Montreal Convention Permits Passenger to Recover for Fear of Infection

Plaintiff was on a flight from Abu Dhabi to Chicago.  She placed her hand into the seatback pocket, and was unexpectedly stuck with a hypodermic needle that lay within.

Because the flight was international, the Montreal Convention applied to the passenger’s claim against the airline.  The airline conceded that the needle prick was an “accident” for the purposes of the Convention, and thus the passenger was entitled to compensation.  It also conceded that the passenger was entitled not just to compensation for the bodily injury suffered, but also the emotional distress that resulted from that injury.  But the bodily injury (the needle prick) and the pain from the prick (“ouch”) was nothing compared to the substantial emotional distress the passenger suffered over the course of the next year fearing that she had been infected with various diseases such as HIV.

The airline argued that it need not compensate the passenger for the emotional distress arising from the fear of infection because those fears were not caused by the bodily injury the passenger suffered, but rather by the nature of the instrumentality of the injury – the needle.

The trail judge agreed with the airline and threw out most of the passenger’s claim.  But the court of appeal reversed, ruling that Convention allows a passenger to recover for all the emotional injuries sustained as a result of the bodily injury, including those that flowed from the nature of the instrumentality of the injury.  In a somewhat unusual opinion, the court of appeal drew a number of diagrams to illustrate its point.  But the bottom line was fairly straightforward:

As this diagram makes clear, because an accident onboard Etihad’s aircraft caused Doe to suffer a bodily injury (a fact that Etihad concedes), Doe may therefore recover damages for her mental anguish, regardless of whether that anguish was caused directly by her bodily injury or more generally by the accident that caused the bodily injury.  That is because, either way, Doe’s mental anguish is “damage sustained in case of”—i.e., “in the event of” a compensable bodily injury.

 

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Paramedic's Family Out of Court in Skylife HEMS Crash

The NTSB hasn't yet issued its report on the fatal Skylife air ambulance crash in December 2015. But a Fresno judge has ruled that regardless of the cause, the family of one of the paramedics on board will not be allowed to sue either the operator of the helicopter (Rogers Helicopter) or the helicopter's owner,   (American Airborne), regardless of whether they were negligent in the helicopter's operation or maintenance.

As it turns out, both entities were partners with the paramedic's employer, Skylife .  An employee cannot sue his employer for a work related injury or death.  Nor can he sue the employor's partner.

Such claims are barred by the Workers' Compensation laws.

 

Monica Ribbeck Kelly Sued For Malpractice, Leaves The Country

 Aviation journalist Christine Negroni reports in Forbes that Monica Ribbeck Kelly, the lawyer who instituted “frivolous” legal proceedings after Malaysia Airlines Flight 370 went missing, has herself disappeared.  Not only was the Illinois Ethics Committee after Kelly, but she was being sued by victims of an airline disaster in China for promising to file suit on behalf of victims but failing to do so before the statute of limitations expired, leaving the victim’s without any legal recourse.  It appears that Kelly has shuttered her law office and gone back to her native Peru. 

According to Negroni, maybe this is the last we see of Ribbeck: 

There are few successful days in court associated with Monica Ribbeck [Kelly]’s high-profile representation of air disaster victims.  So while her departure from the US may deprive dissatisfied clients . . . of any legal recourse, it could be the last we see of her shenanigans with the American legal system.

 

Discretionary Function Exception to the Federal Tort Claims Act

If the United States Government is responsible for an accident, it can be sued just like any other wrongdoer under the Federal Tort Claims Act.  But there's an important exception -- the federal government cannot be sued for bad decisions that the government left to the federal employee's best judgment.  The "Discretionary Function Exception" is perhaps the most important limitation on a victim's right to sue the government when it causes injury or death.  And the exception is complicated. Claire Choo helps unravel it.

 

Tort Claims Act  

New Zealand Asks Whether Robinson Helicopters Are Simply Too Dangerous

Robinson helicopters are popular in New Zealand.  But while they make up only 35% of New Zealand's helicopter fleet, they account for 64% of all of New Zealand's fatal accidents.  

Why?

Some say the helicopter is especially prone to "mast bumping," a phenomenon where the rotor head tilts to such a degree that the rotor hub damages the mast on which on which it is attached.  In Robinson helicopters, a mast bump almost always causes the rotor head and the helicopter's blades to separate from the aircraft.  The result is illustrated in the video.   

 

 

An article appearing this weekend in the New Zealand Herald explains the controversy and, in particular, why the unique design of the Robinson's rotor head may be to blame.

Weight and Balance Issues in Riverside Cessna Crash?

The Cessna T310Q crashed shortly after takeoff.  For clues into the cause of the crash, the press has focused on the fact that the pilot, Nouri Hijazi, had difficulty getting the engines started. 

But what one witness had to say suggests that the plane was improperly loaded – specifically, it had too much weight in the back. According to the San Jose Mercury News, the witness watched the plane head off to the runway and saw something odd: 

[The witness] said she watched uneasily as the plane slowly taxied for takeoff.  As it did, the plane rocked back and forth, front to back, its tail nearly touching the ground. 

That can happen when there is too much weight in the back of the plane. And when an aircraft is loaded such that is isn't in proper balance, it can become uncontrollable shortly after takeoff and enter an aerodynamic spin or stall, even with the engines developing full power.  That is, though there engines are running fine, the aircraft will stop flying and simply fall out of the sky.  Judging from the security camera footage of the crash, something like may have happened. The video show the aircraft "falling" rather than "flying."  

FAA Turns Over Increasing Inspection Authority to Manufacturers

Four years ago, the NTSB questioned whether manufactures like Boeing should be allowed to self-certify that their aircraft designs meet FAA requirements.  The NTSB suggested that “self-certification” may have contributed to the battery fires that were being experienced on Boeing’s 787s.  After all, it’s the FAA's job to make an independent determination that an aircraft design is safe.  It makes little sense to pass that job to the manufacturer, who is hardly independent.

The FAA’s response was to delegate even more authority to manufacturers.  In fact, the GAO reports that 90% of all aircraft certification work is now outsourced to the manufacturers themselves. 

How is that working out?  Not surprisingly, not so well.  According to documents obtained by the Seattle Times,  through 2015, Boeing was fined $13 million to settle FAA proceedings arising from falsification of certification and repair work.  The Seattle Times noted that one Boeing mechanic told FAA investigators that he had been entering false data into aircraft inspection records for at least seven years.

Bogus Airplane Parts and a Cessna 182 Crash

A courageous client speaks to Stephen Stock about the risks to the flying public. 

 

Miracle on the Hudson Immersive Video

It was seven years ago that Kas Osterbuhr put together a nearly courtroom-ready reconstruction animation of Flight 1549. At the time, there really was nothing else like it. With the movie coming out, Kas went back and updated his work.  Next worst thing to being there.

 

New Icon A5 Purchase Contract Will Require Buyers to Sign Away Their Rights to Sue

In the face of intense market rejection, Icon says it has heard its customers and is going to revise the rather onerous purchase contract it planned to require of its buyers.  It hasn’t yet made the new contract public.  But in a statement it says that one thing the new contract will keep is the requirement that anyone buying an A5 sign away their rights to sue Icon after an accident.

Another fundamental tenet of ICON’s approach to safe flight operations, personal pilot responsibility, and product liability-cost reduction is the agreement not to sue ICON for accidents that are not determined to be our fault. Unfortunately, the overwhelming majority of product liability lawsuits are filed against manufacturers even when the manufacturer was not found to be at fault. We must address this. While there is no silver bullet for guaranteeing safety and eliminating all product liability costs, we are working hard to improve it. This is one of those steps. We invite our customers to help us set a new precedent in our industry and to improve this situation by releasing ICON from accidents deemed not to be our fault by the NTSB. Reducing product liability costs is important because it reduces the cost of aircraft and allows manufacturers to spend that money on product development instead of legal fees and lawsuit settlements.  

At first blush, all that sounds reasonable.  Why should an A5 buyer be able to sue Icon after a crash if the NTSB places the blame for an accident elsewhere? 

Well, for one thing, the NTSB is not a fair forum.  After any accident, the NTSB “invites” the aircraft’s manufacturer to participate in the investigation, relying on the manufacturer and its experts to help pinpoint the accident’s cause.  But the NTSB never allows the pilot or the pilot’s passengers to participate, nor does the NTSB allow experts hired by the pilot or the passengers anywhere near the investigation.  The pilot and passengers are entirely excluded. If that sounds like a conflict of interest, it is It’s no wonder the NTSB seldom finds the manufacturers at fault.  Nor is it surprising that courts of law, after hearing from both sides, frequently come to conclusions different than those reached by the NTSB.

And in fact, it is because the NTSB’s investigations are so one sided that NTSB’s conclusions are entirely inadmissible in any court of law anywhere in the country. 

Looks like Icon’s new contract will be as unfair as the one the market rejected back in April.  It’s hard to believe that any buyer who has done his homework would sign it. 

Related post:

April 1, 2016  Icon Aircraft A5 Purchase Agreement: Who would sign this thing?