UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2020

(Argued: December 1, 2020 Decided: August 9, 2021)

Docket No. 20-608-cv

_____________________________________ JESSICA T. BADILLA, CONSORCIA A. CASTILLO, AND ACEA M. MOSEY, ERIE COUNTY PUBLIC ADMINISTRATOR, AS CO-ADMINISTRATORS OF THE ESTATE OF BERNARDO G. CASTILLO, DECEASED, JOSEPHINE R. ELBANBUENA, AND ACEA M. MOSEY, ERIE COUNTY PUBLIC ADMINISTRATOR, AS CO-ADMINISTRATORS OF THE ESTATE OF WILO M. ELBANBUENA, MICHELLE S. MEDINA, AND ACEA M. MOSEY, ERIE COUNTY PUBLIC ADMINISTRATOR, AS CO-ADMINISTRATORS OF THE ESTATE OF NILO T. MEDINA, DECEASED, NELA A. PADURA, AND ACEA M. MOSEY, ERIE COUNTY PUBLIC ADMINISTRATOR, AS CO- ADMINISTRATORS OF THE ESTATE OF EDUARDO P. PADURA, DECEASED, INGRID S. BULOS, AND ACEA M. MOSEY, ERIE COUNTY PUBLIC ADMINISTRATOR, AS CO-ADMINISTRATORS OF THE ESTATE OF HENRY BELTRAN BULOS, DECEASED, ACEA M. MOSEY, ERIE COUNTY PUBLIC ADMINISTRATOR, AS CO-ADMINISTRATORS OF THE ESTATE OF RENE BADILLA, DECEASED,

Plaintiffs-Appellants,

v.

MIDWEST AIR TRAFFIC CONTROL SERVICE, INC., A KANSAS CORPORATION,

Defendant-Appellee.* _____________________________________ * The Clerk of Court is directed to amend the caption as set forth above. Before:

SACK, CHIN, and LOHIER, Circuit Judges.

The estates of crew members and pilots of a civilian flight that crashed into a mountain near Kabul Afghanistan International Airport filed state-law wrongful death claims against the U.S. military contractor providing air traffic control services at the airport, alleging that an air traffic controller’s negligent instructions to the pilot caused the fatal crash. Following discovery, the United States District Court for the Western District of New York (Frank P. Geraci, Chief Judge) granted summary judgment to the military contractor, holding that the estates’ claims were preempted by the combatant activities exception to the Federal Tort Claims Act and, alternatively, that the contractor neither had a duty to provide “terrain separation” for the flight nor proximately caused the accident. For the following reasons, we VACATE the District Court’s judgment and REMAND for proceedings consistent with this opinion.

THOMAS ROUTH, Nolan Law Group, Chicago, IL (Michael S. McArdle, Nolan Law Group, Chicago, IL, Howard B. Cohen, Gross Shuman Brizdle & Gilfillan, P.C., Buffalo, NY, Kenneth Goldblatt, Goldblatt & Associates, Mohegan Lake, NY, on the brief), for Plaintiffs-Appellants.

JOHN P. FREEDENBERG, Goldberg Segalla LLP, Buffalo, NY for Defendant-Appellee Midwest Air Traffic Control Service, Inc., a Kansas Corporation. SACK and LOHIER, Circuit Judges:

In October 2010, a civilian flight (“Flight 662”) crashed into a mountain near Kabul Afghanistan International Airport (“KAIA”), killing all on board. The estates of the crew members and pilots of Flight 662 brought state-law wrongful death claims against Midwest Air Traffic Control Service, Inc.

2 (“Midwest”) and others, alleging in relevant part that a Midwest air traffic controller had negligently provided instructions to Flight 662’s pilot that put the flight on a collision course with mountainous terrain surrounding KAIA.

Following discovery, the District Court (Frank P. Geraci, Chief Judge) granted Midwest’s motion for summary judgment on the grounds that (1) t