A courageous client speaks to Stephen Stock about the risks to the flying public.
A courageous client speaks to Stephen Stock about the risks to the flying public.
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 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.
The 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 represent 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.
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.
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.
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:
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.
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?
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.
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.
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.