Montreal Convention Does Not Apply To Crew Members

The Montreal Convention requires airlines to compensate international travelers who are injured as a result of an “accident.”  If the passenger is killed, the Montreal Convention requires the airline to compensate the family members. But the Convention considers neither an airliner's pilots nor its flight attendants to be “passengers.”  Thus, crew members' claims (or the claims of their familiesCrew Cap in the event of a fatal accident), are usually governed by by local law, not the Convention. In the US, that means that any lawsuit the crew member might bring against the airline would likely be barred by the applicable workers compensation statutes, which typically prevent any employee from suing his or her employer for work-related injuries.

Of course, crew members or their families are free to pursue claims against those other than the airline who might be responsible for an accident. Often that’s an aviation manufacturer. But unlike passengers, crew members generally cannot sue the airline.

There is one exception. A crew member may be considered a “passenger” if she was “deadheading.” That is, if the crew member was off-duty, but the airline had her on the aircraft simply to transport her from Point A to Point B, then the Convention would apply to her claims.

Legal System Treats Passengers Differently From Crew

When an EMS helicopter goes down, our legal system treats the family members of theTerry and VictorTacoronte passengers lost in the accident quite a bit differently from the families of the crew.  For example, while the family members of the passenger may perhaps get their day in court, the claims of the crew members' families are usually precluded by workers' compensation law.

We've talked about that before hereChristine Negroni, writing about a recent EMS helicopter crash in Kansas City, points out a case where that scenario seems to be playing out now.  The crash killed 58-year old Terry Tacoronte, who was a patient, along with the pilot, the flight paramedic, and the flight nurse. Due to workers' compensaton laws, it's likely that only Taraconte's widower will be permitted to press a lawsuit.

The law seems unfair to crew members.  But as Negroni writes, perhaps by pressing his case, the passenger's widower will make the industry safer for crew members going forward.

Tesla Crash Case: Why Wasn't Tesla Sued?

That's the question I'm asked most often about the case filed by the family of the passenger lost in the Tesla plane crash

The reason TTeslaesla wasn't sued is simple.  Neither a passenger nor his family is allowed to sue an employer for a work-related injury or death.  Instead, they are stuck with the meager workers' compensation benefits available to them.  Even if the death was caused by the employer's negligence, the family can't bring the employer into court.

But as I told the New York Times when they called today, it gets worse.  The family isn't allowed to sue the co-employee either.  Or, for that matter, the co-employee's estate. 

There are very few exceptions to the workers' compensation rule prohibiting an injured employee from suing a co-employee.  I've discussed those before here.  None of the exceptions seem to apply in this case.  Pilot error or not (and that's debatable at this point), you can bet that the pilot's estate will be asking very early on to have the case against it thrown out.

Compensating the Families of the Mountain Lifeflight EMS Helicopter Crash at Doyle, California

Who can be held responsible for compensating the Mountain Lifeflight families, and who is immune from suit?   

Maintenance.  If faulty maintenance is proven to be the cause of this helicopter crash, the families can recover against the maintenance company, provided that the families can prove that the maintenance company was negligent.  There is an important exception, however.  The families cannot sue the company that performed the maintenance if that company was Mountain Lifeflight itself.  That's because the worker's compensation laws immunize a crew member's employer from suit brought by the crew member's family.  More on that here.

Pilot error.  There is no reason to believe that the crash was caused by pilot error.  To the contrary, as discussed here, it looks as though the crash was likely caused by a mechanical failure.  However, assuming for argument's sake that the crash was caused by pilot error, the workers' compensation laws prohibit the families from suing either the pilot's estate or the pilot's employer.

Design defect.  Other A-Star accidents similar to this one raise the question of whether the crash was caused by the helicopter's faulty design.  The families are entitled to sue the aircraft's manufacturer, Eurocopter, and get to the bottom of the design defect issue.  If the families prove that the crash was in fact caused by a defect in the design of the helicopter, then they can hold Eurocopter responsible.

But there is one hurdle the families must overcome before winning a design defect suit.  The accident helicopter, N5793P, was manufactured in 1982.  The General Aviation Revitalization Act, or GARA, immunizes manufacturers from liability from lawsuits arising from aircraft that are older than 18 years.  At first blush, it would seem that the families have no recourse against the manufacturer at all.  But there is an important exception to GARA.   If the accident occurred as a result of a new part that was installed on the aircraft less than 18 years before the accident, the manufacturer can't assert the defense, no matter how old the aircraft.  And it has been reported that N5793P had been completely rebuilt only a few years before the crash.  Therefore, even though the helicopter was manufactured more than 27 years ago, it's likely that most critical parts on the aircraft were less than 18 years old, and that GARA won't protect the manufacturer.

Workers' Compensation as the Exclusive Remedy for an Injured Crew Member or Pilot

Generally, crew members may not sue their employers for injuries sustained on the job. Even where the crew member's injury was caused by the negligence  of the employer or one of the crew member's co-employees, the crew member's sole remedy against his employer is to pursue a workers' compensation case. This is known as the "exclusive remedy rule."  The trouble with the exclusive remedy rule is that worker's compensation benefits are limited and are seldom adequate to compensate a crew member or the crew member's family for the injuries suffered in an aviation accident.  

Fortunately, the exclusive remedy rule does not prevent a crew member from suing third parties who caused or contributed to the injury.  Therefore, a crew member injured in an aviation accident may sue the aircraft manufacturer if the accident was caused by a defect in the design or manufacture of the aircraft.  Similarly, where the accident was caused by the negligence of a mechanic who worked on the aircraft, the crew member may sue the mechanic provided, of course, that the mechanic was not one of the crew member's co-employees. 

There are few exceptions to the "exclusive remedy" rule.  For example, a crew member can sue the employer who caused his injuries where:

  • The employer didn't maintain workers compensation insurance;
  • The injury was the result of certain types of intentional wrongdoing on the employer's part; or
  • The crew member was injured by a product or part that the employer manufactured.

The "exclusive remedy" rule also prevents the crew member from suing any co-worker who caused the accident.  Again, there are a few exceptions for unusual situations. For example, a crew member may sue his co-worker where the co-worker’s actions were malicious and with an intent to cause injury, or when the co-worker was intoxicated.