dissenting.
The majority affirms primarily because it agrees with the district court that, on the facts of this case, the air traffic controller fully discharged his duty to the passengers by relying on the pilot to obey the visual flight rules. The majority acknowledges that pilots and controllers have concurrent duties of care, see Pierce v. United States, 679 F.2d 617 at 621-622 (6th Cir. 1982); Mattschei v. United States, 600 F.2d 205, 208 (9th Cir. 1979), but ignores that principle as it reviews the district court’s findings of fact and conclusions of law. The majority asks whether the district court’s findings are clearly erroneous and has no difficulty concluding that they are not, but never asks whether the district court applied an erroneous legal standard. I disagree then with the majority’s approach to the question of the controller’s negligence.1 In my opinion, the district court’s failure to apply, or even to recognize, the principle of concurrent duties of care led to clearly erroneous findings of fact. I would reverse on the ground that the controller had a duty to issue a low altitude alert to the plane which he did not discharge.2
I.
The majority sets out most of the important facts in its opinion, but the record cannot be properly evaluated without a much fuller explanation of the governing standards of conduct than the majority gives. The majority states correctly that pilots and controllers “[e]ach [are] responsible for the safe conduct of the aircraft and the safety of its passengers,” majority op., typescript at 182, but does not explore the meaning of concurrent duties of care, which are independent duties. Consequently, I must do so.
*185Pilots are the final authority over and bear ultimate responsibility for the operation of their aircraft, as the majority emphasizes, but the pilot’s responsibility does not abrogate the controller’s duty of care. The negligence of a pilot relieves a negligent controller of liability only if the pilot or the pilot’s representative is the plaintiff and if contributory negligence is a complete defense. See Todd v. United States, 384 F.Supp. 1284, 1294 (M.D.Fla.1975), aff’d, 553 F.2d 384 (5th Cir. 1977) (per curiam); cf. Rudelson v. United States, 602 F.2d 1326, 1331-32 (9th Cir. 1979) (applying California law of comparative negligence). The negligence of a pilot is not imputed to his or her passengers. Pierce v. United States, supra, at 622. The controller’s duty is to convey all information and give all warnings specified by Federal Aviation Administration manuals, and to “take steps beyond those set forth in the manuals if such steps are necessary to ensure the safety of pilots and passengers” in emergency or especially hazardous situations. Rudelson v. United States, supra, 602 F.2d at 1329. Accord, Hartz v. United States, 387 F.2d 870, 873-74 (5th Cir. 1968); Himmler v. United States, 474 F.Supp. 914, 931 (E.D.Pa.1979). A controller may have a duty to act even if the emergency arises from a pilot’s failure to comply with FAA regulations. This obligation is made clear by the aviation cases already cited and by Michigan law, which applies to the decision of this case.3 Under the Michigan “emergency doctrine,” the controller is not required to anticipate pilot negligence but has a continuing duty to exercise reasonable care under the circumstances, which may require action when a reasonably prudent person would recognize impending danger. See DePriest v. Kooiman, 379 Mich. 44, 149 N.W.2d 449, 451 (1967) (per curiam) (duties of automobile driver with right of way); Noyce v. Ross, 360 Mich. 668, 104 N.W.2d 736, 741-42 (1960) (same).
II.
In this suit by the estate of a passenger, the conduct of the pilot is at issue only as it relates to the information available to the controller while the plane descended toward Nemacolin Airport. Whether the controller was negligent ultimately depends on his right to assume that the pilot of the plane in which appellants’ decedent was a passenger could see his path clearly as the plane descended. If the controller was entitled to make this assumption, it was because a reasonable person would not have known or suspected that the pilot was not obeying the visual flight rules (“VFR”).4 But if a reasonable person would have known or suspected differently, then the controller had a duty to warn the pilot that he was dangerously low by issuing a low altitude alert. For the reasons set out below, I conclude on the basis of the record that the controller did have this duty and that he is not absolved of responsibility by the pilot’s apparent disregard of the rules for VFR flight.
The district court’s contrary conclusion rests on an erroneous construction of the scope of a controller’s duties. The district court held as a matter of law that the controller’s duty was primarily to provide separation among aircraft; that he had no duty to inquire whether the plane was descending in VFR conditions; and that he had no duty to issue a low altitude alert at any time during the descent. App. at 39-*18640, 1115, 8-9. The district court made two critical findings of fact: a controller “is entitled to assume that a pilot is observing Federal Air Regulations,”5 and the controller in this case was entitled to assume that the plane was descending under VFR conditions “because it descended and its crew would have known that they could not descend unless they were in VFR conditions according to Federal Air Regulations.” Id. at 36-37, 1171-72. The majority agrees with the district court, concluding that
[t]he controller had a right to assume that, in the absence of evidence to the contrary, conditions there were such that the aircraft could operate under visual flight rules. He could expect that out of concern for their own lives, if for no other reason, the crew members were flying in conformance with FAA regulations.
Majority op., typescript at 183.
The principles enunciated by the district court misstate the law. A controller is entitled to assume pilot adherence to the regulations only until he or she should know that the assumption is unwarranted; a controller has a continuing duty to exercise due care under the circumstances. See Rudelson v. United States, supra, 602 F.2d at 1329; Noyce v. Ross, supra, 104 N.W.2d at 741-42. The district court also misapprehended the law with respect to the controller’s duty to issue low altitude alerts. Contrary to its conclusion that the controller’s primary duty was to separate aircraft, the Controller’s Manual instructs a controller to give “first priority” not only to separating aircraft but also to issuing low altitude alerts “to radar identified aircraft if an automatic altitude report is observed on radar showing the aircraft to be at an altitude, which in your judgment, places the aircraft in unsafe proximity to terrain/obstructions.” Controller’s Manual, supra note 4, at 155 (as amended June 2, 1975). Discharge of this duty requires more than a judgment call:
[A]n awareness of significant or extreme deviations can, in respect to terrain and obstructions, be expected on a reasonable, though intermittent basis. In each case conditions of workload, impact of the volume of traffic, the quality /limitations of radar, etc., will be the basis along with the time or persistence of the deviation, for determining reasonableness [T]his paragraph does not impose a duty to see the development of such situations; it does require, however, that when such a situation is observed, the pilot be so advised.
Id. at 155A. Even the Government’s expert testified that, in the circumstances of this case, a controller would have a duty to issue a low altitude alert if he or she received information that a plane was not in VFR conditions. App. at 290.
III.
Viewed in light of the proper standard of conduct, the record demonstrates that the district court’s finding that the controller was entitled to assume that the plane was descending in VFR conditions was clearly erroneous. The controller should have known from the information available to him that the plane probably was not in VFR weather. Weather conditions within the area of the five weather stations closest to Nemacolin Airport were generally poor, with low ceilings and poor visibility. The radio transmissions to and from the controller, reproduced in the margin,6 show that, *187five minutes before the crash, the pilot of an army helicopter three miles from the plane reported that he could not see the plane (“no joy”) and that he was flying in instrument weather (“India Mike Charlie”).7 Less than two minutes later the radar screen data block8 indicated that the plane had descended to 3,400 feet, and the controller asked the plane, “What are your intentions?” The pilot replied, “We just takin’ a look, we’re getting some ground contact here and I think we’re gonna make it, but, uh, just stand by with us and, uh, we’ll give you a call here in a minute.” The controller testified that this reply told him that the plane was operating in VFR conditions “[bjecause he left 5,000, and under the cruise clearance you do not leave an altitude unless you have the necessary VFR minimum.” In response to a question from the court, the controller acknowledged: “I don’t know he was in VFR. That is something I assumed because he descended.” App. at 74-75. He also testified, however, that he was not aware of weather conditions in the area where the plane was descending, and that he asked the pilot what he intended because he was concerned whether the plane was in VFR conditions.9 Id. at 76-77.
*188The controller knew also that the plane had not reported leaving its cruise clearance altitude of 5,000 feet, although such a report was necessary to cancel its cruise clearance. See Controller’s Manual, supra note 4, at H 32. Instead, the pilot stated “just standby with us, and, uh, we’ll give you a call here in a minute.” The district court found that the plane’s failure to report its descent “indicates that its crew anticipated the possibility of not being able to land at Nemacolin Sirport [sic] because of adverse weather conditions.” App. at 35,160. This finding, which militates against the Government’s position, is plainly supported by the record.
The Government’s air traffic control expert testified that if a pilot “deems it is safe to descend in VFR conditions, we have to assume he is descending in VFR conditions,” that the radio transmissions were consistent with a normal descent, and that he would have to assume that the phrase “we are getting some ground contact” meant that the pilot was complying with the regulations and flying in VFR conditions. App. at 259-60, 267. By contrast, appellants’ pilot expert and air safety expert both testified that the “ground contact” phrase meant that the plane was not operating in VFR conditions. App. at 106, 212-13.
Even accepting the district court’s implicit judgment that the Government’s expert was more credible than appellants’ experts, the evidentiary support for the district court’s finding is illusory. The testimony of the Government expert and the controller essentially was that the controller properly assumed that the plane was in VFR conditions because otherwise the pilots would be violating federal regulations.10 Yet the record clearly shows that except for the fact of descent, everything the controller knew or should have known, including the fact that pilots sometimes disobey regulations, app. at 87, indicated that the plane probably was not in VFR conditions. That the district court’s finding is clearly erroneous is critical because a controller has substantially greater responsibilities when a plane is flying under instrument flight rules (“IFR”). Because a pilot cannot fly safely in IFR conditions using visual cues, the controller assumes the primary -responsibility for keeping the, aircraft at a safe altitude and a safe distance from other aircraft. See Federal Aviation Admin., U.S. Dep’t of Transportation, Airman’s Information Manual, pt. 1, at 1-62 to -68 (Aug. 1975); Controller’s Manual, supra note 4, at UK 254-512.
The plane continued to descend for one minute after the controller’s inquiry about the pilots’ intentions and then flew at 2,600 to 2,700 feet for three minutes. Radar contact continued until the plane crashed into a 2,800 foot ridge, about two hundred feet below its peak. Had the controller issued a low altitude alert, instructing the plane to climb immediately, after his last inquiry to the pilots, this accident could have been prevented. The district court found that the controller knew that area surrounding Nemacolin Airport is mountainous, with peaks of 2,900 feet, app. at 38, H 78, although topographic information is not displayed on a controller’s radar screen, id. at 37, 173. The court found also that the plane’s descent was a normal descent, “which did not exhibit any significant or extreme deviations from what an air traffic controller would expect from a plane descending from a cruise clearance to an airport.” Id. at 38, U 77. On the basis of these findings, the court concluded:
Because the air traffic controller in contact with Charlie Echo was entitled to assume the plane was operating in VFR *189conditions and, therefore, could see whatever terrain/obstructions were in his path, including mountains in the area, and, furthermore, because the flight path of Charlie Echo did not exhibit any significant or extreme deviations from what would normally be expected, he did not have a duty to issue a low altitude alert at any time during the descent of the plane.
App. at 40, H 9.
While the district court’s finding that the descent was normal is not clearly erroneous, its conclusion that the controller had no duty to issue a low altitude alert is mistaken. The controller was not entitled to assume that the plane was in VFR weather, as I have discussed, and the record shows that the plane was a “radar identified aircraft”11 whose altitude was displayed on the controller’s screen, and that the controller knew the terrain, the height of the peaks, and that the plane was descending. In view of the duty priorities established by the controller’s manuals, I cannot conclude, as the majority does, that the controller had no duty to warn under the circumstances. Indeed, I think that the controller would have had a duty to warn even if the Controller’s Manual did not require low altitude alerts, because the danger was “reasonably apparent,” American Airlines, Inc. v. United States, 418 F.2d 180, 193 (5th Cir. 1969).
In sum, the district court misconstrued the controller’s duty of care, since the court did not recognize that pilots’ and controllers’ duties of care are concurrent, and clearly erred in finding that the controller was entitled to assume that the plane was descending in VFR weather. I believe that the controller was negligent because he failed to discharge his duty to issue a low altitude alert to the plane as it descended. The controller had a duty to warn, established by the Controller’s Manual, because under the circumstances he was not entitled to assume that the plane’s pilot was obeying the visual flight rules.
IV.
My concerns about the majority’s disposition of this case transcend my belief that this case is wrongly decided. The standards of conduct for air traffic controllers are high because the safety of air travelers demands it. The degree of care that constitutes reasonable care under the circumstances is a function of the dangers that are fairly apprehended in those circumstances. A few seconds of inattention by a controller always makes possible a tragic, and too often fatal, accident. See Himmler v. United States, supra, 474 F.Supp. at 928. Because the Government, through air traffic control, has undertaken to promote safe air travel, pilots and especially passengers are entitled to rely on controllers’ full performance of their exacting duties. See Pierce v. United States, supra, at 621. The FAA added issuing low altitude alerts to air traffic controllers’ first priority duties because “[t]he public interest, in light of recent controlled flights into the ground, dictates that we amend our priority of duties to assist pilots in executing their regulatory responsibilities.” Federal Aviation Administration Transmission to Area Offices 1 (June 2, 1975) (amending air traffic controllers’ manuals), reprinted in app. at 202. That assistance was not given to the pilot here, and the result was tragic for the completely innocent passengers as well as for the apparently negligent pilot.
I respectfully dissent.
. I agree with the majority that appellants’ contentions about their effort to amend their complaint and certain evidentiary rulings at trial do not warrant reversal.
. “[I]n most cases where the trial judge has erred in determining what standard of conduct should have been used in a negligence determination, . .. the ultimate finding as to negligence does not pass muster under the ‘clearly erroneous’ test.” Miller v. United States, 587 F.2d 991, 994-95 (9th Cir. 1978).
. Under the Federal Tort Claims Act, the state law that would apply to determine the liability of “a private individual under like circumstances” applies to determine the liability of the Government. 28 U.S.C. § 2674 (1976). The district court held that Ohio’s choice of law rules required the application of Michigan’s negligence law. App. at 39, [| 2. The appellants do not contest this ruling.
. FAA regulations permit VFR flight in controlled airspace only if a pilot has forward visibility of at least three miles and can fly at feast 500 feet below, 1,000 feet above, and 2,000 feet laterally from any clouds. 14 C.F.R. § 91.105 (1982). Only if VFR conditions are present may plane descend from its assigned cruise clearance altitude toward a destination airport that, like Nemacolin Airport, has no approved instrument approach procedure. Federal Aviation Admin., U. S. Dep’t of Transportation, En Route Air Traffic Control, No. 7110.9D, at (132 (Jan. 1975) [hereinafter cited as “Controller’s Manual”].
. Although the district court characterized this assertion as a “finding,” it is plainly reviewable as a conclusion of law because the scope of an air traffic controller’s duty of care is a legal question. Rudelson v. United States, supra, 602 F.2d at 1329.
. In this transcript, time is Greenwich Mean Time; “PIT R” is the controller; “847 CE” and “Charlie Echo” are appellants’ decedent’s plane; and “930” is the army helicopter.
1552:23 PIT R Eight four seven Charlie Echo has traffic twelve o’clock, about ten miles, northwestbound at six thousand, it’s a army helicopter.
1552:33 847 CE Alright sir, uh, how about a five thousand cruise clearance here, we’ll take a look at Nemacolin and, uh, let you know.
1552:40 PIT R Eight four seven echo, you’re cleared to cruise five thousand.
*1871552:43 847 CE Charlie Echo’s cleared to cruise five thousand.
1552:46 PIT R Army one five nine three zero, traffic twelve o’clock, and about eight miles southeastbound, at five thousand, and with a cruise clearance for an approach.
1552:57 930 And, helicopter one five nine three zero, no joy, you have us in radar contact yet?
1553:02 PIT R Uh, one five nine three zero, affirmative. You’re in radar contact five miles southeast of Indianhead.
1553:06 930 Nine three zero, Roger, thank you.
1553:47 PIT R Army one five nine three zero. The traffic is now off your, uh, ten o’clock position, about three miles.
1553:52 930 This is helicopter one five nine three zero, Roger. I’m India Mike, uh, Charlie, no joy.
1553:58 PIT R Roger, He’s out of fortyone hundred now, on a cruise clearance.
1555:29 PIT R Eight four seven Charlie Echo, what are your intentions?
1555:33 847 CE We just tak’n a look we’re getting some ground contact here, and I think we’re gonna make it. But, uh, just standby with us, and, uh, we’ll give you a call here in minute.
1555:41 PIT R Charlie Echo, Roger.
1555:45 847 CE (Garble) We’re able (garble) get it and we miss the contact. I got an eight hundred number to call flight service. I’ll get ’em on the phone thataway.
1555:52 PIT R Uh, Charlie Echo, say again.
1555:54 847 CE Yeah, if we, uh, we lose radio contact with you and we make the AP, the landing OK, I’ve got an eight hundred number to call to cancel it.
1556:00 PIT R Charlie Echo, Roger, thank you.
1556:15 PITR Point out is going to go in to Nemacolin, I don’t know if he might come down around your area or not.
1556:19 ? Alright, I’ll watch him.
1556:20 PIT R ’K.
1558:55 PIT R Eight four seven Charlie Echo, radar contact is lost.
App. at 208A-208D.
. The controller testified that the expression “no joy” used by the army helicopter meant that the latter could not see the plane, but that he did not learn until later that the expression “India Mike Charlie” indicated instrument meteorological conditions. App. at 72-73.
. The controller had both radar and radio contact with the plane. The data block on his radar screen displayed the plane’s assigned altitude of 5,000 feet, its actual altitude, and its precise location in relation to Pittsburgh and Nemacolin airports and the Indian Head, Pennsylvania, VORTAC radio navigation facility. An arrow next to the altitude reading indicated whether the plane was ascending or descending. The data block was revised at ten second intervals by computer.
. Appellants contend that the controller was negligent because he did not request a pilot . weather report (“PIREP”) from the plane. The district court found that the controller had a general duty to solicit PIREPs, but not to solicit them from the pilot of the decedent’s plane. App. at 40-41, TJ10. I agree with the majority that this finding is not clearly erroneous. Controllers must request PIREPs when current or forecast weather conditions include ceilings at or below 5,000 feet, visibility of no more than five miles, thunderstorms, turbulence, or icing. Controller’s Manual, supra note 4, at H 81(a). The Controller's Manual does not require, however, that a controller ask for weather information from every pilot, as appellants’ expert conceded at trial, app. at 227. Consequently the controller was not negligent for failing to solicit PIREPs from any particular pilot.
I note that the controller in this case did not request PIREPs from any aircraft even though *188some of the listed weather conditions were present. That failure, however, whether or not negligent, was not shown to be causally linked to the crash of the plane.
. The Government’s expert testified that the Controller’s Manual “tells us that controllers are expected to believe the pilots comply with the regulations,” app. at 259, but the only provision he could cite states only that pilots are required to obey the rules. His interpretation of this passage was that controllers were entitled to assume adherence. App. at 263, 264. As a matter of law, however, controllers’ and pilots’ duties of reasonable care are concurrent. See page 2 supra.
. “Radar identified aircraft” are all aircraft for which signals are displayed on a controller’s radar screen. See Controller’s Manual, supra note 4, at H 32.