Perry Hodges, et al. v. USA

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12316
____________________
PERRY W. HODGES,
AURORA CECILIA SCARPATI RIPALDA,
as Personal Representative of the Estate of
Carlo Alfredo Zanetti Scarpati, deceased,
MARLENIS SANCHEZ,
PEDRO SANCHEZ,
Plaintiffs-Appellants,
MONICA D. DOMINGUES,
Plaintiff,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.

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2 Opinion of the Court 22-12316
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-21893-DPG
____________________
Before R OSENBAUM , BRANCH, and BRASHER , Circuit Judges.
B RANCH, Circuit Judge:
On July 17, 2018, two airplanes—a Seneca and a Cessna—
collided mid-air, tragically killing the pilots and passengers in both
planes. The Seneca was piloted by Nisha Sejwal, with Ralph Knight
accompanying her. The Cessna was piloted by Jorge Sanchez, with
Carlo Scarpati, a student pilot, also on board. Both planes were
“VFR” aircraft operating under standard visual flight rules.1 The
Seneca was departing from, and the Cessna was arriving at, the
Tamiami Airport (now known as the Miami Executive Airport)
when the collision occurred. The representatives of the pilots’
estates filed suit against the United States under the Federal Tort
Claims Act (“FTCA”), alleging negligence on the part of Federal
Aviation Administration (“FAA”) air traffic controllers at the
1 Under visual flight rules (“VFR”), pilots receive guidance from air traffic
controllers in the form of traffic advisories and safety alerts while inside the
airport’s jurisdiction, but still retain discretion over routes and altitudes during
flight. Compared to instrument flight rules, which impose a “highly
structured environment” in which a pilot is in constant contact with air traffic
control, VFR grants pilots a greater degree of flexibility.

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22-12316 Opinion of the Court 3
Tamiami Airport. Following a bench trial, the district court
entered judgment in favor of the United States, and the Plaintiffs
appealed. After careful review and with the benefit of oral
argument, we affirm.
I. Background2
A. Air Traffic Control Practices and Procedures
As part of its mission to ensure “the safety and efficiency”
“of the use of the navigable airspace” of the United States and to
“promote safe flight of civil aircraft in air commerce,” the FAA
operates a national air traffic control system which services pilots
from various facilities, including air traffic control towers. 49
U.S.C. §§ 40101(d)(4), (6), 44701(a). The Tamiami Airport, located
in Miami-Dade County, Florida, is staffed by FAA employees,
including air traffic controllers who work in the Tamiami Tower
and manage air traffic that is largely flying under VFR. The
prescribed practices and procedures of FAA air traffic controllers
are set out in FAA Order JO 7110.65, which we will refer to as the
“Air Traffic Control Manual” or “ATCM.” This Order is routinely
updated and superseded, and the version in effect on the date of the
crash was JO 7110.65X, Change 1. The provisions contained in the
2 We recount the facts as presented to the district court at trial. On appeal
from a bench trial, we review issues of law de novo and review issues of fact for
clear error. Direct Niche, LLC v. Via Varejo S/A, 898 F.3d 1144, 1149 (11th Cir.
2018) (citing Crystal Ent. & Filmworks, Inc. v. Jurado, 643 F.3d 1313, 1319 (11th
Cir. 2001)). This standard provides that “we may reverse the district court’s
findings of fact if, after viewing all the evidence, we are left with the definite
and firm conviction that a mistake has been committed.” Id.

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4 Opinion of the Court 22-12316
ATCM “appl[y] to all [Air Traffic Organization] personnel and
anyone using [Air Traffic Organization] directives.” ATCM § 1-1-
2.
FAA facilities operate inside jurisdictional boundaries, and
each facility is responsible for the aircraft operating inside its
respective jurisdiction. The Tamiami Airport operates inside what
is known as Class D (or Class Delta) airspace,3 and, according to
evidence put forth at trial, the air traffic controllers stationed at
Tamiami Tower are responsible for controlling the aircraft within
that jurisdiction. The Tower’s airspace is cylindrical, extending
2,500 feet in the air, with a radius of 3.5 nautical miles, meaning
that it ends about four standard miles from the airport.
While in Class D airspace (both when arriving and
departing), pilots are required to establish two-way radio
communications with the Tower and maintain that connection
while operating inside Class D airspace. 14 C.F.R. § 91.129(c)(1)
(“Each person must establish two-way radio communications with
the [air traffic control] facility . . . providing air traffic services prior
3 According to FAA Order JO 7400.2, controlled airspace is divided into various
classes, Class A through Class E, with Class A being the most restrictive and
Class E being the least restrictive. Class D airspace is defined as “[g]enerally,
th[e] airspace from the surface to 2,500 feet above airport elevation . . .
surrounding those airports that have an operational control tower.” Order JO
7400.2 § 14-1-2(d). Each Class D airspace area “is individually tailored[.]” Id.
Class E airspace, on the other hand, includes “[s]urface area designation for an
airport where a control tower is not in operation and for non-towered
airports.” Id. § 14-1-2(e). For purposes of this case, the crash occurred in Class
E airspace.

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22-12316 Opinion of the Court 5
to entering that airspace and thereafter maintain those
communications while within that airspace.”). When no longer in
Class D airspace, however, pilots are not obligated to monitor the
Tower’s radio frequency and do not need to seek permission from
the Tower to switch frequencies. Aeronautical Information
Manual (“AIM”) § 4-3-2(a) (“In the interest of reducing tower
frequency congestion, pilots are reminded that it is not necessary
to request permission to leave the tower frequency once outside of
. . . Class D surface areas.”); see also 14 C.F.R. § 91.129(c)(2)(i).
The Tamiami Tower provides service from 7:00 a.m. to
11:00 p.m. daily, meaning that if an airplane is taking off from or
landing at the Tamiami Airport outside of those hours, the pilot
will not have the benefit of air traffic controller assistance. But
during business hours, air traffic controllers are responsible for
separating and sequencing airplanes in the “traffic pattern,”4 i.e.,
ensuring that there is sufficient space between aircraft to prevent
collision. The “traffic pattern” or “pattern” is a circuit or path
around a runway in which controllers sequence aircraft for take-off
and landing. See AIM fig. 4-3-3. The FAA’s air traffic control expert
witness testified that controllers are responsible for maintaining
separation between VFR aircraft “between departures and
arrivals[,] and arrivals and departures,” but “[t]hey do not receive
any separation [while] airborne in the” Tower’s airspace.
4 The ATCM defines “traffic pattern” as “[t]he traffic flow that is prescribed for
aircraft landing at, taxiing on, or taking off from an airport.” ATCM at PCG
T–7.

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6 Opinion of the Court 22-12316
Air traffic controllers generally use various instructions to
provide their sequencing and separation services for aircraft in the
pattern. For instance, the ATCM sets forth “phraseology” for
controllers to use when communicating with aircraft to “[e]stablish
the sequence of arriving and departing,” such as “cleared for
takeoff,” “follow,” “circle the airport,” “make left/right,” “go
around,” and “cleared to land.” ATCM § 3-8-1. To provide these
services, air traffic controllers primarily use their naked eye from
their position in the tower—sometimes aided by binoculars.
Tower radar display, also referred to as “tower display
workstation” or “TDW,” is a tool used to assist local air traffic
controllers in locating aircraft that are too far away from the Tower
to see with the naked eye. FAA regulations permit, but do not
require, air traffic controllers to use tower radar display. See ATCM
§ 3-1-9(a) (“Uncertified tower display workstations must be used
only as an aid to assist controllers in visually locating aircraft or in
determining their spatial relationship to known geographical
points.”)5; id. § 3-1-9(b) (outlining permitted uses for which “[l]ocal
controllers may use certified tower radar displays” (emphasis
added)). Instead, the majority of air traffic controllers’ time and
effort in fulfilling their responsibilities is spent visually scanning the
runways and “surface area.” ATCM § 3-1-9(b)(4), note. For
purposes of this case, the “surface area” is the airspace contained
5 Plaintiffs do not contest that the ATCM permits but does not require the use
of tower radar display.

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22-12316 Opinion of the Court 7
within the Tamiami Tower’s airspace boundary beginning at the
surface and extending upward.
While the Tamiami Tower is equipped with tower radar
display, it is not a true radar facility that provides radar tracking
throughout the entire duration of a flight. Radar tracking, or
“Flight Following,” is available by request from the nearby Miami
Approach located near Miami International Airport. “Flight
Following” services provide pilots with traffic advisories, safety
alerts, weather information, and radar monitoring and surveillance
throughout the duration of the flight. In this case, neither aircraft
involved in the crash requested Flight Following and thus were not
receiving those radar-tracking services at the time of the crash.
Once outside the Tamiami Tower’s airspace, the pilots themselves
are solely responsible for maintaining vigilance to “see and avoid”
other aircraft to prevent collisions.
Another tool air traffic controllers utilize when providing
separation and sequencing services in the traffic pattern, including
at Tamiami Tower, is called a “flight strip” or “flight progress
strip,” which helps the controllers keep track of the planes and
coordinate their departures. The flight strips are physical forms
containing information about a certain plane, such as the plane’s
call sign, parking location, and the relevant departure runway.
When an aircraft operating under VFR is preparing to depart
Tamiami Airport, the controller fills out the flight strip once the
pilot of the departing aircraft calls the Tower while still on the
ground. The controller then places the flight strip onto the “strip

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8 Opinion of the Court 22-12316
bay,” indicating that the aircraft can receive taxiing instructions and
can then receive clearance for takeoff. Once the aircraft takes off
and departs the Tower’s airspace without conflict, the controller
discards the flight strip. The ATCM does not address the precise
moment at which a controller may discard a flight strip but rather
instructs controllers to “remove the strips from the flight progress
board when no longer required for control purposes.” ATCM § 2-
3-1(a).
B. The June 17, 2018, Crash
FAA air traffic controllers Austin Frazao and Steven Yanker
were working in the Tamiami Tower on June 17, 2018. Yanker
was serving as the controller in charge with general supervisory
responsibilities, and Frazao was the air traffic controller providing
separation and sequencing services to the departing Seneca.
Yanker, as general supervisor, was not monitoring the other
controllers or the tower radar display continuously.
Sejwal, the pilot of the Seneca, was taking a practical exam
for her commercial pilot certificate,6 while her co-pilot Knight
served as her examiner on the flight, which originated from
Tamiami Airport. She informed the Tower that she would be
flying northwest after take-off and the Tower instructed her to taxi
to one of the runways. Frazao then gave Sejwal clearance to take
off with the instruction to “follow” an outbound Cessna that was
6 Tamiami Airport is a facility in which approximately two-thirds of the air
traffic is generated by nearby aviation schools.

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22-12316 Opinion of the Court 9
heading in the same direction as the Seneca and had taken off
shortly before Sejwal. At no point did Frazao tell Sejwal to stop
following the Cessna. When the Seneca departed the Tower’s
airspace, Frazao discarded the flight strip for the Seneca and the
district court determined that the Seneca was no longer in two-way
radio communication with the Tower at that time.
Approximately 15 seconds before the collision, an inbound
Cessna piloted by Sanchez made a partial radio transmission
informing the Tamiami Tower of its location. Frazao, having
received the transmission, looked at the tower radar display to
determine the inbound Cessna’s location and realized that it was
on a collision course with the outbound Seneca. Because he no
longer had the Seneca’s call sign (he had discarded the flight strip)
and because he did not know the Cessna’s call sign—either because
it was not in the Cessna’s transmission at all or, if the Cessna
transmitted its call sign, Frazao was not able to hear or understand
it—Frazao issued a general radio broadcast: “[T]raffic at your 12
o’clock, less than a mile, 1400.”7 But the call came too late; the
outbound Seneca and the inbound Cessna collided in midair, killing
the pilots and passengers in each plane.
At the time of the collision, both planes were outside the
Tamiami Airport’s Class D airspace (and thus outside the Tower’s
territorial jurisdiction), approximately 9.4 nautical miles away from
the airport. The crash occurred in the Class E airspace controlled
7 “1400” refers to the distance away from the Tamiami Tower the Seneca was
located at that time.

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10 Opinion of the Court 22-12316
by Miami Approach located near Miami International Airport.
Both planes were equipped with Traffic Information Service
(“TIS”), which is a system that notifies a pilot within 30 miles of a
major airport if other planes are approaching it, but it is not clear
from the record whether the devices in each plane were
operational or in use at the time of the crash.
C. Procedural History
This case originated as four separate lawsuits, each filed by
the representatives of the pilots’ and passengers’ estates
individually, in May and June 2019. Each Plaintiff asserted a single
cause of action for negligence against the United States under the
FTCA. The United States filed its answers and affirmative
defenses, and the district court consolidated the actions in August
2019. One of the Plaintiffs settled her claim in August 2020, leaving
three Plaintiffs in the consolidated action.
The remaining parties proceeded to a bench trial which
lasted for a total of eleven days spanning August, October, and
November 2021. The district court issued its findings of fact and
conclusions of law orally at the hearing, entering judgment in favor
of the United States in May 2022. The district court concluded that
Plaintiffs’ claim failed because Plaintiffs did not meet their burden
of proving that the air traffic controllers breached a duty to the
pilots and, even if they did breach a duty, the district court was
“unable to find that any breach was the proximate cause of the
[decedents’] death or deaths.”

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22-12316 Opinion of the Court 11
First, the district court concluded that the air traffic
controllers did not owe any duty to the pilots because both planes
were operating outside the airspace that is the territorial
jurisdiction of the Tamiami Tower. The district court
acknowledged that there was some evidence in the record that
Frazao had previously given traffic advisories to planes outside the
Tamiami Tower’s territory, but “it simply [did not] change [the]
finding” that the controllers did not owe a duty to the pilots once
they exited the Tower’s airspace.
As far as the relevant standard of care, the district court
noted that there was no evidence “that the air traffic controllers
violated any specific rules or regulations of the FAA, [the] Tamiami
Airport, or the air traffic controllers’ manual,” but also
acknowledged that the absence of a violation did not necessitate a
finding of no negligence.
With respect to the alleged acts of negligence—Frazao’s
“follow” instruction to Sejwal and his alleged “fail[ure] to delete
the instruction, placing [the outbound Seneca] in the path of the
inbound Cessna”—the district court concluded that “it [was]
simply not reasonable . . . to believe that [Sejwal] would have
simply followed Mr. Frazao’s instruction to . . . follow [the out-
bound Cessna] indefinitely outside the [Tower’s] Class D[]
airspace.” Therefore, the district court held that Frazao did not
“deviate[] from the standard of care by giving his general
instruction to follow the outbound Cessna under these
circumstances.”

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12 Opinion of the Court 22-12316
The district court then considered whether the air traffic
controllers’ failure to issue a timely safety alert or traffic advisory
despite the planes’ proximity to each other was negligent and
whether the controllers were obligated to monitor the tower radar
display in order to observe the planes’ proximity and issue alerts or
advisories as appropriate. The district court reiterated that both
planes were outside the Tamiami Tower’s jurisdiction and that
Frazao was not aware of the inbound Cessna until it radioed
seconds before the collision. The district court concluded that
while it was “clear and imminent that [a] collision was going to
occur,” it “simply [could not] find, as a matter of law, that an air
traffic controller at a Class D[] airport must review a [tower radar
display], a device that they are not required to use, at any particular
interval or for any particular length of time.” The district court also
noted that neither the Seneca nor the inbound Cessna had
requested Flight Following from Miami Approach.
Given the foregoing, the district court concluded that (1) the
air traffic controllers did not breach any duty of care owed to the
pilots, and (2) Plaintiffs did not show that Frazao’s or the other air
traffic controllers’ conduct “was the proximate cause of the
collision,” specifically finding that the “follow” instruction was not
the proximate cause of the collision.
Lastly, the district court made note of what it called
“conflicting evidence” in the record, including that “[t]here [was]
an issue about whether the Seneca . . . [was] on Tamiami’s
frequency when the collision occurred in Class E airspace” (outside

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22-12316 Opinion of the Court 13
the Tower’s airspace) such that it was not clear whether the pilots
would have heard any transmissions from Frazao. The district
court did not make an explicit finding resolving that issue.
However, the district court stated that Plaintiffs’ expert testified
that it takes 12.5 seconds for a pilot to “see and avoid” a crash, and
the FAA’s expert testified that Frazao learned of the inbound
Cessna about 9 seconds before the collision, such that by the time
Frazao heard the transmission, the crash was inevitable. The
district court also noted there was testimony that there were “no
reported problems with the TIS system on the Seneca when it was
used on an earlier flight that day.” Having noted those facts from
the record, the district court concluded that “while there is some
evidence to support the [P]laintiffs’ claims, the [P]laintiffs bear the
burden of proof in this case, and even by a preponderance standard,
I just simply cannot find that the [P]laintiffs have tipped the scale in
their favor[.]”
Plaintiffs timely appealed.
II. Discussion
Plaintiffs raise five issues on appeal, arguing that the district
court erred in concluding that: (1) the air traffic controllers did not
owe or breach any duty of care to the pilots; (2) Frazao was not
negligent in issuing but failing to rescind the “follow” instruction;
(3) the Seneca was no longer in communication with the Tamiami
Tower after leaving Class D airspace; and (4) Plaintiffs had not
proven proximate causation. Plaintiffs also contend that (5) the

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14 Opinion of the Court 22-12316
district court erred by considering what Plaintiffs claim was
evidence of comparative negligence. We discuss each in turn.
“After a bench trial, we review the district court’s
conclusions of law de novo and the district court’s factual findings
for clear error.” Tartell v. S. Fla. Sinus & Allergy Ctr., Inc., 790 F.3d
1253, 1257 (11th Cir. 2015) (quoting Proudfoot Consulting Co. v.
Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009)). “A factual finding is
clearly erroneous if, after viewing all the evidence, we are left with
the definite and firm conviction that a mistake has been
committed.” Id. (quotation omitted); see also Fed. R. Civ. P. 52(a)(6)
(“Findings of fact, whether based on oral or other evidence, must
not be set aside unless clearly erroneous, and the reviewing court
must give due regard to the trial court’s opportunity to judge the
witnesses’ credibility.”). “Where there are two permissible views
of the evidence, the factfinder’s choice between them cannot be
clearly erroneous.” Morrissette-Brown v. Mobile Infirmary Med. Ctr.,
506 F.3d 1317, 1319 (11th Cir. 2007) (quotation omitted).
A district court’s finding of negligence is a factual finding
that we review for clear error. Keefe v. Bahama Cruise Line, Inc., 867
F.2d 1318, 1321 (11th Cir. 1989) (“[W]e apply the clearly erroneous
standard to the district court’s finding of negligence.”). “In
determining the appropriate standard of care, [however,] we are
free to review the district court’s conclusion” and we thus review
de novo. Id.; see also Daley v. United States, 792 F.2d 1081, 1085 (11th
Cir. 1986) (“The nature and extent of the duty of due care which

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22-12316 Opinion of the Court 15
air traffic controllers owe pilots and their passengers is a question
of law[.]”).
The claims in this case are asserted under the FTCA, which
provides that the United States is liable in tort for injury resulting
from “the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office or
employment . . . 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). We must identify “an analogous
state tort cause of action” in an FTCA case. Zelaya v. United States,
781 F.3d 1315, 1325 (11th Cir. 2015); see also Cedant v. United States,
___ F.4th ____, No. 21-12661, 2023 WL 4986402, at *1 (11th Cir.
Aug. 4, 2023). This is a negligence action, and, under Florida law,
which applies here, Plaintiffs must prove four elements to prevail:
1. A duty, or obligation, recognized by the law,
requiring the defendant to conform to a certain
standard of conduct, for the protection of others
against unreasonable risks.
2. A failure on the defendant’s part to conform to the
standard required: a breach of the duty.
3. A reasonably close causal connection between the
conduct and the resulting injury. This is what is
commonly known as legal cause, or proximate cause,
and which includes the notion of cause in fact.
4. Actual loss or damage.

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16 Opinion of the Court 22-12316
Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003)
(alterations adopted and quotation omitted). In this case, we
examine the first three elements.
A. Whether the air traffic controllers owed or breached
any duty of care to the pilots
The first issue we consider is whether the district court erred
as a matter of law in concluding that the air traffic controllers did
not have or breach a duty8 to monitor airspace outside of the
Tower’s airspace nor were required to monitor the tower radar
display. Specifically, Plaintiffs contend that the air traffic controllers
had a duty, under the ATCM, to avoid collision of aircraft generally
and had a duty to monitor tower radar displays. Plaintiffs also rely
on the “undertaker’s doctrine” to support their duty argument,
asserting that, because the controllers previously gave safety alerts
and traffic advisories outside of the Tower’s airspace, the
controllers had a duty to perform such services with due care in
this case. Plaintiffs finally argue that the controllers breached this
duty, whatever the source. Each of Plaintiffs’ arguments fails.
Under Florida law, a duty can arise from any one of four
general sources: “(1) legislative enactments or administration
8 The district court concluded that Plaintiffs did “not [meet] their burden of
showing that the air traffic controllers breached their duty to the plaintiffs,” as
well as that “the air traffic controllers had no general duty to monitor the
Seneca and inbound Cessna[.]” It also stated that it could not “find, as a matter
of law, that an air traffic controller at a Class D[] airport must review a” tower
radar display. We therefore review both the existence of a duty and whether
the controllers breached that duty.

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22-12316 Opinion of the Court 17
regulations; (2) judicial interpretations of such enactments or
regulations; (3) other judicial precedent; and (4) . . . from the
general facts of the case.” Clay, 873 So. 2d at 1185 (quoting McCain
v. Fla. Power Corp., 593 So. 2d 500, 503 n.2 (Fla. 1992)). We have held
that, in aviation cases alleging the negligence of air traffic
controllers, “[t]he duty owed is . . . [the state’s] traditional standard
of reasonable care, that which a reasonably careful person would
use under like circumstances.” Daley, 792 F.2d at 1085 (alteration
adopted and quotation omitted). However, we have also held that
“the precise nature of the assistance . . . the controllers owed [to
pilots] . . . [is] required by the provisions of the United States’ own”
ATCM. Id. See also id. at 1086 (holding that “the ATCM spell[ed]
out[] the duties imposed upon the United States controllers” and
thus “the district court did not err in concluding that reasonable
care under the circumstances required reasonable compliance with
the United States’ own self-imposed standard of care”); Gill v. United
States, 429 F.2d 1072, 1075 (5th Cir. 1970) (“[T]he government’s
duty to provide services with due care to airplane pilots may rest
. . . upon the requirements of procedure[] manuals spelling out the
functions of its air traffic controllers[.]”).9
Florida law, following the Restatement (Second) of Torts,
also recognizes the “undertaker’s doctrine.” Clay, 873 So. 2d at
9 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(holding that all decisions from the Fifth Circuit Court of Appeals issued before
the close of business on September 30, 1981, are binding precedent in the
Eleventh Circuit).

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18 Opinion of the Court 22-12316
1186.10 The doctrine provides that “[w]henever one undertakes to
provide a service to others, whether one does so gratuitously or by
contract, the individual who undertakes to provide the service . . .
thereby assumes a duty to act carefully and to not put others at an
undue risk of harm.” Id. (citing Restatement (Second) of Torts
§ 323 (Am. L. Inst. 1965)). The doctrine also applies to third parties
and not just to parties in privity with each other.11 Id. (citing
Restatement (Second) of Torts § 324A). The standard for the
undertaker’s doctrine as applied to third parties set forth by the
Restatement—and followed by Florida courts—is as follows:
One who undertakes, gratuitously or for
consideration, to render services to another which he
should recognize as necessary for the protection of a
10 Two federal district courts in Florida have applied this doctrine to cases
involving air traffic controllers and aircraft collisions, but we have not done so
to date. See Abrisch v. United States, 359 F. Supp. 2d 1214, 1226 (M.D. Fla. 2004)
(“[O]nce [air traffic controllers] undertake to provide a service, even one not
required by the [ATCM], under general negligence principles, air traffic
controllers have a duty to provide such services with due care.”); Zinn v. United
States, 835 F. Supp. 2d 1280, 1312 (S.D. Fla. 2011) (concluding that because
“[t]he FAA’s controllers undertook to provide a service,” they “assumed a
duty” “aris[ing] under” the ATCM, “to act carefully and not to put [the
plaintiff] at undue risk of harm”).
11 In this case, we are primarily concerned with the applicability of the
undertaker’s doctrine to third parties because there is no allegation that the
controllers and the pilots were in privity with each other. As we understand
Plaintiffs’ argument on this issue, they contend that because the controllers
used tower radar display and provided alerts or advisories to other pilots in the
past (i.e., third parties), the controllers were thus obligated to provide those
same services to the pilots in this case.

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22-12316 Opinion of the Court 19
third person or his things, is subject to liability to the
third person for physical harm resulting from his
failure to exercise reasonable care to protect his
undertaking, if
(a) his failure to exercise reasonable care
increases the risk of such harm,12 or
(b) he has undertaken to perform a duty owed
by the other to the third person, or
(c) the harm is suffered because of reliance of
the other or the third person upon the
undertaking.13
12 With respect to an increase in the risk of harm to the plaintiff, the Supreme
Court of Florida in Clay considered whether a streetlight maintenance
company assumed a legal duty as to a minor pedestrian who was killed by a
truckdriver on a street where the streetlights were inoperable. Clay, 873 So.
2d at 1184. The court concluded that the maintenance company’s “failure to
exercise due care in maintaining the streetlights caused the roadway to be cast
in darkness, thus increasing the risk that [the driver] would be unable to see
[the pedestrian.]” Id. at 1187. Therefore, the issue of “increased risk . . . pose[d
a] viable issue[] to be decided by the trier-of-fact.” Id.
13 In Johnson, Florida’s Second District Court of Appeal considered the
requirement that the plaintiff must have relied upon the defendant’s
undertaking as to third parties in order for the defendant to owe a legal duty
to the plaintiff. See Est. of Johnson ex rel. Johnson v. Badger Acquisition Of Tampa
LLC, 983 So. 2d 1175, 1186 (Fla. 2d DCA 2008). In that case, the estate of a
nursing home resident claimed that two companies that provided consulting
pharmacy services to the nursing home were negligent in providing those
services, which led to the resident’s death. Id. at 1178–79. The court
concluded that where there was no evidence that the decedent “relied on, or

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20 Opinion of the Court 22-12316
Restatement (Second) of Torts § 324A. Florida courts have noted
that “[g]enerally, [the undertaker’s doctrine] is inapplicable . . .
where an undertaker ‘was not engaged to perform a service
reasonably expected to be relied upon by a stranger to the
engagement.’” Est. of Johnson ex rel. Johnson v. Badger Acquisition Of
Tampa LLC, 983 So. 2d 1175, 1186 (Fla. 2d DCA 2008) (quoting
Casamassina v. U.S. Life Ins. Co., 958 So. 2d 1093, 1102 (Fla. 4th DCA
2007) (alteration adopted)). The factors set forth in the
Restatement (Second) of Torts § 324A(a) through (c) are fact-
specific.
We first address Plaintiff’s argument that the controllers had
a duty to act with due care toward the pilots—even when they were
no longer in the Tower’s airspace. Specifically, they rely on section
2-1-1 of the ATCM, which provides that “[t]he primary purpose of
the [air traffic control] system is to prevent a collision involving
aircraft operating in the system.” ATCM § 2-1-1(a). They also
point to section 2-1-2(a), which instructs controllers to “[g]ive first
priority to separating aircraft and issuing safety alerts,” and to
section 2-1-6, which provides that safety alerts should be issued if a
controller is “aware [that an] aircraft is in a position/altitude that
. . . places it in unsafe proximity to . . . other aircraft.” According
to Plaintiffs, it was “legal error” for the district court “to interpret
even knew about” the consultant pharmacy services, there was no basis for
the court to find “any voluntary assumption of duties that would give to a
legal duty” to the decedent. Id. at 1187.

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22-12316 Opinion of the Court 21
[the ATCM] provisions” to apply only to the Tower’s airspace
where “those provisions contained no such limitation[.]”
Plaintiffs’ argument ignores other evidence in the trial
record. While nothing in the text of the above ATCM provisions
limits the controllers’ duty to prevent collisions to the Tower’s
airspace only, the district court also heard other evidence on the
issue of where a controller’s duty begins and ends, all of which
made clear that the controllers’ duty in this case ended at the
boundary of the Tower’s airspace. For instance, the district court
heard testimony from the FAA’s air traffic control expert witness,
who testified that “there are definitive jurisdictional boundary lines
that segregate air traffic control facilities,” that controllers are
“responsible for controlling aircraft within that jurisdictional
boundary,” and that the collision occurred outside the Tamiami
Airport’s territorial jurisdiction. The expert also testified that,
under “standard operating procedure for Tamiami [Tower],” and
under the AIM, Frazao’s “responsibility end[ed] at the edge of [the
Tower’s] airspace,” meaning that “when . . . aircraft exit [the
Tower’s airspace] into [Class E] airspace, [Frazao’s] responsibility
end[ed] there.” The expert testified that pilots are instructed by the
AIM that “the controller is no longer monitoring [them]” “once
they leave [the Tower’s airspace]” because they are not required to
remain on the Tower’s radio frequency.14 The FAA’s piloting expert
14 The AIM supports this testimony. See AIM § 4-3-2(a) (“Unless there is a good
reason to leave the tower frequency before exiting the . . . Class D surface
area[], it is a good operating practice to remain on the tower frequency for the
purpose of receiving traffic information. In the interest of reducing tower

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22 Opinion of the Court 22-12316
testified that pilots outside the Tower’s airspace would also not
expect to receive travel advisories unless they had requested Flight
Following—a service that neither of the pilots in this case
requested. Frazao testified that the Seneca and the Cessna were
“outside [his] jurisdiction pretty much,” and Yanker, the general
supervisor in the Tamiami Tower, similarly testified that “once
[aircraft] leave [the Tower’s airspace], I’m not speaking to them
anymore.” While the ATCM provisions upon which Plaintiffs rely
do not squarely limit a controller’s monitoring duties to their
respective tower’s jurisdiction, other evidence demonstrated that
neither controllers nor pilots expect or anticipate a controller to
monitor aircraft outside that jurisdiction.
Accordingly, we agree with the district court’s conclusion
that the territorial jurisdiction of the Tower limits the scope of the
air traffic controllers’ duty. The outer boundaries of the Tamiami
Tower’s territorial jurisdiction of Class D airspace mark the outer
boundaries of the air traffic controllers’ duty to provide
monitoring, sequencing, and separation services to prevent
collisions of aircraft. Thus, when considering the provisions of the
ATCM in conjunction with the evidence in the record, we conclude
that the district court was correct that the controllers did not owe
a duty to issue safety alerts or traffic advisories to the pilots because
frequency congestion, pilots are reminded that it is not necessary to request
permission to leave the tower frequency once outside of . . . Class D surface
area[].”).

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22-12316 Opinion of the Court 23
the Seneca had exited, and the Cessna had not yet entered, the
Tower’s airspace.
To avoid this conclusion, Plaintiffs argue that the controllers
have a separate obligation to monitor tower radar display even after
aircraft exit the Tower’s airspace, again relying on various
provisions of the ATCM. They are incorrect.
Section 3-1-9 of the ATCM provides that air traffic
controllers “may use certified tower radar displays for” various
purposes, including “[t]o determine an aircraft’s identification,
exact location, or spatial relationship to other aircraft,” “[t]o
provide aircraft with radar traffic advisories,” and “[t]o provide
information and instructions to aircraft operating within the
surface area for which the tower has responsibility.” ATCM § 3-1-
9(b) (emphasis added). As an initial matter, it is clear from this
section that air traffic controllers are not required to use tower
radar display; rather, section 3-1-9 states that controllers “may use”
tower radar display for certain purposes. Id. (emphasis added).
This section does not contain any mandate or requirement that
controllers monitor tower radar display at all. Id. The district court
was thus correct when it found that air traffic controllers “are not
required to use” tower radar display “at any particular interval or
for any particular length of time.”
Commentary to section 3-1-9(b)(4) bolsters the non-
mandatory nature of the tower radar displays:
Unless otherwise authorized, tower radar displays are
intended to be an aid to local controllers in meeting

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24 Opinion of the Court 22-12316
their responsibilities to the aircraft operating on the
runways or within the surface area. . . . [L]ocal
controllers at nonapproach control towers must
devote the majority of their time to visually scanning
the runways and local area[.]
ATCM § 3-1-9(b)(4) cmt. Accordingly, it is clear that the “majority”
of local air traffic controllers’ time at a non-approach tower like
Tamiami Airport is used visually monitoring the airways, not using
the optional tower radar display. Id. And, to the extent the air
traffic controller uses the tower radar display at all, the displays are
“an aid to local controllers in meeting their responsibilities to the
aircraft operating on the runways or within the surface area,” i.e.,
Class D airspace. Id. (emphasis added). While it is true, as Plaintiffs
argue, that the ATCM instructs controllers to devote the
“majority” of their time to scanning runways and the surface area
visually, see id., and “majority” does not mean “all” of an air traffic
controller’s time, it is clear from the commentary to section 3-1-
9(b)(4) that the primary responsibility of an air traffic controller is
to observe the runway and surface area visually, rather than
through tower radar display. Controllers are simply not required
to use tower radar display at all, much less to monitor aircraft
outside their tower’s territorial jurisdiction.
Lastly, Plaintiffs’ final argument as to duty is that Florida’s
undertaker’s doctrine requires the controllers to issue traffic
advisories and safety alerts outside the Tower’s airspace. In so
arguing, Plaintiffs rely on Frazao’s and Yanker’s testimony at trial
that they had issued traffic advisories to aircraft outside the Tower’s

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22-12316 Opinion of the Court 25
airspace in the past. Plaintiffs also point to the testimony of the
FAA’s piloting expert, who testified that Tamiami controllers
sometimes provide traffic advisories to aircraft outside the Tower’s
airspace with whom they are in two-way radio communication.
However, contrary to Plaintiffs’ assertions, whether or not
Frazao and Yanker (or other Tamiami controllers) had undertaken
monitoring responsibilities or activities for aircraft outside the
Tower’s airspace in the past has no bearing on the alleged
negligence in this case—as the district court correctly found.
First, Plaintiffs make no argument that Frazao or Yanker
increased any risk of harm to the pilots here by previously issuing
traffic advisories or safety alerts outside the Tower’s airspace, and
there is no evidence in the record to suggest as much. See
Restatement (Second) of Torts. § 324A(a). Second, the record is
completely silent as to whether the pilots knew that Frazao and
Yanker had previously issued advisories or alerts to other pilots in
the past, or whether they believed they would be receiving
monitoring outside the Tower’s airspace, such that they could have
relied on Frazao’s and Yanker’s prior purported undertakings. See
id. § 324A(c). Rather, there is evidence in the record that suggests
the opposite, given that as a matter of course pilots do not expect
to receive Flight Following unless they specifically request it, nor
should they expect to be monitored by the Tamiami Tower prior
to their entrance into or after their departure from the Tower’s

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26 Opinion of the Court 22-12316
Class D airspace.15 We therefore conclude that the district court
did not err as a matter of law in concluding that the air traffic
controllers did not owe a general duty to monitor the outbound
Seneca and the inbound Cessna on the tower radar display while
outside the Tower’s airspace. And because no duty was owed, the
district court correctly found no breach.
15 Plaintiffs also challenge the district court’s factual finding that Sejwal, who
was piloting the outbound Seneca, was no longer in two-way radio
communication with the Tamiami Tower after the Seneca left the Tower’s
airspace as inconsistent with evidence from trial. They contend that if Sejwal
remained in two-way communication with the Tower, she could have
received and heeded traffic advisories or safety alerts that Frazao was, in
Plaintiffs’ view, under a duty to issue. As an initial matter, Plaintiffs are
incorrect that competing evidence renders the district court’s finding clearly
erroneous. The district court, as fact finder in the bench trial, was entitled to
credit certain evidence over other evidence and to draw its own conclusions
where the evidence permits two permissible inferences or conclusions. See
Morrissette-Brown, 506 F.3d at 1319. While Plaintiffs are correct that neither
party established at trial with certainty whether Sejwal was or was not tuned
into the Tower frequency when she left the Tower’s airspace, the district
court’s conclusion—supported by the evidence from the FAA’s piloting expert
and from Frazao—that Sejwal was no longer in two-way radio
communications with the Tower was not clearly erroneous. See also 14 C.F.R.
§ 91.129(c)(2)(i) (“Each person . . . [f]rom the primary airport . . . must establish
and maintain two-way radio communications with the control tower, and
thereafter as instructed by [air traffic control] while operating in the Class D
airspace[.]” (emphasis added)); AIM § 4-3-2(a) (“In the interest of reducing
tower frequency congestion, pilots are reminded that it is not necessary to
request permission to leave the tower frequency once outside of . . . Class D
surface areas.”).

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22-12316 Opinion of the Court 27
B. Whether Frazao was negligent in issuing but failing to
rescind the “follow” instruction
Plaintiffs’ second challenge is to the district court’s
conclusion that Frazao was not negligent for issuing the instruction
for Sejwal to “follow” the outbound Cessna but failing “to delete
the instruction[.]” They also argue that the district court erred in
determining that it would not have been reasonable for Sejwal to
adhere to the follow instruction indefinitely. Because the district
court found no negligence, which is a question of fact, this is an
issue we review for clear error. Keefe, 867 F.2d at 1321.
We turn to evidence considered by the district court. First,
section 3-8-1 of the ATCM provides a list of possible
“sequence/spacing” instructions air traffic controllers can issue to
pilots, including “follow,” which informs the pilot about the
“description and location of traffic.” ATCM § 3-8-1. While section
3-8-1 of the ATCM does not specify whether a “follow” instruction
would apply only to aircraft in the “traffic pattern,” or to aircraft in
flight as well, the FAA’s piloting expert testified that the instruction
would apply “[j]ust in the traffic pattern,” that he “would not
expect to follow the aircraft anywhere beyond the pattern” if he
were to receive that instruction, and that a reasonable pilot would
“absolutely” have the same understanding. At trial, the FAA’s
piloting expert testified that the “follow” instruction is generally
understood to be given for the purpose of sequencing aircraft in
the traffic pattern, analogizing the instruction to directions given
by a parking lot attendant to a driver of a car: “[The ‘follow’
instruction in this case is] much like if you are leaving a parking lot

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28 Opinion of the Court 22-12316
and the parking lot attendant says, ‘Okay,’ giving directions, ‘follow
that car out of the parking lot[.]’” He also testified that, upon
receiving a “follow” instruction from air traffic control, no
reasonable pilot would understand the directive to apply
indefinitely, again returning to the parking lot analogy: “[Y]ou are
going to follow that [car] out of the parking lot in sequence, but
you are not going to follow them all the way to their home.” In
other words, a pilot to whom air traffic control issued a “follow”
instruction would understand that air traffic control was
instructing him to follow a certain aircraft out of the pattern and
then proceed on his own “route[] of flight . . . chosen by the pilot
in VFR in Class D and E airspace”; he would not follow the other
aircraft all the way to its destination. Conversely, Plaintiffs’ piloting
expert testified at trial that, “as a pilot,” he would adhere to air
traffic control’s “follow” instruction “until further advised[.]”
Plaintiffs’ air traffic control expert witness testified that
Frazao “had the responsibility to remember the [Seneca] because
he had issued a control instruction to follow the Cessna . . . , and
until he deleted that instruction[,] he was responsible for that
airplane.” However, the FAA’s piloting expert testified that “[n]ever
in [his] flying history” has he “ever been told to stop following an
aircraft.” Frazao, for his part, testified that he had given the same
“follow” instruction “[s]everal times [every] day” and had never
been asked by a pilot how long the instruction was intended to
apply.

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22-12316 Opinion of the Court 29
The district court, having been presented with two
permissible views of the evidence, was entitled to credit one view
over the other—in this case, the view put forth by the FAA. See
Morrissette-Brown, 506 F.3d at 1319 (“Where there are two
permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.” (quotation omitted)). Given
the evidence put forth by the FAA that the “follow” instruction
would apply only to the traffic pattern, that Sejwal would be
expected to adhere to that instruction only until she exited the
pattern, and that no reasonable pilot would continue to adhere to
the instruction indefinitely or until retracted by air traffic control,
the district court found that Frazao was not negligent for issuing
the “follow” instruction without then deleting it. The district court
also found that it simply was not reasonable to believe that Sejwal
would have interpreted the instruction as a mandate to follow the
outbound Cessna out of the traffic pattern indefinitely until Frazao
retracted the instruction. The record clearly supports the district
court’s finding that Frazao was not negligent, and the district court
did not clearly err in so finding.
C. Whether the district considered evidence of
comparative negligence
Plaintiffs contend that language in the district court’s
findings of fact and conclusions of law “suggests” that it
improperly considered evidence of comparative negligence—an
affirmative defense under Florida law—in making its ultimate
finding that the controllers were not negligent. In particular, they
point to the district court’s statements that there was (1) conflicting

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30 Opinion of the Court 22-12316
evidence about how the planes approached each other prior to the
collision and (2) evidence that both planes were equipped with TIS
devices and that the Seneca’s TIS device was functioning earlier in
the day prior to collision. After reviewing the record and the
district court’s findings of fact and conclusions of law, we conclude
that the district court did not improperly consider evidence of
comparative negligence but rather based its decision on Plaintiffs’
failure to prove the elements of their negligence claim, as outlined
above.16
III. Conclusion
This is a case of a tragic mid-air collision between two
airplanes outside the Tamiami Tower’s jurisdiction. The district
court correctly held that the air traffic controllers owed no duty to
the pilots involved in the crash and breached no duty. We affirm.
AFFIRMED.
16 Plaintiffs also challenge the district court’s finding that Frazao’s alleged
negligence was not the proximate cause of the pilots’ and passengers’ deaths.
Because we conclude that the district court did not err in its duty and breach
findings and conclusions, Plaintiffs’ negligence claims fail, and we need not
address their arguments regarding proximate causation.

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