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Air Traffic Control And The Discretionary Function Exception- What It Means In The Event Of An Accident

One of the top reasons accidents occur are from mistakes made by pilots, flight crews, ground crews, and air traffic controllers.

Unfortunately, no matter what how much planning and preparation is done to try to avoid these accidents, there will always be the factor of human error. It is unavoidable. When the public thinks of human error that caused an aircraft accident, many immediately assume it was the flight crew. There is however, another side to the story. Sometimes accidents occur in result of an error that was made by an air traffic controller. In cases such as these, someone will still be held accountable.

Air Traffic Controllers go through extensive training and are trained to be able to handle most every situation that may arise. However, as with any profession, there is no way to actually train for every situation. There will always be things that can happen that are unpredictable, and therefore cannot be trained or written in a manual. When a controller comes across one of these circumstances, the controller is expected to revert back to his knowledge from his training and provisions in the controller handbook. Many times a decision must be made immediately, and the controller is expected to make his or her best decision. Even when exercising what they think the best decision is, it may sometimes still result in an accident. So, who is to blame? Is anyone to blame?

This question goes back to the Federal Tort Claims Act. The Federal Tort Claims Act permits private parties to sue the US in a federal court for harm committed by persons acting on behalf of the United States. There is a limitation known as the Discretionary function exception. The discretionary function exception restores the government's immunity in situations where its employees are carrying out governmental or 'regulatory' duties. Under this rule it could mean that as long as air traffic controllers were carrying out what they believe to be their best judgment they may not be found at fault. While this may sound applicable, courts have ruled that an air traffic control error never falls within the Discretionary Function Exception.

Yes- air traffic controllers can be found at fault and not covered under the discretionary function rule.

In the United States, an air traffic controller can be held liable. However, the United States will pay any damages associated with the lawsuit unless the controllers actions were intentional. The victim may sue under the FTCA for the controllers’ negligence. From there the case would go to federal court, similar to the way it would as if one were suing an individual under the same circumstances.

There are other rules that will apply that will make the lawsuit process different, including certain forms that must be filled out, the damages that may be awarded, and who judges the case. These and other variations are ones that the victim will want to be well aware of before the process begins.


Curry, Pearson & Wooten, is uniquely positioned to handle these cases as Michael Pearson is a former air traffic controller with almost 27 years of FAA experience. In addition, he litigates cases in federal court on a regular basis. We handle cases worldwide. Call us for further information.  


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