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

Early news reports described the pilot in the Senator Stevens crash as a hero. According to the reports, the fact that there were any survivors at all is a testament to his flying skills.

I disagreed. (See Pilot in Senator Stevens Crash a Hero?)

As I saw it, the pilot took off in poor weather. When the weather deteriorated, instead of returning to the safety of the lodge, he pressed on, bobbing and weaving around low clouds, until he slammed into the side of a mountain. Nothing particularly skillful about that.  

Opting out of the instrument flight system, the pilot had to stay under the clouds. He couldn't go through them because once inside, he wouldn't be able to see and might bump into something hard and pointy. So he had to stay in the clear and visually pick his way around the terrain in his path. But as he maneuvered under the low clouds and around the fog, he suddenly came upon a mountain's steep up-slope. He shoved the throttle forward, pulled the nose up and began a climb. But the terrain rose faster than could his aircraft. He bellied onto the rising slope while in full control of a perfectly functioning aircraft.

Sadly, the new information that the NTSB just released suggests that my analysis was correct.

• The aircraft was equipped with a terrain awareness warning system (TAWS).  The pilot had turned the TAWS off.  He probably turned it off because, as he picked his way through the mountains, he found the frequent audible warnings annoying. 
• One survivor recalled seeing only "white-out conditions outside the airplane."  That probably means the pilot was in clouds or fog.   Of course, the pilot was supposed to stay out of the clouds, so that he can see the terrain ahead and avoid it.
• The fact that the ventral fin located beneath the aircraft had broken from the aircraft first, followed by impact by the left float, suggested to investigators that the aircraft impacted at a pitch attitude of 17° nose up and 30° roll to the left.  Most likely, as the pilot came out of a cloud or fog, he saw the mountainside ahead of him and pulled up and to the left in an attempt to avoid it.  But by then it was too late.

Unfortunately, there doesn't appear to be anything particularly heroic about the pilot's actions in this case.  Rather, it seems he flew a "perfectly good airplane" into a mountainside.  Looks like a classic case of controlled flight into terrain.

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We knew from the surviving passenger that the Cirrus' engine quit before crashing at Morton, Washington.  But did the engine quit because of a mechanical problem? Or did it quit, perhaps, due to fuel starvation?

I discussed those questions here, days after the accident happened.  Now, a year later, the NTSB says the engine failure was the result of both.  Or, more accurately, fuel starvation caused by faulty maintenance.

Not surprisingly, the surviving passenger has sued Auburn Flight Service, which performed the faulty maintenance.  From the NTSB's report, it seems that Auburn Flight Service's liability is clear.  When putting the plane's fuel system back together just 11 hours before the crash, it failed to tighten a cap on the throttle and metering-assembly inlet.  The cap came loose in flight.  That allowed fuel to escape the assembly and flow overboard without getting to the engine. 

The loose cap wasn't caught and the aircraft was released to the pilot because Auburn failed to perform the "post-service inspection" it boasts of on its website.

Auburn Flight Service has not taken responsibility for the crash.  It reports that it feels badly, but not, apparently, for anything it may have done or failed to do.

Everyone at Auburn feels very badly about this tragic accident as we would any tragic accident where people were injured or killed."

One would think that, in this case, the Auburn folks would feel just a little worse than usual.

The injured passenger, who was the pilot's employee, also sued the pilot's estate. Why? Well, certainly there will be questions raised concerning the pilot's decision to attempt to land in a field, rather than deploy the aircraft's parachute.  Many Cirrus pilots would argue that the parachute should be deployed in any case of engine failure, unless there is a long, paved runway beneath the aircraft such that a safe on-airport landing is assured. Interestingly, however, the NTSB did not cite the pilot's failure to deploy the parachute as a contributing factor. 

Regardless, the "pilot error" part of the case is apt to be quite controversial.  That's if the passenger's case against the pilot's estate makes it past the workers' compensation defense.

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A pilot flew his new Cirrus into conditions of poor visibility and crashed, killing himself and his passenger.  The passenger's family sued not just the pilot, but Cirrus as well. 

Why sue Cirrus?  According to the family, Cirrus didn't train the pilot properly when he showed up at the factory to pick up his new plane, and that contributed to the crash.  The jury agreed, handing Cirrus Design one of the most controversial aviation verdicts in recent memory.  It awarded more than $10 million to the families of the pilot and passenger.

But today, the court of appeals erased the verdict, and ordered that judgment be entered in favor of Cirrus.  It ruled that, even if Cirrus failed to train the pilot properly, it doesn't mean that the family has a right to sue.

Here's the story.

The Pilot

The pilot, Gary Prokop, was relatively inexperienced.  He did not have an instrument-rating.  That means he was allowed to fly in good weather only.  If a pilot without an instrument rating flies into clouds, he will likely quickly become disoriented, be unable to keep the aircraft right side up, lose control, and crash.  That seems to be what happened, for example, last October when a Cirrus crashed near Agua Dulce, California.  

The Pilot's Purchase of the Cirrus   

When a pilot buys a plane, he doesn't just jump in and fly away, even if he is already licensed to fly. To be safe the pilot must be trained in the particular plane's idiosyncrasies. In this case, that training -- called "transition training" -- was included in the SR22's purchase price.

One of the items the pilot was supposed to learn was how to use the Cirrus' sophisticated autopilot to reverse course in the event he inadvertently encountered poor weather. Inexplicably, however, his instructor skipped that lesson, but nonetheless signed the pilot off as having completed the transition training in full.  

The Crash   

It's not hard to guess what happened next.  A month later, the pilot inadvertently encountered conditions of poor visibility.  He did not have the skills necessary to turn around.  Unable to see where he was going, he became disoriented, lost control, and crashed. 

The Jury Verdict  Against Cirrus    

The jury was convinced that had the pilot been given the lesson he paid for, the outcome would have been different.  They felt that the missing lesson cost the two men their lives.  The jury found that the pilot was 25% at fault for the accident, and that the rest of the fault lay with Cirrus' failure to train him as agreed.

The verdict was not well received by the piloting community, to say the least.  In fact, they hated it.  After all, the pilot is the captain of the ship.  It's the pilot who is ultimately responsible for the safe conduct of the flight. If a pilot is unable to handle adverse conditions, he is supposed to avoid them.  If he ventures where he has no business being and kills himself or others, only he is to blame.  Or so say many pilots.

The Appellate Court Reverses and Grants Judgment for Cirrus

The court of appeal reversed the verdict, but not for the reasons the piloting community urged.  Rather, even assuming (1) that Cirrus didn't train the pilot properly, and (2) that the lack of training contributed to the accident, the families still had no case against Cirrus.  In Minnesota, there is no claim for injuries suffered as a result of "educational malpractice."  And, according to the court, when you boil it all down, "educational malpractice" was exactly what plaintiffs were claiming.

If a negligence claim raises questions concerning the reasonableness of the educator's conduct in providing educational services, then the claim is one of educational malpractice . . . [plaintiffs] ultimately challenge the quality of the transition training . . . But a determination of whether the transition training was ineffective because the instructor failed to provide a flight lesson on this topic would involve an inquiry into the nuances of the educational process, which is exactly the type of determination that the educational-malpractice bar is meant to avoid."

A dissenting judge reasoned that Cirrus should not be entitled to assert the "educational-malpractice bar" because plaintiffs did not claim that Cirrus' instruction of the pilot on the use of the autopilot was improper.  Rather, plaintiffs claimed that Cirrus failed to provide the instruction at all.

Prokop v Cirrus Design -

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There's not a lot of air traffic at night. So some air traffic control towers close altogether.  Any landing aircraft is on its own.  Other air traffic control towers are staffed with just one controller.  Not surprisingly, lone controllers working the night shift tend to doze off. 

That little secret is now out. That led to the resignation of the head of the Air Traffic Organization.  And then, just yesterday, the FAA announced that a second controller will be added to the overnight shift at 27 airports. 

Sounds like moves in the right direction. But what do you get when you put a second controller into a dark, quiet control tower in the middle of the night? 

Two sleeping air traffic controllers.

It's not a matter of just adding staff.  It's a matter of dealing with the somewhat complicated issue of how night shifts disrupt a workers' circadian rhythms. At least so says Dr. Mark R. Rosekind, the newest member of the the National Transportation Safety Board. 

I had the pleasure of hearing Dr. Rosekind speak a couple of weeks ago at Menlo High School in Atherton, California. Dr. Rosekind is one smart guy.  And he happens to be a sleep expert. In fact, Dr. Rosekind was the Director of the Center for Human Sleep Research at Stanford University. So he knows a thing or two about "fatigue management." 

Unfortunately, the FAA isn't required to listen to the NTSB, and frequently doesn't.  In the past, when it comes to fatigue risk management, an act of congress was required to get the FAA to do something.

Not to worry.  This time the FAA, or at least the US Transportation Secretary, Ray LaHood, is on top of it.  He is outraged.  LaHood says he "will not sleep" until there's good safety in the control towers.  (Yes, he really said that.) 

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A McDonnell Douglas MD-82 crashed in August 2008 while taking off from Barajas Airport in Madrid. 154 on board were killed and 18 were injured. The injured passengers and the families of those killed filed lawsuits in the US against Boeing, which merged with McDonnell Douglas in 1997, claiming that the aircraft was defective.

Here’s what the plaintiffs say happened:

• The airplane crashed because its flaps and slats were not extended as required for takeoff.
• The pilot was not alerted that the flaps and slats were in the wrong position because the “Take-Off Warning System” (or TOWS) failed to operate.
• The TOWS failed to operate because mechanics, to deal with another problem, had disconnected an electrical relay which, in turn, deprived the TOWS of power.

How would any of this make the manufacturer liable?

Because, according to plaintiffs, the manufacturer should have wired the TOWS to be “fail-safe” so that, if power to the system was disrupted, it still warned the pilot:

Plaintiffs contend that the Spanair crash at issue in this case is strikingly similar to a crash of a McDonnell Douglas MD–82 on takeoff from Detroit Metropolitan Airport in 1987. . .  According to Plaintiffs, the NTSB concluded that the TOWS system in that plane did not receive electrical power and thus failed to warn the crew that the plane was not properly configured for takeoff . . . Plaintiffs further report that the NTSB made six recommendations, including a design modification that would illuminate a “fail” light in the event of a circuit power loss, but Defendants did not adopt that recommendation . . . Plaintiffs contend that TOWS failures now account for 49 accidents. . . On the basis of these allegations, Plaintiffs contend that “[t]his case is about a design defect that remains uncorrected despite Defendants' knowledge of it for over 20 years.”

But even assuming plaintiffs made out a viable case against the manufacturer, there was still the question of whether the cases should be tried in the US or, under the doctrine of forum non conveniens, dismissed and sent to Spain, where the accident occurred.

In the end, the California federal court dismissed the cases, just as in the Air France Flight 447 litigation.

In dismissing the cases, the court decided that, in essence, it would be more convenient for all parties if the suits were brought in Spain. Two parts of its ruling were interesting. First, the court considered and rejected plaintiffs' argument that it would be a great economic burden for them to bring the suits in Spain because in Spain, contingency fee agreements aren't allowed.  

if the unavailability of contingency fee arrangements weighed against dismissal, it would likely weigh against dismissal in every case. This factor therefore does not deserve “substantial weight” in the balancing . . . Further, Plaintiffs have argued only that they will face “serious financial impediments.” Notably, they have not argued, or pointed to any evidence, that these financial impediments will be prohibitive.

In other words, it might be very difficult for the plaintiffs, many of whom had lost their bread winners, to pay hourly rates for attorneys to bring the cases in Spain. But it wasn’t impossible.

Second, the court ruled that it would be cheaper for the plaintiffs to obtain witness testimony if the cases were in Spain rather than the US.

Damages testimony--from family, friends, and doctors--will be necessary for each of the 100 victims.  All plaintiffs and the decedents they represent are from outside of the United States.  The cost of travel for these witnesses alone is extremely high.  Because almost all of the decedents come from Spain, the costs associated with obtaining testimony from those witnesses in that country would be far lower.

Never mind that plaintitffs, in chosing to bring the cases in the US, were obviously willing to bear those costs. Sure, they knew it might be cheaper to bring the witnesses to court in Spain.  But it wouldn't matter much because in Spain the cases would be next to worthless.

Cases dismissed.

The case is In re Air Crash at Madrid, Spain, on August 2, 28, 211 WL 158452 (CD Cal. Mar. 22, 2011.)

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