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

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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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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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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Two years ago, a Garuda Airlines 737 pilot botched a landing at Indonesia's Yogyakarta airport.  The plane crashed and 21 people were killed.  Many more were injured.

Indonesia's legal system focuses more on punishing the careless than on compensating the victims.  So, yesterday, the pilot was found "guilty of negligence" and sentenced to two years in prison.

While criminalizing negligence might seem like the "right" thing to do, it just doesn’t work to improve safety.  Indonesia's abysmal safety record is proof.

The US legal system does not send careless pilots to jail. Instead, it requires the careless pilot's employer to compensate the victims. The US system gives the airlines a monetary incentive to control the performance of their crews by training, evaluating and then retraining as necessary.  And that is one reason why we have the safest airlines in the world.

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