Record Jury Award Against Airplane Mechanic Faride Khalaf

Dr. Ken Gottlieb’s Cessna 182 took off from Napa Airport with only Dr. Gottlieb aboard. As the Cessna climbed from the runway, it turned in the wrong direction. It collided with high terrain just north of the airport. Dr. Gottlieb was killed on impact. His body was ejected and the aircraft exploded and burned.

The NTSB ruled the crash was caused by pilot error, finding that Gottlieb encountered poor weather, became confused, and failed to follow the correct instrument departure procedure.Dr. Ken Gottlieb

The family asked us to investigate. We learned that Gottlieb’s instructor had flown with Gottlieb a few days before the crash. The instructor found Gottlieb (pictured right) to be well-versed in the Napa departure procedure and otherwise meticulous in his flying. The instructor felt it unlikely that Gottlieb would become confused and turn in the wrong direction. As far as the instructor was concerned, whatever caused the crash was “out of Ken’s control.”

Faride Khalaf (pictured below) was the plane's mechanic.  We learned that Khalaf began working on general aviation aircraft only after he was fired from United Airlines. We uncovered evidence that Khalaf had performed maintenance on Gottlieb's aircraft without properly recording the work in the aircraft’s logs. In fact, Khalaf performed undocumented repairs on the pilot’s seat just a few weeks before the crash.

We examined what little remained of the wreckage and found two things that were unusual. First, we saw evidence that, at the moment of impact, the pilot seat was in the full aft position. Second, the pilot’s seat belt was unbuckled.

Based on their forensic work, our experts testified that as Gottlieb climbed away from the runway, his seat suddenly and unexpectedly slid to its full aft position and jammed. Gottlieb’s hands and feet could not reach the aircraft’s controls and the aircraft flew off course, out of control. Gottlieb unbuckled his seat belt so that he could scoot on his knees up to the aircraft’s control wheel.  But before Dr. Gottlieb could regain control of the aircraft, it crashed into the hillside.

Faride KhalafThe pilot seat slid back and jammed because Khalaf’s undocumented work was improperly performed.  He charged the aircraft owners for new seat parts, but did not install them. Instead, he illegally jury-rigged the existing seat release mechanism. The faulty repair held up for a while, but failed just as Gottlieb took off, causing the seat to slide back and jam in place.

Making matters worse, we found emails from Khalaf on Gottlieb’s hard drive. Gottlieb had asked Khalaf to perform an annual inspection of the aircraft just days before the crash.   Khalaf's emails confirmed that he had in fact "finished with the annual" and that the plane was "good to go."  Based on Khalaf's confirmation that the plane was safe to fly, Gottlieb departed on his flight from Napa. But, in fact, Khalaf never inspected the plane at all. All he did was change the oil, to make it appear as though he had serviced the aircraft when in fact he had not.  Had Khalaf performed the inspection, he might have learned that his previous improper repairs were about to fail.  

Earlier this afternoon, the jury entered its verdict against Khalaf for $13,360,000. The verdict is believed to be a record amount in California for the death of someone over age 65.

Khalaf's attorney quit the case one year before the trial was set to begin. Khalaf elected to representCessna 182 N23750 himself during the 7 day trial. Adbi Anvari of Air West Aircraft Engines testified as Khalaf's expert.  Khalaf called Dr. John Kane to testify about medical issues that Khalaf contended afflicted the pilot, but the judge ruled the doctor to be unqualified and refused to allow him to take the stand.

Dr. Gottlieb was a prominent San Francisco forensic psychiatrist.  He left his wife Gale, daughter Tamar, and son, Mike who is a lawyer and special assistant to President Obama.

Before trial, Gottlieb's family offered to drop the suit entirely if Khalaf agreed to surrender his mechanic’s license. Khalaf refused.  That means despite the verdict, Khalaf is still legally entitled to work on aircraft and return them to service.

 

 

Khalaf Verdict

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.

NTSB Faults Aircraft Owner for Running Engine Past TBO

Aircraft engine manufacturers recommend that owners overhaul their engines when the engines have accumulated a set number of flight hours. Depending on the make and model, the "Time Between Overhaul" ranges from 1200 to 2400 hours. No regulation requires the general aviation aircraft owner to comply with the manufacturer's recommended TBO. As far as the FAA isTeledyne Continental Engine concerned, the owner is free to operate the engine indefinitely, as long as a certified mechanic has signed off the engine as airworthy within the preceding 12 months. And given recent advances in engine diagnostic equipment, more and more owners are feeling comfortable "busting" TBO.

I wrote about the practice years ago, in a post entitled "Running Past TBO: Smart Economics or Owner Negligence?" The NTSB recently came down on the side of "owner negligence," at least in the case of a Cirrus engine that was operated past Teledyne Continental's recommended 2000 hour TBO.

The National Transportation Safety Board determines the probable cause(s) of this accident to be: The inadequate servicing and maintenance of the engine and the airplane owner and maintenance personnel's disregard of the manufacturer's recommended engine overhaul schedule and service bulletins, which resulted in an in-flight internal failure and seizure of the engine.

In that case, the engine failed at 2978 hours.  The NTSB also faulted the pilot for flying the aircraft with only 5 quarts of oil on board, instead of 6 quarts as recommended by the manufacturer.

Fortunately, no one was hurt. But an owner should think twice about running past TBO, regardless of whether an FAA-certified mechanic has pronounced the engine airworthy.

 

Limited Liability Companies May Protect Aircraft Owners

It’s not uncommon for three or four pilots to share ownership of an aircraft. For years, owning an aircraft as “partners” was the norm. That form of ownership, however, carries with it some liability considerations.

  • “Partners” can generally be held individually liable for one another’s debts, including debts arising from one another’s negligence. In other words, if one partner ’s piloting mistake kills or injures a passenger, the other partners may in some cases be held accountable to the victim or the victim’s family.
  • Aircraft owners are responsible for maintaining their aircraft properly. If one of the partnership’s maintenance decisions – such as an ill-considered decision to run past TBO – leads to an accident, each partner could be held responsible for that as well.
  • Even assuming the partnership made all the right maintenance decisions, the partnership may still be held responsible for the negligence of the mechanic. More on that here. If the partnership is liable, each of the individual partners may be liable as well.

Many pilots seeking to share an airplane now form a limited liability company. They arrange it so that the company, and not the individual pilots, own the aircraft. The pilots own shares in the company only. Because the pilots do not themselves own the aircraft, they avoid some of the liability that comes with aircraft ownership generally and with the partnership relationship in particular.

But here’s where people often get confused: no form of ownership allows the pilot who is flying the aircraft to avoid responsibility for his own negligence. If a pilot error kills or injures someone, that pilot may be held accountable to the victim or his family regardless of whether the aircraft is owned by his partnership or by his limited liability company.

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.

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

within the previous twelve months certified that the engine is airworthy, then the owner is, from a regulatory standpoint, free to operate the engine as many hours as he wishes.

But if an owner does operate past TBO, and the engine fails, and a passenger is hurt as a result, could the owner be held accountable despite the fact he was in compliance with all FAA regulations?

You bet.

An owner can be held accountable for an accident after TBO if a judge or jury decides that:

1.  in not complying with the manufacturer's overhaul recommendations, the owner was negligent (not "reasonably careful" under the circumstances) and

2.  the negligence was a cause of the accident. 

The FAA regulations are minimum standards only.  Many would argue that more can and should be expected of a reasonably careful owner or operator.  If a judge or jury agrees, then the operator would be held responsible for the harm resulting from running the engine past TBO, even though the regulations allowed him to.


How would the aviation attorney representing the injured passenger establish the owner's liability?  Through expert testimony.  Let's say that at 100 hours past TBO an exhaust valve failed, the engine lost power, and an accident resulted.  It wouldn't be difficult to establish a causal link between the owner's decision to run the engine past TBO and the engine failure. 

Q: Mr. Metallurgist, did you find any defect in the exhaust valve?


A: No, it was manufactured properly and was a fine example of an exhaust valve in all respects.


Q: Then why did it fail?


A: It failed in fatigue. It took all the vibration, bending, and heat that it could and then it finally quit.


Q: Would it have broken if the owner had not continued to run the engine past the manufacturer's 2000 hour overhaul interval?


A: No, sir, it would not have broken had the owner followed the manufacturer's recommendation.


Q: How do you know that?


A: Well, for one thing, it completed the manufacturer's service interval without breaking. It broke only when the owner asked more of it than the manufacturer recommended. Certainly, had the engine been overhauled at 2000 hours and a new valve installed, one would not expect it to have failed in fatigue 100 hours later. Rather, one would have expected the valve to continue in service well beyond that.


The injured passenger's attorney would next call to the stand the owner of an FBO (aircraft rental agency).  The FBO owner would testify that he never runs engines beyond TBO because he doesn't assume that he is smarter than the manufacturer.  He would testify that some things, like whether internal parts are worn beyond safe limits, cannot be determined without tearing down the engine. The witness might then suggest that the costs saved by running an engine beyond TBO are marginal and just aren't worth the risk to human life. 

With the testimony of those two witnesses, a judge or jury could well decide that the owner was negligent in operating his engine past TBO and that the negligence caused the passenger's injuries.

Some proponents of running an aircraft engine beyond TBO downplay the risks.  They argue that the manufacturer's TBO is a "made up" number, and few engine failures have actually been attributed to the owner's decision to run past it.  One prominent aviation maintenance expert even suggests that there have been no cases where running past TBO resulted in an owner being held responsible for a passenger's resulting injuries.

Not so.  

There may be good economic reasons to run an engine past TBO.  But an owner who does so should expect to be held responsible if an accident results. 

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? 

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.

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.  GA MechanicThe 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.