Aviation Law Monitor : Aviation Lawyer & Attorney : Michael Danko Law Firm : California Airplane & Helicopter Crashes : Aviation Law Monitor

Air traffic controllers work within the guidelines set forth in the Controller's Handbook (pdf), which they often call "the Bible."  The Handbook is hundreds of pages long, and controllers must follow it to the letter.  If they deviate and an accident results, the Federal Tort Claims Act permits the victim to sue the FAA for negligence. 

Sometimes, the Handbook doesn't cover a particular air traffic situation. In those cases, the controller is supposed to simply use his best judgment.  But this would seem to present a problem for the victim of the controller's error.  That's because one of the Federal Tort Claims Act's most important limitations is the "Discretionary Function Exception." The Discretionary Function Exception states that a victim can’t sue the federal government for bad decisions that the government left to the federal employee's best judgment.  Regardless of how careless the employee was, the government is immune from suit. 

Does that mean that, if a controller makes an error in a situation not covered by the Controller's Handbook, the victim can't sue?  

No.  Courts have ruled that an air traffic control error never falls within the Discretionary Function Exception. It doesn't matter whether the air traffic situation was covered in the Handbook, or was one left to the controller's judgment.  If a controller's error caused the accident, the victim can sue the FAA for negligence, just as though the FAA were a private party.

However, certain other rules will apply to the victim's lawsuit: 

• Before starting the suit, the victim must file a claim against the government on a Form 95: 
• The lawsuit must be filed in Federal Court, not State Court;
• The judge -- not a jury -- decides the case;
• No punitive damages can be awarded; 
• The victim's attorney can charge a contingency fee of no more than 25% of any judgment that the court renders; 
• If the FAA settles out of court,  the attorney can charge a contingency fee of no more than 20%.

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The G36 Bonanza's closest competitor is probably the Cirrus SR22. Would the outcome of this accident have been different had the Beechcraft been equipped with a ballistic parachute system, like the system installed in the Cirrus, depicted here?  Probably not.  For the Cirrus' ballistic parachute to work, the plane needs at least 400 feet of altitude.  Although we don't know how high N618MW climbed before its engine quit, it's unlikely it reached 400 feet.  That's an altitude the aircraft probably wouldn't have achieved until well after crossing the end of the runway. As this illustration shows, the Bonanza never made it that far.

The NTSB has now released its Preliminary Report.  The report can be found here.  There's no new information in the report, and certainly nothing that causes us to rethink the analysis we wrote about here.  

As usual, the NTSB report contains no conclusion concerning the cause of the crash.  For that, we have to wait until the NTSB issues its Probable Cause report.  Some news sources, such as the one here, are reporting that the probable cause report will be issued in the next 6 to 9 months.  That's doubtful. Except in the simplest of cases, it takes the NTSB at least 18 months to issue its probable cause report.  Sometimes, it can take as long as four years.    

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Bonanza N618MW, a Beechcraft like the one pictured below, was doing "touch & goes" at Jack Northrop field in Hawthorne.  "Touch and goes" are practice landings where the pilot does not stop on the runway.  Instead, after the wheels touch down, the pilot advances the throttle, takes off again, and then circles around for another landing.  Everything appeared to be fine until, on one of

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Special rules protect careless health care providers in California.  The rules, collectively known as MICRA, were designed to make it harder for medical malpractice victims to sue the doctors who injure them. For example,

• The medical malpractice victim must provide the defendant doctor a special notice before filing suit.
• At any trial, special rules of evidence apply that favor the doctor.
• There is a $250,000 limit on what the negligent doctor or his insurance company ever has to pay to compensate parents when the doctor causes their child's death.
• An injured party cannot recover against a negligent doctor more than the $250,000 limit for causing any sort of pain or disfigurement. 

But what do the MICRA rules have to do with helicopter crash cases?

In March 2008, a California court of appeal ruled that the medical malpractice rules apply to the claims of a someone injured in an ambulance.  In that case, called Cannister v Emergency Ambulance Service, the court ruled that a negligent ambulance company that injures a patient en route to the hospital was entitled to all the protections of MICRA, because the ambulance company was properly considered a “health care provider.” The ruling extended the umbrella of MICRA's protection from doctors to ambulance drivers, at least when those drivers are licensed as EMT’s.

An EMS air ambulance company will undoubtedly argue that Cannister -- regardless of how unfair -- applies not just to road-bound ambulances, but to air ambulances as well. The aviation lawyer must keep the MICRA rules in mind in handling EMS helicopter accidents in California, and he should be familiar with the strategies that medical malpractice lawyers use to minimize MICRA's unfair impact on his clients.  

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Mackinac Island, Michigan, located in Lake Huron, is 8.2 miles around. The only way onto the island is by boat or, better yet, general aviation aircraft. No motorized vehicles are allowed on the island.  Everyone gets around by horse-drawn carriage or bicycle.  It was a great venue for the Lawyer-Pilots Bar Association’s 50th Anniversary Meeting on July 8-12.

Some conference highlights--

National Transportation Safety Board.

The National Transportation Safety Board has hundreds of employees. The Board, itself, however, consists of only 5 members. One of the members is Robert Zumwalt.   Zumwalt, who serves as the Board's vice chair, spoke to the group and gave us some useful insight into the Board’s inner workings.

Vice chairman Zumwalt also shared lessons he has learned from his work. One is that many accidents seem to follow from a “Normalization of Deviance.” Overly "relaxed" crew members begin to accept small deviations from Standard Operating Procedures as no big deal.  The deviations become the new norm.  That leads to trouble. In fact, Zumwalt says that crews who intentionally deviate from Standard Operating Procedures are about 3 times as likely to commit additional "errors of consequence."  

Jury Verdicts.

According to Insurance industry representatives: The unpredictability in jury verdicts confuses and discourages aviation business owners. Victims should not be allowed to sue unless the defendant violated a federal aviation regulation. If there is no violation, the lawsuit should be “pre-empted.” (I've discussed pre-emption previously here.) Business owners would then know exactly how to avoid liability: simply comply with the FAA regulations.

According to Plaintiffs lawyers: 95% of aviation lawsuits settle out of court because both sides agree what the likely jury verdict will be. It is only when the two sides, represented by experienced aviation lawyers, disagree on what the jury verdict will be that cases end up being tried.  By definition, then, the only cases that reach the jury are the “unpredictable” ones. Pre-emption is a bad idea because the regulations are minimum safety standards only. The regulations set the bar too low. Those involved in aviation should be held to a higher standard than the bare letter of the law. The flying public expects more when it comes to their safety.

Criminalization of Aviation Negligence. 

A growing trend to “criminalize” aviation negligence only hurts aviation safety. If, for example, an aviation mechanic has to worry about criminal prosecution, he will not speak with the NTSB after an accident. When the FBI gets involved, investigations tend only to grind to a halt. The best chance of finding out an accident's cause is through the civil process, not the criminal process. Both the insurance industry and the plaintiffs lawyers seem to agree on this one: criminalizing aviation negligence hinders, rather than promotes, aviation safety. (I’ve written before about criminalization of negligence here.)

Biggest Change in Aviation Law in Past 50 Years?

Possibly the General Aviation Revitalization Act, or GARA.  GARA, discussed here, bars suits against aviation manufacturers for defective products that are more than 18 years old. It has cut down on litigation tremendously, but has left many of those injured by a defective aviation product without any means of obtaining compensation from those responsible.

The trip here from the San Francisco Bay Area took about 10 hours in the Cirrus. The trip home should be a bit longer. Thanks to LPBA President Susan Hofer for overseeing a great conference.

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The Yemenia Air flight that crashed near Moroni wasn’t built in the United States. It had no Americans on board, and no part of the flight was through U.S. airspace. The aircraft, however, was leased to Yemenia Air by a Los Angeles company, International Lease Finance Corporation, or “ILFC.” Could the Yemenia Air families successfully bring a lawsuit against ILFC in the U.S.? Perhaps, but only if they could prove all of the following:

1. That Yemenia Air Was Not Competent to Operate the Aircraft. The European Union banned the accident aircraft from entering EU airspace in 2007 after inspecting the aircraft and finding a long list of technical discrepancies. The EU is now considering banning the airline from operating any of its aircraft in EU airspace. The reason? The airline does not seem capable of operating safely. Apparently, Yemenia lacks the technical expertise, the resources, or the inspectors to make sure minimum safety standards are met. From what we know about Yemenia Air thus far, the families should have little difficulty proving that the airline was not competent to safely operate ILFC’s aircraft.

2. That ILFC Knew the Airline Was Not Competent. A lessor can be held accountable to those injured by a lessee airline’s incompetence if, when it entrusted the aircraft to the lessee airline, the lessor knew the airline was not competent to operate the aircraft safely. The legal theory is called “negligent entrustment.” Yemenia Air has a terrible reputation and the families would have a good chance of proving that the leasing company knew it. Red flags certainly would have been raised for ILFC at least by 2007, when it learned that the EU had banned its aircraft from EU airspace.

3. That the Federal Law Immunizing Lessors from Liability for the Negligence of their Lessees Does Not Apply. A federal statute, USC section 44112, states that one who leases an aircraft is not liable when the lessor has an accident. But that statute was designed to protect the lessor from “automatic” liability that might arise in some states simply because the leasing company owns the aircraft. It doesn’t protect a lessor from liability for its own wrongful conduct when, for example, it knowingly entrusts an aircraft to an airline that can’t operate it safely.

4. That it is More “Convenient” for ILFC to Litigate in the US Than in Yemen. The legal doctrine of forum non conveniens allows a US court to transfer a case to a foreign country if it believes that, all things considered, it would be more convenient for the parties. And a court in California did exactly that in the Flash Air case, which involved ILFC and a 2004 crash off the coast of Egypt. In the Flash Air case, the court transferred the case overseas because, among other reasons, it decided that the best evidence concerning the cause of the crash was overseas, and that evidence would be difficult to bring here.  That's the same situation in this case. So overcoming ILFC’s “forum non conveniens” argument would be the families’ biggest challenge. There is, however, one significant difference between this case and the Flash Air case. This case would be all about ILFC’s “negligent entrustment” of the aircraft.  So in this case, the most important evidence concerns what ILFC knew about the airline's level of competence. That evidence is most likely here, not overseas.
 

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What must an aviation attorney prove to win a negligence lawsuit against someone who he believes responsible for the accident that injured his client? Two things. First, the aviation attorney must prove that the entity was "negligent."  Second, the attorney must prove that the defendant's negligence was a "cause" of the accident or of the injury.

Negligence Defined. Someone is "negligent" if he was not "reasonably careful" under the circumstances. It is not enough for the attorney to prove simply that defendant could have avoided the accident by doing something differently.  No mechanic, pilot, or other defendant is expected to be perfect.  He is, however, expected to be as careful as others would have been in the same situation.  If he was not, then he was negligent.  

Violation of Regulations. Sometimes, it turns out that the manufacturer, mechanic, or other defendant violated a federal aviation regulation.  In some states, one who violates a regulation is automatically considered negligent, or "negligent per se."  In other states, one who violates a regulation isn't automatically negligent, but the violation is something the jury is allowed to consider when deciding the question.

Compliance with Regulations.  Proving that the defendant violated a regulation goes a long way towards proving that the defendant was negligent.  But what if the defendant proves he complied with all the regulations?  Is he off the hook?  No.  One who complies with every regulation can still be found to be negligent.  That's because the aviation regulations are minimum safety standards only.  Presumably, those involved in aviation hold themselves to a higher standard of care.  In other words, reasonable mechanics or manufacturers are expected to go above and beyond the regulations.

Causation.  To win the negligence lawsuit, the victim's attorney must also prove that the defendant's negligence was a cause of the accident or the injury. So, for example, it's not enough for the victim's attorney to prove that the mechanic was not reasonably careful. Sure, the mechanic may have been negligent for failing to tighten the nuts to the correct torque value.  But to win the case, the victim's attorney must prove that the failure to tighten the nuts was one of the causes of the accident or injury. 

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