Turner v. United States (736 F. Supp. 2d 980, 2010)

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................986

I.FINDINGS OF FACT......................................................987

A. The Aircraft and Pilots ................................................988

B. MTV and Approach to Runway 30.......................................989

C. Greensboro Terminal Radar Approach Control Facility...................991

D. The Accident..........................................................992

II. CONCLUSIONS OF LAW..................................................998

A. Jurisdiction and Choice of Law.........................................998

B. Virginia Negligence Law...............................................999

C. Legal Duty and Standard of Care......................................1000

1. Federal Regulations...............................................1000

2. Air Traffic Control Manual........................................1001

3. Other FAA Documents............................................1001

D. Pilot Duties and Conduct .............................................1002

1. Pilot Duties......................................................1002

a. 14 C.F.R. § 91.3 Pilot-in-Command.............................1002

b. 14 C.F.R. § 91.13 Careless or Reckless Operation.................1003

c. 14 C.F.R. § 91.175 Takeoff and Landing under IFR Conditions____1003

d. Aeronautical Information Manual..............................1003

e. Common Law Duty............................................1003

2. Pilot Conduct.....................................................1003

E. Air Traffic Controller Duties and Conduct..............................1005

1. Air Traffic Controller Duties.......................................1005

a. ATC Manual ¶ 2-1-2...........................................1005

b. ATC Manual ¶ 2-1-6...........................................1006

c. ATC Manual ¶¶ 5-1-1, 5-1-13, & 5-3-1 ..........................1007

d. Common Law Duty............................................1005

2. Air Traffic Controller Conduct.....................................1009

a. BALES Holding Pattern.......................................1009

b. Approach Toward and Past BALES.............................1009

c. Monitoring N501RH from Frequency Change until MSAW

Warning....................................................1011

d. MSAW Warning ..............................................1015

F. Intervening and Superseding Cause....................................1020

III. CONCLUSION 1023

These consolidated proceedings arise out of the crash of a private aircraft near Martinsville, Virginia. Pursuant to the court’s April 21, 2009, Final Order Regarding Consolidation and Bifurcation, trial was divided into phases. Claims for which a jury trial was entitled were tried in April and May 2009. All remaining claims against the Defendant United States of America (“United States” or “Government”), for which no jury trial right exists, were tried to the court from July 7 through 24, 2009.

Before the court is the determination of the bench trial phase in which various parties assert claims against the United States which, in turn, asserts various claims for contribution. In cases l:06cv223 and l:07cv23, respectively, Linda D. Turner and Wachovia Bank, N.A., co-executors of the Estate of Jeffrey Wayne Turner (“Turner”), and Dianne H. Dorton, as personal representative of the Estate of Randall Alexander Dorton (“Dorton”), bring actions directly against the Government. In case l:06cv431, the only remaining claims are those by Hendrick Motor-sports, Inc., against the Government for the loss of the aircraft as well as the Government’s contribution and indemnity claims against third-party plaintiffs Hendrick Motorsports, Inc., and HMS Holdings Limited Partnership. In case l:06cv474, Hendrick Motorsports, Inc., as-serfs a claim against the Government for property damage to the aircraft, and HMS Holdings Limited Partnership seeks contribution for payment made in settlement to the representative of Scott C. Lathram (“Lathram”), a passenger who died in the accident. In case l:07cv673, HMS Holdings Limited Partnership and United States Aviation Underwriters, Inc., seek contribution for payment made in settlement to the representative of Joe Wayne Jackson (“Jackson”), also a passenger who died in the accident.

The matter is ripe for decision, and the court issues the following Findings of Fact and Conclusions of Law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I. FINDINGS OF FACT

At approximately 12:33 p.m. (Eastern Daylight Savings Time) on October 24, 2004, a corporate twin turbo-prop aircraft owned by Hendrick Motorsports, Inc., flew into Bull Mountain, Virginia, which was obscured by clouds, approximately ten nautical miles past the approach end of Runway 30 of the Blue Ridge Airport, also known by the call-sign “MTV” (“MTV” or “Martinsville”). The aircraft had departed from the Concord (North Carolina) airport and was en route to Martinsville, Virginia, where the passengers planned to attend a NASCAR race set to begin at 1:00 p.m. at the nearby Martinsville Speedway. On board were Lathram and Jackson, Hendrick employees Turner and Dorton, four members of the Hendrick family, and the aircraft’s two pilots, Richard Edward Tracy (“Tracy”) and Elizabeth Lee Morrison (“Morrison”), who were employees of HMS Holdings Limited Partnership. There were no survivors.

A. The Aircraft and Pilots

The aircraft was a Beechcraft Super King Air 200, bearing Federal Aviation Administration (“FAA”) registration number N501RH (“N501RH”). N501RH did not carry flight data or cockpit voice recorders. The FAA recorded radar information relating to N501RH as well as radio transmissions to and from the aircraft made over the air traffic control (“ATC”) frequency. This information permits a reconstruction of the aircraft’s flight path and ATC communications.

N501RH was fully equipped with navigational instruments approved by the FAA for an “Instrument Flight Rules” (“IFR”) approach for landing. N501RH utilized a “localizer approach” to land, which requires the pilots to follow certain radio and other instrumentation to orient the aircraft properly toward Runway 30 for safe landing. The localizer approach is published on a diagram in an official publication known as an “approach plate,” and federal law requires that pilots flying it follow the approach as depicted. 14 C.F.R. § 91.175(a)(2004). The localizer approach begins at a known location, in this case designated “BALES,” located five nautical miles southeast of the approach end of MTV Runway 30. Airplanes flying the localizer approach typically intersect the localizer course southeast of (before) BALES.

The cockpit had dual sets of instruments, one for each pilot, and the pilots were trained and expected to routinely scan them. Several of these instruments were designed to assist the pilots in navigating on this flight.

First, N501RH had an Automatic Direction Finder (“ADF”) through which the pilots could receive signals from a ground-based Nondirectional Radio Beacon (“NDB”). An NDB is a radio transmitter located in this case at BALES. Each pilot had an ADF display in the cockpit, which (when within range of the beacon and tuned to the proper frequency) displays a needle showing the direction to the BALES NDB in relation to the aircraft. The ADF needle points continuously to the direction of the beacon regardless of where the aircraft flies. If ADF is not receiving a signal it “parks” at a 90 degree angle. Thus, when an aircraft passes BALES on its approach to Runway 30, the needle swings to indicate the aircraft’s location with respect to the NDB. In this fashion, it alerts the crew to whether the aircraft properly passed over the BALES NDB to line the aircraft on the proper route to land. For N501RH to conduct an IFR localizer approach to Martinsville, ADF must be used.

Second, in addition to the BALES NDB, a marker beacon transmitter, called the Outer Marker Beacon, is located at BALES. The Outer Marker Beacon sends a narrow radio beam straight up into the air (like a flashlight beam) so that when an aircraft flies through the beam a light on the aircraft instrument panel flashes and, when audio is turned on, generates an audible tone. N501RH was equipped to receive these signals.

Third, N501RH had localizer equipment by which the pilots could determine their lateral position on a specified approach to a runway, in this case MTV Runway 30. In the cockpit, the localizer course is displayed to the pilots on an instrument known as a Course Deviation Indicator (“CDI”), which is part of an instrument known as the Horizontal Situation Indicator. The CDI indicates whether the aircraft is on, to the left of, or to the right of the specified approach as the aircraft proceeds to land. Each pilot had a CDI display on his or her instrument panel. If the CDI deflects fully to the left or to the right at any time after an aircraft passes the BALES marker on a final approach to Runway 30, the pilots must immediately implement designated “missed approach” procedures and declare a “missed approach” to ATC, thus aborting the landing attempt.

Fourth, N501RH had Distance Measuring Equipment (“DME”) for each pilot from which they could determine their distance from the airport to the nearest tenth of a mile. The DME ground antenna is located in line with and 1,000 feet beyond the northwest end of MTV Runway 30. As an aircraft approaches the DME antenna, the mileage distance continually decreases. As an aircraft flies away from the DME antenna, the mileage distance continually increases. In connection with the aircraft’s DME instrument, Hendrick Motorsports training materials required pilots to use a timer to further apprise the crew of its location during the approach. The approach plate provides distance measurements for pilot reference that are calculated based on the aircraft’s speed.

Hendrick Motorsports policy required that pilots use DME for the Runway 30 localizer and, as required by the approach plate, ADF. However, N501RH was also equipped with a Bendix/King KLN-90B Global Positioning System (“GPS”). Another HMS Holdings Limited Partnership pilot, James Luckwaldt (“Luekwaldt”), and the Government’s piloting expert, Joseph Lintzenich (“Lintzenich”), both testified, and the court finds, that unlike the equipment listed in the preceding paragraphs, the GPS on N501RH had not been certified for use in IFR conditions as the primary navigational tool. A placard in the aircraft reminded pilots of this limitation. Using the non-certified GPS as a backup to certified navigational aids, however, was permitted and consistent with company practice in 2004.

The aircraft pilots, Tracy and Morrison, were licensed and qualified for the flight. Tracy had over 10,000 hours of flight time, including time as a commercial airline captain, and co-pilot Morrison over 2,000 hours. Neither pilot had a prior accident as defined by the FAA. Both pilots had flown into MTV previously. Tracy had flown into MTV on a clear day, and he and his co-pilot discussed the high terrain and need for care in making the approach. Co-pilot Morrison had flown into the airport on N501RH two days before the accident under overcast conditions similar to those on the day of the accident. James Edward Tobias (“Tobias”), another HMS Holdings Limited Partnership pilot at the time and Morrison’s captain on that trip, discussed the terrain surrounding MTV and believed that Morrison was aware of the terrain to the northwest of MTV.

B. MTV and Approach to Runway 30

MTV consists of a single runway on which airplanes are permitted to land from either direction. When approached from the southeast, the runway is referred to as Runway 30 (denoting the first two numbers of its magnetic heading). When approached from the opposite direction, ie., from the northwest, it is referred to as Runway 12.

MTV has no ATC facilities. Radar coverage is limited or nonexistent with respect to aircraft at low altitude because of interference from nearby terrain. Thus, it is not unusual, and in fact is expected, that aircraft will drop off Greensboro (North Carolina) radar coverage prior to landing. MTV is equipped, however, with various devices, including antennas, to assist pilots flying under Visual Flight Rules (“VFR”) as well as IFR.

Pilots landing from the southeast onto Runway 30 under IFR conditions by employing a localizer approach (combining CDI and ADF readings with the DME) are required to do so exactly as depicted on an official chart, known as an “approach plate,” which pilots must have onboard. Because the GPS was not certified, any other IFR approach to Runway 30 violates federal regulations. See 14 C.F.R. § 91.175(a) (2004) (“[Ejach person operating an aircraft ... shall use a standard instrument approach procedure prescribed for the airport....”). The approach plate for MTV contains an “overhead” diagram of the courses and distances to be followed as well as a “side-view” diagram showing minimum approach altitudes to be flown throughout designated portions of the approach.

The localizer approach begins at BALES. Pilots determine the location of BALES with respect to their aircraft through the use of the cockpit instruments described above. As an aircraft flies over BALES, the Outer Marker Beacon should trigger a blinking light and tone, DME would read six nautical miles (indicating six miles to the DME antenna and thus five nautical miles to the threshold of Runway 30), and the ADF needle would swing to show BALES behind the aircraft as the aircraft proceeds toward Runway 30.

The approach plate also depicts the published holding pattern if, prior to being cleared for an approach to MTV, an aircraft is directed to enter into one. The holding pattern is a racetrack-shaped course that includes BALES as a reference point and is considered part of the published instrument approach. An ATC controller (also “controller”) may place an aircraft in a holding pattern while another aircraft is landing or taking off from the airport.

Once ATC clears an aircraft for an approach to MTV, the pilots are instructed to change from the ATC frequency to a frequency known as UNICOM to obtain local information, including local weather conditions. UNICOM is used by pilots to communicate with one another and to receive advisories from an airport without an operating tower. The UNICOM frequency is different from that used by pilots when communicating with ATC; ATC does not directly communicate on the UNICOM frequency.

The approach plate for MTV sets the minimum altitudes that must be maintained during the approach. An aircraft cleared to fly an IFR approach to Runway 30 must be at or above a minimum altitude of 2,600 feet above mean sea level (“MSL”) at BALES. Because MTV lies just over 900 feet MSL, an aircraft at 2,600 feet MSL would be approximately 1,700 feet higher than the airport. Flying at an altitude above 2,600 feet MSL at BALES is not a violation of ATC clearance.

An aircraft passing BALES may not descend below 1,520 feet MSL prior to reaching a DME reading of 2.8 miles, that is, until 1.8 miles from the approach end of Runway 30. At that point, the aircraft may descend further, but not below 1,340 feet MSL (known as the “Minimum Descent Altitude” or “MDA”) unless the pilots have the runway in sight and determine that they can land safely.

When an aircraft reaches a DME of 1.0 mile, it is at the approach end of Runway 30, which is also designated on the approach plate as the “missed approach point.” At the missed approach point, the pilot must determine if he has a sufficient visual view of the runway environment and is capable of landing safely; if not, he must abort the landing and immediately fly the published missed approach procedure. 14 C.F.R. § 91.175(d)-(e) (2004). There is only one published missed approach point for Runway 30, and that is at the runway approach threshold. Clearance by ATC to fly the localizer approach is also clearance to execute a missed approach; that is, no further permission from ATC is needed if a pilot determines he must declare a missed approach. The Hendricks Motor-sports company pilot manual also directed execution of the published missed approach procedure when required.

Every published approach plate has instructions on flying a missed approach. The missed approach procedure for MTV, set out at three different places on the approach plate, requires a climbing right turn to 2,600 feet MSL and a return to BALES. The repetition reflects the importance of flying a missed approach only as approved by the FAA. Although not designated as such on the approach plate, the climbing turn acknowledges the presence of Bull Mountain approximately 10 miles past the threshold of Runway 30. In a Super King Air like N501RH, once a pilot decides to execute a missed approach (including increasing the throttle and turning the yoke), it should take no more than ten seconds for the aircraft to begin the right turn. A turn is typically made at three degrees per second, although a turn can be made at a greater rate. At three degrees per second, an aircraft will have turned 90 degrees in thirty seconds.

C. Greensboro Terminal Radar Approach Control Facility

Because MTV lacks an ATC tower, the controller who assisted N501RH was located in Greensboro at a Terminal Radar Approach Control facility (“TRACON”) maintained by the United States through the FAA. Controllers at TRACON communicate with pilots on an ATC frequency.

The Greensboro TRACON facility employs several radar stations on an ARTS II E system. The “West Radar” station utilizes an approximately 20-inch circular radar screen that encompasses a large geographic area that includes MTV and its immediately surrounding area. FAA controller Brian Randall Park (“Park”) served in the position of West Radar during the relevant portion of the N501RH flight. Additional radar duties were combined with West Radar duties during this period. William Earl Thomson (“Thomson”) was the supervisor on duty, and controller Jerry L. Wilson (“Wilson”) was responsible for the flight data radar position.

ATC receives sweeping radar data approximately every 4.6 seconds, which shows the location of any aircraft that was within its coverage. A “data block” for every aircraft that has been radar-identified and is at an altitude and position sufficient for a valid radar return or “hit” is displayed on the radar screen. A data block includes an aircraft’s identifier (call sign) on the top line and, on the second line, the aircraft’s destination and type, which displays alternately with its altitude and ground speed. The data block is accompanied by a position symbol, but the aircraft’s heading is not displayed. The West Radar screen depicted the location of the MTV runway as well as BALES immediately upon the radar sweep, which then faded until the next sweep. Neither the terrain around MTV, including Bull Mountain, nor the racetrack-shaped holding patterns at BALES is depicted on the radar screen.

Greensboro TRACON employs a Minimum Safe Altitude Warning system (“MSAW”), which depends on information received by radar utilized by TRACON. The MSAW alerts controllers when an equipped aircraft is, or is projected to be (based on its past course as determined from radar hits), below the appropriate terrain clearance altitude. When an aircraft’s radar return satisfies the parameters of the MSAW program, a blinking low altitude symbol (“LA”) appears in the data block associated with the aircraft. A warning tone of five seconds duration also sounds in the TRACON radar room.

An MSAW alert is activated only if the radar is in actual radar contact with the aircraft. If an aircraft no longer receives a hard radar hit, it will be displayed in “coast” mode (designated “CST” on the radar block), meaning that the aircraft’s position is predicted by computer as only an estimate. The symbol does not immediately disappear when the data block enters the “coast” mode.

The MSAW system contains one or more speakers in the TRACON facility designed so that all controllers in the room can hear the tone, and the speaker itself is tested every shift. The TRACON MSAW speaker and volume was tested every shift in this case to ensure it could be heard but would not be overbearing. An MSAW visual and aural warning occurs only at TRACON; pilots are not aware of an MSAW alert unless informed by a controller.

D. The Accident

Weather conditions at MTV on October 24, 2004, were overcast, with a thick cloud ceiling that caused limited visibility. The cloud level was too low for even an IFR landing early that morning, which delayed N501RH’s trip in this case.

Prior to takeoff, Tracy filed an IFR flight plan with the Raleigh/Durham Automated Flight Service Station of the FAA at 9:50 a.m., meaning that he and Morrison would be dependent on their instruments for the flight. Because of the low overcast skies, N501RH could not execute a VFR approach to MTV. The flight plan the pilots filed with the FAA incorrectly identified N501RH as equipped with an IFR-certified GPS. While discussing the flight with the FAA flight service briefer, Tracy was informed that a weather advisory had been issued along his intended flight route, including that the mountains would be obscured.

Tracy and Morrison waited as the low ceilings improved at MTV as the morning wore on. Though the flight plan called for a 10:30 a.m. departure, N501RH did not depart the Concord airport until approximately 11:56 a.m. N501RH headed uneventfully toward MTV for the short flight.

At 12:03 p.m., Tracy informed Park that N501RH would be using the localizer approach into MTV. Park cleared N501RH directly to the BALES outer marker. Ten minutes later, Park directed N501RH to descend to and maintain 3,000 feet MSL. Shortly thereafter, Park amended the altitude by directing N501RH to 4,000 feet MSL and informed the pilots that they would be “number two for the field,” meaning another aircraft would be making an approach ahead of them. Doing so allowed a faster and closer aircraft, designated N500CG (which was approaching from the northeast), to make its approach to MTV in airspace clear of other controlled aircraft. This direction was standard for MTV, which lacked a control tower, and complied with ATC procedures. Allowing only one IFR aircraft to approach MTV at a time ensures safe separation between the aircraft. An aircraft is not cleared for an approach past BALES until the preceding aircraft reports it has either landed or declared a missed approach. This procedure, known as a “one-in, one-out” method of non-radar separation, permits exclusive use of the airspace around MTV for the cleared plane.

At 12:17 p.m., Park directed N501RH to proceed directly to BALES and to enter a holding pattern at BALES, as published (on the approach plate). Park informed N501RH to expect further clearance for an approach to MTV at 12:45 p.m. Blocking airspace provides an aircraft, such as N500CG, sufficient time to land or fly a missed approach. N501RH confirmed the direction. Less than two minutes later, Park cleared the other aircraft, N500CG, for a localizer approach to Runway 30 and authorized that aircraft to make a frequency change to UNICOM. If N500CG declared a missed approach, it would return to BALES pursuant to the approach plate for MTV.

At 12:21 p.m., N501RH requested a five-mile holding pattern “leg,” meaning that the elongated portion of the racetrack-shaped holding pattern would extend five miles. Park responded by allowing N501RH the discretion to select either five-mile or ten-mile legs. N501RH, which initially indicated a desire for a five-mile leg, opted for a ten-mile leg. Clearance to ten miles would allow N501RH’s pilots, at their discretion, to fly outbound for ten miles and then to turn back to BALES.

The MSAW alerted twice at Greensboro TRACON as N500CG descended to land at MTV. Such alerts were not unusual for aircraft descending into MTV on approach because of the nature of the approach and occurred on virtually every landing there. Such alerts may occur, for example, when an aircraft is on approach to land because the computer projects the flight path below a programmed minimum altitude even though the approach is safely conducted.

At 12:24 p.m., Park confirmed that N500CG had landed. With N500CG on the ground, Martinsville airspace was clear for an approach by N501RH. At that time, N501RH remained near its assigned altitude of 4,000 feet MSL, and its pilots confirmed to Park that the aircraft was established in the holding pattern. Park then cleared N501RH for a localizer approach to Runway 30 and directed its crew to let him know when the aircraft was inbound on the approach. Park’s clearance to land using the localizer approach also necessarily included approval to execute a missed approach or, if the pilots could keep the airport in view, a circling approach to land from the opposite direction. See 14 C.F.R. § 91.175 (2004). The clearance also authorized N501RH to execute the approach and to descend at the discretion of the pilot-in-command as long as the descent did not violate the minimum altitudes set forth in the approach plate. See id. Thus, the descent required no further authorization from ATC.

N501RH immediately acknowledged the clearance, turned toward BALES, and just over two minutes after receiving clearance informed Park that N501RH was “established inbound.” At 12:26:52 p.m., Park authorized a frequency change to MTV’s UNICOM, which meant that radar service to N501RH would be terminated, and directed N501RH to cancel with him from the remote at MTV, ie., report when N501RH had landed. Four seconds later, N501RH acknowledged the frequency change. From that point on, a pilot would not expect any services from a controller other than to protect the airspace around Martinsville from other IFR aircraft entering. After the frequency change, a controller would not expect to hear from the aircraft until it reported it was on the ground, as was the case for N500CG, or had declared a missed approach.

When authorizing the frequency change for N501RH, Park stated that the preceding aircraft (N500CG) “broke out [of the clouds] just below the mínimums and uh he said good visibility below.” Park’s statement suggested that N500CG descended below the Minimum Descent Altitude—a violation of federal regulations— before breaking out of the clouds, rather than breaking out just above the minimum altitude. Shortly thereafter, an unknown speaker on the ATC frequency asked, “Broke out below the minimums?” Park immediately corrected, stating “... just below; I mean it was legal, I mean.” It is not clear whether Tracy or Morrison heard this correction or had left the ATF frequency for UNICOM. In any event, N501RH would make no further transmission on the ATC frequency until around 12:33 p.m., about six minutes later.

Though the approach plate called for N501RH to begin its approach passing BALES at or above an altitude of 2,600 feet MSL, the aircraft passed BALES at 3,900 feet MSL, over' one thousand feet higher (likely because it had been in its 4,000 foot holding pattern before being cleared for the approach). Park recalled seeing N501RH (after the frequency change) at about 3,600 feet MSL approximately three miles from the southeast end of Runway 30 (that is, about two miles past BALES toward the airport). Park noted to controller Wilson that he thought the aircraft was high. Park admitted later that he had never seen another aircraft successfully fly the approach (and land) from that position and altitude in instrument conditions.

N501RH descended to an altitude of approximately 2,600 feet MSL when it reached the published missed approach point—the beginning of Runway 30. At this time, N501RH likely remained in the clouds. After leveling off slightly at 2,600 feet MSL (over MTV), the aircraft continued to descend as it proceeded beyond and away from Runway 30 to the northwest.

Although there is no direct evidence in the form of a cockpit voice recorder or on-board data recorder, the experts retained by the parties agree that the pilots were situationally disoriented. The aircraft’s descent path mirrors that depicted on the approach plate for Runway 30, but displaced five miles to the northwest. As Government expert Kenneth Lee Orloff testified, N501RH’s actual flight path is consistent with the pilots believing they were over BALES when the aircraft was actually over the airport. The parties and their experts disagree over why this occurred (e.g., whether the pilots were relying solely on the GPS device and ignored their primary navigational instruments). The court finds that the pilots’ actions are consistent with an incorrect belief, through navigational error, that they were five miles behind N501RH’s actual position. In other words, the descent profile appears to have been conducted in accordance with the approach plate, with the exception that it all occurred five miles displaced to the northwest.

At approximately 12:30 p.m., when the aircraft was approximately two miles beyond the airport and three miles beyond the missed approach point, West Radar began to lose contact with N501RH, due to the aircraft’s low altitude. At 12:30:03 p.m., the West Radar data block entered “coast” mode, displaying “CST” in place of altitude and ground speed data. In “coast” mode, a controller would know that radar contact had been lost such that the aircraft’s location could not be identified. At virtually the same time, 12:30:03 p.m., an “LA” (low altitude) symbol appeared below “CST” and began to blink. The “LA” symbol flashed in N501RH’s data block but was not initially accompanied by the aural tone. At 12:30:08 p.m., the altitude and ground speed displays reappeared, replacing CST.

At around 12:30:15 p.m., an MSAW tone sounded in West Radar TRACON and continued to sound for approximately five seconds. Within two seconds after the tone began, however, the radar block re-entered the “coast” mode. During the final three of the five seconds when the tone sounded and continuing to the time it disappeared from the radar screen, the data block was in “coast” mode. The letters “LA” disappeared from the data block at 12:30:27 p.m., and the data block itself disappeared from the radar screen about 30 seconds later, at 12:31:00 p.m. and never reappeared.

Greensboro TRACON air traffic was moderate or light to moderate. Park testified that he did not feel overworked. When the aural MSAW alert related to N501RH sounded, it was the only warning sounding. At the time it sounded, however, Park was directing other traffic, including vectoring (giving a heading to) a commercial jetliner, Northwestern Flight 1868, that was landing at the Greensboro airport. In vectoring Flight 1868, Park had to formulate the approach clearance to maintain separation of Flight 1868 from other aircraft, provide instructions, and listen for a confirmation. This was not an unusually difficult task, but was rather routine.

The cloud ceiling at MTV reported at 12:20 p.m. and 12:40 p.m. was approximately 600 feet above the ground. Because the airport is just over 900 feet MSL, the cloud ceiling was approximately 1500 to 1600 feet MSL. At approximately 12:30:35 p.m. (eight seconds after “LA” disappeared from the radar data block), N501RH descended through 1,500 feet MSL and broke through the clouds just over 3 miles northwest of the MTV DME antenna—or approximately 4.3 miles beyond the missed approach point for Runway 30.

At around 12:31:00 p.m., N501RH was 5.1 miles beyond the published missed approach point, which N501RH had passed about 2 minutes and 20 seconds earlier. In other words, N501RH was below the clouds and if the crew mistakenly believed they were on the correct approach but were in fact 5 miles off, N501RH was at or upon the “mistaken” missed approach point and the crew should have declared a missed approach because the airport (which was behind them) could not have been in sight.

When it was five miles northwest of Runway 30, about six miles past the missed approach point, N501RH flew over Salem United Methodist Church near Cruz, Virginia, where Mark Nelson, who was in his vehicle with his family, observed it. N501RH’s altitude at that time, as reconstructed by radar data not available to TRACON, was between 1,400 and 1,500 feet MSL, and thus below the base of the clouds. The aircraft was flying low and slow enough that Nelson could not only identify the aircraft as a Beechcraft but also could see its passengers in the windows. Importantly, the aircraft’s gear was up.

Visibility below the cloud cover was at least one to two miles and may have been, as indicated by weather reports, between five and ten miles. N501RH continued to fly at approximately 1,500 feet MSL for another minute after passing the vicinity of the Salem United Methodist Church. (Because radar estimates altitude to the nearest 50 feet, it is possible the aircraft may have climbed only slightly during this period.) Tracy, Morrison, and the passengers would have seen the ground during this time, just as Nelson clearly saw the aircraft and at least two of its passengers. More to the point, the aircraft was almost three miles past the point it should have declared a missed approach even if the crew mistakenly believed its approach path was correct.

At approximately 12:32:13 p.m., N501RH began to climb. The aircraft was then approximately seven miles northwest of the DME antenna, or nearly eight miles past the published missed approach point on the threshold of Runway 30. About twenty seconds later, N501RH increased its rate of climb.

At 12:33:03 p.m., six minutes after the crew had switched to the local UNICOM frequency, co-pilot Morrison verbally communicated on the ATC frequency, although incorrectly calling MTV rather than Greensboro TRACON. A few seconds later Morrison tried to contact ATC at Greensboro, correctly identifying the intended recipient. Two seconds later Park acknowledged. At 12:33:11 p.m., Morrison stated that N501RH was “going missed at this time,” meaning that N501RH was initiating or had initiated a missed approach procedure.

At 12:33:21 p.m., Park instructed N501RH to climb to and maintain 4,400 feet MSL. N501RH had not yet reappeared on Park’s radar, and he gave this instruction so that N501RH would climb to an altitude where it could be reacquired by radar to identify its location and provide a heading; 4,400 feet MSL was also the minimum vectoring altitude for the northwest side of the airport. N501RH did not respond, and no further communication was received from N501RH.

At approximately 12:33:24 p.m., N501RH collided with rising terrain on Bull Mountain at an altitude of around 2,400 feet, just short of its ridge line. Although the aircraft had begun to climb, radar reconstruction (not available to Greensboro TRACON) shows that N501RH continued to fly essentially straight as it climbed for nearly two miles, never initiating a climbing right turn as required by the approach plate.

In the 30 seconds or so after directing N501RH to climb and maintain 4,400 feet MSL, Park attempted to contact the aircraft on multiple occasions over the ATC frequency. About one-half minute after his last attempt, Park requested that another aircraft attempt to contact N501RH (known as a “relay” communication) and, if successful, to direct N501RH to climb and maintain 5,000 feet MSL. Within a few seconds the other aircraft reported “no joy on that” to Park, meaning its efforts to raise N501RH had failed. Park then requested Roanoke ATC to block airspace at and below 5,000 feet and to keep an eye out for N501RH. About a minute-and-a-half later, Park made another call to N501RH. Receiving no answer, Park asked the other aircraft to try to contact N501RH on the “Guard frequency” used for emergency communications. Park was informed that N501RH did not respond. About a minute later Park requested that another aircraft attempt to reach N501RH on the Guard frequency. During this time, Supervisor Thomson telephoned Jessica Nicole Watkins, an employee at MTV, who attempted, unsuccessfully, to reach N501RH on UNICOM.

The aircraft instruments certified for the IFR approach provided the pilots with multiple displays that should have shown that N501RH was not where the approach plate required it to be. Neither Tracy nor Morrison reported any problem or malfunction of their instruments. There is no evidence from which to conclude that any instrument on the aircraft was not working properly, let alone that multiple instruments were not working at the same time.

First, the localizer approach required that the ADF be tuned to the BALES NDB frequency. Following ATC approach clearance by Park, N501RH turned toward BALES. When the aircraft passed BALES, the ADF needle would have swung from pointing ahead of the aircraft to pointing behind the aircraft. (Even if the aircraft did not pass directly over BALES, the needle would have swung in the direction of BALES, noting its position.) Importantly, the ADF needle would have continued to point behind the aircraft thereafter, thereby noting to the crew, in addition to the aircraft’s northwest heading, that the aircraft had already passed BALES and was moving away from it, not toward it. Thus, the ADF would have alerted the pilots to their position relative to BALES to permit them to properly begin them descent.

Second, the DME, because it tunes to an antenna at the far end of Runway 30, would have read six miles at BALES and would have continued to count down as it approached MTV. It would have read one mile at the threshold of Runway 30, the missed approach point. Thus, a DME reading of less than six miles would have alerted a reasonably prudent pilot that he or she was inside BALES on an approach to Runway 30. Had the crew observed the DME, it would have realized its actual relationship to Runway 30.

Third, when N501RH was over the airport, it was at 2,600 feet, the minimum altitude the approach plate permits at BALES, and the descent path from this point onward mirrors that required by the approach plate. This suggests strongly that the crew believed they were at BALES at this time. However, had they scanned their DME equipment, as would any reasonably prudent pilot, they would have observed that the DME displayed one, not six, miles. Thus, they would have realized that the aircraft was not only not at BALES, but was in fact at or beyond the missed approach point. In either event, a missed approach should have been executed.

Fourth, as N501RH passed the DME antenna and continued flying to the northwest, the DME counter would have been counting up, not down. This would have indicated that the aircraft had passed MTV and was moving away from the DME antenna. Further, had the DME been consulted at any time while N501RH was flying away from the airport, its increasing DME mileage would have alerted the pilots that the aircraft had long passed the DME antenna, was beyond the missed approach point, and was significantly off course.

The following section supplements these findings of fact and, to the extent statements therein constitute findings of fact, they are incorporated in the findings of fact and are so adopted.

II. CONCLUSIONS OF LAW

A. Jurisdiction and Choice of Law

The current phase of these civil actions arises under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80. The FTCA constitutes a waiver by the United States of the federal government’s immunity from liability in tort for “the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). Pursuant to the FTCA, a court must apply the whole law of the jurisdiction where the alleged act or omission occurred, including the choice of law rules, to determine the rights and liabilities of the parties. 28 U.S.C. §§ 1346(b)(1), 2674; Richards v. United States, 369 U.S. 1, 11-13, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Plaintiffs have complied with all prerequisites and conditions precedent to the filing of the civil action pursuant to 28 U.S.C. § 1346(b). Venue is proper in this court pursuant to 28 U.S.C. § 1402(b).

In this case, the parties agree that any alleged negligence of the air traffic controllers occurred in North Carolina. North Carolina applies the principle of lex loci delicti, the law of the situs of the claim, to choice of law issues in tort cases. Boudreau v. Baughman, 322 N.C. 331, 335-36, 368 S.E.2d 849, 853-54 (1988); see White v. Penske Truck Leasing Corp., 256 F.Supp.2d 440, 445 (M.D.N.C.2003) (citing Boudreau). The parties also agree that, because the injury in this case occurred in Virginia, North Carolina law dictates that the substantive law of Virginia governs the liability issues. Boudreau, 322 N.C. at 335-36, 368 S.E.2d at 854; White, 256 F.Supp.2d at 445.

B. Virginia Negligence Law

Under Virginia law, “[t]he elements of an action in negligence are a legal duty on the part of the defendant, breach of that duty, and a showing that such breach was the proximate cause of injury, resulting in damage to the plaintiff.” Blue Ridge Serv. Corp. of Va. v. Saxon Shoes, Inc., 271 Va. 206, 218, 624 S.E.2d 55, 62 (2006); accord Srock v. United States, 462 F.Supp.2d 812, 824 (E.D.Mich.2006) (applying Virginia law in action brought under FTCA by estate of deceased airplane passenger). “[A] defendant is not liable unless the harm would not have occurred but for the defendant’s act.” Marchant v. Boddie-Noell Enter., Inc., 344 F.Supp.2d 495, 497 (W.D.Va.2004) (describing Virginia law). A simplistic “but for” argument, however, does not necessarily resolve the question of proximate cause. See Banks v. City of Richmond, 232 Va. 130, 136, 348 S.E.2d 280, 283 (1986).

Simple negligence is “the failure to exercise that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury to another.” Gossett v. Jackson, 249 Va. 549, 554, 457 S.E.2d 97, 100 (1995) (citation and internal quotation marks omitted). Proximate cause of an event “is that act or omission which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the event, and without which that event would not have occurred.” Blue Ridge, 271 Va. at 218, 624 S.E.2d at 62 (quoting Beale v. Jones, 210 Va. 519, 522, 171 S.E.2d 851, 853 (1970)). Although “[p]roximate cause need not be established ‘with such certainty as to exclude every other possible conclusion,’ ” Wooldridge v. Echelon Serv. Co., 243 Va. 458, 461, 416 S.E.2d 441, 443 (1992), the burden is on the party asserting negligence to “prove ‘why and how the incident happened.’ ” Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 451 (4th Cir.2004) (quoting Town of West Point v. Evans, 224 Va. 625, 628, 299 S.E.2d 349, 351 (1983)). “[I]f the cause of the event is left to conjecture, guess, or random judgment, the plaintiff cannot recover.” Hodge, 360 F.3d at 451 (quoting Evans, 224 Va. at 628, 299 S.E.2d at 351).

There may be more than one proximate cause of an event. When the evidence does not wholly exclude a defendant’s negligence as a contributing cause of the plaintiffs injuries as a matter of law, proximate causation becomes a question of fact. Molchon v. Tyler, 262 Va. 175, 182, 546 S.E.2d 691, 696 (2001); see Banks, 232 Va. at 135, 348 S.E.2d at 283 (“The more difficult problem is to apply the rules relating to proximate cause to the facts of a particular case. We have stated that ‘[e]ach case necessarily must be decided upon its own facts and circumstances.’ ” (quoting Huffman v. Sorenson, 194 Va. 932, 937, 76 S.E.2d 183, 186 (1953))). Harm which occurs in a highly extraordinary manner may prevent even a primary actor’s conduct from being a proximate cause of an event. Banks, 232 Va. at 137, 348 S.E.2d at 283-84.

C. Legal Duty and Standard of Care

“The issue of whether a legal duty in tort exists is a pure question of law.” Kellermann v. McDonough, 278 Va. 478, 487, 684 S.E.2d 786, 790 (2009); see Miller v. United States, 587 F.2d 991, 995 (9th Cir.1978) (nature and extent of the duty of due care which an air traffic controller owes pilots and their passengers is a question of law). Pilots and air traffic controllers “are burdened with concurrent duties of due care for the protection of the aircraft and its occupants.” Webb v. United States, 840 F.Supp. 1484, 1511 (D.Utah 1994); accord Redhead v. United States, 686 F.2d 178, 182 (3d Cir.1982) (liability of pilot and air traffic control may be concurrent); Spaulding v. United States, 455 F.2d 222, 226-27 (9th Cir.1972). However, “[i]t is not enough to say that the pilot and controller are concurrently responsible (for accomplishing a safe flight), they must also be concurrently liable, and one does not necessarily follow the other even if both are found negligent.” Airplanes of Boca, Inc. v. United States, 254 F.Supp.2d 1304, 1312 (S.D.Fla.2003) (quoting Tinkler v. United States, 700 F.Supp. 1067, 1074 (D.Kan.1988), aff'd, 982 F.2d 1456 (10th Cir.1992)), aff'd, 112 Fed.Appx. 4 (11th Cir.2004) (unpublished table decision); see Mgmt. Activities, Inc. v. United States, 21 F.Supp.2d 1157 (C.D.Cal.1998) (same). “Necessarily, the pilot’s knowledge of his own, his crew’s, and his aircraft’s capabilities and limitations, is of preeminent importance in this cooperative situation. None of these matters can be known by ATC.” In re Aircrash Disaster at Boston, Mass. July 31, 1973, 412 F.Supp. 959, 989 (D.Mass.1976), aff'd sub nom. Delta Air Lines, Inc. v. United States, 561 F.2d 381 (1st Cir.1977).

Determination of the duties of pilots and air traffic controllers derives from Federal Aviation Regulations, publications of the FAA, and the common law.

The FAA promulgates regulations and publishes materials that define the duties of pilots and controllers. Pilot responsibilities are set forth in the Code of Federal Regulations, and those applying to controllers are in the applicable version of FAA Order 7110.65, supplemented by FAA directives. Additional information is found in the Aeronautical Information Manual (“AIM”), Notice to Airmen, Advisory Circulars, the Instrument Flight Handbook, Air Traffic Bulletins, and terminal refresher training materials.

1. Federal Regulations

“The duties of pilots and air traffic controllers are prescribed by federal law,” pursuant to the Federal Aviation Act of 1958, as amended (“Federal Aviation Act”). Rodriquez v. United States, 823 F.2d 735, 739 (3d Cir.1987). The Federal Aviation Act authorizes the FAA Administrator to promulgate air traffic regulations, which are known as Federal Aviation Regulations (“FARs”). 49 U.S.C. § 106(g). FARs have “the force of law.” Tilley v. United States, 375 F.2d 678, 680 (4th Cir.1967). Even when the FARs are too general to support a finding of negligence per se, they provide “relevant and useful evidence on the standard-of-care issue.” Banko v. Cont’l Motors Corp., 373 F.2d 314, 315-16 (4th Cir.1966); accord Dyer v. United States, 832 F.2d 1062, 1069 (9th Cir.1987).

Regulations promulgated pursuant to Virginia statutes provide that all aircraft operations shall be conducted in conformity with the FARs, as amended from time to time, such that a violation of a FAR constitutes a violation of the Virginia regulations pertaining to airspace in the Commonwealth. 24 Va. Admin. Code § 5-20-100.

2. Air Traffic Control Manual

A controller’s legal duties are defined by the Air Traffic Control Manual, FAA Order 7110.65P, in effect at the time of the accident (“ATC Manual”). See Rodriquez, 823 F.2d at 740; Delta, 561 F.2d at 389-90; Gill v. United States, 429 F.2d 1072, 1075 (5th Cir.1970) (government’s duty may rest either upon the requirements of procedures manuals spelling out the functions of the controller or upon general pilot reliance on the government for a given service). Although it is not clear whether the ATC Manual has the force and effect of law, the ATC Manual at least provides evidence of the standard of care for air traffic controllers. Ellen v. United States, 32 Fed.Appx. 270, 274 (9th Cir.2002) (“[W]hile the language of several cases may suggest that air traffic controllers are required to comply with the terms of [FAA Order 7110.65J] ... for purposes of tort liability, [FAA Order 7110.65J] merely provides evidence of services the FAA assumes and of the ATC practices.”); see Wojciechowicz v. United States, 582 F.3d 57, 64 (1st Cir.2009) (“The controlling law of this circuit is that the ATCM [Air Traffic Control Manual] 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.”); Delta, 561 F.2d at 389-90 (“While failure to conform to every mandatory Manual procedure, however trivial the deviation, would not necessarily constitute negligence, and while it might not be negligent to deviate from established procedures in the face of a higher priority concern, nonetheless a substantial and unjustified failure to follow procedures made mandatory by the Manual is persuasive as an indication of a lack of due care.”).

3. Other FAA Documents

Duties evidencing the standard of care are also articulated in other FAA publications. FARs specifically require pilots to be familiar with and abide by the provisions of the Aeronautical Information Manual (“AIM”) and FAA Advisory Circulars pertaining to the pilots’ particular flying activities. See Dyer, 832 F.2d at 1069; Rodriquez, 823 F.2d at 739; Barbosa v. United States, 811 F.2d 1444, 1446-47 (11th Cir.1987); Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180-81 (5th Cir.1975).

The purpose of the AIM is to “instruct pilots about basic flight information, air traffic control procedures, and general instructional information.” Mgmt. Activities, Inc. v. United States, 21 F.Supp.2d 1157, 1175 (C.D.Cal.1998); see In re N-500L Cases, 691 F.2d 15, 28 (1st Cir.1982) (stating that the AIM “explain[s] to pilots the application of the FARs in various situations”). Advisory Circulars are published “on various topics to advise pilots of methods of avoiding certain hazardous conditions.” In re N-500L Cases, 691 F.2d at 28. The AIM and Advisory Circulars are evidence of the standard of care among pilots. Cappello v. Duncan Aircraft Sales of Florida, 79 F.3d 1465, 1469 n. 3 (6th Cir.1996); Dyer, 832 F.2d at 1069; In re Air Crash Disaster at John F. Kennedy Int’l Airport on June 24, 1975, 635 F.2d 67, 75-76 (2d Cir.1980); Muncie, 519 F.2d at 1180.

The FAA Instrument Flying Handbook (2001) also provides evidence of the standard of care for pilots. This publication describes in great detail all the facets of instrument flying. As testified to by the Government’s piloting expert Lintzenieh, the Handbook is used to teach student pilots to fly with instruments and to refresh the memory of licensed pilots.

The FAA’s Air Traffic Bulletins are further evidence of the standard of care for air traffic controllers. Air Traffic Bulletins are quarterly publications that focus on recent crashes and other events. Although the Air Traffic Bulletins do not create additional duties beyond the ATC Manual, they are thought-provoking items that are used to train or refresh controllers, including those at the Greensboro TRACON.

Finally, the FAA’s terminal refresher training materials are other non-binding documents that indicate the standard of care for controllers.

D. Pilot Duties and Conduct

1. Pilot Duties

Pilots are charged with legal notice of the FARs and their content, regardless of actual knowledge, and all pilots operating in the United States must obey them. In re N-500L Cases, 691 F.2d at 28; Hartz v. United States, 387 F.2d 870, 873 (5th Cir.1968); Thurston v. United States, 888 F.Supp. 1100, 1108-09 (D.Utah 1995), aff'd, 99 F.3d 1150 (10th Cir.1996) (Table); Mallen v. United States, 506 F.Supp. 728, 735 (N.D.Ga.1979), aff'd, 632 F.2d 891 (5th Cir.1980). “The FAR’s[sic] in turn require pilots to know and follow the Airman’s Information Manual prepared by the FAA and FAA Advisory Circulars.” Rodriquez, 823 F.2d at 739. It is assumed that all pilots have read and know their provisions. Associated Aviation Underwriters v. United States, 462 F.Supp. 674, 680 (N.D.Tex.1979).

A clearance, instruction or request by an air traffic controller “does not relieve the pilot of the duty and responsibility to operate his aircraft in a manner consistent with the FARs and good operating practices.” Thurston, 888 F.Supp. at 1109; accord Spaulding, 455 F.2d at 226-27 (controller’s duty to warn does not relieve pilot of his primary duty and responsibility); Webb, 840 F.Supp. at 1511, 1513 (when a pilot believes an ATC clearance would jeopardize safety of aircraft and passengers, the pilot has an absolute duty to reject that clearance, inform the controller, and request a new clearance).

a. 14 C.F.R. § 91.3 Pilot-in-Command

The FAA regulations and case law establish that the pilot-in-command, not the air traffic controller, is directly responsible for and has final authority as to the operation of the aircraft. 14 C.F.R. § 91.3(a) (2004); see Redhead v. United States, 686 F.2d 178, 182 (3d Cir.1982) (citing In re Air Crash Disaster at New Orleans (Moisant Field), 544 F.2d 270 (6th Cir.1976)); Am. Airlines, Inc. v. United States, 418 F.2d 180, 193 (5th Cir.1969).

A pilot’s failure to operate the aircraft in a safe manner, as required by 14 C.F.R. § 91.3, may constitute evidence of negligence. Walsh v. Avalon Aviation, Inc., 125 F.Supp.2d 726, 727 (D.Md.2001), aff'd, 31 Fed.Appx. 818 (4th Cir.2002). Pilots have a duty to be aware of danger when they can perceive it with their eyes. Spaulding, 455 F.2d at 226-27; Associated Aviation Underwriters, 462 F.Supp. at 681. A pilot is charged with that knowledge which, in the exercise of due care, he or she should have known. Redhead, 686 F.2d at 182; Associated Aviation Underwriters, 462 F.Supp. at 681.

b. 14 C.F.R. § 91.13 Careless or Reckless Operation

The FAA regulations prohibit pilots from “operating] an aircraft in a careless or reckless manner so as to endanger the life or property of another.” 14 C.F.R. § 91.13(a) (2004).

c. 14 C.F.R. § 91.175 Takeoff and Landing under IFR

Conditions

“[E]ach person operating an aircraft ... shall use a standard instrument approach procedure prescribed for the airport....” 14 C.F.R. § 91.175(a) (2004). “Unless otherwise authorized by ATC, you are expected to execute the complete IAP [Instrument Approach Procedures] shown on the chart” when landing at an airport with no tower. FAA Instrument Flying Handbook 10-14 (2001).

“Each pilot operating an aircraft ... shall immediately execute an appropriate missed approach procedure ... [u]pon arrival at the missed approach point.” 14 C.F.R. § 91.175(e)(1) (2004). Moreover, “[e]ach pilot operating an aircraft ... shall immediately execute an appropriate missed approach procedure ... [whenever an identifiable part of the airport is not distinctly visible to the pilot during a circling maneuver at or above MDA [Minimum Descent Altitude]” unless visibility is blocked only due to a normal bank during the circling approach. 14 C.F.R. § 91.175(e)(2) (2004). Therefore, if an aircraft at the missed approach point can identify the airport and the pilot can safely conduct a circling approach to land from the opposite direction, he may do so; otherwise, he must declare a missed approach and follow the missed approach procedure.

d.Aeronautical Information Manual

The AIM directs as to pilots flying IFR approaches that “[w]hen operating in accordance with IFR clearance and ATC approves a change in the advisory frequency, make an expeditious change to the CTAF [Common Traffic Advisory Frequency, UNICOM in this case] and employ recommended traffic advisory procedures.” AIM ¶ 4-1-10. “Whether aircraft are vectored to the appropriate final approach course or provide their own navigation on published routes to it, radar service is automatically terminated when the landing is completed or when instructed to change to advisory frequency at uncontrolled airports, whichever occurs first.” AIM ¶ 5-4-3.b.3 (emphasis added).

e.Common Law Duty

In the absence of a statute, ordinary rules of negligence and due care apply in actions arising out of the operation of an aircraft. Mackey v. Miller, 221 Va. 715, 718, 273 S.E.2d 550, 552 (1981) (duty to other pilots and generally); accord Musick v. United States, 768 F.Supp. 183, 187 (W.D.Va.1991) (pilot under common law and statutory duty to exercise ordinary care and skill; applying Virginia law). A pilot has a duty to act as a reasonably prudent pilot would under the circumstances. Avemco Ins. Co. v. Elliott Aviation Flight Servs., Inc., 86 F.Supp.2d 824, 831 (C.D.Ill.2000) (citing Steering Comm. v. United States, 6 F.3d 572, 579 (9th Cir.1993)).

2. Pilot Conduct

The court finds that the pilots of N501RH breached their duty and that their actions and omissions constituted a proximate cause of the accident. Proper attention to their instrument displays would have alerted the pilots that they were not properly flying the localizer approach to Runway 30 and were not in their proper location. This is particularly true of the ADF prior to passing the airport, supplemented by the DME before and after passing the airport. At a minimum, the instrument displays would have indicated that immediate investigation, which would have directed a missed approach, was required.

More significantly, as noted in the discussion of superseding and intervening cause infra, in addition to the aircraft instrumentation, the pilots were eventually able to view the ground visually. As N501RH broke through the clouds at approximately 12:30:35, descending through 1,500 feet MSL approximately 4.3 miles northwest of the missed approach point (just over three miles past the MTV DME antenna), the pilots could see at least one or two (and, based on weather reports obtained later, perhaps up to five or more) miles ahead of the aircraft, based upon radar and weather data, expert testimony, and the testimony of Mark Nelson, the witness on the ground who observed the aircraft flying beneath the clouds. Even if the crew believed they were on the proper approach, they would have expected to see the approach end of Runway 30 less than one mile ahead. Thus, even if visibility had been only one mile, as N501RH continued to fly northwest the pilots would have expected to see the runway in front of them.

Critically, no later than 12:31:03 p.m., the pilots, if under a mistaken belief they were on a proper flight path, would have expected to be at the approach threshold of Runway 30 or to have it in sight. Of course, because the threshold to the airport was in reality five miles behind them, they could not have observed it. Pursuant to 14 C.F.R. § 91.175 (2004) and the approach plate onboard N501RH, the pilots were required to immediately execute the published missed approach procedure because they did not have the airport, runway or other identifiable features in sight. In violation of FARs, the pilots, therefore, not only failed to execute the published missed approach procedure at the actual missed approach point but also failed to do so five miles later at the point the flight path demonstrates the pilots would have believed to be the missed approach point.

Only after N501RH was approximately six-and-one-half miles northwest of the airport (nearly eight miles beyond the published missed approach point) did the crew initiate a climb. Further, rather than executing the published missed approach, which called f