[Topics] [Phillip Kolczynski's Biography]

Who Can Be Sued In Government & Military Air Crashes?

The more committed our citizens are to the service of their country, the greater the loss of their freedom to sue the government for their injuries. Special defenses exist for the United States and its government contractors in litigation arising from government and military air crashes, which are not available to civilian aircraft operators and manufacturers. Whether these defenses apply, depends to a large extent on the status of the victim. Moreover, there are significant differences between civilian and military cases that make handling this type of litigation more difficult:

* The National Transportation Safety Board (NTSB) has jurisdiction over serious civil air crashes. The NTSB which is made up of highly trained investigators, prepares a releasable and comprehensive accident report that contains all of their analysis. The NTSB report also discloses the written input of the various party representatives from the airlines and manufacturers.

*A Military Safety Mishap Board has jurisdiction over military air crashes. The Safety Mishap Board prepares a secret safety mishap report which may contain substantial manufacturer input but is not releasable to the public. A separate "Accident" Report, sometimes called a "Collateral" report depending on the military branch involved, is prepared by an officer who is not a specialist in aircraft accident investigations. This report is turned over to the public, but does not contain any of the manufacturer's technical analysis nor does it contain confidential witness statements from the secret Safety Mishap Investigation.

*Commercial airline crashes are investigated with the aid of a cockpit voice recorder (CVR) and flight data recorder (FDR) - the "black boxes." A number of military aircraft are of comparable or greater technical sophistication but until very recently did not have a CVR or FDR. The lack of such recorded data can increase the difficulty of finding the cause of a military crash.

*Military crash cases require the use of multiple technical experts who must reconstruct the cause of the accident. The fact that the technical analysis of secret safety mishap investigators is not released to the public, coupled with the fact that there is no CVR or FDR in many military aircraft, requires these private consultants to all but "start from scratch" in conducting an accident investigation.

*Documentary and tangible evidence may be more difficult to obtain in military air crash cases. Access to military documents is tightly controlled by the "state secrets" doctrine or various non-disclosure exceptions to the Freedom of Information Act and Privacy Act (FOIA).[1] Extracting information from the government through FOIA may necessitate a separate FOIA lawsuit.

*Military witnesses and government personnel cannot be interviewed and may only be deposed in accordance with "Touhy regulations"[2] promulgated by the various branches. These directives purport to give government attorneys the right to control the scheduling and conduct of depositions and other discovery, contrary to federal and state subpoena power.

*Military air crash cases are particularly time consuming and costly to handle. Attorneys' fees are capped at 25% in civilian lawsuits against the government. It is rare to settle these cases without filing a lawsuit or conducting extensive discovery.

*Military Accident Discovery is national and sometimes international in scope, due to the international involvement of our military forces. While the crash may occur in one locale, witnesses, documents and tangible evidence may be scattered throughout various commands in the Air Force, Navy or Army.

*Invariably, military air crash cases, especially ones involving the United States as a party, will be handled in federal court often without a jury. When a jury is involved, there will be limited voir dire and the challenge of obtaining a unanimous verdict. When any government agency is a defendant, it will be defended by the U.S. Justice Department, Torts Branch, Aviation Unit[3] which zealously protects Uncle Sam's deep pockets while using these extensive resources for its defense.

SPECIAL DEFENSES IN MILITARY AIR CRASH CASES

Three Classes of Potential Plaintiffs in Government and Military Air Crashes:

1.Private Citizens (U.S. Citizens or foreign nationals, who are injured on the ground, in collisions between military and civilian aircraft, or on rare occasion, while aboard military aircraft).

2.Employees of the United States Government (Civil service and politically appointed government employees, as well as special employees loaned to the government by contractors, state or foreign governments).

3.Military Service Personnel (Active Duty, Reservists, and National Guard).

Private Citizens v. United States Government

With the passage of the Federal Tort Claims Act,[4] the United States agreed to allow itself to be sued "as if it were a private person," for the negligent acts or omissions of its employees. The Federal Tort Claims Act requires as an administrative prerequisite to suit, that a victim file a claim with the responsible agency within two (2) years of the injury. The agency must adjudicate the claim within six (6) months or it will be deemed denied.

Lawsuits against the government under the Federal Tort Claims Act must be brought in federal court and are tried before a Judge without a jury. If a private co-defendant is involved, a jury is used but it is advisory as to the government. When a victim sues a private defendant and that defendant impleads the government, the six (6) month administrative claim requirement does not apply to the private defendant's third-party action. State substantive law applies in these Federal Tort Claims Act lawsuits specifically, the law of the state where the negligent act or omission of a government employee is alleged to have occurred.[5] Once a lawsuit is filed, attorneys' fees are limited by statute to 25%. Pre judgment interest and punitive damages cannot be collected from the government.

There are many exceptions[6] to the government's exposure as a "private person" under the Federal Tort Claims Act. One most often encountered in military air crash litigation brought by civilian plaintiffs, is the "Discretionary Function Exception." If the nature of the negligent conduct by government employees involved the kind of decision making and policy judgment, which weighed social, economic or political considerations, the government may be immunized against liability for such negligence.[7] Discretionary functions that are protected against suit include a variety of acts and omissions at all levels of government. In the aviation context, conduct such as the negligent inspection of aircraft design, inaction regarding unsafe procedures and the failure to require the use of state of the art aviation equipment, may be exempt from judicial review.[8]

Although the government frequently wins Motions For Summary Judgment on this defense, there are several ways to attack this immunity. For example, the government may be held accountable for operational level negligence by government employees, the violation of government directives that leave little room for discretion, and for the creation of hazards without taking corrective action to warn in order to prevent foreseeable injury.[9]

Because many military aircraft are deployed abroad, another immunity known as the Foreign Acts Exception[10] comes into play for accidents outside the United States. This exception should be distinguished from the Combat Activities Exception,[11] that may also apply to such crashes but which deals with crashes during a state of war.

The Foreign Acts Exception is designed to prevent the United States from being exposed to the vagaries of laws in different foreign countries. (Remember, that under the Federal Tort Claims Act, the law of the place where the negligent act or omission occurred is applied.) Thus, if government employees or military service personnel commit negligent acts outside this country, the government will be immunized against suit by civilians for that negligence. One way around this immunity is to show that there was negligence by government employees in the United States that had its operative effect abroad.[12] Typically, the investigation may extend to whether errors were committed behind the scene at the "headquarters level." Theories may include negligent supervision, training, maintenance and modification of aircraft parts. However, if the "headquarter" negligence involves decision making or judgment weighing social, economic and political factors, the Discretionary Function Exception may apply.

In cases involving military crashes in foreign countries, where the Foreign Acts Exception is effective to immunize the government, civilian claimants have the option of seeking an administrative remedy from the responsible agency under the Military Claims Act.[13] Foreign nationals may do the same under the Foreign Claims Act.[14]

The Military Claims Act, an administrative claim must be filed with the cognizant military branch within two (2) years of the accident. The military service involved may pay such claims if it finds that its personnel were negligent. In some cases they may pay without negligence. This occurs only if the Judge Advocate General determines that the "non combat activity" during which the civilian was injured, is uniquely "military" in nature and not one that has a parallel in the civilian aviation community. Regulations promulgated under The Military Claims Act, impose attorney fee caps of 20% as under the Federal Tort Claims Act in lawsuits against the government.

"Catch 22" - if the military branch reviewing the claim, denies it or offers an inadequate settlement, the only recourse the claimant has is to file a lawsuit under the Federal Tort Claims Act, where an exception may preclude any recovery. In such a situation, the claimant must depend on the reasonableness of the military agency involved, to apply general concepts of American Damages Law to design a fair settlement offer. In dealing with JAG attorneys under the Military Claims Act, plaintiff's counsel may not have sufficient bargaining power to leverage an adequate settlement.

Civilian Employees v. United States Government

Those who enjoy the security of receiving a government paycheck and benefits from Uncle Sam, have limited options if they are killed or seriously injured in a military aircraft accident. The Federal Government entitles its employees who are injured in the course and scope of their employment to a form of federal workmen compensation benefits under the Federal Employees Compensation Act ("FECA.")[15] As with workmen compensation benefits in many states, these FECA benefits provide a dependable remedy without the necessity of proving negligence. However, by comparison to the amounts normally recovered by settlement or judgment in civil litigation, such benefits are often inadequate to compensate victims and/or their families for the injuries. For example in death cases, a FECA widow receives only 50% of the latest monthly pay of the deceased federal employee, with a modest cost of living adjustment. If she has children, she receives 45% plus 15% for each child, not to exceed 75% of the employee's spouses monthly wages.[16] Parents with adult children, who are not supported by them, do not receive FECA benefits. FECA does not expressly provide for general damages such as the loss of care, comfort and society.

An employee's entitlement to FECA benefits creates an immunity for the United States Government against suit by its employees.[17] The Department of Labor decides if the claimant was an employee entitled to FECA benefits. This determination is not subject to judicial review. What is worse, federal employees have no election of remedies.[18] They cannot waive FECA remedies and pursue their damages by lawsuit under the Federal Tort Claims Act. Not only is suit by the employee barred, but in death cases, the claims of relatives are also barred. The United States has been uniformly successful in asserting this FECA immunity, but depending on the facts of a particular case, there may be arguments that can be used to avoid summary adjudication of these issues.

Military Personnel v. United States Government

In 1950, the Supreme Court of the United States ruled that the government is immune from suit for injuries to service personnel that occur because of activities which are "incident to service"[19] This is a judicially created exception to the federal government's waiver of >sovereign immunity under the Federal Tort Claims Act, and is commonly known as the Feres Doctrine.

The justification for denying the right to sue for a service person's injury or death when it occurs "incident to service," has to do with the unique nature of the federal military service involved and risks attendant thereto. The Supreme Court felt that military discipline would be disrupted if a service person's family could in effect, sue his or her superiors. The Supreme Court also justified this immunity under the theory that Veterans Benefits Act compensation exists for service personnel that is roughly analogous to the workmens' compensation benefits provided by civilian employers.[20] The "incident to service" standard established by the Supreme Court has been interpreted broadly over the last 35 years to include occurrences related in any relevant way to military duties.[21]

Under the Feres Doctrine, military personnel, the spouses and children of service persons, reservists or national guardsmen, who are killed or injured in accidents while "incident to service," cannot sue the government. Under the laws of many states, the decedent's spouse has a personal cause of action for wrongful death. This is immaterial, because the service person's activities "incident to service" controls the applicability of the immunity.[22]

The unfortunate result of the Feres Doctrine is that despite whether civilian government or military service personnel are negligent, reckless, or intentionally at fault, in war or at peace, the government cannot be sued. The only recourse military families have, is to evaluate whether private entities caused or contributed to the accident.

Who are the "usual suspects" that military plaintiffs may sue?

Military aircraft manufacturers are often the subject of investigation by the survivors of military personnel fatally injured in military air crashes. To successfully sue the manufacturer, one must prove that the product which caused injury was defective in design, manufacture, or that there was a failure to warn of an unsafe condition. The "unreasonably dangerous" standard is used to prove defect in design under the laws of some states. In other states, a "risk-utility balancing test" is employed to evaluate whether the product was defective. An important question is whether an alternatively, safer way to design the product existed at the time of manufacture.

Investigation for defects in military aircraft often focuses on the airframe and the major subcomponents such as the engines, flight controls, avionics, navigation equipment, safety and escape devices. Other possible defendants include local and state governments, companies that sell navigation and instrument approach charts, owners and operators of private vehicles involved in accidents with military vehicles, private suppliers who provide negligent services or supplies, civilian groups who have trained service personnel by contract, and non-governmental rescue services who negligently fulfill the responsibilities they assume.

Occasionally, foreign governments can be sued for injury or death to an American military personnel or civilian government employee resulting from negligence by the foreign government or its employees. However, The Foreign Sovereign Immunities Act[23] preserves the Sovereign Immunity of foreign nations and often precludes lawsuits by American service personnel and government employees. Exceptions exist where the foreign government has enacted its own version of the Federal Tort Claims Act or, has carried on a "commercial activity" in the United States related to the incident.[24]

In military air crash cases, pilot error is often the cause of the crash. When a pilot flies into a mountain, has a mid-air collision or looses control during training exercises, there is often no private entity to blame. Sometimes, even if a defect is present in the equipment, the air crew may have contributory fault for failing to compensate for the defect in time to prevent the crash.

Another major hurdle exists for the families of services personnel who are injured or killed in military air crashes, even if they can prove that there is a design defect in the airplane or one of its components parts. Military aircraft manufacturers can avoid liability for a defective product if they can show that the government allowed them to design it that way.

The Government Contractor's Defense

In 1988, the Supreme Court of the United States ruled that manufacturers are not liable for design defects in military equipment [25] when:

*The United States government approved reasonably precise specifications for the design of the equipment; *The equipment conformed to those specifications; or *The supplier warned the government about the dangers in the use of the equipment which were known to the supplier, but not to the government.

The Government Contractor Defense creates a unique challenge for anyone who decides to sue a government contractor. One must become familiar with government procurement regulations and documents which define the development process for creating specifications for military aviation products. In addition, a highly technical investigation is necessary to determine if a design or manufacturing defect exists or whether the manufacturer failed to warn of a hazard not known to the government. Finding liability and a way around the Government Contractor's Defense, can be particularly difficult when the military equipment involved is a state-of-the-art jet airplane, with systems built using classified technology or embarked on a classified mission. Also, there may be absolute immunity for combat crashes because the "combat pre-emption" doctrine may apply.[26]

The government contractor defense was established because military aircraft may need to be designed to function under abnormal stress on both combat and non-combat missions. Under these circumstances, the government may approve a design which would be unacceptable in civilian aviation. The poorer design may be permitted for military use due to budgetary restraints and a trade off between either greater safety or enhanced combat efficiency.

The unfairness of the government contractor's defense is exemplified by recalling the 1992 made-for-television movie entitled "Afterburn." This was the story of the widow of an F-16 pilot whose airplane crashed due to what the investigator said was "pilot error." The widow's attorney convinced a jury that a wire chafing control defect in the F-16 fighter caused the aircraft to become uncontrollable and crash. The widow and her child won a recovery of $3.1 Million.

Notably, in the Harduvel case, about which the movie was made, the widow's attorney litigated the case on a theory that the problem was a manufacturing defect. The Supreme Court had recognized the Government Contractor's Defense for design defects. What many who saw the movie Afterburn may not remember, is that after the trial victory, an appeal was filed with the 11th Circuit Court of Appeals which reversed the verdict and deprived the family of a recovery. The federal court ruled that the defect involved was not a manufacturing defect, but was a design defect, covered by the immunity afforded to manufacturers by the government contractor's defense.[27]

There have been some recent decisions in the Ninth Circuit (California and Western states), which make the western states a good place to overcome the Government Contractor's Defense in order to successfully sue a manufacturer on a failure to warn theory.[28] In the Ninth Circuit, California Federal and Washington State Courts have applied liberal product liability laws to allow plaintiffs to proceed against manufacturers where the state law duty to warn does not conflict with federal procurement requirements. There has also been a mixed bag of recent decisions in other jurisdictions, some supporting and others circumventing the Defense.[29]

A well-managed investigation may also uncover other ways around the defense by showing the government had "rubber-stamped" a design with no close supervision over the development of a product. Another way around the defense is to show that the product was defective by product liability standards applied to civilian aircraft, and that the military merely purchased or modified a civilian model "off-the-shelf" without prescribing new specifications.

Military Accident Investigations - A Double Standard?

In all of the military branches, a technically competent Safety Mishap Board investigates serious accidents, and compiles a Safety Mishap Investigative Report which is kept secret. No technical consultant and aviation lawyer representing survivors are permitted to participate in the investigation or to learn the results. Moreover, the key military and manufacturing witnesses interviewed by the safety board are promised that their statements will not be disclosed to the civilian community. The Safety Mishap Board Report and confidential statements obtained in connection therewith, have been protected against disclosure by the Supreme Court of the United States.[30]

A separate fully releasable Accident Report is prepared by an officer appointed by the cognizant Commanding Officer to conduct what used to be called the "Collateral Investigation." This investigation is used for court martial, and other punitive or administrative actions against service personnel resulting from the accident.

In some military branches, the purely factual components of the safety mishap investigation are turned over to the collateral investigators and included in the releasable accident report. However, the most important technical analysis performed by the safety mishap investigative team particularly if it involves a government contractor, is never divulged to the public. Thus, this analysis cannot be used to leverage a settlement from the manufacturer or other civilian party which is implicated.

The safety mishap investigative team relies heavily on assistance from the manufacturers, but their reports are kept secret. The expectation is that the manufacturer's representatives will point out any defect in the product of the company that they work for and that they would be more willing to do so if the investigative report is not shared with the public. This reasoning assumes that the manufacturing "tech rep" will diligently investigate his company's product. But, the ãtech repä must realize that if a defect is found it will result in a multi-million dollar retrofit program, paid for in all probability, by his employer.

The Supreme Court was persuaded that the effectiveness of a safety investigation would be impaired if manufacturing representatives and military witnesses did not enjoy confidentiality for their reports and statements. By contrast, the NTSB designates airlines and manufacturers as "parties" to NTSB civil aircraft accident investigations. They are expected to be forthright in reporting problems with their procedures or equipment. Civilian witnesses are not given assurances of confidentiality when their statements are taken by NTSB investigators.

Are we to believe that military manufacturing "Tech. reps." and service personnel cannot be expected to be honest about "mistakes," while their civilian counterparts can be relied on to reveal "mistakes" by their companies? Either the NTSB is being deceived or the military is enjoying too much confidentiality. Non disclosure should only be permitted where classified technology or national security are involved. Why shouldn't the public know all the facts concerning military crashes involving training, passenger transport, readiness rehearsal and other routine military exercises?

In conclusion, the government has set up so many immunities, defenses, and double standards, that representation of victims in military air crashes requires the ultimate in skill, perseverance and funding to achieve a recovery.

**ENDNOTES**

[1].5 U.S. Code §552a.

[2].United States v. Touhy v. Ragen, 240 U.S. 462 (1951).

[3].The Aviation Unit, which is reportedly made up of 25 aviation specialists, has grown from the early 1980s when this author was a member and when it was known as the "Dirty Dozen." This term was apparently "coined" in the belief that because we had to travel on $35.00/day per diem, the hotel rooms we stayed in were lacking in functional bathing facilities.

[4].28 U.S. Code § 1336(b), 1402(b), 2401(b), 2671-80.

[5].Richards v. United States, 369, U.S. 1 (1962).

[6].28 U.S. Code §2680(a)-(n).

[7].Berkowitz v. United States, 468 U.S. 531 (1985).

[8].e.g. United States v. Varig Airlines, 467 U.S. 797 (1984).

[9].Sutton v. Earles v. United States, 26 F.3d 903 (9th Cir. 1994).

[10].28 U.S. Code §2680(k).

[11].28 U.S. Code §2680(j).

[12].In re Paris Air Crash of March 3, 1974, 399 F.Supp. 732 (D.C. Cal. 1975).

[13].10 U.S. Code §2731-2735.

[14].10 U.S. Code §2734.

[15].5 U.S. Code §8116.

[16].5 U.S. Code §8133.

[17].5 U.S. Code §8116(c).

[18].Woodruff v. United States Department of Labor, 954 F.2d 634 (11th Cir. 1992).

[19].Feres v. United States, 340 U.S. 135 (1950).

[20].Veterans Benefits Act, 38 U.S. Code §§301 et seq. & 10 U.S. Code §§1475-1488.

[21].United States v. Johnson, 481 U.S. 681 (1987).

[22].United States v. Shearer, 473 U.S. 52 (1985).

[23].28 U.S. Code §1605.

[24].Id.

[25].Boyle v. United Technologies Corp., 487 U.S. 588 (1988).

[26].Bentzlin v. Hughes Aircraft Company, 833 F.Supp. 1486 (D.C. Cal. 1993).

[27].Harduvel v. General Dynamics Corporation, 878 F.2d 1311 (11th Cir. 1989).

[28].Butler v. Ingalls Shipbuilding, Inc., (89 F.3d 582, 9th Cir. 1996); TimberLine Air Service, Inc. v. Bell Helicopter-Textron, Inc., 884 P.2d 920 (Supreme Ct. Wash. 1994)

[29].Stecyk v. Bell Helicopter-Textron, Inc., 1996 U.S. Dist. Lexis 4022; CCH Prod. Liab.Rep., p. 14,576 (Civ.No. 94-CV1818; April 2, 1996, E.D.Pa 1996); Gray v. Lockheed Aeronautical Systems, Inc., 880 F.Supp. 1559 (N.D.GA 1995); cf. In re Air Disaster Ramstein Air Base v. General Electric, 81 F.3d 570 (5th Cir. 1996); Miller v. United Technologies, Inc., 233 Conn. 732; 660 A.2d 810, 1995 Conn. Lexis 192 (Supreme Ct. 1995).

[30].United States v. Weber, 465 U.S. 792 (1988).

Thats all

BIOGRAPHY

Mr. Kolczynski graduated from Case Western Reserve School of Law, Cleveland, Ohio, in December, 1976, where he was the Notes Editor of the Journal of International Law. He attended college at Marquette University, Milwaukee, Wisconsin, in 1969 where he held a Navy ROTC Full Scholarship. Before entering law school, Phil Kolczynski was a Marine Corps Captain and F-4 Phantom Pilot. He holds an FAA Commercial Single Engine Pilot's License with Multi-Engine and Instrument Ratings.

Phil Kolczynski has published numerous law review and journal articles as well as chapters in Matthew Bender and James Publishing Company treatises on a wide variety of civil litigation subjects. He has recently authored the book Preparing For Trial In Federal Court. Phil is a frequent speaker at forensic expert institutes and aviation technical programs. He also teaches Evidence, Product Liability and Aviation Law at the University of Southern California Professional School of Aviation Systems and Safety Management. Phil Kolczynski was the Chairman of the 1990 ABA National Institute on Aviation Litigation in Washington, D.C., and has spoken nationally at numerous aviation litigation symposia.

Back To Aviation Law Forum Topics