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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That’s what some press reports are saying.  Had Jimmy Leeward not maneuvered the stricken plane as he did, things could have been much worse.

"The way I see it, if he did do something about this, he saved hundreds if not thousands of lives because he was able to veer that plane back toward the tarmac,” Johnny Norman, who was at the show, told the Associated Press.

That’s a nice thought.  But it’s probably not true.  Leeward likely was unconscious for most of the accident sequence, unable to veer the aircraft anywhere.

This isn’t the first time a P-51 lost its trim tab at the Reno Air Races.  It happened once 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, regained his senses as the aircraft rolled over the top, and saved the aircraft.  

As reported by AvWeb,

You OK Bob?" called Hinton. "Yea, this thing just popped big time," replied Hannah. What Hannah didn’t mention is that the g-load from the quick pull-up had caused him to black out. He finally managed to reach the throttle and reduced Voodoo’s power. At that point Hannah radioed that he "(wasn’t) out of it yet," but he wasn’t thinking clearly. Later, he declared a mayday and made a perfect landing. . . . On the ground one could see what cause Voodoo’s problems during the race. The left elevator torque tube failed when the elevator trim fluttered and departed the plane.

It’s quite possible that Leeward blacked out just like Hannah did in 1998 but, unlike Hannah, never regained consciousness. 

TGalloping Ghost Cockpitake a look at the two pictures of Leeward’s aircraft, the "Galloping Ghost."  The photo on the left is the cockpit before takeoff.  Leeward’s helmet is clearly visible.  The frame on the right is the cockpit during the dive, a second before impact.  Leeward is nowhere to be seen.  Perhaps he is slumped over, unconscious.  Regardless, it’s hard to imagine that Leeward was in any position to control the aircraft’s flight path.

Galloping Ghost/Jimmy Leeward

 

 

 

 

 

 

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This photo, taken moments before the crash, shows that the P-51 had lost its left elevator trim tab. (I’ve circled the spot where the trim tab should be.) Without the trim tab, the aircraft may have been uncontrollable.

AP Photo/Grass Valley Union/Tim O'Brien

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Original Photo by Tim O’Brien, Grass Valley Union (AP).)

Why did the aircraft lose its trim tab?  One possibility is "flutter," an aerodynamic phenomenon that can, once it starts, damage a control surface quite suddenly.  Here’s a NASA video of flutter in action.

 

 

 

An aircraft is at risk of flutter when its airspeed pushes up against or exceeds its design limits.

 

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Operators have begun using LSAs — particularly "trikes" — to give air tours over the Hawaiian islands.  LSAs fly low and slow, just like helicopters, and are much cheaper to run.  But they have a terrible safety record.  And it’s illegal to use LSAs for commercial tours.

If it is illegal to use LSAs for commercial tours, how do LSA operators get away with it?  As I wrote here, they simply say that they are taking the passenger for an introductory "flight lesson," rather than a tour. 

The FAA now recognizes that operators are taking advantage of the regulatory loophole. According to one FAA official, "It appears some operators are trying to get around the air tour provision by offering flights under the guise of introductory flying instructions."

The Honolulu Star-Advertiser reports that  the FAA’s plan for dealing with the problem is to  step up surveillance:

the plan will call for more unannounced visits, interviews with pilots and record examinations of aircraft operators. Officials also held a meeting with weight-shift control operators to encourage more voluntary compliance.

The FAA says no new regulations are needed, since the existing rules are clear.  Yes, the rules are clear.  That’s the problem.  It’s clear that it’s legal to take a paying passenger for an introductory flight lesson.  And so that’s exactly what the tour companies operating LSAs will continue to do.

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 here. Christine 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.

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.  

It’s the passenger in the aisle seat who is most often injured by baggage falling from an overhead bin. The injuries can be serious and can include mild traumatic brain injury.Overhead bin

If the baggage falls and injures a passenger who is travelling internationally, then the Montreal Convention or Warsaw Conventions apply.  The conventions are international treaties that make the airlines automatically liable for any injury to the passenger that resulted from an "accident."  An "accident" is defined as an unusual or unexpected event that is external to the passenger.  Under certain circumstances, being injured by falling baggage may well qualify. 

The conventions apply even if the flight was entirely domestic, as long as the passenger had an international destination somewhere on his itinerary.

What if the flight on which the injury occurred was domestic and there was no international travel involved?  Then it’s trickier.  The passenger must prove that the airline was negligent before the airline can be held liable.  For example, the passenger must prove that a flight attendant was careless in opening a baggage compartment and allowing the object to fall out.  Or, the passenger must prove that the bag fell out when a fellow passenger opened the compartment because a flight attendant stowed the bag improperly.

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.

Three Mooneys have crashed in two weeks.  Each aircraft crashed on takeoff.  Sadly, seven people were killed.  Two of the accidents may have involved the "impossible turn."

First Crash: On July 5, a 1974 Mooney M20F (N7759M) crashed shortly after taking off from Watsonville, California.  All four aboard were killed. 

Second Crash: On July 17, a nearly identical Mooney M20F (N3524X) crashed taking off from Winslow-Lindbergh Airport in Arizona, killing two aboard.  

At first glance, the Watsonville crash and the Winslow crash seem eerily similar.  The same model aircraft was involved in each.  Each crashed just moments after takeoff. 

But the two accidents are entirely different. The Watsonville crash is consistent with the pilot climbing too steeply to avoid a fog bank. There doesn’t appear to be any evidence of an engine problem, at least at this point. Rather, as the pilot pitched the nose up, his airspeed bled off, and the wings (not the engine) stalled.  According to one witness:

He was heading toward the coast and tried to climb . . .From the time he took off, he was going too steep, too slow. … He spun to the left and you can see where the impact was.

In contrast, the pilot in the Winslow crash appears to have attempted to turn around and glide back to the runway after his Lycoming engine quit.  

A Mooney departed then called with engine problems [saying he was] returning to the airport [from the] opposite direction. My friend circled giving the Mooney the right of way. .  Later he asked the Mooney for a position, no response to a couple of calls. He circled for a while longer then landed. Rolling out he saw the Mooney off the departure end of the runway on its back. He said it looked like the typical return to the airport stall spin accident.

The attempt to return to the airport after an engine failure is often called "the impossible turn," because it so frequently ends in the aircraft stalling during the turn and spinning in, with fatal results.

Plots are trained never to turn back to the runway after an engine failure unless they have adequate altitude.  Instead, land straight ahead, or slightly to the right or to the left.  Better to land in the trees, but under control, then lose control of the aircraft and spin in.  While a crash landing in rough terrain may result in serious injury or even death, spinning into the ground is almost always fatal.  Losing control of the aircraft after engine failure must be avoided at all costs. Unfortunately, the temptation to try the "impossible turn" and make it to the runway can be irresistible.

This video shows a Mooney pilot attempting the impossible turn after engine failure near Sacramento, California in 2009.  Both he and his passenger were killed when the aircraft spun in.

 

 

Third Mooney Crash: Finally, on July 18, a 1979 Mooney 20K (N777CV) crashed at Augusta Regional Airport while taking off, killing the pilot and sole occupant, a Mooreville doctor. That aircraft also came to rest within the airport boundaries.  It appears this pilot also experienced engine failure, and also may have attempted to turn back to the airport, stalled, and spun in.  Too early to tell.