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Christopher v. United States

United States District Court, N.D. Alabama, Northeastern Division

November 13, 2018

LORI CHRISTOPHER, as Administratrix of the estate of William R. Christopher, II, Plaintiff,



         This action arises from a tragic plane crash that occurred during a pilot proficiency examination, killing all three people onboard, including William Christopher, Lori Christopher's husband, and Robin Smith, a Pilot Proficiency Examiner (“PPE”). Ms. Christopher contends that Smith is an employee of the United States and that Smith's negligence caused the fatal crash. Based on those contentions, Ms. Christopher asserts claims against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80, on behalf of her husband's estate. Doc. 1. Presently before the court is the United States' motion for summary judgment, in which it argues that it has no liability for this tragic accident because Smith was not a government employee. Doc. 32. The motion is fully briefed, docs. 32-1, 34-1, 35, and ripe for review. For the reasons explained below, the court finds that Smith was not an employee of the Federal Aviation Administration (“FAA”) for purposes of the FTCA, and the United States' motion is due to be granted.


         Summary judgment is proper “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). “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine dispute of material fact. Id. at 323. The burden then shifts to the non-moving party, who is required to go “beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (internal citations and quotation marks omitted). A dispute about a material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-movant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that a jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).


         The accident underpinning this action occurred during a routine pilot proficiency check that is required under Federal Aviation Regulations to maintain an individual's certification to fly as the “pilot-in-command” of certain types of aircraft. See doc. 32-2 at 16; 14 C.F.R. § 61.58. Smith, a PPE, was authorized by the FAA to conduct such proficiency checks, but neither Smith nor his company, Jet Contrails, had a contract with the FAA. Docs. 32-2 at 16, 24; 32-3 at 3-4.[1] In addition, the FAA did not pay Smith for his work or provide him with any equipment for conducting the proficiency check. Doc. 32-3 at 4-5. At the conclusion of a proficiency check, Smith was solely responsible for determining if a pilot sufficiently demonstrated his or her proficiency under the applicable FAA standards, and Smith would provide the pilot with the results of the check without submitting anything to the FAA. Doc. 32-3 at 5. See also doc. 32-9.

         Synfuels Holdings, the owner of the airplane involved in the crash, hired and paid Smith to conduct the pilot proficiency check for Mr. Christopher and Ken Russo, two of its contract pilots. Doc. 32-2 at 7, 16-18, 24-25. William Siegel, Synfuels' chief pilot, contacted Smith based on the recommendation of another flight instructor, and Siegel did not utilize any FAA resources to identify or hire Smith. Id. at 5, 18. Siegel viewed Smith as a private party, and Smith did not hold himself out as a FAA employee. Id. at 24. Smith and Siegel made all of the arrangement for the pilot proficiency check and flight at issue without any FAA involvement. Id. at 25-26. Tragically, in this case, the plane crashed shortly after a take-off, killing Smith, Mr. Christopher, and Russo. Doc. 1 at 1.

         III. ANALYSIS

         Ms. Christopher asserts claims against the United States based on Smith's alleged negligence in causing the fatal crash and her allegation that “the FAA was negligent by entrusting and certifying” Smith as a PPE. Doc. 1 at 5-6. However, in response to the motion for summary judgment, Ms. Christopher concedes that summary judgment is due on her claim that the FAA was negligent in certifying Smith as a PPE. Doc. 34 at 2. Indeed, the record before the court does not create a genuine issue of material fact on this issue. As a result, the only question before the court is whether the United States is liable under the FTCA for Smith's alleged negligence.

         “[T]he United States, as a sovereign entity, is immune from suit unless it consents to be sued.” Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 2015) (citations omitted). By enacting the FTCA, Congress waived the United States' sovereign immunity in the context of “tort suits based on state law tort claims.” Id. Instead, the United States may be liable for “personal injury or death 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 . . . .” 28 U.S.C. § 1346(b)(1). Thus, the United States' liability hinges on whether the alleged tortfeasor was an employee of the Government. Means v. United States, 176 F.3d 1376, 1379 (11th Cir. 1999) (citing Sheridan v. United States, 487 U.S. 392, 400-01 (1988)). For purposes of the FTCA, employees of the Government include “officers or employees of any federal agency . . . and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.” 28 U.S.C. § 2671. But, the FTCA definition of employees excludes “any contractor with the United States.” Id.; United States v. Orleans, 425 U.S. 807, 814 (1976).

         Determining whether an individual is a contractor or an employee of the Government for purposes of the FTCA is a question of federal law. Means, 176 F.3d at 1379 (citing Logue v. United States, 412 U.S. 521, 528 (1973); Ezekiel v. Michel, 66 F.3d 894, 899 (7th Cir. 1995)). The relevant test in this circuit is the “control test.” Means, 176 F.3d at 1379. “Under this test, a person is an employee of the Government if the Government controls and supervises the day-to-day activities of the alleged tortfeasor during the relevant time.” Patterson & Wilder Constr. Co., Inc. v. United States, 226 F.3d 1269, 1274 (11th Cir. 2000) (citing Means, 176 F.3d at 1379). Accordingly, determining whether Smith was a Government employee, and whether the United States may be held liable for his alleged negligence, turns on whether the FAA controlled and supervised his day-to-day activities.

         Turning to the specifics here, Ms. Christopher does not dispute that the relationship between Smith and the FAA lacked the classic indicia of employment. See doc. 34-1. After all, Smith did not receive a salary or other benefits from the FAA, the FAA did not provide Smith with any equipment, and Smith did not hold himself out as an FAA employee. See docs. 32-3 at 4-5; 32-7; 32-10. Ms. Christopher also does not dispute that, other than limiting Smith to a maximum of two pilot proficiency checks per day, the FAA did not control, or have authority to control, Smith's day-to-day activities as a PPE, such as communicating with pilots, scheduling flight checks, making flight arrangements, bookkeeping, and providing pilots with results of the proficiency checks. See docs. 34-1 at 7-9; 32-3 at 4. Based on her contention that these activities are “peripheral, administrative tasks, ” Ms. Christopher argues instead that the employer-employee status exists here because the FAA controls, or has authority to control, how PPEs administer pilot proficiency checks. Doc. 34-1 at 7-8.

         To support her contention, Ms. Christopher points first to the FAA's Airline Transport Pilot and Aircraft Type Rating Practical Test Standards for Airplane, doc. 34-5, and argues that the FAA requires PPEs to conduct pilot proficiency checks in compliance with the Standards, and that the Standards mandate the tasks or maneuvers that a pilot must complete during a proficiency check, docs. 34-1 at 16-18; 34-5; 34-6; 32-11 at 44, 51. This contention misses the mark because each PPE is generally free to determine how she will actually implement the tasks and maneuvers during the check. See docs. 32-6 at 14; 34-5. Moreover, an individual does not qualify as a Government employee for purposes of the FTCA simply because the individual's work on behalf of a Federal agency requires compliance with specific regulations or standards set by the Government. As the Second Circuit aptly put it, “[t]he question is not whether [the individual] must comply with federal regulations and apply federal standards, but whether [his] day-to-day operations are supervised by the Federal Government.” Leone v. United States, 910 F.2d 46, 50 (2nd Cir. 1990) (citing Orleans, 425 U.S. at 815). See also Logue, 412 U.S. at 521 (holding that employees of a county jail housing federal prisoners were not Government employees even though the jail's contract with the Federal Bureau of Prisons required the jail to comply with the Bureau's rules and regulations prescribing ...

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