Family Sues ICON for Fatal A5 Crash

ICON Aircraft hired away from Ford Motor Company a superstar PhD to lead its engineering department.  When Cagri Sever showed up at ICON's facility in Vacaville, the first thing ICON did was send him off on a "demonstration" flight with the company's chief pilot, Jon Karkow. Karkow flew to Lake Berryessa, a virtual stone's throw from the ICON factory.  Once there, Karkow couldn't resist the urge to engage is some low level maneuvering over the water.  Minutes after takeoff, Karkow crashed onto the shore, leaving both of them dead.

There are less than two dozen ICON A5 aircraft flying.  Yet, there have already been two fatal crashes, the second one taking the life of baseball player Roy Halladay.  Both crashes involved hot-dogging.

Critics of the A5 -- which some refer to as "a jet-ski with wings" -- questioned from the outset whether it was such a good idea. The A5 is all about the fun and excitement of flying close to the water.  But low level maneuvering is dangerous business and, as any fighter pilot will tell you, it's even more so when conducted over water.  Does it really make sense to market a machine built for this purpose to the general public?

ICON has already conceded that Karkow was to blame.  And the National Transportation Safety Board agrees, having determined that the crash was the result of the pilot's "failure to maintain clearance from terrain while maneuvering at a low altitude"-- NTSB code for "hot-dogging."

Along with our co-counsel Nelson & Fraenkel,  we've filed a wrongful death lawsuit against ICON on behalf of Sever's wife and two children. 

The general rule is that a family cannot sue an employer for a loved one's work-related death.  Such suits are generally barred by Workers Compensation laws.  But this situation is unusual.  The ICON A5 is a seaplane and it crashed along the shores of Lake Berryessa, which is considered "navigable waters."  Thus, the federal laws of admiralty apply.  Those laws, which would hold ICON accountable for the actions of its chief pilot, trump state workers compensation law.

Sever v. ICON Aircraft by Mike Danko on Scribd

New Icon A5 Purchase Contract Will Require Buyers to Sign Away Their Rights to Sue

In the face of intense market rejection, Icon says it has heard its customers and is going to revise the rather onerous purchase contract it planned to require of its buyers.  It hasn’t yet made the new contract public.  But in a statement it says that one thing the new contract will keep is the requirement that anyone buying an A5 sign away their rights to sue Icon after an accident.

Another fundamental tenet of ICON’s approach to safe flight operations, personal pilot responsibility, and product liability-cost reduction is the agreement not to sue ICON for accidents that are not determined to be our fault. Unfortunately, the overwhelming majority of product liability lawsuits are filed against manufacturers even when the manufacturer was not found to be at fault. We must address this. While there is no silver bullet for guaranteeing safety and eliminating all product liability costs, we are working hard to improve it. This is one of those steps. We invite our customers to help us set a new precedent in our industry and to improve this situation by releasing ICON from accidents deemed not to be our fault by the NTSB. Reducing product liability costs is important because it reduces the cost of aircraft and allows manufacturers to spend that money on product development instead of legal fees and lawsuit settlements.  

At first blush, all that sounds reasonable.  Why should an A5 buyer be able to sue Icon after a crash if the NTSB places the blame for an accident elsewhere? 

Well, for one thing, the NTSB is not a fair forum.  After any accident, the NTSB “invites” the aircraft’s manufacturer to participate in the investigation, relying on the manufacturer and its experts to help pinpoint the accident’s cause.  But the NTSB never allows the pilot or the pilot’s passengers to participate, nor does the NTSB allow experts hired by the pilot or the passengers anywhere near the investigation.  The pilot and passengers are entirely excluded. If that sounds like a conflict of interest, it is It’s no wonder the NTSB seldom finds the manufacturers at fault.  Nor is it surprising that courts of law, after hearing from both sides, frequently come to conclusions different than those reached by the NTSB.

And in fact, it is because the NTSB’s investigations are so one sided that NTSB’s conclusions are entirely inadmissible in any court of law anywhere in the country. 

Looks like Icon’s new contract will be as unfair as the one the market rejected back in April.  It’s hard to believe that any buyer who has done his homework would sign it. 

Related post:

April 1, 2016  Icon Aircraft A5 Purchase Agreement: Who would sign this thing? 

Icon Aircraft A5 Purchase Agreement: Who would sign this thing?

As AOPA is pointing out, Icon’s 41-page purchase agreement for its long-awaited A5 is, well, “unusual.” 

Perhaps what is most troubling is its language that seeks to allow Icon to dodge liability for any accident, regardless of its cause.

Founder and CEO Kirk Hawkins told AOPA that Icon believes in "extreme responsibility."

What we’re trying to do, in a nutshell fundamentally, is put the responsibility [for accidents] where it belongs. . . If it’s our fault, we’ll own it.  If it’s your fault, you own it.”

Seems fair enough, except that’s not what the agreement says.  It says that if the accident is Icon’s fault because, for example, Icon screwed up the design or manufacture of the buyer's aircraft, the buyer and his family owns it, not Icon:

Owner and Managing Pilot understand that participating in ground, water and air operations and related activities could result in injuries from a variety of factors, including but not limited to . .  . defects in the aircraft or components. . .   Owner and Managing Pilot knowingly assume these risks on behalf of themselves and their Successors in Interest.

If Icon would like buyers or pilots to "knowingly" assume the risks of defects in its aircraft, maybe it should come out and tell us what those defects are. 

This is not about "extreme responsibility"  It's about extreme irresponsibility. Icon is trying to dodge liability for any defects resulting from  its own actions and shift it onto others. 

Who would buy an aircraft from a manufacturer who wants it in writing that if we made a mistake that injures someone, its your fault?