Updated February 12:
A Cirrus SR-20 single engine aircraft collided with a Pawnee tow plane that was pulling a glider. The Cirrus reportedly ran into the Pawnee’s tow line. The Pawnee crashed and the pilot was killed. The occupants of the Cirrus were also killed. The glider pilot, however, recognized the impending collision, released his aircraft from the tow line, and landed without injury to himself or his two
Continue Reading Cirrus – Pawnee Mid-Air Collison Near Boulder, Colorado
This week, aviation accident attorneys from across the country met on Maui to discuss current topics in aviation law. This was part of the American Association of Justice’s Winter Convention. I was honored to have been asked to speak. My talk was on Hawaii helicopter crash litigation — a topic with which we are — unfortunately — perhaps too familiar.
I covered the profits, accident statistics, the poor safety record, lack of insurance, the popular equipment (including the Eurocopter AStar); and the FAA’s unfortunate lack of heli-tour industry oversight. Powerpoint available here.
As it turns out, my presentation was a bit controversial. The tour industry was a sponsor of the convention. And I ripped into it. On the flight back to San Francisco, someone asked me whether that made me uncomfortable, given that AAJ actually promoted the tours. In fact, the blogosphere was chiming in about it before I even spoke. Carter Wood, blogging on PointofLaw.com, questions the appropriateness of my topic:
That’s the way you pay back Hawaii’s hospitality? ‘Fly like a tropical bird, and then sue!’
First, the risks are, for the most part, unknown. Unknown to people travelling to Hawaii, and unknown even to the AAJ, a group which is, generally speaking, keenly aware of industries that place profits over consumer safety. Thus, the title, "Under the Radar."
Second, I want to get the word out. It’s too important. Too many people’s lives have been torn apart by this industry. I really don’t care what “sponsors” I offend.
Icing or pilot error?
Last April, the NTSB released the data from Flight 3407’s FDR. I blogged about that here. Despite wide spread speculation that icing brought down the aircraft, it looked to me like pilot error — not weather — was to blame.
Then, in May, the NTSB released an animation derived from the aircraft’s flight data recorder, its cockpit voice recorder, and ATC transcripts. I blogged about that here. The animation, like the raw data from the FDR, made a strong case for pilot error. From the animation, it appeared to me that an inattentive pilot allowed the aircraft to get slower and slower, until it became dangerously close to the speed at which the aircraft would stop flying altogether and simply fall from the sky. Then, when the critical moment came, the pilot pulled back on the control yoke instead of pushing it forward, thereby inducing an aerodynamic stall.
The NTSB made public its official probable cause finding at a hearing yesterday. No surprises to anyone who has studied the data. According to an article in today’s Buffalo News, the NTSB summed it up as follows:
The plane got so slow that the “stick shaker” — a device that helps to prevent stalls — activated. But Renslow [the pilot] mistakenly pulled back on the plane’s controls at that point, which is exactly the opposite of what he should have done.
In total, Renslow pulled back on the controls three times in response to the stick shaker and “stick pusher,” forcing the nose upward. That caused and then exacerbated the stall.
It’s almost unimaginable that a professional pilot would make the series of mistakes that the pilot did in this case. Even a new student pilot would know better. But that’s what he did.
The NTSB played its animation for those who attended the hearing. The animation shows the pilot’s errors mount. The activation of the “stick shaker” is depicted 2 minutes and 8 seconds into the animation. The shaking control yoke was a final warning to the pilot that he must immediately push the yoke forward. But instead of pushing forward, the pilot pulled back. Three times. After the third time, the aircraft stalled and crashed.
There were countless points at which this aircraft could have been saved but, inexplicably, the pilot failed to take appropriate action.
In 1994, the FAA — hoping to reduce the number of helicopter tour crashes in Hawaii — promulgated a controversial rule that set minimum altitudes for Hawaiian sight seeing flights.
According to an article appearing this spring in Aviation, Space and Environmental Medicine, after the rule went into effect the overall number of helicopter crashes in Hawaii decreased, but the number of crashes resulting from improper VFR flight into instrument conditions increased. That mea
ns fewer overall crashes (especially ocean ditchings), but more crashes into mountainsides hidden in the clouds. The number of fatal crashes remained the same.
Although its data and methodology may be questionable, the recent report concludes:
the FAA should reconsider the Rule’s clause that established a minimum flying altitude of 1,500 feet, as we know higher altitudes are associated with more cloud cover.
This conclusion delighted the helicopter industry which opposed the new minimum altitude requirement. And a possible increase in weather-related accidents was one of the FAA’s concerns from the outset. Requiring helicopters to maintain more clearance from terrain features, and more altitude to deal with engine failure, makes it harder for them to remain clear of the clouds. But the report fails to consider the "deviations" the FAA has issued to air tour operators that allow them to fly lower than the established minimums. Depending on the number of deviations that the FAA issued, it may be unfair to blame the rule for the increased number of mountainside collisions.
It’s a modern day Scylla and Charybdis. (OK, you’ll have to indulge me, my favorite mythical allusion because it’s more accurate than saying "catch-22” or "caught between a rock and a hard place.") Is the danger posed by the close proximity to the terrain more daunting than the unpredictable cloud cover? When it spoke in 1994 the FAA said, “No — higher altitude is safer".
The easy answer: the applicant is the Pilot in Command and is fully responsible for the safe operation of the aircraft, not the FAA check pilot. But what about when the check pilot attempts to simulate an engine failure by chopping the throttle? At that point, hasn’t the check pilot assumed control of the aircraft?
Well, that’s what happened recently when another AS350 helicopter accident occurred during a check ride in Maui. The applicant, a commercially certificated air tour pilot working for Sunshine Helicopters, made a forced landing after the helicopter experienced a total loss of engine power. The helicopter was destroyed and both the pilot and the FAA check pilot suffered serious injuries.
The FAA defends the check pilot, explaining that it is routine to simulate the loss of engine power during a check ride. The air tour operator, Sunshine Helicopters, claims that while a simulated loss of engine power may be routine, the check pilot’s actions resulted in an actual engine failure over terrain unsuitable for an emergency landing. Causing an actual engine failure is anything but routine.
The F.A.A. regulations require that, to pass a check ride, an applicant must demonstrate that he is the “obvious master of the aircraft.” It follows that the applicant is presumed to be the pilot in command and responsible for the safe outcome of the flight. But if the applicant pilot can prove that the check pilot improperly interfered with his ability to control the aircraft, then he may successfully overcome that presumption and hold the FAA check pilot responsible.
Who can be held responsible for compensating the Mountain Lifeflight families, and who is immune from suit?
Maintenance. If faulty maintenance is proven to be the cause of this helicopter crash, the families can recover against the maintenance company, provided that the families can prove that the maintenance company was negligent. There is an important exception, however. The families cannot sue the company that performed the maintenance if that company was Mountain Lifeflight itself. That’s because the worker’s compensation laws immunize a crew member’s employer from suit brought by the crew member’s family. More on that here.
Pilot error. There is no reason to believe that the crash was caused by pilot error. To the contrary, as discussed here, it looks as though the crash was likely caused by a mec
hanical failure. However, assuming for argument’s sake that the crash was caused by pilot error, the workers’ compensation laws prohibit the families from suing either the pilot’s estate or the pilot’s employer.
Design defect. Other A-Star accidents similar to this one raise the question of whether the crash was caused by the helicopter’s faulty design. The families are entitled to sue the aircraft’s manufacturer, Eurocopter, and get to the bottom of the design defect issue. If the families prove that the crash was in fact caused by a defect in the design of the helicopter, then they can hold Eurocopter responsible.
But there is one hurdle the families must overcome before winning a design defect suit. The accident helicopter, N5793P, was manufactured in 1982. The General Aviation Revitalization Act, or GARA, immunizes manufacturers from liability from lawsuits arising from aircraft that are older than 18 years. At first blush, it would seem that the families have no recourse against the manufacturer at all. But there is an important exception to GARA. If the accident occurred as a result of a new part that was installed on the aircraft less than 18 years before the accident, the manufacturer can’t assert the defense, no matter how old the aircraft. And it has been reported that N5793P had been completely rebuilt only a few years before the crash. Therefore, even though the helicopter was manufactured more than 27 years ago, it’s likely that most critical parts on the aircraft were less than 18 years old, and that GARA won’t protect the manufacturer.
The Federal Tort Claims Act allows citizens who have been injured by the federal government to sue the United States. But there’s an important exception. No suit against the government is allowed when the victim is a service member injured by the negligence of the United States military.
The rule protecting the military is called the Feres Doctrine. In aviation accident cases, the doctrine bars service 
members from suing the government regardless of whether the crash was caused by the negligence of a military mechanic, air traffic controller, dispatcher or pilot.
Not surprisingly, the Feres Doctrine is controversial. It allows the military to avoid responsibility for not just simple negligence, but for gross negligence as well. Because of its unfairness, Congress has repeatedly been asked to abolish the rule, or at least limit it. (Large pdf of Congressional Hearing here.) But the Feres Doctrine remains the law. As long as the victim was an "active" service member, and the injury or death was "incident to service," the military is immune from suit.
That doesn’t mean that injured soldiers or their families cannot sue others who may have contributed to a military aircraft accident. For example, if a defect in the design of the aircraft contributed to the crash or to the injuries the crew member received, the crew member can still sue the aircraft’s manufacturer. The aircraft manufacturer may be able to assert defenses of its own, such as the "government contractor defense," but not the Feres Doctrine.
The military prepares an investigative report after every accident involving one of its aircraft. The report focuses on the military’s role in the accident. It seldom addresses whether a manufacturer or other civilian contractor may have been at fault. In fact, as discussed in this article concerning a military helicopter crash off the California coast, sometimes the report provides no answers at all. Families will often need to enlist an aviation accident attorney to conduct an investigation on their behalf. The attorney may need to file suit against the manufacturers just to obtain access to the evidence bearing on who, other than the military, may be responsible for a service member’s injury or death.
In the early stages of a lawsuit, it is often unclear which of two different defendants is responsible for an aviation accident. But as the case progresses, evidence may point to one defendant over another. When that happens, it may seem like a good idea for the victim to settle with (or dismiss from the lawsuit) the defendant whose liability appears tenuous, and
to proceed to trial against the defendant who appears blameworthy. Experienced aviation lawyers think carefully, however, before following that course, for fear of creating an "empty chair" in the courtroom.
Let’s say that, at the outset of the case, it is unclear whether the aircraft crash was caused by the defective design of a part (for which the aircraft manufacturer would be responsible), or negligent maintenance (for which the aviation mechanic would be responsible). But let’s say that, as the suit progresses, evidence is uncovered indicating that the responsibility should rightfully lie with the manufacturer. It may seem like good sense to dismiss the mechanic from the lawsuit and proceed to trial against only the manufacturer. Doing so, however, may allow the manufacturer to argue to the jury that the one truly responsible for the accident is someone who is not present in the courtroom — someone who should be seated in the "empty chair," but whom the victim decided not to bring into court.
This strategy is called "blaming the empty chair." Of course, the "empty chair" cannot defend itself. Thus, if allowed to employ this tactic, the wrongdoer can sometimes escape liability altogether.
The FAA has instituted new rules designed to keep sightseeing helicopters from colliding with airplanes that are transitioning the Hudson River Corridor near the Statue of Liberty. The San Francisco Daily Journal, California’s largest legal newspaper, published this column on how the new rules came to pass, and why they aren’t enough.
The NTSB’s preliminary report on the crash contains little more than what was in the news accounts. The report does, however, offer one bit of new information. The helicopter impacted on a magnetic heading of 230 degrees. That heading is not in line with the route from Reno to Susanville. While that might ultimately prove to be important, little can be made of that information without a careful examination of the layout of the terrain near the accident site and the roadway that the pilot might have been using to aid in his navigation.
Though the information in the NTSB’s official report is sparse, an NTSB spokesman did offer his expanded comments to Mary Pat Flaherty, a reporter for the Washington Post who has been following the poor EMS safety record during the past months. The NTSB’s Ted Lopatkiewicz told Flaherty that the Mountain Lifeflight helicopter didn’t have certain important safety equipment. Lopatkiewicz was referring to the helicopter’s lack of an autopilot, a ground proximity warning system, night vision goggles (discussed in this post), and other equipment necessary to navigate in poor weather.
But in this case the pilot was flying in good weather. He did not collide with the ground because he could not see it. Rather, as discussed here, it appears that the pilot crashed because of some type of mechanical problem with the helicopter. It’s unlikely the helicopter’s lack of advanced equipment played any role in the accident at all.
Related Posts:
Compensating the Families of the Mountain Lifeflight EMS Crash
Mountain Lifeflight EMS Helicopter Crash at Doyle, California
EMS Helicopter Safety: NTSB Pushes the Envelope
OSC: FAA Ignoring EMS Helicopter Dangers For Fear of Negative Publicity