Fleming v. Robinson Aviation (RVA), Inc.

GEOFFREY FLEMING, JR.; RENEE FLEMING, Plaintiffs, v. ROBINSON AVIATION (RVA), INC.; Ci2 AVIATION, INC.;

INSURANCE COMPANIES X, Y AND Z, Defendants.

XIOMARA NOEL, a/k/a XIOMARA GEORGE WILLIAMS, personally,and as legal guardian of her minor son O.L.N; KELORN A. SAMUEL, Plaintiffs, v. ROBINSON AVIATION (RVA), INC.; Ci2 AVIATION, INC.;

INSURANCE COMPANIES X, Y AND Z, Defendants.

Civil No.: 18-1511 (DRD)

Civil No.: 18-1579 (DRD)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

June 8, 2021

OPINION AND ORDER

Pending before the Court is Robinson Aviation, Inc.'s (hereinafter, "RVA" or "Codefendant") Motion for Summary Judgment. See Docket No. 185. Plaintiffs dully opposed RVA's request, Codefendant filed a corresponding Reply and, finally, Plaintiffs submitted their Sur Reply. See Docket Nos. 159, 178, 188 and 207. After carefully examining the Parties' contentions, pursuant to the analysis elucidated below, the Court hereby GRANTS the Motion for Summary Judgment as to RVA.

I. UNCONTESTED MATERIAL FACTS¹

1) On April 23, 2015, the Federal Aviation Administration ("FAA") entered into a contract with RVA for the operation of several air traffic control tower -including the Fernando Luis Rivas Dominicci Airport's air traffic control tower ("ATC Tower")-² under the Federal Contract Tower Program (hereinafter, "FAA/RVA Contract"). See Docket No. 159-2, Plaintiffs' Exhibit 1 (hereinafter, "Px"); see, also, Docket No. 207-1 at 1 (admitted by RVA).

2) The primary purpose of the air traffic control system is to prevent a collision between aircraft operating in the system and to provide a safe, orderly and expeditious flow of traffic, and to provide support for National Security and Homeland Defense. See Docket No. 1597-7, Px6 at 2-1-1.

3) The FAA/RVA Contract allows for subcontracts; to that end, Clause H.15 of the FAA/RVA Contract states the following:

Before employment of any subcontractor/consultant under this contract, the Contractor [RVA] must obtain the written approval of the Contracting Officer [FAA]. The notification for consent to subcontract must be submitted, in writing. 60 days in advance, to the Contracting Officer. In requesting such approvals, the Contractor must furnish all pertinent information required by the Contracting Officer, which may include, but not limited to, the name or names of individuals or companies under consideration, extent of the proposed employment, the unexecuted subcontract document, any potential conflict of interest and the rate of reimbursement. Consent to subcontract any portion of the contract must not relieve the contractor of any responsibility under the contract.

The Contracting Officer has sole responsibility for approving subcontracts and consultant agreements. If consent is given to subcontract, the contractor must obtain the Contracting Officer's written approval before making any substitution of subcontractors or consultants. Docket No. 159-2, Px1 at 30.

4) On June 24, 2015, RVA entered into an agreement with CI2 Aviation, Inc. ("CI2") for the operation of the airport traffic control towers of the FAA's Contract Tower Program - including the Isla Grande Airport's ATC Tower- with an effective date of performance through December 30, 2020 (hereinafter, "RVA/CI2 Contract"). See Docket No. 185-4, Defendants Exhibit C (hereinafter, "Dx") at 1-2 and 50.

5) As per the FAA/RVA Contract, the RVA/CI2 Contract is an allowed subcontract. See Docket No. 159-2, Px1 at 30; see, also, Docket No. 207-1 at 1 (admitted by RVA).

6) On October 2, 2017, a Cessna 182DN9021X (hereinafter, "the Cessna") was substantially damaged when it impacted terrain during landing at the Isla Grande Airport. See Docket No. 159-1 at 2 (admitted by Plaintiffs).

7) On duty at the ATC Tower on October 2, 2017 was air traffic manager Mr. Demond Phelps (hereinafter, "Controller Phelps"), performing local control. See Docket No. 185-6, DxE at 6, lines 2-4; 9, lines 4-9; and 11, lines 5-10; see, also, Docket No. 159-1 at 3 (admitted by Plaintiffs).

8) Controller Phelps was responsible -among other things- for communications with aircrafts incoming and outgoing at Isla Grande Airport regarding departures, landings, and air traffic separation. Id. at 11, lines 3-7.

9) Also, on duty at the ATC Tower on October 2, 2017 was Carlos Barreto (hereinafter, "Controller Barreto"), performing ground control. See Docket No. 185-7, DxF at 7, lines 2-4; 37, lines 13-16; and 102, lines 3-9; see, also, Docket No. 159-1 at 3 (admitted by Plaintiffs).

10)Controller Barreto, was responsible -among other things- for the taxing of aircrafts and vehicles throughout the airfield on the taxiways. See Docket No. 185-6, DxE at 11, lines 11-17.

11) Pursuant to the RVA/CI2 Contract, CI2 was to provide air traffic control services, including labor, supervision, materials, required equipment, supplies, and services necessary to operate the FAA Contract Towers, including the ATC Tower at the Isla Grande Airport. See Docket No. 185-4, DxC at 2.

12)CI2 provided all staffing for the FAA Contract Towers, including the Isla Grande Airport's ATC Tower. Id.

13)Controller Phelps, air traffic manager and local controller on the day of the incident, and Controller Barreto, ground control on that day of the incident, testified that they were employed by CI2. See Docket No. 185-6, DxE at 6, lines 2-4; 9, lines 4-9; 11, lines 5-10; Docket No. 185-7, DxF at 7, lines 2-4; 37, lines 13-16; 102, lines 3-9; see, also, Docket No. 159-1 at 3 (admitted by Plaintiffs).

14)Controller Phelps has been employed as a manager for CI2 since October 2011. See Docket No. 185-6, DxE at 10, lines 19-21. Controller Barreto has been employed by CI2 since October 2008. See Docket No. 185-7, DxF at 7, lines 9-11.15)Controller Phelps, as local controller, maintained communication with the Cessna on the day of the incident. See Docket No. 185-6, DxE at 76, lines 13-17; see, also, Docket No. 159-1 at 4 (admitted by Plaintiffs).

16)CI2 employees assigned which employee will assume the different roles -or tasks- during their scheduled shifts at the ATC Tower. See Docket No. 185-6, DxE at 62, lines 9-21.

17) The CI2 employees open the ATC Tower every day; said opening includes calling the San Juan Tower to indicate that Isla Grande's ATC Tower will be opening at a specified time. See Docket No. 185-6, DxE at 32, lines 14-23.

18)CI2 implemented site-specific services to the ATC Tower, such as the designation of hours of operations -which were subject to the review, processing, and approval of RVA- and whether reporting requirements. See Docket No. 185-4, DxC at 3-4, ¶¶ 3.1.4-3.1.6.

19) As to accident/incident reporting, the RVA/CI2 Contract states that CI2 "must report accidents/incidents and collect applicable data in accordance with FAA Order 8020.16, Air Traffic Organization Aircraft Accident and Incident Notification, Investigation, and Reporting and in accordance with RVA Directives." Docket No. 185-4, DxC at 6, ¶ 3.9.

20) On the other hand, as to accident/incident reporting, the FAA/RVA Contract states that "[RVA] must report accidents/incidents and collect applicable data in accordance with FAA Order 8020.16, Air Traffic Organization Aircraft Accident and Incident Notification, Investigation, and Reporting." Docket No. 159-2, Px1 at 7-8, ¶ C.3.9.

21) For the Cessna incident, Controller Phelps prepared an accident package which he maintained under lock and key in his office at the ATC Tower. See Docket No. 185-6, DxE at 39, lines 1-10.

22) Pursuant to the RVA/CI2 Contract, CI2 "must provide training for [CI2]-furnished equipment. CI2 must provide contract personnel with training on Government-furnished equipment (GFE) following initial FAA training". Docket No. 185-4, DxC at 5, ¶ 3.7.6.

23) Pursuant to the RVA/CI2 Contract, CI2 controlled, monitored and was responsible for operational recorder tapes in the ATC Tower. See Docket No. 185-4, DxC at 3, ¶ 3.1.5.

24) The FAA/RVA Contract states that "[t]he contractor must monitor, change, and be responsible for operational voice recorder tapes, as applicable, and the applications of Digital Voice Recording Systems in accordance with the provisions in FAA Order JO7210.3. At locations where the recorders are not convenient to operating quarters, the contractor must execute an agreement with the Technical Operations manager assigning responsibility for checking and changing recorder tapes." Docket No. 159-2, Px1 at C-11, ¶ C.5.1.4.

25)CI2 employees were also responsible for initiating any request to technicians for equipment repairs needed in the ATC Tower. See Docket No. 185-6, DxE at 52-54.

26) The FAA/RVA Contract states that "[RVA] must be responsible for initiating service calls to the Contact FAA Facility when experiencing GFE malfunctions. The contractor must provide necessary coordination and assistance to FAA to accomplish routine and corrective GFE maintenance during normal hours of operation. The Contractor must not modify GFE." Docket No. 159-2, Px1 at 14, ¶ C.5.1.3.

27)CI2 controlled and was responsible for maintenance, janitorial services, facility security, and maintaining an inspection system. See Docket No. 185-4, DxC at 7-8.

28)CI2 employees receive training material from the FAA that they reviewed and completed in Controller Phelps' office at the ATC Tower. See Docket No. 185-6, DxE at 18-19.

29)Controller Phelps created a training record of all employees upon completion of each of the trainings, which remained in his custody. Id. at 19-20.

30) Pursuant to the FAA/RVA Contract, "[RVA] must establish, document, and implement a facility training program for controllers. The training program must be administered in a uniform and standardized manner, reviewed and updated at least annually. The training program is subject to FAA evaluations in accordance with JO 7210.634, Air Traffic Organization (ATO) Quality Control." Docket No. 159-2, Px1 at C-3, ¶ C.3.7. Furthermore, "[RVA] must maintain a FAA Form 3120-1, Training and Proficiency Record (or a

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