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

The NTSB released its preliminary report on the Pine Mountain Lake crash.  As usual, the preliminary report contains no conclusions concerning the cause of the crash. For that, we'll have to wait up to 4 years.  The preliminary report does, however, hint that the NTSB's investigation will focus on whether the pilot pressed on into weather beyond what the regulations allowed.

The full text of the report is here.  Some excerpts:

Instrument night meteorological conditions prevailed at the accident site, and no flight plan had been filed.

Instrument weather conditions are those that require a pilot to fly by reference to his instruments rather than by looking out the window. To fly in instrument conditions, a pilot must be instrument-rated, his plane must be properly equipped, and he must have a clearance from air traffic control.  He is not necessarily required to file a flight plan.  For example, instead of filing a flight plan, the

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Lisa Krieger of the San Jose Mercury News writes on a variety of issues related to this crash: 

• Pilot's Insurer Meets with East Palo Alto Residents.  Residents who suffered property damage can make a claim against the pilot's estate or his insurance policy.  The families of his passengers, however, probably cannot.  Workers compensation laws prohibit a passenger's family from suing the passenger's co-employee (in this case, the pilot) or, for that matter, the passenger's employer (Tesla).  The families are, however, permitted to sue anyone else who may be responsible for the crash, such as a negligent mechanic or a manufacturer of a defective aircraft part.
• Palo Alto Airport Proposes New Routes to Avoid East Palo Alto. The airport can suggest that pilots avoid over-flying homes near the airport, but it cannot require them to.  Only the FAA can do that. 
• Palo Alto Plane Crash Likely Caused by a Lethal Combination of Factors.  A pilot flying a heavily loaded twin-engine piston aircraft from a short runway in the fog is unlikely to be able to avoid disaster when one engine fails.

Related posts:  Tesla Crash: NTSB Probable Cause Investigation

                       Tesla Crash: The Paradox of the Twin

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The runway at Pine Mountain Lake is oriented east-west, and is surrounded by rugged terrain.  In poor weather, pilots are permitted to execute instrument approaches to the airport.  The approach procedures guide pilots as they descend through the clouds to the runway.  The procedures, flown properly, will place the pilot in a position to land straight ahead without having to maneuver.  When the pilot pops out of the clouds after flying the instrument approach to Pine Mountain Lake, his view out of the windshield should be something like this:  

The procedure the pilot must follow when approaching from the east is set forth below.  A pilot may descend in the clouds no lower than 770 feet above the runway.  To descend further, the pilot must

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The initial investigation was conducted by local law enforcement in conjunction with the FAA. Now the National Transportation Safety Board will take over.

The NTSB’s job will be to examine the wreckage and attempt to determine if the crash was caused by a defective aircraft part, negligent maintenance, or pilot error. The NTSB concedes, however, that it lacks the manpower, the technical expertise, and the funding to do that job properly on its own. Therefore, as a matter of long-standing policy, it will seek engineering assistance from the companies that manufactured the aircraft components in question. In this case, the NTSB will recruit the help of Cessna Aircraft, which manufactured the aircraft involved in the accident, Cessna N5225J, and Teledyne Continental Motors, which manufactured each of the aircraft’s two 260 horsepower engines. The NTSB will exclude members of the victims’ families and their technical representatives from the investigation, feeling that they have nothing to offer. (Sad but true.)

Of course, the NTSB’s practice of asking the manufacturers for help – a practice it calls “the party system” -- presents a conflict of interest.  After all, the manufacturers themselves might be the ones responsible for the accident. Some say that the NTSB’s party system is akin to asking the suspects for help in solving a crime. Nonetheless, the conflict – discussed further here – is ingrained in all NTSB investigations.

It’s no surprise that most NTSB final reports often favor the manufacturers who have “assisted” the NTSB investigators in their work. But perhaps it doesn't make any difference because, by federal regulation, the NTSB’s probable cause findings are not binding on anyone. The families are free to conduct their own investigation, and in the event of a lawsuit, the NTSB’s conclusions are given no deference whatever. In fact, in the event of litigation, the NTSB conclusions are not even admissible. Aviation attorneys who conduct their own independent investigations find that the NTSB’s conclusions are wrong about 50% of the time.

In one recent example, a Teledyne Continental engine similar to those installed on N5225J quit

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One might think that a twin-engine aircraft is safer than a single-engine aircraft.  After all, if one engine fails, you still have the other to bring you home safely.  That's the whole point of the second engine, right?

If one of the twin engines fails in cruise flight, maybe that's true.  But if it quits right after takeoff, the twin can be extremely difficult to handle.  When the aircraft's landing gear is down, its flaps set, and its airspeed just above the minimum flying speed, the asymetric thrust generated by the operating engine can flip the aircraft onto its back and out of control.  A "Vmc roll", as it is called, is

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How quickly must I act and get a lawyer?

It is usually best to consult with an attorney within 90 days of an accident.  You need to ensure that the aircraft wreckage is properly preserved and that the applicable statutes of limitation do not run on your claim.

Read more here. 

What should I look for in an aviation lawyer?

Find an attorney with an excellent record of jury verdicts in aviation lawsuits.  Unless the lawyer has proven that he or she can successfully take a case an aviation accident case all the way through trial and to a verdict, it is unlikely the responsible insurance company will take the lawyer seriously when it comes time to discuss settlement. 

Should the lawyer I select be a pilot?

Experience as a helicopter or fixed-wing pilot is an invaluable asset for the aviation accident attorney.  But more important than piloting credentials is the attorney's trial record in aviation accident cases. 

More here.

What does an aviation attorney cost?

An aviation lawyer will cost you nothing unless and until there is a monetary recovery.  The lawyer will work on a contingency fee contract, and will advance all costs and expenses of the lawsuit. 

Shouldn't I wait for the NTSB to finish its work before deciding whether Ie should start a lawsuit? 

Sometimes that makes sense.  But usually it's not in the client's best interest to wait.  The offices of the NTSB are understaffed, underfunded and overwhelmed by workload.  It takes the NTSB from one to four years to complete its report.  The NTSB's "party system" creates a conflict of interest that results in reports that favor the manufactures and other industry players.  Therefore, the NTSB report is seldom worth waiting for.  

More here.

Can I settle my case without retaining a lawyer?  

Yes, sometimes, especially if the injuries are not significant, or if the insurance is limited.  Before doing so, however, be sure to consult with an aviation lawyer.  Most will talk things over without charge and advise you whether it makes to settle on your own. 

How long will it take to resolve my aviation case? 

It varies but in our experience most cases resolve 1 1/2 and 3 years after we file them. (Yes, we frequently resolve aviation lawsuits before the NTSB even issues its probable cause report.)

How can we make sure that this accident doesn't happen again to someone else? 

A decision to cut costs can be found in the chain of events leading to most aviation accidents.  By taking the profit out of unsafe business practices, a lawsuit can sometimes be the most effective way to bring about change in the industry. 

Many clients are surprised to learn that the NTSB has no power to punish sloppy operators or take away their licenses, regardless of what it concludes caused the crash.  For most operators, unless there's a lawsuit, it's "business as usual." 

How can I find out about your background and qualifications?

Look here and here. 

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Cirrus aircraft are now available with "flight into known icing" (FIKI) capability.  That's a great feature. I've written before, however, that Cirrus is asking for trouble with its marketing.  Cirrus sells the feature as one that both enhances safety and increases the aircraft's utility.  But Cirrus can't have it both ways.  If a pilot uses the FIKI capability by, for example, flying in conditions that would otherwise keep him on the ground, he necessarily undermines that feature's safety benefits.  I discuss why Cirrus' marketing is a problem here.

Steve Wilson, who is an air safety investigator (among other things), now slams Cirrus' marketing even harder.  According to Wilson, some aspects of Cirrus' marketing encourage pilots to use the FIKI capability to take risks that are simply foolish.

Some say that Wilson's criticisms should be discounted because he sells Cessna aircraft and Cessna competes with Cirrus.  But Wilson isn't criticizing Cirrus' product, just its marketing.  It seems hard to argue with him. 

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Updated February 12:

A Cirrus SR-20 single engine aircraft collided with a Pawnee tow plane that was pulling a glider. The Cirrus reportedly ran into the Pawnee's tow line. The Pawnee crashed and the pilot was killed.  The occupants of the Cirrus were also killed.  The glider pilot, however, recognized the impending collision, released his aircraft from the tow line, and landed without injury to himself or his two

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This week, aviation accident attorneys from across the country met on Maui to discuss current topics in aviation law. This was part of the American Association of Justice's Winter Convention. I was honored to have been asked to speak. My talk was on Hawaii helicopter crash litigation -- a topic with which we are -- unfortunately -- perhaps too familiar.

I covered the profits, accident statistics, the poor safety record, lack of insurance, the popular equipment (including the Eurocopter AStar); and the FAA's unfortunate lack of heli-tour industry oversight. Powerpoint available here.

As it turns out, my presentation was a bit controversial. The tour industry was a sponsor of the convention. And I ripped into it. On the flight back to San Francisco, someone asked me whether that made me uncomfortable, given that AAJ actually promoted the tours. In fact, the blogosphere was chiming in about it before I even spoke. Carter Wood, blogging on PointofLaw.com, questions the appropriateness of my topic:

That's the way you pay back Hawaii's hospitality? 'Fly like a tropical bird, and then sue!'

First, the risks are, for the most part, unknown. Unknown to people travelling to Hawaii, and unknown even to the AAJ, a group which is, generally speaking, keenly aware of industries that place profits over consumer safety. Thus, the title, "Under the Radar."

Second, I want to get the word out. It's too important. Too many people's lives have been torn apart by this industry. I really don't care what “sponsors” I offend.

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Icing or pilot error?

Last April, the NTSB released the data from Flight 3407's FDR.  I blogged about that here.  Despite wide spread speculation that icing brought down the aircraft, it looked to me like pilot error -- not weather --  was to blame. 

Then, in May, the NTSB released an animation derived from the aircraft's flight data recorder, its cockpit voice recorder, and ATC transcripts.  I blogged about that here.  The animation, like the raw data from the FDR, made a strong case for pilot error.  From the animation, it appeared to me that an inattentive pilot allowed the aircraft to get slower and slower, until it became dangerously close to the speed at which the aircraft would stop flying altogether and simply fall from the sky.  Then, when the critical moment came, the pilot pulled back on the control yoke instead of pushing it forward, thereby inducing an aerodynamic stall.

The NTSB made public its official probable cause finding at a hearing yesterday.  No surprises to anyone who has studied the data.  According to an article in today's Buffalo News, the NTSB summed it up as follows: 

The plane got so slow that the "stick shaker" — a device that helps to prevent stalls — activated. But Renslow [the pilot] mistakenly pulled back on the plane's controls at that point, which is exactly the opposite of what he should have done.

In total, Renslow pulled back on the controls three times in response to the stick shaker and "stick pusher," forcing the nose upward. That caused and then exacerbated the stall.

It's almost unimaginable that a professional pilot would make the series of mistakes that the pilot did in this case.  Even a new student pilot would know better.  But that's what he did.

The NTSB played its animation for those who attended the hearing.  The animation shows the pilot's errors mount.  The activation of the "stick shaker" is depicted 2 minutes and 8 seconds into the animation. The shaking control yoke was a final warning to the pilot that he must immediately push the yoke forward.  But instead of pushing forward, the pilot pulled back. Three times.  After the third time, the aircraft stalled and crashed. 

There were countless points at which this aircraft could have been saved but, inexplicably, the pilot failed to take appropriate action.  

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