Information
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.
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