The NTSB hasn’t yet issued its report on the fatal Skylife air ambulance crash in December 2015. But a Fresno judge has ruled that regardless of the cause, the family of one of the paramedics on board will not be allowed to sue either the operator of the helicopter (Rogers Helicopter) or the helicopter’s owner,   (American Airborne), regardless of whether they were negligent in the helicopter’s operation or maintenance.

As it turns out, both entities were partners with the paramedic’s employer, Skylife .  An employee cannot sue his employer for a work related injury or death.  Nor can he sue the employor’s partner.

Such claims are barred by the Workers’ Compensation laws.

 

If the United States Government is responsible for an accident, it can be sued just like any other wrongdoer under the Federal Tort Claims Act.  But there’s an important exception — the federal government cannot be sued for bad decisions that the government left to the federal employee’s best judgment.  The "Discretionary Function Exception" is perhaps the most important limitation on a victim’s right to sue the government when it causes injury or death.  And the exception is complicated. Claire Choo helps unravel it.

 

Tort Claims Act  

Here’s the pre-emption argument:

Our plane’s design was approved by the FAA.  If plaintiffs think there is something wrong with it, they should take it up with the FAA. But they should leave us alone.”  

Manufacturers make this argument in just about every aviation case we bring.  We  respond that that the FAA regulations are the bare minima only, and weren’t intended to be the last word on whether an aircraft’s design is safe. Besides, the FAA is stretched so thin that it allows many manufacturers to essentially self-certify their design work.  So in many cases the FAA stamp of approval was placed on the aircraft by someone who was actually on the manufacturer’s payroll.  How safe is that?

Sikkelee v. Precision Airmotive involved the crash of a 1998 Cessna 172.  The plaintiffs alleged the crash was caused by a defective carburetur. The manufacturers asked the court to dismiss the case against them because the aircraft engine’s design was FAA-approved.  

The court noted the controversy concerning the FAA’s practice of allowing manufacturers to self-certify, but held it wasn’t really relevant.  Instead, the court agreed with plaintiffs that Congress simply didn’t intend the FAA regulations to be the last word on safety. That means that the regulations did not pre-empt state law, and the plaintiffs’ tort case against the manufacturers of the plane and the plane’s engine components could proceed.

The manufacturers argued that if plaintiffs were allowed to sue over products even though they comply with all FAA regulations, it would end up killing the aviation industry.  The court had an answer for that: 

On the contrary, [our holding] simply maintains the status quo that has existed since the inception of the aviation industry, preserving state tort remedies for people injured or killed in plane crashes caused by manufacturing and design defects.”

No question that aviation manufacturers will continue to make the preemption argument going forward, as they are always looking for that sympathetic ear.  They just didn’t find one in the Third Circuit.

Sikkelee v. Precision Airmotive  

Domestic travelers can hold the airline liable only if their injuries are caused by the airline’s negligence. But if the passenger is traveling internationally, then treaties called the Montreal and Warsaw Conventions apply. Under the Conventions, whether the airline was negligent is for the most part irrelevant. An airline is responsible only if the passenger’s injury was caused by an “accident.” So, for an international traveler, the key question is what, exactly, qualifies as an “accident.”

The U.S. Supreme Court has defined “accident” to mean “an unexpected or unusual event or happening that is external to the passenger.” Certainly, an aircraft running off the end of the runway would qualify as an accident. But there are plenty of injury-producing events which present more difficult questions.

Here’s what the courts have said:

  • Accident: A passenger is injured when a fellow passenger opens an overhead bin and liquor bottles fall out.
  • Not an Accident: A passenger slips and falls on plastic bag left in aisle (reasoning: after long flight, it would not be “unusual” to encounter trash in the aisle).
  • Accident: A passenger burned by tea when tea spilled from tray table because the passenger seated directly in front of the injured passenger caused a “jolt” that upset the tray table.
  • Not an Accident: A passenger falls while trying to walk up a broken escalator.
  • Accident: A passenger seated near the smoking section asks to be moved, the flight attendant refuses, the passenger has an asthma attack and dies.
  • Not an Accident: A passenger dies from an airline-induced blood clot.
  • Not an Accident: One passenger falls on and breaks the arm of another passenger (reasoning: the passenger decision to try to climb over his fellow passenger not related to the aircraft’s operation.)

More at Chris Cotter’s excellent article: Recent Case Law Addressing Three Contentious Issues in the Montreal Convention.

There are obvious dangers inherent in events such as the Reno Air Races. The victims of the disaster were undoubtedly aware of those dangers and attended the event anyway. Does that mean they should not be able to file lawsuits to obtain compensation for their loss? 

Not at all.

Granted, Life is Full of Risks

There are risks involved in most everything. We take a chance every time we cross the street. But it’s nonetheless reasonable for us to believe we will be safe when we are in the crosswalk. When we use the crosswalk, we are where we are supposed to be.

If an SUV hits someone in the crosswalk, we may all agree it was “just an accident.” Yet, we require the driver to compensate the pedestrian for his injuries. If the driver couldn’t see the pedestrian because the crosswalk was poorly designed, we might require the city to compensate the pedestrian. In either case, we don’t tell the pedestrian that he is out of luck because he assumed the risks of getting hit by a car.

It doesn’t matter that the driver had a very good driving record up to that point in time. While we don’t punish those responsible for an accident, we do hold them accountable and require them to compensate the person who, through no fault of their own, is seriously hurt.

The victims at Reno undoubtedly understood that there were risks associated with the Air Races. But they were exactly where they were supposed to be. Sure, the crash was an accident. But that doesn’t mean whoever is responsible for the injuries – whether that is a mechanic or a course designer — shouldn’t compensate the victims for their losses.

The Race Sponsors Were Supposed to Provide Patrons with a Safe Viewing Area

Some say that Nevada law lets sponsors off the hook for injuries to spectators.  And it’s true that, in Turner v. Mandalay Sports Entertainment, the Nevada Supreme Court said that a baseball stadium was not responsible for serious injuries a fan sustained when she was struck by a foul ball. But in that case, the fan was not in the viewing area. Had the fan been injured in a viewing area, the result might have been different. That’s because the court recognized that a ballpark has a duty to provide the patrons with at least some designated safe seating.

Once a stadium owner or operator complies with the rule’s requirements by providing sufficient protected seating, the owner or operator has satisfied the legal duty of protection owed to its patrons.

The Reno Air Race victims were in the designated viewing area. They were exactly wReno Air Race Tickethere they were supposed to be. But it appears that the sponsors failed to ensure that the area was safe. Turner v. Mandalay would thus seem to support the victims’ claims for compensation, not undercut it.  

The Language on the Ticket Is Not a Contract

A reader of this post noted that, according to the tickets sold for the event, the spectators voluntarily assumed all the risks and released the event sponsors from liability for any injuries.  Isn’t that the end of the matter?

No.

Sure, a spectator can, by contract, agree ahead of time not to sue if he is injured, even if the person who caused the injury was negligent. But for there to be a contract, there has to be an agreement. If the spectator actually signed something, then that would be one thing. Without the victim’s signature, the fine print on the ticket won’t be binding on anyone. 

Related Content:

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

Related content on this blog:

 

A helicopter carrying workers to an oil rig attempts to land on the rig’s platform. The helicopter hits something on the rig, spins out of control, and crashes into the sea. All the helicopter’s occupants are killed.Helicopter Approaching Oil Rig Platform 

Sadly, with more than 5000 oil rigs operating off the US shores, oil rig-related helicopter crashes are a relatively common occurrence.

Even though the accidents are almost always the result of someone’s negligence, it’s often unclear what compensation, if any, the victims’ families will be entitled to.  That’s because there is little agreement as to what law applies to helicopter accidents on oil rigs. 

Since there is no governing "helicopter accident law," some courts look to the law of admiralty.  Reasoning that the deaths occur offshore, they apply the Death on the High Seas Act. The Death on the High Seas Act, or DOHSA, generally allows the victims’ families “pecuniary damages” only.  Pecuniary damages include lost wages and funeral expenses. Except in certain circumstances, no compensation is allowed for the loss of the victim’s care, comfort and emotional support, or his pre-impact pain and suffering. When DOHSA applies, it can mean the family members get no compensation at all.

Most oil rigs are located on the "outer continental shelf." Because of that, some courts have ruled that the Outer Continental Shelf Lands Act applies to helicopter crashes on oil rigs. Unlike DOHSA, the Outer Continental Shelf Lands Act ("OCSLA") entitles the victims’ families to all the damages available under the wrongful death statute of the nearby state. That usually includes compensation for the loss of the victim’s care, comfort and affection.

In Alleman v. Omni Energy Services Corp, a helicopter pilot landed on an oil platform, then tried to lift off and reposition the helicopter to make it easier for the passengers to exit.  When he did, the helicopter’s main rotors struck a boat landing that had been improperly stored near the helipad.  The helicopter spun across the pad, momentarily came to rest on the edge of the pad, and then fell over the side of the rig and into the Gulf of Mexico below.  One passenger died.

The court ruled ruled that OSCLA applied, not the more restrictive DOHSA.

This accident "actually occurred" on the oil platform itself and OSCLA therefore applies. It does not impact our analysis that Hollier fell into the sea after the accident occurred on the platform. . . .Congress did not intend . . . that these island-platforms be within admiralty’s jurisdiction. 

Texas lawyer Ryan Hackney  questions the court’s reasoning:

The [opinion] takes it as self-evident that the accident “actually occurred” when the helicopter’s tail rotor made impact with the boat landing on the platform. From Hollier’s perspective, however, the more significant impact was surely the one when his helicopter crashed into the unforgiving water of the Gulf of Mexico. To put it bluntly, bumping your tail rotor might ruin your day, but crashing your helicopter into the high seas will ruin your whole week.

It was the main rotor that struck the landing, not the tail rotor.  But, putting that aside, Hackney’s  thorough analysis of the Alleman opinion and the law bearing on helicopter crashes on oil rigs is excellent and worth a read for anyone wrestling with the topic.

As Hackney’s analysis points out, the law that applies to helicopter crashes on oil rigs is confused.  In fact, there is sufficient disagreement among the courts concerning OCSLA’s application that the United States Supreme Court has agreed to hear argument in October in Pacific Operator Offshore v. Valladolid.  The case doesn’t involve a helicopter crash.  But it will tee up issues of when OCSLA applies to accidents injuring rig workers and when it does not.  

The Chinook helicopter was flying in Afghanistan.  Without warning, one of the helicopter’s two engines flamed out.  The helicopter crashed.  Eight service personnel were killed and fourteen were severely injured.

The victims and their families sued the helicopter’s various manufacturers, including Boeing, Honeywell and Goodrich.  They claimed that the helicopter’s engine quit because of a defect in the design of the electronics that control the fuel flow to the engine. 

The Army agreed.  It’s investigation concluded that the engine failed because of problems with the the engine’s FADEC (Full Authority Digital Electronic Control) and DECU (Digital Electronic Control Unit). 

A federal court recognized that "the Chinook’s engine obviously did not perform like it was supposed to."  Nonetheless, it tossed the case out of court, ruling that the manufacturers were protected from liability by the Government Contractor Defense.  That defense immunizes manufacturers from liability for defective products causing injury or death in those cases where the government approved the design that ended up being faulty.

The victims argued that the government didn’t really approve the defendants’ defective design, because the contract documents left the details of the design to the manufacturers’ discretion. The contract documents provided:

Specific implementations used to describe the functional requirements throughout this document are for informational understanding only. Actual implementations used to meet these requirements will be at the discretion of the designer unless specifically stated otherwise.

The court rejected the argument.  Though the clause left some of the details to the manufacturers,  the government nonetheless approved the design.

The victims also argued that the manufacturers should have included in the helicopter’s Operator’s Manual a warning about the problems with the helicopter’s design, since they were well aware of other failures that had resulted in accidents.  The court rejected that argument too, because the military had approved the manual’s wording.

Military personnel were killed or injured, not by enemy fire, but by a defectively designed product that was manufactured by private industry for profit.  Yet, the manufacturers are permitted to turn their backs, and walk away,

The case is Getz v. Boeing.

Senator Leahy of Vermont is pushing for a law that would insulate volunteer pilot organizations (such as Angel Flight West) from liability for injury the organization’s pilots cause to its passengers. If the bill passes, it means that those injured by the negligence of an organization’s pilot would have no recourse against the organization. Rather, the passenger would be limited to seeking compensation against the pilot — regardless of how minimal the pilot’s insurance.Angel flight

The trouble is that those who decide to fly with a charitable organization usually do so because they are impressed by the organization, not by the pilot. The passengers don’t select the pilot who, in some cases, they may not even meet the pilot until arriving at the airport for the flight. They have no way of checking out the pilot’s qualifications or competence level. Instead, they trust the organization to do that.

It doesn’t seem right for an organization to turn its back on an injured passenger or his family after an accident. Yet, that’s what the bill would allow.  

The text of the proposed law is as follows: 

Liability Protection for Volunteer Pilot Nonprofit Organizations

A volunteer pilot nonprofit organization that flies for public benefit, the staff, mission coordinators, officers, and directors (whether volunteer or otherwise) of such nonprofit organization shall not be liable for harm caused to any person by a volunteer of such nonprofit organization while such volunteer–

(A) is operating an aircraft in furtherance of the purpose of such nonprofit organization;
(B) is properly licensed for the operation of such aircraft; and
(C) has certified to such nonprofit organization that such volunteer has insurance covering the volunteer’s operation of such aircraft."

The Death on the High Seas Act applies to certain airplane and helicopter crashes as well as to shipwrecks.  The Act limits the claims that family members can bring. For example, in most cases the Death on the High Seas Act does not allow a parent to sueDeath on the High Seas Act for the loss of a child.  And though a wife can sue for the death of her husband, she can recover only lost financial support.  No compensation is allowed for the loss of the husband’s love and affection.

Everyone agrees that DOHSA never applies to crashes within 3 miles from the US shoreline, and that it always applies to certain crashes more than 12 miles from shore.  The issue is whether it applies to crashes between 3 miles and 12 miles from shore. 

That question came up after the TWA Flight 800 disaster, because the Boeing 747 crashed about 8 miles from shore. The Second Circuit Court of Appeal ruled that the "High Seas" means "international waters."  So DOHSA applies to crashes between 3 and 12 miles from shore only if the particular waters are "international." 

But just before the TWA Flight 800 accident, President Reagan proclaimed that all waters within 12 miles from a US shoreline are US waters, not international waters.  The court ruled that the presidential proclamation made the analysis easy.  The Death on the High Seas Act applies only to crashes beyond 12 miles from shore, and so did not prevent the families of Flight 800 from suing.

Earlier this week, the Ninth Circuit disagreed.  A Marine helicopter crashed 9.5 miles from the shore of Catalina Island, killing three servicemen.  The familes sued Sikorsky, the helicopter’s manufacturer, as well as those who built some of the helicopter’s component parts.  But the court ruled that because the crash happened more than three miles from shore, DOHSA applied, and their lawsuit should be dimissed. 

We conclude that DOHSA applies to all waters beyond three nautical miles from United States shores.  The helicopter crash in this case is governed by DOHSA’s remedial scheme."

As for the effect of President Reagan’s proclamation?

Though we do not decide the matter, we remain doubtful that the President would have the authority to alter the remedial scheme set forth in DOHSA through a proclamation."

The case is Helman v. Alcoa Global Fasteners. Because the two federal courts have now reached opposite conclusions, the matter might be headed to the US Supreme Court.  That will be interesting.  Dissenting from the Second Circuit’s opinion in the TWA Flight 800 case was then-Judge Sotomayor who now, of course, sits on the Supreme Court.