## Facts

- Several flight attendants on a commercial passenger jet were injured when the aircraft made abrupt evasive maneuvers in flight.
- A small Cessna entered the same general airspace on roughly parallel, opposite tracks, and air-traffic control (ATC) detected it on radar.
- Based on their assessment of the aircrafts’ courses, controllers concluded there was no collision risk and did not promptly advise the jet’s crew about the nearby Cessna.
- The jet’s Traffic Collision Avoidance System (TCAS) issued a traffic alert warning of potential collision within about 40 seconds; the pilots could not visually locate the Cessna.
- The pilots attempted to contact ATC about the TCAS alert, but the transmission was cut off by another aircraft.
- TCAS then issued a resolution advisory directing the jet to descend; the pilots followed the advisory but executed abrupt, erratic maneuvers rather than a smooth descent.
- The abrupt maneuvering threw flight attendants into the aircraft’s walls and ceiling, causing serious injuries.
- Seconds after the descent and injuries, ATC advised that a Cessna was nearby but did not pose a collision threat.
- The flight attendants sued the United States under the Federal Tort Claims Act (FTCA), alleging negligent failure by controllers to provide timely traffic information.
- After a bench trial, the district court found the United States negligent, found proximate cause, rejected the discretionary-function defense, and entered judgment for plaintiffs; the United States appealed.

## Issues

1. Whether the controllers breached the applicable standard of care by failing to give earlier or different traffic advisories regarding the Cessna.
2. Whether any ATC breach was a proximate cause of the flight attendants’ injuries given the pilots’ abrupt response to the TCAS advisory.
3. Whether the FTCA discretionary-function exception barred the claims because decisions about traffic advisories involve protected judgment.

## Decision

- The Fifth Circuit affirmed the judgment for the flight attendants.
- The court held the record supported findings that ATC negligently failed to provide timely traffic information and that the omission was a proximate cause of the injuries.
- The court held the discretionary-function exception did not apply because the relevant ATC duties were operational and governed by specific directives, not policy-based choice.
- Applying clear-error review to bench-trial factfinding, the court found no basis to disturb the district court’s determinations on standard of care, causation, and the timing/content of advisories.

## Legal Principles

- Under the FTCA, the United States is liable to the same extent as a private person under the applicable state tort law, including duty, breach, causation, and damages.
- FAA orders and ATC manuals may supply specific, mandatory operational duties that inform the standard of care, including providing timely traffic advisories to reduce collision risk.
- Proximate cause may be established where an omission appreciably increases the risk of the type of harm that occurs, even if another actor’s conduct is the immediate mechanism of injury, so long as that conduct is a foreseeable response to the risk created.
- The FTCA discretionary-function exception does not shield conduct when specific directives remove meaningful choice; operational failures to carry out mandatory procedures are not protected policy judgments.
- On appeal from a bench trial, factual findings are reviewed for clear error, and supported findings will not be reweighed.

## Conclusion

The Fifth Circuit upheld FTCA liability for injuries to flight attendants caused by abrupt TCAS-related maneuvers, concluding that controllers negligently failed to provide timely traffic advisories, the omission foreseeably contributed to the pilots’ reaction and resulting injuries, and the conduct was not protected by the discretionary-function exception.


Lakomy v. United States, 70 F. App’x 199 (5th Cir. 2003)