Full opinion text
TROUTMAN, District Judge. I INTRODUCTION, PARTIES, JURISDICTION AND BACKGROUND This case arises out of the crash of an airplane into the home occupied by the plaintiffs in the early morning hours of August 23, 1974, injuring and killing various members of the plaintiffs’ family. It is brought pursuant to the terms and provisions of the Federal Tort Claims Act, Title 28 U.S.C. §§ 1346(b), 1402(b) and 2671 et seq. All jurisdictional and notice requirements have been met. Section 1346(b) states in applicable part that the United States shall be liable for personal injury, death or property damage caused by the negligent or wrongful act or omission of a Government employee in accordance with the law of the place where the act or omission occurred. The law of Pennsylvania, therefore, governs this action. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). The purpose of the Federal Aviation Act of 1958 is to promote aviation safety. Such purpose extends to the safety of persons on the ground. Federal Aviation Act of 1958, §§ 103, 307(c), 49 U.S.C. §§ 1303, 1348(c). Federal Aviation Act 49 U.S.C. § 1348(c): “The administrator is further authorized and directed to prescribe air traffic rules and regulations governing the flight of aircraft, for the navigation, protection and identification of aircraft, for the protection of persons and property on the ground, and for the efficient utilization of the navigable airspace, including rules of safe altitudes of flight and rules for the prevention of collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.” (Emphasis added) Case law likewise establishes a duty to persons on the ground. Starr v. United States of America, 393 F.Supp. 1359 (N.D.Texas 1975). Plaintiffs assert a claim against the United States contending that the Air Traffic Controller at the Allentown-Bethlehem-Easton Airport, an employee of the United States, acted negligently. His negligent acts allegedly occurred after he had assumed control of a VFR (visual flight rules) pilot who was trapped in IFR (instrument flight rules) weather conditions. Plaintiffs contend that the negligence of the controller was a substantial factor in causing the subsequent crash. The defendant contends otherwise, asserting, inter alia, that the crash was the result of spatial disorientation suffered by the pilot unrelated to the conduct of the controller and that the crash was solely the result of the negligence of the pilot. The burden of proving negligence on the part of the controller and that such negligence was a substantial factor in causing plaintiffs’ harm is upon the plaintiffs. Conversely, the burden of proving that the sole cause of the accident was the act or negligence of the pilot is upon the defendant. On August 23, 1974, a single engine Cessna 172H, with FAA registration mark N8191L (91L) took off from the Queen City Airport, Allentown, Pennsylvania. The plane departed Queen City at approximately 2:30 A.M. It was piloted by Amos Rothschild and occupied by a passenger, Darold Hemphill, both of whom were killed in the crash. Mr. Rothschild held a private single engine land pilot’s license. He was not an instrument rated pilot; however, he had received limited, but the required, instructions in instrument flying as part of his training for his private pilot’s license. The precise weather existing at Queen City at the time of 91L’s take-off is unknown except to the extent that one might assume that the weather at Queen City, located 5.6 miles from Allentown-Bethlehem-Easton Airport was similar. The parties have stipulated that at 2:47 A.M., the weather at Allentown-Bethlehem-Easton Airport was 400 foot ceiling; visibility 2V2 miles; with light rain showers and fog; temperature 72 °; dew point 70 °; wind 120 at 10 knots; altimeter setting 30.14. A light rain began falling at Allentown-Bethlehem-Easton Airport at 2:45 A.M. The Allentown-Bethlehem-Easton Airport (ABE) is located northeast of the City of Allentown. ABE has two runways, each of which can be used from two directions. The runways are numbered 6 and 24 for the northeast-southwest traffic, and 13 and 31 for the southeast-northwest traffic. The runway in use on the morning in question was runway 6. That runway has a magnetic compass heading of 60 °. It runs in a generally northeast direction. Runway 6 is equipped with facilities to permit instrument landing system (ILS) approaches. An ASR7 radar system was in use at the ABE Airport on the morning in question. The final approach course for runway 6 starts at the outer marker. The outer marker is 6.1 miles from the threshold of runway 6. The middle marker is .6 of a mile from the threshold of runway 6. The Wilkes-Barre Airport, also a factor in this case, is located fifty statute miles or forty-three nautical miles from ABE. It also has an ASR7 radar system, a control tower, controllers and lights. On August 23, 1974, there were five control positions at ABE to be operated by controllers. Generally, on the day and middle shifts, these positions were staffed by five controllers and a supervisor. However, on the midnight to 8:00 A.M. shift, when this crash occurred, there was only one controller on duty who operated all positions, including that of supervisor. The controller on duty on the morning in question was Karl Gasker. The radar system at ABE was installed in March, 1974. While Gasker was qualified in departure radar services, having received his certification in that service on May 21, 1974, he had not been qualified to handle arriving airplanes on radar. He was not qualified for that service until October 31, 1974, subsequent to the date of the accident. Thus, on August 23, 1974, the radar system at ABE was not effective to monitor or control radar surveillance approaches and the controller was not qualified to perform same. In fact, the record suggests that surveillance approaches are still not published as available at ABE. For purposes of calculation, the cruising speed of 91L was agreed to be 100 knots, or 1.66 nautical miles per minute. It had an effective altitude range of up to 10,000 feet, and with almost full fuel tanks, had at least three hours of flying time available on August 23, 1974. The plane had no ILS landing instrumentation on board. Two airplanes, in addition to 91L, were in the air in the vicinity of ABE on the morning in question. One was an airplane known as 87L. This was a twin engine Navajo proceeding on a flight from Rochester, New York, through the Wilkes-Barre area to ABE. 87L was leased to the Kodak Corporation on the night in question. The flight path of 87L took it on a direct route from the Wilkes-Barre area to the East Texas VOR. East Texas is north of the ABE outer marker. 87L was cleared from East Texas to the outer marker, and from there for a straight ILS landing on runway 6 at ABE. The other plane was owned by Monmouth Airlines and is referred to as Monmouth 508 (508M). It was a twin-engine Beechcraft 99, weighing about 10,000 pounds. For purposes of calculation, its cruising speed was 210 knots, and its holding pattern speed was 140 knots, or 2.33 nautical miles per minute. It was on an instrument flight plan from Newark, New Jersey, to Allentown, Pennsylvania. The captain and pilot of 508M was Frederick Cruwell. The co-pilot was John Hoffman. 508M was delivering mail for the United States Government. It carried no passengers. The flight path of 508M took it over Solberg, a VOR 32 miles east of ABE and over Spring Intersection, 18.1 miles east of the ABE outer marker. Spring Intersection is a point where two airways intersect. Neither 87L or 508M were receiving radar services from the controller, Gasker, on the morning in question. Both, however, were on instrument flight plans, and were piloted by instrument-rated pilots. There has been introduced as evidence in this case, as plaintiffs’ Exhibit # 9 a typed transcript of the radio transmissions between ABE tower, 87L, 508M, and 91L on the morning in question covering the time period from 0239:28 A.M. to 0321:04 A.M. which was relied upon by the expert witnesses of both parties. II PLAINTIFFS’ THEORIES Plaintiffs’ theories of liability may, for convenience, be summarized as follows: First, plaintiffs contend that because of the actions and inactions of the controller, Karl Gasker, the pilot, Amos Rothschild, suffered spatial disorientation and crashed as a result thereof. Second, and closely aligned with the theory of spatial disorientation, is plaintiffs’ contention that the controller had a duty to vector 91L to Wilkes-Barre, rather than to attempt a landing at Allentown because of the poor weather conditions existing there. Plaintiffs argue that the controller was negligent in failing to warn the pilot of the weather conditions at Allentown, and in failing to instruct the pilot to fly to Wilkes-Barre where much better weather conditions existed. In this respect, plaintiffs contend that the controller lured the pilot of 91L into attempting a landing at ABE and in the process, induced spatial disorientation. Third, plaintiffs argue, in the alternative, that a near-collision (“buzzing”) occurred between 91L and 508M, and that this caused the pilot to lose control of the plane and to crash. In the latter case, plaintiffs contend that the controller was negligent in failing to provide for proper separation between the two aircraft. Ill SPATIAL DISORIENTATION The defendant denies improper separation of aircraft, denies a “buzzing”, but admits that the pilot of 91L, Amos Rothschild, suffered spatial disorientation. Whereas the plaintiffs contend that the spatial disorientation suffered by Rothschild was induced by the actions and inactions of the controller, the defendant contends that spatial disorientation was the mere result of Rothschild’s flying into IFR weather conditions without the requisite instrument rating and capabilities. Spatial disorientation, analogous to vertigo or dizziness in layman’s terms, means in simple language that a pilot does not know which end is up. A pilot suffering from spatial disorientation will have false and misleading sensations as to what the aircraft under his control is actually doing. For example, a spatially disorientated pilot may have the sensation of climbing, when in fact the aircraft is descending, or vice versa, and will react accordingly in operating the controls of the aircraft. Pilots with instrument flight training are less likely to suffer spatial disorientation than pilots only qualified to fly under visual flight rules and if they do suffer the phenomenon are specially trained to rely on the instruments rather than their senses. All pilots, whether instrument rated or not, receive limited training in flying under instrument conditions. Rothschild received 5.5 hours of instrument flight training prior to receiving his private pilot’s license. What further training and experience he may have had, if any, subsequent to his being licensed is unknown. Spatial disorientation is a well-known phenomenon to people in aviation. Pilots are taught about the possibility of becoming spatially disoriented and how to combat it. Likewise, controllers are trained with respect to spatial disorientation, and how to cope with it in dealing with a pilot lost in instrument weather conditions. One of the ways of combatting spatial disorientation is for a pilot to concentrate on the plane’s instruments. Avoiding sudden movements of the head is particularly important. Repeatedly looking out of the plane’s windows in an attempt to see the ground, or, as in this case, in an attempt to see an airport, is an extremely dangerous procedure when flying in IFR conditions and is likely to induce spatial disorientation. A controller trained with respect to the dangers of spatial disorientation should advise a non-instrument-rated pilot to keep his eyes on his instruments. A non-instrument-rated pilot should watch his altitude and attitude indicators and should not be instructed to do otherwise unless there is good reason to believe that in doing otherwise, such as looking out the window, what he sees will serve to orient him rather than disorient him. Importantly, in this case, the controller should have talked to the pilot frequently and with reasonable continuity, reassuring him, advising him to observe his instruments rather than communicating on an intermittent basis; and, by no means, should the pilot have been left alone in ■ complete radio silence for protracted periods within the limited time frame involved. On the morning in question, 91L had been flying in IFR conditions from within a few minutes of his take-off from Queen City at or about 2:30 A.M. During the almost twenty-five-minute period between take-off at 2:30 A.M. and 0254:57, 91L’s first contact with ABE tower, the pilot had experienced no recognizable difficulty in flying the aircraft, other than the fact that he was lost in instrument-weather conditions. Significantly, after contacting ABE tower at 0254:57, and seeking to follow and respond to the controller’s intermittent and sometimes confusing instructions and inquiries, 91L crashed within approximately eight minutes. Interestingly, the defendant’s expert witnesses have stated that spatial disorientation will occur within twenty seconds to eight minutes after a non-instrument-rated pilot has flown into IFR weather conditions. The question then becomes, what caused the pilot of 91L to become spatially disoriented on the morning in question? Controllers are trained to frequently communicate with a pilot lost in IFR weather conditions. From 0254:57 until the time of the crash, seven minutes and thirty seconds elapsed. A review of the transcript shows that of the total elapsed time, the controller spent only two minutes, seventeen seconds talking to the pilot of 91L. The pilot’s responses took a total of fifty-six seconds. Thus, three minutes, thirteen seconds, less than half of the time of the emergency, was spent communicating with the lost pilot of 91L. Moreover, during the total elapsed time, there were three minutes, thirty-six seconds of radio silence. Controllers are taught not to allow long periods of time to elapse without talking to a lost pilot. The controller’s failure in these two fundamental areas was a breach of his duties and a violation of the provisions of the Air Traffic Control Manual. The controller’s failure to communicate with the pilot of 91L on a more frequent basis and with greater continuity during the course of this emergency obviously contributed to the pilot’s becoming spatially disoriented. While the failure to communicate with greater continuity was an act of omission on the part of the controller, his acts of commission likewise contributed to spatial disorientation of the pilot. At 0255:36 ABE gave a clearance to 87L to land. This was the second clearance which 87L had received, the first having occurred at 0253:42 after 87L had passed the outer marker inbound. By 0255:36, 87L was already well into his final landing approach and no second clearance was necessary. Moreover, this second clearance to 87L followed directly after a response by the tower to 91L. At 0255:34, 91L responded to a query by the controller, “I’m flying about two four”. Two seconds later the tower responded, “Okay, uh, 87Lima’s cleared to land, runway six”. 91L responded at 0255:42, “Yeah, but I don’t know where you are”. Obviously, and all witnesses at trial seem to concur, 91L mistook the clearance given to 87L to be a clearance to 91L to land. Even the controller, Gasker, testified at trial that 91L had misinterpreted 87L’s clearance to land as his own. However, Gasker never attempted to correct 91L’s misinterpretation. This was clearly a major contribution to the pilot’s subsequent confusion and ultimate disorientation. Gasker, on the morning in question, knew what the weather conditions at ABE were. He knew that the visibility was, in his words, “up and down quite a bit between 2V2 to 3 miles”, and that the ceiling was 400 feet overcast. Despite his knowledge of the weather conditions, the controller, at 0257:42, made the following transmission to 91L: “Okay, 91L, I have you in radar contact, and you are only one mile from the Allentown Airport, it’s off to your right side, I’ll turn the approach lights up as high as they go, uh, let me know if you have them in sight off to your right side.” Predictably, 91L, after having been told that the airport was off to his right, made a right turn. This is confirmed in the transcript at 0258:18. It is also reasonable to believe that the pilot looked for the airport. After all, the controller had instructed Rothschild to let him know if he had the approach lights in sight. How the controller, with an overcast of 400 feet and 91L at an altitude of 2,000 feet, ever expected the pilot to be able to see the approach lights is unexplained. If the defendant’s theory with respect to spatial disorientation occurring within a time frame of 20 seconds to 8 minutes is correct, it should have been clear then and is certainly clear now that an inexperienced, non-instrument-rated pilot, given such instruction, was going to become spatially disoriented. Rather than warning the pilot about the possibility of disorientation, and rather than instructing the pilot to keep a close and constant vigil on his instruments, Gasker in effect instructed the pilot to remove his gaze from the instruments and to begin looking for the airport which, under the existing weather conditions, was impossible for the pilot to locate at his elevation in the prevailing weather conditions. Further, the controller made more transmissions to the pilot which could have done nothing but induce him to continue to look for the airport. At 0258:20, ABE said, “Okay, very good, you’re going to go right over the Allentown Airport, you’re almost over at this time, I’ll turn, uh, all the airport lights on, uh, as high as they go for you”. At 0258:38, ABE said, “And, nine one lima, can you see the ground at all?” The result of these transmissions is that the controller had induced the pilot of 91L to alter his course and look for the airport and/or its lights for a period of about one minute. Rather, the pilot should have been instructed to keep an eye on his instruments, and to maintain straight and level flight. The controller, in the three above-quoted transmissions, violated the provisions of the Air Traffic Control Manual, and ignored his training with respect to dealing with non-instrument-rated pilots lost in IFR weather conditions. Interestingly, Gasker testified that the instructions aforementioned were exactly the kind of instructions which would be given to a lost VFR pilot in VFR, not IFR, conditions. Such a pilot would, of course, be expected to look out of his plane to find the airport visually. However, a pilot in VFR conditions is not likely to become spatially disoriented. Importantly, the defendant produced a witness, Charles Wotring, for the purpose of demonstrating the Barony Chair to demonstrate the effects of spatial disorientation. The in-Court demonstration of the Barony Chair illustrated that the subject spinning in the chair had no problem of disorientation until he was instructed to put his head down in the area of his right shoulder, simulating a pilot looking out of the window for an airport or its lights. When he did that, he evidenced symptoms of disorientation. The chair demonstrated that each time the pilot of 91L, following the controller’s instructions, looked out and down in a futile effort to find the airport or its lights, he was increasing the potentiality of suffering spatial disorientation. The only logical inference which may be drawn from the transmissions at 0257:42, 0258:20 and 0258:38 is that the controller, by those transmissions, induced or contributed to spatial disorientation of the pilot which ultimately led to the crash. Unfortunately, the spatially disorienting transmissions did not cease. At 0258:41, 91L had reported his altitude at 2300 feet. At 0259:22, Gasker directed 91L to “* * * maintain two thousand five hundred on the altitude. * * * ” That instruction was closely followed at 0259:55 with an instruction to “ * * * turn to the left to a heading of two seven zero * * Thus, the controller instructed the pilot to climb and to make a turn at the same time. Since 91L’s last reported heading, at 0259:37 was "I’m heading six now” meaning 60 °, the controller’s instruction required a turn of 150 °. This was a very severe and constant turn. Controllers are taught that the proper method for turning a VFR pilot lost in instrument conditions is to give 30 ° turns and to instruct the pilot to make these gradually, and to make certain, after having made each turn, that the plane is stabilized. Thus, what the controller should have done in this situation, if he wanted a heading change from 60 ° to 270 °, would have been to give a series of lesser turns. Such procedure is not something with which controllers are unfamiliar. In fact, Section 1851, Radar Assistance Techniques of the ATOM, instructs controllers as follows: “Use the following techniques to the extent possible when you provide radar assistance to a pilot not qualified to operate in IFR conditions: . . . (d.) Avoid requiring a climb or descent while in a turn if in IFR conditions . (e.) Avoid abrupt maneuvers.” Accordingly, we conclude that the action of the controller in ordering a 150 ° turn while in a climb, was a violation of the Air Traffic Control Manual and a breach of the standard of due care expected of a controller acting in an emergency situation. Further, we conclude that the controller, in having encouraged the pilot to look for the airport, under the prevailing and known conditions, created a situation where the pilot of 91L was a certain candidate for spatial disorientation (likely to occur within twenty seconds to eight minutes, says the defendant). Following the instruction to turn given at 0259:55, the controller did not communicate with 91L again until 0301:31. This absence of communication occurred without any notice to 91L or warning from the controller. Thus, 91L was climbing and in a difficult turn of 150°, and was without any communication from the controller. The Court has listened to the tape recording made of the transmissions from ABE tower to 91L. The Court is impressed by the lack of communication between 0259:55 and 0301:31. When one listens to that silence, one can visualize what must have been occurring in the cockpit of 91L during that time period. One can picture the pilot in the cockpit, lost in the clouds, becoming more frightened by the moment while waiting for the controller to further assure and advise him. Suddenly his only link to the world outside that cloud, his radio, was silent. No help was being received from the controller upon whom he was depending. Although the controller was otherwise occupied, it is apparent that the silence of a minute and a half was a violation of good operating practice and procedure. If necessary, Gasker could have utilized the pilot of 508M to obtain the Wilkes-Barre weather or to talk to 91L during the time that he was off the radio. We conclude that the failure to utilize the pilot of 508M, and the failure of the controller to keep in more constant communication with 91L was likewise a substantial contributing factor in the cause of the pilot’s spatial disorientation and the resulting accident. Having left the pilot alone for over a minute and a half, the controller, at 0301:31, finally came back on the radio and gave 91L the weather at Wilkes-Barre. Following the weather report, he told 91L, “ * * * now I can attempt to vector you to the Allentown Airport, or if you like, you can navigate up there in VFR conditions, it’s your choice sir.” No offer was made to vector 91L to Wilkes-Barre. Rather it was the pilot’s exclusive responsibility to navigate to Wilkes-Barre on his own. Thus, the controller placed the pilot 91L in the position of having to make a crucial determination after having been left alone for over a minute and a half, and after having made a turn of 150 ° while climbing in altitude. Moreover, the controller at no time had given 91L the weather conditions at Allentown. Thus, the pilot was in the position of making this crucial decision in a vacuum. He did not know what the weather conditions were in terms of ceiling or visibility and it was not suggested that he could be vectored elsewhere. He was not given the information necessary and essential to the informed decision to be made by the pilot in command. Controllers are taught that in an emergency situation they have to take charge. They are supposed to take command of the situation. Here, the controller did not take command. He gave to the pilot a choice between Wilkes-Barre and Allentown. When 91L responded, “let me try Allentown one time”, the controller, instead of warning him against Allentown or at least giving him necessary weather information, confirmed his choice and said, “alright sir, fine”. There is no provision in the ATOM expressly permitting a controller to give such an option to a VFR pilot flying under instrument weather conditions. The ATOM requires controllers to vector such an airplane to a location where VFR conditions exist. Under the facts of this case, VFR conditions existed at the Wilkes-Barre Airport. They did not exist at ABE Airport. However, instead of offering 91L a vector to Wilkes-Barre, the controller said, “I can attempt to vector you to the Allentown Airport”. Such a vector was futile under the existing weather conditions and should never have been suggested by the controller absent, at least, a viable alternative, including vectoring to Wilkes-Barre. The failure on the part of the controller to suggest the possibility of flying to Wilkes-Barre and to offer him a vector for that purpose was a clear violation of the ATCM, good operating practices, and the standard of care owed by a controller to a pilot under the circumstances existing that morning. Shortly after receiving the Wilkes-Barre weather and the option from the controller, 91L reported, at 0302:08, that another airplane had just buzzed him. Since Gasker contends that such a buzzing was impossible because there were no other aircraft observed within fifteen miles of 91L at the time, it is clear that the communication from 91L with respect to a buzzing should have been an obvious indication to the controller that the pilot was disoriented. However, instead of taking immediate action by way of calling the pilot’s attention, first, to his instruments to insure that the pilot would at least attempt to stabilize the aircraft and maintain a safe altitude, and, second, to the fact that he was not buzzed, the controller missed the first transmission and continued to question the pilot about the buzzing for approximately twenty seconds. As the defendant contends, if 91L had. not been buzzed, then he must have drifted down from his altitude of 2500 feet to some lesser altitude where he observed a ground light which misled him into believing that he had been buzzed by another airplane. It is recognized that light can cause a type of spatial disorientation. This phenomenon is recognized in Air Traffic literature and is known as flicker vertigo. Gasker should have recognized this as a possibility and should have taken immediate corrective action. Clearly, Gasker had the last clear chance to avoid this accident and failed. Thus, we find and conclude that the inactions of the controller in failing to communicate to the pilot on a frequent basis, in failing to draw the pilot’s attention to his instruments so that he could maintain straight and level flight at a safe altitude, were a contributing cause to spatial disorientation. We further find and conclude that the actions of the controller in giving the transmissions and instructions which he gave, induced the pilot to divert his attention from his instruments in a futile effort to locate the Allentown Airport and contributed to causing the pilot to become spatially disoriented. We find and conclude further that the controller’s failure to take immediate action after the reported buzzing was a contributing factor in worsening spatial disorientation, that the pilot, in fact, became spatially disoriented, that such disorientation caused the pilot to lose control of his aircraft and to crash into the home of the plaintiffs. We find that the actions and inactions of the controller were negligent and were the proximate cause of and a substantial factor in this tragic crash. IV WILKES-BARRE Plaintiffs contend that a reasonable controller, faced with the weather conditions existing at Allentown, had only one viable option open to him; i. e., to direct 91L to Wilkes-Barre. Admittedly, VFR conditions existed at Wilkes-Barre, and a safe journey there was possible, under IFR conditions given “tops” of not more than 10,000 feet. (91L had an altitude range of 10,000 feet). Plaintiffs contend that since 91L had been successfully flying in IFR conditions for more than the time necessary to reach Wilkes-Barre, that with proper advice from a trained controller, there was no reason to expect other than a safe journey, and that Wilkes-Barre was clearly the only feasible choice. Defendant contends, on the other hand, that for 91L to have attempted to fly to Wilkes-Barre in IFR conditions would have resulted in a crash, albeit at a different location, but a crash nonetheless. Defendant argues that spatial disorientation would have attacked or overcome 91L before his reaching Wilkes-Barre, and that, therefore, Allentown offered the safest place to land. Both sides seem to be in agreement that assuming that the tops of the cloud cover had been at 5,000 feet, or thereabouts, (A) a safe journey to Wilkes-Barre was to be expected, and (B) the controller was under a duty to have advised 91L to climb to that level and then to provide a VFR vector to Wilkes-Barre. Thus, the threshold question is what were the controller’s duties relative to knowing or learning what the overall weather conditions were at Wilkes-Barre, and particularly between ABE and Wilkes-Barre. On August 23,1974, Karl Gasker reported for work as an air traffic controller at the Allentown-Bethlehem-Easton Airport. He was there for the midnight to 8:00 A.M. shift to work all five control positions, and was the only air traffic controller on duty at the airport that night. Upon reporting for duty, it was his obligation to act in accordance with the Air Traffic Control Manual which has been described by the controller and others as the “bible” or “the law for air traffic controllers”. Section 60 of that manual requires a controller to “become familiar with pertinent weather information when coming on duty”. In the performance of that mandatory duty, Gasker says he did report to the weather office, and found out the pertinent weather information when hé came on duty, and was briefed by the controller who was going off duty. However, at the time of the trial, he testified that he could not remember what that report indicated in regard to the weather for Allentown and surrounding area, other than the published report which made no mention of “tops”, i. e., the uppermost limit of the overcast. Section 60 also imposes a continuing duty on the controller and requires him to “stay aware of current weather information needed to perform air traffic control duties”. One of the standard methods to assist the controller in Section 60’s requirements of “staying aware of current weather information” is by obtaining pilot weather reports, i. e., Pireps. In certain cases, a controller is required to obtain Pirep information, whether or not same is volunteered by a pilot. This requirement is found in Section 70 of the ATOM, wherein it is stated: “(a) Solicit Pirep Weather report from pilots when one or more of the following conditions exist or are forecast for the area: 1. Ceilings at or below 5,000 feet. (This condition existed at Allentown on August 23, 1974). 2. Visibility (surface or aloft) at or less than 5 miles. (The visibility at Allentown was below this minimum). 3. Thunderstorms and related phenomena. (Thunderstorms were forecast for the Allentown area and in fact one arrived at 3:56 a. m.)” The language to be used in order to fulfill the duty of soliciting Pireps is found in Section 70 under the term “phraseology”. The appropriate language is “request flight condition at either present position, or over (fix), or along present route, or between (fix) and (fix).” An example of a solicited Pirep would be asking 87L, “Request flight conditions between Wilkes-Barre and East Texas”. No such Pireps were ever requested by Gasker on the morning in question. It must be noted that the duty to solicit Pireps exists whether or not an emergency situation occurred. In other words, the system contemplates a gathering of information that will be helpful to all pilots, not just those who may become involved in an emergency. Obviously, however, if the routine information is of benefit to those in an emergency situation, as it clearly would have been to 91L, the breach of the duty becomes actionable. The defendant, in an attempt to indicate at least some compliance with the Pirep requirements, points to a communication from ABE at 0250:26 where ABE asked 508M, “ * * * Are you VFR at five thousand?” That transmission may not have accomplished its purpose since clearly the standard phraseology which the manual calls for was not used. Moreover, had the answer by 508M, at 0250:30, stopped after the answer “negative”, it would have been a proper response to the questions asked by the controller. However, pilots also have a responsibility to transmit information to controllers and in this case, the co-pilot of 508M went further than was required by the question asked and left the controller with mixed information which was not certain and, therefore, not ultimately helpful to the extent that a precise and certain response would have been. He said, “ * * * We’re in, uh, it looks pretty good, I doubt if you’d say VFR, but its raining real hard, we’re not yet in solid clouds, but its raining very hard”. While this transmission was not a solicited Pirep, it was certainly an important transmission. The other alleged Pirep that the defendant maintains was obtained by the controller is the statement by 87L, at 0258:04, “I broke out at eight hundred”, followed four seconds later by “MSL that is”. That transmission did not tell anyone anything new. Allentown had already told 87L that the ceiling was 400 feet. More important, it gave the controller no information as to conditions between ABE and Wilkes-Barre. While not mentioned by the defendant, the transmission by 87L, at 0257:22, when 87L says, “ * * * tell Monmouth to expect, uh, quite a shift in the wind and a little light chop, uh, out of fifteen hundred” is also Pirep. However, neither 508M nor 91L were advised prior to the accident of the wind shift, nor were they advised of the light chop. In addition to the radio transmission of 508M stating that they were not in solid clouds “at five thousand”, the in-Court testimony of the co-pilot, Hoffman, on cross-examination, indicates that 508M was, in fact, not in solid clouds between Spring and the outer marker. He had no recollection of 508M being in rain at all as it overflew Allentown on the way to the outer marker. Nor did he recall rain at the outer marker until they had descended in the holding pattern itself. 508M descended from 5,000 feet to 4,000 feet and then to 3,000 feet in the holding pattern. This testimony by defendant’s witness, under oath, is more than suggestive of the fact that the “tops” over ABE was 5000 feet or less. Additionally, it is logically argued that unless there had been good visibility between Spring and the outer marker, no qualified airline pilot and co-pilot such as Cruwell and Hoffman would have tested the known danger that existed from an otherwise unidentified target at an unknown altitude directly in their path. It is logical to conclude that 508M had flown out of the heavy rain condition caused by the thunderstorm activity to the south and east of Allentown from which direction it approached, and was above the overcast that was causing the light rain showers which began at Allentown at 2:45 A.M. and which 508M encountered, according to Hoffman, when descending into the holding pattern. The defendant spent a great deal of time developing the proposition that weather conditions which exist at the ABE Airport must, of necessity, be the same at the Queen City Airport. The two are only six miles apart, and there are no major geographic phenomena between them that would cause a change in weather patterns. It is reasonable, therefore, to conclude that the tops of the clouds were not in excess of 5,000 feet, at a point between the PP & L building and Queen City Airport, at the outer marker, and in the general Allentown area, including Queen City Airport, at the time in issue. Since the evidence has disclosed that the weather conditions were improving to the north of Allentown, it is also reasonable to conclude, in the absence of any contrary evidence, that the tops would have remained at or about the 5,000-foot level, or less, for a sufficient distance to permit 91L to fly to Wilkes-Barre above the “tops” in VFR conditions. In the context of this suit, there is no dispute that if there were tops at 5,000 feet, such information should have been given to 91L and he should either have been told to climb to 5,000 feet, and to fly to Wilkes-Barre VFR or at least been given such information so that he could have made an informed decision as to whether to proceed to Wilkes-Barre or attempt a landing at ABE. Since 91L had already indicated that he needed the help of the controller and had followed all other suggestions of the controller, there is no reason to believe that had the controller instructed or suggested a climb to 5,000 feet and a vector to Wilkes-Barre, that 91L would not have either complied or so elected by his own decision. That being so, this accident and perhaps no accident would have occurred. It helps us not at all to argue that there is no direct and certain evidence as to the tops and that the controller was unaware of the fact that tops were at or near 5,000 feet in the Allentown area. That was information which the controller should have obtained. He had available to him potential information from 87L pertaining specifically to the general Wilkes-Barre area, from the New York Center, and the Weather Bureau at Allentown, either through a simple telephone call or through the automatic weather writer, and he could have called Wilkes-Barre when the unidentified target first appeared. From 2:30 until 91 Lima contacted him, (other than giving routine weather reports to the IFR pilots, who were allowed to continue their approach to Allentown, despite the potential emergency which existed there), there was ample time in which to put an emergency plan into motion. That this is what a controller is supposed to do, does not appear to be disputed by the defendant. FAA literature, presented by the plaintiffs, indicates that a controller is not supposed to be íi hero. He is supposed to enlist aid from other facilities. The Air Traffic Control Manual, in the section on the handling of emergencies, has numerous mandatory references to notifying the (New York) Center. At this point it is logical to inquire how the controller could have made the suggested inquiries and, at the same time, have landed 87L and 508M. Perhaps he didn’t have time under the circumstances as he handled them. He viewed his duties as requiring that 87L and 508M be given priority in the order named, leaving 91L at the bottom of the totem pole. However, that is not the way it is and that is not the way it should be. True, 87L and 508M were both approaching ABE to land in that order. Absent unusual circumstances, they were entitled to precisely the services which the controller gave them. But when Gasker saw a plane circling at an unknown altitude in the area of Queen City Airport, a small airport primarily accommodating small single-engine planes usually operated by VFR pilots, his duties and priorities changed. He was then put on notice of a possible emergency, and considering Gasker’s description and drawing of the irregular circles and erratic track of such plane, as seen on radar, the lack of visibility and poor weather conditions in the area, he was practically assured of problems and potential emergencies to come involving this unidentified aircraft. It was then that he could have placed 508M in a holding pattern at Solberg or Spring and 87L in a holding pattern at East Texas VOR or at Reading. So handled, Gasker would have had ample time and opportunity to have given Rothschild the time, attention and instructions required to have avoided spatial disorientation and perhaps set him on VFR course to Wilkes-Barre. Plaintiffs further contend that the controller was negligent in even suggesting ABE as a landing site. When one considers the adverse weather conditions existing at ABE and the fact that a VFR pilot such as Rothschild was involved, with his training or lack of it, there is no real dispute that ABE was not a suitable landing site, regardless of the existence or non-existence of tops at 5,000 feet. A quick review of the evidence suggests that there were not really two alternatives. In order to have landed at ABE, it would have been necessary for 91L to have developed, in the air and at night, a skill that he had never practiced at any time; i. e., descending in adverse IFR weather conditions for the purpose of landing. In order to land, after establishing an easterly course over the airport, he would have had to have reversed course and to have turned from an easterly path over the airport to a westwardly one. He would then have had to fly westwardly, past the outer marker, make a left turn, make another left turn, come in over the outer marker and then make a blind let-down with a 300-foot ceiling and visibility of two and one-half miles on the ground. Moreover, because of the rain, the visibility available to the pilot would have been substantially lessened and particularly so when one considers that “slant” visibility would be even less. Defendant’s expert Howell never stated precisely the effect of rain on slant visibility. The clear implication of his remarks is that visibility was materially diminished. Thus, there is no reason to expect that even if 91L had successfully made all of the maneuvers necessary to line up with the runway that he would have been able to break out and to see the runway at a point where it would have been helpful to him. If he did not see the runway, then he would have had to execute what is called a “missed approach”. That means he would have to go around and do it again, and we suppose again and again until he either crashed or got it right. On the other hand, the Wilkes-Barre alternative would have utilized skills that the pilot had already been taught and had demonstrated this night before contacting the controller; i. e., how to fly the airplane in instrument-weather conditions as opposed to landing it. It must be recalled that there is a difference between flying the airplane and landing the airplane. Flying the airplane had been taught to the pilot of 91L. Even in adverse weather conditions, this particular pilot had demonstrated, for approximately thirty minutes, that he had the skills to fly the airplane, provided he was left alone and not directed to start looking for the ground, for airports, for airport lights, etc. To go to Wilkes-Barre prior to 0257:42 would have required no turns, just a continuation of 91L’s northbound course. After 0257:42, it would have required one turn to get from an eastwardly direction to a northerly direction. Therefore, the logical and only course available within the good judgment of a controller, should have been to offer to vector the pilot to Wilkes-Barre or at least give him the information with which the pilot could have made an informed decision to do just that. The manual for dealing with emergencies states that when radar services are going to be utilized, one of those radar services, (1851(f)) is a “vector to VFR conditions”. Nothing is said in the manual about vectoring a pilot away from VFR conditions and toward an IFR-type landing. The only way a vector is to be used is to get the pilot to VFR conditions. That was not done, no offer of a vector to Wilkes-Barre was made. Only the offer of a vector to Allentown. It is evident that after obtaining complete weather information and after giving such information to the pilot, the controller should have inquired into the pilot’s ability to land under such weather conditions. Having discovered that it was nil, the controller should have suggested that he fly to Wilkes-Barre with the aid and assistance of the controller or at least have given him that alternative or option and the information with which to intelligently exercise it. The controller should have assured the pilot that he had him on radar, that he would attempt to follow him on radar towards Wilkes-Barre, that, as the pilot approached Wilkes-Barre, he would receive Wilkes-Barre coverage, and thus assist him in reaching VFR conditions or otherwise landing. As indicated by Mr. Howell and Mr. Cruwell, the two pilots called by the defendant, there is not a great deal that has to be done in order to fly an airplane under adverse weather conditions other than violent turbulence, assuming one can fly at all, and the pilot of 91L had certainly demonstrated that he could. The pilot needs to watch the altimeter and the attitude indicator so as to know what the aircraft is doing and its position and altitude relative to the horizon. Again, it is obvious, based upon what we know about this case, (1) that Rothschild had this training and (2) that he demonstrated an ability to fly the aircraft for approximately a half hour using only his instruments. While no one can know, with absolute certainty, that the flight to Wilkes-Barre could have been made safely or that any flight can be made safely, there is reason to believe that, even if the flight had to be made in instrument-weather conditions all the way to the environs of Wilkes-Barre, it could have been done safely. At least one cannot be certain that the flight could not have been made safely. In light of the weather conditions, the pilot’s abilities, and the requirements of the ATOM, the only reasonable alternative open to the controller was to suggest Wilkes-Barre as the pilot’s only choice or at least give him the weather conditions and offer to vector him there. Therefore, whether the flight could be made on top, or in instrument conditions, due care required a conscious effort to give the pilot an informed option to go to Wilkes-Barre. It is reasonable to conclude that given an informed option, the pilot would have elected the Wilkes-Barre vector. Notwithstanding the logic of such conclusion, the fact remains that there is no precise evidence as to the “tops”. There is only Hoffman’s mixed statement on the tape, clouded by his ambiguous testimony in the course of trial, contradicted by the testimony of Cruwell, who sat idly by and allowed Hoffman to report something to Gasker which he contends, in his testimony, was incorrect even though he knew, at the time, that an unidentified plane lurked in the fog somewhere directly ahead. (Confusingly, Hoffman doesn’t know what he meant when he said on the tape “We’ll stay away from that side”). The uncertainty as to the “tops” is due to failure of Gasker to have obtained accurate information via Pireps, contact with New York Center, the weather bureau, etc. Thus, we are justified, we think, in reaching the foregoing conclusions. On the other hand, given the fact that, for whatever reason, there is no direct evidence as to “tops” and that any finding and conclusion with respect thereto rests upon “thin ice”, the fact remains that Gasker did not seek, through Pireps and otherwise, the necessary information as to “tops” and did not give to Rothschild the information required to make an informed decision as the pilot in charge. Hence, eliminating entirely a finding as to “tops”, we nonetheless find Gasker negligent in not obtaining such information, which negligence was a substantial factor in the crash which subsequently occurred. Gasker’s action or inaction were the cause of or contributed to Rothschild’s spatial disorientation and spatial disorientation was a substantial factor in the cause of the accident. V BUZZING In view of our prior findings and conclusions, we deem it unnecessary to make and we make no determination at this time as to whether the controller was also negligent in failing to maintain proper separation between 508M and 91L resulting in the “buzzing” described by the deceased pilot and the subsequent crash. VI THE PLAINTIFFS’ CASES Where, as here, a pilot places himself in the hands of the controller and thereafter follows the controller’s suggestions or instructions, the pilot is entitled to rely upon such information and directions and is not free or expected to disregard same. The court, in Yates v. United States, 10 Cir., 497 F.2d 878 (1974), said: “It is familiar law that one in the care and custody of another where the circumstances deprive the person of an ordinary opportunity to protect himself has a right to expect that the person exercising the custody shall use reasonable care and caution for his protection.” Although the obligation imposed upon air traffic control may seem to be exacting and heavy, it must be remembered that the degree of care required to constitute ordinary care increases according to the dangers to be reasonably apprehended in given situations. What might be held to meet the ordinary standard of care in some other situations does not necessarily measure up to ordinary care in an air traffic control room where, as the courts have noted, there is always the possibility that tragic accidents may occur in a matter of seconds if controllers who assume a high responsibility, relax from constantly overseeing an aircraft to promote its safety in flight. Hennessey v. United States, 12 Avi. 17, 410 (N.D.Cal.1971). We conclude that the standard of care required of the controller on August 23, 1974, was not met. Government regulations, having the force and effect of law, provide that a pilot retains primary responsibility for the movement of the aircraft. However, before a pilot can be held legally responsible, he must be supplied with those pertinent facts that he is not in a position to know for himself. Those pertinent facts which the controller is expected to provide to pilots include current weather. That was not done here. Martin v. United States, 586 F.2d 1206 (8th Cir. 1978); American Airlines, Inc. v. United States, 418 F.2d 180 (5th Cir. 1969); Hartz v. United States, 387 F.2d 870 (5th Cir. 1968); Ingham v. Eastern Air Lines, 373 F.2d 227 (2d Cir. 1967) cert. denied 389 U.S. 931, 88 S.Ct. 295, 19 L.Ed.2d 292 (1968); Todd v. United States, 384 F.Supp. 1284, 1291 (M.D.Fla.1975). As previously stated, this is essentially a negligence case. In suits for injuries sustained in air crashes, no special rules are applicable only to airplanes. Rather, the general rules of negligence apply. Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964); American Airlines, Inc. v. United States, supra. Therefore, the tort standards of duty, the breach of same, and causation remáin as in any tort case. An excellent overview of the applicable law is to be found in Dreyer v. United States, 349 F.Supp. 296 (N.D.Ohio 1972), at page 305: “ * * * Under the Federal Tort Claims Act, the United States assumes responsibility for the negligent acts and omissions of its agents and employees acting in the course of their employment, where a private person, under the same circumstances, would be liable to a claimant in accordance with the law of the forum where the act or omission occurred. 28 U.S.C. § 1346(b). In the eases under consideration, this would be the law of Ohio. That responsibility extends to acts or omissions of governmental employees in the operation of the air traffic control system in general, Eastern Air Lines v. Union Trust Co., 95 U.S.App.D.C. 189, 221 F.2d 62 (1955), including acts or omissions of air traffic controllers affording radar service to controlled aircraft. Maryland for Use of Meyer v. United States, 257 F.Supp. 768 (D.C.1966). It is now settled that once the government undertakes to perform a service not otherwise required by specific legislation, it must conform to the standards which it sets for itself and must exercise ordinary and reasonable care in the discharge of the responsibility it has assumed. Ingham v. Eastern Airlines, 373 F.2d 227 (C.A. 2, 1967); Harris v. United States, 333 F.Supp. 870 (N.D.Tex.1971); Wasilko v. United States, 300 F.Supp. 573 (N.D. Ohio 1967), aff’d 412 F.2d 859 (C.A. 6, 1969). The law in this regard as applied to aviation cases is summarized in Hennessey v. United States, (N.D.Cal. No. 44551, 4/26/71), wherein Judge Sweigert stated. The courts, construing the Federal Aviation Act of 1958 (49 U.S.C. 1301 et seq.), the Federal Aviation Regulations promulgated thereunder (Title 14 CFR, Aeronautics and Space) and the standards adopted by the Federal Aviation Administration itself (FAA) in its Air Traffic Control Procedures Manual (ATP), have consistently held that the United States Government, having assumed the responsibility of operating an air traffic control system, involving the safety of aircraft, passengers, crews and cargoes, must meet its responsibility according to the standards of reasonable care; that this duty is not limited by any concept that the extent of its care in this respect rests within its own discretion; that neither is its duty in this respect limited by the letter of its own regulations, policies or manuals; that the government is liable under the Federal Tort Claims Act, 28 U.S.C. 1346 for the negligent act or omission of its employees in the operation of its traffic control system under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law where the act or omission occurred.” Id. at pp. 17—18. The defendant does not seriously dispute the fact that if there was negligence on the part of the controller which caused the crash of 91L into the Himmler home, that the controller breached his duty to the Himmlers. Indeed, since City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), and the Federal Aviation Act of 1958, 49 U.S.C. Sec. 1348(c) it would do it no good to so argue. Rather, it argues that the controller was not negligent and that the Himmlers were damaged due solely and exclusively to the conceded negligence of the pilot Rothschild. The defendant contends that the whole problem in this accident was that a VFR pilot got himself trapped in IFR weather conditions and crashed as a result. While it is certainly true that a pilot is in control of his airplane, Martin v. United States, supra, and the controller can’t fly it for him, it does not mean that a controller cannot also be negligent in his handling of the pilot and the situation at hand. The standard of care in aviation cases has been held to be concurrent, and responsibility rests upon both the pilot and control tower personnel. Air Crash Disaster at New Orleans, etc., 544 F.2d 270, 276 (6th Cir. 1976). In Freeman v. United States, 509 F.2d 626 (6th Cir. 1975) the court made it clear that concurrent or even intervening negligence of a pilot and jump master, did not exonerate the Government. A controller has a duty to report weather changes which, under the circumstances, a pilot would consider important in deciding whether to try to land and in preparing for the conditions he would meet in landing. Deweese v. United States, 576 F.2d 802 (10th Cir. 1978); Ingham v. Eastern Air Lines, Inc., supra. In Ingham, visibility had dropped from one mile to three-quarters of a mile. In Deweese the ceiling dropped from four hundred feet to three hundred feet, and the visibility was up and down between two and a half and three miles. The defendant contends that this pilot, in the air for approximately thirty minutes with no direct proof of the ceiling and visibility at his take-off, would have had to know the weather at ABE. The controller was nonetheless under a duty to inform the pilot of 91L of the changing and most current weather information. His failure to do so deprived Rothschild of important information necessary for an informed decision as to whether to attempt a landing at ABE, or fly to Wilkes-Barre. As suggested by Deweese, knowledge of the ceiling and visibility could have influenced the pilot to reject the offer of a surveillance approach to Allentown. In Stork v. United States, 430 F.2d 1104 (9th Cir. 1970), a certified instrument-rated charter pilot was scheduled to transport a football team back to California from Ohio. At take-off, visibility was zero miles, in fog; i. e., 165 feet. FAA regulations would prohibit a pilot from taking off in those circumstances. The pilot requested a take-off clearance and reported he could see three lights—the farthest being 600 feet away. Clearance was granted and the plane, after swerving right and then left, made a premature take-off, stalled and crashed. The Government argued, as here, that the controlling decision was for the pilot, and that traffic controllers have no authority to substitute their own judgment for that of the pilot. In Stork, differing from Himmler, there was no doubt that the pilot was completely aware of the weather conditions facing him. In spite of that, and the Government position that warnings from the tower are not required when it is apparent that the pilot is in possession of all the facts-known to the controllers, the court said “ * * * his apparent knowledge will not obviate the need for warning when he is proceeding in the face of extreme danger known to the tower”. Id. p. 1108. The Government also argued proximate cause. The court disposed of this argument by stating: “We find no merit in the contention of the United States that this breach of duty was not a proximate cause of the crash. It is clear from the record that take-off was in reliance upon the unqualified grant of clearance by the tower, and that even the most cursory statement of caution might have caused the pilot to abandon the fatal take-off. * * * ” Id. 1108. The facts of the present case are even stronger for the issuance of warnings than was Stork. In this case, there is no testimony that the pilot of 91L had actual knowledge of the weather conditions at Allentown. The controller assumed he did, but as Stork teaches, even actual knowledge does not negate the need for a warning. In addition to the absence of weather warning, there was never a warning about the pressing need to continue to monitor the plane’s instruments, nor that the pilot should not be distracted by events outside the cockpit. Here, instead of warnings that could have avoided spatial disorientation, we have a continuing series of advice and instructions calculated to do just the opposite. The instructions here caused the pilot to look away from the safety of his instruments, in a futile visual search for an airport hidden by clouds, resulting in disorientation as demonstrated by the Barony c