Montreal Convention Permits Passenger to Recover for Fear of Infection

Plaintiff was on a flight from Abu Dhabi to Chicago.  She placed her hand into the seatback pocket, and was unexpectedly stuck with a hypodermic needle that lay within.

Because the flight was international, the Montreal Convention applied to the passenger’s claim against the airline.  The airline conceded that the needle prick was an “accident” for the purposes of the Convention, and thus the passenger was entitled to compensation.  It also conceded that the passenger was entitled not just to compensation for the bodily injury suffered, but also the emotional distress that resulted from that injury.  But the bodily injury (the needle prick) and the pain from the prick (“ouch”) was nothing compared to the substantial emotional distress the passenger suffered over the course of the next year fearing that she had been infected with various diseases such as HIV.

The airline argued that it need not compensate the passenger for the emotional distress arising from the fear of infection because those fears were not caused by the bodily injury the passenger suffered, but rather by the nature of the instrumentality of the injury – the needle.

The trail judge agreed with the airline and threw out most of the passenger’s claim.  But the court of appeal reversed, ruling that Convention allows a passenger to recover for all the emotional injuries sustained as a result of the bodily injury, including those that flowed from the nature of the instrumentality of the injury.  In a somewhat unusual opinion, the court of appeal drew a number of diagrams to illustrate its point.  But the bottom line was fairly straightforward:

As this diagram makes clear, because an accident onboard Etihad’s aircraft caused Doe to suffer a bodily injury (a fact that Etihad concedes), Doe may therefore recover damages for her mental anguish, regardless of whether that anguish was caused directly by her bodily injury or more generally by the accident that caused the bodily injury.  That is because, either way, Doe’s mental anguish is “damage sustained in case of”—i.e., “in the event of” a compensable bodily injury.


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Discretionary Function Exception to the Federal Tort Claims Act

If the United States Government is responsible for an accident, it can be sued just like any other wrongdoer under the Federal Tort Claims Act.  But there's an important exception -- the federal government cannot be sued for bad decisions that the government left to the federal employee's best judgment.  The "Discretionary Function Exception" is perhaps the most important limitation on a victim's right to sue the government when it causes injury or death.  And the exception is complicated. Claire Choo helps unravel it.


Tort Claims Act  

6 Ways an Aircraft Owner Can Be Liable for an Accident When Someone Else Was Flying

Here are six ways an aircraft owner can be found liable even if he was not on board when the plane crashed:

  1. Vicarious liability for acts of permissive user.   In many states, an aircraft owner is liable by statute for any injury caused by a pilot who was flying the aircraft with the owner's permission. The owner need not have done anything wrong -- the owner's liability is automatic.  But that liability is generally capped.  For example, in California, the aircraft owner is automatically liable for death or injury resulting from the pilot's negligence, but that liability is  limited to $15,000 per person killed or injured, up to a total of $30,000.
  2. Liability as Partner or Joint Venturer.  In some circumstances, if the pilot was the owner's partner or was engaged with the owner in a joint venture, the owner can be held fully responsible for any accident caused by the pilot's negligence.
  3. Owner's negligent conduct. Of course, if the aircraft owner was himself negligent, he may be held liable for the accident, once again without regard to any cap.  For example, if the owner performed maintenance on the aircraft (as permitted by FAA regulations), but didn't perform it properly, the owner can be held fully responsible for any accident that results.  Even if the owner never touches the aircraft, he might still be held responsible if he makes unreasonable maintenance decisions that, though permitted by FAA regulation, were not those that a reasonably careful owner would have made. One  such maintenance decision might be running the aircraft past TBO
  4. Non-delegable duty.  Mechanics are typically independent contractors.  Generally, we aren't responsible for their negligence.  But the federal aviation regulations make the owner of an aircraft primarily responsible for its airworthiness, That means the owner may be held responsible even when the accident was solely the mechanic's fault.
  5. Negligent entrustment.  An owner can be held liable for an accident if he allows a pilot to use an aircraft when he knows the pilot isn't competent to complete the planned flight safety.  For example, an owner may be held liable to those injured for allowing a pilot to fly to a high-density altitude airport if that pilot hasn't had a high-density altitude checkout. In the negligent entrustment context, the "permissive user" liability caps don't apply.  
  6. As the manufacturer of an amateur build aircraft.  Needless to say, if the owner was the builder of the aircraft that is involved in the accident, he can expect to be held liable, at least if the accident was the result of faulty workmanship.

An Airline's Liability for In-flight Injuries to International Travelers

Domestic travelers can hold the airline liable only if their injuries are caused by the airline’s negligence. But if the passenger is traveling internationally, then treaties called the Montreal and Warsaw Conventions apply. Under the Conventions, whether the airline was negligent is for the most part irrelevant. An airline is responsible only if the passenger’s injury was caused by an “accident.” So, for an international traveler, the key question is what, exactly, qualifies as an “accident.”

The U.S. Supreme Court has defined “accident” to mean “an unexpected or unusual event or happening that is external to the passenger.” Certainly, an aircraft running off the end of the runway would qualify as an accident. But there are plenty of injury-producing events which present more difficult questions.

Here’s what the courts have said:

  • Accident: A passenger is injured when a fellow passenger opens an overhead bin and liquor bottles fall out.
  • Not an Accident: A passenger slips and falls on plastic bag left in aisle (reasoning: after long flight, it would not be “unusual” to encounter trash in the aisle).
  • Accident: A passenger burned by tea when tea spilled from tray table because the passenger seated directly in front of the injured passenger caused a “jolt” that upset the tray table.
  • Not an Accident: A passenger falls while trying to walk up a broken escalator.
  • Accident: A passenger seated near the smoking section asks to be moved, the flight attendant refuses, the passenger has an asthma attack and dies.
  • Not an Accident: A passenger dies from an airline-induced blood clot.
  • Not an Accident: One passenger falls on and breaks the arm of another passenger (reasoning: the passenger decision to try to climb over his fellow passenger not related to the aircraft’s operation.)

More at Chris Cotter’s excellent article: Recent Case Law Addressing Three Contentious Issues in the Montreal Convention.

When A Helicopter Hits An Offshore Oil Platform And Then Crashes Into The Ocean

A helicopter carrying workers to an oil rig attempts to land on the rig’s platform. The helicopter hits something on the rig, spins out of control, and crashes into the sea. All the helicopter's occupants are killed.Helicopter Approaching Oil Rig Platform 

Sadly, with more than 5000 oil rigs operating off the US shores, oil rig-related helicopter crashes are a relatively common occurrence.

Even though the accidents are almost always the result of someone’s negligence, it's often unclear what compensation, if any, the victims’ families will be entitled to.  That's because there is little agreement as to what law applies to helicopter accidents on oil rigs. 

Since there is no governing "helicopter accident law," some courts look to the law of admiralty.  Reasoning that the deaths occur offshore, they apply the Death on the High Seas Act. The Death on the High Seas Act, or DOHSA, generally allows the victims' families “pecuniary damages” only.  Pecuniary damages include lost wages and funeral expenses. Except in certain circumstances, no compensation is allowed for the loss of the victim's care, comfort and emotional support, or his pre-impact pain and suffering. When DOHSA applies, it can mean the family members get no compensation at all.

Most oil rigs are located on the "outer continental shelf." Because of that, some courts have ruled that the Outer Continental Shelf Lands Act applies to helicopter crashes on oil rigs. Unlike DOHSA, the Outer Continental Shelf Lands Act ("OCSLA") entitles the victims' families to all the damages available under the wrongful death statute of the nearby state. That usually includes compensation for the loss of the victim's care, comfort and affection.

In Alleman v. Omni Energy Services Corp, a helicopter pilot landed on an oil platform, then tried to lift off and reposition the helicopter to make it easier for the passengers to exit.  When he did, the helicopter's main rotors struck a boat landing that had been improperly stored near the helipad.  The helicopter spun across the pad, momentarily came to rest on the edge of the pad, and then fell over the side of the rig and into the Gulf of Mexico below.  One passenger died.

The court ruled ruled that OSCLA applied, not the more restrictive DOHSA.

This accident "actually occurred" on the oil platform itself and OSCLA therefore applies. It does not impact our analysis that Hollier fell into the sea after the accident occurred on the platform. . . .Congress did not intend . . . that these island-platforms be within admiralty’s jurisdiction. 

Texas lawyer Ryan Hackney  questions the court's reasoning:

The [opinion] takes it as self-evident that the accident “actually occurred” when the helicopter’s tail rotor made impact with the boat landing on the platform. From Hollier's perspective, however, the more significant impact was surely the one when his helicopter crashed into the unforgiving water of the Gulf of Mexico. To put it bluntly, bumping your tail rotor might ruin your day, but crashing your helicopter into the high seas will ruin your whole week.

It was the main rotor that struck the landing, not the tail rotor.  But, putting that aside, Hackney's  thorough analysis of the Alleman opinion and the law bearing on helicopter crashes on oil rigs is excellent and worth a read for anyone wrestling with the topic.

As Hackney's analysis points out, the law that applies to helicopter crashes on oil rigs is confused.  In fact, there is sufficient disagreement among the courts concerning OCSLA's application that the United States Supreme Court has agreed to hear argument in October in Pacific Operator Offshore v. Valladolid.  The case doesn't involve a helicopter crash.  But it will tee up issues of when OCSLA applies to accidents injuring rig workers and when it does not.  

Airline's Liability for Injuries Caused by Falling Baggage

It's the passenger in the aisle seat who is most often injured by baggage falling from an overhead bin. The injuries can be serious and can include mild traumatic brain injury.Overhead bin

If the baggage falls and injures a passenger who is travelling internationally, then the Montreal Convention or Warsaw Conventions apply.  The conventions are international treaties that make the airlines automatically liable for any injury to the passenger that resulted from an "accident."  An "accident" is defined as an unusual or unexpected event that is external to the passenger.  Under certain circumstances, being injured by falling baggage may well qualify. 

The conventions apply even if the flight was entirely domestic, as long as the passenger had an international destination somewhere on his itinerary.

What if the flight on which the injury occurred was domestic and there was no international travel involved?  Then it's trickier.  The passenger must prove that the airline was negligent before the airline can be held liable.  For example, the passenger must prove that a flight attendant was careless in opening a baggage compartment and allowing the object to fall out.  Or, the passenger must prove that the bag fell out when a fellow passenger opened the compartment because a flight attendant stowed the bag improperly.

Foreign Sovereign Immunities Act Limits Aviation Lawsuits

It used to be impossible for an American injured by a foreign government to sue that government in the US. If the American tried, the foreign government could assert “sovereign immunity” as a complete defense.  But now the Foreign Sovereign Immunities Act sets forth a few important exceptions to that immunity.  For example, a victim can sue the foreign government if the injury was caused by that government's "commercial activity" in the United States.

What does this have to do with aviation law?  Many foreign airlines are owned or controlled by foreign governments. Suing those airlines -- even for injuries that occur on US soil -- is considered the same as suing the foreign "sovereign." Until relatively recently, it wasn't allowed at all.

Some of the foreign airlines that have asserted the sovereign immunity Queen On Trial defense include:

  • South African Airways 
  • Lufthansa
  • Garuda Indonesia
  • Air France
  • Lot Polish Airlines
  • Air Afrique
  • Austrian Airlines

Many aviation manufacturers are also owned or controlled by foreign governments. Were it not for the "commercial activity" exception, they too would be completely immune from suit.  Some of those manufacturers that have been treated as foreign sovereigns include:

  • Augusta S.p.A
  • Embraer
  • Airbus
  • Siai Marchetti

Though the "commercial activity" exception now allows the victim to sue, the foreign sovereign (or the airline or manufacturer it controls) is still entitled to special protections.  First, the "sovereign" is entitled to have the case heard in a federal court, rather than a state court.  Next, the case must be heard by a judge, not a jury.  And finally, regardless of how bad the sovereign's conduct, no punitive damages are allowed.

Holding the Aircraft Owner Responsible for the Mechanic's Negligence

An aircraft owner loans his plane to a friend. The plane crashes and a passenger is injured. It turns out the crash was caused by the negligence of the aircraft's mechanic. Can the crash victim hold the aircraft owner liable for the mechanic’s faulty work?

This question comes up a lot. In fact, it comes up in almost every case where the mechanic doesn't have adequate insurance to cover the passenger's medical expenses. 

Ask the owner’s insurance company whether the owner can be held liable, and they will always say “no.” Their argument is that the owner didn’t perform the work and, in fact, without a mechanic's license was legally prohibited from doing so. The owner trusted the mechanic, as the regulations required him to, and so did nothing wrong. According to the owner’s insurance company, the passenger must look to the mechanic for compensation, and not to the owner. 

There are a couple of court opinions that seem to go along with the insurance company's reasoning.  But none of those opinions applies in California.  

In California, unlike in some other states, an owner of a machine that can seriously injure someone if not properly maintained is responsible to those injured as a result of faulty maintenance. It doesn’t matter that the owner didn't actually perform the faulty maintenance. 

Why does this make sense? Because, according to the Supreme Court's opinion in Maloney v. Rath, it is the owner who decides who the mechanic will be.

the owner selects the [mechanic] and is free to insist upon one who is financially responsible and to demand indemnity of him.

In other words, the injured party had no say in what mechanic did the work, or whether the mechanic carried insurance. But the owner who selected him did. So the accident victim can hold the owner financially responsible, and leave it to the owner to try to obtain reimbursement from his mechanic.

The Maloney case didn’t involve airplanes. It involved a car crash caused by improperly maintained brakes. But the reasoning applies to airplanes too. After all, improper aircraft maintenance is just as dangerous as improper car maintenance. Maybe even more so.

The federal aviation regulations make the owner responsible for maintaining the aircraft in airworthy condition. The owner can’t necessarily avoid that responsibility by hiring a good mechanic. Despite what the insurance company says, the owner may still be on the hook.  At least in California.

Res Ipsa Loquitur and the Aviation Accident: When the Evidence is Destroyed in the Crash

When the evidence needed to reconstruct an aviation accident is lost or destroyed in the crash, can the victim nonetheless hold whoever caused the accident accountable?

Yes, if the legal doctrine of "res ipsa loquitur" apples -- Latin for "the thing speaks for itself."

Most courts recognize that air crashes do not normally occur unless someone, somewhere, was negligent.  It’s just a matter of who.  If circumstances point to one particular person above all others, then "the thing speaks for itself," and that person can be held accountabe even without any physical evidence to prove the case.

Let’s say an airplane's engine fails and the plane crashes. The pilot survives but is badly injured. The key engine components are either battered beyond recognition, destroyed by the post-crash fire, or never located. Under the circumstances, it may be impossible to ever determine exactly why the engine failed.  There may be little chance of determining from the wreckage who was responsible for the accident.

Now assume that engine work had been performed on the plane just before the accident. Under the circumstances, one might suspect that the engine failed because the mechanic who performed the engine work did something wrong.  Of course, there are other possible explanations for the engine failure as well.  But if the injured pilot can prove that the mechanic's work is the most likely explanation, a judge or jury may decide that the maintenance shop is responsible, even without any physical evidence to rely on.

To invoke the doctrine of res ipsa loquitur against the maintenance shop in this example, the injured pilot must prove that:

  1. The engine would not have failed unless someone was negligent;
  2. The maintenance facility had exclusive control of the engine during the key time period (that is, only the facility's own mechanics had access to the inside of the engine when it was opened up); and
  3. The pilot did not cause or contribute to the engine failure (by, for example, running out of gas).

Even if there isn't enough physical evidence to determine how or why the engine failed, if the pilot can prove all these three things, he may nonetheless be able to hold the shop responsible for his injuries.

An FBO's Liability for Negligent Entrustment of Aircraft

An FBO is not supposed to rent an aircraft to a pilot who the FBO knows isn't competent to complete the planned flight safely. If it does, and a passenger is hurt or killed by the pilot's mistake, the victim or his family can hold the FBO responsible. That's the law of "negligent Negligent entrustment of aircraftentrustment."

A pilot who doesn't hold the proper license or rating to operate the aircraft he is seeking to rent is probably not competent to complete the planned flight safely.  But what if the pilot is properly licensed and meets all the FAA's other requirements? If the FBO rents the aircraft to the pilot, can the FBO still be held responsible for what turns out to be the pilot's mistakes?

Sometimes, the answer is yes.

The landmark case is White v. Inbound Aviation. A young pilot had just recently received his private pilot's license. He was comfortable flying the FBO's Piper Archer in which he had been "checked out" by one of the FBO's instructors. The FBO felt the renter was a good pilot.  It felt, however, that the pilot should obtain some additional instruction in "mountain flying" before flying to an airport in the mountains nearby.  The FBO felt that without the instruction, the pilot might not be able to handle the special challenges presented by "high density altitude" airports. 

One day the pilot showed up to rent the Archer. He told the FBO that he wanted to fly two friends to Lake Tahoe airport, an airport in the mountains.  The pilot hadn't obtained the mountain-flying instruction, but the FBO rented the aircraft to him anyway.

The pilot landed at Lake Tahoe airport without incident. But he wasn't prepared for the effects of the altitude, heat, and weight of the aircraft on takeoff.  When he attempted to depart, he crashed, killing himself as well as his two passengers.

The family of one of the passengers sued the FBO, arguing it should never have rented the plane to the pilot for this particular trip. The jury agreed and held the FBO liable.Archer II by Markus

The FBO appealed.  It argued that the pilot held a license that legally entitled him to fly anywhere he wanted, including mountain airports like Lake Tahoe. That, the FBO argued, should have been the end of the matter. If the pilot was competent in the eyes of the FAA, he should have been deemed competent in the eyes of the court.

The court of appeal disagreed, and affirmed the jury's verdict against the FBO.  Though the young pilot may have been a competent pilot generally, that wasn't the issue.  The FBO knew that, notwithstanding his license, the pilot wasn't competent for the particular flight he had planned.  As the court of appeal noted:

[The issue as plaintiffs framed it] was not whether [the pilot] was competent in general to pilot an aircraft but whether [he] was competent to 'operate the aircraft that he operated on the day he operated it and in the manner in which he operated it under the conditions he experienced ... on July 3rd with three people on board going to Lake Tahoe.'

The FBO knew that, even though he was properly licensed, the pilot was not competent to conduct the particular flight he had planned under the conditions that existed on the day of the accident.  The court of appeal ruled that, therefore, the jury properly held the FBO liable for the accident under the law of negligent entrustment.  

United Flight 935: Airline's Obligation to Compensate Passengers Injured by Turbulence

At least 10 people aboard United Flight 935 were hurt when the aircraft encountered severe turbulence.  Is the airline responsible for compensating its injured passengers?

Continental 767 CabinBecause Flight 935 was an international flight, a treaty known as the Montreal Convention governs the passengers' claims.  The Montreal Convention makes the airline liable for any injuries suffered on board the aircraft due to an "accident."  The definition of "accident" includes an encounter with severe turbulence.  The passenger need not prove that the airline was at fault for the accident.  Under the Convention, the airline is automatically liable.

Some courts have ruled that while an airline is automatically liable for any "accident" on an international flight, its obligation to compensate an injured passenger may be reduced if the passenger himself contributed to his injury.  One issue that typically arises in turbulence cases is whether the injured passenger should have been wearing his seat belt.  In this case, it appears the seat belt sign was off and the turbulence competely unexpected, so that should not be an issue.

As discussed here, the Convention entitles the passengers to be compensated for the emotional distress they have suffered, but only if they also suffered some sort of physical injury as well.

Finally, as discussed here, the passengers are entitled to sue the airline for compensation in the United States, and in particular in California (Los Angeles or San Francisco), regardless of their citizenship or final destination. 

Running Past TBO: Smart Economics or Owner Negligence?

Aircraft engine manufacturers recommend that owners overhaul their engines when they accumulate a certain amount of operating time, usually between 1200 and 2400 hours depending on the engine's make and model. For example, Teledyne Continental Motors suggests that owners overhaul its IO-550 model engine at 2000 hours. Textron LycLycoming Engine - photo by wirelizardoming suggests that owners overhaul its O-235 engine, like the one pictured, at 2400 hours.

Overhauls are expensive.  Some can cost $40,000 or more.  An increasing number of owners opt to run their engines 200, 400 or more hours past the manufacturer's recommended "time between overhauls," or TBO.  Once past TBO, they may take extra precautions by, for example, regularly sending out engine oil samples for spectrographic analysis, checking the engine’s compression, and looking inside certain parts of the engine with a boroscope to insure that  things look good. They feel the manufacturer's TBO recommendations are somewhat arbitrary. By running their engines past TBO they are squeezing more life out of them, and that just makes good economic sense.

The FAA does not require private owners to comply with the manufacturer’s stated TBO interval. The manufacturer's TBO is therefore advisory only.  As long as a properly certified mechanic has

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What Family Members Are Entitled To Compensation For the Loss of A Family Member in An Airplane or Helicopter Accident?

When someone is killed in an airplane or helicopter accident, California's wrongful death law allows only certain members of the victim's family to obtain monetary compensation from those who are responsible.  The family members who are entitled to compensation are:

  • The victim's Spouse or registered Domestic Partner
  • The victim's Parents – but not where the victim left children, unless the parents were financially dependent on the victim
  • The victim's Children, including Adopted Children
  • The victim's Stepchildren – but only if they were financially dependent on the victim 
  • Unrelated children in the victim’s care – If the child lived with and was financially dependent on the victim for the 180 days before the victim’s death 
  • The victim's Brothers & Sisters – but only when the victim left no other relatives with a right to sue.  

Many aviation accidents occur over navigable waters.  When that happens, maritime law may apply and the rules can be slightly different.  For example, parents may be entitled to compensation for the loss of their son or daughter, even though the son or daughter was married with children, and though the parents were not financially dependent on him or her.


Statutes of Limitation in Aviation Accident Cases

The victim of an airplane or helicopter accident must act on his rights or lose them forever.  That means the victim must file a lawsuit by the appropriate deadline.  In some cases, the victim must first file a special claim form with the right governmental agency.  If he fails to do so on time, or files it with the wrong agency, he willl not be permitted to later sue the government agency that is responsible for his injuries.

The deadlines vary according to the type of claim as well as other factors. A victim should consult an aviation lawyer to determine which deadline applies.  Some of the more common deadlines that may apply in California cases:

  • Cases involving International Air Travel (Warsaw and Montreal Conventions)  - Lawsuit must be filed within 2 years of the aircraft's arrival (or expected arrival) at the destination.
  • Cases against California Governmental Entities (such as those involving municipal airports) - Victim must file a special governmental Claim Form (pdf) within 6 months of accident or no lawsuit is thereafter allowed; lawsuit must be filed no later than 6 months after the governmental agency rejects the claim.
  • Cases alleging negligence or products liability (including design defect)  - Lawsuit must be filed within 2 years of accident.
  • Cases against the Federal Government (such as those involving weather reporting or air traffic control errors) - Victim must file a special Federal Tort Claims Act Claim Form (pdf)  within 2 years of accident or injury; suit must be filed no later than 6 months after government rejects the claim.
  • Cases against EMS Helicopter/Air Ambulance Operators, if MICRA applies - Lawuit must be filed within 3 years of accident; other pre-filing requirements may apply.  Otherwise, lawsuit must be filed within 2 years of accident.
  • Claims against the estate of someone who caused the accident but who has since died are often subject to shorter statutes of limitations than set forth above.  Some deadlines are as short as 6 months.

Additional deadline:

  • Cases against aircraft manufacturer - (including those alleging design defect) -  No lawsuit allowed if accident occurred more than 18 years after date of manufacturer of aircraft of part causing the injury, subject to certain exceptions set forth in the General Aviation Revitalization Act

Some deadlines are extended under special circumstances, such as when the victim is a child.  On the other hand, some deadlines, like the 2- year Warsaw Convention deadline, are not extended for any reason.

Aircraft Maintenance Manuals and the Mechanic's Liability

Maintenance manuals tell the mechanic when to perform an inspection or service, and how to perform it.  Many mechanics believe that the regulations require them to follow the book exactly.Aircraft Mechanic But in an excellent column on this murky subject, mechanic and aviation author Mike Busch sums up the regulatory requirements nicely:

The manufacturer's “how-to” instructions are compulsory, but the manufacturer’s “when-to” instructions are not.

Let's say, for example, that the manual requires the aircraft’s spark plugs to be removed and regapped every 100 hours. If a mechanic decides to service the aircraft’s spark plugs, he must do it exactly as instructed in the aircraft manual. The regulations, however, do not require the mechanic to follow the manufacturer's instructions at all concerning when or how often to service the plugs, regardless of how much time the engine has accumulated. As Busch explains:

No manufacturer can mandate any maintenance requirement on a part 91 aircraft owner; only the FAA can do so.

There is another part of the story, however, that Busch's column doesn't address. The FAA regulations are bare minimum requirements only.  If an accident occurs because the mechanic failed to comply with the manufacturer’s recommendations, questions can arise as to whether the mechanic was negligent – that is, not reasonably careful -- and thus liable to those injured as a result.  A jury may conclude that, though the regulations didn't require him to, a reasonably careful mechanic would have followed the manufacturer's recommendations anyway.  After all, does a reasonably careful mechanic believe he knows better than the manufacturer? 

FAA To Allow Boeing To Self-Certify Its Aircraft Designs

Aviation manufacturers have long argued that victims should not be permitted to sue for aircraft design defects because, before any manufacturer's aircraft leaves the ground, its design has to be approved and certified by the FAA. If the aircraft's design is good enough for the FAA's engineers, they argue, it should be good enough for the court system.  Judges and juries should not be permitted to second guess the FAA.

Aviation attorneys representing victims of air crashes take a different position.  They argue that the FAA "approval" process is not really an independent safety review of an aircraft's design at all.  FAA Certification ProcessRather, the FAA certifies aircraft based largely on the say-so of engineers who, though designated by the FAA, are in fact employees of the manufacturer seeking the certification. The issue of whether an aircraft's design is defective is thus appropriately left to the judgment of an independent jury. In short, the fact that the FAA certified a design doesn't really mean all that much

Now FAA certification of an aircraft's design will mean even less -- at least with regard to Boeing aircraft.  That's because the the FAA will drop out of the certification process completely for certain Boeing products.  Beginning August 31, the FAA will allow Boeing to self-certify its designs. The FAA will not even do the rubber stamping -- Boeing employees will do that too. According to the Seattle Times

The new system increases the authority of the in-house inspectors directly managed by Boeing, allowing them to review new designs, oversee testing to ensure the products meet all applicable standards, and sign off on certification

Suing the United States Government for an Air Traffic Controller's Negligence

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."FAA Control Tower 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; and
  • The victim's attorney can charge a contingency fee of no more than 25% of any judgment that the court renders. 

Can the Victims of Yemenia Air Sue in the U.S.?

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 Yemenia Air A310list 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.

Proving Negligence in an Aviation Lawsuit

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. 

No One Should Suffer Burn Injuries in a Survivable Helicopter Crash

During the Vietnam war, hundreds of soldiers suffered serious burn injuries following otherwise survivable Huey helicopter crashes.  In 1970, Bell Helicopter responded by developing a crashworthy Huey photo by Cranefuel system and installing it in the new Hueys it produced.  The crashworthy system included stronger fuel cells, breakaway fuel lines, and cutoff valves.  

The Army kept track of the effectiveness of the new fuel system.  Over the next 39 months, 895 helicopters without the new system crashed.  Post impact fires resulted in 52 burn fatalities and 31 burn injuries.  Over the same time period, 702 helicopters with the new crashworthy fuel system went down.  Remarkably, there was not a single thermal injury or death in any of those crashes.  That was enough to convince the Army.  After that, it required all its helicopters to be manufactured with the crashworthy fuel system.   

Today, no one should be burned in an otherwise survivable helicopter accident.  The technology has long existed to almost completely eliminate post-crash helicopter fires. But while the risk has been virtually eliminated in military helicopter operations, post crash fires are still the single biggest hazard to survivors of civilian helicopter crashes. (pdf) That's because some civilian helicopter manufacturers have resisted incorporating crashworthy fuel systems into their designs.    

Helicopter manufacturers know that some of the aircraft they manufacturer will inevitably be involved in accidents.  They must take steps to make their civilian helicopters reasonably safe in the event of an accident, just as they do when building helicopters for the military.  If someone is burned in a civilian helicopter crash, then the aircraft's design may well be proven to be defective, and the manufacturer held accountable for the injuries its design has caused. 

Compensating the Families of Air France Flight 447

Are the passengers’ families entitled to compensation for their loss? From whom? Does it matter what caused the crash? Can the families sue in the United States?

Air France is Responsible Regardless of the Cause of the Accident. 

The Montreal Convention requires Air France to compensate the families as long as the crash was caused by an accident.  The Convention defines "accident" to include any unexpected event, from an encounter with severe weather, to mechanical failure, to a terrorist attack.

Air France must compensate each passenger's family:  

  • For all recoverable damages suffered up to $155,000; and
  • For all recoverable damages suffered in excess of $155,000, unless Air France proves it was not in any way “negligent or otherwise at fault."

In addition, Air France must advance $25,000 to cover each family’s “immediate economic needs” within 15 days of identifying who the proper claimants are. The $25,000 payment is credited against Air France’s ultimate obligation to the family.  

As a practical matter, Air France will be liable for all legally recoverable damages without regard to the $155,000 limit. That’s because to avoid liability, Air France has to prove a negative -- that it was not in any way “negligent or at fault.” Regardless of whether it is ultimately determined that the crash was caused by weather, equipment failure, or even terrorism, Air France will not be able to demonstrate that its own negligence did not somehow contribute to the accident.  There are just too many possibilities for Air France to disprove.

The Final Amount of Compensation to Which a Family is Entitled Depends upon Where the Particular Family may Sue.

U.S. law is most favorable for the families, as the laws of other countries severely limit compensation in wrongful death cases. For example, unlike the United States, many countries do not allow families to be compensated for loss of a loved one's "care, comfort, or society."  But the Montreal Convention will permit a family to sue Air France in the U.S. only if: 

  1. The United States was the passenger’s ultimate destination, or
  2. The passenger’s ticket was issued in the United States, or
  3. The passenger’s “principal and permanent residence” was in the United States.

The first two grounds are relatively straightforward. The passenger's travel documents will determine whether the family meets the applicable requirement. The third ground, however, might well be hotly contested in at least some of the families' cases. For example, two Flight 447 passengers were U.S. citizens from Texas who were living in Brazil. But was the U.S. their "principal and permanent" residence? That may depend upon whether they intended to return to their home in Texas and, if so, when. These details may need to be litigated.

Compensation from the Manufacturers.

If the crash was caused by a product defect – such as a problem with the Airbus' weather radar, its flight control system, or a pitot tube -- then the families would be entitled to pursue a product liability claim. Many of the Airbus' components parts are manufactured by U.S. companies.  If  a U.S. manufacturer was responsible for the defect, the families would be permitted to sue the manufacturer here, even if the Montreal Convention did not allow them to sue Air France here.  A family that successfully sues in the United States may be compensated under U.S. law rather than the more restrictive foreign laws. 

Forum Non Conveniens is an Obstacle to Suing Manufacturers in the U.S.

The doctrine of forum non conveniens allows a U.S. court to decline jurisdiction and transfer a case to a foreign country if it decides that, all things considered, the foreign court would be more convenient for all involved.  U.S. courts frequently invoke the doctrine to avoid hearing cases involving foreign aviation accidents. Flight 447 may be one case, however, that a U.S. court may well decide to hear.  After all, the U.S. would be most convenient for the manufacturers because their engineers, their engineering documents and test data are undoubtedly here. There are no eyewitnesses to the accident who would need to be inconvenienced by traveling to the U.S. from abroad to testify. Finally, unlike disasters occurring on foreign soil, it makes no sense to have the case heard near the crash site because there is nothing at the crash site for any judge or jury to see.    

Proving An Aircraft Design Defect Case

What does the aviation accident lawyer need to prove in order to win a "design defect" lawsuit against the manufacturer of the aircraft that injured his client?   

It varies from state to state. But it's never enough simply to prove that the aircraft's design caused the accident or injury.  The victim's lawyer always has to prove more than that.  One way for the aviation lawyer to win the lawsuit under California law is to prove to the jury all of the following things:

  1. That the pilot did not misuse the aircraft, but instead operated it in a way the manufacturer could have anticipated;Zodiac CH 650
  2. That the aircraft’s design presented a real risk of injury, and not just a remote possibility of injury; 
  3. That a different, safer design would have avoided the accident or injury, and
  4. That the safer design was “feasible.”  In other words, a safer design would not have been too expensive, been too difficult, made the aircraft too heavy, significantly detracted from the aircraft’s performance or usefulness, or presented other serious drawbacks.

To support the case, the victim's lawyer can present to the jury evidence such as the testimony of expert engineers, pilots or eyewitnesses; documents from the manufacturer's files; pieces of the aircraft wreckage; “mock-ups” of safer, alternative designs; and laboratory test results.  He cannot, however, use any of the conclusions or opinions contained in the National Transportation Safety Board report concerning the accident.  That's because the NTSB's opinions are inadmissible in court.

After all the evidence has been presented, the judge explains to the jury exactly what the victim's lawyer needed to prove in order to win. The explanation is called the "jury instructions."  The judge gets the instructions from standard, pre-published forms that he modifies as needed for the particular case. 

For the victim to win, the jury must agree, after reviewing all the evidence, that his lawyer proved his case by a "preponderance of the evidence."  That means that the evidence, taken together, showed that each element of the victim’s case was “more likely than not” true.  The lawyer need not prove his case “beyond a reasonable doubt.” That standard of proof applies only in criminal cases.  

A Mechanic's Liability for Failure to Comply with a Manufacturer's Maintenance Instructions

The General Rule

Mechanics are required by regulation to follow the instructions set forth in the manufacturer's maintenance manuals when working on an aircraft.  The mechanic is not allowed to deviate from the instructions covering the work he undertakes.  If he does deviate, and someone is injured as a result, the mechanic is liable.

Service Bulletins

Sometimes, a manufacturer learns of a problem with the way its product is performing in the field.

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Continental (Colgan) Flight 3407: Law Firms Take Different Tacks

Right after the crash of Flight 3407 at Buffalo, investigators  focused on the aircraft's deicing system. The question, as explained by former CNN reporter and pilot Miles O'Brien, was whether ice had accumulated on the plane's wings faster than the de-icing system could remove it, leading to an aerodynamic “stall,” or loss of lift. 

But as the investigation progressed, it began to look as though, just before the pilot lost control of the aircraft, the nose of the plane pitched up  -- not down as usually happens when ice overwhelms an aircraft.  That raised an almost unthinkable possibility:  gross pilot error.  When an aircraft gets

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US Airways Flight 1549: What Claims Do The Passengers Have?

Some Flight 1549 passengers have reportedly "lawyered-up."  What legal claims do they have?Flight 1549  Putting aside the question of whether pursuing the claims is the right thing to do -- some say they should simply count their blessings -- do the passengers have any claims to begin with?

Well, it depends on the law that applies.  For example, under California law, a passenger would first have to show that the accident was caused by the airline's negligence.  From what is known so far, that seems unlikely. If, however, the passenger succeeds in proving negligence, he would be entitled to compensation for any physical injuries he sustained as well as compensation for the emotional distress he suffered. 

What if the passenger suffered just emotional distress and no physical injuries? Again using  California law as an example, if the airline was negligent, the passenger could recover for the emotional distress, as long as that the emotional distress was "serious."  (Not much question about that.)

What if the passenger had a foreign destination listed someplace on his itinerary?  That would change everything. Even though the flight was domestic, the Montreal Convention, an international treaty governing airline liability, would trump state law.  The passenger would not need to prove the airline was negligent to recover.  It is enough that a passenger's injuries were the result of an "accident."  The airline would be automatically liable. But under the Convention, the passenger would not be entitled to compensation for mental injuries, regardless of how "serious", unless he also suffered at least some physical injury.

Warsaw and Montreal Conventions

An airline's liability for a passenger's injury or death is most often determined by state law. But if the passenger's trip includes a stop in a foreign country, then the airline's liability is controlled entirely by international treaties.  The treaties are known as the Warsaw Convention and the Montreal Convention

The treaties also govern a passenger's claims for injuries occurring on a domestic flight, as long as a foreign destination was on the passenger's itinerary.  That means that state law may govern the claims of one victim of an airline disaster, while a treaty may govern the claims of his friend in the very next seat.  Because different law applies, one victim (or his family) might be entitled to compensation from the airline, and the other not.

Which is more favorable for the victim -- state law or the treaties? It depends on the circumstances of the case. For example, if state law applies, to successfully sue an airline, the passenger must prove that the injury occurred because the airline was "negligent" or, in other words, "careless".  But if a treaty applies, the passenger need not prove the airline was negligent at all. If a treaty applies, the passenger need only prove that his injuries were the result of an "accident." 

What if a flight attendant accidently pours hot coffee on you and you are seriously burned?  Under state law, you could recover from the airline, if you prove the flight attendant was careless.  Of course, if the flight attendant splashed you on purpose, you would be entitled to compensation as well.  But what  if the treaties apply? Can the flight attendant's intentional act be considered an "accident"?  Courts have struggled with this sort of question, and offer no clear-cut answer. 

Texts of Warsaw and Montreal Conventions

Text of Warsaw Convention here. (pdf)

Text of Montreal Convention here. (pdf)

List of countries which have signed on to Montreal Convention here. (pdf)  [updated December 2009]