Full opinion text
MEMORANDUM NANGLE, District Judge. Plaintiff brings this action to recover damages for the alleged wrongful death of her husband, Frank “Chip” Worthington, the pilot of a Piper PA-28-181 aircraft involved in a fatal crash on November 13, 1988, at Jacksonville International Airport (JAX) at approximately 8:53:27 p.m. (0153:27 UTC). Worthington was flying three passengers to Jacksonville in time to catch their connecting flight to Tampa, Florida. Unfortunately, the aircraft entered fog during the landing process and, soon thereafter, Worthington lost control of the aircraft and crashed into trees a short distance from the runway. It is alleged that the air traffic controllers on duty the night of the crash (1) failed to provide timely and accurate weather information to Worthington; (2) failed to timely vector the aircraft onto the runway for its subsequent approach; and (3) failed to timely transfer Worthington from approach control to local control. These factors, considered collectively, are said to have caused Worthington to become spatially disoriented and lose control of the aircraft at a time when his work load was at intense levels. The government, on behalf of the air traffic controllers involved, denies all liability. This Federal Tort Claims Act case was tried before the Court sitting without a jury. Having considered the pleadings, the testimony of the witnesses, the exhibits before the Court and the stipulations of the parties, and being fully advised in the premises, the Court makes the following findings of fact and conclusions of law. Fed.R.Civ.P. 52. Statement of Uncontested Facts Prior to trial the parties stipulated to the following facts (which were adopted by the Court): 1. Mr. Worthington was conducting his flight pursuant to 14 C.F.R. Sec. 135.1 et seq. (Part 135). 2. Mr. Worthington was the pilot in command of the accident flight. 3. On November 13, 1988, Chip Wor-thington held the following licenses and ratings: (1) private pilot, airplane, single-engine land; (2) airplane, multi-engine land; (3) instrument; and (4) commercial pilot. Thus, Mr. Worthington was qualified and authorized to fly single-engine and multi-engine fixed-wing aircraft under instrument flight rules (IFR), assuming all other requirements of the Federal Aviation Regulations (FARs) concerning his flight activities were met. 4. Mr. Worthington was a commercial instrument-rated pilot with almost 1600 hours of flying time, of which 1094 were flown in multi-engine aircraft and 486 in single-engine aircraft. On the eve of the crash, Mr. Worthington was acting in his capacity as a professional pilot paid by TAJ Aviation to deliver three passengers to JAX in time for them to catch their commercial flight to Tampa that evening. Mr. Worthington had been flying for TAJ Aviation for six weeks at that time. 5. Prior to the accident flight, Mr. Wor-thington had accumulated approximately 264 hours of night flying time and 302 hours of instrument flying time. 6. In his experience as a pilot, Mr. Wor-thington had flown into JAX on numerous occasions. He had also flown the ILS approach to runway seven at JAX. He was familiar not only with the airport and the ILS approach, but also with the fog conditions that frequented JAX and south Georgia where he was based. 7. At the time of the accident, Mr. Wor-thington was flying a Piper Archer, model PA 28-181, registration no. N8342L. The Archer is a single-engine, four seat aircraft with a low-wing configuration. 8. N8342L was equipped with the instruments and radios required by the FARs for instrument flight. These instruments included an altitude indicator, a rate of climb indicator, a heading indicator, an altimeter, a gyroscopic turn coordinator, an ILS receiver and two radios designed for direct voice communication with various types of ground facilities as well as other aircraft. The parties dispute whether the gyroscopic turn coordinator was operative on the accident flight. 9. The aircraft was owned by TAJ Aviation, a company that operated out of Brunswick, Georgia. 10. On the night of the accident, Mr. Worthington was directed to fly the aircraft from Brunswick to St. Simons Island, Georgia, take on his three passengers who were golf pros, and fly them to Jacksonville, Florida. The passengers were Davis Love, Jr., Jimmy Hodges, IV, and John Popa who were on their way to a Golf Digest meeting being held the following morning in the Tampa Area. 11. The accident flight commenced at approximately 2023 local time. It is believed that the accident flight was scheduled to arrive in Jacksonville in time for the departure of Piedmont flight 1535 at 9:30 p.m. (2130). It was Davis Love’s custom and practice to fly with Piedmont Airlines and that was the only scheduled airline flight from JAX to Tampa after 2023 local time that evening. 12. The entire flight was conducted at night in the dark. Mr. Worthington arose early the morning of the accident flight and his only other flight that day occurred in the morning and lasted two hours. 13. Being a commercial flight, the accident flight was required to be conducted in accordance with all applicable regulations contained in 14 C.F.R. Parts 91 and 135. These regulations require that a pre-flight review be performed. In the review, the pilot must familiarize himself with all available information concerning the flight. Where the flight is an instrument flight, this information includes weather reports and forecasts and alternatives available if the planned flight could not be completed. 14. At the time the aircraft departed St. Simons Island, at approximately 2023, JAX visibility was below VFR minimums, i.e. a pilot attempting to land at JAX in these conditions normally would be required to execute an instrument approach. 15. At 2031:13, Mr. Worthington contacted Jacksonville Approach, the position worked by Ronald Singletary. Singletary informed Worthington, at approximately 2031:48, “we’re landing on runway seven, the weather is sky partially obscured, visibility one mile, fog, wind calm, altimeter is three zero one eight.” 16. At 2037:34, Singletary broadcast on the frequency: “Attention all aircraft; tower visibility one half mile.” 17. Mr. Singletary issued information that visibility was one quarter mile separately to three different aircraft between 2037:44 and 2037:55. He did not issue this information to Worthington. 18. At 2038:28, Mr. Worthington called the approach controller asking, “... uh can we get an IFR in there sir?” 19. At 2039:20, the approach controller told Worthington to “continue your present heading, you’re cleared to JAX International via radar vectors, maintain two thousand, expect ILS [instrument landing system] approach [for runway] seven.” 20. The pilot of American 1367 requested the RVR from the approach controller at 2038:06 and was told, “right now, the RVR is showing more than six thousand.” 21. At 2048:24, the approach controller cleared N8342L for the ILS approach to runway seven at JAX and stated that the aircraft was two and one half miles from the outer marker. 22. Pursuant to FAA order 7110.65E, the Air Traffic Control handbook, a controller should vector an aircraft so as to permit the pilot to intercept the final approach course at least three miles outside the outer marker. 23. Worthington responded to the frequency change with “Eighteen three, sorry about that.” 24. The Air Traffic Control handbook provides that frequency changes should occur prior to the aircraft passing the outer marker. Worthington was inside the outer marker when he received the frequency change. 25. Worthington reported on the local tower frequency at 2051:53. 26. At 2051:56, Mr. Stump, the local controller, told Worthington, “Cherokee eight three four two lima, roger, runway seven cleared to land, the uh visib— ... er uh stand by, the RVR is in update, however, it’s been down around two thousand feet or so.” 27. At 2052:08, the local controller informed Worthington, “A couple of them have missed the approach and Ameri — an er American jet landed, advised he broke out just about right at minimums.” Introduction to Key Terms and Duties 1. IFR, or instrument flight rules, represent one of the two different sets of flight rules under which a flight may be conducted. Under IFR, it is presumed that pilots cannot see other aircraft or the ground and are guided by air traffic controllers. A pilot using this must file an IFR flight plan indicating his destination, proposed route of flight and requested altitude. Control of the aircraft is maintained by various instruments on board, and navigation is accomplished through various navigational aids which receive and broadcast data from ground stations. This kind of a flight uses an ILS, or instrument landing system. 2. Flying pursuant to an IFR flight plan allows pilots to fly in clouds without reference to the ground. Under it, pilots may customarily continue their flight in deteriorating weather conditions. However, when under an IFR flight plan and in the process of landing, a pilot is required to execute a missed approach if, upon reaching his decision height, he does not sufficiently have the runway in sight to make a safe landing. 3. VFR, or visual flight rules, represent the other set of flight rules. Under a VFR plan, a pilot directs his aircraft according to what he can see, navigating from place to place according to visual cues outside his aircraft. 4. Worthington began his ill-fated flight in VFR conditions, but, as the weather was rapidly deteriorating, he began his approach into Jacksonville under IFR conditions. 5. Because these two sets of flight rules involve completely different obligations and duties by those involved, the Court will outline the various duties of air traffic controllers and pilots and explain how they work together. 6. The air traffic controller’s duties are twofold. His primary duty is to safely separate the aircraft in preparation for landing or take-off. Once this has been accomplished, the air traffic controller may look to his secondary duties, which include the dissemination of weather information. The air traffic controller is governed by the rules and regulations promulgated by the Federal Aviation Administration in the form of the Air Traffic Control Handbook regulations, which are evidence of custom and duty, whereas the pilots are governed by the Federal Aviation Regulations. 7. When the weather is in a deteriorating stage, the air traffic controller’s duties multiply. The air traffic controller is obliged to disseminate certain visibility information to the pilots at certain stages. As the weather deteriorates and the visibility decreases, this duty increases. The primary information the air traffic controller must disseminate under these conditions consists of two points: the runway visual range (RVR) and the visibility. These two measures of visibility determine whether a pilot is flying within his minimums and can appropriately land or take-off in an aircraft. 8. The RVR is the measure of visibility in the touchdown zone area; it represents the horizontal distance a pilot will see down the runway from the approach end. It is electronically measured in terms of hundreds of feet, using standard calibrations, by instruments along the runway, approximately a mile from the tower and National Weather Service buildings. These instruments, known as transmissometers, are in update every 15 seconds so as to provide a continuous brief of the sight distance on the runway. The value given has a running one minute average. 9. The RVR — which is a measure of a slant visual range — measures the horizontal visual range based on the sighting of either high intensity runway lights or on the visual contrast with other targets, whichever yields the greater visual range. 10. The transmissometer, which takes this RVR measure, consists of two parts: the light transmitter and the light detector. It determines the percentage of light received based on the amount transmitted. The higher the percentage of light received, the better the visibility. 11. The prevailing visibility is a sight distance typically measured by the National Weather Service, but often measured by air traffic controllers located in the tower as well. When measured, though, it must be by a trained observer. The air traffic controllers in Jacksonville often measured visibility directly from the tower. 12. The measurements by the local tower as compared to the National Weather Service can differ depending on the location of each at the airport. In Jacksonville, the National Weather Service building is over a mile from the threshold of runway seven and slightly less than a mile from the touchdown zone. The local tower is 1%6 mile from the threshold of runway seven and about 15/16 of a mile from the touchdown zone. Because the measurement is a visible one, the air traffic controllers must obtain pilot reports (“PIREPs”) from the pilots in the air concerning the visibility offered them. 13. Essentially, this measured visibility describes the sight distance a pilot would have in the sky before landing or take-off. Because such a large area is measured, the visibility value given may not necessarily represent the entire area. Thus, even where prevailing visibility is measured at one mile, one quadrant could be down to virtually zero visibility. 14. Similar to the RVR measurement, the prevailing visibility is also continually in update. Unlike the RVR, which is directly linked to the air traffic controller’s computer, the visibility measured by the National Weather Service comes to the control tower via an eleetrowriter. 15. Although testimony at trial differed as to where the eleetrowriter was located within the tower, i.e., whether there was one in the local control area and one on the approach control area or whether there was only one in the approach control area, it is clear that the instrument is monitored by a person in the “data position.” Once the new weather information, including visibility, comes to the air traffic controllers via this instrument, it is torn off by the person in the data position. That person then incorporates the information into the computers available to the air traffic controllers for dissemination to the pilots. 16. The data position is not continuously monitored, however, because the person operating it often has other duties. He is alerted to incoming information by a beeping sound made by the eleetrowriter. 17. Generally, when visibility decreases to one mile or less, the air traffic controller must inform the pilots of the prevailing RVR. When a determination must be made whether to land or take-off, and the RVR and prevailing visibility differ substantially, the RVR visibility measurement takes precedence. RVR visibility is far more critical to a pilot because it is more representative of the visibility that pilots would encounter on final approach and the touchdown zone than visibility observations recorded by the National Weather Service or within the tower. 18. On November 13, 1988, Worthing-ton’s mínimums for the flight of his aircraft consisted of a RVR of 1800 feet and a visibility of V2 a mile. Even if he was operating under an IFR flight plan, he would be violating the Federal Regulations if he landed the aircraft when both of these mínimums were not met. 19. Generally, the duties owed by pilots and air traffic controllers are concurrent; both are responsible for the safe conduct of the aircraft and the safety of the passengers. 20. The pilot is ultimately the one in command of his aircraft. He is directly responsible for, and is the final authority as to, the operation of the aircraft. If the pilot disagrees with an air traffic controller’s request, he is free to change and act according to his beliefs. 21. Yet, even though it is often said» that the pilot has the ultimate and primary responsibility for his aircraft, the air traffic controller is to work in conjunction with the pilot to help ensure a safe flight. Before the pilot may be held legally responsible, he must know the facts which are material to the operation of his plane. This forces the pilot to become aware of all material facts before he undertakes flight, and it also requires the assistance of the air traffic controllers during that flight. 22. The air traffic controller is not only obligated to provide information to the pilot as required by the Air Traffic Control Handbook, but he is also required to provide information not included in the handbook to the extent that he has undertaken to provide such additional information to the pilots. This is especially true in bad weather conditions or where the air traffic controller is aware that the pilot is inexperienced or in danger. 23. Nevertheless, the air traffic controllers have the benefit of assuming that the pilots will act in accordance with all rules and regulations. An air traffic controller often monitors a pilot’s reaction over the frequency to see if additional attention is needed, but the mere fact that a single pilot is flying an aircraft does not warrant additional attention from the controller. 24. Moreover, air traffic controllers expect pilots to maintain their frequencies, an expectation which becomes mandatory during adverse weather conditions in IFR flights. For reasons discussed later, the Court finds that Worthington properly monitored his radio frequencies. 25. Generally, when a pilot is flying into an airport, he deals with two air traffic controllers, the approach controller and the local controller. The approach controller handles all aircraft on their way into the airport and separates them for landing. His duties generally apply to all aircraft that are beyond five miles from the airport. 26. The approach controller in this case, Singletary, was located in a dark “radar room” in the basement of the tower. Although he sees incoming aircraft on his radar, he cannot see outside. He utilizes the information available on his radar to separate the aircraft and sequence arrivals. He works both outgoing and incoming flights, providing the pilots with advisories and handling any overflights. 27. Located in the “radar room” are eight or nine radar scopes, overhead consoles, and a data position. A weather screen provides the approach controller with the updated weather information that he cannot personally see. The RYR readout is within the approach controller’s position, but the electrowriter, although near, is within the bounds of the data position. 28. The approach controller transmits on four frequencies simultaneously. During an IFR flight, such as the one Wor-thington was experiencing at the time he reached Jacksonville Airport, pilots are expected to maintain their frequencies and can be held to have heard communications made over the frequencies which are not directly related to that pilot. Worthington was on one of Singletary’s frequencies and is expected to have heard the transmissions made while on that frequency. 29. The local controller is responsible for handling aircraft within a five mile radius of the airport as well as aircraft on the runway. He generally must ensure that there is a safe runway on which to land and issue landing clearances once the runway is clear. The local controller in this case, Steven Stump, was located in a glass-enclosed area at the top of the control tower. 30. The local controller uses a “BRITE” radar display, which presents a picture of the information contained on the radar scope being used by the approach controller. A blip represents each aircraft on the “BRITE” display, along with alphanumer-ics information associated with each aircraft including the aircraft’s call sign, type, destination, airspeed, and altitude. This represents the ARTCC system. 31. The approach controller generally “hands off” the approaching aircraft to the local controller at least three miles from the DINNS outer marker. This is usually accomplished through the use of data tags that appear on the “BRITE” scope in the local tower. 32. On the night of the accident, however, the alphanumerics portion of the ARTCC system was not working. Because no data tags appeared on the local controller’s screen, the approach controller had to coordinate verbally with the local controller for each hand off. Findings of Fact 1. At the outset, the Court states that certain factors emphasized by the parties are not material to the final determination of fault. These include whether the gyroscopic turn indicator was operating at the time of the crash; the weight of the aircraft at the time of the crash; particular violations of the Federal Regulations by Worthington regarding the prudence of accepting this night flight with paying passengers in a single-engine aircraft with no co-pilot and continuing the flight under IFR conditions; and the two-minute delay in Worthington’s turnover to local control. Likewise, the evidence herein of spatial disorientation is very speculative and questionable. Spatial disorientation is of itself not uncommon and pilots are trained to handle it. However, under the evidence presented, the Court does not credit testimony that Worthington suffered spatial disorientation as claimed by plaintiff. 2. There is no dispute as to Worthing-ton’s ability to fly a single-engine aircraft as a commercial pilot under VFR or IFR conditions. In fact, all evidence pointed toward a prior record of care with which Worthington executed his duties as a pilot. Worthington’s ability as a pilot necessarily entails a practical knowledge of weather phenomena, including the principles of fog. 3. Acting in his capacity as commercial pilot on the eve of the crash, Worthington prepared to leave Glynco Jetport in Brunswick, Georgia at approximately 1945 for an eight mile flight to St. Simons Island, Georgia, where he anticipated picking up his three passengers. Before he departed, Worthington executed a perfunctory examination of his aircraft and called for a weather report. The information he received was of a kind satisfactory for a pilot of Worthington’s capability to continue with his plans of immediate departure. 4. Most probably, the information that Worthington heard at that time was that the weather conditions at JAX consisted of a visibility of five miles, with haze. Depending on the time he called, he could have heard a weather forecast for occasional visibility of two miles with fog in addition to the general forecast of five miles. 5. Defendant’s expert Bernard Coogan, assuming that Worthington heard the occasional two mile visibility forecast, testified that this lower visibility, which was below VFR mínimums, must be taken as if it was the actual predicted condition. No rules of law support this determination, nor has it been represented as customary practice. Accordingly, given the response of Wor-thington at the time he obtained his weather report, the Court believes he left in conditions suitable for a VFR flight plan. 6. Moreover, there is no evidence from which this Court can infer that Worthing-ton again called for weather information once he arrived at St. Simons Island. A VFR flight plan was in effect, however, which indicates that Worthington was operating under flight conditions appropriate for such weather. 7. At the time the aircraft departed from St. Simons Island, JAX visibility was one mile, with fog. This placed the conditions at JAX below VFR mínimums. 8. Worthington, however, was flying in clear conditions above the fog layer during his approach into JAX. Although fog began to form over the Jacksonville area in the early evening, fog moves in waves and is clear in between waves. Also, it did not become dense at the airport immediately upon forming, as fog forms closer to the coast than inland and only becomes more dense as it moves inland. On the night of the accident, the fog depth ranged from the surface up to 200 to 250 feet, but could have had a total range between 150 to 300 feet based on the various measurements and observations taken. Worthington was flying in the area above this fog layer up until his descent into JAX. 9. Given the mercurial nature of fog, the fog conditions over the airport itself varied. Variations are common over a distance of one mile or less. The fog was denser on the eastern portion of the airport, which included the tower and National Weather Service Building where prevailing visibility was measured. The area surrounding the threshold of runway seven and further west along the approach to that runway had a much greater visibility. Thus all flights were routed onto that runway for ILS approaches. 10. These conditions were typical for the Jacksonville area, as Jacksonville is located in the “fog belt.” Thus, pilots as well as air traffic controllers were aware of the nature of fog conditions there and their unpredictability. 11. Upon arrival at JAX, Worthington’s first radio contact with JAX air traffic control occurred approximately at 2031:13. At that time Worthington communicated with approach controller Ronald Singletary. 12. Because a pilot is under a duty to monitor his radio, Worthington should have heard all communications made from the point of his first contact, if not those made before. 13. At approximately 2031:38, Wor-thington contacted JAX approach control and requested a special VFR clearance into the airport. At this time he was approximately 13 miles from the airport and flying at about 2500 feet. This represents Wor-thington’s first acknowledgement of his realization that there was some kind of weather problem. 14. Immediately prior to Worthington’s communication, the approach controller gave another aircraft, Seneca 2213N, weather conditions. Although Singletary admitted at trial that the dissemination of weather information was an important part of his duties, at this time he was focusing on sequencing the aircraft for landing. The Seneca aircraft was to be included in the line-up that was eventually to include Worthington. In this initial communication with the Seneca aircraft, the approach controller directed it to expect an ILS approach into runway seven. Weather conditions were then given to the Seneca aircraft as “sky partially obscured, visibility one mile fog, wind calm, altimeter is three zero one eight.” It is clear that, given his request for special clearance, Worthington either heard the above communication with the Seneca aircraft or obtained weather information elsewhere. 15. It is likely that Worthington heard the same weather information as early as 2029:42, when Singletary informed U.S. Air 369 that the sky was partially obscured, visibility was one mile fog, the wind was calm, and the altimeter was three zero one eight. 16. The same weather information was then given to Worthington after he requested his special clearance. At approximately 2031:48, Worthington was told that “the weather is sky partially obscured, visibility one mile fog, wind calm, altimeter is three zero one eight.” Worthington acknowledged this information at 2032:02. 17. Immediately thereafter, Worthing-ton was directed to fly heading 190 degrees and to enter the control zone from the north. It was confirmed that Worthington was at that point about 13 miles northeast of the airport and flying at an altitude of 2500 feet. 18. In the meantime, Singletary had chosen the next three aircraft, in the order of their approach, to land on runway seven: the Seneca and a Conquest, which were two small aircraft, and an American Airlines jet. Singletary had not yet decided the fourth in line, although he indicated at trial that the choice was between Wor-thington and a small Cherokee aircraft. 19. No further communications were made directly to Worthington until approximately 2038:28, whereupon Worthington requested an IFR. This request leads the Court to conclude that Worthington had been monitoring his radio and heard the prior weather information, including the following: a. A communication with Cherokee N6834J who was attempting to land at Craig Airport in Jacksonville. That airport is located closer to the coast and the weather information given the Cherokee aircraft related that the fog conditions were worsening there. At 2035:23, Single-tary communicated to the Cherokee aircraft that Craig weather was “sky partially obscured, visibility one sixteenth fog, wind calm, altimeter is three zero one six.” Although relating the weather at Craig, this is the first indication of IFR conditions and fog at Vi6 of a mile in the Jacksonville area. b. A communication with Cherokee N6834J at approximately 2036:47 that the visibility at JAX was still one mile fog. A pilot of Worthington’s training who heard these two communications should conclude that the weather conditions were worsening from the coast inland toward JAX airport. c. At 2037:34, immediately after receiving a change in visibility from the local controller, Stump, Singletary made a general broadcast to all aircraft that tower visibility was lk of a mile. These general broadcasts are appropriate for the dissemination of weather information and an ac-knowledgement from the pilot is generally not expected. A pilot properly monitoring his radio would have heard this broadcast. d. At 2037:41, on the heels of Single-tary’s general broadcast, Stump communicated to Singletary a correction that the visibility was lk of a mile now. Rather than make a general broadcast, Singletary broadcasted the xk of a mile visibility to the three aircraft that he already had separated for landing. He felt that after already issuing a general broadcast, a more specific broadcast given to those sequenced to land would be appropriate. He broadcasted tower visibility at of a mile to Seneca N2213N at 2037:44; to Conquest N886BC at 2037:49; and to American Airlines 1367 at 2037:55. 20. Although the above broadcasts were not made to Worthington directly, based upon the evidence and the practice of pilots with experiences and abilities similar to Worthington, the Court concludes that Worthington was monitoring the frequency of the approach controller. Defendant submitted testimony at trial that the air traffic controllers can assume that their transmissions are heard at all times, even when no acknowledgements are made. Although the pilots must monitor their frequencies, this does not necessarily mean that all transmission will be heard. An air traffic controller cannot have such a luxury, nor can he assume that the transmission was heard just because he observed compliance by the pilot on the radar screen. However, in this case, three specific broadcasts of V* mile visibility were made. Worthington had to hear at least one of them. 21. At 2038:06 Singletary gave a RYR of more than 6000 to the American Airlines pilot. Under the Air Traffic Control Manual, an air traffic controller is required to give pilots the current RVR when the visibility decreases to one mile or less. Here, although visibility had decreased to one mile or less, Singletary failed to give the RYR to anyone but the American Airlines pilot who requested it. 22. Although Singletary acknowledged that he should have given the RVR to the pilots once the visibility reached one mile or less, this failure was not causally related to the accident that night. The information was given to the American Airlines pilot, and, as stated above, Worthington should have been monitoring his frequency. Based upon his later transmission seeking an IFR clearance, the Court concludes that Worthington heard the RVR as well as the visibility. Moreover, by the time Worthing-ton was ready to land, the current RVRs had been disseminated a number of times. 23. Thus, Worthington’s request at 2038:28 to “get an IFR in there” evidences that he heard the transmissions to the other aircraft and understood the worsening of the weather. 24. His request to proceed IFR was still appropriate although the visibility of Vt of a mile was below his personal mínimums for flying IFR. By monitoring his frequency and hearing the RVR to be at least 6000, Worthington knew that he was well within his 1800 RVR minimums. Because RVR controls over the visibility, Worthington acted well within the guidelines in attempting his continued landing IFR. 25. Singletary’s response to Worthing-ton’s request for an IFR, “four two lima I understand that, stand-by, cherokee three four jay, what is your intentions,” implies that Worthington could land IFR. The testimony revealed, however, that Singletary’s attention was directed to Cherokee 34J at that time because of his belief that the Cherokee was being operated by a student pilot. Radio exchanges between the Cherokee and the approach controller clearly indicate that the Cherokee pilot was inexperienced and in need of help. Wor-thington, on the other hand, gave no indication that he was in need of similar special attention. 26. Before returning his attention to Worthington, Singletary received a warning from Stump to “be ready for the missed approaches, it’s getting real bad.” This occurred at 2039:13. 27. At 2039:20, Worthington received clearance from Singletary. He was told to “just continue your present heading, you’re cleared to JAX International via radar vectors, maintain two thousand, expect ILS approach seven.” 28. Worthington acknowledged this at 2039:28 and stated that he was out of his current 2500 feet for the new 2000 foot clearance. 29. Singletary spent the next few minutes vectoring the three aircraft he set up for separation. Included in his management as number four was Worthington’s aircraft at 2043:05. Worthington was directed to turn right heading 260 degrees. 30. At 2044:34 Singletary informed Stump that Worthington would be the next to transfer to local control after the twin Cessna N886BC. 31. Another Vi mile tower visibility was broadcast to an Eastern Airlines airplane at 2045:41. 32. At 2046:58, Worthington was directed to turn left heading 180 degrees. At this point Singletary and Stump were working together to safely separate the aircraft and prepare for missed approaches. 33. At 2048:24, Singletary gave Wor-thington his position and vectored him onto the localizer to prepare for his ILS final approach. At this point, however, Wor-thington was two and a half miles from the DINNS outer marker. Under the Air Traffic Control Manual, Worthington should have been vectored onto the localizer at least three miles from DINNS. 34. The purpose of this three mile rule is to permit pilots enough time to safely operate the aircraft during the period of increased work load that occurs on final approach. A three mile spread allows the pilot sufficient time to get the aircraft stabilized on the localizer before he reaches the outer margin where the glidescope starts. 35. This technical violation of the rules did not affect Worthington, however, as he responded to the information with an “Okee doke, zero nine zero, cleared for the ILS ah four two lima.” This calm response, as heard by the Court on the communications tape, indicates that whatever the lateness of his vector did to increase his work load had no adverse effect on Wor-thington’s handling of his plane thereafter. Worthington was able to get established on the localizer right at the outer marker and he flew the glidescope properly. 36. At 2048:35, Singletary again communicated with Stump to inform him that Worthington was two miles outside the DINNS marker. Although it appears that Singletary intended to transfer Worthing-ton to Stump at this time, he apparently forgot to do so. 37. While Worthington was still on the approach control frequency, however, the Cherokee N6834J pilot was still trying to get a special VFR into the Craig airport. Although Singletary initially said that the pilot could give it a try, he later told the pilot to disregard that because Craig had Vis of a mile visibility. This Cherokee aircraft was permitted to land with a special VFR into the JAX airport, though, which permission was given at approximately 2050:52. 38. At 2051:36 another aircraft, Guard 60080, reported over the frequency that he had missed his approach and was heading back up to 2000 feet. It is not clear whether this missed approach occurred on runway seven or another runway. Nevertheless, it provided warning over the frequency that the weather was poor enough to cause a missed approach. Worthington was still on the approach control frequency at this time. 39. It was not until 2051:41 that local controller Stump told Singletary to “try four two lima again.” Stump was attempting to remind Singletary that Worthington was still on his frequency and needed to be turned over to local control. 40. At 2051:43, Singletary directed Wor-thington to transfer to the tower frequency. Although the transfer was late, Wor-thington’s response, “eighteen three, sorry about that,” indicates that he realized the transfer was late and seemed to take the blame. Worthington transferred to the local control frequency within eight seconds. 41. Plaintiff argues that the transfer of Worthington was untimely and, as a result, deprived Worthington of the benefit of several critical tower frequency transmissions relative to the status of the worsening surface weather conditions. If Worthington had been properly transferred, he would have heard communications on the local control frequency beginning at approximately 2050:00. Instead, his transfer did not take effect until 2051:53, when Wor-thington communicated with local control that he was now on the frequency. 42. Before and within that time frame, the air traffic controllers had knowledge of missed approaches and informed landing aircraft of the problem. Local controller Stump also had knowledge that the fog was around the decision height of at least two airplanes. The communications were as follows: a. At approximately 2039:01, Stump was informed by U.S. Air 369 that the fog was at its decision height on runway 13. b. At approximately 2043:00, Stump cleared Seneca 2213N to land ILS on runway 7 and gave the latest visibility of lU mile, touchdown RVR of 5000, midpoint RVR of 2200 and rollout RVR of 2400. Apparently, the Seneca missed its approach, because around 2044:57 it reported that it was “on a miss uh we didn’t get the glidescope that time.” No indication was given that this was due to the weather, however. c. When American Airlines 1367 was cleared to land at approximately 2045:42, the pilot was told that the wind was calm and the RVR at touchdown was 2600. The RVRs at midpoint and rollout were given as 1400. The pilot was also told that one ahead of him just missed his approach. Immediately thereafter Conquest 886BC was given the same weather information. d. The conversation between local control and approach control at approximately 2046:21 indicates that the air traffic controllers knew the weather conditions were worsening and were in fact preparing for the foreseeable missed approaches. At this time they discussed what to do with the American Airlines plane if it missed its approach. e. At 2047:47, the American Airlines plane reported that it was on the ground. The pilot gave some indication of the weather conditions when he was questioned whether he had cleared the runway at 2048:43. He responded that he was not quite clear but he made it to the red lights which he guessed led to the last right turn. f. Once the American Airlines plane was clear, Stump contacted the Conquest 886BC plane only to find that the plane missed its approach. This occurred between 2048:58 and 2049:55. Around 2050:01, about the time that Worthington should have been transferred, Stump contacted Singletary to inform him that the Conquest flight missed its approach. g. If Worthington had been turned over at the time plaintiff deems proper, he would have heard Stump obtain a PIREP from the Conquest pilot at approximately 2050:19. Stump was seeking a “tops” report so that he would know at what altitude pilots taking off would get out of the fog. When he asked the pilot his altitude at the time he got out of the fog, the Conquest pilot responded at 2050:26 that he got out of the fog at “about 250 feet.” h. At 2050:41, the American Airlines pilot interrupted and commented, “yeah, that stuff was real thin but it’s sitting right at CAT II minimums. I’d say we hit it maybe eight forty feet above CAT II.” i. Even Stump could not see the American Airlines pilot in the fog, as indicated at 2050:55. When he told the American Airlines pilot to let him know when he reached the gate because he couldn’t “even see where you’re at there.” j. The American Airlines pilot laughingly responded at 2050:57 that “we can’t either.” Seeing some blue lights the pilot noted that he would be at the gate in a few minutes. k. After he obtained the above PIREPs, Stump broadcast “cherokee four two lima you with me here” at 2051:31 in an attempt to see if Worthington had transferred yet. No response forthcoming, Stump told Sin-gletary at 2051:41 to “try four two lima again.” 43. Plaintiff contends that Worthing-ton’s failure to hear the actual PIREPs, in conjunction with the minimal report concerning the above missed approaches and weather given to him by Stump once he was on the local control frequency, lulled him into a false sense of security. Prior to the time Worthington would have been on Stump’s frequency, Stump was aware that the fog was at one pilot’s decision height on runway 13 and that another aircraft, the Seneca, missed an approach on runway seven. Moreover, his communication to Sin-gletary that they should get ready for the missed approaches evidenced that he realized the weather conditions were worsening. 44. Plaintiff argues Stump’s inadequate summary of the worsening weather, in addition to the PIREPs and two missed approaches on runway seven that could have been heard by Worthington first hand had he been timely transferred, led Worthing-ton to believe that he would be able to see the runway when he reached decision height. 45. On initial contact with Worthington at 2051:58, Stump relayed that Worthing-ton was cleared to land on runway seven. The weather report was limited, however, because the RYR was in update. Nevertheless, Stump informed Worthington that the RVR has “been down around 2000 feet or so.” 46. At 2052:08, Stump relayed the information he received from the American Airlines pilot and his knowledge concerning the prior missed approaches. He stated to Worthington, “a couple of them had missed the approach and an American jet landed, advised he broke out just about right at minimums.” 47. Stump failed to convey to Worthing-ton that the above minimums related to the American Airlines pilot were CAT II minimums, not Worthington’s minimums. CAT II minimums are at 100 feet, a full 100 feet below Worthington’s 200 foot minimum. Although the Court concedes that, in the abstract, this information was important and not relayed in an accurate fashion to Worthington, it does not find the information to be misleading. A pilot hearing about such a PIREP would not automatically assume that the air traffic controller was referring to his minimums. Rather, the natural assumption is to believe that the minimums referred to were the minimums of the reporting pilot. Thus, a pilot with Worthington’s experience should have known that the minimums of the American Airlines pilot could have been different from his personal minimums. 48. In fact, the 2052:08 broadcast from Stump to Worthington put him on full alert. Knowing that other planes had executed missed approaches and that an American jet had broke out “just about right at minimums” was enough to tell a capable and experienced pilot, such as Worthing-ton, that he would be facing serious trouble while landing. He acknowledged receiving this information when he was approximately one and one-half miles from the runway and at an altitude of about 500 feet. From that point on, his fate and that of his passengers depended upon his abilities as a pilot. Unfortunately, these failed him at a critical time. All of the second guessing in the world cannot alter this clear fact. 49. Plaintiff further points to the failure of Stump to disseminate the “tops” report obtained by the Conquest aircraft that, upon executing his missed approach, he got out of the fog at about 250 feet. Nor did he convey any “tops” interpretation that might have been given to the American Airlines pilot’s statement that the “stuff” was thin and that he “hit it” some distance above mínimums. Even if this “tops" information was used primarily to direct pilots who do execute missed approaches so that they could be turned accordingly, it would have nevertheless been helpful to a pilot in Worthington’s situation. In fact, it would have been helpful if Stump related that he could not even see the American Airlines pilot once he landed on the runway. If this information had been given to Worthington, it is clear that he would have had a better idea of when he would encounter the fog and what to expect on the runway. 50. Although this information would have been helpful, the Court does not find it to be pertinent. As the pilot, Worthing-ton’s own observations were superior to any information he could have obtained from other sources. A pilot in Worthing-ton’s position would be expected to know that fog presents a serious restriction to visibility and, knowing his decision height and of missed approaches in precisely the same conditions, he should be ready and able to execute a missed approach if the fog obscured his vision upon reaching decision height. When he reached his decision height, he alone had to decide whether to land or to abort the landing. At that point he had to rely on his visual observation. If he could not see the required visual references, he was obliged to execute a missed approach. He clearly had sufficient notice of the missed approaches of other aircraft at this particular runway to exercise the greatest of caution for the safety of his passengers and himself. Accordingly, the failure of the air traffic controllers to relay the specific “tops” height or even the minimums of the American Airlines jet had no impact on Worthington’s flight and cannot be considered a proximate cause of the crash. 51. Plaintiff also finds fault with the failure of both Singletary and Stump to disseminate a special weather observation received in the tower over the JAX National Weather Service electrowriter at 2051:00, approximately two and a half minutes before the crash. That observation established the existence of a measured broken ceiling at 100 feet with a visibility limited to Vi6 of a mile by fog. 52. Testimony at trial revealed that the data position usually retrieved the information from the electrowriter and disbursed it to the air traffic controllers. The evidence concerning who had the duty to receive this information was scanty at trial. No evidence was submitted concerning the negligence or lack thereof of the person working the data position for not immediately disseminating the information. Both air traffic controllers testified that they did not receive the weather update before the crash. 53. At the time the first weather information came in, which included the ceiling, Stump was in the midst of obtaining PI-REPs from the Conquest pilot that missed his approach and the American Airlines pilot. He finished his last discussion with the American Airlines pilot at approximately 2050:57 and checked his frequency at 2051:31 to see if Worthington had been transferred. Thus, once the second weather report came over the electrowriter, Stump was finished obtaining the PIREPs. 54. At the same time, before Worthing-ton was transferred, Singletary was handling the Seneca and Conquest planes that missed their approaches and also communicating with Stump regarding the approach of an Eastern jet. 55. Both air traffic controllers admitted in Court that they were not excessively busy the night of the crash. Even though both controllers were busy separating and clearing aircraft to land, they agreed that they had time to disseminate the information and gave no reason at trial, other than lack of knowledge, for failing to do so. 56. Plaintiff contends that if Worthing-ton was transferred to Stump’s frequency at the appropriate time, Stump would have had more time within which to disseminate the information about the broken ceiling and Vi6 mile visibility. This Court finds that such would not have occurred; Stump did not transmit this information to anyone within the time frame before the crash. 57. If Stump or Singletary had disseminated this information to Worthington, it might have made the reference to the American Airlines plane breaking out at mínimums clearer. Nevertheless, Wor-thington was in a position where he knew that the weather conditions were worsening and expected to see fog during his landing. The information regarding the missed approaches by two aircraft similar to his with only a commercial jet managing to land warned Worthington that, when he began his approach and descent, he would encounter fog and might not be able to see the runway. 58. Given the information over the radio regarding the weather at Craig, the missed approaches of other aircraft and the American Airlines plane breaking out at míni-mums, Worthington had sufficient information that the weather was bad and deteriorating. He was alerted, at the very outset of his communications with air traffic control, to the fact that parts of the sky were obscured, that fog prevailed and that visibility was down to one mile. He knew, within minutes, that the visibility decreased from the one mile, down to lk of a mile, and finally down to Vi of a mile. The impact of the deteriorating conditions were related to him through all of this information before he ever began his final approach. 59. Even without deteriorating weather, a pilot is always trained to prepare to execute a missed approach. Under 14 C.F.R. § 91.116, a pilot is required to execute a missed approach if, upon reaching decision height of 230 feet mean sea level, he did not have the runway environment in sight sufficiently for the execution of a safe landing. 60. Thus, with the weather conditions as they were, and with Worthington’s knowledge of the conditions, he should have been prepared to execute a missed approach, if, upon reaching decision height, he could not see the runway. The decision to make a missed approach does not occur only at or above decision height. In fact, the decision is available to the pilot all the way down. Of course, once a pilot reaches the point where he does not have visual reference to the runway, he must not continue further; he must execute a missed approach. 61. Moreover, in these weather conditions, it is better for the pilot to consider early on whether he will be able to land the aircraft. Once he reaches decision height, the actual decision time is very limited. At the most, a decision should be made within three seconds. According to the expert testimony, Worthington was flying for approximately 20 seconds after passing decision height until the aircraft impacted with the trees. Obviously, within this time frame he should have executed a missed approach. 62. Plaintiff submitted evidence tending to show that Worthington was in the process of executing a missed approach when he became spatially disoriented at decision height and flew into the trees where he crashed. In addition to oral expert testimony, plaintiff looked to the NTSB’s report regarding the crash. Based upon certain factual findings in the report, plaintiff concludes that Worthington’s aircraft was in a flight configuration at impact consistent with the figuration of a plane attempting a missed approach. 63. Supporting plaintiff’s conclusion is evidence that the throttle was in the full open position, that the propeller was operating at high RPM, that the wing flaps were retracted, and that the aircraft’s pitch and roll bank indicators were near zero. 64. Contrary interpretations of the same evidence were offered by defendant. The mere fact that the throttle was in full open position does not indicate that the aircraft was operating at the increased speed necessary to attempt a missed approach. There was evidence that the aircraft was operating at a speed above that recommended by a manufacturer for a proper landing the entire time plaintiff was on the glidescope. Thus, the high RPM of the propeller is not necessarily indicative of an attempted missed approach. 65. There is further evidence that the nose was in a down position. However, this was at a slight, 5-10 degree, downward angle, which seems to have made little difference, because the general observation by the National Transportation Safety Board was that the aircraft crashed into forty foot trees while it was at an essentially straight and level attitude. 66. Although the Court recognizes these alternative interpretations, it does not necessarily follow that the Court supports defendant’s conclusion that Wor-thington intentionally descended through decision height all the way to the point of impact without fully observing the runway environment. Even plaintiff contends that Worthington would have in all probability successfully landed the aircraft had he not become spatially disoriented at or near decision height. In fact, it is this alleged spatial disorientation which is said to have caused Worthington to deviate from his flight course and turn left into the trees. Had he not deviated, he would have either executed a missed approach without error or he would have landed or crashed the aircraft into the runway, perhaps without fatal damage. 67. Accordingly, the Court deems it unnecessary to its decision herein to determine whether or not Worthington was attempting to execute a missed approach. 68. The spatial disorientation question, on the other hand, is a crucial part of plaintiff’s case. Plaintiff reasons that Worthington’s failed missed approach was caused by spatial disorientation which was secondarily caused by the misinformation and lack of information given to Worthing-ton by the air traffic controllers as discussed herein. 69. In this instance, Worthington penetrated the top of the fog less than ten seconds prior to reaching decision height. His decision height was approximately 200 feet and the tops of the fog were somewhere between 250 and 300 feet mean sea level. Prior to entering the fog, Worthing-ton was flying in clear conditions and had been flying a perfectly controlled precision ILS approach into runway seven. 70. Plaintiffs contentions concerning spatial disorientation include the following: a. Inadequate information given to Worthington concerning the weather that he could expect to find on his landing. This is alleged to have given Worthington a false impression that he was going to encounter visual conditions at decision height which did not occur. b. Failure to give Worthington the current weather information of the 100 foot broken ceiling and Vis mile visibility, both of which were below Worthington’s landing mínimums of 200 feet and Vz mile visibility. Plaintiff contends that if such information were given as required, Worthington would have executed a missed approach before he even entered the fog layer. At that point, both the ceiling and the visibility were below his mínimums. c. Turning Worthington onto the outer marker too rapidly and failing to give Wor-thington more space outside the outer marker to properly line up his approach. This improper vectoring of the aircraft is alleged to have increased Worthington’s workload. d.A late transfer of Worthington from approach to local control at approximately his decision height. This factor is similarly alleged to have increased Worthington’s workload. If he had been transferred earlier, he would have received pertinent weather information via PIREPs and would also have had more time in which to assess his situation before being forced to make a decision concerning a missed approach. 71. Although determined to be a plausible alternative by the expert witnesses, the Court finds this alleged spatial disorientation to be too speculative to base any fault on defendant on this theory. Viewing all of the factors regarding spatial disorientation in their totality, the Court finds that any finding that the deviation of the aircraft was due to Worthington’s spatial disorientation caused by an increased work load and false sense of the impending weather is speculative for the following reasons: a. First of all, spatial disorientation is a common occurrence among pilots, one for which they are trained to be prepared. Although spatial disorientation could occur from the movement of the pilot’s head as he looks outside his window for the appropriate visual clues and then back to his instruments, pilots recognize that they must be proficient in landing procedures as well as anticipate the possibility of illusions during approaches in adverse weather conditions. Therefore, they are generally prepared for the traditional illusions that may occur during bad weather and know how to counteract them. This is clearly one of the responsibilities of a pilot. Traditionally, reliance is placed on one’s instruments. b. Furthermore, until reaching decision height, Worthington had flown a perfectly controlled precision ILS approach. Thus, the failure to timely vector the aircraft apparently had no effect on Worthington’s work load. c. Similarly, but for missing some pertinent weather information, the failure to timely transfer Worthington to the local controller seemed to have no effect on Worthington’s work load. He appeared calm on all communications with both the local and approach controller. In fact, he seemed to think that he was at fault for not being on the local control frequency when he was told to switch. Further, the actual act of transferring could not have added much to his work load: all it takes is a flip of a switch to transfer frequencies. d. Moreover, once transferred, Wor-thington still had over two miles to fly before reaching the runway. Although he was transferred at approximately 800 feet, he had adequate time to assess his situation and prepare for the likelihood that he would have to execute a missed approach. As already mentioned, he did not give any indication that he was confused or concerned. With his extensive background and especially with his familiarity with JAX, if he felt in any way threatened by the late switch over he would have informed the controller and received other instructions. There is no specific evidence that he had a mindset to land the plane despite the adverse weather conditions. The Court finds that he acted in a manner evidencing that he was not worried. e. Thus, as discussed above, the Court is left only with the inadequacy of the weather information as a cause of the spatial disorientation. Even if we assume, ar-guendo, that Worthington became spatially disoriented as plaintiff contends, the Court concludes that the failure of the air traffic controllers to properly disseminate the current weather information was not the cause of such disorientation. 72. Worthington had available to him pertinent weather information which should have made him aware of the rapidly declining weather conditions. He knew that the prevailing visibility was at the most lk of a mile, which is below his minimums. However, he also knew that the current RVRs were around 2000, which was within his mínimums. Because RVRs predominate over visibility, he acted properly in continuing his descent to decision height and not turning around or executing a missed approach before entering the fog. Although the air traffic controllers failed to give the latest visibility and the broken ceiling of 100 feet, Wor