Power lines can be virtually invisible from the air.  The trick to avoiding them is, paradoxically, not to try to find them.  Instead, the pilot should look for the towers from which they are strung.  Once the pilot has the towers in sight, he should choose one and fly directly over it, rather thaPike's Piaseckin between them.  By flying over one of the towers the pilot can be assured of avoiding the wires, since no wires are strung higher than the tower itself.  

In November 2009, a Piasecki helicopter struck high tension wires shortly after departing from Adelanto airport as it headed for an airshow in Riverside, California.  The helicopter crashed and burned, and all three aboard were killed.

We represented Colleen Goble, the widow of one of the pilots on board the helicopter.  Yesterday, a jury in San Bernardino county, California rendered a $10 million verdict in her favor against the estate of Joseph Pike, who was the other pilot in the helicopter and the helicopter’s owner.  The jury determined that Pike was the pilot in command at the time of the accident.

Pike, a well-known flight instructor with over 12,000 hours of flight time, trained his students to never fly between electrical towers.  Rather, he taught his student to pick one tower and fly over it.  On the day of the accidentPiasecki Crash at Adelanto, however, Pike chose to “split the towers” and ended up in the wires.

Pike’s estate had argued that forensic evidence showed that Goble, not Pike, was at the controls.  Pike’s estate also argued that the lines’ owner, the city of Los Angeles, should have installed orange marker balls on the lines to make them visible. Pike’s estate had sued both Goble and the city of Los Angeles but dismissed both those claims shortly before trial.

Goble was a vintage helicopter buff. He worked for a medical technology company and held several patents.  His work had been featured on National Geographic Television and had been displayed in the Smithsonian.  He was 58.  The couple lived in Connecticut and had no children.

The name of the case is Goble v. Estate of Pike.  The judge was the Honorable Steve Malone.

The NTSB blamed the pilot for the last Blue Hawaiian helicopter crash into the side of a mountain. The NTSB concluded that while flying near bad weather, the pilot inadvertently entered clouds, became disoriented, and lost control of the helicopter. According to the NTSB, the probable cause of the accident was:

The pilot’s inadequate decision by which he continued visual flight rules flight into instrument meteorological conditions. Also causal was his failure to maintain terrain clearance resulting in a collision with mountainous terrain. A contributing factor was the low ceiling.

One need only look at the low clouds in the photo taken shortly after TBy Joey Salamon/Molokai Dispatchhursday’s Blue Hawaiian crash on Molokai to wonder if weather and pilot decision-making played a similar role in this latest crash. 

Hawaii’s micro-weather makes helicopter tours dangerous. We’ve written about it before here, and here.  Spoken about it too.  Yet, year after year, tour operators opt to collect the fares and fly when weather conditions dictate that they really should stay on the ground.

Did the pilot involved in Thursday’s crash try to squeeze his Eurocopter between the weather and the terrain and lose control?  Time will tell whether this accident should be added to the list of crashes caused by "improper VFR."  But without significant changes in the industry, Hawaiian tourists will continue to lose their lives in completely avoidable weather-related helicopter accidents. 

It looks as though it was the twin-engine Seminole that caused the mid-air collision between it and a Beech Bonanza near Newberg, Oregon.  The crash killed the the 58-year old Bonanza pilot. The Oregonian quotes sources saying that:

the larger Piper PA-44 Seminole was executing training maneuvers in the area, Hillsboro Aviationmaking a series of rapid ascents and descents shortly after 4 p.m., when it came down upon a Beech Bonanza V35. . . [cutting it in two].

The Seminole (N3062H) was owned by Hillsboro Aviation, a flight school in Hillsboro, Oregon.  As it turns out, the crash was not the flight school’s first.  In fact, in recent years the school has been plagued with training accidents. The most serious of those was in September, 2009, when both a Hillsboro Aviation flight instructor and his student were killed while training in a Robinson R22 helicopter. 

In addition to this week’s fatal accident, and the one in 2009, Hillsboro Aviation aircraft have crashed in June 2008, June 2010, September 2010, and October 2010.

In August 2010, the FAA indicated its intent to fine Hillsboro Aviation $580,000 for numerous safety violations, including improper maintenance of its aircraft. Though the FAA investigation looked into the September 2009 fatal helicopter crash, the FAA ultimately decided to levy the fine for violations unrelated to that crash — specifically for what it found to be Hillsboro’s intentional falsification of various aircraft maintenance records.

Of course, Tuesday’s crash may be entirely unrelated to the previous Hillsboro Aviation training crashes and the conduct for which the FAA cited the flight school.  Nonetheless, the school’s safety record is abysmal.

Yet, Hillsboro Aviation remains in operation.

The NTSB is underfunded and understaffed. So it investigates accidents using the "party system."  That means the NTSB relies on those who may have caused the accident for help in investigating the accident’s cause. Unfortunately, the "party participants" seldom point the NTSB towards evidence in their files that would tend to incriminate them. As a result, NTSB reports go easy on the industry players.

From time to time, I’ve offered examples of cases (like the ones here and here) where the real cause of the accident was found by plaintiffs lawyers — sometimes well after the NTSB report is published.

Here’s yet another example, this time arising out of the crash of the Continental (Colgan) Flight 3407. According to a recent CBS News report, lawyers for the families uncovered emails showing that Colgan Air knew the captain was not qualified to fly the Q400, but put him in the left seat anyway.   

According to an ABC report, in one of the emails a Colgan Vice President states that the captain

had a problem upgrading” and, taking that into consideration, “anyone that does not meet the [minimums] and had problems in training before is not ready to tackle the Q.”

The “Q” is a reference to the Bombardier Q400. Despite Colgan’s concerns about the captain’s ability to fly the Q400, they promoted him anyway.  Just five months after that, the new Q pilot crashed his aircraft in Buffalo, killing 50.

This wasn’t merely a case of "pilot error," it was the result of an airline that didn’t take safety seriously enough. The newly released emails are critical to understanding why the accident happened, and how similar accidents can be avoided in the future. Yet, an NTSB spokesman confirmed that Continental did not provide these emails to the NTSB at any time during its year long investigation of the crash.

It looks like the company’s emails tell the story of why Continental Flight 3407 crashed.  And it was the plaintiffs’ lawyers, not the NTSB, who found them. 

Philip, South Dakota is the site of the second fatal Robinson R66 crash. This time, only the pilot was on board the helicopter.  The first fatal R66 crash, which happened in July, killed two. 

How does the R66 safety record stack up so far? Robinson R66

Since there are only 41 R66’s on the US registry, the record stacks up poorly.  

Before the Robinson R66 came along, there were about 1.2 fatal turbine helicopter accidents for every 100,000 hours flown. For the R66 crashes to be in line with that norm, each of the 41 R66’s in the fleet would need to have logged 4000 hours.  Since Robinson didn’t start delivering the R66 until November 2010, that’s virtually impossible.  More realistically, the average time on an R66 is less than 400 hours.  

Though not a scientific analysis, as of now it looks as though Robinson’s R66 is about 10 times more likely to be involved in a fatal crash than other turbine helicopters.

Sure, this is a small sample.  Perhaps it’s too soon to draw any conclusions.  But should R66 owners and pilots be concerned?

Of course they should.

The NTSB excludes family members from its accident investigations.  But it allows those who may have caused or contributed to a crash to participate.  That’s an obvious conflict of interest.  As a result, NTSB probable cause findings are not always impartial.  Instead, they tend to favor the industry players.  Reno-Tahoe International

The industry players have long argued that, while they may be allowed behind closed doors to assist the NTSB in their investigations, they would never seek to influence the investigation’s outcome. 

Yeah, right.

The Reno-Tahoe Airport Authority, which owns Reno-Stead Airport, has dropped the pretense of "just wanting to help the NTSB find out what happened."  Rather, it has gone whole-hog in seeking to actually influence the investigation of the Reno Air Race Disaster.  In fact, it has hired professional help from a Washington lobbying firm. 

You won’t find that information on the Airport Authority’s website.  But you will find it in papers filed in Washington, DC. According to  The Hill:

The Reno-Tahoe Airport Authority has hired Gephardt Government Affairs to lobby on the “government investigation of crash at Reno Air Races,” according to new lobbying forms released this week.

An NTSB investigation is not supposed to be a political process.  It’s hard to imagine anything more inappropriate than hiring lobbyists to influence its outcome.

But that is what it has come to. 

Thankfully, we still have the jury system.  No lobbying allowed there.  Everything has to be done in open court, for all to see.

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The air in an airliner’s cabin has been compressed by the aircraft’s engines. Most of the time, the air is safe to breathe. But if a leaky seal in the engine allows the air to first mix with heated engine oil, the cabin air can be contaminated with toxic fumes.

When a cabin fills with toxic chemicals from an engine’s bleed air, it’s a "fume event." For years, Boeing denied that fume events occurred at all. Then, it conceded fume events happened, but denied that they were dangerous.  

Terry Williams was an American Airlines flight attendant. She says the chemicals she breathed during a fume event in 2007 caused her debilitating tremors, memory loss, and headaches. When Boeing denied that a fume event could be responsible for William’s illness, Seattle aviation attorney Alisa Brodkowitz filed suit on Williams behalf.

What Brodkowitz uncovered created an uproar. As it turns out, Boeing has known about the risks since the 1950’s. But instead of fixing the problem, Boeing just covered it up.

According to Brodkowitz, Boeing has made no attempt to keep the flying public safe from fumes.

To this day, the only thing filtering this toxic soup out of the cabin are the lungs of the passengers and crew.

This week Boeing settled Williams’ lawsuit. But it still denies any liability. Alhough Boeing insists it is safe to breathe the cabin air in its aircraft, it nonetheless designed its new 787 Dreamliner so that the cabin is pressurized without using a bleed air system. 

Good idea. 

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. 

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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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Hall of Fame aerobatic champion Patty Wagstaff says that it was just bad luck that Jimmy Leeward’s accident involved spectators.

At the speeds Leeward was moving, had the malfunction occurred four seconds earlier or later, or almost anywhere else on the course, it would have terminated in the desert.  This was not an accident waiting to happen – this was a freak accident.

Patty, this was not the first time that flutter sent a highly modified warbird out of Patty Wagstaffecontrol during the Reno Air Races.  It happened in 1998, when flutter ripped a trim tab from a P-51 called "Voodoo."  Bob Hannah, the pilot, immediately found himself heading straight up, just as Jimmy Leeward did.  Hannah lost consciousness from the high g-loading, but regained his senses as the aircraft rolled over the top.  Unlike Leeward, Hannah landed safely.

So, though it’s too early to say for certain, it looks like Leeward’s precise airframe failure — or something pretty darn close — actually happened before.  And sure, Leeward’s failure could have just as easily occurred somewhere else along the nine mile course, and not at show center. But that doesn’t make it a "freak accident," any more than losing at Russian Roulette can be considered a freak accident. 

Nope. This was an accident waiting to happen.

The warbird pilots push their aircraft to their limits and beyond.  That’s why it’s called "Unlimited" racing.  No one would deny pilots, fully aware of the risks they are taking, the right to fly their aircraft to the point of destruction.  It is, after all, their own lives that they are risking over the Nevada desert.  But they should not be permitted to place spectators at risk.  Pilots might be willing to flirt with death.  But that’s not what spectators bargain for.

Sorry, Patty.  Leeward’s crash was no "freak accident."  And suggesting it was is not fair to the victims.

 

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