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

The Federal Tort Claims Act allows citizens who have been injured by the federal government to sue the United States.  But there's an important exception.  No suit against the government is allowed when the victim is a service member injured by the negligence of the United States military. 

The rule protecting the military is called the Feres Doctrine.  In aviation accident cases, the doctrine bars service members from suing the government regardless of whether the crash was caused by the negligence of a military mechanic, air traffic controller, dispatcher or pilot.

Not surprisingly, the Feres Doctrine is controversial.  It allows the military to avoid responsibility for not just simple negligence, but for gross negligence as well.  Because of its unfairness, Congress has repeatedly been asked to abolish the rule, or at least limit it.  (Large pdf of Congressional Hearing here.)  But the Feres Doctrine remains the law.  As long as the victim was an "active" service member, and the injury or death was "incident to service," the military is immune from suit.  

That doesn't mean that injured soldiers or their families cannot sue others who may have contributed to a military aircraft accident.  For example, if a defect in the design of the aircraft contributed to the crash or to the injuries the crew member received, the crew member can still sue the aircraft's manufacturer. The aircraft manufacturer may be able to assert defenses of its own, such as the "government contractor defense," but not the Feres Doctrine.

The military prepares an investigative report after every accident involving one of its aircraft.  The report focuses on the military's role in the accident.  It seldom addresses whether a manufacturer or other civilian contractor may have been at fault. In fact, as discussed in this article concerning a military helicopter crash off the California coast, sometimes the report provides no answers at all.  Families will often need to enlist an aviation accident attorney to conduct an investigation on their behalf.  The attorney may need to file suit against the manufacturers just to obtain access to the evidence bearing on who, other than the military, may be responsible for a service member's injury or death.    

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American Airlines Flight 331 was an international flight between Miami and Kingston, Jamaica.  Because the flight was international, the airline's obligation to compensate its passengers for their injuries is governed by an international treaty known as the Montreal Convention.  Here are some of the Convention's important points, as they apply to Flight 331:

• The Airline must compensate its injured passengers as long as the crash was caused by an "accident."  The Convention defines "accident" to include any unexpected event; from an encounter with bad weather, to poor planning on the part of the pilot, to mechanical failure.  The exact cause of the accident doesn't matter.  The passenger does not need to prove that the airline was negligent, or that the airline did anything wrong at all.  The airline is automatically required to compensate any injured passenger. 
• A passenger who was physically injured is entitled to compensation for his or her emotional distress as well as for the physical injuries.  However, a passenger who was not physically injured is not entitled to compensation for emotional distress, no matter how severe the emotional distress may be. 
• American Airlines may avoid liability for amounts exceeding US$155,000 only if it proves that it was not in any way "negligent or at fault."  Experienced aviation lawyers know, however, that in a case like this, that will be impossible for the airline to prove.  Therefore, there will be no  artificial "cap" on American Airline's obligation to compensate the passengers who were physically injured in the accident. 
• To obtain fair compensation, the injured passenger may sue the airline in the United States, regardless of the passenger's citizenship.

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In the early stages of a lawsuit, it is often unclear which of two different defendants is responsible for an aviation accident.  But as the case progresses, evidence may point to one defendant over another.  When that happens, it may seem like a good idea for the victim to settle with (or dismiss from the lawsuit) the defendant whose liability appears tenuous, and to proceed to trial against the defendant who appears blameworthy.  Experienced aviation lawyers think carefully, however, before following that course, for fear of creating an "empty chair" in the courtroom.

Let's say that, at the outset of the case, it is unclear whether the aircraft crash was caused by the defective design of a part (for which the aircraft manufacturer would be responsible), or negligent maintenance (for which the aviation mechanic would be responsible).  But let's say that, as the suit progresses, evidence is uncovered indicating that the responsibility should rightfully lie with the manufacturer.  It may seem like good sense to dismiss the mechanic from the lawsuit and proceed to trial against only the manufacturer.  Doing so, however, may allow the manufacturer to argue to the jury that the one truly responsible for the accident is someone who is not present in the courtroom -- someone who should be seated in the "empty chair," but whom the victim decided not to bring into court. 

This strategy is called "blaming the empty chair."  Of course, the "empty chair" cannot defend itself.  Thus, if allowed to employ this tactic, the wrongdoer can sometimes escape liability altogether. 

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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 Lycoming 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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A crew member injured by an aircraft's defective design may sue to hold the aircraft manufacturer accountable.  At least he can when the aircraft involved in the accident was a civilian aircraft. If, however, the airplane or helicopter was a military aircraft, then the rules change.

A manufacturer who built an aircraft specifically for the military may be able to avoid liability to those injured by the aircraft's design by asserting the "government contractor defense."  That defense provides the manufacturer complete immunity from lawsuits. But the Supreme Court ruled in Boyle v.United Technologies that a manufacturer can take advantage of that defense only if it can prove all of the following things:

1. That the US government specifically required or approved the design feature that caused the accident or injury; 
2. That what the manufacturer built conformed to the specifications that the government approved, and
3. That the manufacturer warned the government about any dangers in the design that the manufacturer knew about and that the government didn't.

If the manufacturer fails to prove all three of these things, then it may be sued just as a manufacturer of a civilian aircraft, and an injured crewmember is entitled to hold it accountable for any injuries the aircraft's design caused him.  

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Generally, crew members may not sue their employers for injuries sustained on the job. Even where the crew member's injury was caused by the negligence  of the employer or one of the crew member's co-employees, the crew member's sole remedy against his employer is to pursue a workers' compensation case. This is known as the "exclusive remedy rule."  The trouble with the exclusive remedy rule is that worker's compensation benefits are limited and are seldom adequate to compensate a crew member or the crew member's family for the injuries suffered in an aviation accident.  

Fortunately, the exclusive remedy rule does not prevent a crew member from suing third parties who caused or contributed to the injury.  Therefore, a crew member injured in an aviation accident may sue the aircraft manufacturer if the accident was caused by a defect in the design or manufacture of the aircraft.  Similarly, where the accident was caused by the negligence of a mechanic who worked on the aircraft, the crew member may sue the mechanic provided, of course, that the mechanic was not one of the crew member's co-employees. 

There are few exceptions to the "exclusive remedy" rule.  For example, a crew member can sue the employer who caused his injuries where:

• The employer didn't maintain workers compensation insurance;
• The injury was the result of certain types of intentional wrongdoing on the employer's part; or
• The crew member was injured by a product or part that the employer manufactured.

The "exclusive remedy" rule also prevents the crew member from suing any co-worker who caused the accident.  Again, there are a few exceptions for unusual situations. For example, a crew member may sue his co-worker where the co-worker’s actions were malicious and with an intent to cause injury, or when the co-worker was intoxicated. 

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Are written waivers of liability worth the paper they are written on?  The answer, of course, is that it depends.  In California, a waiver that a passenger signs before stepping into an aircraft is enforceable, as long as it meets certain rules.  For example:

• The waiver language must be clear and conspicuous to the person signing away his rights---not buried in fine print.
• A passenger cannot waive liability for injuries resulting from another's recklessness. 
• A waiver will not release an employer from liability to an employee for risks that are inherent in the employee's job.
• A passenger cannot waive liability for injuries resulting from an aircraft's defective design or manufacture.  

Despite the rules, a waiver can be written in such a way that it will, in most situations, prevent a passenger from obtaining compensation for injuries received in an aviation accident caused by another's negligence.  In fact, a properly drafted release can prevent not just the passenger who signed it from suing, but in the event of the passenger's death, his heirs as well.   

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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 a spouse or 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, and even though the parents were not financially dependent on him or her.

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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 date of accident.
• 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.

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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. 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? 

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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.  Rather, 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. 

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At least 26 people aboard Continental Flight 128 from Rio de Janeiro to Houston were hurt when the aircraft encountered severe turbulence.  Is the airline responsible for compensating its injured passengers?

Because Flight 128 was an international flight, a treaty known as the Montreal Convention governs most of 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.  The issue that will undoubtedly arise in the case of Fight 128 is whether an injured passenger should have been wearing his seat belt.

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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." 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; 
• The victim's attorney can charge a contingency fee of no more than 25% of any judgment that the court renders; 
• If the FAA settles out of court,  the attorney can charge a contingency fee of no more than 20%.

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Bonanza N618MW, a Beechcraft like the one pictured below, was doing "touch & goes" at Jack Northrop field in Hawthorne.  "Touch and goes" are practice landings where the pilot does not stop on the runway.  Instead, after the wheels touch down, the pilot advances the throttle, takes off again, and then circles around for another landing.  Everything appeared to be fine until, on one of the "goes", the Bonanza's engine quit.  The Bonanza crashed into a parking lot.  The three people on board were killed. 

Why did the engine quit?

Fuel?  Most engine failures are the result of either fuel exhaustion (no avgas in any of the aircraft's tanks), fuel starvation (pilot fails to switch to a full tank when the one he is using runs dry), or fuel contamination (water or jet fuel has found its way into the avgas).  So in any case involving engine failure, fuel has to be considered.

When, as here, there is no post-crash fire, fuel exhaustion is a prime suspect. No fire often means that there was no avgas (aviation gasoline) on board to burn. But it's unlikely this accident was caused by fuel exhaustion.  Though it didn't ignite, there was plenty of avgas spilled on the parking lot where the aircraft crashed. That means there was fuel on board.

Did the pilot fail to switch to a full tank when the one he was using ran dry? That, too, is unlikely.  Witnesses reported that the aircraft was streaming smoke.  An airplane doesn't stream smoke when it runs out of gas.  So both fuel exhaustion and fuel starvation can probably be ruled out as a cause of the engine failure..

Could the engine have quit because of fuel contamination?  If the avgas was contaminated with either water or jet fuel, the engine would have failed on the first takeoff. It would not have been able to perform multiple takeoffs before quitting. Nor would the engine have smoked. We can likely rule out fuel contamination.

Mechanical Failure.  Once fuel issues are ruled out, mechanical failure appears as the next most likely cause of the engine's quitting. Aircraft engines are not supposed to fail without warning. When they do, it is often because of something the engine manufacturer did or failed to do. For example, the manufacturer may have designed the engine improperly or carelessly assembled it. Some of the legal theories that the victims' families can assert to hold the manufacturer responsible are discussed here and here.

The engine installed in N618MW was a model IO-550.  It was manufactured by Teledyne Continental Motors.  Engine manufacturers such as Teledyne often try to avoid liability for causing an accident by asserting the protection of the General Aviation Revitalization Act, or GARA, discussed here.  However, the engine installed in N618MW was manufactured in 2005.  GARA does not apply to engines that are less than 18 years old, such as this one, and so the families will be legally permitted to hold Teledyne responsible for any defects in the engine.

The NTSB Investigation.  The NTSB is investigating the cause of the crash.  The NTSB will ask Teledyne Continental Motors to participate in the investigation, and to help it determine the cause of the accident.  As part of the investigation, the NTSB, along with representatives of Teledyne, will disassemble the engine and test its various parts. (Pictured right is an IO-550 engine being disassembled after a crash in 2001.) Of course, since Teledyne itself might be responsible for the crash, it's participation in the investigation presents a conflict of interest.   It is like the police asking the suspect for help in solving the crime. To make matters worse, the NTSB will not allow the victims' families or the families' lawyers to participate in the investigation at all. The conflict of interest is discussed further here.

The conflict of interest makes for biased NTSB reports that tend to favor the manufacturers.  In one recent case, a Teledyne model IO-550 engine -- just like the one in this case -- was installed in a Beechcraft Bonanza that had departed Van Nuys, Californa.  The engine quit and the plane crashed. The NTSB asked Teledyne Continental Motors to participate in its investigation and help it determine why the engine failed.  Not surprising, after hearing only Teledyne's side of the story, the NTSB determined that the engine failed because of poor maintenance, and not anything that Teledyne did.  In fact, the NTSB cleared Teledyne completely of any blame.  We investigated ourselves and later brought the matter to trial. After hearing all the evidence in the case -- not just the evidence favorable to Teledyne -- the jury disagreed with the NTSB.   The jury determined that the engine quit because Teledyne's IO-550 maintenance manuals were wrong, and awarded the injured passenger $15 million. 

What to do? Teledyne Continental Motors and its lawyers are already "investigating" the crash.  The families should consider retaining competent aviation lawyers immediately.  The families' lawyer can begin their own investigation and make sure that important evidence is preserved.  Unfortunately, the families cannot rely on the NTSB to find answers. They need to find their own.

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Special rules protect careless health care providers in California.  The rules, collectively known as MICRA, were designed to make it harder for medical malpractice victims to sue the doctors who injure them. For example,

• The medical malpractice victim must provide the defendant doctor a special notice before filing suit.
• At any trial, special rules of evidence apply that favor the doctor.
• There is a $250,000 limit on what the negligent doctor or his insurance company ever has to pay to compensate parents when the doctor causes their child's death.
• An injured party cannot recover against a negligent doctor more than the $250,000 limit for causing any sort of pain or disfigurement. 

But what do the MICRA rules have to do with helicopter crash cases?

In March 2008, a California court of appeal ruled that the medical malpractice rules apply to the claims of a someone injured in an ambulance.  In that case, called Cannister v Emergency Ambulance Service, the court ruled that a negligent ambulance company that injures a patient en route to the hospital was entitled to all the protections of MICRA, because the ambulance company was properly considered a “health care provider.” The ruling extended the umbrella of MICRA's protection from doctors to ambulance drivers, at least when those drivers are licensed as EMT’s.

An EMS air ambulance company will undoubtedly argue that Cannister -- regardless of how unfair -- applies not just to road-bound ambulances, but to air ambulances as well. The aviation lawyer must keep the MICRA rules in mind in handling EMS helicopter accidents in California, and he should be familiar with the strategies that medical malpractice lawyers use to minimize MICRA's unfair impact on his clients.  

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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 list 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.
 

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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. 

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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 fuel 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. 

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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.    

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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;
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.  

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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. The manufacturer may then issue a “service bulletin” to warn the industry of the problem and how to correct it.  For example, when it learned that its exhaust valves were failing at an unacceptably high rate, one engine manufacturer  issued a service bulletin requiring that those valves be inspected regularly (pdf) and, if necessary, repaired or replaced.  The service bulletin warns that failure to perform the inspection can result in engine failure.  Because the risk is so great, the manufacturer labeled this particular service bulletin "mandatory."

If a mechanic works on an aircraft but returns it to service without performing the "mandatory" inspection, is the mechanic responsible to those injured if the engine quits shortly thereafter due to valve failure?

You might think so.   After all, of all the manufacturer's instructions, those in the service bulletins might be the most important.   However, the regulations allow mechanics to ignore service bulletins entirely, even “mandatory” ones, and still pronounce the aircraft to be "airworthy."  That is, at least when working on aircraft operated under Part 91 of the FAA regulations—the section under which most general aviation aircraft are operated.   

The Industry Practice

When an aircraft is brought into the shop for service, many mechanics provide the owner with a written list of the service bulletins that apply to the owner's aircraft.  Unless the maintenance manuals expressly require the mechanic to comply with all service bulletins, the mechanics leave that decision to the owner. After explaining to the owner the work entailed, its cost, and its importance to flight safety, these mechanics require the owner to direct them, in writing, either to comply with the various service bulletins or to ignore them.

The mechanics keep the owner's written instructions on file.  In the event of an accident, the mechanic will argue that, although he was the one who pronounced the aircraft "airworthy," it was the owner who decided not to follow the manufacturer's recommendations.  The mechanic will argue that therefore the owner, not the mechanic, is the one responsible for the resulting injuries or death.  

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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 too slow and is about to stall (that is, quit flying), the pilot is supposed to push forward on the yoke and pitch the nose down, not pull back.  If the pilot pulls back, the nose will pitch up at exactly the wrong moment and the plane will stall. 

This is basic airmanship.  In fact, every student pilot is taught the proper stall recovery technique before he makes his first solo.  Could a professional airline captain have caused the crash by pulling back on the yoke instead of pushing forward?  Well, not only did the nose pitch up, but the aircraft's flight data recorder showed that the pilot did, in fact, pull back on the yoke just before losing control of the aircraft.

Now two prominent aviation law firms, representing different families, are taking different tacks. The first firm, the Clifford Law Firm in Chicago, has filed suit on behalf of two families, alleging that the aircraft crashed because it was inadequately equipped to deal with icing.

The second firm, Kreindler & Kreindler, representing 10 of the families of Flight 3407, says that pilot error caused the crash, not icing or any defect in the aircraft's deicing equipment.

Which is it? A defective de-icing system or pilot error? Commuter turboprops have a history of crashing due to ineffective de-icing systems, and they are most vulnerable when on approach to landing,  just as was Flight 3407. I represented the family of the pilot killed in the crash of Comair Commuter Flight 3272 near Monroe Michigan in 1997. All aboard were lost for just that reason – a defectively designed de-icing system that the FAA should never have certified.  And some of the similarities between Flight 3407 and Flight 3272 are striking. 

But, in this case, it is hard to square the information from the flight data recorder with anything other than pilot error.  Is it possible to come up with a scenario where pulling back on the yoke was anything but a very bad piloting mistake?  Yes.  Pulling back on the yoke, instead of pushing it forward, can be considered an appropriate reaction, for example, when ice overwhelms the tail of the aircraft rather than the wings.  But as explained by airline pilot and Salon columnist Patrick Smith, it is unlikely that the pilot was faced with tailplane icing.  That leaves pilot error as the most likely cause of the crash.

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The General Aviation Revitalization Act, known as “GARA,” immunizes general aviation manufacturers from lawsuits for defectively designed or manufactured aircraft that are more than 18 years old. Regardless of how serious the defect, if the aircraft is more than 18 years old, an injured victim cannot sue its manufacturer.

There are exceptions.  An injured party can sue the manufacturer regardless of the defective aircraft's age if:

• The aircraft, when first certified, seated 20 or more passengers;
• The aircraft is engaged in “scheduled” passenger operations;
• The victim was a passenger (not a crew member) in an air ambulance;
• The manufacturer misrepresented important information about the aircraft’s safety to the FAA during the aircraft certification process;
• The accident occurred as a result of a part that was replaced on the aircraft less than 18 years before the accident; or
• The victim was not an occupant of the aircraft.

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Some Flight 1549 passengers have reportedly "lawyered-up."  What legal claims do they have?  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.

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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. 

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For years, wrongdoers have tried to avoid responsibility for accidents they cause by arguing that, as long as they have complied with the applicable FAA regulations, they should be off the hook.  Aircraft manufacturers, for example, argue that because the FAA certified their aircraft design before it went into production, a passenger injured in one of their airplanes should not be able to sue for design defects. Maintenance facilities argue that they should be immune from lawsuits for maintenance errors unless the injured passenger proves that the mechanic violated one of the federal aviation's maintenance regulations.   

These arguments are called the "pre-emption defense."  The reasoning goes something like this:  If it's good enough for the FAA,  it should be good enough for the court system.  Courts shouldn't  be allowed to second guess the FAA.  A court should not require more of a defendant than do the regulations. 

Over the years, the pre-emption defense hasn't worked all that well for defendants.  After all, the FAA regulations themselves make clear that they are "minimum" standards only.  Recently, however, the pre-emption defense has gained traction with some courts.  For example, one federal appeals court recently ruled that airlines don't have to warn passengers about the risks of airline-induced Deep Vein Thrombosis, even though the airlines knew that warnings would save passengers' lives. The court's reasoning was that the FAA regulations cover what warnings an airline must give to its passengers.  The regulations require the airline to tell passengers how to unbuckle their seat belts, how to use the oxygen masks, and about placing their seat backs in the upright position before landing.   The regulations don't require the airline to tell passengers how to avoid DVT.  So, according to the courts, that's the end of the matter.  The airlines are off the hook.   

The US Supreme Court just put the brakes on the pre-emption defense with its decision in Wyeth v. Levine (pdf).  Wyeth wasn't an aviation case.  It was a drug case.  But the drug company in Wyeth made the same pre-emption argument that defendants make in aviation cases.  And the Court rejected it.  It  ruled that the defendant drug company was properly found liable for failing to warn about a drug's side effects.  The fact that the drug company's warnings complied with all the federal regulations was not a defense.

Wyeth is now the law of the land.   A careless defendant can't count on it's having met the bare minimum of the regulations as a sure-fire way to to escape responsibility for the harm it causes.   According to the Supreme Court, a defendant's compliance with the regulations will be a complete defense only where holding the defendant to a higher "due care" standard would frustrate the purpose of the regulations, or make it impossible for the defendant to comply with the regulations. 

The Supreme Court explained that one reason drug companies can be held to a higher standard than set forth in the regulations is because the Food and Drug Administration regulations were not intended to be the "final word" on drug safety.    Defendants will likely seize on this part of the Wyeth opinion to argue that Wyeth shouldn't apply in aviation cases.  They will point to some federal appeals court opinions that have ruled that  the FAA regulations, unlike the FDA regulations, were intended to "occupy the field." 

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CNN recently came up with advice on how to survive a plane crash.  Make a plan, brace yourself, know where the exits are, and so on. All good stuff.  But if you really want to increase the odds of surviving your flight, here's what you need to do: every hour, unbuckle your seatbelt, get up, and walk around for 5 minutes.  Then drink a glass of water.

The biggest threat to your health and safety on board a long-haul flight is not a crash.  It's something called "Deep Vein Thrombosis."  In plain english -- blood clots.  The clots are relatively harmless if they stay in your legs where they first develop.  But if they break off and move through your system, they can cause fatal pulmonary embolisms, strokes, or heart attacks. Walking around during your flight and staying hydrated are among the best ways to keep clots from forming.

The risk of death from blood clots dwarfs all other aviation-related risks. An airline traveler is 100 times more likely to die from an airline-induced blood clot, for example, than from all causes related to bad weather, pilot error, mechanical failure, and terrorism combined.  Airhealth.org estimates that up to 100,000 people die each year as a result of airline induced DVT.  On the other hand, less than 1000 die each year from airliners going down. 

The airlines have been aware of the risks of blood clots since the 70's. Nonetheless, the airlines have done little to spread the word. In fact, they've kind of kept the risks under wraps.  We don't expect that to change, since the courts have ruled repeatedly that the airlines have no legal obligation to warn their passengers about the risks of DVT and what can be done to avoid them. 

What factors contribute to formation of blood clots? Stasis -- the pooling of blood in the legs from prolonged sitting; decreased blood oxygen levels resulting from the cabin environment, bruising of deep vein in the back of the leg from prolonged term sitting (no, you can't feel it happening) , and dehydration that results from the dry cabin air.

Walking around every hour or so and remaining hydrated are good strategies for avoiding Deep Vein Thrombosis and staying safe. 

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