 seconds prior to the crash," also
undercuts the court's conclusion that it would have been
impossible for Santiago to have complied with § 5-5-
9. . . . Based upon any reasonable view of the evidence,
Controller Santiago had sufficient information and time
to issue a separation instruction to the Aircraft, as
required by § 5-5-9. This analysis is also consistent
with the testimony of the government's piloting expert
who testified that Mr. Wojciechowicz, the pilot, could
have climbed the Aircraft out of its predicament at a
point as late as 17 or 18 seconds prior to impact.
Although the plaintiffs' timing discussion focused primarily on the
contention that Santiago needed to contact the plane before it
reached the three-mile minimum distance from obstructions, the
underlying theory is the same whether the focus is the three-mile
-41-
The government's expert testified that Wojciechowicz
could have maneuvered the plane away from the accident site within
17 or 18 seconds. The last coast data appeared on radar at about
45 seconds before the crash. Id. Accepting the end of all data as
a reasonable trigger for the controller's concern, and even
allowing for a brief delay as Santiago came to the realization that
the plane had not reappeared on the radar scope, Santiago still had
more than thirty seconds to attempt to turn the aircraft before the
impact occurred – nearly double the time needed. He waited,
however, until virtually the time of impact to initiate radio
contact. On this record, that delay can only be found
unreasonable. I realize that thirty seconds is not much time. 25

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minimum or separation from the mountain itself – i.e., that
Santiago had a duty to act before it was too late.
I do not suggest that the government bore full, or even 26
substantial, responsibility for the crash. Under Puerto Rico law,
where the relative fault of the plaintiff and defendant is taken
into account, a factfinder properly could have concluded that the
government was responsible for only a small percentage of the
damages. See, e.g., Campos Viuda de Courtois, 778 F. Supp. at 590
("[I]f both the plaintiff and defendant are at fault, the plaintiff
can still recover, but his recovery is limited to the proportion of
damages sustained by the plaintiff that were proximately caused by
the defendant's negligence."); P.R. Laws Ann. tit. 31, § 5141
("Concurrent imprudence of the party aggrieved does not exempt from
liability, but entails a reduction of the indemnity.").
-42-
In the business of air traffic control, however, split seconds
matter, and the stakes are enormous. If Santiago had fulfilled his
duty under ¶ 5-5-9 of the ATCM – to "separate [the] aircraft from
[the] prominent obstruction[] depicted on the radar scope" – this
accident may have been avoided.26
The majority observes in a footnote that there was no
evidence presented that Santiago could have reached the plane by
radio if he had tried earlier. To the contrary, Santiago and
Wojciechowicz had been communicating by radio, showing that the
radio was functioning properly. There is no basis for concluding
that the radio would have suddenly failed before the plane crashed.
Nor is there any reason to think that Santiago could not
have guided the change of course within the 17 or 18 seconds the
expert estimated would ordinarily be necessary. The record shows
that, despite the lack of radar contact, Santiago had some
awareness of the airplane’s location. After the crash, he directed

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-43-
numerous planes and police helicopters directly to the crash site,
at one point stating that “once you get close to the area I’ll give
you a point out.” Therefore, regardless of the pilot’s own
disorientation, Santiago had sufficient knowledge of the plane’s
whereabouts to accomplish the required separation.
V.
The tragic result in this case might have been avoided if
the government had performed its duty under ¶ 5-5-9 to maintain a
three-mile separation between Wojciechowicz's plane and El Yunque.
The plain language of the provision extends the duty to separate
aircraft from obstructions to IFR and VFR flights alike, and that
duty does not terminate when radar contact is lost unexpectedly.
Indeed, even under VFR conditions, the unexplained loss of all
radar contact when a plane is heading directly toward an
obstruction and nearing the three-mile safety barrier should
trigger the controller's immediate concern. To fulfill his duty
under ¶ 5-5-9, the controller had to act quickly to contact
Wojciechowicz so that, if necessary, he could guide the pilot in
separating the plane from El Yunque. In the circumstances here,
Santiago's 43-second delay before attempting such contact was
unreasonable.
In concluding that the district court committed no clear
error in evaluating the facts, the majority misconstrues the law
and the principle of concurrent duty. The government has

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undertaken to act as a safeguard to potential pilot negligence, and
when it performs that function negligently, its actions cannot be
insulated from review because of the pilot's errors. Sadly, it
takes only a few seconds of inattention on the part of an air
traffic controller for tragedy to strike. I would reverse and
remand with instructions that the district court apportion
responsibility for the tragedy between the pilot and the controller
under Puerto Rico's tort law.

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