Raymond Paul Johnson - Civil Litigators - Los Angeles, CA



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ON WINGS OF AN EAGLE: AVIATION LAW

I. Introduction.

Aviation law promises intrigue and challenge. Cases often involve dramatic facts, devastating losses and complex law. Approaching the field somewhat cautiously, however, makes sense.

Airline disaster cases for example can be extensive undertakings laced with legal pitfalls and deceptive edges. These cases may not involve complex liability issues, but usually do require handling multiple clients who have all suffered ungodly loss, and defense lawyers who specialize and prevail as outside counsel in an extremely competitive business environment. In addition, typically thorny conflict-of-law issues abound. Other types of aviation cases can combine all of these items with complex liability issues and statutory limitations on damages.

The intent here, however, is not to dampen your spirit. If you are interested in aviation law, do not shy away, whether the case involves airliner, general aviation or military air crashes. Gain expertise, and soar like an eagle.

II. Case Selection and Issues.1

Few limits exist to the types of cases presented by aviation law. Because a significant number of aviation accidents are due (at least in part) to pilot error, negligence is a common cause of action. Even where there is some degree of pilot error, however, other contributing factors are usually at the cause of most aviation mishaps. For example, the author is presently litigating a general aviation case where, in addition to pilot negligence, assertions include third-party negligence, negligent entrustment, failure to warn and premises liability.

Maintenance issues can be at the forefront of aviation cases. Most aircraft owners rely on licensed Airframe and Powerplant Mechanics to perform major maintenance duties and inspections. Depending on the aircraft and its certified use, formal inspections of various components can be required as frequently as every 100 hours of flight time. Engine manufacturers also assign a TBO or 'Time Before Overhaul' that dictates the length of time an engine should be run before it is subject to a thorough teardown inspection. Unlike most automobile owners, aircraft owners normally keep extremely detailed records of maintenance activities and inspections, often allowing for easy identification of potential maintenance issues.

Product liability claims are also common in aviation law. Many aircraft components are critical to flight safety, and component failures are often contributing factors to aviation accidents. The scope of these product cases is not limited, however, to engine and flight-critical components. A pilot relying on defective navigation aids can end up hopelessly off course, leading to fuel exhaustion and worse. An aircraft design without redundant night lighting can leave a pilot quite literally in the dark when a simple but critical light bulb burns out.

Of course, the product claims can get very complicated. The author is presently litigating two aviation product liability cases, both involving military aircraft. One concerns the explosion of a KC-135 aerial refueling aircraft in Milwaukee, Wisconsin. Investigations revealed a defective internal fuel pump that ignited fuel vapors inside the center fuel tank. The other case involves the friendly fire shoot-down of two U.S. Army Black Hawk helicopters by two U.S. Air Force F-15 Eagles over Northern Iraq. Detailed investigations indicate defects in a critical radar/transponder system on board the ill-fated Black Hawks and the F-15 Eagles that was designed to prevent just such a tragedy. Complex aviation product cases like these require a great deal of expertise and, as will be discussed later, face a multitude of defenses.

Valid grounds for premises liability actions sometimes exist against airport owners. Commercial and public airports are required to maintain the airport in a safe condition, and to warn pilots of obstructions or other flight hazards. This obligation extends to all useable airport areas as well as the approach and landing zones. Airports are also required to inform the Federal Aviation Administration of any hazards or changes at the airport so that proper warnings can be promulgated through a Notice to Airmen (NOTAM) system. Some courts have held that the standard of care is lower for owners of private airports, but this policy has not been widely endorsed.

In addition to parties normally named as defendants in negligence and product liability actions, precedents exist that allow aviation attorneys to pursue government defendants. In Gill v. U.S.2 the court found that an inexact and incomplete weather briefing was the proximate cause of an air crash and allowed recovery against the government under the Federal Tort Claims Act3 (FTCA). Similarly, the court in Daley v. U.S.4 found that an air traffic controller's negligent failure to identify the location of an aircraft and advise it of its unsafe proximity to obstructions was the proximate cause of a crash and allowed recovery under the FTCA.

Whether you tackle aviation cases on your own or associate with specialized co-counsel, aviation law can present you with exciting and challenging cases. Of course, such bonuses sometimes come at a price. The next section reviews some problems that aviation attorneys often face.

III. Potential Problems.

The diverse nature of aviation cases can create a number of unique obstacles. Besides defenses normally asserted against tort claims, a number of additional defenses and recovery limits can apply to aviation cases. Furthermore, the decreasing demand for general aviation aircraft and components has resulted in a number of companies going out of business; others have gone bankrupt. Last but not least, aviation cases can be extremely expensive to prosecute, and major aviation corporations and government defendants come ready-built with their own specialized legal defense teams.

Depending on the location of the mishap and the parties responsible, any number of defenses or federal statutes might affect an aviation case. For incidents over the ocean, the Death on the High Seas Act5 (DOSHA) can apply, forcing the case to be heard by a federal judge rather than a jury. In addition to preempting state law claims, DOSHA severely limits recovery to pecuniary damages alone.

For cases involving government defendants, the Federal Tort Claims Act6 (FTCA) can also land your case in front of a federal judge and has its own limitations on actions. The FTCA also has a number of procedural requirements that must be met prior to filing an action, including an administrative claim requirement and a six-month statute-of-limitations following administrative denial of a claim.

Cases involving airlines can be subject to the procedural and substantive rules of the Warsaw Convention. The Convention brings with it the advantage of a nearly irrebuttable presumption of an airline's liability for any incident that is not the result of willful misconduct. But the Convention also has the disadvantage of a $75,000 limit on recovery. Many of the larger airlines have recently agreed to waive the Convention's recovery limit; however, some question remains as to what law will be applied in future cases, so the end results of this agreement remain to be seen.

Product liability cases involving military or government aircraft often face three defenses known as the Military Contractor Defense, the State Secrets Privilege, and the Political Question Doctrine. The Military Contractor Defense allows a manufacturer of a defective product to escape liability if (1) the government approved reasonably precise specifications for the product, (2) the product conformed to the specifications, and (3) the contractor warned the government of associated dangers unknown to the government.7 The State Secrets Privilege allows the government (even if a nonparty to the action) to withhold documents or other information if the release of such information would compromise national security or foreign policy.8 When asserted, a plaintiff may be unable to establish a prima facie case, or a defendant can move for summary judgment based on an inability to mount a proper defense. The Political Question Doctrine allows a manufacturer to escape liability if critical aspects of the case call into question the propriety of the government's use of a product.9 Because courts are precluded from adjudging many government actions, causation and comparative negligence issues regarding the government's use of a product may force the dismissal of the underlying product case.

Perhaps the greatest recent impact on aviation law relates to passage of the General Aviation Revitalization Act10 (GARA). General aviation manufacturers pressured Congress to pass the Act in order to protect them from perceived soaring product liability costs that were allegedly resulting in higher prices, lowered demand, bankruptcies and lost jobs. The GARA imposes an 18-year statute of repose on all wrongful death, personal injury or property damage actions against general aviation aircraft and aircraft systems manufacturers. There are limited exceptions to GARA,11 but the Act is otherwise far-reaching. The Act, however, is relatively new and courts have yet to fully interpret its boundaries. It remains to be seen exactly how much impact it will have on the field, or what means can be used to circumvent it.

Finally, the one issue that arises in almost every aviation case is the pilot's comparative negligence. Pilots are always responsible for the safe operation of their aircraft. This responsibility includes the duty to learn of all information relevant to a flight, to preflight the aircraft to ensure that it is airworthy, and to refuse air traffic instructions that the pilot believes to be unsafe. In many cases, aviation lawyers must use a great deal of strategic and technical effort to overcome the presumption that pilot error was the cause of a particular aviation accident.

IV. The Upside.

Aviation law is an exciting field that often deals with cutting-edge technology, international events, multinational corporations, foreign law and highly trained and educated individuals. For example, the author and his co-counsel recently litigated a case involving the 1993 crash of the X-31 test aircraft that resulted in debilitating injuries to the test pilot. The X-31 involved was one of only two aircraft built for the Enhanced Fighter Maneuverability Program that involved the U.S. military, the German government and the National Aeronautics and Space Administration. Prosecution of the case involved depositions of flight test and design engineers, software designers, and world-class test pilots in Los Angeles, New York and Germany. The litigation included exhaustive reviews of highly technical documents, coordination with highly trained experts, and the perseverance to prosecute against international corporations with highly specialized defense counsel.

A major advantage to aviation cases, however, comes early on in the case. Every civil aviation accident in the United States or involving a U.S. airline is investigated by the National Transportation Safety Board (NTSB). The NTSB's major purpose is to identify potential causes of mishaps in order to help it make safety recommendations to the federal government. NTSB reports include factual investigations, witness statements and mechanical tear-down reports. Complete NTSB reports are available through a Maryland document contractor, and abbreviated NTSB reports are available on the Internet.12 These reports provide a wealth of helpful information, saving hours of research, technical effort, and frustration. However, while the reports normally include a list of factors that contributed to the mishap, the "probable cause" section of the reports often focuses on pilot error.

The government also conducts its own investigation of military and government aviation incidents. While NTSB investigations are normally quite good, the government's internal investigations can be extremely detailed, even exhaustive. This is due, in part, to the fact that the government's own safety interests are involved in these cases. The results of these investigations often lead to claims against third parties or to the discipline of government employees.

These government internal investigations often provide a valuable resource for aviation attorneys. For example, in the Black Hawk case mentioned earlier, the military attempted to court-martial the Air Force captain who supervised the air traffic in the no-fly zone over Northern Iraq. Most of the proceedings were public and the transcripts of testimony and copies of exhibits were accessed through the Freedom of Information Act.13 The information obtained was helpful, both in prosecuting the case and in countering the assertion of the State Secrets Privilege.

Another important source of information in aviation cases comes from the aircraft and aircraft system manufacturers themselves. Due to the increased consequences of defects and failures in aircraft and their related systems, extensive testing and review of new products normally take place prior to the marketing of the product. Of course, documentation of the testing and review process often falls subject to corporate document-retention (i.e., destruction) policies. Much of the information may have been retained, however, to provide a research base for the manufacturer.

Additional assistance in investigating aviation mishaps comes from the Federal Aviation Administration (FAA). Prompt requests to the FAA will guarantee the preservation of all voice communications between an aircraft's flight crew and flight controllers as well as all available radar tracking data. If a pilot or crew member requests weather briefings prior to the flight, those conversations are normally recorded as well. This information can be quite valuable in a case alleging negligence by air traffic controllers or weather service personnel or in retracing the final moments of a flight.

A tactical advantage in many aviation cases comes from the doctrine of res ipsa loquitur. Res ipsa creates a presumption of negligence when an event occurs which does not occur in the absence of negligence, no intervening acts contribute to the event, and the aircraft was in exclusive control of the defendant. Res ipsa loquitur is most often applied to cases against airlines; however, the doctrine can also be extended to general aviation aircraft product cases when no post-manufacture alterations have been made to a defective component and pilot error is not an issue.

V. Conclusion.

Few areas of the law present the intrigue and challenges of aviation law. Whether you and your staff elect to prosecute these cases alone or team with specialized co-counsel, always fully exploit the unique advantages of aviation litigation. In addition, always anticipate the downside of these cases. With the proper attack, the prosecution of aviation cases can be rewarding and memorable, for you and your clients.


1 The author acknowledges the valuable assistance of Ian Fusselman in the research and preparation of the following sections. Ian is currently a third-year law student at the University of Southern California, a pilot, and a law clerk with the author's law firm.

2 429 F.2d 1072 (5th Cir. 1970).

3 28 U.S.C. 1346(b), 2671-80 et seq. (1988).

4 792 F.2d 1081 (11th Cir. 1986).

5 46 U.S.C. 761-68 (1920).

6 28 U.S.C. 2680(a) (1988).

7 See Boyle v. United Technologies Corp., 487 U.S. 500 (1988).

8 See U.S. v. Reynolds, 345 U.S. 1 (1953).

9 See Baker v. Carr, 369 U.S. 186 (1962).

10 49 U.S.C. 40101 (1994).

11 For example, exceptions exist for express written warranties and fraud, and the Act does not apply to emergency flights or to victims not on board the aircraft.

12 For more information on related investigation techniques, Internet research, and product liability in general, see R. P. Johnson and M. Eidson, Defective Product: Evidence to Verdict (1995, The Michie Company, & 1997 Supp., Lexis Law Publishing).

13  5 U.S.C. 552 (1986).



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