As the role of air traffic controllers comes under scrutiny in the deadly mid-air collision between a U.S. Army helicopter and an American Airlines regional jet, payouts by the federal government for past crashes show both the scope and limits of government liability.
The federal government has paid 75 claims totaling $88.7 million in the last decade to settle litigation alleging negligence on the part of air traffic controllers, the military and other government actors in air crashes.
The settlement figures, which are buried in a government database that tracks payments by the Treasury Department’s Judgment Fund to resolve lawsuits against the United States, all involved small crashes, typically with one or two fatalities or serious injuries.
One reason the payment amounts aren’t higher: Under the Federal Tort Claims Act, the government is only liable for compensating victims or their families for their losses. Punitive damages, which can provide plaintiffs with much bigger monetary awards, are not allowed.
It's far too soon to assign liability for the Jan. 29 crash near Ronald Reagan Washington National Airport, which killed 67 people. Reuters reported one controller rather than two was handling local plane and helicopter traffic on Wednesday at the airport, a situation deemed "not normal" but considered adequate when flights are fewer. The helicopter may also have been flying above its assigned altitude.
The past settlements offer a window into how litigation might unfold if government investigators fault the FAA or U.S. Army for their role in the crash.
DOJ and FAA spokespeople did not respond to requests for comment.
In perhaps the most on-point case, the feds paid $6.8 million to settle a wrongful death lawsuit alleging air traffic controllers were negligent in failing to avert a mid-air collision between an F-16 and a private Cessna aircraft in South Carolina. The 2015 crash killed the Cessna pilot, Joseph Johnson, 30, and his passenger, his father Michael Johnson, 68. The F-16 pilot ejected safely.
“A mid-air collision is rarely the result of the failures of one party,” Jim Brauchle, a lawyer at Motley Rice who represented the Johnson family, said via email. The "actions of each crew along with the air traffic controller have to be evaluated."
According to an Air Force investigation, air traffic controllers directed the F-16 pilot to turn as the Cessna was ascending into its path, and the two pilots were not able to see each other in time to prevent colliding.
More often, the Judgment Fund payouts stemmed from crashes where private planes experienced mid-air mechanical problems or pilots were not warned of bad weather — and where the government could attempt to deflect blame for the accident.
For example, according to Judgment Fund records, Dallas-based lawyer Jon Kettles won a $3 million settlement in 2020 on behalf of the family of a Fort Worth man and his wife. The couple were killed in a crash after their Beechcraft airplane lost engine power. An FAA trainee allegedly tasked with managing too much air traffic gave them erroneous directions to the nearest airfield, which they never reached.
Prior to agreeing on a settlement, DOJ lawyers argued in court papers that the crash “resulted from errors committed by the pilot-in-command,” not the air traffic controller.
They also asserted that allegations relating to training, supervision and staffing should be dismissed for wrongly challenging “a discretionary function or duty” of a federal agency or employee.
Such a defense could be relevant if plaintiffs allege the Reagan National air traffic control was understaffed or challenge the helicopter's training flight as improper.
Kettles in an email said the Washington crash will probably be found to have multiple causes. Still, he said, “the controller is the safety net in the system.”
