                                                   NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                   ______________

                         No. 14-3834
                       ______________

    JOSEPH N. TURTURRO, ADMINISTRATOR OF THE
     ESTATE OF ADAM B. BRADDOCK, DECEASED;
     CHARLES ANGELINA, INDIVIDUALLY AND AS
    PERSONAL REPRESENTATIVE OF THE ESTATE OF
      CHARLES ANTHONY ANGELINA, DECEASED;
     VIRGINIA ANGELINA, INDIVIDUALLY AND AS
    PERSONAL REPRESENTATIVE OF THE ESTATE OF
      CHARLES ANTHONY ANGELINA, DECEASED,

                                                      Appellants

                              v.

             UNITED STATES OF AMERICA,
         FEDERAL AVIATION ADMINISTRATION;
          AGUSTA AEROSPACE CORPORATION
                   ______________

        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                (D.C. Civ. No. 2-10-cv-02460)
         Honorable R. Barclay Surrick, District Judge
                      ______________

          Submitted under Third Circuit LAR 34.1(a)
                      October 6, 2015

BEFORE: SHWARTZ, KRAUSE, and GREENBERG, Circuit Judges

                   (Filed: October 9, 2015)
                                     ______________

                                       OPINION*
                                     ______________


GREENBERG, Circuit Judge.

                                   I. INTRODUCTION

       These consolidated cases arise out of a tragic airplane crash at Northeast

Philadelphia (“the airport”) Airport that resulted in the death of flight student Charles

Angelina and his instructor Adam Braddock. The crash occurred when Angelina’s and

Braddock’s Grumman AA-1C airplane (the “Grumman”) stalled while making a right

turn during departure. Decedents’ estates brought suit for negligence against both the

United States of America as air traffic controller (“ATC”) and Agusta Aerospace

Corporation (“Agusta”), which owned an Agusta 139 helicopter that was departing from

the airport at the same time as the Grumman. Plaintiffs claim that ATC breached its duty

of care by clearing the Agusta helicopter for a westerly departure in the direction of the

Grumman’s operation and then suddenly and urgently instructing the Grumman to turn

right, placing it on a potentially conflicting path with the Agusta; they claim that the

Agusta pilots breached their duties of care by making the westerly departure and

inadequately communicating their intentions. Although the Grumman and the Agusta did

not come close to colliding, plaintiffs claim that defendants’ conduct caused Angelina to

____________________

*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
experience an involuntary startle reaction when he saw the Agusta, leading him to lose

control of the Grumman. Defendants each moved for summary judgment, and the

District Court granted the motions on August 22, 2014. Because plaintiffs did not

produce sufficient evidence that the Agusta pilots breached any duty of care or that

Angelina actually experienced the alleged startle reaction, we conclude that plaintiffs,

now appellants, cannot support their claims against either defendant and therefore we will

affirm the order for summary judgment.



                  II. FACTUAL AND PROCEDURAL BACKGROUND

       The crash occurred at approximately 11:58:05 A.M. on May 22, 2008, at the

airport. The airport houses several flight training schools and has two intersecting

runways: Runway 33 which runs to the northwest at 330 degrees, and Runway 24 which

runs to the southwest at 240 degrees. Agusta’s facility and the Federal Aviation

Administration (“FAA”) Air Traffic Control Tower are both located around midfield, to

the east of the intersection of the two runways.

       The Grumman AA-1C is a small, two-seat airplane, and the Agusta 139 is a much

larger, fifteen-seat helicopter. Angelina was operating the Grumman from the left seat,

while Braddock was in the right seat. They were practicing touch-and-go takeoffs and

landings on Runway 33. At that time Agusta company pilot Steven Farr and his customer

trainee pilot Alan Baldwin were in the Agusta, preparing to depart on a training flight to

Lancaster, Pennsylvania, to the west of the airport.
       Local controller Jennifer Richburg at the airport took over responsibility for active

runways about five minutes before the crash, at 11:53:04 A.M., facing a “light to

moderate” air traffic load. J.A. 798. She almost immediately began having trouble. The

Air Traffic Control Manual (“ATCM”) provides that when communicating with aircraft,

ATC should use an identification prefix such as the aircraft’s type, model, or

manufacturer’s name, followed by the last three digits or letters of the aircraft’s

registration number. ATCM §§ 2-4-9.a., 2-4-20.a.1. J.A. 814-15. For example, the

Grumman, which had registration number N9555U, would be referred to as “Grumman

55U.” Plaintiffs’ ATC expert, Richard P. Burgess, explained that the purpose of these

ATCM provisions “is to avoid confusion caused by just using only numbers and also to

identify the type aircraft for other traffic in the pattern or airport traffic area.” J.A. 973.

Throughout the period leading up to the crash, however, Richburg referred to aircraft

based on identification prefix or its registration number.

       There was an additional problem because Richburg gave instructions to the wrong

aircraft and then misidentified another aircraft. First, after the Grumman pilots requested

a left downwind touch-and-go, she directed, “55U altitude and speed permitting make

right traffic runway 33.” J.A. 1441. After the Grumman pilots pointed out the error in

this instruction, Richburg corrected herself: “55U disregard that call[;] correction 76M

make right traffic runway 33.” J.A. 1441. Richburg made a further error because she

incorrectly identified an aircraft called a Caravan as a Cheyenne, a different aircraft.

       At 11:56:06 A.M., the Agusta pilots requested a “westerly departure.” J.A. 1443.

The wind at the time was blowing at eight knots from a northwest direction of 330
degrees, a significant fact because aircraft should take off into the wind. Indeed, one of

the plaintiffs’ experts, Vernon Albert, testified that “aircraft are supposed to take off and

land into the wind,” J.A. 1685, and that “as far as wind direction, [the Agusta pilots’

requested takeoff] was probably appropriate.” J.A. at 1687. After the Agusta pilots

requested the westerly departure, Richburg momentarily held them due to the Grumman’s

intended departure on Runway 33 and asked the Agusta pilots if they had “that

Grumman” in sight. J.A. 1444. When the Agusta pilots confirmed that they did,

Richburg informed them that “that Grumman will be in a left downwind departure” and

cleared the Agusta to “proceed on course” with its departure. J.A. 1444.

       The Agusta took off and began moving to the northwest while the Grumman

began its climb for its “left downwind departure” on Runway 33. Suddenly, Richburg

directed, “55U make right traffic.” J.A. 1444. Unlike in an earlier instruction, she did

not use the phrase “altitude and speed permitting” at this time. Burgess testified that the

timing of the instruction and the sound of Richburg’s voice conveyed a sense of urgency.

J.A. 1029-30. As a result, Angelina immediately commenced a right-hand turn, a move

that surprised the Agusta pilots as they had not heard Richburg change her directions to

the Grumman. Albert noted that this missed transmission by the Agusta pilots may have

indicated that they were not aware of the situation, although he acknowledged that a

single missed call generally does not reflect such a loss of situational awareness. Another

of plaintiffs’ experts, Carlos Diaz, a medical doctor, testified that a pilot reasonably might

not hear a communication between ATC and another aircraft due to other factors

requiring the pilot’s attention, including operation of the pilot’s own aircraft as well as
the pilot’s own communications with ATC. Burgess added that other pilots could have

missed this particular transmission because by referring to “55U” without using the prefix

“Grumman,” “it’s questionable . . . whether the other pilots would know exactly what

airplane [Richburg was] talking about.” J.A. 1029.

       Upon seeing the Grumman begin its right-hand turn, Baldwin uttered “what the

F,” J.A. 1385, and the Agusta pilots immediately executed a maneuver called a “quick

stop” to prevent the two aircraft from “converging on each other” if they each continued

on their respective paths. J.A. 745, 838. The Grumman, however, banked too far to the

right, stalled, and crashed into the ground, killing both Angelina and Braddock.

       At the time of the accident, Agusta and the airport were developing a Letter of

Agreement (“LOA”) to facilitate Agusta helicopter departures to the east and south, away

from the two active runways. The LOA provided that Agusta pilots would request such

departures “[u]nless otherwise coordinated” by the pilot and ATC. J.A. 1367. Although

the LOA was not yet in effect at the time of the crash, on request Agusta helicopters at

that time could utilize similar eastern and southern routes. Furthermore, the helicopters

could turn and depart in such directions even if the wind required them to take off to the

north or west.

       Different witnesses offered different meanings of the Agusta pilots’ request for a

“westerly” departure, ranging from within five degrees of due west (270 degrees) to

anywhere up to due north (360 degrees). Plaintiffs’ ATC experts opined, however, that

the Agusta’s northwest departure complied with the clearance that it received: Burgess

testified that from an ATC perspective, the Agusta pilots did nothing wrong based on
“the clearance that they received and how they responded,” J.A. 1700, and another

plaintiffs’ expert, Joseph Gramlich, testified: “Based on an air traffic control perspective,

no, I did not see anything wrong from the Agusta pilots.” J.A. 471. Plaintiffs’ accident

reconstruction expert, Douglas Stimpson, likewise testified that the Agusta pilots’

northwest departure was “within their ATC instructions.” J.A. 446. Finally, plaintiffs’

pilot expert, John L. Suchocki, testified that the Agusta pilots complied with their duties

under the Federal Aviation Regulations (“FARs”) and that they did not do anything

wrong on the day of the accident. J.A. 455. In addition, Richburg testified that she saw

no problem with the Agusta pilots’ request for a westerly departure or their taking off to

the northwest after receiving clearance.

       When Baldwin took off he intended to turn the Agusta even further to the right

and fly parallel with Runway 33 to give the Grumman space for its touch and go on

Runway 33. Plaintiffs’ pilot and accident reconstruction expert, Donald E. Sommer,

noted in his report that the Grumman pilots “would have been aware that a westerly

departure from the location of the Agusta could well have included an initial turn to the

north around the departure end of runway 33,” consistent with normal operations at the

airport. J.A. 1510. Baldwin ultimately did not make the additional turn north as the

crash occurred before the Agusta was “near close enough to get going.” J.A. 1387.

       Sommer estimated that the Agusta was 2,678 feet from the Grumman when

Richburg gave the direction to “make right traffic” and 2,627 feet from the Grumman

when it stalled. J.A. 1747. Based on Sommer’s reconstruction, the Agusta had not yet

reached Runway 24. Although he testified that the Agusta could have collided with the
Grumman if the two aircraft had continued on their paths, Sommer conceded that “there

[was] no collision hazard with the Grumman” provided the Agusta stopped, which it did.

J.A. 1744. Albert opined that the Agusta was closer to 1,000 feet from the Grumman

based on the ability of the Agusta pilots to describe the angles at which the Grumman

banked, but he later acknowledged that he might have been underestimating the distance

and would acquiesce to the Agusta pilots on that point. Furthermore, Albert testified that

even a distance of 1,000 feet between the aircraft would not have created an emergency.

       Nevertheless, plaintiffs contend that the cause of the crash was Angelina’s

involuntary startle reaction when he saw the Agusta. They contend that this reaction

caused him to pull back on the yoke and stall the aircraft. Plaintiffs relied on expert

testimony from Diaz, who described the “startle response” as an unreasoned, involuntary

brainstem reflex that often results in a “jerking, rapid movement of the voluntary

muscles, such as rapid flexion of the arms or clenching of the hands.” J.A. 1117. Diaz

explained that any stimulus perceived as a threat, no matter how small or unlikely the

threat may seem upon conscious reflection, may cause a startle response which is an

unreasoned reflex. J.A. 1144. Diaz ultimately opined that the Grumman stalled because

Angelina experienced a startle reaction. Nevertheless, he acknowledged that pilot error

could have caused the stall. J.A. 1145.

       Plaintiffs filed suit in the District Court asserting claims of negligence against the

United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80

(“FTCA”), based on federal employees’ performance as ATC and against Agusta under

Pennsylvania law based on the Agusta pilots’ operation of the helicopter. They also
claimed that the Agusta pilots’ operation of the helicopter breached a provision of

Agusta’s lease agreement with the City of Philadelphia requiring it to “observe and

comply with all requirements of the constituted public authorities and with all federal,

state, or local statutes, ordinances, regulations and standards applicable to [Agusta] or its

use of the Premises,” including the FARs. See J.A. 1638.1

       Defendants each moved for summary judgment, which the District Court granted

on August 22, 2014, in an exceptionally detailed and thoughtful opinion. Turturro v.

United States, 43 F. Supp. 3d 434 (E.D. Pa. 2014). The Court reasoned in part that

plaintiffs could not show that the Agusta pilots breached any duty of care and that, even

if ATC did commit a breach of a duty of care, plaintiffs’ startle theory of causation rested

on insufficient speculation to support a cause of action. See id. at 452, 458-59. Plaintiffs

appealed to this Court.



         III. STATEMENT OF JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction over plaintiffs’ FTCA claims against the

United States pursuant to 28 U.S.C. § 1346(b)(1). It had supplemental jurisdiction over

their state law claims against Agusta pursuant to 28 U.S.C. § 1367. We have appellate

jurisdiction pursuant to 28 U.S.C. § 1291.

       We exercise plenary review over a district court’s grant of summary judgment,

employing the same standard that applied in the district court. Blunt v. Lower Merion

1
  Plaintiffs also brought a claim against the United States based on spoliation of evidence,
obstruction of justice, and violation of due process of law. The District Court rejected
this claim and plaintiffs do not challenge that ruling on this appeal.
Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014), cert. denied, 135 S.Ct. 1738 (2015). Under

this standard, “[t]he court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). There is a genuine dispute if the evidence is

sufficient for a reasonable factfinder to return a verdict for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). If,

however, the moving party can demonstrate that its opponent has “fail[ed] to make a

showing sufficient to establish the existence of an element essential to that party’s case,

and on which that party will bear the burden of proof at trial,” then the court should

award the moving party summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322,

106 S.Ct. 2548, 2552 (1986). In addressing this question a court must view the evidence

and all reasonable inferences that can be drawn from the evidence in the light most

favorable to the nonmoving party. Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010).

But a mere “scintilla of evidence” in the nonmovant’s favor does not create a genuine

issue of fact. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. Nor may the nonmovant rest

on speculation or conjecture. Jackson v. Danberg, 594 F.3d 210, 226-28 (3d Cir. 2010).



                                        IV. DISCUSSION

       Plaintiffs assert claims of negligence against both ATC and Agusta. The FTCA

holds the United States liable in tort for damages “caused by the negligent or wrongful

act or omission of any employee of the Government while acting within the scope of his

office or employment, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the act or

omission occurred.” 28 U.S.C. § 1346(b)(1). Inasmuch as all the events in this case

transpired in Pennsylvania, to the extent that this case implicates state law we are

applying Pennsylvania law.

       “In Pennsylvania, the general rules of negligence apply to negligence actions

involving airplane crashes.” Remo v. U.S. F.A.A., 852 F. Supp. 357, 365 (E.D. Pa.

1994); see Himmler v. United States, 474 F. Supp. 914, 929 (E.D. Pa. 1979). To

establish negligence under Pennsylvania law, a plaintiff must show that “(1) the

defendant had a duty to conform to a certain standard of conduct; (2) the defendant

breached that duty; (3) such breach caused the injury in question; and (4) the plaintiff

incurred actual loss or damage.” Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa.

2011). In aviation accident cases, federal law preempts state law on the first of these

elements, as federal law provides the standard of care applicable to air safety. Abdullah

v. Am. Airlines, Inc., 181 F.3d 363, 367-68 (3d Cir. 1999). But state law governs with

respect to the other elements of breach, causation, and damages to establish a negligence

claim. See Elassaad v. Indep. Air, Inc., 613 F.3d 119, 125 (3d Cir. 2010).

       Plaintiffs have no trouble establishing the first and fourth elements needed to

establish a cause of action for negligence: the existence of a duty to conform to a standard

of care and their ultimate damages. Pilots and air traffic controllers owe concurrent

duties of care over aircraft safety. Rodriquez v. United States, 823 F.2d 735, 746 (3d Cir.

1987); Redhead v. United States, 686 F.2d 178, 182 (3d Cir. 1982). Thus, the dispute

focuses on the second and third elements of a negligence claim: whether defendants
breached their duties of care and, if so, whether the breach was the but-for and proximate

cause of plaintiffs’ damages. A plaintiff carries the burden of proof on each of these

elements. Rice v. Shuman, 519 A.2d 391, 395 (Pa. 1986). Although the issues of breach

and causation ordinarily present questions of fact, a court may decide them as a matter of

law where reasonable minds could not differ as to their resolution. Summers v.

Certainteed Corp., 997 A.2d 1152, 1163 (Pa. 2010) (citation omitted); Emerich v. Phila.

Ctr. for Human Dev., Inc., 720 A.2d 1032, 1044 (Pa. 1998).

       We address plaintiffs’ claims against Agusta and ATC in turn. We agree with the

District Court, that the Agusta pilots did not breach their duties and that even if ATC

breached its duties, such breach did not proximately cause plaintiffs’ damages.

              A.     Claim Against Agusta

       Aircraft pilots must comply with the duties set forth in the FARs, which have “the

force and effect of law.” Rodriquez, 823 F.2d at 739. Plaintiffs primarily assert that the

Agusta pilots breached their duties under two FAR provisions: 14 C.F.R. §§ 91.13(a) and

91.111(a). Section 91.13(a) provides generally that “[n]o person may operate an aircraft

in a careless or reckless manner so as to endanger the life or property of another.” 14

C.F.R. § 91.13(a); accord Abdullah, 181 F.3d at 365 (describing this provision as creating

“an overarching general standard of care”). Section 91.111(a) provides that “[n]o person

may operate an aircraft so close to another aircraft as to create a collision hazard.” 14

C.F.R. § 91.111(a). Plaintiffs also assert that the Agusta pilots violated parts of the

Aeronautical Information Manual (“AIM”) and other FAA publications. The FARs
require pilots to know and use relevant portions of the AIM and FAA advisory circulars.

14 C.F.R. § 61.105(b)(3); see Rodriquez, 823 F.2d at 739.

       In arguing that the Agusta pilots breached their safety duties, plaintiffs point to

three categories of conduct: (1) the Agusta pilots’ request for a “westerly” departure, in

the direction of two active runways; (2) their failure to clarify that they planned to go

further to the northwest; and (3) their failure to hear Richburg’s direction to the

Grumman to “make right traffic.” We address each of these acts or omissions below and

conclude that, whether considered individually or collectively, they cannot support a

finding that Agusta breached its duties.

       First, plaintiffs contend that the Agusta pilots should have requested a departure to

the east or south, which would have directed them away from the active runways and the

flow of fixed-wing traffic. Although the LOA had not yet been implemented at the time

of the crash, plaintiffs emphasize that Agusta helicopters already could seek departures to

the east and south. Plaintiffs, however, have not provided adequate evidence to show that

the Agusta pilots breached their duties by not requesting such a departure.

       The undisputed evidence establishes that the Agusta pilots acted properly in

seeking to take off to the west. At the time of takeoff, the wind was blowing from the

northwest at a speed of eight knots, and the record demonstrates that helicopters should

take off into the wind. Section 9-5 of the FAA Rotorcraft Flying Handbook directs pilots

on takeoff to “head the helicopter into the wind, if possible.” J.A. 1750. Several

witnesses echoed this sentiment. Indeed, plaintiffs’ expert Albert testified that “aircraft
are supposed to take off and land into the wind,” J.A. 1685, and that “as far as wind

direction, [the Agusta pilots’ requested takeoff] was probably appropriate.” J.A. at 1687.

       Plaintiffs concede the foregoing but argue that after taking off to the west, the

Agusta pilots should have turned the helicopter in a different direction. Although

plaintiffs presented evidence that the Agusta pilots could have executed such a maneuver,

they have not shown that the pilots were required to do so in the circumstances here.

Plaintiffs point to language in AIM § 4-3-17.a.2. that “[i]nsofar as possible, helicopter

operations will be instructed to avoid the flow of fixed-wing aircraft.” J.A. 1484. But the

remainder of that sentence clarifies that the provision’s purpose is “to minimize overall

delays” and that “there will be many situations where faster/larger helicopters may be

integrated with fixed-wing aircraft for the benefit of all concerned.” AIM § 4-3-17. a.2.,

J.A. 1484. Thus, section 9-18 of the FAA Rotorcraft Flying Handbook informs pilots

that “[w]hen a control tower is in operation, you can request the type of departure you

desire. In most cases, helicopter departures are made into the wind unless obstacles or

traffic dictate otherwise.” J.A. 1751.

       The Agusta pilots desired to depart to the west in the direction of both the wind

and their destination, Lancaster, Pennsylvania, and traffic did not “dictate” against such a

departure because it was “light to moderate” at the time. J.A. 798. Indeed, even after the

LOA took effect, helicopters could depart in directions besides east and south if, as here,

the pilot and ATC so coordinated. Furthermore, according to plaintiffs’ expert Sommer’s

reconstruction of the accident, the Agusta pilots had not reached Runway 24, let alone

Runway 33, by the time the Grumman lost control and crashed. The mere showing that
the Agusta pilots could have sought a departure away from these runways does not create

a genuine issue of fact as to whether they breached their duties by requesting a different

departure; if it did, such an issue as to breach would arise in each of the “many

situations” where helicopters integrate in the flow of fixed-wing traffic. AIM § 4-3-

17.a.2., J.A. 1484.

       Second, plaintiffs argue that the Agusta pilots should have clarified that they

planned to go northwest rather than due west after ATC cleared them for a “westerly”

departure. In support of this argument, plaintiffs emphasize that “[t]he single, most

important thought in pilot-controller communications is understanding.” AIM § 4-2-1.b.,

J.A. 1481. They further note that pilots should “[r]equest[] clarification or amendment,

as appropriate, any time clearance is not fully understood.” AIM § 5-5-2.a.3., J.A. 1486.

In addition, plaintiffs suggest that the Agusta pilots’ unexpressed intention to turn right

and fly further north to parallel Runway 33 violated the AIM provision dealing with

“Unexpected Maneuvers in the Airport Traffic Pattern”: “Should a pilot decide to make

maneuvering turns to maintain spacing behind a preceding aircraft, the pilot should

always advise the controller if at all possible.” AIM § 4-3-5., J.A. 1483.

       We realize that according to Sommer’s report, the Grumman pilots “would have

been aware that a westerly departure from the location of the Agusta could well have

included an initial turn to the north around the departure end of runway 33,” consistent

with normal operations at PNE. J.A. 1510. But the Agusta pilots never made the

referenced right turn because the crash occurred before they were anywhere “near close

enough to get going.” J.A. 1387. We do not see how the Agusta pilots could have
violated any communication responsibilities by failing to warn of a maneuver that they

did not make.

        Plaintiffs’ other accusations regarding the Agusta pilots’ alleged failure to clarify

their intentions led to different witnesses expressing somewhat varying views on the

meaning of the term “westerly.” But plaintiffs’ own experts opined that the Agusta pilots

responded appropriately to their clearance. Burgess testified that from an ATC

perspective, the Agusta pilots did nothing wrong based on “the clearance that they

received and how they responded.” J.A. 1700. Gramlich testified that “[b]ased on an air

traffic control perspective, no, I did not see anything wrong from the Agusta pilots.” J.A.

471. Stimson likewise testified that the Agusta pilots’ departure to the northwest was

“within their ATC instructions.” J.A. 446. Finally, Richburg, the very individual to

whom plaintiffs suggest that the Agusta pilots should have clarified their intentions,

similarly did not express any problem with the Agusta pilots’ request for a westerly

departure or their taking off to the northwest after receiving clearance. Given these views

of both plaintiffs’ ATC experts and the controller involved, plaintiffs cannot demonstrate

that there was a defect in how the Agusta pilots communicated with ATC.

        Third, plaintiffs fault the Agusta pilots for not hearing Richburg’s direction, “55U

make right traffic.” They contend that this missed communication by the Agusta pilots

violated a portion of AIM § 4-2-1.b. which provides that “[p]ilots are to maintain

vigilance in monitoring air traffic control radio communications frequencies for potential

traffic conflicts with their aircraft especially when operating on an active runway.” J.A.

1481.
       But the evidence that plaintiffs produced belies the conclusion that this single

missed transmission shows that the Agusta pilots lacked diligence. Cf. Transco Leasing

Corp. v. United States, 896 F.2d 1435, 1447 (5th Cir. 1990) (holding that duty “to

exercise vigilance so as to see and avoid other aircraft” did not create “absolute duty to

see and avoid”), amended on reh’g on other grounds, 905 F.2d 61 (5th Cir. 1990); In re

Greenwood Air Crash, 924 F. Supp. 1518, 1535 (S.D. Ind. 1995) (same). Albert testified

that the mere fact that a pilot missed a single call generally does not reflect the pilot’s

loss of situational awareness. J.A. 1689. Diaz added that a pilot reasonably might not

hear a communication between ATC and another aircraft due to other factors requiring

the pilot’s focus, including operation of the pilot’s own aircraft as well as the pilot’s own

communications with ATC. J.A. 1146. Moreover, after referring to “that Grumman,”

without registration numbers, in notifying the Agusta pilots of the Grumman’s initial left

downwind departure plan, Richburg used the registration numbers alone in redirecting the

Grumman to the right. J.A. 1444. As Burgess explained, such a discrepancy could

justify other pilots in missing the transmission as in the absence of the prefix

“Grumman,” “it’s questionable . . . whether the other pilots would know exactly what

airplane [Richburg was] talking about.” J.A. 1029. Notwithstanding their missing of the

single transmission, the Agusta pilots kept the Grumman in sight and stopped as soon as

the Grumman began to turn right. In these circumstances, plaintiffs cannot demonstrate

that the Agusta pilots lacked vigilance or situational awareness.

       Plaintiffs finally argue that the Agusta pilots’ collective conduct violated 14

C.F.R. §§ 91.13(a) and 91.111(a) by bringing them too close to the Grumman. Certainly
pilots violate § 91.13(a) if they engage in careless or reckless conduct that causes

potential, even if not actual, danger. See GoJet Airlines, LLC v. F.A.A., 743 F.3d 1168,

1172 (8th Cir. 2014); Cooper v. Hinson, 109 F.3d 997, 1001 (4th Cir. 1997); Roach v.

Nat’l Transp. Safety Bd., 804 F.2d 1147, 1157 (10th Cir. 1986). Moreover, pilots violate

§ 91.111(a) if they fly so close to another aircraft as to create a collision hazard even if

there is not a collision. See Bennett v. Nat’l Transp. Safety Bd., 66 F.3d 1130, 1135-36,

1138 n.11 (10th Cir. 1995).

       Nevertheless, Sommer conceded that “there [was] no collision hazard with the

Grumman” given that the Agusta pilots executed the quick stop. J.A. 1744. Based on

Sommer’s reconstruction of the accident, the Agusta pilots were more than half a mile

from the Grumman and flying slowly when the Grumman received the instruction to

“make right traffic,” and the Agusta traveled only 50 feet closer to the Grumman before

the Grumman pilots lost control. J.A. 1747. Even if we accepted Albert’s speculative

estimate that the Agusta pilots were only about 1,000 feet from the Grumman when they

turned, he acknowledged that even this distance was not so close as to create an

emergency. J.A. 1100. The Agusta pilots’ precautionary decision to execute the quick

stop no more demonstrates that they came so close as to breach their duties under the

FARs than it demonstrates that the Grumman pilots breached these same duties by

making the right turn that more immediately put the two aircraft on potentially

conflicting paths. Cf. Transco, 896 F.2d at 1447 (“Without more, the fact that two

airplanes collide in mid-air in visual meteorological conditions is not evidence of

negligence on the part of both pilots or of negligence on the part of one, but not the other,
pilot.”). Finally, plaintiffs’ own pilot expert, Suchocki, testified that the Agusta pilots

complied with their duties under the FARs and did nothing wrong on the day of the

accident. J.A. 455. Plaintiffs therefore have failed to raise a genuine issue of fact as to

whether the Agusta pilots breached their duty of care.2

              B.     Claim Against the United States

       ATC’s duties mainly derive from the ATCM, FAA Order 7110.65. See

Rodriquez, 823 F.2d at 740; Remo, 852 F. Supp. at 368. As set forth in the ATCM,

“[t]he primary purpose of the ATC system is to prevent a collision between aircraft

operating in the system and to organize and expedite the flow of traffic.” ATCM § 2-1-

1., J.A. 811. ATC must also provide other services if “permitted by higher priority duties

and other circumstances.” ATCM, § 2-1-1., J.A. 811. In addition, having assumed the

responsibility of safely organizing the flow of air traffic, ATC owes a duty beyond those

provided for in the ATCM to exercise reasonable care in performing that service. See,

e.g., Zabala Clemente v. United States, 567 F.2d 1140, 1147-48 (1st Cir. 1977); Yates v.


2
  In addition to their negligence claim, plaintiffs assert a contract claim against Agusta
based on Agusta’s lease agreement with the City of Philadelphia. Specifically, plaintiffs
contend that Agusta breached the provision of the lease requiring it to “observe and
comply with all requirements of the constituted public authorities and with all federal,
state, or local statutes, ordinances, regulations and standards applicable to [Agusta] or its
use of the Premises,” including the FARs. See J.A. 1638. This claim, however, merely
repackages plaintiffs’ negligence claim under a contract heading and therefore falls under
Pennsylvania’s “gist of the action” doctrine that is designed to prevent such duplicative
claims from arising under both tort and contract law. See Craig v. Amateur Softball
Ass’n of Am., 951 A.2d 372, 377 (Pa. Super. Ct. 2008) (citing Reardon v. Allegheny
Coll., 926 A.2d 477, 486-87 (Pa. Super. Ct. 2007)); Padalino v. Standard Fire Ins. Co.,
616 F. Supp. 2d 538, 549-50 (E.D. Pa. 2008). In any event, plaintiffs cannot demonstrate
that Agusta breached the lease agreement for the same reasons that they cannot show that
Agusta violated any duty of care.
United States, 497 F.2d 878, 883-84 (10th Cir. 1974); Hartz v. United States, 387 F.2d

870, 873-74 (5th Cir. 1968); cf. Indian Towing Co. v. United States, 350 U.S. 61, 69, 76

S.Ct. 122, 126-27 (1955) (“[O]nce [the Coast Guard] exercised its discretion to operate a

light on Chandeleur Island and engendered reliance on the guidance afforded by the light,

it was obligated to use due care to make certain that the light was kept in good working

order; and, if the light did become extinguished, then the Coast Guard was further

obligated to use due care to discover this fact and to repair the light or give warning that

it was not functioning.”). ATC breaches its duty of care if it gives a pilot deficient

instructions upon which the pilot relies. See Rodriquez, 823 F.2d at 740; Yates, 497 F.2d

at 883; Himmler, 474 F. Supp. at 928 (“Where, as here, a pilot places himself in the

hands of the controller and thereafter follows the controller’s suggestions or instructions,

the pilot is entitled to rely upon such information and directions and is not free or

expected to disregard same.”).

       We will assume for purposes of this opinion that Richburg breached her duties as

an air traffic controller by suddenly and urgently directing the Grumman to “make right

traffic” after clearing the Agusta to depart in a potentially conflicting direction and

without warning the Grumman pilots of the Agusta’s location. Nevertheless, “an

admittedly negligent act does not necessarily entail liability; rather even when it is

established that the defendant breached some duty of care owed the plaintiff, it is

incumbent on a plaintiff to establish a causal connection between defendant’s conduct

and the plaintiff’s injury.” Hamil v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978); see

Redhead, 686 F.2d at 182. In Pennsylvania, establishing such a causal connection
requires demonstrating both but-for causation and proximate cause. Reott v. Asia Trend,

Inc., 55 A.2d 1088, 1103 (Pa. 2012). We conclude that plaintiffs have not established a

genuine question of fact on the issue of proximate causation.

       To prove proximate causation, a plaintiff must show that the defendant’s breach

was a substantial factor in bringing about the plaintiff’s harm. See Powell v. Drumheller,

653 A.2d 619, 622 (Pa. 1995). The plaintiff may rest on circumstantial evidence of such

proximate causation. See Harvilla v. Delcamp, 555 A.2d 763, 764 (Pa. 1989) (opinion

announcing the judgment of the court); Hamil, 392 A.2d at 1285. But the plaintiff may

not rely on speculation and conjecture. See Young v. Commonwealth Dep’t of Transp.,

744 A.2d 1276, 1277 (Pa. 2000); Hamil, 392 A.2d at 1288 n.9 (“A mere possibility of . . .

causation is not enough; and when the matter remains one of pure speculation and

conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the

court to direct a verdict for the defendant.” (quoting Restatement (Second) of Torts §

433B cmt. a (1965)) (internal quotation marks omitted)).

       Plaintiffs’ theory of causation is that upon heeding Richburg’s instruction and

turning the Grumman to the right, the sight of the Agusta startled Angelina and caused

him to pull back reflexively on the yoke leading to the aircraft stalling. Plaintiffs point to

Marks v. Mobil Oil Corp., 562 F. Supp. 759, 765-66 (E.D. Pa. 1983) aff’d, 727 F.2d 1100

(3d Cir. 1984), and Rich v. Finley, 89 N.E.2d 213, 215 (Mass. 1949), as showing that a

defendant may be liable for causing another individual’s involuntary startle reaction that

results in harm to the plaintiff. Unlike the plaintiffs in those cases, however, plaintiffs

here did not provide reliable evidence that there actually was a startle reaction. Plaintiffs
reason that the Agusta pilots’ surprise at seeing the Grumman turn right and their

execution of a quick stop indicates that Angelina may have experienced a “similar

response” upon seeing the Agusta. Appellants’ br. at 62. But the Agusta pilots’

conscious decision to execute a controlled deceleration maneuver offers inadequate

support to find that Angelina experienced an unreasoned brain stem reflex that led him to

yank back on the yoke and stall his aircraft. In these circumstances, plaintiffs only can

surmise that Angelina had an involuntary startle response upon seeing the Agusta

decelerating from an already slow speed, half a mile away. Even plaintiffs’ accident

reconstruction expert Stimpson stated that “[t]here’s absolutely no way [he] could” say

that the Gruman pilots even observed the Agusta while making the right turn to “a

reasonable degree of certainty.” J.A. 1817. Such speculation regarding the cause of the

crash is an insufficient basis for plaintiffs to avoid summary judgment.



                                       V. CONCLUSION

       For the foregoing reasons, we will affirm the District Court’s grant of summary

judgment, entered on August 25, 2014.
