* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

UNITED STATES COURT OF APPEALS

Filed 10/9/96

FOR THE TENTH CIRCUIT

KATHY LYNNE THURSTON,

Individually and as Personal

Representative of the estate of her

husband CURTIS LEO THURSTON,

Deceased, and as parent and natural

guardian of their minor children,

Jedediah, Jessica Lynne and Cody,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

No. 95-4111

(D.C. No. 94-CV-34)

(D. Utah)

(888 F. Supp. 1100)

ORDER AND JUDGMENT*

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.
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After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff sued the government under the Federal Tort Claims Act, 28 U.S.C.

§§ 1346(b) and 2671-2680, for the death of Curtis Thurston in an airplane crash,

alleging the air traffic controllers were negligent. Mr. Thurston was plaintiff’s

husband and the father of their children. Following a six-day bench trial, the

district court entered judgment in defendant’s favor finding that the air traffic

controllers were not negligent in their handling of Mr. Thurston. Thurston v.

United States, 888 F. Supp. 1100, 1108 (D. Utah 1995). We affirm.

Mr. Thurston was killed when the small aircraft he was piloting crashed

into the mountainside near Salt Lake City, Utah, on January 16, 1993. He was

authorized to pilot an airplane under visual flight rules (VFR). See generally 14

C.F.R. §§ 91.151 through 91.159 (visual flight rules). While aloft, Mr. Thurston

encountered adverse weather conditions that made it difficult or impossible for

him to see where he was going. He contacted air traffic control at Salt Lake City

International Airport to request directional assistance, or vectors, but did not

reveal to the air traffic controllers, either by words or tone of voice, that he was

not in VFR conditions. When the air traffic controller discovered that Mr.
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Thurston was not in VFR conditions, he treated the situation as an emergency and

gave Mr. Thurston a vector away from the mountain, but Mr. Thurston crashed

into the mountain a few seconds later. For a complete statement of the facts, see

the district court’s findings of fact. Id. at 1102-08. 

On appeal, plaintiff claims (1) the air traffic controllers breached their duty

to advise Mr. Thurston of the current weather in Ogden, Utah, and in failing to

pass information from the first controller to the second; and (2) the air traffic

controllers should have treated Mr. Thurston’s situation as an emergency because

he was a VFR pilot who stated twice that he could not see something on the

ground.

The parties do not dispute that Utah negligence law applies, see Tinkler v.

United States ex rel. FAA, 982 F.2d 1456, 1466 (10th Cir. 1992), that Mr.

Thurston and the air traffic controllers were presumed to know the applicable

laws and regulations governing air travel, see Heckler v. Community Health

Services, 467 U.S. 51, 63 (1984), or that the duty owed by the air traffic

controllers to Mr. Thurston was one of “reasonable care,” see Yates v. United

States, 497 F.2d 878, 883 (10th Cir. 1974). 

“Ordinarily, whether a defendant has breached the required standard of care

is a question of fact . . . .” White v. Deseelhorst, 879 P.2d 1371, 1374 (Utah

1994)(quoting Jackson v. Dabney, 645 P.2d 613, 615 (Utah 1982)). Accordingly,
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plaintiff’s claims that the air traffic controllers breached their duty of care to Mr.

Thurston are challenges to the district court’s findings of fact. We review the

district court’s factual findings for clear error, giving due regard for the district

court’s opportunity to judge the witnesses’ credibility. Fed. R. Civ. P. 52(a). 

“Where there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” Anderson v. City of Bessemer City,

470 U.S. 564, 574 (1985). 

Plaintiff argues that the air traffic controllers were negligent in failing to

inform Mr. Thurston of the weather conditions at the Ogden airport. When he

first contacted air traffic control at the Salt Lake City International Airport, Mr.

Thurston requested a vector to land at Salt Lake City. Air traffic controller

Wolverton informed him of a thirty minute delay to land at Salt Lake City. Mr.

Thurston then asked for a vector to Bountiful, Utah. Mr. Wolverton asked if he

could see Bountiful, to which Mr. Thurston replied, “negative, if possible ah can

you vector me to Ogden. Ogden is reporting three miles.” Aplt. app. vol. I at 57;

R. suppl. vol. II at 180. Mr. Thurston’s statement meant that he understood that

Ogden weather was VFR, providing three miles’ visibility. Mr. Wolverton then

instructed him to stay east of the freeway, and advised him to transfer to another

radio frequency for assistance from another air traffic controller, Mr. Miller. In

fact, Ogden weather was much worse than Mr. Thurston believed, and the air
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traffic controller had the Ogden weather conditions on a monitor at his work

station. Plaintiff maintains that Mr. Thurston’s statement, “Ogden is reporting

three miles,” required the air traffic controller to inform him of the Ogden

weather report on the controller’s monitor. 

Mr. Thurston did not ask for a weather report. Evidence was adduced at

trial that if Mr. Thurston had called for a weather briefing before he took off, he

would have learned that the weather in Ogden was not VFR. R. suppl. vol. IV at

467-69. Mr. Thurston also had available over his airplane radio a weather service

from which he could have obtained the current Ogden weather. Air traffic

coordinator Jefferson testified that he assumed that Mr. Thurston had current

weather information. R. suppl. vol. V at 678. Furthermore, nothing in Mr.

Thurston’s transmissions indicated that he could not see the landmarks due to bad

weather, or that he was otherwise in danger. Authorities stating an air traffic

controller’s duty to provide weather information where the pilot is under the

controller’s direction, e.g., DeWeese v. United States, 576 F.2d 802, 803, 805 

(10th Cir. 1978), or where the pilot has requested weather information, see, e.g.,

Webb v. United States, 840 F. Supp. 1484, 1491 (D. Utah 1994), are inapposite. 

In the absence of a request for weather information or a pilot’s statement that he

is hindered by weather conditions, we cannot say that the district court’s view of

the evidence is clearly erroneous. 
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We also reject plaintiff’s argument that Mr. Wolverton was negligent by

not informing Mr. Miller, the second controller, that Mr. Thurston had requested

vectors and could not see the freeway. There was evidence that conversation

between controllers is often distracting, and that Mr. Miller would have been

required to obtain Mr. Thurston’s intentions directly from him, even if Mr.

Wolverton had informed him of Mr. Thurston’s prior requests. Therefore, the

district court’s finding that the air traffic controllers were not negligent because

they did not give Mr. Thurston the Ogden weather information or discuss his

situation was not clearly erroneous.

Next we address plaintiff’s claim that the air traffic controllers should have

treated Mr. Thurston’s situation as an emergency when he stated twice that he

could not see landmarks on the ground. They assert that the controllers should

have understood from those statements that he was not in VFR conditions. 

Plaintiff’s argument is premised on the deposition testimony of Ms. Hinz, the air

traffic supervisor on duty at the time of the accident. She stated in her deposition

that if a VFR pilot said twice that he could not see something on the ground, that

indicates that the aircraft is not necessarily in an emergency, but has a problem to

be dealt with by the controller. R. suppl. vol. I at 71. At trial, however, Ms. Hinz

clarified that the treatment of such a situation should be based on the controller’s

judgment. Id.
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Evidence was adduced at trial that a VFR pilot’s statement that he cannot

see something on the ground does not necessarily indicate a problem; the pilot

might be looking the wrong way, or be executing a turn so that the object is

obscured, or a fog might have come in between the aircraft and the ground. In

this case, when Mr. Thurston said he could not see the freeway, Mr. Wolverton

said the freeway was west of him, to which Mr. Thurston replied that he would

proceed west. Radar information indicates that he did proceed west at that point. 

The pilot has the ultimate responsibility for the safety of his airplane. 

Cappello v. Duncan Aircraft Sales, 79 F.3d 1465, 1469 (6th Cir. 1996); see also

14 C.F.R. § 91.3(a) (“The pilot in command of an aircraft is directly responsible

for, and is the final authority as to, the operation of that aircraft.”). Mr. Thurston,

a VFR pilot, failed to inform air traffic control that he was not in VFR conditions. 

“The controller had a right to assume that, in the absence of evidence to the

contrary, conditions [at the airplane’s location] were such that the aircraft could

operate under visual flight rules.” Redhead v. United States, 686 F.2d 178, 183

(3d Cir. 1982), cert. denied, 459 U.S. 1203 (1983). The parties do not dispute

that an emergency takes precedence over other air traffic, and if Mr. Thurston had

indicated in any way that he was in trouble, including using the words

“emergency,” “Mayday,” or “help,” the air traffic controller would have given his

situation top priority. Because Mr. Thurston did not indicate that bad weather
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prevented him from seeing the ground, the controllers were entitled to assume that

he was in VFR conditions, able to navigate on his own. In view of our

determination that a pilot’s statement that he cannot see landmarks does not

necessarily indicate a problem, we need not address plaintiff’s challenge to the

evidence that Mr. Thurston’s statement was blocked by a radio transmission from

another aircraft. The district court’s ruling on this issue is not clearly erroneous. 

We have reviewed the trial transcripts, the appendices, and the briefs

submitted by the parties. We conclude that the district court’s findings of fact,

based on the record considered as a whole, are not clearly erroneous. 

The judgment of the United States District Court for the District of Utah is

AFFIRMED.

Entered for the Court

Michael R. Murphy

Circuit Judge