A pilot flew his new Cirrus into conditions of poor visibility and crashed, killing himself and his passenger.  The passenger’s family sued not just the pilot, but Cirrus as well. 

Why sue Cirrus?  According to the family, Cirrus didn’t train the pilot properly when he showed up at the factory to pick up his new plane, and that contributed to the crash.  The jury agreed, handing Cirrus Design one of the most controversial aviation verdicts in recent memory.  It awarded more than $10 million to the families of the pilot and passenger.

But today, the court of appeals erased the verdict, and ordered that judgment be entered in favor of Cirrus.  It ruled that, even if Cirrus failed to train the pilot properly, it doesn’t mean that the family has a right to sue.

Here’s the story.

The Pilot

The pilot, Gary Prokop, was relatively inexperienced.  He did not have an instrument-rating.  That means he was allowed to fly in good weather only.  If a pilot without an instrument rating flies into clouds, he will likely quickly become disoriented, be unable to keep the aircraft right side up, lose control, and crash.  That seems to be what happened, for example, last October when a Cirrus crashed near Agua Dulce, California.  

The Pilot’s Purchase of the Cirrus   

When a pilot buys a plane, he doesn’t just jump in and fly away, even if he is already licensed to fly. To be safe the pilot must be trained in the particular plane’s idiosyncrasiesCirrus S-Tec 55x Autopilot. In this case, that training — called "transition training" — was included in the SR22’s purchase price.

One of the items the pilot was supposed to learn was how to use the Cirrus’ sophisticated autopilot to reverse course in the event he inadvertently encountered poor weather. Inexplicably, however, his instructor skipped that lesson, but nonetheless signed the pilot off as having completed the transition training in full.  

The Crash   

It’s not hard to guess what happened next.  A month later, the pilot inadvertently encountered conditions of poor visibility.  He did not have the skills necessary to turn around.  Unable to see where he was going, he became disoriented, lost control, and crashed. 

The Jury Verdict  Against Cirrus    

The jury was convinced that had the pilot been given the lesson he paid for, the outcome would have been different.  They felt that the missing lesson cost the two men their lives.  The jury found that the pilot was 25% at fault for the accident, and that the rest of the fault lay with Cirrus’ failure to train him as agreed.

The verdict was not well received by the piloting community, to say the least.  In fact, they hated it.  After all, the pilot is the captain of the ship.  It’s the pilot who is ultimately responsible for the safe conduct of the flight. If a pilot is unable to handle adverse conditions, he is supposed to avoid them.  If he ventures where he has no business being and kills himself or others, only he is to blame.  Or so say many pilots.

The Appellate Court Reverses and Grants Judgment for Cirrus

The court of appeal reversed the verdict, but not for the reasons the piloting community urged.  Rather, even assuming (1) that Cirrus didn’t train the pilot properly, and (2) that the lack of training contributed to the accident, the families still had no case against Cirrus.  In Minnesota, there is no claim for injuries suffered as a result of "educational malpractice."  And, according to the court, when you boil it all down, "educational malpractice" was exactly what plaintiffs were claiming.

If a negligence claim raises questions concerning the reasonableness of the educator’s conduct in providing educational services, then the claim is one of educational malpractice . . . [plaintiffs] ultimately challenge the quality of the transition training . . . But a determination of whether the transition training was ineffective because the instructor failed to provide a flight lesson on this topic would involve an inquiry into the nuances of the educational process, which is exactly the type of determination that the educational-malpractice bar is meant to avoid."

A dissenting judge reasoned that Cirrus should not be entitled to assert the "educational-malpractice bar" because plaintiffs did not claim that Cirrus’ instruction of the pilot on the use of the autopilot was improper.  Rather, plaintiffs claimed that Cirrus failed to provide the instruction at all.

 

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There’s not a lot of air traffic at night. So some air traffic control towers close altogether.  Any landing aircraft is on its own.  Other air traffic control towers are staffed with just one controller.  Not surprisingly, lone controllers working the night shift tend to doze off. 

That little secret is now out. That led to the resignation of the head of the Air Traffic Organization. Hon. Mark R. Rosekind And then, just yesterday, the FAA announced that a second controller will be added to the overnight shift at 27 airports. 

Sounds like moves in the right direction. But what do you get when you put a second controller into a dark, quiet control tower in the middle of the night? 

Two sleeping air traffic controllers.

It’s not a matter of just adding staff.  It’s a matter of dealing with the somewhat complicated issue of how night shifts disrupt a workers’ circadian rhythms. At least so says Dr. Mark R. Rosekind, the newest member of the the National Transportation Safety Board. 

I had the pleasure of hearing Dr. Rosekind speak a couple of weeks ago at Menlo High School in Atherton, California. Dr. Rosekind is one smart guy.  And he happens to be a sleep expert. In fact, Dr. Rosekind was the Director of the Center for Human Sleep Research at Stanford University. So he knows a thing or two about "fatigue management." 

Unfortunately, the FAA isn’t required to listen to the NTSB, and frequently doesn’t.  In the past, when it comes to fatigue risk management, an act of congress was required to get the FAA to do something.

Not to worry.  This time the FAA, or at least the US Transportation Secretary, Ray LaHood, is on top of it.  He is outraged.  LaHood says he "will not sleep" until there’s good safety in the control towers.  (Yes, he really said that.) 

 

http://abcnews.go.com/assets/player/walt2.6/flash/SFP_Walt_2_65.swf

A McDonnell Douglas MD-82 crashed in August 2008 while taking off from Barajas Airport in Madrid. 154 on board were killed and 18 were injured. The injured passengers and the families of those killed filed lawsuits in the US against Boeing, which merged with Spanair 5022 Crash LocationMcDonnell Douglas in 1997, claiming that the aircraft was defective.

Here’s what the plaintiffs say happened:

  • The airplane crashed because its flaps and slats were not extended as required for takeoff.
  • The pilot was not alerted that the flaps and slats were in the wrong position because the “Take-Off Warning System” (or TOWS) failed to operate.
  • The TOWS failed to operate because mechanics, to deal with another problem, had disconnected an electrical relay which, in turn, deprived the TOWS of power.

How would any of this make the manufacturer liable?

Because, according to plaintiffs, the manufacturer should have wired the TOWS to be “fail-safe” so that, if power to the system was disrupted, it still warned the pilot:

Plaintiffs contend that the Spanair crash at issue in this case is strikingly similar to a crash of a McDonnell Douglas MD–82 on takeoff from Detroit Metropolitan Airport in 1987. . .  According to Plaintiffs, the NTSB concluded that the TOWS system in that plane did not receive electrical power and thus failed to warn the crew that the plane was not properly configured for takeoff . . . Plaintiffs further report that the NTSB made six recommendations, including a design modification that would illuminate a “fail” light in the event of a circuit power loss, but Defendants did not adopt that recommendation . . . Plaintiffs contend that TOWS failures now account for 49 accidents. . . On the basis of these allegations, Plaintiffs contend that “[t]his case is about a design defect that remains uncorrected despite Defendants’ knowledge of it for over 20 years.”

But even assuming plaintiffs made out a viable case against the manufacturer, there was still the question of whether the cases should be tried in the US or, under the doctrine of forum non conveniens, dismissed and sent to Spain, where the accident occurred.

In the end, the California federal court dismissed the cases, just as in the Air France Flight 447 litigation.

In dismissing the cases, the court decided that, in essence, it would be more convenient for all parties if the suits were brought in Spain. Two parts of its ruling were interesting. First, the court considered and rejected plaintiffs’ argument that it would be a great economic burden for them to bring the suits in Spain because in Spain, contingency fee agreements aren’t allowed.  

if the unavailability of contingency fee arrangements weighed against dismissal, it would likely weigh against dismissal in every case. This factor therefore does not deserve “substantial weight” in the balancing . . . Further, Plaintiffs have argued only that they will face “serious financial impediments.” Notably, they have not argued, or pointed to any evidence, that these financial impediments will be prohibitive.

In other words, it might be very difficult for the plaintiffs, many of whom had lost their bread winners, to pay hourly rates for attorneys to bring the cases in Spain. But it wasn’t impossible.

Second, the court ruled that it would be cheaper for the plaintiffs to obtain witness testimony if the cases were in Spain rather than the US.

Damages testimony–from family, friends, and doctors–will be necessary for each of the 100 victims.  All plaintiffs and the decedents they represent are from outside of the United States.  The cost of travel for these witnesses alone is extremely high.  Because almost all of the decedents come from Spain, the costs associated with obtaining testimony from those witnesses in that country would be far lower.

Never mind that plaintitffs, in chosing to bring the cases in the US, were obviously willing to bear those costs. Sure, they knew it might be cheaper to bring the witnesses to court in Spain.  But it wouldn’t matter much because in Spain the cases would be next to worthless.

Cases dismissed.

The case is In re Air Crash at Madrid, Spain, on August 2, 28, 211 WL 158452 (CD Cal. Mar. 22, 2011.)

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. 

It used to be impossible for an American injured by a foreign government to sue that government in the US. If the American tried, the foreign government could assert “sovereign immunity” as a complete defense.  But now the Foreign Sovereign Immunities Act sets forth a few important exceptions to that immunity.  For example, a victim can sue the foreign government if the injury was caused by that government’s "commercial activity" in the United States.

What does this have to do with aviation law?  Many foreign airlines are owned or controlled by foreign governments. Suing those airlines — even for injuries that occur on US soil — is considered the same as suing the foreign "sovereign." Until relatively recently, it wasn’t allowed at all.

Some of the foreign airlines that have asserted the sovereign immunity Queen On Trial defense include:

  • South African Airways 
  • Lufthansa
  • Garuda Indonesia
  • Air France
  • Lot Polish Airlines
  • Air Afrique
  • Austrian Airlines

Many aviation manufacturers are also owned or controlled by foreign governments. Were it not for the "commercial activity" exception, they too would be completely immune from suit.  Some of those manufacturers that have been treated as foreign sovereigns include:

  • Augusta S.p.A
  • Embraer
  • Airbus
  • Siai Marchetti

Though the "commercial activity" exception now allows the victim to sue, the foreign sovereign (or the airline or manufacturer it controls) is still entitled to special protections.  First, the "sovereign" is entitled to have the case heard in a federal court, rather than a state court.  Next, the case must be heard by a judge, not a jury.  And finally, regardless of how bad the sovereign’s conduct, no punitive damages are allowed.

I wrote here that the door on N146CK, the Cirrus SR22 that crashed August 4 at Deer Valley, opened in-flight.  Yesterday, Fox News in Phoenix aired video from a security camera that captured the impact.  Here are frame grabs from the video showing the open door. 

Cirrus Open Door

Cirrus Open Door 2

Usually, when a door pops open in flight, aerodynamic forces keep the door from opening more than an couple of inches, as depicted here.  The door on N146CK was open much more than just a couple of inches.  Of course, the aerodynamic forces operating on this aircraft were far from normal.

Full video here. (Note: the video is disturbing.)

That’s the question I’m asked most often about the case filed by the family of the passenger lost in the Tesla plane crash. 

The reason TTeslaesla wasn’t sued is simple.  Neither a passenger nor his family is allowed to sue an employer for a work-related injury or death.  Instead, they are stuck with the meager workers’ compensation benefits available to them.  Even if the death was caused by the employer’s negligence, the family can’t bring the employer into court.

But as I told the New York Times when they called today, it gets worse.  The family isn’t allowed to sue the co-employee either.  Or, for that matter, the co-employee’s estate. 

There are very few exceptions to the workers’ compensation rule prohibiting an injured employee from suing a co-employee.  I’ve discussed those before here.  None of the exceptions seem to apply in this case.  Pilot error or not (and that’s debatable at this point), you can bet that the pilot’s estate will be asking very early on to have the case against it thrown out.

The family of one of the Tesla employees lost in last year’s Cessna crash at East Palo Alto has filed suit against the estate of the Cessna’s pilot.  The suit alleges that the pilot’s decision to takeoff in foggy conditions was negligent.

The air traffic controller told [the pilot]: "The runway is not visible so it’s at your own risk." Thirty seconds later, the controller repeated: "I cannot clear you for takeoff because I don’t have visibility on the runway, so the release is all yours and it’s at your own risk, sir."  [The pilot] replied: "OK," and took off anyway.

The pilot had received his "release."  (". . the release is all yours".)  That means that air traffic control had reserved airspace for him so that, once off the runway, he could safely fly in the clouds.  But the pilot had not been issued a takeoff clearance. ("I cannot clear you for takeoff.")  What was that about?

When a tower controller clears a pilot for takeoff, the controller is assuring the pilot that there is no one on the runway that the pilot needs to worry about hitting.  If the controller can’t see the departure path due to restricted visibility, he can’t clear the pilot, and so the takeoff is at the pilot’s "own risk." 

But just because the controller can’t see the runway from up in the tower cab, it doesn’t mean the pilot can’t.  And as long as the pilot can see what lies ahead, there’s really no problem. 

The helipad at Palo Alto airport is on the southwest side of the field.  The tower controller’s view of that area is blocked by obstructions.  As a result, every helicopter takeoff, regardless of the weather conditions, is at the pilot’s "own risk."  It’s up to the pilot to make sure he doesn’t hit something.  That’s standard procedure.

No one would argue that every helicopter pilot who takes off at his own risk is thereby negligent.  Hard to see why the Cessna pilot should be viewed any differently.

The FAA has issued a new rule requiring that charter airlines and helicopter operators train their employees in “crew resource management,” or cockpit teamwork, just as the major airlines do.

The FAA estimates that complying with the rule over the next 10 years will cost the charter industry $12 million. But it also expects that the new rule will result in fewer accidents, saving 20 lives over the same period. 

Is it worth it? According to the FAA, yes. Government bean counters figure that the value of a human life is $6 million. So the “savings” to society over the 10 year period is $120 million – ten times the rule’s expected costs.

The government analysis is here.