The FAA was supposed to protect the Reno Air Race spectators by, among other things, assuring that the race course design was safe. It failed to do so. Do the victims have a right to bring a lawsuit against the FAA?

Sovereign Immunity.

The FAA or, more accurately, the United States government can be sued just like any other individual, when it’s negligence contributes to a citizen’s injury or death. There are some important limitations, however. For example, the FAA cannot be sued if it’s employee — in committing the negligent act — was acting within his discretion. Rather, the “Discretionary Function Exception" protects the government from liability in those circumstances. The government can, however, be sued when someone is injured or killed as a result of an FAA employee’s failure to follow the FAA’s own rules. The theory is that, when in that circumstance, the employee had no “discretion.” If he was supposed to follow rules, and didn’t, and as a result someone is killed or injured, the government is liable.

FAA’s Involvement in the Reno Air Races.

The FAA approved the pilots, the planes, and the design of the course. For purposes of illustration, let’s discuss only the design of the course. For an FAA employee to approve a race course, the course design must meet certain requirements. FAA Order 8900.1 spells those out in detail. Some of the math involved is set forth on the right. The math is a bit complicated. But in short, the requirements are supposed to ensure that a plane is never pointed at the crowd, and to otherwise keep the spectators safe if something goes wrong with a plane or a pilot.

If a proposed course design didn’t comply with the requirements set forth in Order 8900.1, and an FAA employee approved it nonetheless, the FAA is potentially liable. That’s because the employee has no discretion to approve a course that doesn’t comply with the rules. If a course doesn’t comply with the rules, the FAA employee is supposed to reject it.

What if the course design complied with the requirements of Order 8900.1, but the victims prove that the Order’s requirements were too lax to protect the public from harm, and that they should have been more stringent? Then the victims will have a much harder time suing the government. Deciding what the rules should be is a task likely within the FAA’s discretion. Thus, the government would assert the “discretionary function” defense to the victims’ lawsuit.

 Reno Race Course Design

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  • Martin

    Any event such as this no matter what precautions are taken carries a risk element. I have seen a girl killed and people injured in a dirt speedway event with high protection fences with angled tops. A stray wheel did this. Another V8 supercar event a tyre went AWOL for ages and hit no one. If the car was on a different angle on departure who knows? History has given other lesser air accidents culminating in spectator injury or death. You have to be realistic that freak accidents happen. If you want to enjoy the roar of performance vehicles and see them put to their limits (And in cases like these way beyond continuous design and modification limits) it is called managed risk. I also know most Reno, Red bull etc type flyers with the money or the aircraft to do it are not usually not just out of the crib, but It also has to be said that there are times where people have to get past their pride and retire from some activities where just being considered fit for your age and passing a medical does not mean get in ultra high performance modified aircraft and when the T’s and P’s are green go like hell. I love the noise, love the smell, love to fly but I know S*&% can hit the fan and no matter how well things are organised or even changed one it may just happen again. I hope dearly not