Full opinion text
J. THOMAS GREENE, District Judge. This matter came on for a consolidated trial before the court without a jury on March 1 through March 19, 1993. Joel M. Allred and Kimberly Allred represented the plaintiffs, Jeannine A. Webb, et al, and Monica H. Riding, et al, in Civil No. 90-C-625G (Webb, Riding cases). Moses Lebovits represented the plaintiffs, Saundra A. Charles-worth, et al, in Civil No. 90-C-826J (Charlesworth case). Luke B. Marsh of the U.S. Department of Justice and Mark Baylen of the Federal Aviation Administration represented the defendant United States of America in all of the consolidated cases. The court heard live witness testimony, and received summaries of non-live witness testimony as well as deposition testimony. The parties offered numerous exhibits into evidence. On March 19, 1993, the court heard final arguments of counsel, after which the court permitted the filing of post tidal memorandums and other submissions of counsel. Now having reviewed the evidence and legal memorandums, the court makes and enters the following: FINDINGS OF FACT I. BACKGROUND 1. On Friday, February 5, 1988, at approximately 3:00 p.m. Mountain Standard Time (MST), a Piper PA-28-181 Archer aircraft N8471F, while on a cross-country flight, crashed in Chaves County, New Mexico, less than seven nautical miles from the Roswell Industrial Air Center (“Roswell Airport”). 2. The private pilot, Alan R. Charles-worth (“Charlesworth”), along with his two passengers, Lynn M. Webb and Richard A. Riding, were killed. 3. The Piper Archer aircraft N8471F, was leased by Charlesworth, from Executive Aircraft International, Inc., a Utah corporation doing business at the Salt Lake City International Airport (“Salt Lake Airport”). 4. The flight originated at the Salt Lake Airport on February 5,1988, at approximately 08:30 a.m. MST. 5. Pilot Charlesworth was authorized to fly under visual conditions, and had filed a visual flight rules (“VFR”) flight plan. Charlesworth was a relatively inexperienced pilot. He had obtained his pilot’s license a few months before the crash, and had accumulated 122 total hours piloting. He was not an “instrumented rated” pilot. 6. Aircraft operations are divided into two categories: flights conducted under Visual Flight Rules (VFR), and flights conducted under Instrument Flight Rules (IFR). These terms, IFR and VFR, are accepted aviation terminology, and are customarily used by members of the aviation community. Visual Flight Rules are found at 14 C.F.R. §§ 91.151 through 91.159. Instrument Flight Rules are found at 14 C.F.R. §§ 91.-167 through 91.193. In order to operate under Instrument Flight Rules, a pilot must undergo additional training and possess a current instrument rating. 14 C.F.R. §§ 61.-3(e) and 61.65. 7. In addition to describing the two types of aircraft operations, the acronyms IFR and VFR are also used to describe general weather conditions. VFR weather requires mínimums of three miles horizontal visibility and a cloud ceiling of 1,000 feet above the ground. IFR weather is weather in which the VFR mínimums are not met. The terms IFR and VFR may also be used to describe the instrument flying capability of an aircraft and/or the pilot. An aircraft equipped to fly in IFR weather conditions is said to be “IFR equipped.” A pilot who is qualified to fly in IFR weather conditions is said to be “IFR rated.” 8. An airport’s “control zone” is usually defined as the area included in a five mile radius surrounding the airport, from the ground up to 14,500 feet. A pilot may not legally execute a VFR flight within the control zone unless minimum VFR weather conditions are present. Minimum VFR conditions outside a control zone are different than minimum VFR conditions inside a control zone. Inside a control zone, the pilot’s minimum VFR conditions are the same as those used by meteorologists to describe minimum VFR weather conditions: at least three miles prevailing horizontal visibility and a cloud ceiling of at least 1000 feet. 9. When IFR weather conditions prevail at an airport (less than three miles horizontal visibility and/or a cloud ceiling of less than 1000 feet), pilots flying under a VFR flight plan may not enter an airport’s control zone unless the pilot requests and obtains a “Special VFR” clearance. To obtain a Special VFR clearance, the reported prevailing horizontal visibility must be at least 1 mile. 14 C.F.R. § 91.157(d); ATOM ¶ 7-46. . Once such a clearance is issued, the pilot has the duty to remain clear of clouds. 10. On February 4 and 5, 1988, prior to the crash, Pilot Charlesworth contacted Air Traffic Control Flight Service specialists (“FSS specialists”) at the Cedar City Flight Service Station (“Cedar City FSS”), located at Cedar City, Utah, and at the Roswell Flight Service Station (“Roswell FSS”), located at Roswell, New Mexico. These FSS specialists are employees of the Federal Aviation Administration (“FAA”). The pilot also contacted Air Traffic Controllers, also employed by the FAA, at Salt Lake City, Utah, Albuquerque, New Mexico, and Roswell, New Mexico. Plaintiffs allege that the FAA employees who spoke with the pilot before the crash were negligent in that they provided the pilot misleading and inaccurate information concerning the weather and airport conditions in the Roswell area on the afternoon of February 5, 1988. Plaintiffs allege that this FAA negligence was the sole proximate cause of the crash. Defendant alleges that the crash was Pilot Charlesworth’s sole responsibility. 11. A Flight Service Station (“FSS”) is an FAA facility in which FSS specialists provide various services to pilots. These services include providing weather briefings and other pertinent weather and aeronautical information prior to and during flight, and receiving and processing flight plans. In fulfilling their duties to pilot’s and passengers, FSS specialists must become familiar with the procedures and requirements of the Flight Services Manual, FAA Order 7110.10 (“FSM”). 12. In providing weather briefings, FSS specialists rely primarily on forecast weather reports, including area forecasts, terminal forecasts, and winds aloft forecasts. They also utilize hourly surface weather observations taken at designated reporting points where there is a certificated weather observer. Normally, FSS specialists also have access to pictorial charts such as surface analysis charts, radar summary charts, and weather depiction charts. Pilots may obtain a preflight briefing by visiting a FSS, or by telephone conversation with a FSS specialist. 13. Ordinarily FSS specialists obtain weather information and aeronautical data from a computer system called LABS (Leased Service A/B system). The LABS Weather Message Switching Center is located at Kansas City, Missouri. This switching facility serves as the gateway for FSS specialists to obtain weather information for pilots. The FSS equipment used by the specialists to obtain and send weather information to and from the switching center consists of a keyboard and a video screen. If available, the weather requested by the specialist will appear on the specialists’ video screen. If there is a circuit problem or difficulty with the computers, a back-up procedure is provided as set forth in the FSM ¶3-5. 14. FAA facilities can also access weather information prepared by the National Weather Service (“NWS”), at Roswell, New Mexico, and at other Flight Service Stations. The NWS communications system is a system separate from the FAA’s' communications system. NWS information also may be obtained through a switching center in Kansas City. The NWS has all of the weather data required to brief pilots who cannot be briefed “due to circuit problems” at an FSS, although NWS offices do not have information regarding airport conditions, and do not accept flight plans. 15. Before departure, a pilot may contact an FSS specialist to obtain weather briefings. Weather briefings generally fall into three types of categories: (a) standard briefings; (b) outlook briefings; and (c) abbreviated briefings. (a) Standard Briefing The standard briefing is a complete briefing of weather and aeronautical information. The contents of a standard briefing are set forth in the FSM ¶ 3-10 and the Airmen’s Information Manual (“AIM”) ¶ 502b. After obtaining or receiving from the phot certain information concerning the proposed flight, the FSS specialist will brief the pilot by translating, interpreting, and summarizing available information. This information will include information on weather systems affecting the flight, current weather conditions, en route and destination forecasts, upper winds, Notice to Airmen (“NOTAM’s”), ATC delays, and requests for Pilot Weather Reports (“PIREP’s”) while in flight. If possible, the briefer will tell the pilot, in some logical sequence, what he can expect to find at departure, while en route, and at the destination airport. If the standard briefing is given within two hours of the proposed flight, or upon the pilot’s request, the FSS specialist will also provide the pilot with current conditions applicable to the flight. If the pilot can go VFR only, and if sky conditions or visibility, would, in the specialist’s judgment, make VFR flight doubtful, the specialist will give the pilot a “VNR” recommendation (“VFR Flight Not Recommended”). (b) Outlook Briefing An outlook briefing is provided when the proposed flight is six or more hours from the time of the briefing. It is not a standard briefing and is limited in its scope. The contents of an outlook briefing are set forth in the FSM ¶ 3-12. Outlook briefings do not include current conditions, but are limited to forecast data. FSM t3-12(a). There are two types of outlook briefings depending whether the proposed flight is scheduled during or beyond the valid time of available forecast data. If the flight is scheduled during the valid time of the available forecast data, the FSS specialist will inform the pilot of any forecasted adverse conditions, and will give a brief synopsis of the weather applicable to the proposed flight — the en route forecast, the destination forecast, and other information specifically requested by the pilot. FSM ¶ 3-12(a). If the proposed flight is scheduled beyond the valid time of the available forecast data, the FSS specialist will limit the brief to a “general outlook,” and will advise the pilot when complete forecast information will be available. At the pilot’s request, the FSS specialist will transfer the call to, or provide the telephone number of, the appropriate NWS office. FSM ¶3-120>). During any outlook briefing the FSS specialist may provide the pilot with a VNR recommendation if, in the specialist’s judgment, weather conditions are forecast which would make VFR flight doubtful. (c) Abbreviated Briefing An abbreviated briefing is provided when a pilot asks for specific information, or when a pilot seeks to update or supplement a previous briefing. The contents of an abbreviated briefing are found in the FSM ¶ 3-11 and the AIM ¶ 502e. If the pilot requests specific information, the FSS specialist will provide that information, and will inform the pilot of the existence of any adverse conditions, reported or forecast, which pertain to the information requested. The specialist will provide details of these conditions if the pilot so requests. If the pilot requests an update to a previous briefing, the specialist will ask for, or the pilot will provide, the time the previous briefing was received and other appropriate background material. The specialist will limit the update information, to the extent possible, to appreciable changes in the meteorological and aeronautical conditions since the previous briefing. As with the other pre-flight briefings, specialists will provide a VNR recommendation when, in the specialist’s judgment, conditions would make VFR flight doubtful. 16. While obtaining a pre-flight briefing, pilots anticipating a VFR flight will file with the specialist a VFR flight plan. This filing is usually done orally. The flight plan contains information such as the pilot’s name, telephone number, aircraft identification number, type, airspeed, departure airport and time, altitude of flight, route of flight, destination, estimated time en route, and remarks. The FSS specialist (usually at the Pre-flight Position) receiving this information from the pilot completes and records the information on an FAA flight plan form (Form 7233-1). After it is completed, the flight plan form is forwarded to the Inflight Position in the FSS where it is placed in a “suspense file” until the pilot radios the Inflight Position to “open” the flight plan upon his departure. After the pilot “opens” the flight plan, the FSS specialist records the departure time on'the flight plan form, and then forwards the flight plan form to the Flight Data Position. Using the information on the flight plan form, the FSS specialist (usually at the Flight Data Position) then sends a “flight notification message” to the destination airport, informing the FSS specialist at or near the destination airport of the aircraft identification number, aircraft type, destination, estimated time of arrival and remarks. 17. Under certain circumstances, FSS specialists and air traffic controllers are required to solicit pilot reports (“PIREP’s”), at least one per hour, if possible, to obtain information on significant weather phenomena such as thunderstorms, tornadoes, hail, icing, whiteouts, turbulence and wind sheer that would not ordinarily be known by the pilot through other means. When giving PI-REP’s, pilots state their position and altitude in order to provide relevancy to other pilots. 18. The FSM also describes an FSS specialist’s duties during an in-flight “Routine Radio Contact.” The rules applicable to such radio contacts are more fully described in Finding of Fact No. 78, infra. II. FIRST CONTACT: FEBRUARY 4, 1988 AT 1:04 P.M. (MST) (OUTLOOK BRIEFING) 19. Pilot Charlesworth first called the FSS at Cedar City, Utah, on February 4, 1988, at 1:04 p.m. The call was taken by FSS Specialist James O. Walstad. The pilot introduced himself and stated that he wanted a “general outlook of what it’s gunna be like.” See Appendix A, at 2004:38. 20. Since this first contact occurred well over six hours before the planned flight, the briefing constituted an outlook briefing. The pilot originally planned on leaving Salt Lake City on February 5, 1988, at about 5:30 a.m. MST. The time of departure of this proposed flight was beyond the valid time of much but not all of the forecast material available at the time of the call. The Area Forecast in effect at the time of the contact would expire at 11:00 p.m. on February 4, and the Terminal Forecast would.expire at 12:00 noon on February 5. 21. The Terminal Forecast extended to the time, the pilot originally planned to arrive in Roswell, 12:00 noon on February 5. However, it did not extend to the time the plane actually arrived in Roswell. Due to the fog and haze conditions which were forecast for Salt Lake City in the early morning of February 5, Specialist Walstad advised the pilot to delay the flight until later in the morning. 22. This particular briefing was regarded by Specialist Walstad as a general outlook briefing, given beyond the valid time of the available forecast material, and governed by FSM ¶ 3-12b: When the proposed flight is scheduled to be conducted beyond the valid time of the available forecast material, provide a general outlook and then advise the pilot when complete forecast data will be available for the proposed flight. Upon request, transfer the call to, or furnish the telephone number of the appropriate NWS office. FSM ¶ 3-12b. 23. Specialist Walstad apparently proceeded on the assumption that Pilot Charles-worth would follow his advice to delay departing from Salt Lake City as planned at 5:30 a.m. He therefore did not give to the pilot the Roswell Terminal Forecast information then in his possession. 24. Specialist Walstad gave the pilot a “general outlook” and told the pilot to call back the next morning for more information. Walstad relied on WSI charts, the Salt Lake City Terminal Forecast, and the Salt Lake City Area Forecast, which expired on 11:00 p.m. that same day (February 4). He had available to him the Roswell Terminal Forecast, expiring at 12:00 noon on February 5, but did not use it. Specialist Walstad did not provide the pilot with current weather conditions, and the pilot did not ask for them. The pilot did not ask for the telephone number of the NWS office. 25. Specialist Walstad informed the pilot that a high pressure system would move over the Rockies during the night affecting all routes to the southeast, including the Roswell area, and stated that “during the day time [tomorrow], they are forecast unlimited VFR along that route and at the destination,” and added that “it looks as [a] general idea the later in the day you start the better the weather will be for yaSee Appendix A, at 2005:34-2005:57. Finally, Walstad informed the pilot that “it looks good looks very flyable but you’ll have to check "in the morning for more detail.” Id. at 2006:30. ' 26. With regard to the weather in Salt Láke City and the route of flight up' to the area immediately surrounding Roswell, Walstad’s “general outlook” forecast was 'accurate based upon the materials Walstad relied upon and actual weather conditions up to 12:00 noon on February 5. As to the immediate Roswell area, the weather charts and forecasts used by Walstad did not predict to the fullest extent the severe weather conditions which actually eristed on the afternoon of February 5, 1988. The NWS weather charts used by Walstad did predict VFR weather en route to Roswell and MVFR to VFR weather in Roswell during the mid-afternoon of February 5. 27. The current conditions at the Roswell Airport during the 1:04 p.m. contact in fact were IFR. The sky at Roswell was 100% overcast and 100% obscured. Because of snow showers, ground fog, and clouds, the surface visibility was one-half mile. These conditions did not change, in any substantial way, over the next twenty-four hours. III. SECOND CONTACT: FEBRUARY 5, 1988 AT 4:33 A.M. (MST) (COMPUTER DOWN — INCOMPLETE BRIEFING) 28. Pilot Charlesworth called the Cedar City FSS back at 4:33 a.m. on February 5 and requested a standard weather briefing for the flight from Salt Lake City to Roswell." Specialist Walstad answered the phone. The station’s computerized weather information system was down, and had been inoperable for most of the night. Without access to the information in the computer, Walstad was unable to provide the pilot with a standard weather briefing. 29. The FSM directs the FSS specialist to take the following steps when the specialist is unable to obtain information from the. weather computer: (1) inform the pilot of the problem; , (2) brief the pilot to the extent possible; and (3) as appropriate, provide the pilot with the telephone number of another FSS, a NWS office, or advise the pilot of the time the data is expected to be available. FSM ¶ 3-5. 30. Walstad informed the pilot several times during this contact that the computer system was down, and that without it he could not provide the pilot with a full weather briefing. 31. Pilot Charlesworth acknowledged this fact and told Walstad that he had called the FSS the day before and had received “a pretty good brief.” See Appendix B, at 1136:40-1136:43. 32. After informing the pilot of the problem, Walstad told the pilot that he could only provide him with “a very general weather brief but not the current weather along that route.” Id. at 1134:26. Walstad further informed the pilot that he would have to work from a weather depiction chart which he had received at about 3:00 a.m., an hour and a half before the contact. Weather depiction charts are “snapshots” of the weather and do not include forecasted weather. Further, they do not include surface weather observations from Roswell. 33. Based on the weather depiction charts, Walstad told the pilot that Salt Lake City would be experiencing fog and haze and low visibilities imtil 10:00 a.m., after which it would see visibilities in excess of five miles. Because of “a little pocket of fog and haze” between Grand Junction, Colorado, and Farmington, New Mexico, Walstad advised the pilot to “drop down to central Arizona and then straight east to Roswell,” and that he should “check the weather as you go along and see just how far you can go.” Appendix B at 1134:34. Specialist Walstad also said that the Farmington area would see greater than five miles horizontal visibility after 1:00 p.m. Id. at 1134:34. 34. Based on the weather depiction charts he was using, Walstad indicated that Roswell was experiencing some inclement weather. He reported that “they do have some fog conditions in the Roswell area but not in Albuquerque or Santa Fe so you can check the weather as you go along and see just how far you can go.” Id. at 1134:34. He explained that the forecast for the Roswell area “says slow but steady improvement all day visibility five [miles] or greater by noon.... ” Id. 35. Notwithstanding the fact that he had been advised the day before not to leave until later in the morning, Phot Charlesworth reported that he planned on leaving Salt Lake City at 5:30 a.m. Walstad advised the pilot, as he had the day before, that “you don’t want to leave at the crack uh dawn but you can leave late morning and it will look good fairly much all the way across.” Id. at 1135:55. 36. Walstad’s weather brief was limited to “very general” information.. The forecast as presented neither painted a “rosy” picture of the Roswell forecast nor did it indicate the severity of the weather which actually existed in Roswell on February 5. . 37. If Specialist Walstad had access to the current area and terminal forecasts he would have received the following forecast information and presumably would have made such available to Pilot Charlesworth: the Area Forecast in effect at the time of the contact called for Marginal VFR weather in Southeastern New Mexico until 3:00 p.m. on the 5th; the Roswell Terminal Forecast predicted VFR conditions at 3:00 p.m. the actual time.of the plane’s arrival in Roswell, but IFR conditions before that time; the NWS prognostic charts predicted VFR weather conditions en route to Roswell, and Marginal VFR or VFR conditions at Roswell for the afternoon of the 5th. 38. The actual weather in the Roswell area on February 5 did not fully comport with the weather depiction charts, or with official NWS forecasts. Indeed, IFR conditions, with the accompanying snow and fog so dangerous to VFR pilots, prevailed for most of the day on the 5th. 39. Because the computer system was down, Specialist Walstad.was not able to provide current Roswell conditions. At the time of the 4:33 a.m. contact, Roswell was experiencing an unseasonably severe snow storm. There was approximately ten inches of snow on the ground, the temperature was below freezing, the sky was 100% overcast and 100% obscured, and the horizontal visibility at the Roswell airport was one-half mile. At trial, Walstad testified that if he had been able to access the current Roswell conditions on the computer, he would have given the pilot a VNR advisory. 40. Notwithstanding the procedures set forth in FSM ¶ 3-5, Walstad did not furnish' Charlesworth with the number of another FSS, or the number of an NWS office. Specialist Walstad did not know when the weather data would be available at the Cedar City FSS. 41. In addition to obtaining this general weather brief, the pilot took the opportunity to file his VFR flight plan. The pilot provided his name, and set forth his planned route of flight, including a fuel stop in Farmington. Specialist Walstad again informed him of possible fog in Farmington, and the" pilot responded that if he could not make it to Farmington, his alternative refueling stop would be Albuquerque. Walstad acknowledged the change, and instructed the pilot to call after he was airborne to open his flight plan, and to provide PIREP’s during the flight. See Appendix B, at 1136:30-1139:52. 42. In accordance with FAA procedure, Walstad completed the flight plan form (FAA Form 7233-1) with the information he received from the pilot. The FSM gives the following instruction to FSS specialists'with regard to filling out a Form 7233-1 after a pre-flight briefing: Check the “pilot briefing” block, fill in “specialist initials” and “time started.” As applicable, enter “AB” (Abbreviated Briefing), “OTLK” (Outlook Briefing), and/or check the “VNR” block [“VFR not recommended” advisory]. FSM § 3-7b. Walstad checked the “pilot briefing” block, but did not give any indication of what type of briefing he had provided the pilot. Plaintiffs argue that in lieu of entering “AB” for abbreviated briefing,'or “OTLK” for outlook briefing, neither of which was applicable to this contact, Walstad should have entered “IC” for incomplete briefing, or otherwise should have given some indication on the form that the pilot had not been given complete information. Plaintiffs’ argument is supported by the testimony of FSS Specialist Merlin C. Mackay. Mackay testified that if he had filled out the flight plan form, he would have indicated on the form, by marking “I.C.” or by some other method, that he had not been able to give the pilot complete weather information. IV. TRANSFER OF RESPONSIBILITY AT THE CEDAR CITY FSS. 43. FSS specialists have a procedure to transfer responsibility for their particular position when they are relieved by another specialist so as to ensure that pertinent information is passed on from shift to shift. FSM ¶ l-33a. The FAA procedure does not require a specialist coming off his or her shift to brief all relieving specialists, but only requires the relieved specialist to brief his or her replacement. The computer outage is the type of information, which should have been passed on to a relieving specialist. FSM ¶ l-33f(2)(a). 44. Neither Specialist Poulson nor Specialist Mackay relieved Specialist Walstad on the morning of February 5. However, neither Poulson nor Mackay were informed of the computer problems the night before. Accordingly, Poulson and Mackay did not know that pilots had been receiving incomplete weather briefings during the night preceding their shifts. 45. Each FSS is required to use and review Form 7230-4, Daily Record of Operation. The purpose of this form is to record and describe significant conditions within the facility. The extended inability to access important weather information is a significant condition. The computer outage on the night of February 4 and the early morning of February 5 was not recorded on the Cedar City FSS’s Form 723(M. The responsibility for this task is usually that of the eontrollerin-eharge. Had this information been included on Form 723(M, later shifts of Cedar City FSS specialists would have been aware that pilots had been receiving incomplete weather briefings' during the night. V. THIRD CONTACT: FEBRUARY 5, 1988 AT 7:17 A.M. (MST) (ABBREVIATED BRIEFING — CHARACTERIZED AS AN UPDATE BRIEFING) 46. Pilot Charlesworth called the FSS at Cedar City for a third time, at 7:17 a.m. on February 5, and talked with FSS Specialist Burton C. Poulson. Pilot Charlesworth said, “I need to get a weather briefing uh for this morning Salt Lake International to uh Roswell New Mexico.” Appendix C, at 1417:52. 47. Apparently, Specialist Poulson was not sure exactly what type of weather briefing the pilot requested. Under such circumstances, the FSM gives the following instruction: When it is not clear initially which type briefing is desired, provide the first one or two items requested, and then ask the pilot, “Would you like a standard briefing?” If a standard briefing is requested, conduct the briefing in accordance with ¶ 3-10. If the pilot does not desire a standard briefing conduct the briefing in accordance with ¶ 3-11 [abbreviated briefing] or ¶3-12 [outlook briefing]. FSM ¶ 3-6. 48. Poulson followed the procedure outlined in FSM ¶ 3-6. He first told the pilot that VFR was not recommended from Salt Lake. Second, he asked the pilot if he wanted a full briefing: “let me get ya the rest of the weather if you’d like.... what time were ya planin on leaven?” Appendix C, at 1418:11. 49. Pilot Charlesworth responded as follows: Well uh I called earlier today and I got flight uh briefing and they said that as soon as we got out ah Salt Lake Valley that it be ya know quite nice flying but we’re sitten out here at the airport just wondering how much longer you anticipate to be fogged in. Id. at 1418:36. 50. Specialist Poulson responded to the pilot’s request as follows: Ok uh uh your right after you get out of Salt Lake looks like pretty good uh well actually south of Provo looks like pretty good uh weather just some scattered clouds or clear skies most for most of the area and uh lets see the terminal forecast for Salt Lake City calling for uh from now up until uh eighteen hundred zulu which would be eleven o clock this morning calling for sky partially obscured ceilings six hundred broken one mile fog and smoke occasional sky partially obscured two miles fog and smoke with a chance ceiling three hundred sky obscured one half of a mile light snow fog and smoke and then after eighteen hundred zulu uh improving to sky partially obscured three miles fog and smoke and uh it should remain that way the rest of the day so ... [i]t would be eleven o clock uh improving or still marginal VFR but it’ll but be above IFR mini-ma anyway. Appendix C, at 1418:52-1419:57. 51. At this time, Pilot Charlesworth knew or should have known that he had not yet received a full weather briefing but had received only general, incomplete weather information. 52. The records available to Poulson about the flight in question did not indicate that the pilot had not received a full weather briefing or that he had received only ineom-r píete information. 53. The pilot’s request reasonably could have been interpreted either as an abbreviated briefing for specific information, or as an abbreviated briefing for update information, or both. Specialist Poulson testified at trial that he interpreted the pilot’s request as one for an abbreviated briefing for specific information, specifically the weather at the Salt Lake Airport. However, Specialist Poulson also apparently regarded the request as calling for an update briefing because that is how he characterized the briefing on the flight plan form (FAA Form 7233-1). A review of the pilot’s request, Specialist Poulson’s response, and the Form 7233-1 indicates that Poulson interpreted the pilot’s request as one for specific information, as well as one for update information. 54. During an abbreviated briefing for specific information, FSS specialists are instructed to respond to the pilot’s question and inform the pilot of the existence of any adverse conditions. FSM ¶ 3-lla. Details of these adverse conditions are to be given at the pilot’s request. Id. Poulson responded fully to the pilot’s question regarding when he could leave Salt Lake City. Poulson also informed the pilot of the existence of adverse conditions in the Salt Lake Valley. 55. During an abbreviated briefing for update information, FSS specialists are instructed to obtain from the pilot the time of the previous briefing and other background information. FSM ¶ 3-llb. After obtaining this information, the FSS specialist is then instructed to limit the briefing, to the extent possible, to appreciable changes in meteorological and aeronautical conditions since the previous briefing. Id. 56. During an abbreviated briefing for update information, pilots are instructed to provide the briefer with necessary background information, the time of the previous briefing, and the source of the previous briefing. AIM ¶ 502c. 57. Specialist Poulson failed to obtain, and the pilot failed to provide, adequate background information, the time of the previous briefing, and the source of the previous briefing. As a result, Poulson did not know that the pilot’s previous briefing was incompíete due to the failure of the weather computer. 58. Poulson provided the pilot with the following update information as to the weather along the route of flight: OK uh uh your right after you get out of Salt Lake looks like pretty good uh well actually south of Provo looks like pretty good uh weather just some scattered clouds or clear skies most for most of the area.... Id. at 1418:52. 59. The forecast information available to Poulson at 7:17 a.m. called for VFR conditions in the Roswell area by mid-afternoon on February 5. The Area Forecast for Southeastern New Mexico called for IFR conditions becoming VFR around 2:00 p.m. The Roswell Terminal Forecast called for VFR weather during mid-afternoon. The NWS Prognostic Charts called for VFR weather en route, and MVFR to VFR weather in the Roswell area. 60. Poulson’s update information was generally accurate with regard to the route of flight up to the immediate Roswell area. However, with regard to the immediate Roswell area, Poulson’s update information failed to sufficiently apprise the phot of the meteorological and aeronautical conditions which the pilot had not received during the 4:33 a.m. contact. 61. After completing the 7:17 a.m. contact, Specialist Poulson indicated on the flight plan form (FAA Form 7233-1) that he had given the pilot an “update” briefing. In so doing, Poulson passed on to the FSS specialist who relieved him that he had provided an “update” briefing to the pilot, thus certifying that he had inquired as to the time the previous briefing had been received, that other appropriate background material had been inquired into, and that he had advised the pilot of changes in meteorological and aeronautical conditions including those en route to Roswell and at the Roswell airport. 62. In addition, Poulson failed to check the VNR block on the Form 7233-1. FSM ¶ 3-7b. 63. Specialist Poulson did not provide the pilot with current Roswell conditions, and the pilot did not ask for them. The current conditions in Roswell at the time of the 7:17 a.m. contact were IFR. In fact, the Roswell Airport was closed, and had been closed for more than two hours. The sky was 100% obscured because of clouds, fog, and snow and the prevailing visibility at the airport was less than one-half mile. 64. Approximately one hour later, at about 8:30 a.m., the phot and his two passengers took off from the Salt Lake Airport. The court assumes that the pilot received a Special VFR clearance to take off from Salt Lake as IFR conditions existed at the airport at that time. Air traffic control tapes evidencing that clearance were placed back into service, and the conversation containing the assumed Special VFR clearance was taped over. 65. When the pilot left the Salt Lake Airport, he knew or should have known that he had not yet adequately apprised himself of crucial weather information pertaining to the flight to Roswell, including the Area Forecast, the Roswell Terminal Forecast, the current Roswell weather, and pertinent airport condition information (i.e. NOTAM’s). VI. FOURTH CONTACT: FEBRUARY 5, 1988 AT 8:41 A.M. (MST) (IN FLIGHT — NO WEATHER BRIEFING) 66. At 8:41 a.m. Pilot Charlesworth used the radio in his aircraft to contact the Cedar City FSS for the fourth time. He spoke to FSS Specialist Merlin C. Mackay. Charles-worth identified his airplane, opened his flight plan and changed his anticipated time en route from five to seven hours. Mackay confirmed the change in the flight plan with respect to the anticipated time en route, and entered 3:41 p.m. as the estimated time of arrival at Roswell. Pilot Charlesworth did not take the opportunity during this contact with Specialist Mackay to request a full weather briefing, or any specific weather or aeronautical information pertaining to his route of flight. 67. The Roswell Airport was closed at 8:41 a.m., and had been closed for three and one-half hours. The sky was 100% overcast, the prevailing visibility was one-quarter mile, and it was snowing. This information was not provided to pilot Charlesworth. Specialist Mackay had access to the flight plan form which indicated that about an hour and one half prior to the current contact the pilot had received an update briefing. 68. Specialist Mackay did not know from the flight plan form, or from any other FSS source, or from the pilot that the pilot had not yet received an adequate weather briefing. Specialist Mackay was not aware that the computer at Cedar City had been down. If he had known that the pilot had received only incomplete weather information, the applicable provisions of the FSM would have required that he provide the pilot with updated and complete weather information. FSM ¶ 4-3a; AIM ¶ 295'd. The records available to him indicated that the pilot had been supplied with the changing weather and other information to update previous briefings the pilot had received. 69. Specialist Mackay attempted to call the pilot back after the contact to find out whether the pilot was planning on making a full stop in Farmington. He was unable to reestablish contact. VII. LANDING AT ALBUQUERQUE, NEW MEXICO: FEBRUARY 5,1988 AT ABOUT 1:00 P.M. 70. Pilot Charlesworth chose to refuel in Albuquerque instead of Farmington. He contacted Albuquerque Approach control for vectors to a landing, and was vectored to the Coronado Airport, an alternate airport about nine miles north of Albuquerque. The plane landed at about'1:00 p.m. in clear skies and with no indication of hostile weather. 71. The tape containing the dialogue between the pilot and the controller who vectored him to the Coronado Airport is unavailable because it was put back into service and taped over. 72. After landing, the plane was refueled. Pilot Charlesworth was having difficulty understanding incoming messages in the cabin because of radio problems. While on the ground, Charlesworth had the cabin speaker checked. It was found to be defective and was replaced by a company called TBC Avionics. 73. While on the ground, the pilot telephoned the plane’s owner, Larry Wright, to obtain his permission to have the cabin speaker fixed. During that conversation, Mr. Wright warned Charlesworth that he had heard that there was a weather system in southern New Mexico and that Charles-worth should check the weather for his flight. Charlesworth stated that he would do so. There is no record to show whether or not Pilot Charlesworth checked the weather before he departed from the Coronado Airport. 74. The plane departed Coronado Airport at about 1:30 p.m., and was in radio contact with the Albuquerque Air Route Traffic Control Center, which vectored the pilot toward Roswell, New Mexico, on and off, from about 1:30 p.m., to 1:53 p.m. The tape containing the dialogue between the pilot and the controller who vectored him toward Roswell is unavailable because it was put back into service and taped over. VIII. FIFTH CONTACT: FEBRUARY 5, 1988 AT 2:31 P.M. (MST). (ROSWELL WEATHER REPORT — VFR CONDITIONS) 75. At 2:31 p.m., while in flight from Albuquerque to Roswell, Pilot Charlesworth contacted the Roswell FSS. The pilot spoke to FSS Specialist Berrier D. Byrom, a certificated weather observer. 76. Pilot Charlesworth requested the current Roswell weather. In response to the pilot’s request, Specialist Byrom provided the following weather observation, which had been taken at 1:48 p.m., and was effective until 2:48 p.m.: Measured ceiling 1,000 feet variable overcast visibility 5 miles; fog; temperature 33 degrees F; dew point 28 degrees F; wind 100 degrees at 5 knots; altimeter setting 30.43 inches of mercury. Remarks: Ceiling 500 feet, variable 1,400 feet. 77. Pilot Charlesworth asked if these conditions were “[g]ood enough for a special VFR into Roswell.” Appendix D. Spécialist Byrom responded that the weather was VFR. He then instructed the pilot to contact the Roswell Approach Control on a different radio frequency. Charlesworth acknowledged, and the contact was terminated. 78. By making this contact, pilot Charles-worth had initiated a “Routine Radio Contact” which required Specialist Byrom to comply with the following procedures set forth in the Flight Service Manual (FSM): “Record information received from or given to the pilot. Provide aeronautical and meteorological information in accordance with paragraph 4-3.” FSM ¶4-14. Paragraph 4-3 instructs FSS specialists, in pertinent part, to a. Provide the pilot with available meteorological and aeronautical information in accordance with paragraph 3-10 [standard briefings], 3-11 [abbreviated briefings], and 3-12 [outlook briefings] as appropriate. b. Provide information during routine radio contacts as follows: (1) When a weather advisory is in effect; i.e., FA Flight Precautions, WA, WS, WST, CWA or AWW, which pertains to an area within 150 NM miles of the aircraft’s position, obtain the route and destination if not already known. Deliver the advisory if it is pertinent and the pilot indicates that it has not been received previously. (2) When the destination is in your stations flight plan area, inform the pilot of any pertinent NOTAM’s on hand. FSM ¶ 4-3. 79. Pilot Charlesworth asked for specific information (i.e. the current Roswell weather). When a pilot requests specific information, FSM ¶ 4-3a instructs a FSS specialist to treat the request as one for an abbreviated briefing for specific information under ¶ 3-11a. Paragraph 3-lla instructs the FSS specialist to provide the requested information, and to give notice of the existence of pertinent adverse conditions, present or forecást. Details of any adverse conditions are provided at the pilot’s request. 80. Specialist Byrom provided the pilot with accurate current Roswell weather, obtained through the 1:48 p.m. surface weather observation, which was valid through 2:48 p.m. 81., Byrom did not provide the pilot with information concerning the existence of adverse conditions, present or forecast, outside of those implied through the reading of the surface weather observation itself. In addition, Specialist Byrom failed to warn the pilot of possible whiteout danger. See infra Findings of Fact Nos. 119-122. Under the conditions which existed at the time of the 2:31 p.m. contact, the danger of experiencing a whiteout phenomenon near the Roswell Airport was foreseeable to Specialist Byrom. He knew of the possibility of low cloud ceilings, of the unbroken layer of snow on the ground, and of the rural nature of the Roswell area. Notwithstanding this knowledge, Byrom failed to inform the pilot of the danger. 82. During Routine Radio Contacts, FSS specialists are instructed to provide weather advisory information to pilots if the particular weather advisory pertains to an area within 150 miles of the plane’s position. Weather advisories include AIRMET’s (WA), SIGMET’s (WS), Convective SIGMET’s (WST), Center Weather Advisories (CWA), or Severe Weather Forecast Alerts (AWW). FSM f'4-3b(l). 83. Plaintiffs, argued at trial that Byrom failed to provide the pilot with information concerning pertinent AIRMET’s (WA). AIRMET’s (WA) are weather advisories which pertain the following potentially hazardous weather phenomena: (1) Moderate icing; (2) Moderate turbulence; (3) Sustained winds of 30 knots or more at the surface; (4) Widespread area of ceilings less than 1,000 feet and/or visibility less than three miles; and (5) Extensive mountain obscurement. AIM ¶ 504g. If the weather conditions which would normally be included in a particular AIRMET are adequately found in the Area Forecast, the AIRMET will not be issued. AIM ¶ 5Q4g. Specialist Byrom supplied no AIRMET’s (WA) to pilot Charlesworth, but plaintiffs failed to provide sufficient evidence to sustain their burden of proof that any AIRMET existed at the time of the contact. 84. During Routine Radio Contacts, FSS specialists are instructed to provide the pilot with relevant NOTAM’s. FSM 14-3b(2). Specialist Byrom failed to supply pilot Charlesworth with any relevant NOTAM’s dealing with the conditions at the Roswell airport. Such NOTAM’s would have informed the pilot that there was a great deal of snow on the ground at the airport. In fact, only one out of six of the runways and two out of ten of the taxiways remained open. The NOTAM’s would have informed the pilot how much the airport personnel had been able to plow the available runway and taxiways. In addition, the NOTAM’s would have informed pilot Charlesworth that the snow on the side of the runway was 28 inches high. 85. FSS specialists are instructed to actively solicit Pilot Reports (“PIREP’s”) when, among other things, cloud ceilings are at or below 5,000 feet. FSM 1 9-11. Cloud ceilings were well below 5,000 feet at the time of the radio contact between the pilot and Specialist Byrom. PIREP’s are used by FSS specialists and other ground advisory personnel to obtain weather information which may be observable to the pilot, but not to the specialist. This information is later passed on to other pilots in the same area to better prepare them for weather conditions in then-path. PIREP’s are limited in their geographic and chronological scope. They are only good for about an hour, and are only helpful with regard to the specific location from which the PIREP was gathered. 86. Specialist Byrom failed to solicit PI-REP’s from, or disseminate PIREP’s to, Pilot Charlesworth. There were only 36 flights at Roswell Airport on February 5. Since the airport was closed until 11:30 a.m., almost all of those flights that day came after 3:00 p.m., the approximate time of the crash. Due to the unusually light air traffic going through Roswell on February 5, it is unlikely that there were any pilots flying through that area, within an hour prior to Pilot Charles-worth’s arrival, from which Byrom could have obtained PIREP’s. Plaintiffs failed to sustain their burden of proof that PIREP’s existed at the time which could have been passed along by Specialist Byrom. 87. The data contained in the 1:48 p.m. surface weather observation — “Measured ceiling 1,000 feet variable overcast visibility 5 miles.... Remarks: Ceiling 500 feet, variable 1,400 feet” — were reported to pilot Charlesworth by Specialist Byrom as constituting VFR weather conditions. The report that this constituted VFR weather, rather than IFR weather, was correct based upon the following: a. The minimum weather requirements for legal VFR flight inside the control zone are (1) a ceiling height of at least 1000 feet; and (2) horizontal visibility of at least three miles. 14 C.F.R. § 91.155(c) & (d). b. The “ceiling” for purposes of making the IFR/VFR distinction is the lesser of (1) the height of the lowest opaque broken or overcast layer aloft, or (2) the vertical visibility into a surface-based layer of obscuring phenomena that hides the entire sky.” Federal Meteorological Handbook No. 9, Aviation Weather Observations ¶ 2.21 (“FMH No. 9”). c. The ceiling or “ceiling height” reported in the 1:48 p.m. surface weather observation, and used to make the IFR/VFR distinction, was obtained by taking readings with a device known as a “ceilometer.” Weather observers arrive at the ceiling height by taking the average of all observed readings from the ceilometer during the period of observation. Id. 13.10. d. The established ceiling height in a weather observation is preceded by a “ceiling designator.” Id. at 14.2. The ceiling designator indicates to the person relaying the observation, and to the pilot receiving the observation, the level of accuracy of the method used to determine the ceiling. Id. ¶ 2.23. There are three ceiling designators: Measured ceiling (M); Estimated ceiling (E); and Obscured ceiling (W). Id. at ¶ 2.23. A ceiling height determined through use of a ceilometer, an accurate method of determining the ceiling height, is preceded by the ceiling designator “M” for “measured ceiling.” Id. at 3.7a. The ceiling height in the 1:48 p.m. weather observation was 1,000 feet, preceded by the ceiling designator “M” for “measured ceiling.” e. If the ceiling height is below 3,000 feet, then the weather observer is required to place a “V” for “variable” after the ceiling height. This indicates to the person providing the information, and to the pilot receiving it, that the ceilings varied during the time the ceiling height was being determined. The observer then indicates the amount the ceiling fluctuated, in the “Remarks” section of the observation. Id. at 3.10. “V” for “variable ceiling” is not a ceiling designator. Id. It provides the pilot information concerning ceiling fluctuation, but it is not used to determine ceiling height for purposes of distinguishing VFR conditions from IFR conditions. 88. While the conditions reflected in the 1:48 p.m. weather observation technically were VFR, those conditions bordered on VFR mínimums, and the cloud ceilings were fluctuating rapidly. This constituted marginal VFR weather. FSS specialists are instructed to give the pilot a VNR recommendation (“VFR not recommended”) if conditions are present that, in the specialist’s judgment, would make VFR flight doubtful. FSM ¶ 3 — 10b(2); AIM ¶ 502b(2). Specialist Byrom did not give the pilot a VNR recommendation. 89. Pilot Charlesworth knew or should have known that the weather conditions reported to him (as reflected in the 1:48 p.m. weather observation) were potentially dangerous to a VFR pilot and his passengers even though the conditions were at the legal VFR- - mínimums. Pilots are instructed to “learn to obtain, read, and understand aviation weather forecasts and reports.” FAA Flight Training Handbook, at 116. 90. Because of the poor weather near the Roswell Airport on the afternoon of February 5, the Roswell FSS conducted a special surface weather observation which was issued at 2:36 p.m., approximately four minutes after the pilot contacted Specialist Byrom at 2:31 p.m. The 2:36 p.m. observation was still in the process of completion when the pilot called at 2:31 p.m. The 2:36 p.m. observation provided, Measured ceiling 600 feet broken, 1600 feet overcast; visibility 5 miles; light snow showers and fog____ The measured ceiling had changed from 1,000 feet variable to 600 feet broken. The conditions had changed from VFR, or MVFR, to IFR. Specialist Byrom did not attempt to call the pilot back with this further information. 91. Specialist Byrom did provide the changed weather information which indicated IFR conditions to the Roswell Air Traffic Control Tower (“Roswell Tower”). The pilot had been instructed to contact the Roswell Tower for landing information. 92. At 2:44 p.m., after the 2:31 p.m. contact with Specialist Byrom, but before Pilot Charlesworth contacted the Roswell Tower, someone from the Roswell FSS, possibly Specialist Byrom, contacted the Roswell Tower and spoke to Air Traffic Controller Weldon R. Steen. The subject matter of the conversation concerned the best way to get through the snow from the FSS to the Tower. The parties to the conversation did not discuss Pilot Charlesworth. The tape of the 2:44 p.m. conversation was not furnished to the National Transportation Safety Board, was not included in the FAA’s Traffic Accident Package, and was not initially furnished to Plaintiffs attorneys during discovery. It was pertinent only insofar as it revealed current observable weather conditions at the airport at that time. The conversation did not reveal any pertinent information which was not eventually given to the pilot. IX. SIXTH AND FINAL CONTACT: FEBRUARY 5, 1988 AT 2:48 P.M. MST (CLEARANCE FOR SPECIAL VFR LANDING) 93. At 2:48 p.m., Pilot Charlesworth contacted the Roswell Tower. Air Traffic Controllers Charles Brown and Weldon R. Steen were on duty at that time. Controller Brown took the call from the pilot. Pilot Charles-worth reported that he was twenty-four miles north of the airport, flying at 9,500 feet, inbound for a VFR landing. See Appendix E, at 2148:34. Controller Brown provided the pilot with the information contained in the 2:36 p.m. special surface weather observation, which indicated that the airport was experiencing IFR conditions. 94. After giving Pilot Charlesworth the weather report, Controller Brown asked Charlesworth, “[W]hat are your intentions?” Id. at 2148:48. Pilot Charlesworth replied, “Landing at Roswell full stop.” Id. at 2149:11. Controller Brown told the pilot that “the field is IFR.” Id. at 2149:15. After waiting several seconds with no response from the pilot, Brown repeated his statement that the airport was IFR. Id. at 2149:29. 95. Pilot Charlesworth acknowledged Controller Brown’s statement, and said, “The field is IFR oh kay we are VFR can you ah direct us to another airport.” Id. at 2149:34. Controller Brown testified at trial that he was not able to clearly hear Pilot Charles-worth’s request. The Air Traffic Control Manual (“ATCM”), which outlines controller duties, instructs controllers in these situations to use the standard phrases of “repeat,” or “say again” when the controller has not been able to clearly understand a pilot’s statement. ATCM ¶ 2-82. Defendant’s Air Traffic Control expert Edmund Strong testified that the most important aspect of controller phraseology is to clearly articulate a message to the pilot. After several seconds, Brown said, “What are you requesting archer eight four seven one foxtrot?” Id. at 2149:43. This statement adequately put the pilot on notice that the tower had not been able to hear and/or understand his request to go to another airport. 96. Controller Brown was not wearing his headset when the pilot called. He was communicating with the pilot using the tower’s speaker phone. Both Plaintiffs’ and Defendant’s air traffic control specialists testified that this was a normal, accepted, and reasonable practice during long periods of slow traffic. While it may have partially contributed to Brown’s failure to hear the Pilot Charlesworth’s request to be directed to another airport, the fact that Brown did not use his headset did not hinder, in any substantial way, communication between Pilot Charles-worth and the Roswell Tower. ‘97. In response to Controller Brown’s query, “What are you requesting,” Pilot Charlesworth apparently changed his request for directions to another airport and instead said, “We’re requesting a special VFR landing.” Id. at 2149:48. 98. When the pilot made the request for a Special VFR clearance, he was twenty-four miles northwest of the Roswell Airport, flying in clear skies, at 9500 feet, with sufficient gas to return to Albuquerque or to fly to several alternative airports in the area. Some of those alternative airports were then experiencing VFR conditions. At this time, the pilot knew or should have known, either from the reports he received, or from his own observations, that there was IFR weather in Roswell, including low cloud ceilings, light snow, fog, and horizontal visibilities reduced to five miles. 99. At the time of Pilot Charlesworth’s request to the controller to grant a Special VFR clearance, the reported prevailing ground visibility was five miles. Controller Brown granted Pilot Charlesworth’s request for a Special VFR clearance into the control zone north of the Roswell Airport. 100. Controller Brown set the Special VFR altitude restriction, which would apply only within the control zone, “at or below [5,500 feet].” Id. at 2149:59. The pilot erroneously read the restriction back as “at or below [5,000] feet.” Id. at 2150:15. Controller Brown did not correct this erroneous readback. The ATCM instructs controllers to correct incorrect or incomplete readbacks, “as appropriate.” ATCM ¶2-72^ Phot Charlesworth’s readback was in compliance with the altitude restriction given him, and did not compromise safety. 101. At 2:52 p.m., Controller Brown contacted the pilot and gave him the airport NOTAM’s. He told the pilot that 7,100 feet of runway 21 was open, that 5,000 feet of that runway was plowed 100 feet wide, and that the snow banks on either side of the plowed runway were 28 inches high. Appendix E, at 2152:22. Controller Brown testified that he did not give the pilot these NOTAM’s when the pilot first called because the runways were in the process of being plowed.’ The ATOM instructs controllers to provide relevant NOTAM information “in time for it to be useful to the pilot.” ATCM ¶3-32. 102. When the pilot received the NOTAM information, the plane was 17.9 miles northwest of the airport, flying at 6,000 feet, in clear skies, with sufficient fuel to return to Albuquerque or to fly to several alternative VFR airports in the area. Appendix E, at 2152:18-2152:45. At this time, based on his training, the reports he received from the Roswell Tower, and his own observations, the pilot knew or should have known that Roswell was experiencing low IFR cloud ceilings, light snow and fog, and that there was a great deal of snow on the ground. After receiving this information, the pilot had approximately ten minutes to make a decision whether to proceed or to turn around and fly to another airport. 103. Under the conditions which existed at the time the pilot received the Roswell Airport NOTAM’s at 2:52 p.m., the danger of experiencing a whiteout phenomenon in the area was foreseeable to both Pilot Charles-worth, and Controller Brown. See infra Findings of Fact Nos. 119-122. Both knew that there were low cloud ceilings, that there was an unbroken layer of snow on the ground, and. that the Roswell Airport was located in a relatively rural area. One important piece of information which Controller Brown knew, which most likely was not known by Pilot Charlesworth, had to do with the relative lack of visual references on the airport side of Six Mile Hill. While the danger of whiteout existed on both sides of Six Mile Hill, the relative lack of visual references on the airport side increased that danger. 104. Controller Brown provided the pilot with the information contained in the 2:36 p.m. special surface weather observation, but took no independent visibility readings himself. Controllers are instructed to take their own independent visibility readings when the reported prevailing visibility at ground level or at the tower level drops below four miles. ÁTCM ¶ 2-105a. Prevailing visibility means that at least 50% of the 360 degree view from the weather observer has five miles of visibility. The reported prevailing visibility at the Roswell Airport was five miles at 2:36 p.m. Eight minutes after the accident, the prevailing visibility was over five miles. There is no indication that the visibility dropped significantly between these two readings. 105. A VOR is a navigational aide to pilots. Controller Brown did not inform the pilot, between 2:48 p.m. and the time of the accident, that individuals in the tower could not see the Roswell VOR. At the Roswell Airport, the VOR is located near the border of the control zone, on the northwest side of the airport. In addition to its use as a navigational aide, the Roswell VOR is used, in a secondary capacity, as the airport’s five-mile visibility marker. This means that the weather observers in the Roswell FSS use this marker to help determine prevailing visibility for the airport. It is used for the same purpose by tower personnel when conditions require them to take their own visibility readings. The VOR is located approximately five miles from the Roswell FSS. It is located approximately six miles from the Roswell Tower. The VOR is painted white because federal regulations require VOR’s (in their primary capacity as navigational aides) to be painted a light color. 106. There is evidence that the act