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

A crew member injured by an aircraft's defective design may sue to hold the aircraft manufacturer accountable.  At least he can when the aircraft involved in the accident was a civilian aircraft. If, however, the airplane or helicopter was a military aircraft, then the rules change.

A manufacturer who built an aircraft specifically for the military may be able to avoid liability to those injured by the aircraft's design by asserting the "government contractor defense."  That defense provides the manufacturer complete immunity from lawsuits. But the Supreme Court ruled in Boyle v.United Technologies that a manufacturer can take advantage of that defense only if it can prove all of the following things:

1. That the US government specifically required or approved the design feature that caused the accident or injury; 
2. That what the manufacturer built conformed to the specifications that the government approved, and
3. That the manufacturer warned the government about any dangers in the design that the manufacturer knew about and that the government didn't.

If the manufacturer fails to prove all three of these things, then it may be sued just as a manufacturer of a civilian aircraft, and an injured crewmember is entitled to hold it accountable for any injuries the aircraft's design caused him.  

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During the Vietnam war, hundreds of soldiers suffered serious burn injuries following otherwise survivable Huey helicopter crashes.  In 1970, Bell Helicopter responded by developing a crashworthy fuel system and installing it in the new Hueys it produced.  The crashworthy system included stronger fuel cells, breakaway fuel lines, and cutoff valves.  

The Army kept track of the effectiveness of the new fuel system.  Over the next 39 months, 895 helicopters without the new system crashed.  Post impact fires resulted in 52 burn fatalities and 31 burn injuries.  Over the same time period, 702 helicopters with the new crashworthy fuel system went down.  Remarkably, there was not a single thermal injury or death in any of those crashes.  That was enough to convince the Army.  After that, it required all its helicopters to be manufactured with the crashworthy fuel system.   

Today, no one should be burned in an otherwise survivable helicopter accident.  The technology has long existed to almost completely eliminate post-crash helicopter fires. But while the risk has been virtually eliminated in military helicopter operations, post crash fires are still the single biggest hazard to survivors of civilian helicopter crashes. (pdf) That's because some civilian helicopter manufacturers have resisted incorporating crashworthy fuel systems into their designs.    

Helicopter manufacturers know that some of the aircraft they manufacturer will inevitably be involved in accidents.  They must take steps to make their civilian helicopters reasonably safe in the event of an accident, just as they do when building helicopters for the military.  If someone is burned in a civilian helicopter crash, then the aircraft's design may well be proven to be defective, and the manufacturer held accountable for the injuries its design has caused. 

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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.

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