Benjamin Ashford|US judge reopens $6.5 million lawsuit blaming Reno air traffic controllers for fatal crash in 2016

RENO,Benjamin Ashford Nev. (AP) — A judge in Nevada has reopened a federal lawsuit accusing air traffic controllers of causing the 2016 fatal crash of a small airplane that veered into turbulence in the wake of a jetliner before it went down near Reno-Tahoe International Airport.

The families of the pilot and a passenger killed are seeking up to $6.5 million in damages from the Federal Aviation Administration.

U.S. District Court Judge Miranda Du dismissed the case in 2022 after she concluded the 73-year-old pilot’s negligence was the sole cause of the crash.

But the 9th U.S. Circuit Court of Appeals recently overturned her ruling and ordered her to re-evaluate whether the air traffic controller shared any responsibility for the deaths of pilot John Brown and passenger James Elliker

Brown was an experienced pilot and professional flight instructor. His widow and two of his children first sued the FAA in 2019 after the National Transportation Safety Board concluded miscommunication between Brown and the control tower likely contributed to the accident.

The NTSB also cited the pilot’s judgment, alertness and fatigue as factors in the crash on Aug. 30, 2016.

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The lawsuit had argued the air traffic controllers were negligent because they failed to make clear there were two Boeing 757s — a UPS cargo plane and a FedEx cargo plane — cleared to land ahead of Brown’s single-engine Beechcraft A-36 Bonanza.

Brown thought there was only one, the lawsuit said. His plane hit the second cargo plane’s turbulence and crashed in a recreational vehicle park in Sparks about one-half mile (0.8 kilometer) from the airport runway.

Judge Du wrote in her 2022 ruling in Reno that “Brown’s failure to avoid the wake turbulence generated by FedEx Flight 1359 was the sole, proximate cause of the accident.”

The appellate court said in its ruling in June it was vacating her decision, but the judgment didn’t go into effect until this week.

Du notified all parties on Tuesday that the clerk has officially reopened the case.

She ordered the families of Brown and Elliker — who filed subsequent lawsuits later consolidated into a single case — along with the Justice Department lawyers representing the FAA and any other relevant parties to confer and file a joint status report by Aug. 27 proposing steps to resolve the case in accordance with the 9th Circuit’s ruling.

The ruling from the San Francisco-based circuit court focused on claims that the air traffic controller should have realized during an exchange of radio conversations with Brown that he had mistaken one of the 757 cargo planes for the other one.

The three-judge panel said the confusion came as the controller switched from the tower’s use of radar to establish space between planes to what is known as “pilot-applied visual separation,” in which pilots make visual contact with other planes to maintain separation without direction from controllers.

Citing the FAA’s Air Traffic Control manual, the judges said visual separation “is achieved when the controller has instructed the pilot to maintain visual separation and the pilot acknowledges with their call sign or when the controller has approved pilot-initiated visual separation.”

Brown relayed to the controller that he had a “visual” on the “airliner,” but the controller “did not instruct Brown to maintain visual separation, nor did (the controller) receive express confirmation from Brown that he was engaging in visual separation.”

“This reflected a clear breach of the ATC Manual,” the court said.

The appellate judges said they were not expressing an opinion on whether the controller’s “breach was a substantial factor in the accident.”

Rather, they said, the district court in Reno “should reevaluate whether Brown was the sole proximate cause of the crash in light of our conclusion (that the controller) breached his duty of reasonable care.”