When the Defective Part is Made of Paper: Aircraft Manuals and GARA

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

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

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

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

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

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

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

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

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

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

GARA Covers an Increasing Percentage of the General Aviation Fleet

The General Aviation Revitalization Act immunizes aircraft manufacturers from liability for defects in their products once those products turn 18 years old.  GARA was enAge of General Aviation Fleetacted in 1994.  Back then, more than half the general aviation fleet was older than 18 years. 

In other words, in 1994, the manufacturers were allowed to "walk away" from the majority of the fleet they had produced, as well as any defects that they had built into them. But once relieved of that financial responsibility, the manufacturers were supposed to spring into action and start cranking out new aircraft at more affordable prices. 

True, anyone injured by a defect in an older aircraft would be left without a legal remedy against the manufacturer that caused the injury.  But GARA proponents argued that the flood of new piston aircraft would lead to the older aircraft being removed from service.  In short order, GARA proponents argued, the average age of the aircraft in the fleet would drop and manufacturers would 

once again be standing behind the majority of their fleet.

Of course, the flood of new, more affordable piston aircraft never materialized. Instead, manufacturers moved towards producing low volume -- but highly profitable -- jet aircraft.  Even now, they turn out only a trickle of new piston aircraft each year.  But it's the piston aircraft that carry the vast majority of general aviation passengers. With no affordable replacements, the older piston aircraft continue in service.  That means that each year the average age of the aircraft in the general aviation fleet increases.  The way things are going, by 2025 the average age will reach 50 years.

How does the aging fleet affect the rights of those injured by defective aviation products?  Adversely, of course.  Each year a greater percentage of the general aviation fleet earns GARA "protection," allowing manufacturers to avoid responsibility for any injuries their defective products may have caused.  And, according to Helland and Tabarrok (pdf) --  two economists at the forefront of the tort reform movement -- it appears that the trend will only continue.

Not exactly what we bargained for. 

Defective Carburetor Results in Jury Verdict Against Avco Lycoming

A Philadelphia jury has determined that a defective carburetor caused the 1999 crash of single-engine aircraft that killed four and injured one. The aircraft, a Piper Cherokee Six, was manufactured in 1968. The jury’s verdict included $25 million for compensatory damages and $64Piper Cherokee Six - PA32 million as punitive damages against the engine manufacturer Avco Lycoming, a division of Textron.

Since the Aircraft was Older than 18 Years, Why Didn’t the General Aviation Revitalization Act Protect Lycoming from Liability?

There are a number of exceptions to the General Aviation Revitalization Act (known as GARA). In particular, GARA doesn’t apply when the manufacturer, in obtaining FAA certification of its part, conceals from the FAA information about defects in the part's design. The jury in this case determined that Lycoming did just that. Thus, GARA was no defense.

The NTSB Determined the Cause of the Crash was Pilot Error. Its Report Didn’t Say Anything About a Defective Carburetor. Why Wasn’t the Jury Bound by the NTSB’s Findings?

The NTSB’s accident reports almost always favor the manufacturers. That’s because the NTSB relies on the manufacturer for help in determining the cause of the crash it is investigating. The NTSB calls this method of investigation the “party system.” 

Of course, asking the manufacturer for help in figuring out if thPrecision Carburetorere was a defect in its engine is much like asking the fox for help in determining what happened to the chickens. There’s a built-in conflict of interest. The NTSB is aware of the conflict, but continues using the party system anyway.

Here, after consulting with Lycoming’s experts, the NTSB decided not even to examine the carburetor. Since the NTSB never tore down this critical component, it’s no surprise that the NTSB did not discover any problems with it.

Fortunately for the victims’ families, the NTSB’s conclusions are by regulation inadmissible in court.

Why Did the Jury Award Punitive Damages?

A jury cannot award punitive damages simply because the defendant was negligent, or just

because the design of a defendant’s product was proven defective. Rather, the defendant’s conduct must evidence a “conscious disregard of the safety of others.”

Here, the jury determined that Lycoming willfully concealed from the FAA information concerning possible defects in its carburetor – even though it knew that any such defects could cause unnecessary injury or death. That fact alone demonstrates that Lycoming acted in conscious disregard of the safety of others, and justifies a punitive damages award.

The punitive damages in this case amounted to about 10 percent of Avco Lycoming’s net worth. The jury determined that that sum was sufficient to dissuade Lycoming from hiding from the FAA its knowledge of defective parts in the future. In other words, it was an amount calculated to take the profit out of Lycoming’s wrongdoing.

Why Didn't Lycoming Just Settle Instead of Going to Trial?

Good question.  Lycoming's best settlement offer was $75,000 to be split among all the plaintiffs.  In other words, Lycoming offered plaintiffs virtually nothing.  It was Lycoming, not the plaintiffs, who forced the matter to trial.

What other Factors were at Play?

According to the report of the plaintiffs’ attorney, the court had ordered Lycoming to turn over to plaintiffs all relevant documents about the carburetor before trial. Lycoming, however, intentionally withheld certain documents without telling plaintiffs that they existed. Lycoming’s litigation strategy – if it can be called that – backfired when the plaintiff’s attorney obtained the documents from another source and then proved during trial that Lycoming was hiding evidence.

Is this Verdict Unprecedented?

The plaintiffs’ attorneys did a wonderful job overcoming many obstacles that the manufacturer placed in their path over the last 9 years or so.  And punitive damages awards are rare indeed.

But while the verdict in this case is out of the ordinary, the story underlying the verdict is not:

  • Aviation manufacturers have a history of concealing defects in the design of their products.
  • After an accident, manufacturers frequently convince the NTSB to look no further than the pilot, or perhaps a mechanic, as the cause of the crash. Just as Lycoming did here, they often convince the NTSB that there is no need to dig into their engine before completing its report.
  • When the defect is discovered by experts hired by the victims' families, the manufacturers adopt a “defend at all costs” mentality.  Just as did Lycoming, manufacturers generally refuse to accept any responsibility for the harm they have caused unless and until a jury requires them to. 

Another example involving a more recent crash and a Teledyne Continental Motors engine is discussed here and here.

Related Material: The plaintiff attorney’s account of the verdict. 

Manufacturer of Lancair IV-P Engine Not Immune From Suit for Jogger's Death

The NTSB has released its preliminary report of the off-airport landing of Lancair IV-P N9JE at Hilton Head.  The accident killed a jogger but left the plane’s two occupants uninjured. According to the preliminary report

Further examination of the airplane revealed that the propeller assembly separated from the crankshaft flange and was missing.

In other words, the crankshaft failed.

One wouldn’t expect a crankshaft to break absent some sort of defect. If that proves to be the case, could the manufacturer of the crankshaft be held liable to the jogger’s family?

The aircraft was built from a kit and was thus "experimental." The engine, however, was not. Rather, according to FAA records, it appears that the engine was an FAA-certified, turbocharged piston engine manufactured by Teledyne Continental Motors, a company that has had its share of lawsuits related to its engines coming apart in flightTeledyne TSIO-550-C

The General Aviation Revitalization Act, or GARA, protects aircraft engine manufacturers from liability for defective engine parts older than 18 years.

We don’t know how old the engine was in this case.  However, the Lancair builder had reportedly taken the engine from a Piper Malibu.  Piper stopped using the Teledyne Continental TSIO-520 engine in its Malibus due to reliability problems. In 1988, it switched and began installing Avco Lycoming engines instead. Thus, if it turns out that the engine was an original equipment Malibu engine, then it had to be at least 20 years old -- 2 years beyond GARA's age limit.

So is Teledyne Continental Motors off the hook, regardless of whether the jogger's family can prove that the engine was defective

No.

There is one important but little-known exception to GARA.  Regardless of the defective part's age, GARA doesn’t protect its manufacturer from lawsuits brought by the families of those killed on the ground.  

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.

Lawyer-Pilots Bar Association Conference 2009

Mackinac Island, Michigan, located in Lake Huron, is 8.2 miles around. The only way onto the island is by boat or, better yet, general aviation aircraft. No motorized vehicles are allowed on the island.  Everyone gets around by horse-drawn carriage or bicycle.  It was a great venue for the Lawyer-Pilots Bar Association’s 50th Anniversary Meeting on July 8-12.

Some conference highlights--

National Transportation Safety Board.

The NRobert Zumwalt - NTSB Board Memberational Transportation Safety Board has hundreds of employees. The Board, itself, however, consists of only 5 members. One of the members is Robert Zumwalt.   Zumwalt, who serves as the Board's vice chair, spoke to the group and gave us some useful insight into the Board’s inner workings.

Vice chairman Zumwalt also shared lessons he has learned from his work. One is that many accidents seem to follow from a “Normalization of Deviance.” Overly "relaxed" crew members begin to accept small deviations from Standard Operating Procedures as no big deal.  The deviations become the new norm.  That leads to trouble. In fact, Zumwalt says that crews who intentionally deviate from Standard Operating Procedures are about 3 times as likely to commit additional "errors of consequence."  

Jury Verdicts.

According to Insurance industry representatives: The unpredictability in jury verdicts confuses and discourages aviation business owners. Victims should not be allowed to sue unless the defendant violated a federal aviation regulation. If there is no violation, the lawsuit should be “pre-empted.” (I've discussed pre-emption previously here.) Business owners would then know exactly how to avoid liability: simply comply with the FAA regulations.

According to Plaintiffs lawyers: 95% of aviation lawsuits settle out of court because both sides agree what the likely jury verdict will be. It is only when the two sides, represented by experienced aviation lawyers, disagree on what the jury verdict will be that cases end up being tried.  By definition, then, the only cases that reach the jury are the “unpredictable” ones. Pre-emption is a bad idea because the regulations are minimum safety standards only. The regulations set the bar too low. Those involved in aviation should be held to a higher standard than the bare letter of the law. The flying public expects more when it comes to their safety.

Criminalization of Aviation Negligence

A growing trend to “criminalize” aviation negligence only hurts aviation safety. If, for example, an aviation mechanic has to worry about criminal prosecution, he will not speak with the NTSB after an accident. When the FBI gets involved, investigations tend only to grind to a halt. The best chance of finding out an accident's cause is through the civil process, not the criminal process. Both the insurance industry and the plaintiffs lawyers seem to agree on this one: criminalizing aviation negligence hinders, rather than promotes, aviation safety. (I’ve written before about criminalization of negligence here.)

Biggest Change in Aviation Law in Past 50 Years?

Possibly the General Aviation Revitalization Act, or GARA.  GARA, discussed here, bars suits against aviation manufacturers for defective products that are more than 18 years old. It has cut down on litigation tremendously, but has left many of those injured by a defective aviation product without any means of obtaining compensation from those responsible.

The trip here from the San Francisco Bay Area took about 10 hours in the Cirrus. The trip home should be a bit longer. Thanks to LPBA President Susan Hofer for overseeing a great conference.

 

Manufacturers' Immunity from Product Defect Suits under GARA

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.