The Federal Aviation Administration is charged with overseeing the United States' air traffic control system. Fortunately, it is rare that plane crashes arise on approach or departure from airfields. Air traffic controllers (ATC) are well trained to assist in providing "a safe, orderly and expeditious flow of traffic …" (13-ER-3160). However, on those rare occasions when tragedy strikes, inquiries lead to questions of fault that judges in federal courts are called upon to answer in accordance with the federal Torts Claims Act. Predicated upon the duties spelled out in the air traffic controller's manual and the common law that has evolved over the past 70 years, judges (most often without an advisory jury) serve as the factfinder in deciding whether an air tragedy was the result of an ATC's carelessness. A very recent case decided by the U.S. Court of Appeals for the Ninth Circuit provides well-reasoned analysis of the role of the judiciary in deciding claims when tragedy occurs in the sky. Note: The author of this article provided an amicus brief on behalf of the former chair of the NTSB, Christopher A. Hart. See Brown v. United States of America, 2024 U.S. App. LEXIS 14949 (9th Cir.).

John Brown and his passenger, James Elliker, flew into Reno-Tahoe airport in August 2016 in a Beechcraft A36 Bonanza. On their approach, a local ATC (Gregory Nicoll) assumed charge of sequencing their landing. On approach, there were also multiple large aircraft on paths for landing. Large aircraft create wake turbulence. The dangers of wake turbulence are very serious—and they are invisible. If a small airplane encounters the wake turbulence from a 757, the small airplane may not have the power to avoid a crash, needlessly causing serious injury or death to the pilot and passengers of the small airplane. One of ATC's responsibilities to pilots and incoming aircraft is to provide four miles of separation from "heavy aircraft"—to avoid the danger of its wake turbulence. That responsibility cannot be obviated or ignored even if the ATC "believes" a pilot sees other air traffic. That is not how this system of checks and balances is designed to work.