Super Lawyers Magazine recently profiled our aviation accident practice in its Northern California 2026 edition, covering some of the cases that have shaped how we approach aviation litigation — including work following the crashes of TWA Flight 800, American Airlines Flight 587, and the Concorde disaster in Paris, as well as the ongoing role that flying itself plays in preparing for these cases.
You can read the full piece here: Airplane Mode
The SW-51’s operating manuals are clear that you shouldn’t take off unless the engine is developing takeoff power, that you need to check the gauges to make sure that the engine is operating properly, and that for takeoff power the gauges need to show about 50 inches of manifold pressure.
Canard Aero’s lawsuit against TacAero and Kevin Sutterfield claims that Sutterfield crashed because he attempted takeoff even though the gauges showed that the engine wasn’t producing anything near takeoff power, and that he pulled the aircraft off the runway well below the POH’s lift-off speed of 65 knots.
Why would Suttefield do such a thing? Why would he attempt to takeoff when the operating handbook says not to?
Sutterfield’s answer to Canard Aero’s lawsuit provides a clue. Sutterfield’s filing (below) states that he lacks “sufficient information or belief” — legalese for he “doesn’t know”—that:
Of course, not knowing the contents of the aircraft’s manuals is no excuse. Every pilot is legally required to know what is in the aircraft’s manuals. After all, FAR 91.103 mandates that each pilot in command familiarize himself with “all available information concerning the flight” before launching.
But Sutterfield claims he “lacks information or belief” even of that regulation!
Time for some remedial training?
TacAero — the Fredericksburg, Texas taildragger operation now controlled by Kevin “Showtime” Sutterfield — has been sued for the crash of an experimental scale P-51 aircraft. Sutterfield himself was at the controls on the aircraft’s maiden flight when he crashed within sight of TacAero’s hangar at T82.
Background: What TacAero Does
TacAero specializes in taildragger instruction and in the operation and maintenance of Rotax-powered aircraft. TacAero also claims expertise in experimental amateur-built (EAB) aircraft — specifically, the kind of high-performance, kit-built machines that come out of Europe. In fact, TacAero has an entire division devoted to reassembling experimental aircraft when they arrive from Europe, inspecting them, and then performing the FAA-required “Phase I flight testing” before turning the aircraft over to their owners.
January 5, 2026: The Crash
TacAero reassembled and inspected an experimental scale P-51 aircraft, “Just Ducky,” when it arrived from Europe in November, 2025. Midway thought the process, Kevin Sutterfield bought TacAero. When it came time to begin flight tests, despite having less than an hour total time in type, Sutterfield decided to conduct the first flight himself. Just Ducky never made it out of ground effect. Sutterfield climbed the aircraft to approximately 30 feet before allowing the aircraft to slow beneath the published stall speed. The aircraft descended rapidly and landed hard with one wheel on the pavement and one off. Sutterfield veered and impacted an abutment. No one was hurt, but the aircraft was totaled.
Just Ducky was powered by a Rotax 916iS engine rated at 160 horsepower for takeoff. To develop takeoff power, the Rotax Operating Manual specifies a target manifold pressure of at least 49.9 inches of mercury (in. Hg). The engine data show that the engine never developed more than 34.5 inches of manifold pressure at any point — on the ground or in the air. The cockpit gauges showed from the outset that the engine was not developing takeoff power yet Sutterfield attempted to takeoff anyway.
What the data extracted from the Garmin avionics show:
During the pre-takeoff run-up: The engine did not develop the manifold pressure or fuel flow required for full power, or anything close to it. The Rotax Operating Manual is explicit: if the engine doesn’t reach target manifold pressure, you’re not supposed to fly — you ground the aircraft and find out why. For whatever reason, Sutterfield proceeded to the runway notwithstanding the anomalous readings.
Early in the takeoff roll: Sutterfield admited to the NTSB that on the roll he noted manifold pressure of only 25 in. Hg — half of what the engine should be producing, but decided to continue with the takeoff instead of abort.
At liftoff: The aircraft Flight Manual’s recommended liftoff speed of 65 knots. The Garmin data shows that Sutterfield attempted to pull the aircraft into the air at less than 61 knots.
In the air: The aircraft climbed at 318 feet per minute. At full rated power, the aircraft should climb at more than 1,500 feet per minute. Yet, Sutterfield continued.
As things fell apart: With the engine producing less than 50 horsepower, and airspeed decaying well below the 75-knot best glide speed, Sutterfield maintained a nose-up pitch attitude of nearly 16 degrees before the airplane descended rapidly and hit the ground hard.
What TacAero Knew — and When It Knew It
This wasn’t TacAero’s first encounter with a Rotax 916iS that wasn’t producing power. In November 2025 — just weeks before the accident — TacAero flight tested a different experimental aircraft powered by a Rotax 916iS. During that program, on one takeoff roll, the engine developed only 20 inches of manifold pressure. TacAero’s pilot did exactly what the Rotax manual requires: he aborted. TacAero’s mechanics investigated, resolved the discrepancy, and the rest of the program went without incident.
Why Sutterfield chose to attempt a takeoff instead of abort in this case is unclear.
TacAero and Sutterfield have not yet responded to the lawsuit.
The Montreal Convention sets forth an airline’s liability for a passenger’s injury or death on an international flight. Under the Convention, the airline’s liability does not depend on whether the airline was “negligent” or otherwise “at fault” for the injury or death. Rather, the airline is automatically liable, provided that the injury was caused by an “accident.” The case law interpreting the Convention defines “accident” as “an unexpected or unusual event. . . external to the passenger.”
Arzu v American Airlines is the latest case examining what qualifies as an “accident” for purposes of the convention. A 14-year-old boy suffered a medical emergency on board a flight from Honduras to Florida. He died on board. A family member sued the airline alleging the airline was liable under the Montreal Convention. First, the family alleged that the airline’s on-board response to the emergency was so slow, chaotic, and ineffective that it should be considered “an unexpected or unusual event” that qualifies as an “accident.” The court considered and rejected the argument.
Crew inaction can be an Article 17 accident. But “unusual circumstances” must “elevate the willing inaction of airline personnel from mere inertia—from a non-event—to an event both unexpected and unusual.” In other words, crew inaction is an accident only when: (1) unusual circumstances elevate it to an unexpected and unusual event, and (2) the inaction is willing.
* * *
True, some evidence suggests that attendant Blanchard could have responded faster. Or Anderson could have alerted the pilots sooner. Or the pilots could have contacted the on-call physician. Yet Arzu identifies no circumstances that elevate the crew’s inaction to “an event both unexpected and unusual . There is no evidence that the flight crew’s response was unusually slow or chaotic compared to other crew’s responses to similar emergencies. [Citations omitted.]
The family’s second argument was that the on-board AED was not functioning properly and that its failure to operate properly was a qualifying “accident” that caused or contributed to the boy’s death. The court agreed that, depending on the evidence produced at trial, the AED’s failure, in violation of FAA regulations, could be considered an “unexpected or unusual event.”
The case is Arzu v. American Airlines, No. 25-10606 (5th Cir. 2026)
The Feres Doctrine protects the military from lawsuits brought against it by Families of service members killed in the line of duty as a result of its negligence. The Feres Doctrine does not, however, prevent civilians who have lost love ones from suing.
Families must still navigate the nuances of the Federal Tort Claims Act. The Federal Claims act is the the statute that allows civilians to sue the federal government notwithstanding the doctrine of sovereign immunity, which hold that the government cannot be sued without its consent.
To sue the military, the Federal Tort claim must be based on a military member’s negligence, wrongful act, or omission. Here, the claim would that the Black Hawk crew was negligent in failing to avoid the American Eagle flight, despite having been warned of its position and having been instructed by air traffic control to pass behind the airliner. Aside from the forensic evidence that may prove the Black Hawk was in the wrong position and at the wrong altitude, the families will likely be able to offer evidence that government officials — including the President and the Secretary of Defense — have essentially admitted that the Black Hawk crew was at fault.
There are exceptions to the Federal Tort Claims Act that can stop a civilian’s suit against the military in its tracks. But none seem to apply.
Though Flight 5342 families may sue the US military for the loss of their loved ones, as is the case when suing Air Traffic Control for its role in the mid-air collision, certain rules will apply to the families’ lawsuit:
Wasn’t it Air Traffic Control’s job to keep the American Airlines flight safe from the Black Hawk helicopter? Can families sue Air Traffic Control to obtain compensation for their losses? What’s involved?
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.
Here, the controller allowed the Black Hawk to take responsibility for maintaining “visual separation” from the airliner. That is, instead of directing the Black Hawk to turn left or right a certain number of degrees to avoid the collision, the controller in this case allowed the Black Hawk to attempt to avoid the airliner without the controller’s guidance. Was that proper?
The rules for allowing a pilot to provide “visual separation” in this fashion are set forth in section 7-2-1 of the Controller’s handbook.
Visual separation may be applied between aircraft up to but not including FL180 under the following conditions:
2. Pilot-applied visual separation.
(a) Maintain communication with at least one of the aircraft involved and ensure there is an ability to communicate with the other aircraft.
(b) The pilot sees another aircraft and is instructed to maintain visual separation from the aircraft as follows:
(1) Tell the pilot about the other aircraft. Include position, direction, type, and, unless it is obvious, the other aircraft’s intention.
(2) Obtain acknowledgment from the pilot that the other aircraft is in sight.
(3) Instruct the pilot to maintain visual separation from that aircraft.
PHRASEOLOGY− (ACID), TRAFFIC, (clock position and distance), (direction) BOUND, (type of aircraft), (intentions and other relevant information).
If required, (ACID), REPORT TRAFFIC IN SIGHT or DO YOU HAVE IT IN SIGHT?
If the pilot reports traffic in sight, or the answer is in the affirmative,
(ACID), MAINTAIN VISUAL SEPARATION
NOTE− Towers must use the procedures contained in Paragraph 3-1-6, Traffic Information, Subparagraph b or c, as appropriate. (c) If the pilot reports the traffic in sight and will maintain visual separation from it (the pilot must state both), the controller may “approve” the operation instead of restating the instructions.
PHRASEOLOGY− (ACID), APPROVED.
NOTE− Pilot-applied visual separation between aircraft is achieved when the controller has instructed the pilot to maintain visual separation and the pilot acknowledges with their call sign or when the controller has approved pilot-initiated visual separation. (emphasis added.)
(d) If aircraft are on converging courses, inform the other aircraft of the traffic and that visual separation is being applied.
PHRASEOLOGY− (ACID), TRAFFIC, (clock position and distance), (direction) BOUND, (type of aircraft), HAS YOU IN SIGHT AND WILL MAINTAIN VISUAL SEPARATION.
(e) Advise the pilots if the targets appear likely to merge.
We don’t yet have all the evidence to know whether the controller’s actions complied with the handbook. For example, we don’t yet have a transcript of all the relevant communications. But if the controller didn’t follow the handbook in turning over to the Black Hawk responsibility for avoiding the airliner, the families can sue the FAA.
However, certain rules will apply to the families’ lawsuit:
The Beechcraft Baron 95-B55 was found Tuesday night approximately one mile West of the Catalina Island Airport. It crashed shortly after takeoff, killing five on board. Weather reports indicated low clouds. Thus, the aircraft would have encountered “instrument conditions” in a matter of seconds after leaving the runway.
The aircraft turned right shortly after takeoff. Normally, the aircraft would have proceeded straight ahead until reaching at least 400 feet. The turn suggests one of two things – either failure of the right engine or disorientation upon losing visual contact with the horizon.
Compare this incident with the Cessna 310 crash. Similar to the incident here, the Cessna’s pilot chose to take off relying solely on instruments to guide him. The twin-engine Cessna crashed shortly following take-off, after the plane made a sharp turn to the left. The immediate left turn – directly into a transmission tower – suggested failure of the plane’s left engine or, alternatively, disorientation upon entering instrument conditions. Ultimately, it was determined that the Cessna pilot’s negligence caused the crash.
Engine failure — or failure of the instruments upon which a pilot must rely upon entering clouds — can be the result of a defect in the equipment or the result of improperly conducted inspections and repairs. Other potential factors include a failure to warn pilots of known dangers, safety issues at the airport premises, communication errors, or interference with the pilot’s ability to operate the plane, among others.
The National Transportation Safety Board’s investigation will be ongoing. Usually it takes at least two years for the NTSB to issue its report. However, NTSB reports are of little consequence in a lawsuit. In fact, they are inadmissible as evidence at trial. Aviation lawyers who conduct their own inspections find that the NTSB’s report is incorrect around 50% of the time.
At least a half dozen Cirrus SR22T aircraft have lost power on takeoff and crashed. According to the National Transportation Board, in each case the aircraft pumped too much fuel to the engine, causing it to flood. That remains ongoing danger. According to the National Transportation Safety Board:
until the Federal Aviation Administration requires implementation of appropriate mitigating actions to prevent the loss of engine power due to excessive fuel flow in the SR22T, additional accidents may occur due to this hazard.”
NTSB AIR-22-04
What’s going on? Why do the SR22T engines flood?
The SR22T’s engine is the TSIO-550K engine, manufactured by Continental Motors. Cirrus rigs the aircraft’s fuel system to pump up to that engine up to 42 gallons per hour. But Continental Motors tested and certified the TSIO-550-K engine to only 37.5 gallons per hour. That’s the limitation set forth in the engine’s installation manual and its type design data. It’s no surprise then, that as Cirrus has the fuel system rigged, the TSIO-550-K engines tend to flood — Cirrus is operating the engines in excess of their certificated fuel flow limit.
The real question is whether, given that the fuel flows exceed the engine’s certificated maximum, the aircraft’s certification is even valid.
Each engine installed in an aircraft must have a valid type certificate issued by the FAA. (Federal Aviation Regulation 23.903(a).) If an engine is operated so that its fuel flows exceed its certificated limitations, then the type certificate is invalidated. Without a valid engine certification, the aircraft cannot be certificated. To be airworthy, an aircraft must have both a valid engine and a valid aircraft certificate. According to FAA guidance,
non-compliance with the engine manufacturer’s installation requirements can invalidate the type certification status of the engine, making the engine non-compliant with § 23.903(a)(1). This, in turn, would prevent certification of the airplane under part 23. Examples of engine requirements that could be affected by the airplane installation may include, but are not limited to, the following: 1. Fuel delivery flow and pressure requirements. . .”
(Federal Aviation Administration Advisory Circular AC-16A.)
In order to legally operate the TSIO-550-K engine at the increased fuel flows, Cirrus might have applied for and obtained from the FAA a “supplemental type certificate” for the engine, approving the higher fuel flows upon a showing that the higher flows were safe. But it did not. Accordingly, as installed in the SR22T, the TSIO-550-K engine does not comply with Continental’s installation manual or the engine’s type design data. Under the FAA regulations, it would appear the aircraft does not have proper and valid certifications and thus is not airworthy.
Instrument approach procedures are pre-determined paths and maneuvers that, if followed, will guide an aircraft to a runway in reduced visibility. The last leg of an instrument approach procedure is typically a straight line (more or less) to the end of the runway. The straight line minimizes the turns the pilot must make to land the aircraft.
Sometimes a pilot flies an instrument approach procedure but, just before landing the aircraft, turns the aircraft to land on a different, perpendicular runway. Flying an instrument approach procedure to one runway and landing on another is called a “circling approach” or a “circle-to-land” maneuver. A pilot might opt for a circling approach because the winds favor landing on the perpendicular runway, or the length of the perpendicular runway is more suitable to the aircraft. To perform a circling approach, the weather must be good enough that, as the aircraft gets close to the airport, the pilot can actually see the runways and the surrounding environment. Circling approaches are challenging maneuvers, especially in jets. It is hard enough to circle close to the ground when visibility is good. Harder still when visibility is restricted due to weather. Proving the point, a Bombardier jet crashed a few months ago during a circling approach at Truckee.
Circling approaches are even more difficult at night. Some pilots have a personal rule: No circling approaches at night. Those pilots will either land on the assigned runway, regardless of unfavorable winds, or proceed to a different airport. Better safe than sorry.
But even those pilots might circle at night at his or her home airport. That’s because the maneuver is easier if the pilot is familiar with the runway lighting, the surrounding lights, and the surrounding terrain. There’s less risk of getting disoriented.
Learjet N880Z operated as an air ambulance. Last night it was making a short flight from John Wayne Airport to Gillespie, its home base, reportedly with four on board. It appears it was a “repositioning flight.” That is, the aircraft was not flying a medical transport mission, but rather was simply returning home. It was dark. The weather was marginal but certainly acceptable. The pilot began the instrument approach to Runway 17. The surface winds and the runway length made a landing on Runway 17 a straightforward affair.
As he approached the runway, the pilot decided to circle to land on the perpendicular runway. It isn’t apparent why he decided to circle. Perhaps landing on the perpendicular runway would leave him with a shorter taxi to the aircraft’s hangar.
In any event, as the pilot began the circling maneuver, he asked the tower controller to turn up the runway lights. His request indicates that, due to the reduced visibility, the pilot was having difficulty making out the runway lights. The controller replied that the lights were already at 100% intensity. Shortly thereafter, as the pilot began his turn to line up with the perpendicular runway, the pilot lost control of the aircraft and crashed.
This type of accident is exactly why many pilots will not conduct a circling instrument approach at night.
Some media outlets have reported that poor visibility from the PG&E Dixie wildfire smoke may have caused the Bombardier Challenger jet crash in Truckee. If true, would that make PG&E liable?
Probably not.
PG&E is liable to those whose property burned in the Dixie Fire, or those whose property was damaged by smoke from the fire. That’s because California’s inverse condemnation doctrine essentially makes PG&E automatically
liable for property damage claims resulting from fires that its equipment sparks. Further, PG&E may be liable to affected property owners for things like emotional distress under the legal doctrine of “Trespass by Fire.” Finally, PG&E would be liable for personal injuries or death resulting from the fire if the individual proves that the Dixie Fire was the result of PG&E’s negligence. That is, one injured by the Dixie Fire or its smoke can hold PG&E accountable if the Dixie Fire was the result of PG&E’s lack of due care in operating its facilities or in keeping the trees around its powerlines property trimmed.
Assuming for argument’s sake that the smoke for the fire contributed to the crash, it’s still unlikely PG&E can be held liable. The doctrine of inverse condemnation applies only to property damage claims, not to personal injury or death resulting from fires. The doctrine of Trespass by Fire applies only to injury suffered as a result of fire coming onto property owned or occupied by the one injured. So that wouldn’t apply either.
That leaves the doctrine of negligence. Assuming PG&E caused the Dixie Fire, and further assuming PG&E’s conduct that caused the fire was negligent, it still wouldn’t be enough. To recover on a negligence claim, the family members would also have to prove that PG&E had a “duty” to not subject their loved ones to the type of risk that PG&E’s conduct exposed them to. The concept of legal duty is tricky. Certainly, PG&E had a duty to those whose homes were burned because it was reasonably foreseeable that if it started a fire, property damage would result. But it’s a stretch to say that PG&E should have foreseen that smoke from a fire would reduce visibility for flights in the area and could contribute to a plane crash. Because such harm was not a “foreseeable” risk of igniting a fire, it’s unlikely a court would hold PG&E liable.
PG&E’s liability for Dixie Fire claims is most likely limited to property damage and injuries it’s fire caused on the ground.