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FAA Not Liable For Air Traffic Contractor's Negligence In Mid-air Collision

August 1, 2005

The federal government is not liable for the alleged negligence of an air traffic controller who was on duty at Meigs Field when two private airplanes collided in mid-air, a federal appeals court has held in Diana L. Alinsky, et al. v. U.S. (Nos. 04-2877, 04-3051, 04-3052, 04-3053, 04-3087, 04-3088, 04-3089 and 04-3090.)

The 7th U.S. Circuit Court of Appeals declined to reinstate a lawsuit brought under the Federal Tort Claims Act by the families of the seven people killed in the 1997 accident over Lake Michigan. The families claimed the accident stemmed from the failure of air traffic controller Renee Toone to tell the planes' pilots that they were on a collision course.

Quoting the FTCA, the court said the U.S. government is responsible for property damage 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." Military personnel and employees of federal agencies are included under the FTCA's definition of "employee of the government," the court said.

However, the court said federal law excludes contractors from that definition. Toone worked for Midwest Air Traffic Control Inc., a private contractor that provided air traffic control services at Meigs for the Federal Aviation Administration, according to a three-judge panel of the court. Under these circumstances, the panel said, the federal courts lack jurisdiction to consider the families' claim against the U.S. government based on Toone's alleged negligence.

The panel rejected the argument that a statutory provision in effect at the time of the accident barred the FAA from contracting for air traffic control services with any entity other than a state or a political subdivision of a state. The panel also rejected the plaintiffs' alternative argument that the government's duty to provide air traffic control services could not be delegated and that the United States therefore was responsible for Toone's alleged negligence.

The panel conceded that Illinois law holds the principal liable for any torts committed by an independent contractor while performing abnormally hazardous activities. But the panel said Congress in excluding independent contractors from liability under the FTCA "did not simultaneously adopt the various state exceptions to the independent contractor rule."

"Rather, Congress expressly granted jurisdiction for suits brought against the United States for its employees' conduct, and not the conduct of contractors," a justice for the court wrote. "State common law principles cannot overcome this federal statute."

The panel also rejected the argument that the U.S. government was liable for its own alleged negligence for allowing Midwest to staff Meigs Tower with a controller who purportedly was not qualified to stand alone. "The contract between the United States and Midwest required Midwest to staff the control tower with trained and qualified controllers, and it was Midwest's obligation to do so, not the United States'," the court's opinion states.

The panel held that the families could not pursue a claim that the U.S. government was negligent for failing to act more quickly on Midwest's request for additional funds to hire another air traffic controller. Midwest made that request in April 1997, about two months after Meigs Tower was opened with the single controller that Midwest had agreed to supply. The FAA approved the request 16 days before the collision.