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Aviation Accidents — How to Achieve Justice for the Victims of Aviation Accidents and their Families

John D. Winer, San Francisco

A. Who Is Entitled to Bring a Lawsuit Based on Injuries Stemming from Airplane Accidents.

Clearly, any passenger who is injured in an airplane accident, or the heirs of any passenger who is killed, are entitled to bring a lawsuit, as long as someone is at fault for the injury.

The pilot or co-pilot of the airplane, or their heirs, are also entitled to bring a lawsuit if they can establish that the sole cause of the airplane crash is not pilot error.

People who are not in the airplane, yet are injured or killed by an airplane (for instance, an airplane crashes into another airplane or an airplane crashes into a house) are also entitled to bring a lawsuit.

Under certain limited circumstances, primarily if a close relative is in the airplane, people on the ground may be able to bring a lawsuit for their emotional injuries if they witness an airplane crash, are close to the scene of the airplane crash and know that their close relative is on board.

If a loved one dies in an airplane crash, the survivors can recover if their decedent’s death was caused by the fault of any person or entity. Only certain relatives can recover damages based upon California estate law. You should consult with an attorney to see who can bring an action in any particular case.

The spouse of the injured plaintiff can also bring his or her own lawsuit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.

B. Who Can Be Found Liable for Airplane Accidents.

i. Pilots.

a. Typical wrongful acts of pilots.

Under California and federal law, a pilot can be found negligent for a multitude of errors including:

  • negligence in take off
  • negligence in landing
  • negligence in taxiing
  • failure to keep a look out
  • landing with insufficient visibility
  • failure to comply with traffic patterns
  • failure to obey right-of-way rules
  • failure to appropriately choose a landing field
  • failure to maintain proper altitude
  • failure to maintain proper speed
  • failure to maintain proper direction of approach
  • failure to appropriately assess wind conditions
  • flying with insufficient experience
  • failure to anticipate turbulence or other air or weather conditions
  • failure to advise passengers to turn on their seatbelts in anticipation of or during the turbulence
  • failure to turn on propeller deicers under appropriate circumstances
  • in certain circumstances, overloading or improperly positioning the load
  • violations of Federal air regulations or customary or recommended operating practice
  • failure to search thoroughly and diligently for other aircraft

b. Pilots need to operate an airplane within standard of care but no expert testimony necessary.

There are many other potential acts of negligence of a pilot, that will vary from case to case. Generally speaking, a pilot, especially in a private airplane, owes a general duty to the passengers to operate the airplane within commonly accepted standards of care. However, unlike a medical malpractice case, the testimony of an expert, even if desirable, is not needed to prevail.

c. Pilot owes duty of care to all those who share control of an aircraft.

The pilot owes a duty of vigilance to all those who share control of the aircraft including a student pilot and a flight instructor.

d. Pilot may sometimes rely on assurances of air controller clearance.

Under some circumstances, a pilot’s reliance on air controller clearance may provide evidence of the pilot’s reasonable behavior under the circumstances; however, it does not necessarily relieve the pilot of the ultimate responsibility for the safe operation of the aircraft.

ii. Owners and lessors.

The owner or lessor (renter) of an aircraft is liable for his own negligence in “entrusting,” i.e., turning over an aircraft to improper or ill-trained pilots or in furnishing a qualified pilot a defective airplane, or both. Typically, these cases involve lessors who rent an airplane without properly checking the pilot’s credentials and without attempting to ensure that the pilot has the experience and training necessary to operate the airplane according to the pilot’s stated flight plan.

The owner of an aircraft is liable for death or injury resulting from the negligence or wrongful act of any one operating it with the owner’s express or implied permission.

However, there are strict limitations to the financial responsibility of an owner to accident victims. That is, damages against the owner “merely for owning” an aircraft involved in an accident is $15,000 for the death or injury of one person and $30,000 total for two or more people. That is why in the case of a private airplane not flown by the owner, it is essential to find some additional negligent act of the owner in maintaining, entrusting or leasing the airplane or to find another viable defendant such as the pilot, employer of the pilot, manufacturer or other potential defendant to sue.

If the airplane is driven by an employee of the owner, as opposed to a third party who rents the airplane, then the owner is responsible for the pilot’s negligence or misconduct beyond the $15,000/$30,000 compensatory damage cap applied to negligent entrustment cases.

iii. Employers.

If an airplane is flown by an employee of the owner, then the owner under California “respondeat superior” laws will automatically be found liable for the negligence or improper act of the pilot, as long as it can be demonstrated that the pilot was acting in the course and scope of his or her employment.

Under some circumstances, an owner may be held liable for the negligence of an “independent contractor” that is hired to fly an airplane if the owner maintains sufficient “control” of the independent contractor’s use of the airplane.

In the case of commercial airlines, or even privately owned planes, an employee of the airline or the private owner cannot sue the employer if the employer carries worker’s compensation insurance. The exclusive worker’s compensation remedy of the employee and his or her heirs in a death case against the employer is very limited damages. However, note that these employees and their heirs can still sue potential defendants in the case other than the employer.

iv. Manufacturers and suppliers.

a. California Strict Liability Law applies to airplanes.

California product liability law applies to manufacturers, sellers and suppliers of planes.

b. If defective condition caused a crash, do not need to prove negligence.

Thus, the manufacturer or another business in the “chain of distribution” of the airplane may be found strictly liable without proof of negligence if plaintiff can prove the existence of a defective condition which caused the airplane to crash.

c. Three types of defective conditions under California law.

Defective conditions which can form the basis of strict liability include the following:

  • a manufacturing defect — i.e., an airplane or one of its component parts that was not manufactured according to the specifications of the company that manufactured it.
  • a design defect — i.e., a condition in which an aircraft or component part met the specifications of the manufacturer; however, it is found that the design of the part or airplane, in and of itself, was defective and the design did not meet consumer expectations or the risks of the design outweigh the benefits.
  • defective warning — i.e., when the airplane or component part is marketed, the manufacturer or supplier failed to include on the product or its packaging adequate instructions on safe use or adequate warnings of dangerous characteristics that are not obvious.

d. FAA certification does not necessarily absolve manufacturer from liability.

The Federal Aviation Administration certificate that the design of an airplane has met all applicable safety standards does not absolve the manufacturer from liability if it is found that the design of the aircraft actually violated Federal Aviation Administration safety standards.

v. Chart publishers.

Publishers of approach charts for the guidance of pilots are subject to product liability rules for defective products. Further, “chart sellers” are also subject to California product liability rules and cannot escape liability by alleging that the chart was defective due to the negligent conduct of another such as a person or entity who provided information that went into the chart.

vi. Repairers.

Independent repairers or servicers of aircraft are not subject to California strict product liability law. However, liability against these potential defendants can be maintained if the plaintiff can establish negligence in repair or maintenance of the aircraft.

Of course, if the servicers or repairers are employees of an airline or the owner of a private airplane, the owner remains responsible for all damages caused by these employees in the course and scope of their work.

vii. Air traffic controllers.

Air traffic controllers are Federal employees; thus, a claim against an air traffic controller in an airplane accident case must be brought under the Federal Torts Claim Act within two years of the date of the accident.

Although there are some statutory exceptions, air traffic controllers, like all Federal employees acting in the course and scope of their duties, are responsible for injury to others caused by their negligence.

Under the Federal Tort Claims Act, the rights and liabilities of the parties are governed by the jurisdiction where the conduct occurred. Thus, suits arising out of California accidents are usually controlled by the general negligence law of California. Therefore, if the alleged negligence of the air traffic controller occurred in California, then California law will apply.

Unless the air traffic controller has a reason to be aware of or anticipate a pilot’s unlawful or negligent act, the controller cannot be found negligent for failure to anticipate a pilot’s improper conduct.

On the other hand, compliance with Federal Aviation Administration manuals does not necessarily protect an air traffic controller from a suit for negligence if the facts and circumstances of a situation indicate that it would be reasonable for the air traffic controller to have done more to avoid an accident.

Under the law, both the air traffic controller and the pilot have joint responsibility to avoid accidents; however, pilots are generally found to have the ultimate responsibility for safe operation of an airplane and a controller is not necessarily negligent for failing to demand that a pilot execute a particular procedure of which the pilot was reasonably expected to know.

viii. Federal Aviation Administration.

To hold the Federal Aviation Administration liable for an accident, a plaintiff has to demonstrate that the negligence of the FAA occurred within its “ministerial” functions as opposed to its “discretionary” functions.

Thus, for instance, liability may be found against the FAA for publishing a dangerous traffic pattern for an airport approach and failing to revise that pattern after being warned of the danger. On the other hand, the FAA cannot be found negligent for certifying an airport for commercial use since this is found to be part of the discretionary function of the agency.

ix. The military.

Under the Federal Tort Claims Act, the Federal government is responsible for the negligent operation of aircraft by military pilots in the course of duty or when a plaintiff can demonstrate a failure to warn airline companies of dangerous military activity operations in an area flown by airlines.

x. Commercial airlines and other companies that charge a fee to airplane passengers owe a special duty of care to passengers.

An airline or any other company that charges passengers to fly in its airplane is considered a “common carrier” under California law; thus, it has a duty to use “the utmost care and diligence for passenger safety.” This is higher than an ordinary negligence standard.

The carrier’s duty of utmost care applies throughout the passenger’s transportation including boarding and exiting from the aircraft.

The duty of utmost care applies to both the operation of the aircraft and the maintenance of the aircraft. Even if the airline hires an independent contractor to perform maintenance, the airlines remains responsible for the negligent acts of the independent contractor since the common carrier’s duty to maintain the aircraft is “non-delegable,” i.e., there is no way that an airline can get out of responsibility for maintaining the airplane by hiring an outside maintenance firm.

If the flight in question is one for which passengers are ordinarily charged a fee, then the airline or private company owes a duty of at least ordinary care and due diligence even for non-paying customers, even though it may not owe the “utmost care.”

C. Limitations on Airline Liability for International Flights.

i. International flights generally.

There are major limitations on liability and damages for airlines in international flights.

The 1929 Warsaw Convention created a multinational treaty. The Convention makes air carriers engaged in international flights liable for injuries sustained by airline passengers if the accident that caused the damage occurred onboard the aircraft while boarding or exiting the airplane. However, the Warsaw Convention created strict damage limitations which will be mentioned below.

ii. Absolute liability but limited damage payments by airlines.

In 1966, a document called the “Montreal Agreement” was reached where airlines who signed on to the agreement accepted absolute liability for injury to passengers on international flights that had a point of departure or a stop in the United States. However, this acceptance of “absolute liability” which would waive any potential defenses of the airline came at a severe price to passengers and their heirs who are limited to a total damage recovery of $75,000.

iii. $75,000 limitation applies only to international flights against airlines — product liability and other theories of liability are excluded.

Note that the $75,000 limitation applies only to liability of the airline on international flights “that had a point of departure or a stop in the United States.” Strictly domestic flights do not result in either “absolute liability” of the airline or the $75,000 damage limitation. Further, the absolute liability and damage limitations apply only to cases against the airline and not to manufacturers or suppliers of the aircraft. Further, not all airlines have signed on to the Montreal Agreement of 1966.

Further, some airlines have agreed to a proposed Transportation Department regulation allowing them to waive the $75,000 damage limit.

iv. If plaintiff can prove wilful misconduct, the $75,000 limitation does not apply.

An important exception to the limitations of the 1929 Warsaw Convention is that injury or death caused by a carrier’s “wilful misconduct” are not subject to the Convention’s limitation on damages. Frequently, in cases involving international flights, a critical battleground is whether the behavior of the airline constitutes “wilful misconduct.” Recognizing the harsh damage limitations imposed upon the heirs and survivors in international airplane crashes, jurors and judges seem to want to find a way to rule that the misconduct of the airline was “wilful.”

v. Plaintiffs are entitled to no recovery for purely emotional distress without an accompanying physical injury.

Also, the Convention allows recovery for physical bodily injury and not for emotional distress alone. Plaintiffs are probably entitled to recover for emotional distress arising out of a physical injury, but not for emotional distress standing alone.

vi. Even further limitations for damage for crashes “on the high seas.”

In terms of airplane crashes “on the high seas,” a plaintiff’s heirs are limited to the recovery of their financial losses, i.e., loss of financial support of the decedent. There is no recovery for emotional distress of the decedent or the loss of society, comfort, care of the survivors.

vii. Warsaw Convention trumps State law liability.

The Warsaw Convention has been found to “preempt” State tort liability. Thus, even if an international flight crashes in California, the Warsaw limitations will apply, not California law.

viii. Punitive damages are barred.

Also, punitive damages are barred under the Warsaw Convention.

D. Proving Airplane Accident Cases.

i. Actual evidence of what caused an airplane crash may be difficult to find.

Obtaining proof of the cause of an airplane accident can be extraordinarily difficult because, frequently, there are no survivors who can testify as to what happened and the airplane itself is so obliterated by the crash that it is hard for FAA investigators to piece together the cause of the crash.

ii. A legal theory called “res ipsa loquitur” helps plaintiffs win aviation cases.

Plaintiffs are usually aided in an airplane crash case by the doctrine of “res ipsa loquitur” which means that if the following three conditions are met, there is a presumption of negligence:

  • the accident is of a kind that ordinarily does not occur absent someone’s negligence.
  • the accident or injury was caused by an agency or instrumentality within the defendant’s exclusive control.
  • the accident or injury was not due to any voluntary action or contribution of the plaintiff.

Thus, in almost every airplane case brought by anybody other than the pilot or co-pilot, there will be a presumption of negligence if the airplane crashes.

iii. Even pilots or their survivors can sue for injuries and death in an airplane crash if someone other than the pilot or employer is responsible.

Note that pilots cannot sue their employers; however, they can bring a lawsuit against the manufacturer and supplier of the airplane or other parties mentioned in “B” above if plaintiff can prove negligence of other parties. This would also be true for flight attendants, who can not sue their employer if the sole cause of a crash is the airline or the pilot.

iv. Res Ipsa Loquitur can make an impossible case to prove, provable.

The doctrine of res ipsa loquitur protects plaintiffs in cases such as an airplane crash where it is very difficult, if not impossible, to establish the precise cause of the crash.

v. Violation of statute or regulation may lead to liability.

Plaintiffs are also aided in proving aviation cases if they can establish the violation of a safety statute or regulation. Such a violation creates a presumption of negligence and shifts the burden to the defendant to prove that it was not negligent. There are many statutes regulating the aviation industry; therefore, these statutes should be carefully researched.

However, the violation of a statute will not create a presumption of negligence if it was not intended to protect the public from the kind of injury which a plaintiff or their heirs suffered in the airplane accident.

E. Investigating Aviation Accident Cases.

i. Plaintiff should obtain report of every government agency who investigates an aviation crash.

Federal agencies investigate all airplane accidents. It is critical that a plaintiff attempts to receive the report of the appropriate agency as soon as possible after an accident. This report, although not definitive on any issue of liability, will contain useful information which can be developed in the case regarding potential causes of the accident and potential defendants.

ii. Notice to inspect the aircraft and documents relating to the flight.

Once a case is filed, the plaintiff’s attorney should immediately make a notice to inspect the aircraft or its remains as well as all document relating to the flight. The inspection and document review should be conducted by one or more aviation experts along with the plaintiff’s attorney.

iii. Investigation may be necessary to prove wilful misconduct in international flight or to establish liability against any person or entity other than the pilot or airline.

Frequently, in the case of either international flights with the Warsaw limitations, or local flights with uninsured or underinsured pilots, plaintiffs are going to have to find evidence of “wilful misconduct” in the case of international flights or some other liable defendant to sue such as a lessor, product manufacturer or government agency, if they are going to receive just compensation. It is critical that the investigation begins as soon as possible because relevant evidence can be lost over time.

iv. Documents that should be secured as part of investigation.

Before the case if possible, or during the case if informal discovery is impossible, the plaintiff’s attorney must attempt to secure the following documents:

  • history of prior problems with the subject airplane.
  • history of prior problems with the type of airplane involved in the crash.
  • the report of the Federal investigative agency(s).
  • history and maintenance of the subject airplane.
  • maintenance policies of the owner of the airplane.
  • flight plan.
  • record of all conversations between the flight crew and control tower and any other communications to or from the subject airplane.
  • testimony of any passenger or airline employee who survived the crash.
  • testimony of any other pilot who saw anything before the crash or communicated with the crashed airplane’s pilot.
  • a history of similar accidents.
  • any warnings received by the owner or manufacturer of the airplane regarding potential problems or defects.
  • fueling records.
  • airport guidelines.
  • all information regarding the pilot’s background.
  • all lease agreements between the owner and lessor of the airplane.
  • all agreements between the owner, lessor and pilot of the airplane.
  • all evidence that the pilot was or was not appropriately “checked out” before the flight.

investigation of all the pilot’s training and what was revealed to the owner or lessor of the airplane.

  • a pilot’s flight log or history of prior flight experience.
  • inspection of the accident site where possible.
  • inspection of each and every part of the remaining airplane which may have contributed to the accident.

The above list is not by any means complete, but it gives one an idea of the extent of investigation that is necessary to be successful in an aviation accident case.

F. What Damages are Recoverable in Wrongful Death Aviation Cases?

i. What is the “just damage” rule?

California Code of Civil Procedure section 377 entitles claimants in aviation cases to such damages “as under the circumstances of the case may be just.” (However, see section “C” above for a discussion of limitations in recoverable damages on some international flights.)

ii. Can the heirs recover monetary damages?

California cases have further defined wrongful death damages to include the value of future monetary contributions from the decedent to the heirs and the value of any personal service, advice or training that would have probably been given. (However, see section “C” above for a discussion of limitations in recoverable damages on some international flights.)

iii. What emotional distress damages are allowed?

Damages also include compensation for loss of love, companionship, comfort, affection, society, solace or moral support or any loss of decedent’s physical assistance in the operation or maintenance of the home. (However, see section “C” above for a discussion of limitations in recoverable damages on some international flights.)

iv. Are damages for grief recoverable?

The law does not allow recovery for grief or the pain and suffering of the heirs. Instead, damages are focused on the emotional losses suffered by the heirs as discussed above.

v. Are damages for decedent’s pain and suffering recoverable?

No. Damages for the decedent’s pain and suffering are not recoverable in a wrongful death aviation case.

vi. Are the survivors allowed to recover punitive damages against the defendant?

Punitive damages are recoverable only in a survival action. If the decedent died at the moment of impact, punitive damages, which are damages meant to punish the wrongdoer, are not recoverable.

There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.

G. Time Limitations.

Although there are a few exceptions, generally speaking in California a case for wrongful death must be brought within one year of the date of the accident/incident. In rare cases, that time period is extended to one year from the date of the discovery of a wrongdoing and/or an injury. However, be careful. If the case is against a public entity, the claim must be brought within six months of the date of the accident. Except in cases against public entities, minors have until their 19th birthday to bring a case.

H. What Damages Are Recoverable in a Serious Injury Aviation Accident Case?

In a serious injury aviation accident case, plaintiff can recover for past medical expenses, future predicted medical expenses, past wage loss, future predicted wage loss and for past and future pain and suffering.

The medical expenses are determined by the testimony of physicians or other health care providers. Frequently, an economist or an expert in the industry determines the amount of future wage loss; however, no expert can testify to the value of pain and suffering.

Pain and suffering is typically the most significant element of a plaintiff’s damage and it includes emotional distress. Contrary to popular belief, there is no formula for pain and suffering awards and it varies greatly from case to case depending upon the location of the case, the seriousness of the injury and how well the case is presented.

(However, see section “C” above for a discussion of limitations in recoverable damages on some international flights.)

I. Claim for Loss of Consortium.

A plaintiff’s spouse can also sue and recover damages for ‘loss of consortium.” A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse’s unavailability due to their injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.

There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.

J. How Soon Must a Personal Injury Case Be Brought After an Aviation Accident?

Although there are a few exceptions, generally speaking in California a case for personal injury must be brought within one year of the date of the accident/incident. In rare cases, that time period is extended to one year from the date of the discovery of a wrongdoing and/or an injury. However, be careful. If the case is against a public entity, the claim must be brought within six months of the date of the accident. Except in medical malpractice cases and cases against public entities, minors have until their 19th birthday to bring a case.

This article was authored by John D. Winer. Winer, Burritt & Scott, LLP

specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.

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