The opinion of the court was delivered by: Edwin G. Torres United States Magistrate Judge
AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter is before the Court following a multi-day bench trial conducted in this action. Plaintiffs Frederic and Randi Zinn filed this action on July 21, 2008, under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Plaintiffs alleged that the accident was caused by employees of the Federal Aviation Administration ("FAA") negligently providing air traffic control services to a general aviation aircraft, piloted by Michael Zinn ("Zinn"), who was killed when the aircraft crashed after confronting dangerous weather conditions. Plaintiffs allege that the FAA air traffic controllers failed to provide timely, complete and accurate weather information, issue warnings or alerts, and/or otherwise control the aircraft so as to avoid it encountering severe and dangerous weather.
The FAA and the United States deny liability and assert that the accident was caused by Zinn's failure to avoid known weather conditions despite having received multiple warnings about the presence of thunderstorms along his intended route of flight and despite his own ability to see and become aware of those conditions onboard his aircraft. The FAA further asserts that, once he encountered convective activity within a thunderstorm, he failed to properly fly and control his aircraft, resulting in its loss and Zinn's death. Relatedly, the FAA asserts that Zinn was operating in conditions that he was not authorized or prepared to navigate in derogation of FAA regulations, the failure of which proximately caused the loss of the aircraft and the pilot. Alternatively, even if the FAA's controllers were negligent and such negligence proximately contributed to Zinn's death, the FAA raises the defense of comparative negligence based on Zinn's own negligence.
Apart from the liability issues in the case, the parties differ greatly on the proper methodology and calculation of the economic damages that the FAA may be liable for, principally in connection with the net accumulations damages to the estate under Florida law. Zinn's estate claims that the gross damages exceeds $54 million based upon lost salary, bonuses, capital gains and dividends that Zinn would have realized through his working life had he not been lost, in addition to lost companionship damages to his surviving daughter. The FAA takes the position, however, that the net accumulations to the estate would have been non-existent or negligible.
Before addressing these issues, we pause to note that neither the air traffic controllers nor Michael Zinn were bad actors in this tragic accident. Throughout the history of manned flight, weather has proven to be the greatest obstacle to safe human flight. History shows us that a pilot's greatest enemy, more often than not, is nature's challenges. The effects of thunderstorms, snow, icing, fog, and other inherent risks of nature repeatedly fill reports of air crash investigations all over the world. That risk can be ameliorated, of course, and every pilot is trained to understand and prepare for that risk. Air traffic controllers are trained to help them. But no matter how much we try, we will never be able to eliminate those risks entirely unless we choose to abandon flight altogether. We obviously choose not to do so because pilots like Michael Zinn will always be willing to take the unlikely chance of failure in exchange for the pursuit of the love of flight.*fn1
I. FINDINGS OF FACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Michael Zinn's Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Zinn's Intended Flight Plan and Weather Conditions . . . . . . . . . . . . 6
C. Weather Information Available to Air Traffic Controllers . . . . . . . . 12
D. Zinn's Fatal Flight . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 15
E. Economic Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2. Zinn's Proposed Calculation . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3. FAA's Reasonable Compensation Calculation . . . . . . . . . . . . 46
4. Court's Final Calculation of Net Accumulation to Estate . . . 53
3. Funeral Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
F. Non-Economic Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
II. CONCLUSIONS OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
A. The FAA's Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
2. Breach of Those Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
B. Zinn's Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
2. Breach of Zinn's Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
C. Apportionment of Fault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
A. Michael Zinn's Background
1. Michael Zinn was born on December 20, 1952. At an early age he successfully entered into the energy business. He had worked for several years in the 1970's in the energy engineering company, HVCA, where he handled electrical design and procurement for commercial building projects. During that time, he was also the director of a government-funded biomass-to-energy project where he designed and developed a commercial scale animal waste-to-energy plant.
2. In 1976, at the age of 23, Mr. Zinn founded Bio-Energy Systems Incorporated, later known as Besicorp, as a distribution company for solar thermal products that he had created or was in the process of creating. He would, years later, sell Besicorp for a substantial sum, making him a multi-millionaire in the process.
3. Though he suffered various setbacks throughout his career, including a federal criminal investigation and conviction, he emerged as a successful entrepreneur and businessman. He was also personally successful. He married and raised a daughter, Randi Zinn born in 1979, who remained close and financially attached to her father until his death.
4. Zinn, like all successful professionals, enjoyed the fruits of his labor, principally through the care and support of his only daughter. But he also enjoyed golf and had a love of flying, interests that would fatefully and tragically intersect on the day he died, October 19, 2005.
5. Zinn was an experienced private pilot. Zinn obtained his initial piloting license in 1982. He obtained his IFR certification in 1987. On the date of the accident, after thirteen years of piloting experience, Zinn had logged over 1400 hours of flight time in various types of general aviation aircraft.
6. Prior to his fatal last flight on October 19th, however, Zinn had not flown significantly for many months. His last flight of any substantial duration (6.0 hours) took place on May 5, 2005. [PX 4 at 9] His latest flight was a short half-hour takeoff and landing on June 18, 2005.
7. Zinn purchased his own aircraft charter company, River Aviation, which owned and operated six different aircraft by 2005, including the aircraft Zinn flew primarily, a 1978 twin-engine P337H Cessna Skymaster, registration number N5HU. The Skymaster had a unique "push me - pull you" design, with the two turbocharged propellor engines working simultaneously to propel the aircraft using centerline thrust. The aircraft was also pressurized, allowing for use in higher elevations.
8. For some time before October 19, 2005, Zinn had been residing primarily in Boca Raton, Florida. He regularly traveled to Kingston, New York, where his business operations were based. On that day, he was flying N5HU to Myrtle Beach, South Carolina, to play a round of golf.
B. Zinn's Intended Flight Plan and Weather Conditions
9. Five days before his death, Zinn prepared his aircraft for use by having the engine inspected and the oil and filter changed. It had been about four months since he had last flown it. [PX 1]
10. On October 19th, Zinn intended to depart from Boca Raton in the early afternoon with a direct route to Myrtle Beach. He prepared and filed an IFR flight plan, likely through a computer-based system.*fn2
11. To prepare for a flight, it is undisputed that a pilot must assess what the weather conditions will be and determine whether the weather is significant, whether there is turbulence, whether there is convective activity, or anything that will have an affect on the flight.
12. Zinn, as an experienced pilot, more likely than not conducted that review as he had done in the past when, on more than one occasion, he had altered or cancelled his flight plans due to expected weather conditions.
13. As a resident of South Florida, Zinn would also more likely than not have been aware of the propensity for thunderstorms to develop in the afternoon.
14. It is undisputed that he ultimately departed Boca Raton at approximately 1830 UTC.*fn3 Prior to departing Boca Raton, Zinn more likely than not performed a preflight inspection and check of his aircraft. After completing the preflight check, Zinn performed an engine run-up and check after calling the Boca ground controller. The run-up and checks generally take 10-15 minutes. The time between when he called the Boca tower from his location at Boca Aviation and the time he was cleared for take-off was about five minutes.
15. When Zinn called the Boca Tower for taxi instructions at 1824:02, he advised the controller that he had information "Golf," indicating that he had tuned to and listened to the Automated Terminal Information Service ("ATIS"), which are recorded weather broadcasts available on a given radio frequency for a particular terminal area that provide weather and visibility conditions in the vicinity of a particular airport. [DX 83]
16. SIGMETS are broadcast on the ATIS at Boca Raton Airport.*fn4 At 1655 (about one and one-half hours before takeoff), Convective SIGMET 3E went into effect and was valid until 1855. Convective SIGMET 3E advised of a developing line of thunderstorms 20 nautical miles wide with little movement and tops to level 33,000 feet. This line extended 40 nautical miles west-southwest of Vero Beach to 90 nautical p.m. EDT, or 2:30 in the afternoon. All subsequent time references shall be in UTC time. miles east-northeast of West Palm Beach. [DX 4A] The area affected by this SIGMET encompassed Zinn's intended route of flight. As Zinn's piloting expert conceded, the conditions reported in Convective SIGMET 3E indicated a "pretty significant piece of weather."
17. It is not disputed that Zinn considered (or should have considered) SIGMET 3E. He acknowledged as much at the time he obtained the clearance to taxi and takeoff from Boca Raton. Whether he received a subsequent SIGMET, however, is disputed. At 1755 (about one-half hour prior to takeoff), Convective SIGMET 5E was issued for an area of Florida and coastal waters running from 60 miles east-northeast of Vero Beach, to 90 miles east-northeast of West Palm Beach, to 30 miles west of West Balm Beach, to 30 miles west-southwest of Vero Beach. [DX 5A] This SIGMET updated 3E by indicating the developing line of thunderstorms had turned into an area of thunderstorms and the tops had increased to 40,000 feet. Convective SIGMET 5E also encompassed the accident aircraft's route of flight. This advisory was valid until 2155.
18. We do not know precisely the type of weather briefing Zinn availed himself on the day of the accident. It is likely that Zinn obtained material weather information from a computer or other unrecorded sources, which would have included actual radar images and forecasts for the particular line of weather that was developing in his intended route of flight. We know that he did not contact flight services before his flight as a record of that communication would have been made.
19. But, at the very least, Zinn clearly knew from the information contained in SIGMET 3E that he would be encountering thunderstorms on a route from Boca Raton direct to Ormond Beach (which he requested after takeoff). This SIGMET also put him on notice that updated information would be necessary to stay current regarding the weather situation. An experienced and competent pilot knew that he needed to be aware of the location of that weather and that he needed to consider it during his flight.
20. Zinn's piloting expert testified that, if he read SIGMET 3E and pulled up NEXRAD and surface analysis charts which indicated a line of thunderstorms across his route of flight, he would hold off on the flight or plan a route to do whatever was necessary to go around that line of storms. It is beyond dispute that Zinn could have avoided all of the convective weather on his route by flying a more westerly route, northwest from Boca Raton around the center or western side of Lake Okeechobee.
21. The presence of SIGMETS alone, however, does not require general aviation aircraft to avoid all flight. SIGMETS cover widespread areas and aircraft regularly operate in these areas. In fact, on the date of Zinn's flight, several aircraft operating in IFR and VFR conditions were traveling in areas covered by the convective SIGMETS.
22. But convective SIGMETS like SIGMET 3E alert a pilot to the presence and threat of thunderstorms in the area that should be avoided entirely. Pilots are warned to stay clear of known thunderstorm activity by twenty miles because hazardous wind and turbulence may extend to as much as that distance from the edge of an intense convective cell. IFR certification, which allows a pilot to fly under non-visual meteorological conditions through the use of instruments, does nothing to minimize the risk to a pilot from the violent effects of a thunderstorm. Pilots are trained and warned that a severe thunderstorm can destroy an aircraft, especially from shear that occurs between updrafts and downdrafts within the storm. Once one encounters that weather, it is very difficult to hold a constant altitude. Maneuvers a pilot uses in attempting to do so produces greatly increased stress and G-forces on the aircraft. Because there is no safe and assured way to pick soft spots in a thunderstorm, pilots are warned to avoid oncoming storms.
23. As Zinn's flight departed, the weather in the area covered by SIGMET 3E was strengthening as predicted. The larger areas of thunderstorms and the overall pattern was basically stationary, but the thunder cell over Martin County where the accident occurred was expanding in size and intensity as Zinn departed. At 1815:50 a band of showers and thunderstorms stretched from east to west from Central Florida to the Atlantic Ocean, crossing the coastline over Southern Indian River County. The area of showers and thunderstorms over Martin County then expanded into southern St. Lucie County and intensified, while new showers and thunderstorms developed over north central Palm Beach County.
24. By the time Zinn's aircraft reached that area in St. Lucie County, weather radar shows that it approached and entered into an area with reflectivities ranging from 50 to 55 dBZ echoes (VIP Level 5 and borderline Level 6).*fn5 VIP Level 5 corresponds with "intense" weather with severe turbulence, lightning, hail and organized surface wind gusts. VIP Level 6 corresponds to "extreme" weather with severe turbulence, lightning, large hail, and extensive surface wind gusts.
25. This convective weather is precisely the type of condition that pilots should avoid, in the words of Zinn's own piloting expert, "at all costs." It is also the convective weather that SIGMET 3E forecast, which was necessitated by weather believed to be VIP Level 4 or greater with an area of coverage of 40% or more in the intended route of flight.
C. Weather Information Available to Air Traffic Controllers
26. Air traffic controllers are provided with various sources of weather information to carry out their duties, including weather radar data, weather information displayed on a controller's radar scope, PIREPS (pilot reports of weather in the area), and SIGMETS. They are required by the Air Traffic Control Manual, FAA Order 7110.65P, to become familiar with pertinent weather information when they come on duty and during their shift.
27. Miami Center En Route Control Service ("Miami Center") provides services primarily to aircraft that are en route from one airport to another. Miami Center has weather information available on a large plasma screen in each of the sectors where controllers sit that can display the reflectivity data using a standard 16-color scale frequently used by National Weather Service meteorologists.
28. This plasma screen is accessible to air traffic controllers at Miami Center, but is not the primary weather information that they rely upon largely due to their location and need to attend to the radar screens at all material times. The weather radar available on the plasma screen primarily allows controllers to familiarize themselves with what is occurring in the area when they first come into the sector to perform their duties.
29. Miami Center also has a certified meteorologist, employed by the National Weather Service, to provide current and forecasted weather information. The meteorologist on duty prepares graphic displays for use by controllers and supervisors that includes location of fronts, forecast, winds aloft, areas of turbulence, areas of severe thunderstorms or tornado watches, pilot reports and other convective weather such as Center Weather Advisories.
30. The meteorologist also inputs information regarding the tops and winds aloft into meteorological briefing terminals, which is a computer monitor, that are located in each of the areas in Miami Center. Tops are the highest level at which the NEXRAD radar would be detecting precipitation and provides information about the storm and winds aloft is a forecast produced by the National Weather Service that indicates the winds at various altitudes.
31. Through their familiarization requirement and his briefing prior to assuming his responsibilities, the Miami controllers handling flights should be aware of the tops of the thunderstorms, relevant information at determining the possible severity of the convective activity in the storms. Of course, similar information is available to a pilot through SIGMETS and other weather data available to a pilot before departing.
32. The primary source of weather information regularly used by air traffic controllers at Miami Center is found on their own radar displays. This is accomplished through the Weather and Radar Processor (WARP) system. WARP is an FAA computer network that puts data from various weather radar stations around an Air Route Traffic Control Center, such as Miami Center, into the WARP system and then compiles the data into a mosaic image of reflectivity that can be shown on a controller's display using four colors of intensity.
33. The speed by which WARP radar data depends on various factors. The more radar sites from which to obtain NEXRAD data, the quicker it reaches the controller's WARP display.
34. In this case radar data input into the WARP system at Miami Center is generated from the Melbourne, Miami, and Tampa radars. The average delay at Miami Center is typically between 3 to 6 minutes, though that can vary at times depending on the radars that feed them and the level of precipitation that is encountered by each radar sweep. The modern WARP system is designed, however, to provide controllers with as much real-time weather data as possible. Controllers are trained that they can reasonably rely on that data in carrying out their weather advisory responsibilities.
35. On their displays, Miami Center controllers can see the aircraft in the foreground and the weather radar imaging in the background. The weather on the controller's display is depicted using four colors of intensity. Light precipitation, which is less than 30 dBZ and corresponds to VIP Level 1, is displayed as black. Moderate precipitation, which is 30 - 40 dBZ and corresponds to VIP Level 2, is displayed as royal blue. Heavy, which is 40 - 50 dBZ and corresponds to VIP levels 3 and 4, is displayed as checkered cyan. Extreme, which is reflexivity values over 50 dBZ and corresponds to VIP Levels 5 and 6, is displayed as cyan.
36. Although ATC radar systems display only precipitation, the presence of substantial precipitation correlates with the existence of thunderstorm hazards such as severe turbulence and hail.
37. Zinn's aircraft was not equipped with any real-time radar instruments. The only weather information available was a "stormscope." The WX-1000 Stormscope aboard this aircraft is a device that can detect electrical discharges or lightning strikes and plot them on a display in the cockpit.
38. A stormscope, however, cannot and does not display areas of weather precipitation along the aircraft's route of flight like the 4-color weather information on a controller's display, which shows the precipitation intensity of weather.
39. Unlike the controller's display which shows weather in relation to the future track of the aircraft, a stormscope is most effective in the immediate vicinity of the aircraft, but that can extend up to 25 nautical miles. [DX 101] The stormscope has an outer range of 200 nautical miles to allow a pilot to prepare for weather that will be encountered on a given flight plan.
40. After completing his preflight checks and weather briefing, Zinn took off from Boca Raton at approximately 1833:25. He immediately contacted the West Palm Beach Terminal Radar Approach Control facility and asked for "flight following." Flight following is an additional service provided by ATC to VFR aircraft so long as time and traffic conditions permit.
41. The first controller at PBI that Zinn spoke to was Brian Rivers. Rivers was qualified to work the South Arrival (FAR) position. Rivers responded to the flight following request by first asking if Zinn wanted to activate his IFR flight plan. [DX 84a]
42. Rivers was aware that Mr. Zinn had filed an instrument flight plan because a flight progress strip was generated at PBI when the flight plan was filed. [DX 130] The route of flight indicated on that flight progress strip was a preferential departure route through a departure transition area. Preferential departure routes are designed to standardize traffic flow out of high volume airports. Preferential departure routes establish traffic flow so all of the aircraft are going out in the same direction. Pilots are trained to be familiar with these departure procedures and it is probable that Zinn was quite familiar with this departure procedure out of Boca Raton.
43. The preferential departure route on the flight progress strip was the Lamore departure. The Lamore departure route is a typical instrument clearance -approximately 75% of the departures from Boca Raton and PBI go out on the Lamore departure. This departure would have routed Mr. Zinn out to the west and then to the north. This route of flight would have taken Zinn him west of the area covered by the convective SIGMETs.
44. Unfortunately, when asked if he wanted to activate his instrument flight plan, Zinn responded "oh umm as long as I can go straight to Ormond Beach I don't mind the IFR, I'll stay with you VFR and see what happens when I get north, is that okay?" Rivers advised that he could probably go that route as long as he did not go above 10,000 feet. Zinn indicated that was acceptable and at approximately 1837:04 his IFR clearance was issued with a direct routing rather than the routing indicated by the preferential departure route.
45. Once the clearance was accepted and activated, Zinn was on an instrument flight plan for the duration of the accident flight. Zinn could have declined to accept the clearance and could have cancelled his instrument flight plan at any time. But the decision was Zinn's to remain VFR or take the IFR clearance. It is understood that a pilot on a VFR clearance cannot try and circum-navigate or fly through weather, but must instead stay clear of any clouds or weather to maintain visual flight. An instrument-rated pilot like Zinn, however, can fly through cloud cover and under IFR conditions.
46. Zinn's IFR route of flight was changed from the preferential departure procedure to a direct route at his request. Indeed, an air traffic controller cannot deny an instrument clearance to a pilot based on weather conditions.
47. The issuance of the clearance to Mr. Zinn to go direct to Ormond Beach made no representation concerning the weather. But the controllers at PBI cannot readily see weather for more than a 40-50 mile range. And the controllers cannot and do not check routes for weather prior to issuing a clearance. Indeed, the FAA regulations for IFR clearances, FAA Order 7110.65P section 4-2-3, does not require or even reference the delivery of information per se in connection with an IFR clearance.
48. But even if the clearance controller breached his duty of care in providing adequate weather information, Zinn already knew from the SIGMETS issued prior to his departure that the direct route he requested would have encountered developing weather. Zinn would also have been able to see developing cumulonimbus clouds ahead of him as he progressed north from Boca Raton. This controller's negligence and failure to proper FAA procedures, if any, did not cause in fact, or otherwise proximately cause, any injury to Zinn.
49. At approximately 1839:43 UTC, Zinn was advised "five hotel uniform contact Palm Beach approach on one two eight point three, goodbye." Zinn responded "one two eight point three five, hotel uniform, thank you." [DX 84a]
50. At approximately 1840:01 UTC, Zinn contacted the Palm Beach North Departure (BDR) position which was staffed by qualified controller David Miller. He then quickly advised Miller that he wanted to deviate east of his route to avoid a "build-up." When a pilot reports a build-up, controllers understand that they are seeing weather out of their aircraft window. Miller advised the deviation was approved and instructed Zinn to proceed direct to Vero Beach when able stating "it looks like direct Vero is the best shot for you, there's some weather west of Stuart, uh that track should keep you out of it." Zinn advised that if he went higher he would go direct, but that right then he had to go east.
51. At 1840:36 UTC, Miller instructed Zinn to climb and maintain 9,000 feet. Zinn responded "five hotel uniform climbing to nine, thank you." At 1849:45, Miller instructed Zinn to contact Miami ARTCC. Zinn acknowledged.
52. Miller's communications to Zinn included a disclosure of developing weather west of Stuart, which fact was already known to Zinn through the SIGMETs he reviewed and Zinn's own observations onboard the aircraft. Miller did not, however, relay to the Miami ARTCC controller, as set forth in FAA Order 7110.65P, section 5-4-5, the weather deviation he had approved. But even if Miller failed to comply with that regulation, that did not by itself constitute a breach of his duties owed to Zinn. And even if it had, Miller's breach of this duty was not a cause in fact, nor a proximate cause, of any injury to Zinn. Zinn's subsequent communications with the ARTCC controllers evidenced mutual understanding of convective weather activity that Zinn was approaching for which further deviations would be required. Thus, Miller's neglect in his communications with the ARTCC controller did not contribute to Zinn's loss.
53. After Zinn was handed off to Miami ARTCC by Miller, at 1849:51, Zinn contacted Kenneth Beers at the "R3" position at MIA ARTCC and advised that he was level at 9,000 feet. (The R3 sector at Miami Center is also called Melbourne Low). The R3 sector encompasses airspace from the surface to 4000 feet and the R4 sector encompasses 5000 to 9000 feet. On the day of the accident the sectors were combined.
54. At 1850:09 Zinn asked Beers if he could get a higher altitude. Beers responded "I'll have higher for you in about two minutes if that works for you." Because R3 is only responsible for airspace to 9000 feet, Beers needed to "flash" the aircraft to the controller working the airspace above 9000 feet (sector R22). Flashing the aircraft means directing a hand-off. When the other controller accepts the handoff, Beers could issue a frequency change to the pilot to contact the next controller.
55. Beers asked the pilot if two minutes would be okay for the higher altitude because he estimated the handoff process would take approximately that long. Zinn responded "good, I just might have to deviate left or right, I'm not sure yet." Seconds later, at 1850:26, Zinn advised of his decision to deviate, stating "I'm going to make it to the east." Beers responded "roger okay, uh Vero Beach when able."
56. Zinn's statement that he wanted to deviate to the east indicated that Zinn could see and appreciate the weather ahead and was taking action. Because Zinn was deviating on his own, Beers believed that a weather advisory was unnecessary.
57. During the time that the aircraft was on the R3 frequency, Beers was giving a position relief briefing to Timothy Quinn who was about to take control of the sector. A controller position relief briefing is an operational requirement that is safety related and not and administrative function. As part of that relief briefing, Beers advised that Zinn needed to be "shipped" or transferred to the next control sector because Zinn wanted to go higher than 9000 feet.
58. Quinn assumed control of the position and issued a frequency change to Zinn that transferred the aircraft to R22. Quinn did not issue weather advisories to Zinn because he did not consider the weather to be a factor to the aircraft's route of flight. Quinn's decision not to provide Zinn with weather information was also reasonable because the pilot had requested a higher altitude which would place the aircraft in the R22 sector's airspace and it was more important for the R3 controller to effectuate that transfer of the aircraft to the R22 sector.
59. Thus, an updated weather briefing from Quinn was neither pertinent nor possible as the primary and most essential function of that controller was to properly transfer the aircraft to the R22 sector. Quinn did not breach a duty owed to Zinn in this regard.
60. Following that transfer, the next position along the aircraft's route of flight was the R22 position at Miami ARTCC being worked by controller Harvey Pake. At 1852:00, Zinn contacted the R22 position and said "miami center skymaster five hotel uniform uh request climb." At 1852:05, Pake responded "November five hotel uniform miami center, climb and maintain one one thousand." At the time Zinn signed on the frequency, the aircraft was northwest of the Stuart Airport. No other aircraft had been in that area.
61. At 1852:11, Pake issued pertinent weather information to Zinn, advising him "November five hotel uniform be advised weather area twelve o'clock five miles moderate to heavy precipitation. I do show a break about five miles wide and then picks back up to heavy, extreme and uh, correction, moderate to heavy and extreme precipitation. Advise of your deviations please."
62. Pake's issuance of weather information at this point in his communication with Zinn was in general compliance with the provisions of FAA Order 7110.65P, section 2-6-4. It also satisfied Pake's duty of care to Zinn to provide relevant weather information if possible given Pake's primary obligation at traffic separation. But at the moment of this transmission, Zinn was approaching heavy precipitation ranging from 10 o'clock to 1 o'clock, based upon radar returns available to Pake. It would have been most accurate to provide that weather advisory at the time of this transmission.
63. At 1852:25, Zinn responded "five hotel uniform, deviating to the west around that weather, looks clear behind that." At 1852:31 Pake responded "alright, uh understand you want to go west." Zinn replied "yes sir, I'm heading 300 right now to get by that weather."
64. This transmission indicated to Pake that the pilot saw a clearing, signifying that he was still under VMC conditions. It also manifested a clear intent from Zinn to deviate in that direction to avoid the "moderate to heavy precipitation" that Zinn was alerted to.
65. Pake deferred to Zinn's choice of route, which deference was reasonable under the circumstances and not a breach of the duty of care owed to Zinn.
66. But given that at that precise moment in time moderate, heavy and possibly even extreme echos were visible on Pake's radar screen, a turn to a 300 degree heading, northwest of Zinn's existing position, would bring Zinn's aircraft perilously close to the leading edge of a convective cell, an area that can present very hazardous conditions.
67. A 300 degree heading at that point undoubtedly made the weather to Zinn's 10 o'clock highly pertinent to the route of flight he chose. Pake, who paused and seemed to recognize the possible danger this could pose given what he could see on his radar screen, never updated or supplemented the weather briefing he had provided earlier.
68. Radar returns at that point confirm that there was indeed a small break between patches of convective activity that Zinn was encountering. This small break is possibly the "clearing" that Zinn believed was available to him on his route of flight. The problem is that the small break was fairly small and clearly did not take Zinn safely clear of the center of convective activity as required by a pilot's duty of care, which the FAA itself warns pilots against.
69. A reasonably prudent controller, when presented with this information and observing what was readily visible to him on his radar screen, should have corrected the earlier incomplete briefing and provide Zinn with a clear indication that heavy precipitation and echo intensities were still possible on a 300 degree deviation.
70. It is true that when Zinn indicated he wanted to deviate west, a possible separation issue arose because of Zinn's proximity to the boundary of Sector 46. Accordingly, Pake performed a "point out" to the sector 46 controller. That separation issue did not relieve Pake, however, from the duty to provide accurate weather information when possible, as required by FAA Order 7110.65P, section 2-6-4. It was indeed possible for Pake to make that clarification, especially given the hazardous weather Zinn was encountering, as known to Pake based on the radar returns available to him at that precise moment.
71. It is also true that during this time period Zinn should have been aware of lightning strikes to his northwest on the stormscope, again on the reasonable inference that it was engaged at the time. The lightning strikes remain depicted on the stormscope display for two to four minutes. Because there was constant lightning along the accident flight's route, Zinn's stormscope would have continuously depicted lightning.
72. Nevertheless, Zinn proceeded on his 300 degree deviation. Thirty seconds later, at 1853:05 Zinn asked "Hotel uniform, uh does my heading look clear to you at this point." Zinn's voice on the audiotape recording of the communication expresses some agitation. The radar returns for that specific moment in time, which were available to Pake, evidenced that Zinn was edging perilously close to the northeast edge of a heavy to possibly extreme center of convective activity, well within the twenty-mile area that should be avoided by small aircraft pilots.
73. At that moment, it is more likely than not that Zinn was encountering severe turbulence, wind-shear and extreme G-forces on the aircraft that was making it difficult to control the aircraft.
74. Nevertheless, at 1853:05, Pake responded "November five hotel uniform, I cannot uh suggest any heading because my weather radar only picks up precipitation and is not as accurate as what you see out the window. You are cleared to deviate left and right of course. When able, direct to Melbourne. Just advise when you can go back." At 1853:18 Zinn responded "five hotel uniform, wilco," indicating that he understood the transmission and would comply.
75. It is true that ATC controllers do not know what is "clear" because they only see precipitation on their radar scopes. They do not see clouds and cannot tell if a path is clear. Pake could have interpreted the question from Zinn as asking whether there were any visibly clear areas along Zinn's route of flight, which a reasonable controller is not able to provide.
76. But, a reasonably prudent controller would also have understood that Zinn was at minimum asking for the controller to "[p]rovide radar navigational guidance and/or approve deviations around weather or chaff areas when requested by the pilot." FAA Order 7110.65P, section 2-6-4(a).
77. That same regulation provides that the controller "suggest an alternative course of action" when a deviation cannot be approved as requested and the situation permits. Id. section 2-6-4(a)(4). Given the data available to the controller and the time that he had to address Zinn's request, a reasonably prudent controller would have indeed provided an alternative course of action to Zinn at that moment given that Zinn was undoubtedly encountering possibly severe conditions. An immediate 20 to 30 degree turn would have been the advisable course and response to Zinn's request for assistance, as the controller is required to do "[i]n areas of significant weather . . . to suggest, upon pilot request, the use of alternative routes/altitudes." Id. section 2-6-4(b).
78. At the very least, even if a course recommendation was not feasible given the complexity of the entire weather area that Zinn was encountering, and the uncertainty that the controller may have had as to the precise location that Zinn was in that corresponded with the radar returns available to Pake, a reasonably prudent controller at minimum would have had to clarify the earlier weather briefing that Pake provided. Specifically, given the 300 degree heading that Pake had just approved, and in response to a request for assistance from the pilot, an immediate indication to the pilot that a ten o'clock heading was also encountering heavy to extreme precipitation was essential. That information, which was accurate and reasonably reliable based upon the data that the controller could see on his screen, was the bare minimum that the controller should have provided to satisfy his duty of care. That information, however, was not provided at the time that it was most needed by the pilot.
79. Moreover, the proper way to issue weather was also the subject of additional training that took place at Miami Center on July 12, 2005, just prior to this accident. Clinton Weekes, Miami Center Operations Manager, distributed a memorandum to facility managers at Miami Center regarding DSR radar intensities and WARP radar intensities. He explained that two accidents had occurred on June 20, 2005 while both aircraft were in hazardous weather under the control of Miami Center and that "the investigation of controllers and supervisors revealed deficiencies in both parties related to collection, interpretation and dissemination of weather data." [PX 88] Mr. Weekes attached section 2-6-4 of FAA Order 7110.65P to his memorandum so that the facility managers could properly instruct their controllers on their duty responsibilities when working aircraft in weather.
80. Instead, and compounding the breach of the duty of care, Pake provided Zinn with incorrect information; namely, that he had no ability to suggest a heading at all. We know from the governing regulation and FAA manual that this is not the case. Id. In addition, air traffic controllers are directed to vector aircraft for safety reasons as set forth in section 5-6-1, which provides for vectoring of aircraft "[i]n controlled airspace for separation, safety, noise abatement, operational advantage, or when a pilot requests." Clearly, aircraft encountering an area of convective activity presents a hazardous safety situation. Hence, two bases for vectoring an aircraft existed at the time and required a reasonably prudent controller to assist the pilot with a vector heading that was most reasonable given the information available to the controller.
81. Notwithstanding the plain language of the FAA Order, and the training disseminated to controllers at Miami Center regarding their duties to provide weather assistance under section 2-6-4, Pake neglected to provide assistance when it was possible to do so, and at minimum failed to provide a complete and accurate weather ...