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

The Hawaiian air tour industry has a horrible safety record. And now it has claimed yet another life – that of a 53 year-old Californian who had traveled with his wife to the islands to celebrate their 25^th wedding anniversary.

I've written before about the dangers of Hawaiian helicopter tours. But this tourist’s death was not the result of a helicopter crash.  Rather, it was the result of the crash of a “Light-sport Aircraft” or LSA.  And, in fact, this was the third fatal LSA crash in Hawaii since last April.  Altogether, 6 people have died.

So what's an LSA? It’s an aircraft that, among other things, weighs less than 1320 pounds and flies no faster than 140 miles per hour. LSA's come in different shapes and sizes.  The model involved in the most recent crash, the Quik 912s, is pictured to the right.

LSA's are cheap to buy and to operate. They are much, much less expensive than helicopters.  And many think they are just as good as helicopters, if not better, for “low and slow” sightseeing. 

There’s one catch. It’s illegal to use an LSA for commercial air tours. LSAs are not engineered and tested to the same standards as conventional aircraft. If a hobbyist wants to fly an LSA, that’s one thing. But the FAA won’t allow a pilot to use an LSA to give a member of the public an aerial tour for hire. LSA's just aren’t safe enough.

Then how do the Hawaiian operators get away with doing just that?  The loophole: While a pilot can't use an LSA to give tours for hire, he can give flight lessons.  So the pilot need only call this ride the tourist’s first "flight lesson,” and he’s legal.

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The lawyer representing Lidle’s widow told the Associated Press  that today’s verdict for Cirrus was a foregone conclusion once the judge decided to keep out certain key evidence.

. . .the jury result was predictable because the judge refused to allow jurors to hear that the company revised its manufacturing process after the crash to prevent the flight controls from getting jammed. She also had ruled that they could not hear that a flight instructor had a lockup of flight controls and almost crashed in a similar plane.

Should the judge have allowed the evidence in?

Generally, the fact that a manufacturer has “fixed” what the plaintiffs consider to be a defect is not admissible to show that the manufacturer was negligent. Otherwise, manufacturers might be reluctant to remedy problems after an accident. But there is an exception to the exclusionary rule under the Federal Rules of Evidence. The jury may hear of "subsequent remedial measures" where that evidence proves that the manufacturer could have easily designed the product in a safer way. 

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.  

The exception might have applied to allow into evidence Cirrus' "fix" for the aileron control system, but only if Cirrus argued that there was no feasible safer alternative design for the system.  We don't know from the news reports whether Cirrus made that argument. But it's unlikely Cirrus would have commited such a strategic blunder. 

What about the evidence of another Cirrus aircraft whose controls locked up? Usually, evidence of “other similar incidents” is very important to a jury.  If a design is defective, one might expect that others would have experienced the same problem.  But judges are wary of admitting evidence of "other similar incidents." Proving what happened in other cases can take up considerable court time, creating a "trial within a trial."

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In many countries, criminal prosecution of those involved in aviation accidents is the rule, not the exception.  For example, the French courts began a criminal investigation almost immediately after the crash of Air France Flight 447. The Indonesian legal system convicted a Garuda Airlines 737 pilot of negligence and sentenced him to two years in prison following a 2007 crash in Jakarta. And a French court convicted a US mechanic of involuntary manslaughter for causing the July 2000 crash of the Air France Concorde.  The mechanic got 15 months.  

This week a Brazilian court convicted two American pilots of negligence for their role in the midair collision involving a Embraer Legacy and a Gol Airlines 737 over the jungles of Brazil in 2006. That court handed each pilot a four year suspended jail sentence.

Why are foreign courts so quick to turn aviation accidents into criminal cases?

Simple. The US legal system focuses on requiring those responsible for a crash to compensate their victims. When that happens, victims feel that, to some extent, justice has been served. The legal systems of many other countries, however, do not really concern themselves with compensating victims. Thus, to make things right, someone must be punished criminally and handed a jail sentence. Even if it was “just an accident.”

Either system may serve the interests of "justice." But the US system better serves the interests of safety. By taking the profit out of carelessness, it gives the airlines a monetary incentive to be safe.  The systems of other countries, however, actually impede the interests of safety.  That's because criminal prosecutions cause those involved in aviation accident investigations to "clam up" for fear of ending up in jail.  That makes it only more difficult to determine the cause of an aviation accident and, most importantly, to bring about the changes necessary to prevent similar accidents from happening again in the future. 

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Cirrus says Cory Lidle crashed because he was inexperienced, not because his controls locked up.  But a surprise witness testified that Lidle had flown the East River Corridor successfully four times in the two months before the crash.  According to a NY Daily News account, the witness related that Lidle talked with her about his flights with some enthusiasm:

He said it was outstanding, beautiful," she told rapt jurors, adding that he had taken the same 25-minute flight twice at night and twice in the daytime. "He said, 'You really have to come with me the next time I go.'"

The NTSB brief on the accident noted that Lidle's logbook showed no record of having flown the corridor before.  It goes on to conclude that the accident was caused by Lidle's inexperience and failure to plan properly. It faulted Lidle for not recognizing that there was limited turning space in the corridor.  In other words, the situation caught Lidle unprepared.

The surprise witness' testimony calls that conclusion into question. 

Of course, a pilot need not log all his flights.That's why an investigator needs to talk to the witnesses to learn about a pilot's experience, and can't always just rely on what's in the logbooks.

The NTSB investigated this accident much more thoroughly than the typical general aviation accident.  And the NTSB did, in fact, interview this witness before publishing its report. Why didn't the NTSB get this information from the witness when its investigators interviewed her? According to the witness, that was simple:

They didn't ask me."

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The Lidle jury will never learn that the NTSB concluded the crash was caused by pilot error, and not a defect in the plane, as plaintiffs allege.  

The reason is that, by federal statute (49 USC 1441(e)), the NTSB’s conclusions are inadmissible in court.

No part of any report or reports of the National Transportation Safety Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned is such report or reports.”

As it turns out, the statute doesn’t mean exactly what it says. Some parts of an NTSB report are sometimes admissible.  But the courts have made clear that the NTSB's probable cause finding must always stay out of evidence.

Many find that surprising.  Federal statute aside, shouldn’t the jury be told what the NTSB concluded? Isn’t the NTSB, after all, in the best position to determine the cause of the accident?

No and No.

The Jury should Not be Told of the NTSB’s Conclusions

The NTSB allows the manufacturers who are potentially responsible for a crash, such as Cirrus, to participate in its investigation. But the NTSB excludes the victim’s family. This practice, which the NTSB calls the "party system" of investigation, results in probable cause conclusions which favor the industry players. It's one reason why most accidents are chalked up to "pilot error." 

It wouldn’t be fair to stick the families involved in the Lidle case with the NTSB’s conclusion given that the NTSB didn’t give them the opportunity to be heard.

The Jury, not the NTSB, is in the Best Position to Determine the Cause of the Accident

Unlike the NTSB, the jury will hear the testimony of experts from both sides of the case. Both the experts retained by Cirrus and those retained by the familes. That places the jury in a better position than the NTSB to determine the true cause of the crash. 

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