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

A passenger injured in an aircraft accident can't sue the aircraft manufacturer if the part that caused the crash is older than 18 years. Any such suit would be barred by the General Aviation Revitalization Act, or GARA.

What if the accident was caused by a mistake in one of the aircraft's manuals rather than a defect in the aircraft itself?  If the manual is older than 18 years, does GARA protect the manufacturer from liability for its error? 

It depends.  The manufacturer is off the hook if the manual is properly considered a "part" of the aircraft.  Some manuals are. Some aren't.

A flight manual (sometimes called a "pilot's operating handbook" or "flight handbook") is properly considered "part" of the aircraft, and so GARA protects the manufacturer. For example, in Caldwell v. Enstrom Helicopters, the pilot's family blamed a helicopter crash on the flight manual's failure to say that the last two gallons of fuel in the helicopter were unusable.  As a result, the pilot believed he had sufficient fuel but in fact did not.  He crashed just minutes from his destination.

The Caldwell court said that manufacturers are required by regulation to provide a flight manual when it delivers the aircraft to the customer.  The manual must be carried in the aircraft at all times thereafter. Therefore, the manual was properly considered to be an aircraft "part."  Because the manual at issue was more than 18 years old, GARA applied to protect the manufacturer from liability for any errors. 

But the situation is different when the manual is a maintenance manual. A manufacturer can sell an aircraft without providing to the buyer a maintenance manual.  Thus maintenance manuals, unlike flight manuals, are not a "part " of the aircraft, and GARA doesn't apply. At least according to Rogers v. Bell Helicopters Textron, a case decided earlier this month by a California appellate court. 

In Rogers, the pilot claimed the accident resulted from faulty instructions in a maintenance manual for balancing the helicopter's tail rotor. The court ruled that, despite the fact that the manual was more than 18 years, GARA didn't apply and so the pilot was entitled to sue.  

Unlike a flight manual that is unique to the aircraft, used by the pilot, and necessary to operate the aircraft, a maintenance manual applies to different aircraft models, is used by the mechanic, and only for troubleshooting and repairing the aircraft.

According to Rogers,, GARA won't protect a manufacturer from liability for mistakes in its maintenance manuals, regardless of how old the manuals are. 

The plaintiff in Rogers was represented by Louis Franecke of San Rafael. 

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I wrote here that mediations are often preferable to settlement conferences. The mediator is chosen by the parties, while the trial judge who presides over the settlement conference generally is not. Further, the mediator often has more time than the trial judge to devote to the settlement process.

This month's Forum Magazine published an article by Kristine Meredith and Judge John Herlihy (recently retired from the bench and now a private judge) that touched on this very topic.  Kristine asked Judge Herlihy, who has 29 years experience on the bench, why the parties should even bother attending a pre-trial settlement conference if the case couldn't be settled at a mediation.  According to Judge Herlihy, timing can be everything:

As the case gets closer to trial the [likely] outcome becomes clearer.  I often told lawyers that although the case didn't resolve at mediation, as a trial judge, I had an advantage that the prior mediator did not have.  If the case didn't resolve when it was in my department for trial, then the next step was to call for the jury panel.  That immediacy had a direct effect on the parties' and attorneys' willingness to try one last time to settle.

"Reality Check: A Trial Judge's Approach to Settling Cases," appears in the May/June issue of Forum Magazine.  The full text is available from the Consumer Attorneys of California. 

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