[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12316

____________________

PERRY W. HODGES, 

AURORA CECILIA SCARPATI RIPALDA,

as Personal Representative of the Estate of

Carlo Alfredo Zanetti Scarpati, deceased,

MARLENIS SANCHEZ,

PEDRO SANCHEZ,

Plaintiffs-Appellants,

MONICA D. DOMINGUES,

Plaintiff,

versus

UNITED STATES OF AMERICA, 

Defendant-Appellee.
2 Opinion of the Court 22-12316

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:19-cv-21893-DPG

____________________

Before ROSENBAUM, BRANCH, and BRASHER, Circuit Judges.

BRANCH, Circuit Judge:

On July 17, 2018, two airplanes—a Seneca and a Cessna—

collided mid-air, tragically killing the pilots and passengers in both 

planes. The Seneca was piloted by Nisha Sejwal, with Ralph Knight 

accompanying her. The Cessna was piloted by Jorge Sanchez, with 

Carlo Scarpati, a student pilot, also on board. Both planes were 

“VFR” aircraft operating under standard visual flight rules.1 The 

Seneca was departing from, and the Cessna was arriving at, the 

Tamiami Airport (now known as the Miami Executive Airport)

when the collision occurred. The representatives of the pilots’ 

estates filed suit against the United States under the Federal Tort 

Claims Act (“FTCA”), alleging negligence on the part of Federal 

Aviation Administration (“FAA”) air traffic controllers at the 

1 Under visual flight rules (“VFR”), pilots receive guidance from air traffic 

controllers in the form of traffic advisories and safety alerts while inside the 

airport’s jurisdiction, but still retain discretion over routes and altitudes during 

flight. Compared to instrument flight rules, which impose a “highly 

structured environment” in which a pilot is in constant contact with air traffic 

control, VFR grants pilots a greater degree of flexibility.
22-12316 Opinion of the Court 3

Tamiami Airport. Following a bench trial, the district court 

entered judgment in favor of the United States, and the Plaintiffs 

appealed. After careful review and with the benefit of oral 

argument, we affirm. 

I. Background2

A. Air Traffic Control Practices and Procedures

As part of its mission to ensure “the safety and efficiency” 

“of the use of the navigable airspace” of the United States and to 

“promote safe flight of civil aircraft in air commerce,” the FAA 

operates a national air traffic control system which services pilots 

from various facilities, including air traffic control towers. 49 

U.S.C. §§ 40101(d)(4), (6), 44701(a). The Tamiami Airport, located

in Miami-Dade County, Florida, is staffed by FAA employees, 

including air traffic controllers who work in the Tamiami Tower

and manage air traffic that is largely flying under VFR. The 

prescribed practices and procedures of FAA air traffic controllers 

are set out in FAA Order JO 7110.65, which we will refer to as the 

“Air Traffic Control Manual” or “ATCM.” This Order is routinely 

updated and superseded, and the version in effect on the date of the 

crash was JO 7110.65X, Change 1. The provisions contained in the 

2 We recount the facts as presented to the district court at trial. On appeal 

from a bench trial, we review issues of law de novo and review issues of fact for 

clear error. Direct Niche, LLC v. Via Varejo S/A, 898 F.3d 1144, 1149 (11th Cir. 

2018) (citing Crystal Ent. & Filmworks, Inc. v. Jurado, 643 F.3d 1313, 1319 (11th 

Cir. 2001)). This standard provides that “we may reverse the district court’s 

findings of fact if, after viewing all the evidence, we are left with the definite 

and firm conviction that a mistake has been committed.” Id.
4 Opinion of the Court 22-12316

ATCM “appl[y] to all [Air Traffic Organization] personnel and 

anyone using [Air Traffic Organization] directives.” ATCM § 1-1-

2. 

FAA facilities operate inside jurisdictional boundaries, and 

each facility is responsible for the aircraft operating inside its 

respective jurisdiction. The Tamiami Airport operates inside what 

is known as Class D (or Class Delta) airspace,3 and, according to 

evidence put forth at trial, the air traffic controllers stationed at 

Tamiami Tower are responsible for controlling the aircraft within 

that jurisdiction. The Tower’s airspace is cylindrical, extending

2,500 feet in the air, with a radius of 3.5 nautical miles, meaning 

that it ends about four standard miles from the airport.

While in Class D airspace (both when arriving and 

departing), pilots are required to establish two-way radio 

communications with the Tower and maintain that connection 

while operating inside Class D airspace. 14 C.F.R. § 91.129(c)(1) 

(“Each person must establish two-way radio communications with 

the [air traffic control] facility . . . providing air traffic services prior 

3 According to FAA Order JO 7400.2, controlled airspace is divided into various 

classes, Class A through Class E, with Class A being the most restrictive and 

Class E being the least restrictive. Class D airspace is defined as “[g]enerally, 

th[e] airspace from the surface to 2,500 feet above airport elevation . . . 

surrounding those airports that have an operational control tower.” Order JO 

7400.2 § 14-1-2(d). Each Class D airspace area “is individually tailored[.]” Id. 

Class E airspace, on the other hand, includes “[s]urface area designation for an 

airport where a control tower is not in operation and for non-towered 

airports.” Id. § 14-1-2(e). For purposes of this case, the crash occurred in Class 

E airspace. 
22-12316 Opinion of the Court 5

to entering that airspace and thereafter maintain those 

communications while within that airspace.”). When no longer in

Class D airspace, however, pilots are not obligated to monitor the 

Tower’s radio frequency and do not need to seek permission from 

the Tower to switch frequencies. Aeronautical Information 

Manual (“AIM”) § 4-3-2(a) (“In the interest of reducing tower 

frequency congestion, pilots are reminded that it is not necessary 

to request permission to leave the tower frequency once outside of 

. . . Class D surface areas.”); see also 14 C.F.R. § 91.129(c)(2)(i). 

The Tamiami Tower provides service from 7:00 a.m. to 

11:00 p.m. daily, meaning that if an airplane is taking off from or 

landing at the Tamiami Airport outside of those hours, the pilot 

will not have the benefit of air traffic controller assistance. But 

during business hours, air traffic controllers are responsible for 

separating and sequencing airplanes in the “traffic pattern,”4 i.e., 

ensuring that there is sufficient space between aircraft to prevent 

collision. The “traffic pattern” or “pattern” is a circuit or path 

around a runway in which controllers sequence aircraft for take-off 

and landing. See AIM fig. 4-3-3. The FAA’s air traffic control expert

witness testified that controllers are responsible for maintaining 

separation between VFR aircraft “between departures and 

arrivals[,] and arrivals and departures,” but “[t]hey do not receive 

any separation [while] airborne in the” Tower’s airspace.

4 The ATCM defines “traffic pattern” as “[t]he traffic flow that is prescribed for 

aircraft landing at, taxiing on, or taking off from an airport.” ATCM at PCG 

T–7.
6 Opinion of the Court 22-12316

Air traffic controllers generally use various instructions to 

provide their sequencing and separation services for aircraft in the 

pattern. For instance, the ATCM sets forth “phraseology” for 

controllers to use when communicating with aircraft to “[e]stablish 

the sequence of arriving and departing,” such as “cleared for 

takeoff,” “follow,” “circle the airport,” “make left/right,” “go 

around,” and “cleared to land.” ATCM § 3-8-1. To provide these 

services, air traffic controllers primarily use their naked eye from 

their position in the tower—sometimes aided by binoculars. 

Tower radar display, also referred to as “tower display 

workstation” or “TDW,” is a tool used to assist local air traffic 

controllers in locating aircraft that are too far away from the Tower 

to see with the naked eye. FAA regulations permit, but do not 

require, air traffic controllers to use tower radar display. See ATCM 

§ 3-1-9(a) (“Uncertified tower display workstations must be used 

only as an aid to assist controllers in visually locating aircraft or in 

determining their spatial relationship to known geographical 

points.”)5; id. § 3-1-9(b) (outlining permitted uses for which “[l]ocal 

controllers may use certified tower radar displays” (emphasis 

added)). Instead, the majority of air traffic controllers’ time and 

effort in fulfilling their responsibilities is spent visually scanning the 

runways and “surface area.” ATCM § 3-1-9(b)(4), note. For 

purposes of this case, the “surface area” is the airspace contained 

5 Plaintiffs do not contest that the ATCM permits but does not require the use 

of tower radar display.
22-12316 Opinion of the Court 7

within the Tamiami Tower’s airspace boundary beginning at the

surface and extending upward. 

While the Tamiami Tower is equipped with tower radar 

display, it is not a true radar facility that provides radar tracking 

throughout the entire duration of a flight. Radar tracking, or 

“Flight Following,” is available by request from the nearby Miami 

Approach located near Miami International Airport. “Flight 

Following” services provide pilots with traffic advisories, safety 

alerts, weather information, and radar monitoring and surveillance 

throughout the duration of the flight. In this case, neither aircraft 

involved in the crash requested Flight Following and thus were not 

receiving those radar-tracking services at the time of the crash. 

Once outside the Tamiami Tower’s airspace, the pilots themselves 

are solely responsible for maintaining vigilance to “see and avoid”

other aircraft to prevent collisions.

Another tool air traffic controllers utilize when providing 

separation and sequencing services in the traffic pattern, including 

at Tamiami Tower, is called a “flight strip” or “flight progress 

strip,” which helps the controllers keep track of the planes and 

coordinate their departures. The flight strips are physical forms 

containing information about a certain plane, such as the plane’s 

call sign, parking location, and the relevant departure runway. 

When an aircraft operating under VFR is preparing to depart 

Tamiami Airport, the controller fills out the flight strip once the 

pilot of the departing aircraft calls the Tower while still on the

ground. The controller then places the flight strip onto the “strip 
8 Opinion of the Court 22-12316

bay,” indicating that the aircraft can receive taxiing instructions and 

can then receive clearance for takeoff. Once the aircraft takes off 

and departs the Tower’s airspace without conflict, the controller 

discards the flight strip. The ATCM does not address the precise 

moment at which a controller may discard a flight strip but rather 

instructs controllers to “remove the strips from the flight progress 

board when no longer required for control purposes.” ATCM § 2-

3-1(a).

B. The June 17, 2018, Crash

FAA air traffic controllers Austin Frazao and Steven Yanker

were working in the Tamiami Tower on June 17, 2018. Yanker 

was serving as the controller in charge with general supervisory 

responsibilities, and Frazao was the air traffic controller providing 

separation and sequencing services to the departing Seneca. 

Yanker, as general supervisor, was not monitoring the other 

controllers or the tower radar display continuously.

Sejwal, the pilot of the Seneca, was taking a practical exam 

for her commercial pilot certificate,6 while her co-pilot Knight 

served as her examiner on the flight, which originated from 

Tamiami Airport. She informed the Tower that she would be 

flying northwest after take-off and the Tower instructed her to taxi 

to one of the runways. Frazao then gave Sejwal clearance to take

off with the instruction to “follow” an outbound Cessna that was 

6 Tamiami Airport is a facility in which approximately two-thirds of the air 

traffic is generated by nearby aviation schools.
22-12316 Opinion of the Court 9

heading in the same direction as the Seneca and had taken off 

shortly before Sejwal. At no point did Frazao tell Sejwal to stop 

following the Cessna. When the Seneca departed the Tower’s

airspace, Frazao discarded the flight strip for the Seneca and the 

district court determined that the Seneca was no longer in two-way 

radio communication with the Tower at that time. 

Approximately 15 seconds before the collision, an inbound 

Cessna piloted by Sanchez made a partial radio transmission 

informing the Tamiami Tower of its location. Frazao, having 

received the transmission, looked at the tower radar display to 

determine the inbound Cessna’s location and realized that it was 

on a collision course with the outbound Seneca. Because he no 

longer had the Seneca’s call sign (he had discarded the flight strip)

and because he did not know the Cessna’s call sign—either because 

it was not in the Cessna’s transmission at all or, if the Cessna 

transmitted its call sign, Frazao was not able to hear or understand 

it—Frazao issued a general radio broadcast: “[T]raffic at your 12 

o’clock, less than a mile, 1400.”7 But the call came too late; the 

outbound Seneca and the inbound Cessna collided in midair, killing 

the pilots and passengers in each plane.

At the time of the collision, both planes were outside the 

Tamiami Airport’s Class D airspace (and thus outside the Tower’s

territorial jurisdiction), approximately 9.4 nautical miles away from 

the airport. The crash occurred in the Class E airspace controlled 

7 “1400” refers to the distance away from the Tamiami Tower the Seneca was 

located at that time.
10 Opinion of the Court 22-12316

by Miami Approach located near Miami International Airport. 

Both planes were equipped with Traffic Information Service 

(“TIS”), which is a system that notifies a pilot within 30 miles of a 

major airport if other planes are approaching it, but it is not clear 

from the record whether the devices in each plane were 

operational or in use at the time of the crash.

C. Procedural History

This case originated as four separate lawsuits, each filed by 

the representatives of the pilots’ and passengers’ estates 

individually, in May and June 2019. Each Plaintiff asserted a single 

cause of action for negligence against the United States under the 

FTCA. The United States filed its answers and affirmative 

defenses, and the district court consolidated the actions in August 

2019. One of the Plaintiffs settled her claim in August 2020, leaving 

three Plaintiffs in the consolidated action.

The remaining parties proceeded to a bench trial which 

lasted for a total of eleven days spanning August, October, and 

November 2021. The district court issued its findings of fact and 

conclusions of law orally at the hearing, entering judgment in favor 

of the United States in May 2022. The district court concluded that 

Plaintiffs’ claim failed because Plaintiffs did not meet their burden 

of proving that the air traffic controllers breached a duty to the 

pilots and, even if they did breach a duty, the district court was 

“unable to find that any breach was the proximate cause of the 

[decedents’] death or deaths.”
22-12316 Opinion of the Court 11

First, the district court concluded that the air traffic 

controllers did not owe any duty to the pilots because both planes 

were operating outside the airspace that is the territorial 

jurisdiction of the Tamiami Tower. The district court 

acknowledged that there was some evidence in the record that 

Frazao had previously given traffic advisories to planes outside the 

Tamiami Tower’s territory, but “it simply [did not] change [the] 

finding” that the controllers did not owe a duty to the pilots once

they exited the Tower’s airspace.

As far as the relevant standard of care, the district court 

noted that there was no evidence “that the air traffic controllers 

violated any specific rules or regulations of the FAA, [the] Tamiami 

Airport, or the air traffic controllers’ manual,” but also 

acknowledged that the absence of a violation did not necessitate a 

finding of no negligence.

With respect to the alleged acts of negligence—Frazao’s

“follow” instruction to Sejwal and his alleged “fail[ure] to delete 

the instruction, placing [the outbound Seneca] in the path of the 

inbound Cessna”—the district court concluded that “it [was] 

simply not reasonable . . . to believe that [Sejwal] would have 

simply followed Mr. Frazao’s instruction to . . . follow [the outbound Cessna] indefinitely outside the [Tower’s] Class D[]

airspace.” Therefore, the district court held that Frazao did not 

“deviate[] from the standard of care by giving his general 

instruction to follow the outbound Cessna under these 

circumstances.”
12 Opinion of the Court 22-12316

The district court then considered whether the air traffic 

controllers’ failure to issue a timely safety alert or traffic advisory 

despite the planes’ proximity to each other was negligent and 

whether the controllers were obligated to monitor the tower radar 

display in order to observe the planes’ proximity and issue alerts or 

advisories as appropriate. The district court reiterated that both

planes were outside the Tamiami Tower’s jurisdiction and that 

Frazao was not aware of the inbound Cessna until it radioed 

seconds before the collision. The district court concluded that 

while it was “clear and imminent that [a] collision was going to 

occur,” it “simply [could not] find, as a matter of law, that an air 

traffic controller at a Class D[] airport must review a [tower radar 

display], a device that they are not required to use, at any particular 

interval or for any particular length of time.” The district court also 

noted that neither the Seneca nor the inbound Cessna had 

requested Flight Following from Miami Approach.

Given the foregoing, the district court concluded that (1) the 

air traffic controllers did not breach any duty of care owed to the 

pilots, and (2) Plaintiffs did not show that Frazao’s or the other air 

traffic controllers’ conduct “was the proximate cause of the 

collision,” specifically finding that the “follow” instruction was not 

the proximate cause of the collision.

Lastly, the district court made note of what it called

“conflicting evidence” in the record, including that “[t]here [was] 

an issue about whether the Seneca . . . [was] on Tamiami’s 

frequency when the collision occurred in Class E airspace” (outside 
22-12316 Opinion of the Court 13

the Tower’s airspace) such that it was not clear whether the pilots

would have heard any transmissions from Frazao. The district 

court did not make an explicit finding resolving that issue. 

However, the district court stated that Plaintiffs’ expert testified 

that it takes 12.5 seconds for a pilot to “see and avoid” a crash, and 

the FAA’s expert testified that Frazao learned of the inbound 

Cessna about 9 seconds before the collision, such that by the time 

Frazao heard the transmission, the crash was inevitable. The 

district court also noted there was testimony that there were “no 

reported problems with the TIS system on the Seneca when it was 

used on an earlier flight that day.” Having noted those facts from 

the record, the district court concluded that “while there is some 

evidence to support the [P]laintiffs’ claims, the [P]laintiffs bear the 

burden of proof in this case, and even by a preponderance standard, 

I just simply cannot find that the [P]laintiffs have tipped the scale in 

their favor[.]”

Plaintiffs timely appealed.

II. Discussion

Plaintiffs raise five issues on appeal, arguing that the district 

court erred in concluding that: (1) the air traffic controllers did not 

owe or breach any duty of care to the pilots; (2) Frazao was not 

negligent in issuing but failing to rescind the “follow” instruction; 

(3) the Seneca was no longer in communication with the Tamiami 

Tower after leaving Class D airspace; and (4) Plaintiffs had not 

proven proximate causation. Plaintiffs also contend that (5) the 
14 Opinion of the Court 22-12316

district court erred by considering what Plaintiffs claim was 

evidence of comparative negligence. We discuss each in turn.

“After a bench trial, we review the district court’s 

conclusions of law de novo and the district court’s factual findings 

for clear error.” Tartell v. S. Fla. Sinus & Allergy Ctr., Inc., 790 F.3d 

1253, 1257 (11th Cir. 2015) (quoting Proudfoot Consulting Co. v. 

Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009)). “A factual finding is 

clearly erroneous if, after viewing all the evidence, we are left with 

the definite and firm conviction that a mistake has been 

committed.” Id. (quotation omitted); see also Fed. R. Civ. P. 52(a)(6) 

(“Findings of fact, whether based on oral or other evidence, must 

not be set aside unless clearly erroneous, and the reviewing court 

must give due regard to the trial court’s opportunity to judge the 

witnesses’ credibility.”). “Where there are two permissible views 

of the evidence, the factfinder’s choice between them cannot be 

clearly erroneous.” Morrissette-Brown v. Mobile Infirmary Med. Ctr., 

506 F.3d 1317, 1319 (11th Cir. 2007) (quotation omitted). 

A district court’s finding of negligence is a factual finding 

that we review for clear error. Keefe v. Bahama Cruise Line, Inc., 867 

F.2d 1318, 1321 (11th Cir. 1989) (“[W]e apply the clearly erroneous 

standard to the district court’s finding of negligence.”). “In 

determining the appropriate standard of care, [however,] we are 

free to review the district court’s conclusion” and we thus review 

de novo. Id.; see also Daley v. United States, 792 F.2d 1081, 1085 (11th 

Cir. 1986) (“The nature and extent of the duty of due care which 
22-12316 Opinion of the Court 15

air traffic controllers owe pilots and their passengers is a question 

of law[.]”). 

The claims in this case are asserted under the FTCA, which 

provides that the United States is liable in tort for injury resulting 

from “the negligent or wrongful act or omission of any employee 

of the Government while acting within the scope of his office or 

employment . . . 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). We must identify “an analogous 

state tort cause of action” in an FTCA case. Zelaya v. United States, 

781 F.3d 1315, 1325 (11th Cir. 2015); see also Cedant v. United States, 

___ F.4th ____, No. 21-12661, 2023 WL 4986402, at *1 (11th Cir. 

Aug. 4, 2023). This is a negligence action, and, under Florida law, 

which applies here, Plaintiffs must prove four elements to prevail: 

1. A duty, or obligation, recognized by the law, 

requiring the defendant to conform to a certain 

standard of conduct, for the protection of others 

against unreasonable risks.

2. A failure on the defendant’s part to conform to the 

standard required: a breach of the duty. 

3. A reasonably close causal connection between the 

conduct and the resulting injury. This is what is 

commonly known as legal cause, or proximate cause, 

and which includes the notion of cause in fact.

4. Actual loss or damage.
16 Opinion of the Court 22-12316

Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003) 

(alterations adopted and quotation omitted). In this case, we 

examine the first three elements. 

A. Whether the air traffic controllers owed or breached

any duty of care to the pilots

The first issue we consider is whether the district court erred 

as a matter of law in concluding that the air traffic controllers did 

not have or breach a duty8 to monitor airspace outside of the 

Tower’s airspace nor were required to monitor the tower radar 

display. Specifically, Plaintiffs contend that the air traffic controllers 

had a duty, under the ATCM, to avoid collision of aircraft generally 

and had a duty to monitor tower radar displays. Plaintiffs also rely 

on the “undertaker’s doctrine” to support their duty argument,

asserting that, because the controllers previously gave safety alerts 

and traffic advisories outside of the Tower’s airspace, the 

controllers had a duty to perform such services with due care in 

this case. Plaintiffs finally argue that the controllers breached this 

duty, whatever the source. Each of Plaintiffs’ arguments fails. 

Under Florida law, a duty can arise from any one of four 

general sources: “(1) legislative enactments or administration 

8 The district court concluded that Plaintiffs did “not [meet] their burden of 

showing that the air traffic controllers breached their duty to the plaintiffs,” as 

well as that “the air traffic controllers had no general duty to monitor the 

Seneca and inbound Cessna[.]” It also stated that it could not “find, as a matter 

of law, that an air traffic controller at a Class D[] airport must review a” tower 

radar display. We therefore review both the existence of a duty and whether 

the controllers breached that duty. 
22-12316 Opinion of the Court 17

regulations; (2) judicial interpretations of such enactments or 

regulations; (3) other judicial precedent; and (4) . . . from the 

general facts of the case.” Clay, 873 So. 2d at 1185 (quoting McCain 

v. Fla. Power Corp., 593 So. 2d 500, 503 n.2 (Fla. 1992)). We have held 

that, in aviation cases alleging the negligence of air traffic 

controllers, “[t]he duty owed is . . . [the state’s] traditional standard 

of reasonable care, that which a reasonably careful person would 

use under like circumstances.” Daley, 792 F.2d at 1085 (alteration 

adopted and quotation omitted). However, we have also held that 

“the precise nature of the assistance . . . the controllers owed [to 

pilots] . . . [is] required by the provisions of the United States’ own” 

ATCM. Id. See also id. at 1086 (holding that “the ATCM spell[ed] 

out[] the duties imposed upon the United States controllers” and 

thus “the district court did not err in concluding that reasonable 

care under the circumstances required reasonable compliance with 

the United States’ own self-imposed standard of care”); Gill v. United 

States, 429 F.2d 1072, 1075 (5th Cir. 1970) (“[T]he government’s 

duty to provide services with due care to airplane pilots may rest 

. . . upon the requirements of procedure[] manuals spelling out the 

functions of its air traffic controllers[.]”).9

Florida law, following the Restatement (Second) of Torts,

also recognizes the “undertaker’s doctrine.” Clay, 873 So. 2d at 

9 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) 

(holding that all decisions from the Fifth Circuit Court of Appeals issued before

the close of business on September 30, 1981, are binding precedent in the 

Eleventh Circuit).
18 Opinion of the Court 22-12316

1186.10 The doctrine provides that “[w]henever one undertakes to 

provide a service to others, whether one does so gratuitously or by 

contract, the individual who undertakes to provide the service . . . 

thereby assumes a duty to act carefully and to not put others at an 

undue risk of harm.” Id. (citing Restatement (Second) of Torts 

§ 323 (Am. L. Inst. 1965)). The doctrine also applies to third parties 

and not just to parties in privity with each other.11 Id. (citing 

Restatement (Second) of Torts § 324A). The standard for the 

undertaker’s doctrine as applied to third parties set forth by the 

Restatement—and followed by Florida courts—is as follows: 

One who undertakes, gratuitously or for 

consideration, to render services to another which he 

should recognize as necessary for the protection of a 

10 Two federal district courts in Florida have applied this doctrine to cases 

involving air traffic controllers and aircraft collisions, but we have not done so 

to date. See Abrisch v. United States, 359 F. Supp. 2d 1214, 1226 (M.D. Fla. 2004) 

(“[O]nce [air traffic controllers] undertake to provide a service, even one not 

required by the [ATCM], under general negligence principles, air traffic 

controllers have a duty to provide such services with due care.”); Zinn v. United 

States, 835 F. Supp. 2d 1280, 1312 (S.D. Fla. 2011) (concluding that because 

“[t]he FAA’s controllers undertook to provide a service,” they “assumed a 

duty” “aris[ing] under” the ATCM, “to act carefully and not to put [the 

plaintiff] at undue risk of harm”).

11 In this case, we are primarily concerned with the applicability of the 

undertaker’s doctrine to third parties because there is no allegation that the 

controllers and the pilots were in privity with each other. As we understand 

Plaintiffs’ argument on this issue, they contend that because the controllers 

used tower radar display and provided alerts or advisories to other pilots in the 

past (i.e., third parties), the controllers were thus obligated to provide those 

same services to the pilots in this case. 
22-12316 Opinion of the Court 19

third person or his things, is subject to liability to the 

third person for physical harm resulting from his 

failure to exercise reasonable care to protect his 

undertaking, if

(a) his failure to exercise reasonable care 

increases the risk of such harm,12 or

(b) he has undertaken to perform a duty owed 

by the other to the third person, or

(c) the harm is suffered because of reliance of 

the other or the third person upon the 

undertaking.13

12 With respect to an increase in the risk of harm to the plaintiff, the Supreme 

Court of Florida in Clay considered whether a streetlight maintenance 

company assumed a legal duty as to a minor pedestrian who was killed by a 

truckdriver on a street where the streetlights were inoperable. Clay, 873 So. 

2d at 1184. The court concluded that the maintenance company’s “failure to 

exercise due care in maintaining the streetlights caused the roadway to be cast 

in darkness, thus increasing the risk that [the driver] would be unable to see 

[the pedestrian.]” Id. at 1187. Therefore, the issue of “increased risk . . . pose[d 

a] viable issue[] to be decided by the trier-of-fact.” Id.

13 In Johnson, Florida’s Second District Court of Appeal considered the 

requirement that the plaintiff must have relied upon the defendant’s 

undertaking as to third parties in order for the defendant to owe a legal duty 

to the plaintiff. See Est. of Johnson ex rel. Johnson v. Badger Acquisition Of Tampa 

LLC, 983 So. 2d 1175, 1186 (Fla. 2d DCA 2008). In that case, the estate of a 

nursing home resident claimed that two companies that provided consulting 

pharmacy services to the nursing home were negligent in providing those 

services, which led to the resident’s death. Id. at 1178–79. The court 

concluded that where there was no evidence that the decedent “relied on, or 
20 Opinion of the Court 22-12316

Restatement (Second) of Torts § 324A. Florida courts have noted 

that “[g]enerally, [the undertaker’s doctrine] is inapplicable . . . 

where an undertaker ‘was not engaged to perform a service 

reasonably expected to be relied upon by a stranger to the 

engagement.’” Est. of Johnson ex rel. Johnson v. Badger Acquisition Of 

Tampa LLC, 983 So. 2d 1175, 1186 (Fla. 2d DCA 2008) (quoting 

Casamassina v. U.S. Life Ins. Co., 958 So. 2d 1093, 1102 (Fla. 4th DCA 

2007) (alteration adopted)). The factors set forth in the 

Restatement (Second) of Torts § 324A(a) through (c) are factspecific.

We first address Plaintiff’s argument that the controllers had 

a duty to act with due care toward the pilots—even when they were 

no longer in the Tower’s airspace. Specifically, they rely on section 

2-1-1 of the ATCM, which provides that “[t]he primary purpose of 

the [air traffic control] system is to prevent a collision involving 

aircraft operating in the system.” ATCM § 2-1-1(a). They also 

point to section 2-1-2(a), which instructs controllers to “[g]ive first 

priority to separating aircraft and issuing safety alerts,” and to 

section 2-1-6, which provides that safety alerts should be issued if a 

controller is “aware [that an] aircraft is in a position/altitude that 

. . . places it in unsafe proximity to . . . other aircraft.” According 

to Plaintiffs, it was “legal error” for the district court “to interpret 

even knew about” the consultant pharmacy services, there was no basis for 

the court to find “any voluntary assumption of duties that would give to a 

legal duty” to the decedent. Id. at 1187. 
22-12316 Opinion of the Court 21

[the ATCM] provisions” to apply only to the Tower’s airspace 

where “those provisions contained no such limitation[.]”

Plaintiffs’ argument ignores other evidence in the trial 

record. While nothing in the text of the above ATCM provisions 

limits the controllers’ duty to prevent collisions to the Tower’s

airspace only, the district court also heard other evidence on the 

issue of where a controller’s duty begins and ends, all of which 

made clear that the controllers’ duty in this case ended at the 

boundary of the Tower’s airspace. For instance, the district court 

heard testimony from the FAA’s air traffic control expert witness, 

who testified that “there are definitive jurisdictional boundary lines 

that segregate air traffic control facilities,” that controllers are 

“responsible for controlling aircraft within that jurisdictional 

boundary,” and that the collision occurred outside the Tamiami 

Airport’s territorial jurisdiction. The expert also testified that, 

under “standard operating procedure for Tamiami [Tower],” and 

under the AIM, Frazao’s “responsibility end[ed] at the edge of [the 

Tower’s] airspace,” meaning that “when . . . aircraft exit [the 

Tower’s airspace] into [Class E] airspace, [Frazao’s] responsibility 

end[ed] there.” The expert testified that pilots are instructed by the 

AIM that “the controller is no longer monitoring [them]” “once 

they leave [the Tower’s airspace]” because they are not required to 

remain on the Tower’s radio frequency.14 The FAA’s piloting expert 

14 The AIM supports this testimony. See AIM § 4-3-2(a) (“Unless there is a good 

reason to leave the tower frequency before exiting the . . . Class D surface 

area[], it is a good operating practice to remain on the tower frequency for the 

purpose of receiving traffic information. In the interest of reducing tower 
22 Opinion of the Court 22-12316

testified that pilots outside the Tower’s airspace would also not 

expect to receive travel advisories unless they had requested Flight 

Following—a service that neither of the pilots in this case 

requested. Frazao testified that the Seneca and the Cessna were 

“outside [his] jurisdiction pretty much,” and Yanker, the general 

supervisor in the Tamiami Tower, similarly testified that “once 

[aircraft] leave [the Tower’s airspace], I’m not speaking to them 

anymore.” While the ATCM provisions upon which Plaintiffs rely 

do not squarely limit a controller’s monitoring duties to their 

respective tower’s jurisdiction, other evidence demonstrated that 

neither controllers nor pilots expect or anticipate a controller to 

monitor aircraft outside that jurisdiction. 

Accordingly, we agree with the district court’s conclusion 

that the territorial jurisdiction of the Tower limits the scope of the 

air traffic controllers’ duty. The outer boundaries of the Tamiami 

Tower’s territorial jurisdiction of Class D airspace mark the outer 

boundaries of the air traffic controllers’ duty to provide 

monitoring, sequencing, and separation services to prevent 

collisions of aircraft. Thus, when considering the provisions of the 

ATCM in conjunction with the evidence in the record, we conclude 

that the district court was correct that the controllers did not owe 

a duty to issue safety alerts or traffic advisories to the pilots because 

frequency congestion, pilots are reminded that it is not necessary to request 

permission to leave the tower frequency once outside of . . . Class D surface 

area[].”).
22-12316 Opinion of the Court 23

the Seneca had exited, and the Cessna had not yet entered, the 

Tower’s airspace. 

To avoid this conclusion, Plaintiffs argue that the controllers

have a separate obligation to monitor tower radar display even after 

aircraft exit the Tower’s airspace, again relying on various 

provisions of the ATCM. They are incorrect. 

Section 3-1-9 of the ATCM provides that air traffic 

controllers “may use certified tower radar displays for” various 

purposes, including “[t]o determine an aircraft’s identification, 

exact location, or spatial relationship to other aircraft,” “[t]o 

provide aircraft with radar traffic advisories,” and “[t]o provide 

information and instructions to aircraft operating within the 

surface area for which the tower has responsibility.” ATCM § 3-1-

9(b) (emphasis added). As an initial matter, it is clear from this 

section that air traffic controllers are not required to use tower 

radar display; rather, section 3-1-9 states that controllers “may use” 

tower radar display for certain purposes. Id. (emphasis added). 

This section does not contain any mandate or requirement that 

controllers monitor tower radar display at all. Id. The district court 

was thus correct when it found that air traffic controllers “are not 

required to use” tower radar display “at any particular interval or 

for any particular length of time.”

Commentary to section 3-1-9(b)(4) bolsters the nonmandatory nature of the tower radar displays: 

Unless otherwise authorized, tower radar displays are 

intended to be an aid to local controllers in meeting 
24 Opinion of the Court 22-12316

their responsibilities to the aircraft operating on the 

runways or within the surface area. . . . [L]ocal 

controllers at nonapproach control towers must 

devote the majority of their time to visually scanning 

the runways and local area[.]

ATCM § 3-1-9(b)(4) cmt. Accordingly, it is clear that the “majority” 

of local air traffic controllers’ time at a non-approach tower like 

Tamiami Airport is used visually monitoring the airways, not using 

the optional tower radar display. Id. And, to the extent the air 

traffic controller uses the tower radar display at all, the displays are 

“an aid to local controllers in meeting their responsibilities to the 

aircraft operating on the runways or within the surface area,” i.e., 

Class D airspace. Id. (emphasis added). While it is true, as Plaintiffs 

argue, that the ATCM instructs controllers to devote the 

“majority” of their time to scanning runways and the surface area 

visually, see id., and “majority” does not mean “all” of an air traffic 

controller’s time, it is clear from the commentary to section 3-1-

9(b)(4) that the primary responsibility of an air traffic controller is 

to observe the runway and surface area visually, rather than 

through tower radar display. Controllers are simply not required 

to use tower radar display at all, much less to monitor aircraft 

outside their tower’s territorial jurisdiction. 

Lastly, Plaintiffs’ final argument as to duty is that Florida’s 

undertaker’s doctrine requires the controllers to issue traffic 

advisories and safety alerts outside the Tower’s airspace. In so 

arguing, Plaintiffs rely on Frazao’s and Yanker’s testimony at trial 

that they had issued traffic advisories to aircraft outside the Tower’s
22-12316 Opinion of the Court 25

airspace in the past. Plaintiffs also point to the testimony of the 

FAA’s piloting expert, who testified that Tamiami controllers 

sometimes provide traffic advisories to aircraft outside the Tower’s

airspace with whom they are in two-way radio communication. 

However, contrary to Plaintiffs’ assertions, whether or not 

Frazao and Yanker (or other Tamiami controllers) had undertaken 

monitoring responsibilities or activities for aircraft outside the 

Tower’s airspace in the past has no bearing on the alleged 

negligence in this case—as the district court correctly found. 

First, Plaintiffs make no argument that Frazao or Yanker 

increased any risk of harm to the pilots here by previously issuing 

traffic advisories or safety alerts outside the Tower’s airspace, and 

there is no evidence in the record to suggest as much. See

Restatement (Second) of Torts. § 324A(a). Second, the record is 

completely silent as to whether the pilots knew that Frazao and 

Yanker had previously issued advisories or alerts to other pilots in 

the past, or whether they believed they would be receiving 

monitoring outside the Tower’s airspace, such that they could have 

relied on Frazao’s and Yanker’s prior purported undertakings. See 

id. § 324A(c). Rather, there is evidence in the record that suggests 

the opposite, given that as a matter of course pilots do not expect 

to receive Flight Following unless they specifically request it, nor 

should they expect to be monitored by the Tamiami Tower prior 

to their entrance into or after their departure from the Tower’s 
26 Opinion of the Court 22-12316

Class D airspace.15 We therefore conclude that the district court

did not err as a matter of law in concluding that the air traffic 

controllers did not owe a general duty to monitor the outbound 

Seneca and the inbound Cessna on the tower radar display while 

outside the Tower’s airspace. And because no duty was owed, the 

district court correctly found no breach.

15 Plaintiffs also challenge the district court’s factual finding that Sejwal, who 

was piloting the outbound Seneca, was no longer in two-way radio 

communication with the Tamiami Tower after the Seneca left the Tower’s

airspace as inconsistent with evidence from trial. They contend that if Sejwal 

remained in two-way communication with the Tower, she could have 

received and heeded traffic advisories or safety alerts that Frazao was, in 

Plaintiffs’ view, under a duty to issue. As an initial matter, Plaintiffs are 

incorrect that competing evidence renders the district court’s finding clearly 

erroneous. The district court, as fact finder in the bench trial, was entitled to 

credit certain evidence over other evidence and to draw its own conclusions 

where the evidence permits two permissible inferences or conclusions. See

Morrissette-Brown, 506 F.3d at 1319. While Plaintiffs are correct that neither 

party established at trial with certainty whether Sejwal was or was not tuned 

into the Tower frequency when she left the Tower’s airspace, the district 

court’s conclusion—supported by the evidence from the FAA’s piloting expert 

and from Frazao—that Sejwal was no longer in two-way radio 

communications with the Tower was not clearly erroneous. See also 14 C.F.R. 

§ 91.129(c)(2)(i) (“Each person . . . [f]rom the primary airport . . . must establish 

and maintain two-way radio communications with the control tower, and 

thereafter as instructed by [air traffic control] while operating in the Class D 

airspace[.]” (emphasis added)); AIM § 4-3-2(a) (“In the interest of reducing 

tower frequency congestion, pilots are reminded that it is not necessary to 

request permission to leave the tower frequency once outside of . . . Class D 

surface areas.”).
22-12316 Opinion of the Court 27

B. Whether Frazao was negligent in issuing but failing to 

rescind the “follow” instruction

Plaintiffs’ second challenge is to the district court’s 

conclusion that Frazao was not negligent for issuing the instruction 

for Sejwal to “follow” the outbound Cessna but failing “to delete 

the instruction[.]” They also argue that the district court erred in 

determining that it would not have been reasonable for Sejwal to 

adhere to the follow instruction indefinitely. Because the district 

court found no negligence, which is a question of fact, this is an 

issue we review for clear error. Keefe, 867 F.2d at 1321. 

We turn to evidence considered by the district court. First, 

section 3-8-1 of the ATCM provides a list of possible 

“sequence/spacing” instructions air traffic controllers can issue to 

pilots, including “follow,” which informs the pilot about the 

“description and location of traffic.” ATCM § 3-8-1. While section 

3-8-1 of the ATCM does not specify whether a “follow” instruction 

would apply only to aircraft in the “traffic pattern,” or to aircraft in 

flight as well, the FAA’s piloting expert testified that the instruction 

would apply “[j]ust in the traffic pattern,” that he “would not 

expect to follow the aircraft anywhere beyond the pattern” if he 

were to receive that instruction, and that a reasonable pilot would 

“absolutely” have the same understanding. At trial, the FAA’s 

piloting expert testified that the “follow” instruction is generally 

understood to be given for the purpose of sequencing aircraft in 

the traffic pattern, analogizing the instruction to directions given 

by a parking lot attendant to a driver of a car: “[The ‘follow’ 

instruction in this case is] much like if you are leaving a parking lot 
28 Opinion of the Court 22-12316

and the parking lot attendant says, ‘Okay,’ giving directions, ‘follow 

that car out of the parking lot[.]’” He also testified that, upon 

receiving a “follow” instruction from air traffic control, no 

reasonable pilot would understand the directive to apply 

indefinitely, again returning to the parking lot analogy: “[Y]ou are 

going to follow that [car] out of the parking lot in sequence, but 

you are not going to follow them all the way to their home.” In 

other words, a pilot to whom air traffic control issued a “follow” 

instruction would understand that air traffic control was 

instructing him to follow a certain aircraft out of the pattern and 

then proceed on his own “route[] of flight . . . chosen by the pilot 

in VFR in Class D and E airspace”; he would not follow the other 

aircraft all the way to its destination. Conversely, Plaintiffs’ piloting 

expert testified at trial that, “as a pilot,” he would adhere to air 

traffic control’s “follow” instruction “until further advised[.]” 

Plaintiffs’ air traffic control expert witness testified that 

Frazao “had the responsibility to remember the [Seneca] because 

he had issued a control instruction to follow the Cessna . . . , and 

until he deleted that instruction[,] he was responsible for that 

airplane.” However, the FAA’s piloting expert testified that “[n]ever 

in [his] flying history” has he “ever been told to stop following an 

aircraft.” Frazao, for his part, testified that he had given the same

“follow” instruction “[s]everal times [every] day” and had never 

been asked by a pilot how long the instruction was intended to

apply.
22-12316 Opinion of the Court 29

The district court, having been presented with two 

permissible views of the evidence, was entitled to credit one view 

over the other—in this case, the view put forth by the FAA. See 

Morrissette-Brown, 506 F.3d at 1319 (“Where there are two 

permissible views of the evidence, the factfinder’s choice between 

them cannot be clearly erroneous.” (quotation omitted)). Given 

the evidence put forth by the FAA that the “follow” instruction 

would apply only to the traffic pattern, that Sejwal would be 

expected to adhere to that instruction only until she exited the 

pattern, and that no reasonable pilot would continue to adhere to 

the instruction indefinitely or until retracted by air traffic control, 

the district court found that Frazao was not negligent for issuing 

the “follow” instruction without then deleting it. The district court 

also found that it simply was not reasonable to believe that Sejwal 

would have interpreted the instruction as a mandate to follow the 

outbound Cessna out of the traffic pattern indefinitely until Frazao 

retracted the instruction. The record clearly supports the district 

court’s finding that Frazao was not negligent, and the district court 

did not clearly err in so finding.

C. Whether the district considered evidence of 

comparative negligence

Plaintiffs contend that language in the district court’s 

findings of fact and conclusions of law “suggests” that it 

improperly considered evidence of comparative negligence—an 

affirmative defense under Florida law—in making its ultimate 

finding that the controllers were not negligent. In particular, they 

point to the district court’s statements that there was (1) conflicting 
30 Opinion of the Court 22-12316

evidence about how the planes approached each other prior to the 

collision and (2) evidence that both planes were equipped with TIS 

devices and that the Seneca’s TIS device was functioning earlier in 

the day prior to collision. After reviewing the record and the 

district court’s findings of fact and conclusions of law, we conclude 

that the district court did not improperly consider evidence of 

comparative negligence but rather based its decision on Plaintiffs’ 

failure to prove the elements of their negligence claim, as outlined 

above.16 

III. Conclusion 

This is a case of a tragic mid-air collision between two 

airplanes outside the Tamiami Tower’s jurisdiction. The district 

court correctly held that the air traffic controllers owed no duty to 

the pilots involved in the crash and breached no duty. We affirm. 

AFFIRMED.

16 Plaintiffs also challenge the district court’s finding that Frazao’s alleged 

negligence was not the proximate cause of the pilots’ and passengers’ deaths. 

Because we conclude that the district court did not err in its duty and breach

findings and conclusions, Plaintiffs’ negligence claims fail, and we need not 

address their arguments regarding proximate causation.