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[Topics] [Phillip Kolczynski's Biography]
This section of the Aviation Law Forum is devoted to issues related to Aircrash Liability:
Airports, Fixed base Operators, Aviation Management, Airlines,
Commuter and Air Taxi Ops, Pilots and Co-Pilots, Flight Instructors,
Air Traffic Control, Maintenance, Owners, Federal Government, State Government,
Chart Makers, Brokers.
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If I as an aircaft owner and the pilot require all passengers and their spouses
to sign a waiver agreeing not to sue me or my estate for any reason, will this
document cause the dismissal of a case brought by a signer? The document
describes the danger of flying, and states that the passenger understands and
will assume all risks, before being allowed into the aircraft.
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I would be surprised if any Court in the United States upheld a
disclaimer, signed by your passengers and their spouses "agreeing not to
sue you or your estate for any reason" connected with your actions as an
aircraft owner and pilot, if you should be responsible for an air crash
which injures or kills them. I know of no cases upholding disclaimers
in the circumstances you have described. The public policy behind the
laws of the United States is to hold people financially responsible if
they negligently injure others. Would you sign a waiver, exonerating a
doctor who is to operate on you, for all malpractice and amy injury he
may cause you through his negligence?
AS PILOT IN COMMAND, YOU ARE RESPONSIBLE FOR THE SAFE OPERATION AND
LANDING OF YOUR AIRPLANE. PHIL
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During a discussion with some other pilots the following scenerio came up; Two
Pilots with commercial, instrument ratings rent a single engine plane to go to a
business meeting. While they were in the meeting the weather deteriated to the
point that they did not feel confident that they were current enough to make the
return flight. They then hired another commercial rated piolt to fly them in
their plane back home. During the flight the plane crashed and all aboard were
killed. It was determined that the cause of the crash was pilot error and not any
problem with the plane.
There was a disagreement between the pilots in the
discussion. Some believed that the surviving relatives should be able to recover
damages from the pilot who was hired to make the return flight. Others believed
that the surviors could not recover damages because the two pilots were rated
pilots and they should have known that single engine IFR flight is inherently
dangerous and it is obvious that they knew this by not attempting to make the
flight themselves and hiring another pilot to fly instead. My argument with
this train of thought is does this mean that survivors of persons holding a
pilots certificate, who is involved in an airplane crash, are prevented from
collecting damages becaust the pilot has some more knowledge than the average
person of the dangers invovlved in flying? Who is correct in this scenerio?
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Thank you for the excellent hypothetical question. When two non
current pilots hire a current pilot with appropriate licenses and
ratings to conduct a flight operation, they are expecting him to act as
pilot in command of the aircraft and to be responsible for the safety of
the flight. As PIC, the "designated driver" is potentially liable if a
pilot error on his part causes a crash.
If the other rated pilots aboard were not acting as crew members or
assisting the pilot, they should not be held legally responsible for the
accident, expect under certain limited exceptions.
There is a business relationship called a Joint Venture in which people
jointly control the enterprise or operation at issue involved and
therefore, can be jointly liable if the enterprise or operation is
conducted negligently. I have handled cases where I have argued that
non-flying but rated pilots, acted as joint venturers with the PIC, and,
thus, should be held jointly liable for accidents, which they could have
prevented through the exercise of the control they enjoyed as joint
venturers.
I cannot speculate as to whether or not the joint venture principal
would apply to your hypothetical accident, because I do not know from
your question, exactly what went wrong on the flight.
A single engine IFR flight is not inherently dangerous, as long as the
flight is performed in accordance with the FARs and the good operating
practices and procedures found in the Airmen's Information Manual, FAA
Advisory Circulars, Training Manuals, Instrument Flight Guides, etc.
One final point, in many states, those that are responsible for an air
crash accident have pure comparative fault. That is, each party
responsible is assessed a percentage for their degree of fault. Thus,
the families of the passenger pilots may still be able to recover
damages from the insurer of the pilot in command (minus their spouses
percentage of fault), even if their spouses had some comparative fault
as joint venturers. Be aware that more conservative states cut off
recovery by negligent parties if they are 50% greater at fault.
THE PILOT IN COMMAND IS PRIMARILY RESPONSIBLE FOR SAFETY LANDING AN
AIRPLANE REGARDLESS OF HOW MANY PILOTS ARE ABOARD. PHIL
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Phil: If a TV station contracts with a helicopter company to provide dedicated service to
the station. The helicopter company provides pilot,maintenance and
insurance. The TV station provides camera and crew (photographer and reporter) and
direction (where the story is). My question is, if the helicopter crashes due to an
engine failure, is the TV station liable for damages from the crash victims family? It
would seem that the familys could sue the engine and aircraft manufacturer along with
the helicopter co. and pilot. How could the TV station be liable? and using the same
scenario as above, if the TV station owned the helicopter co. and leased the aircraft to
the news department would they not be more likely to lose a suit in a similiar situation?
one other difference would be the pilot in the last example works for a
non-related management company which contracts to provide pilotage service to the TV
station.
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Your hypothetical scenario is somewhat analogous to the Twilight
Zone litigation that I handled in Los Angeles over ten years ago. The
Twilight Zone case was a John Landis/Steve Spielberg production of
"Twilight Zone-The Movie," in which the actor, Vic Morrow, portrayed a
bigot who had the tables turned on him. In the accident scene, my
client, the pilot, was hovering over a make believe Vietnamese village
when special effects explosions allegedly caused the helicopter to
become disabled and to crash, killing Vic Morrow and the two child
actors that were in his arms at the time. All parties were acquitted in
a criminal negligence trial and we settled the civil case.
In your hypothetical, the helicopter company appears to be an
independent contractor. Thus, as long as the helicopter company and the
pilot are a separate business and make all of the decisions concerning
the operation of the helicopter, maintenance, etc., your TV station
should not have liability. Of course, it would be a good idea to have
the helicopter company include your TV station as an additional insured
on their aviation policy.
In your second question, the TV station is now the owner of the
helicopter. Recognize that once an owner starts to direct the
activities of the air crew or gets involved in maintenance, the exposure
goes way up. In some states, owners who are not operators have
liability limitations (max. dollar exposure) as long as they do not get
involved in the supervision or maintenance of the aircraft. Laws vary
from state to state on this issue.
In your final question, you set up another layer of independent
contractors in the form of a management company that provides the pilot
and the helicopter to your TV station. While the involvement of a
management company can affect Workers' Compensation and business
contractual issues, the air crash liability should be about the same as
in the first hypothetical as long as you don't control operations or
maintenance. (See, Aviation Law Forum Disclaimer).
The unspoken question here is when can the TV station be liable for a
news helicopter crash? In some states, negligence law is interpreted
very broadly. Thus, if it is foreseeable that a party's conduct could
be a substantial factor in causing someone's injury, then that party may
be held liable if their conduct is one of the causes of injury. If you
persuade the pilot to get too close to a dangerous situation that
resulted in injury to bystanders, you may be held liable. (See, Aviation
Law Forum Disclaimer).
AVOID HEADLINES THAT READ "TV NEWSCOPTER LANDS IN COURT!" PHIL
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How effective is a disclamer? What should and be included in this statement and what
areas should be avoided?
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Thank you for the excellent general question. I am answering
your question only in the context of an aviation operation where persons
wish to sue the operator who is interpreting a disclaimer the persons
had signed. Please do not construe this answer as applying to every
kind of disclaimer in all circumstances. (See, Aviation Law Forum
Disclaimer).
Courts in some states have upheld limited aviation disclaimers for
certain types of recreational activities, such as parachuting. Here are
some of the key points to be considered in deciding whether the
disclaimer will be upheld. First, courts refrain from upholding
disclaimers in operations involving the common carriage of members of
the public for hire. Second, aviation disclaimers must be extremely
specific and the language in it must be very conspicuous, so as to alert
the signatory that they are giving up rights to bring a lawsuit if they
sign the disclaimer. Any ambiguous language, tiny fine print or guarded
wording will be construed against the parties seeking protection from
the disclaimer. Third, the disclaimer can only protect against risks
which are known to the person who signs the disclaimer.
A typical problem with disclaimers is that they are used to try and
protect a party against liability for a risk that was not contemplated
by the signatory. Thus, in a takeoff accident involving parachutists
who have signed a skydiving disclaimer, the operator of the aircraft
will probably be unable to hide behind the disclaimer if the cause of
the crash is an engine failure due to the operator's sloppy
maintenance. A parachutist signing a disclaimer may have anticipated
risks associated with jumping out of a perfectly good airplane. They
probably did not anticipate that the airplane would be unairworthy due
to negligent maintenance.
There are other factors which must be considered when drafting
disclaimers. An attorney knowledgeable in such areas should be retained
before any party attempts to draft or use a disclaimer. Similarly,
anyone who is asked to sign a disclaimer should read every word in it
and question the person who offers them the disclaimer, before they
sign it. If anything needs clarification, they should require the
person offering them the disclaimer, add that clarification in writing.
If they are still not satisfied with it, don't sign it or cross out what
they don't like. If they sign it, they should recognize that their
success in bringing a lawsuit if they are injured may be severely
limited if the disclaimer is enforced.
In my personal opinion, disclaimers should be encouraged. There is a
current trend in the law which is returning responsibility to the
individual. A properly worded disclaimer requires a person to take
responsibility for an activity if they want to engage in that activity.
In my opinion, this is good.
PLEASE READ MY AVIATION LAW FORUM DISCLAIMER ON LANDINGS! PHIL
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When US Carrier operate into another country,a Caribbean Island for example, where there
is no emergency medical response capability (unlike Guam where there was big US Military
presence), what is the US Carrier's responbsibility for emergency planning and response?
What is the US Government's responsibility to the US citizens on the US Aircraft? I
am primarily interested who is responsible for the emergency response to survivors of a
crash (not the notification and handling of the next of kin). (For your information,
most Caribbean Island governments have no emergency medical response capability,
have not contracts for it and do not plan to enhance their capability in the (near)
future)
PS I really like your answers and the humor which accompanies them!
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Thank you for the excellent questions. Before I begin, I would
recommend that if you are a representative of a U.S. air carrier, it is
well worth it for you to retain an aviation attorney to obtain a
thoroughly researched opinion on this issue, given the amount of
exposure involved.
I am going to assume from your question that the foreign country owns
the airport., as opposed to some private business within that country.
I'll also assume that the foreign country fails to provide adequate
rescue and/or medical emergency services.
First, the U.S. Government will have no responsibility on foreign soil
for these services. The executive branch might decide to offer
humanitarian aid in the event of a major disaster, with the agreement of
the foreign nation. This should be distinguished from the technical
investigative assistance of agencies of the U.S. Government, who are
often invited by foreign governments to assist with post-accident
matters in accordance with the ICAO treaties.
Second, if I were representing plaintiffs who were injured or killed
when a U.S. Carrier crashed at an airport abroad, I would argue that the
U.S. Carrier, who had sold tickets to all comers as a "common carrier,"
would have the "highest duty of care" for its passengers, regardless of
where they travelled. I would argue that this "highest duty of care"
means that the U.S. Carrier could be held liable, if the carrier knows
that a destination airport is not supported by adequate emergency
services, and that it is foreseeable that injuries may be aggravated by
the lack of a sufficient emergency service (the "highest" duty of
care).
On the other hand, when representing the U.S. Carrier, I would argue
that it is not feasible for a U.S. Carrier to provide airport rescue and
emergency medical services on an international basis. Further, I would
argue that it is not "custom practice" in international air travel for
the air carrier to be responsible for services that are normally
provided by host government airport facilities. In this regard, it
would be helpful if my hypothetical client "carrier" had warned the
passengers with conspicuous language in the ticket that the destination
airport in some locations may not provide the same level of emergency
services as travellers are accustomed to within the U.S.
CAN YOU FORESEE THE LIKELIHOOD OF AN AIRPORT LANDING ACCIDENT? PHIL
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Dear Phil: A friend of mine is a pilot for a small company that
transports hikers, skiers and mountain bikers to remote locations, on a
drop-off and pick-up basis. He crashed while landing on an unimproved
strip and everybody aboard suffered injuries. My friend is concerned
that he will be personally sued as a result of this accident. Isn't the
charter company the party that is really liable? FRIEND OF A
FRIEND
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Dear Friend: Assuming your friend (not you, I hope) was within the scope
of his employment when he was attempting this landing, and assuming that
the crash was his fault, his employer will normally be liable for his
pilot errors. This concept is known in the law as respondeat superior,
which makes the master liable for the servant's negligence. However,
just because the employer is liable for the employee's negligence, does
not preclude a lawsuit against the pilot. Your friend could be sued in
most states. However, plaintiffs' attorneys may refrain from suing the
pilot and simply sue the employer, if there are sufficient insurance or
employer assets to pay for the damages. Plaintiffs will have an easier
job suing the charter operator. Charter operators who carry fee paying
members of the public are usually held to the "highest standard of care"
for their passengers. Thus, it is easier to prove their negligence.
Hopefully, the insurance company for your friendâs employer, will be
able to settle the matter quickly and obtain a release not only for the
employer, but also for your friend.
Comment: If the pilot-employee was at fault, the employer could,
theoretically, seek indemnification from the pilot employee. However,
most employers do not do sue their employees because the employees
usually do not have sufficient assets to pay for the damage. Moreover,
suing one's employee would set a bad example for all future
employer/employee relations.
SURVIVE ALL LANDINGS! PHIL
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