Full opinion text
MEMORANDUM OPINION AND ORDER FOR JUDGMENT FOR PLAINTIFFS HAUK, District Judge. These are four consolidated actions against the United States Government for damages for wrongful deaths, personal injuries and property damage arising out of the crash of a Cessna 310-G airplane at Los Angeles International Airport on December 6, 1962. The pilot, James Gordon, and two passengers, Dale D. Lightenburger and Bervial Carrington, were killed in the crash. North American Aviation, Inc. facilities were damaged when the plane crashed into it. Ivory Combs, an employee of North American Aviation, Inc. who was working on the ground, sustained personal injuries. Eagle Star Insurance Company is the subrogee for hull damage to the aircraft. North American Aviation, Inc. is the subrogee for workmen’s compensation paid to Ivory Combs. The actions were consolidated, and separate trials on the issue of liability and damages were ordered by the Court on the motion of the Plaintiffs after a hearing held on August 20, 1965. All actions charge negligence of Defendant United States of America by and through its agents acting within the scope of their agency and employment. Jurisdiction in this Court exists under 28 United States Code § 1346(b), the pertinent provision of the Federal Tort Claims Act. - Plaintiffs alleged and offered evidence upon four theories of liability. Two theories were based on ordinary negligence, and two theories were based upon liability stemming from breach of safety regulations. The Government denied negligence and violation of the safety regulations, as well as the nature and extent of the Plaintiffs’ damages; and asserted the affirmative defense of contributory negligence as to the pilot Gordon. The case was tried on October 10, 11, 13, 19, 20, 25, 26, and 27, 1967; November 7, 8, 9, 15, 16, 17, 21, and 22, 1967; December 19, 20, 21, 1967; January 23, 24, 25, 26, 1968; and February 8, and 9, 1968. The Court, after hearing all of the testimony and the arguments of counsel and being fully advised in the premises makes its decision, findings of fact, and conclusions of law in favor of all the Plaintiffs and against the United States of America with judgment ordered for the Plaintiffs and against the Government. This action arises out of the crash of a Cessna 310-G aircraft at Los Angeles International Airport at approximately 4:10 P.M. on the afternoon of December 6, 1962. The flight originated in Las Vegas, Nevada under an instrument flight plan giving Los Angeles International Airport as destination. When the pilot reached the Los Angeles area, he first requested a clearance for an instrument approach to Los Angeles International Airport, but prior to beginning the approach he requested and obtained clearance to go to Santa Monica Airport. The pilot later discovered that Santa Monica Airport was closed because of weather conditions and the pilot again requested instrument approach to Los Angeles International Airport. The pilot was then brought in contact with the instrument landing system at a point 6.4 miles from the end of Runway 25 Left designated as the Outer Marker. The pilot requested a Precision Radar Approach (PAR) and was placed under the jurisdiction and direction of the PAR Controller, an employee of the Federal Aviation Agency (FAA). The pilot was advised by the PAR Controller that the approach would be terminated at the Middle Marker, a point which is one-half mile from the end of the runway. The PAR Controller then proceeded to advise the pilot of his position with respect to the glideslope both vertically and horizontally as the approach was being made. The conduct of the approach is directed and controlled by the PAR Controller and the pilot responds to and relies on advisories given by the Controller as to the movements of the aircraft. The PAR Controller did not terminate the approach at the Middle Marker as he had advised the pilot would be done, but rather, continued the approach past the Middle Marker up to a point between the Middle Marker and the end of the runway and instructed the pilot to, “take over and complete your landing visually on Runway 25 Left and if you’re not contact execute a missed approach climb west bound to VFR on top.” The Air Surface Radar Detection (ASDE) picked up the Cessna at this point. The Cessna was observed on the ASDE to fly directly above Runway 25 Left for a distance of approximately 3000 feet. The aircraft then made a sudden and violent left veer, making a 210 degree turn with a turn radius of approximately 500 feet and then crashed in the aircraft parking area of the Autonetics Division, North American Aviation Company. There were no survivors from the crash which caused extensive damage to North American facilities and a resulting fire, which severely injured Plaintiff Ivory Combs. The pilot James Gordon was a businessman in Las Vegas with a total of 668 hours as a pilot in command; he held appropriate licenses from the FAA and was an above average pilot. The pilot had no tendencies towards dizziness, vertigo or any other physical disability which would affect his flying ability. An autopsy revealed no physical ailment which would contribute to or account for the crash. The aircraft was a new twin-engine 310-G Cessna, well equipped with navigational equipment. There was no evidence of any equipment failure with the exception of some difficulty with an automatic direction finder which is not relevant to the crash. The Government conceded that there was no evidence of any lack of maintenance or mechanical failure which could have caused or contributed to the crash. On the afternoon of the crash during the weather period prior to 4:00 P.M., the airport was experiencing weather which necessitated instrument approaches, but which permitted landings to be made after penetration of the general haze and clouds at a point near the runway. At about 4:00 P.M. a low-lying fog bank began rolling in across the airport as an American Airlines Boeing 707 approached Runway 25 Left. The fog appeared to the co-pilot as a low ground fog, 20 to 30 feet in height. The American Airlines flight executed a missed approach over the field. Approximately ten to eleven minutes later, Gordon made his PAR approach. A PAR approach is conducted by advisories received by the pilot from a radar operator. It was conceded by the Government that the approach conducted by the pilot was proper and well executed, and that no negligence on the part of the pilot existed during the approach of the aircraft down to the Middle Marker which exists a half mile from the end of the runway and at an altitude of 210 feet along the glideslope; and the Court finds no negligence. But the PAR Controller because of information available to him through the Local Controller knew, or should have known, that the fog was becoming thicker at the approach end of Runway 25 Left, making this thickening fog condition reasonably foreseeable with the result that his failure to advise the pilot thereof was negligence. The PAR Controller admitted that the two conditions necessary to bringing into operation Regulation 344.9 of the Air Traffic Control Procedures Manual (Clerk’s Transcript, hereinafter referred to as “CT”, Exhibit 17) were present: 1. Plane below safety limits; and 2. Controller’s judgment that safety of the flight was likely to be in danger. The directive requires the PAR Controller to use the following express terminology of Section 394.7 set forth in the Air Traffic Control Procedures Manual: “To instruct a pilot to discontinue approach when the aircraft exceeds safety limits: IF RUNWAY NOT IN SIGHT, CLIMB IMMEDIATELY TO (altitude), TURN LEFT/RIGHT, HEADING (degrees), (Reason and further clearance, if appropriate), ACKNOWLEDGE.” Nevertheless, in violation of this directive, the PAR Controller gave the following advisory (Plaintiffs’ Exhibit 4A, p. 9): “[T]ake over and complete your landing visually on runway two five left if you’re not ah contact execute a missed approach climb westbound to VFR conditions on top.” The pilot was thereby advised to take over visually, complete his landing, and if the runway was not in sight, to execute a missed approach. The pilot then apparently began to execute a missed approach and add full power, proceeding down the runway for 3000 feet, at which time the aircraft performed an extremely violent maneuver in a left bank with a turn radius of 500 feet, executed a turn of 210°, and crashed in a steep left bank, nose down. The final maneuver involved a turn so tight as to be beyond the control capacity of the aircraft. There exists a phenomenon known as wing tip vortices. When a heavy aircraft flying at slow speed accelerates, the passage of the wings through the air causes a roll-up of the air mass at the tip of each wing. The air mass continues to swirl much in the same manner as a tornado, except that its position in the air is horizontal. The force of the resulting tornados is proportional to the weight, wing span and speed of the aircraft. The advent of heavy aircraft in the field of aviation has caused increased recognition of this phenomenon. The size, weight and acceleration of a Boeing 707 is such as to create a violent disturbance in the air. The duration of this phenomenon is regulated by several factors, the most important of which is the type of wind condition extant. A relatively slight wind condition facilitates the preservation and endurance of wing tip vortices over the runway. The ideal conditions for the preservation of violent vortices were present at the hour of the crash. It was the opinion of two experts that the immediate forces acting upon the violent final maneuver of the Cessna were the violent wing tip vortices shed by the American Airlines Boeing 707 which had executed a missed approach previously. The Court agrees with these opinions and finds that the effects of wing tip vortices provide the most reasonable explanation for the violent final left bank maneuver. The advent of the modern heavy transport type aircraft has brought with it a phenomenon which was unknown to the early decades of the aviation industry. General knowledge of the subject is so limited that, even during the course of this trial, a Government pilot witness, John McCormick, with flying experience of 25 years in which he accumulated 13,000 hours flying time, equated it in severity as something less than “prop-wash” occurring behind a propeller driven aircraft. (Reporter’s Transcript [hereinafter referred to as “RT”] 3712). However, the nature of vortices created by the roll-up of the air mass at the tip of each wing on a heavy transport aircraft operating at low speed, maximum lift situations in landing, take off, and missed approach configurations around the airports and the consequent hazard to light weight private aircraft, have been the subject of knowledge and study by the FAA for a number of years. E. g., see the legislative history of the “caution turbulence” warning requirements of the Air Traffic Control Procedures Manual set forth in Furumizo v. United States, 245 F.Supp. 981, 1002-1011 (D.Hawaii 1965). With the possible exception of Mr. McCormick, there was uniform recognition among the witnesses in this trial that the phenomenon exists: Plaintiff witness, Vance Breese (RT 538); Defense witness, Edmund Burke (RT 988); Defense witness, James Nimmo (RT 1193); Defense witness, A. Bill Bush (RT 168); Defense witness, Merle Nichols (RT 2070); Defense witness, Gerald Feltman (RT 3344) Defense witness, Edgar Zwiebach (RT 2273) Plaintiff witness, Anthony LeVier (RT 4141): Plaintiff witness, Gerald Mills (RT 4165). Certain qualities of the turbulence created by wing tip vortices appear to be accepted with little or no question or controversy : (a) That the resulting forces can exceed the load factors and control capabilities of light aircraft. Testimony of witness Breese: “Q Can this roll or the forces that are exerted exceed the normal load factors of a light aircraft ? “A Yes, this was depicted in the picture. “Q Can they exceed the controllability of the pilot of a light aircraft ? “A Yes, it can exceed the controllability of the airplane itself, regardless of what the pilot does.” NASA Technical Note D-829 (Exhibit 48), p. 1: “The results indicate that light airplanes traversing the wakes of currently operational heavy transport airplanes can experience loading conditions that exceed the design limit and, in some cases, the design ultimate load factors.” Exhibit J of Defendant, p. 23 (Script for FAA turbulence film): “The air in the outside layer can rotate at speeds greater than thirty-five miles an hour. That’s enough to put a light aircraft completely out of control — or even cause structural failure.” NASA expert, John A. Zalovcik (RT 2211): “The Witness: If an airplane gets in the core, especially if the age of the vortex is low, it could rotate, yes, sir.” ATS Bulletin dated 11-15-62, published by FAA: “Light aircraft crossing the wake of a heavy aircraft at any altitude can be structurally damaged.” (b) That the weight factor of the generating aircraft has a direct bearing upon the strength of the vortices created. Defendant’s Exhibit J, p. 13: “So the heavier the aircraft, and the greater its load, the worse the turbulence will be.” Testimony of FAA employee, James W. Nimmo (RT 1195): “Q Are you also aware that the intensity of a vortex or the so-called wing tip vortices has been said to be directly proportional to the weight and inversely proportional to the speed of an aircraft that is, in this case a 707? “A Yes. “Q And that the heavier and slower the aircraft the greater the intensity of the vortex in the vortex core? “A Yes. * -X- -X- * * * “Q You are aware of the effect of weight and speed of an aircraft in a given maneuver in terms of how it affects the intensity of the vortices created? “A Well, yes. Yes. “The Court: Do I understand now you say it is directly proportional to the weight and speed ? “A Directly proportional to the weight and inversely speed. In other words, the heavier the aircraft and the slower the aircraft is going the more intensity.” NASA witness, John A. Zalovcik (RT 2240): “The Court: And these jets with their small wing span have a tendency to set out more powerful vortices than the motor driven DC-6B with a bigger wing span ? “The Witness: That is correct, yes, sir. “The Court: Because as you said it is inversely proportional to the wing span? “The Witness: Yes, sir. * * -X- * * * “The Court: I want to know what you think. I would gather it would make some sense, that is assuming his rule of thumb is correct for a DC-6B, that the rule of thumb ought to be 12% minutes for a 707; is that correct in your best judgment? “The Witness: Yes.” A factual controversy arose among the witnesses in the trial which centered around the length of time that the wing tip vortices could persist as a possible hazard to a light aircraft. The factual position upon which the controversy arises is, of course, the separation time between the missed approach of the American Airlines Boeing 707 and that of the Cessna between ten and twelve minutes later together with the requirement of the Air Traffic Control Procedures Manual that a warning be given of possible turbulence. Resolution of the controversy requires analysis of the testimony of the various witnesses on the subject which might well be done in the order of their appearance at trial. In addition to his general background in aviation, Mr. Breese related his investigation of the subject matter of vortices which included an examination of all the prominent literature on the subject, a list of which was presented to the Court and marked for identification as Exhibit 53. The witness’ approach to the subject admittedly did not rely upon scientific formulae or computations but was in the nature of an empirical approach drawing upon his own background and experience and that of other flyers. Taken into consideration was a complete investigation of the facts of the instant case by an aviation accident investigator to whom the basic elements were the pilot, the machine, and their environment. The results of that investigation are evident in this trial wherein: the pilot must be found to be qualified and in exercise of reasonable prudence; aircraft malfunction is not an issue; and the only element of the environment which would furnish a cause for the crash is the lingering vortices from the Boeing 707. From there the witness proceeds to evaluate this most prominent possibility and explore the conflict between the theory espoused by the scientists, epitomized in this case by witnesses Zaloveik and Zwiebaeh, and the actual experience of the pilots in the field. From there it became a problem, as it does in this case, of evaluating the rationale for the opinions of the scientists. (e) The formula being utilized by the scientists to reach the theoretical time value had admitted limitations. A review of the testimony and cross-examination of John A. Zaloveik in RT Yol. 13B, clearly reveals that the formula utilized by him in his calculations was “developed in the late 1800’s for the free flow of gas [in] the gas mains of Europe” (RT 2189); that “one portion of the formula is a variable portion of that formula” (RT 2190); that at least one parmeter, small scale velocity at any given time and place, is unknown and a theoretical value is ascribed to it (RT 2201); that the determination by the formula of the persistence of vortices is “subject to the vagaries of the atmosphere at a particular time and place” (RT 2204); and that by changing the formula, results could be obtained corresponding to reports of pilots of encountering turbulence at separation times in excess of five minutes. (RT 2246) And, similarly, examination of the testimony of Edgar L. Zwiebaeh, the other Government scientist witness, shows that in his work on the subject he simply utilized the same formula that had been used by Dr. Bleviss in 1954 and by the witness, Zaloveik (RT 2287); and he likewise admitted that, by modifying the one unknown factor, he could reach results compatible with pilot reports: “Q Well, there is one NASA report, D-1777, in evidence here as Exhibit 49. I read to you from page 7: ‘It should be noted that pilots have reported apparent encounters with trailing vortices at separation times estimated at 5 minutes or more.’ My question to you, sir, is whether in using the formula which you adopted and the one upon which you base your testimony today that this would be almost incredible, these reports of over 5 minutes? “A Not incredible, but questionable. “Q However, you could, could you not, modify the formula, that is, the one variable, to a point where they would be reasonable? “A I believe so, yes. “Q Similarly, you could do so with a 10-minute interval if you had a pilot report of 10 minutes ? “A Possible. “Q Well, now, insofar as reaching the theoretical result with a modification of the formula, that isn’t just a possiblity, you could do that, couldn’t you? “A Yes.” (RT 2294) (d) The longest actual measurements of vortices at the point of greatest velocity, i. e., take off, landing and missed approach configurations, has been less than 2 minutes. Again, in Mr. Zalovcik’s testimony, there was discussion of certain tests that had been made for periods longer than 2 minutes but these were made at high altitudes where the generating aircraft were flying straight and level and not exerting maximum lift as would be the case in the problem area. (RT 2198) The only tests he knew of below 300 feet altitude were made by Mr. Zwiebach and in the Dynascience contract, the latter not having been completed at the time of his testimony. (RT 2199) Insofar as the Zwiebach measurements are concerned, Mr. Zwiebach himself testified that he monitored eight take offs and was able to record six of these (RT 2284), that his theoretical calculations varied as much as 50% from actual velocities measured, and that the longest time lapse measured was 65 seconds. (e) There is admitted uncertainty as to the validity and applicability of the formula to actual conditions. At least one of the reports relied upon by Mr. Zalovcik (RT 2181, 2183), and listed as Reference No. 6 in Mr. Zwiebach’s report, contains the statement that “vortices may persist for period of 30 minutes or longer depending upon their initial strength” (Quoted from Kraft report of March, 1955 by Government counsel) (RT 2183) Witness Zalovcik, despite his apparent certainty on direct examination, appeared to believe on cross-examination that there were uncertainties (RT 2246): “Q And similarly, if people appeared in this courtroom, actual pilots, testifying to an actual experience, where they had encountered turbulence from 2i/2 to minutes, on your drawing board using your formulas that would be impossible, wouldn’t it? “A I wouldn’t say so, no, because as I say theoretically the vortex would exist to infinity; and, depending on the type of airplane that you had, why you would have different responses.” And witness Zwiebach appeared somewhat reluctant to mix the theoretical with the practical (RT 2289): “A No. First of all, I would like to say that by virtue of my work I feel competent in discussing the existence or strength of vortices but not particularly competent in the field of predicting upsets of light aircraft, which is what your questions presupposes.” Both Government scientist witnesses admittedly used and relied upon the Bleviss 1954 report, and Mr. Zalovcik agreed with the following statement from page 3 of that report (RT 2205): “Because of the many factors involved and because much of the required data would not be known in any typical situation, no detailed rules can be set up which will allow pilots of light planes to avoid difficulties under all conditions.” But he disagreed with Dr. Bleviss’ statement in that report that: “Particularly important is the fact illustrated in Fig. 12 that even after 5 minutes the effects of viscosity have increased the core radius less than one foot. Since the typical light plane has a [span] of 30 feet or more, it is clear that viscosity cannot produce any noticeable reduction in the induced effect on the light plane for any reasonable separation time.” (RT 2206) And, although Mr. Zalovcik was willing to agree with the efforts of his fellow scientist, Dr. Bleviss, to come up with a rule of thumb for use in the field (RT 2221), he was unwilling to accept the resultant figures because it did not take into account one further parameter known as “in ground” effect. (RT 2222) Yet he himself admits that the vertical and lateral movement of the vortex core is affected by its encompassing air mass; that the fact of whether it might settle toward the ground or move laterally at any given time is dependent upon the movement of such air mass (RT 2217); and that, again, his calculations with respect to such movements of the vortex were purely theoretical and no actual measurements have ever been made. (RT 2218) (f) Some areas of the “scientific theory” tend to verify the practical experiences reported. In the report of Dr. Zigmund 0. Bleviss, also done under auspices of Douglas Aircraft, there is the recommendation of a 5 to 10 minute separation time under certain conditions. As pointed out above, this recommendation was made upon the basis of the generating aircraft being a DC-6B weighing 60,000 pounds. The Government witness, Zalovcik, has admitted the 25% increase in velocity of the vortex brought about by the 170,000 pound weight of the Boeing 707, which would appear logically to extend the rule of thumb separation time to 6 to 121/2 minutes under similar conditions. Such a separation time would encompass the pilot reports which NASA and FAA have been receiving that upsets from turbulence are being experienced at periods beyond 5 minutes as well as the court-related experiences of Plaintiffs’ witnesses, Anthony LeVier and Ronald Madley. Plaintiffs’ witness, Gerald J. Mills, who testified on this subject, in addition to impressive qualification as an aeronautical engineer, is a pilot of some 25 years experience, is familiar with the evolvement of the scientific formula used by the other engineers, has performed tests with respect to the subject of persistence of vortices and yet is of the opinion that it was turbulence from the 707 vortices which tipped the Cessna upon its wing. The testimony of Mr. Mills would appear to put the “theory” of the scientific group in its proper perspective — the use of the modified potential flow formula for determining the persistence of vortices was and is a hypothesis which has not attained evidentiary credibility sufficient to become a sustainable theory on the subject. Thus it is that, faced with the admitted limitations on the formula being used, the paucity of actual measurements to support its results, the admitted uncertainty as to its applicability to actual conditions, and finally the division of opinion in the scientific group, one could reasonably and logically disregard the scientific hypothesis in favor of reported experiences and rules-of-thumb which bear out the reports. The foregoing has reviewed the testimony of the major witnesses relating to the persistence of vortices. However, a number of others discussed the subject to some degree. The Air Traffic Controller group, consisting of Edmund Burke, the specialist from FAA headquarters in Air Traffic Service, Merle H. Nichols, Assistant Chief Los Angeles Tower, and Gerald J. Feltman, the PAR Controller of the subject flight, testified pretty well along the same line. Prior to 1963, none of them, nor any of the FAA controllers, received any instruction with respect to the origin and persistence of wing tip vortices. None of them was aware of specific instances of turbulence affecting the flight of light aircraft in their experiences as controllers. With respect to giving or not giving turbulence warning to following aircraft, all of the FAA controllers followed the separation times required by the Instrument Flight Rules and the Visual Flight Rules, hereinafter referred to as “IFR” and “VFR” respectively. The Government pilot witness group consisting of Mervyn A. Davenport of Gunnell Aviation, Cyril Tanner of Long Beach, James W. Nimmo, the script editor for the FAA turbulence film, and John McCormick, the FAA Air Carrier Operations Inspector, were consistent in their testimony that none had personally experienced turbulence from vortices and that they did not believe vortices caused the crash of the Cessna. With the possible exception of Mr. Nimmo, none professed to have made any study of wing tip vortices, or its effect upon light following aircraft. With respect to Mr. Nimmo, he had read a number of the vortices reports but did not hold himself out to be “an expert or represent here that you have any expertise in terms of mathematical calculations or precise research in the area”. (RT 1198) Mr. Nimmo, as the FAA editor of the script of the Wake Turbulence film was responsible for language such as: “So the heavier the aircraft, and the greater its load, the worse the turbulence will be” and, having admitted to study of the Bleviss report (RT 1197), he must be assumed to have known that the recommended separation time therein for light planes following a DC-6B should be extended for the jet transports three times greater in weight: “Wake turbulence may remain severe in excess of five minutes.” And, having admitted to having studied the NASA reports, he must have been aware of the fact that NASA was receiving such reports from pilots (Exhibit 49, p. 7): “Controllers — caution pilots whenever wake turbulence is suspected to exist.” From which it seems safe to assume that Mr. Nimmo was not aware that the FAA practice with respect to turbulence warning was and is based on IFR-VFR spatial separation rather than upon elapsed time between the lead and following aircraft. Upon all the evidence it is clear to the Court and we necessarily find that the final maneuver of the Cessna was physically beyond the control capacity of the aircraft, and could only have occurred as the result of something other than the aircraft. Upon the evidence in this case, the effects of wing tip vortices were the only outside force acting upon the aircraft. The Plaintiffs presented four theories-of liability — two based on ordinary negligence, and two based upon liability resulting from the violations of the safety regulations by the Government. The Court finds in favor of the Plaintiffs and against the Defendant upon each theory. FIRST THEORY OF LIABILITY: The PAR Controller Was Negligent In That He Knew, Or Should Have Known, That A Hazard Existed In The Form Of Wing Tip Vortices From The Prior Missed Approach Of The Boeing 707, And Breached His Duty To Warn The Pilot Of This Hazard. When the United States has undertaken to warn the public of danger and induces reliance thereby, it must perform the risk with due care. Indian Towing Company v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48, 53 (1955). This rule is applicable to the Federal Aviation Administration. United Air Lines, Inc. v. Wiener, 335 F.2d 379, 396 (9th Cir. 1964); Hartz v. United States, 387 F.2d 870, 873 (5th Cir. 1968). This rule has express application with respect to the necessity of warning pilots concerning the existence of wing tip vortices. Furumizo v. United States, 245 F.Supp. 981 (D.Hawaii 1965), aff’d 381 F.2d 965 (9th Cir. 1967); Hartz v. United States, supra. While it does not appear that the Air Traffic Control Procedures Manual was ever published in the Federal Register in a manner required to give it the force and effect of law in all respects, nevertheless it does have the force and effect of law in governing the FAA. As was held in Hartz v. United States, supra, 387 F.2d at 874, the PAR Controller must follow the Manual. It is the "Bible for Tower Operators.” United States v. Miller, 303 F.2d 703, 710, fn 16 (9th Cir. 1962), cert. denied 371 U.S. 955, 83 S.Ct. 507, 9 L.Ed.2d 502 (1963); Franklin v. United States, 342 F.2d 581, 585, fn 1 (7th Cir. 1965), cert. denied 382 U.S. 844, 86 S.Ct. 51, 15 L.Ed.2d 84 (1965). Moreover, it is expressly provided in 14 C.F.R., Sec. 26.26 as revised January 1, 1961, that the Air Traffic Control operator shall control traffic in accordance with the appropriate air traffic control manuals: “A certificated air traffic control tower operator shall control traffic in accordance with the procedures and practices as prescribed in the appropriate air traffic control manuals of the Federal Aviation Agency to provide for the safe, orderly and expeditious flow of air traffic in accordance with the following requirements: * * * ” (Emphasis added.) While the effects of wing tip vortices are not widely know or widely understood, the FAA was thoroughly familiar with the existence of the hazard from wing tip vortices. Many studies had been conducted in this field and these studies had been examined by the FAA. In addition, the FAA had conducted their own research in this field. It was, in fact, as a result of these studies that specific regulations were enacted by the FAA relating to the warnings which should be given concerning the hazards of wing tip vortices. These regulations are set forth in Section 411.7 of the Air Traffic Control Procedures Manual. The history of the events leading to the adoption of these regulations is set forth at length by the District Judge in Furumizo v. United States, supra. As a result of these studies, a rule of thumb was formulated for a safe separation time when a DC-6B has executed a missed approach. That rule of thumb was found to be from 5 to 10 minutes. But a rule of thumb effective for a DC-6B would not be effective for a Boeing 707, which is almost three times as heavy as a DC-6B. The FAA was well aware that the severity and duration of wing tip vortices increases directly with the increased weight of the aircraft producing the vortices and the FAA knew, or should have known, that a safe separation time between a Boeing 707 and a light plane under the conditions productive of severe turbulence would be 12% minutes. This was conceded by the expert witness for the Government, John A. Zalovcik, in examination by the Court: “The Court: I want to know what you think. I would gather it would make some sense, that is assuming his rule of thumb is correct for a DC-6B, that the rule of thumb ought to be 12% minutes for a 707; is that correct in your best judgment? “The Witness: “Yes.” (RT 2229) The Defendant argues that the individual PAR Controller here involved, whose duty it was to warn of the existence of turbulence, was not aware of the knowledge possessed by the FAA. The short answer to this is that the hazard of wing tip vortices turbulence was and is a clearly foreseeable hazard which the PAR Controller should have known, not only by virtue of the nature of the hazard itself, but also by virtue of his training and experience as well as the duty of the FAA to communicate its knowledge of the hazard to him as one of its agents. SECOND THEORY OF LIABILITY: The PAR Controller Was Negligent In That He Gave A Series Of Misleading, Confusing, Improper And Unduly Deferred Advisories To The Pilot. During the approach, the PAR Controller advised the pilot that the approach would be terminated at the Middle Marker, which was a half mile from touchdown (at an altitude of 210 feet). Later in the approach, the Controller advised the pilot that he had “passed” the Middle Marker without advising the pilot as to when he had passed the Middle Marker or hoto far past the Middle Marker the pilot was. Section 300.1 of the Air Traffic Control Procedures provides: “Radar facilities shall provide radar service to IFR aircraft to the maximum extent practicable, consistent with workload, communications, and equipment capabilities.” (Exhibit 17, P. 3-1) That provision has been interpreted to obligate the PAR Controller to provide service to the pilot as long as he had a target in sight on the radarscope. (RT 854) The precision radarscope could get a return from a target west of the Middle Marker up to the point of touchdown, assuming no problem with ground clutter. (RT 1947-1948) The PAR Controller could follow the target all the way down over the threshold if the pilot was on glide path and on course. (RT 1949) It was normal to give advisories west of the Middle Marker until the point where the controller could not see the target. (RT 2063) The instructions to PAR Controllers were deemed conflicting, in that the NOTAM instructed that the PAR service should be stopped at the Middle Marker and the Air Traffic Control Procedures Manual instructed that the radar tracking and PAR advisories be continued as long as possible. (RT 3964; 3968-3969) The Air Traffic Control Procedures Manual was not recommended for the training of pilots. (RT 1336) The PAR Controller who conducted the fatal approach interpreted Section 300.1 of the Air Traffic Control Procedures Manual as an overriding obligation requiring him to give every bit of radar service he could give to the pilot. (RT 3268-3269) Therefore, he continued to communicate to the pilot after the aircraft had passed the Middle Marker. (RT 3120). He followed a practice whereby he could continue to give advisories as long as the target was free of clutter, even right down to touchdown, although normally a PAR Controller turns the aircraft loose over the runway threshold. (RT 3679; 3959) He claimed that his initial advisory, “[T]his approach will be terminated at the Middle Marker,” was given, because he had no way of knowing whether or not there would be ground clutter problems with respect to this particular aircraft when the aircraft reached the Middle Marker. (RT 3304) However, he told the pilot he would take him to a certain point on the glideslope and would terminate the approach there; he never advised the pilot once the target was observed at that point; he did not terminate the approach at the Middle Marker; and he never advised the pilot he was going to extend the approach to a new termination point. (RT 3287-3288) John McCormick, who worked from 1954 to 1965 in the FAA area office of Los Angeles International Airport, testified to the origin of the practice whereby PAR Controllers at Los Angeles advised pilots when the aircraft was passing the Middle Marker. The PAR equipment was used primarily to monitor ILS approaches. (RT 3677) Under this procedure, the radarscope is observed as a secondary navigational aid; the controller might remain silent throughout the ILS approach if the pilot does not deviate from the glide path or he might advise the pilot if the aircraft is above or below the glide path; the controller says less than he would in the case of a full PAR approach. (RT 1701-1702) Knowledge by the pilot when the aircraft reached the Middle Marker was an inherent part of the ILS approach. (RT 2867-2870) Starting in 1950 it became customary practice for a Los Angeles PAR Controller monitoring an ILS approach to advise, “passing the Middle Marker,” when the aircraft was over the Middle Marker. (RT 1958; 1986) The practice of giving this advisory that the aircraft was passing the Middle Marker was carried over into the procedure followed in full PAR approaches. (RT 3677) The practice had the tacit approval of the FAA. (RT 2711) The advisory was not provided for by the Air Traffic Control Procedures Manual. (RT 3676) However, the FAA permitted a local facility to adopt a practice not provided for in the Manual in order to account for a local condition. (RT 2859-2860; 2888-2889) At Los Angeles, aircraft made many ILS approaches that were monitored by the PAR Controllers. (RT 2713) The advisory provided a double check to a pilot making an ILS approach that his marker beacon receiver was turned on. (RT 3675) The pilot could associate the Middle Marker with the ILS landing minimum. (RT 1694) The advisory alerted pilots that the monitoring service would be stopped and that this was the point at which the approach procedure might not be able to be carried on. (RT 2710) An advisory that the aircraft was at the Middle Marker was not deemed an invasion of the pilot’s area of responsibility because it is the pilot who uses the Middle Marker. (RT 1699) Pilots have heard PAR Controllers at Los Angeles tower advise that the aircraft was over the Middle Marker. (RT 309) Normally the Middle Marker is located at a point along the glideslope where the lowest published mínimums are reached. (RT 4409) The advisory that the aircraft is passing the Middle Marker is virtually the same as telling the pilot he is at mínimums. (RT 3674) At Los Angeles International Airport Runway 25 Left, the Middle Marker intercepts the glideslope at 209 feet altitude and the aircraft arrives at the minimum altitude of 200 feet or the decision height in less than a second. (RT 3673-3674) Thus, the advisory would give a pilot a little advance notice before the aircraft is at mínimums, so the pilot could condition himself for going around or continuing. (RT 3674-3675) If the pilot is not advised that he is passing the Middle Marker and is below mínimums, there is a possibility that the pilot did not get a chance to react at his mínimums. (RT 3675) The Middle Marker is a landmark on the approach in the area of 200 feet altitude above the ground, where the pilot must make his decision. (RT 1789-1790) The PAR Controller who conducted the fatal approach usually followed the practice of telling the pilot that he was passing the Middle Marker as a current event.. (RT 3131; 3234) Nevertheless, on this occasion the only advisory that he gave the pilot concerning the position of the aircraft in relation to the Middle Marker used the past tense, “passed the Middle Marker”. (RT 3238; 3243; 3263) It was estimated that the PAR Controller waited 35 to 45 seconds after the aircraft had already passed the Middle Marker to, advise him that he had passed the Middle Marker, assuming from subsequent advisories that the aircraft was coming up over Aviation Boulevard. (RT 1935) At one point a Government witness testified that there was sufficient time to advise the pilot that the aircraft had arrived at the decision height. (RT 1994-1995) There had only been two aircraft operations in twelve minutes and this was not a congested situation. (RT 2909) The Controller had time to tell the pilot other things between the pilot’s “put me right down on the runway” and the Controller’s “take over visually”. (RT 3217) The PAR Controller gave no reason why he departed from his own customary practice of advising the pilot when the aircraft was passing the Middle Marker as a current event. (RT 3243) At 4:09 P.M. he advised the pilot, “Now passing abeam the Hollywood Race Track” (Exhibit 4A, p. 8). He suggested the possibility that he was busy adjusting the radar gain to get the target more clearly in focus when it was moving past the Middle Marker. (RT 3299) However, he added that the gain is varied continuously throughout the approach to get a more workable target and the PAR Controller merely works harder as the target moves closer. (RT 3301) It was also suggested that, as the airplane was passing the Middle Marker, the PAR Controller may have been giving a heading change or an altitude deviation which was more important. (RT 2938) However, it was admitted that the Middle Marker was an aid, since it was set at the approach mínimums. (RT 2432) The PAR Controller who conducted the fatal approach knew that the mínimums for the approach were approximately at the Middle Marker and, since he did not tell the pilot when he was passing the Middle Marker, he assumed that the pilot would rely on his altimeter to know when he reached his mínimums. (RT 3308-3309) The three-mile precision radarscope has a half-mile range mark which is a half nautical mile from touchdown, and the Middle Marker is located 985 feet east of the half mile range mark. (RT 2010-2011; 2015; 3134; 3233) The average controller knows within 25 feet, or about three seconds, when the aircraft has reached the landing mínimums. (RT 1057-1059) The PAR Controller continued the approach to a point at which he felt the safety of the aircraft was imperiled. On the three mile radarscope elevation display, there is a line on each side of the glide path line representing a half degree deviation in the space above and below the glide path, and these lines depict a safety zone which represents the maximum limits an aircraft can deviate from the glide path without: (1) approaching too close to obstructions if below the lower limit, (2) being too far above the glide path to complete a normal approach if above the upper limit (Exhibit 13, p. 35). The safety limit lines on the three mile radarscope used for this approach terminated at a point about one half mile from touchdown and at that point the safety limits are almost touching the 25 foot deviation lines. (RT 2136, Exhibit 13, p. 32) Therefore, if the aircraft was 25 feet low, west of that point, it would necessarily be outside the safety limits, because at the half mile point a target 25 feet above or below the glide path would be outside the safety limit lines. (RT 2042; 3191) In this approach of the Cessna, and up to the half mile point the aircraft radar target stayed within the safety limit lines etched on the radarscope display. (RT 3140; 3142; 3157) When this target continued its descent westward beyond the half mile point and was observed to go 25 feet below the glide path; in the Controller’s judgment the safety of the flight was likely to be affected, since if the pilot was not in visual contact and he continued to stay 25 feet below the glide path he might hit an obstruction. (RT 3122; 3176; 3182) As the pilot approached touchdown, he would be in more and more danger. (RT 3192) Under Section 344.9 of the Air Traffic Control Procedures Manual, the following procedure is required: “If an aircraft exceeds the lower and/or lateral limits of the prescribed safety zone to a point where, in the judgment of the controller, safety of flight is likely to be affected, the pilot shall be instructed to climb to a specified altitude and fly a specific course, as appropriate.” (Exhibit 17, pp. 3-15) Under Section 394.7 of the Manual, the following negative phraseology is required : “To instruct a pilot to discontinue approach when the aircraft exceeds safety limits: IF RUNWAY NOT IN SIGHT, CLIMB IMMEDIATELY TO (altitude), TURN LEFT/RIGHT, HEADING (degrees), (reason and further clearance, if appropriate), ACKNOWLEDGE.” (Exhibit 17, p. 3026) Normally, the pilot responds “Roger”. (RT 327-328) The PAR Controller responsible for the fatal approach admitted that to the extent that he thought that “safety of flight is likely to be affected,” Section 344.9 came partially in effect. (RT 3184) He explained that, when a PAR Controller sees a target drop to 25 feet below the glide path at a point west of the half-mile point, the Controller cannot assume that the pilot has visual contact with the runway even if the reported weather is VFR, so the phraseology used is “IF RUNWAY NOT IN SIGHT” the pilot should execute a missed approach. (RT 3178) He admitted that if the target was below the safety limit lines before it got to the half mile point and the Controller felt that the safety of the flight was likely to be affected, the Controller was required to follow Section 344.9 of the Manual, (RT 3193) He admitted that, when the target was further west of the half mile point, the risk to the safety of the flight would be greater because the plane is physically closer to the ground. (RT 3197) He wanted the pilot to see the approach lights or the runway lights and, if he did not see them, he wanted the pilot to climb westbound to VFR conditions on top. (RT 1951-1952) The required phraseology is considered mandatory, because the intent of the language is that the pilot either land or execute a missed approach. (RT 3861-3864; 3866) Government witness McCormick admitted that the only guidance the pilot has is the PAR Controller if he wants to complete the approach safely and that, if the Controller makes a mistake, it isn’t the pilot’s fault. (RT 3867) After the PAR Controller told the pilot to adjust descent, he didn’t follow through. (RT 1949-1950) Instead the PAR Controller gave the instruction: “[T]ake over and complete your landing visually on runway two five left if you’re not ah contact execute a missed approach climb westbound to VFR conditions on top.” (Plaintiffs’ Exhibit 4A, p.9). He did not use the required negative phraseology, “IF RUNWAY NOT IN SIGHT, CLIMB IMMEDIATELY.” He did so at a time when the pilot was definitely below the 200 feet minimum altitude. (RT 3277) He tried to justify the change on the basis that the phraseologies were equivalent, but they were not. (RT 3251) In fact, the words, “take over and complete your landing visually,” constituted an instruction, as distinguished from • an advisory. (RT 2519-2520) He claimed that he assumed that the pilot was in visual contact at that portion of the approach, because the pilot should have previously established visual contact at the minimums and the pilot had previously asked, “put me right down on the runway”. (RT 3185-3187; 3193; 3265) Yet, earlier in his testimony, the PAR Controller admitted that the reason for the phraseology, “IF RUNWAY NOT IN SIGHT,” was that the Controller could not assume that the pilot had visual contact with the runway even if the reported weather is VFR, when a target goes 25 feet below the glide path west of the half-mile point. (RT 3178) He admitted that a pilot had a reaction time after any advisory. (RT 3201) Pilots were known to take 4 to 5 seconds to correct a heading. (RT 1473) Even if the pilot had stayed on course and glide path and had not descended below the glide path, when the aircraft reached the end of the runway, where the PAR approach would normally be terminated and the advisory required by Section 394.10 of the Air Traffic Control Procedures Manual would be given, the phraseology used would be “over end of runway, take over visually,” but there would be nothing said about “complete your landing”. (RT 3265-3267) While the PAR Controller did not define the peril which then endangered the aircraft’s safety, it is clear from the evidence that disorientation of the pilot is one of the perils that the PAR Controller could have negligently generated by his misleading, confusing, improper and unduly deferred advisories. Having led the pilot to this circumstance, it was the duty of the Controller to advise the pilot of the existence of an emergency condition in order that the pilot might take such measures as he deemed appropriate. Restatement of Torts, 2d, § 321: “Duty to Act When Prior Conduct is Found to be Dangerous. (1) If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect. (2) The rule stated in Subsection (1) applies even though at the time of the act the actor has no reason to believe that it will involve such a risk. Comment: (a) The rule stated in Subsection (1) applies whenever the actor realizes or should realize that his act has created a condition which involves an unreasonable risk of harm to another, or is leading to consequences which involve such a risk. The rule applies whether the original act is tortious or innocent. If the act is negligent, the actor’s responsibility continues in the form of a duty to exercise reasonable care to avert the consequences which he recognizes or should recognize as likely to follow. But even where he has had no reason to believe, at the time of the act, that it would involve any reasonable risk of physical harm to another, he is under a duty to exercise reasonable care when, because of a change of circumstances, or further knowledge of the situation which he has acquired, he realizes or should realize that he has created such a risk.” This rule was adopted and followed by the Ninth Circuit in the case of Furumizo v. United States, supra, 381 F.2d 965 at 968-969 (9th Cir. 1967). Disorientation is the inability of a pilot to sense accurately the attitude of the aircraft and occurs when a pilot, flying under instrument conditions, diverts his attention from instrument reference in the cockpit in order to see a visual reference obscured by fog. Disorientation has been the subject of consideration by the FAA in connection with the conduct of a precision approach. It is a foreseeable risk of harm that the phraseology, “Complete your landing visually,” in a communication from the PAR Controller to a pilot whose reliance thereon has been engendered, might induce a competent instrument pilot to prolong his lookout by trying to find enough runway on which to make a landing out of his approach as he traverses an area of fog. The inducement of prolonged lookout by a pilot trying to find enough runway on which to make a landing out of his approach as he traverses an area of fog so increases the hazard that the pilot may be unable to overcome disorientation. Disorientation of a pilot can be overcome only by the total concentration of the pilot upon his instruments to the exclusion of any sensation to which he may otherwise be subjected with regard to the attitude of the aircraft. It was the uniform custom and practice at the time of the final approach herein for PAR Controllers to use uniform phraseology, because pilots might become familiar with phraseology which, if not used on all occasions, might induce confusion and disorientation thereby exposing the persons in the aircraft to hazard. The PAR Controller here failed to discharge his duty of due care when he informed the pilot, “Take over and complete your landing visually.” He violated the Air Traffic Control Procedures Manual, §§ 344.9 and 394.7 (Exhibit 17). He negligently failed to instruct the pilot to “climb immediately.” He negligently failed to use the uniform terminology which would be necessary to convey to the pilot the fact that in the judgment of the PAR Controller the flight was in danger. He negligently failed to obtain an acknowledgement from the pilot. The phraseology selected by the PAR Controller for the final communication increased the risk of harm by the use of the words “Complete your landing visually.” The pilot quite reasonably might have prolonged his diversion from his instruments while attempting to complete his landing visually as a normal response to the negligent final communication of the PAR Controller: “Complete your landing visually.” The phraseology selected by the PAR Controller may well have induced confusion and disorientation in the pilot, exposing him, the passengers in the aircraft and the persons on the ground, and their property, to all reasonably foreseeable hazards, including the disorientation of the pilot and other forces such as the effects of wing tip vortices. Had the PAR Controller used the mandatory language of Section 394.7 and instructed the pilot to “climb immediately,” the dangers of disorientation and wing tip vortices would have been averted. His failure to do so was negligence and a direct and proximate cause of the crash of the Cessna, the deaths of the pilot and passengers, the injuries to the mechanic on the ground and the accompanying property damage. THIRD THEORY OF LIABILITY: The PAR Controller Was Negligent In Failing To Give The Warning Required By The Air Traffic Control Procedures Manual, § 411.7. Section 411.7 of the Air Traffic Control Procedures Manual provides as follows: “When controllers foresee the possibility that departing or arriving aircraft might encounter rotoreraft downwash, thrust stream turbulence or wing tip vortices from preceding aircraft, cautionary information to this effect should be issued to pilots concerned. Note — Since the existence and effect of turbulence is unpredictable, the provision of the above information does not constitute the placing of responsibility on controllers to anticipate in all cases the need for such information.” (Emphasis added.) This requires that the PAR Controller must exercise his judgment and issue a warning when he foresees a possible danger from wing tip vortices. The word “foresee” as utilized in this section of the Manual contemplates the examination of existing conditions and the exercise of judgment. Section 411.7 contemplates that the Controller will examine the conditions present and will, in the exercise of his judgment, determine if there is a possibility of hazard from wing tip vortices; then if it is determined that there is such a possibility, he is required to issue a warning. The obligation of Section 411.7 cannot be performed unless the Controller exercises judgment. Yet it was the practice of the PAR Controller here involved never to exercise judgment in determining whether there was a possibility of hazard in vortices. This practice is a violation of the regulation. The failure to exercise judgment when required by the Air Traffic Control Procedures Manual is a breach of air safety regulations and constitutes negligence. Furumizo v. United States, supra, 245 F.Supp. 981 at 992 (D.Hawaii 1965). Section 411.7 provides that this service shall be performed for both departing and arriving aircraft. The practice of this PAR Controller was never to provide this service to arriving aircraft. The Air Traffic Control Procedures Manual requires a separation distance of one mile between aircraft under VFR conditions and three miles under IFR conditions. The PAR Controller arbitrarily adopted the practice that warnings for wing tip vortices would never be given if under VFR conditions there was a one mile separation and if under IFR conditions there was a three mile separation, although the purpose of these separation distances was for interspatial safety and not turbulence safety. The effect of the practice was that vortices warnings were never given to arriving aircraft and this practice obviously completely nullifies the safety regulations of Section 411.7 as to arriving aircraft. The FAA was fully aware that these mere separation distances were not sufficient under all circumstances to protect against the hazards of wing tip vortices. This awareness is fully apparent from examination of the legislative history of Section 411.7 reported in Furumizo v. United States, supra, 245 F.Supp. 981 at 1002-1010. The practice of the FAA controllers in general and the PAR Controller here involved, in eliminating this service cannot be condoned as the exercise of a discretionary function. The FAA has no discretion to eliminate a service which is required by regulation. United Airlines, Inc. v. Wiener, 335 F.2d 379 (9th Cir. 1964). The IFR-VFR separation distances do not apply to departing aircraft. Cf. Hartz v. United States, supra; Furumizo v. United States, supra. Yet the regulation, Section 411.7, specifically and expressly requires warnings to both departing and arriving aircraft. In a Federal Tort Claims Act case, the court applies the law of the place of the tort. Roberson v. United States, 382 F.2d 714, 717 (9th Cir.1967); Bartholomae Corp. v. United States, 253 F.2d 716, 73 A.L.R.2d 1293, 1299 (9th Cir. 1957). When a violation of a safety-regulation constitutes negligence per se under state law, such rule is applicable under the Federal Tort Claims Act. Cronenberg v. United States, 123 F.Supp. 693 (D.N.C.1954); Cerri v. United States, 80 F.Supp. 831 (N.D.Cal.1948); Worley v. United States, 119 F.Supp. 719 (D.Ore.1952). In those jurisdictions in which the violation of a safety regulation is negligence per se, the violation of a safety regulation promulgated by the FAA is negligence per se. Eastern Air Lines v. Union Trust Company, 95 U.S.App.D.C. 189, 221 F.2d 62 (1955). Under California law, violation of a safety regulation enacted by an administrative agency raises a rebuttable presumption of negligence. Nevis v. Pacific Gas & Elec. Corp., 43 Cal.2d 626, 275 P.2d 761 (1954). Where there has been a violation of a safety regulation, the burden of going forward with the evidence shifts to the defendant to excuse such violation by establishing any one of the following: 1. That it was beyond the ability of the defendant to comply with the regulation. 2. That the action taken by the defendant was what might reasonably be expected of a person of ordinary prudence acting under similar conditions who desired to comply with the law. 3. That the defendant was non-negligently ignorant of the facts which made the safety regulation applicable. Lokey v. Pine Mountain Lumber Co., 205 Cal.App.2d 522, 23 Cal.Rptr. 293 (1962); Nevis v. Pacific Gas & Elec. Corp., supra. Upon the foregoing, the Court finds that there was a violation of a safety regulation. Whether it constituted negligence per se or merely raised a rebuttable presumption of negligence, the Defendant has not established that such violation was excusable. FOURTH THEORY OF LIABILITY: The PAR Controller Was Negligent In Failing To Give The Instruction Required By The Air Traffic Control Procedures Manual, §§ SkU.9 and S9U.1. Section 344.9 of the Air Traffic Control Procedures Manual provides as follows : “If an aircraft exceeds the lower and/or lateral limits of the prescribed safety zone to a point where, in the judgment of the controller, safety of flight is likely to be affected, the pilot shall be instructed to climb to a specified altitude and fly a specific course, as appropriate.” During the approach, and as the Cessna neared the ground, at one point the aircraft was 25 feet b