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Approximately 20 emergency landings are made by U.S. commercial airlines every month
Our Phoenix-based law firm is dedicated to providing cost-effective, practical solutions to aviation disputes, including aviation accidents. In recognition of the efficient, effective and ethical service we deliver, our firm has received the AV® Peer Review Rating*.
We are a large, resourceful law firm, employing talented, energized and innovative attorneys who have the skills to represent the interests of anyone involved in an aviation accident throughout the United States. We’re pilots and aviation enthusiasts too, and you can rest assured that we understand aviation.
We represent individuals, aircraft owners, pilots, passengers, survivors, repair stations, FBOs, and others who may be involved, directly or remotely, in an aviation accident. Our lawyers will always evaluate all the facts and considerations, and will work with our clients to keep them informed, to meet their objectives, and to serve them in an efficient, cost-effective path to resolving disputes arising out of aviation accidents.
For experienced aviation lawyers, contact Mark G. Worischeck or call us at (602) 532-5600.
According to the Federal Aviation Administration (FAA), air travel is expected to double over the next 20 years. As air traffic increases, so does the risk of an aviation accident. Generally, air travel is considered to be a safe means of transportation, but when accidents do occur, they often result in very serious injuries and fatalities. Smaller, less serious accidents involving private aircraft are more frequent than people realize, because most of those incidents are unreported.
Potentially liable (legally responsible) parties vary depending on the cause of the accident. The owner and operator of the aircraft certainly may be liable, manufacturers or maintenance suppliers may be liable in certain circumstances, and even the federal government may bear some responsibility in an aircraft accident.
Aviation litigation is complex. There are many different theories of liability under state law, federal law and international law. There are several potential defendants and places or courts to choose from for the trial to take place. To hold someone responsible for the accident, the plaintiff must prove the defendant failed to meet an industry standard related to operating the aircraft, or related to engineering or other operational issues. In order to successfully resolve these and other legal issues associated with an aviation accident, it is essential that you contact an experienced aviation attorney.
Causes of plane crashes
Aviation accident law covers both major air carrier and general aviation accidents. General aviation includes all non-commercial aircraft including small plans, large business jets, charter flights, pleasure crafts, helicopters, and hang gliders. The most common causes of both major carrier and general aviation accidents include:
- Pilot error
- Faulty equipment
- Federal Aviation Administration regulations violations
- Structural or design problems
- Negligence of flight service station employees
- Negligence of federal air traffic controllers
- Negligence in a third party’s selection of a carrier
The FAA and NTSB
Two federal agencies regulate air travel and investigate every aviation accident (both commercial and general) in the United States: The National Transportation Safety Board (NTSB) and the Federal Aviation Administration (FAA). The FAA sets safety standards for pilot conduct, flight operations, and aircraft manufacturers and enforces FAA regulations through civil penalties or criminal penalties. The NTSB is responsible for investigating every civil aircraft accident and recommends safety standards to prevent future accidents.
Personal injury claims for aviation accidents
While the circumstances of each aviation accident are always different, generally claims for personal injury or death resulting from an aviation accident are controlled by the legal theories of negligence, product liability or some combination of the two. Additionally because air travel is regulated by two federal agencies, federal rules and regulations may impact a personal injury claim or the standards of care owed to the victim of an aviation accident.
Negligence is the legal term for the failure to do or not do that which a reasonable person would, in a similar situation, do to protect others from foreseeable risks. Pilots, airline maintenance providers and major airlines are among those subject to negligence claims when an aviation accident occurs. Product liability refers to the legal responsibility placed on manufacturers and sellers of defective products. If it can be proved that a defective product somehow contributed to the aviation-related accident, then product liability may allow recovery against the manufacturer or seller of the defective product.
Liability of an owner or operator
Aircraft owners and operators are held to a duty of care with high standards. If carelessness or recklessness can be proven, then the owner will be held liable for the damages suffered by injured parties, including passengers, people on the ground, and even the pilot. Even if the owner of the aircraft was not operating the aircraft when the accident occurred, the owner may still be held liable under a legal theory called vicarious liability. It is similar to how owner of automobiles are responsible for the actions of the driver of the automobile they own.
Commercial airlines fall under the legal classification of a common carrier because they hold themselves out to the public as willing to carry all passengers who buy a ticket. Common air carriers are held to different, usually more stringent, standards than are private carriers. The FAA is the principle federal agency responsible for regulating air carriers by imposing uniform standards and operating procedures and monitoring the carrier’s internal standards. An understanding of the complex rules and regulations is necessary for successfully litigating against a common carrier commercial airline.
Liability of a manufacturer
The manufacturer of an aircraft can be held liable if the victim of an accident can prove that a defect in the product (the aircraft) or a component part caused his or her injuries. This is referred to as strict liability. It is important to remember that liability laws differ from state to state.
Comparative fault of the owner/operator and the manufacturer
In many cases, both the pilot and the manufacturer are held liable for an aircraft accident. This is called comparative fault. The jury must determine the percentage of liability attributable to each of the defendants. For example, a pilot may be 35 percent at fault for losing control of an aircraft, but the manufacturer may be 65 percent at fault for defective landing gear. Only a few jurisdictions bar recovery from a manufacturer if the pilot’s negligence contributed to the crash. Most states use comparative fault and distribute the blame between the two parties.
A primary duty of the federal government is to control all air traffic. The FAA, through the Air Traffic Control System (ATC), is responsible for this enormous function. If an aircraft accident involves a collision, a key question is whether or not the ATC did its job correctly and will be joined as a defendant in litigation.
The typical categories of recoverable damages include: past and future medical expenses, lost wages, lost earning capacity, past and future pain and suffering, emotional distress, loss of consortium (available to married couples only) and punitive damages. Each jurisdiction will differ as to what damages may be recovered and what proof is required for each category. Many states also impose “caps” on certain categories of damages, thereby limiting a potential recovery. An experienced aviation attorney can help you choose the best jurisdiction and present your damages properly to ensure that you are fairly compensated for your injuries.
Speak to an aviation injury lawyer
Aviation litigation is complex and involves an analysis of state, federal and potentially international law. There are numerous issues that will affect the outcome of aircraft litigation: the parties that may be named as defendants, questions of venue, aviation engineering, industry standards and federal government rules and regulations. If you have been injured or a family member has been killed in an aircraft accident, you should contact an attorney who is experienced in this complex legal area in order to protect your rights.
Strict Liability in Aviation Accidents
While pilot error usually plays a part in aircraft accidents, problems with the aircraft or its component parts may contribute to the accident or the severity of injuries suffered. In those cases, the manufacturer of the aircraft, or the manufacturer of a component part, may share the legal blame with pilots for the crashes or for the injuries the accident caused under the legal theory of strict liability.
What Is strict liability
Unlike litigation against a pilot or operator, a claim against a manufacturer does not require proof that negligence caused the accident. In almost all states, a victim can hold a manufacturer or seller “strictly liable” if it can be proven that a defect in the product was a cause of the injuries.
The doctrine of “strict product liability” was created to make it easier to sue manufacturers in product defect cases by switching the focus to the safety of the product rather than the conduct of the person using the product, in this context an aircraft. The judges who created these laws have said that manufacturers in a high-risk industry must design, manufacture and warn in accordance with the foreseeable risks of using their product.
Product liability law varies from state to state. In several states, a manufacturer may be held strictly liable for a defective product if the product is “unreasonably dangerous” for use by an ordinary consumer. A growing majority of states use a slightly different analysis called a “risk-benefit” analysis. In those states a manufacturer may be held strictly liable if the product fails to perform as safely as an ordinary consumer would expect the product to perform when it is used in a reasonably foreseeable manner. The “risk-benefit” analysis test requires the jury to decide if the risk associated with the design of the product outweighs the benefits of the design. In an aviation strict liability claim, the jury will decide whether there is an alternative, mechanically feasible design for the product that could have been implemented by the manufacturer at the time it was sold. The focus is on the “state-of the-art” at the time of manufacture.
Three types of strict product liability
To establish strict liability in a product liability lawsuit, the plaintiff must show that:
- The product was defective when it left the defendant’s control
- That the product was used in the intended manner or a reasonably foreseeable manner
- That the product caused plaintiff’s injury.
Strict liability can arise as a result of a defect in design, manufacture, or failure to warn.
A design defect is one in which a whole product line or every product or that particular model is dangerously deficient. This is where courts apply the “unreasonably dangerous” test or a combination of the consumer expectations and “risk-benefit” test to determine if the design is defective.
If the manufacturer fails to fabricate the product correctly, a manufacturing defect may exist. Thus, if the finished product is substandard by comparison to identical products in that product line, the manufacturer may be held liable for causing the anomaly and failing to catch the defect, before it was sold to a consumer. Manufacturing defects include the use of substandard materials, faulty assembly, etc.
If manufacturers fail to provide adequate warnings or instructions for use, they can be held strictly liable for failure to warn. There are two types of warnings:
- General instructions that accompany the product. A good way to look at this is that the instructions are a part of the product. If the instructions are ambiguous or insufficient, the product cannot be used safely (i.e., operating limits, weight and CG limits, etc.).
- Specific warnings of a danger that the manufacturer knew or should have known about at the time of sale or discovered after sale. (Emergency procedures, placards in a cockpit, warning labels on equipment, etc.)
Adequate warnings as a defense
The law requires manufacturers to give warnings to foreseeable users about newly discovered product defects. Whether the manufacturer will be held strictly liable in such circumstances will depend on whether the warning was calculated to reach the foreseeable user in such a fashion as to enable that user to minimize the danger.
General Aviation Revitalization Act
Congress passed the General Aviation Revitalization Act (GARA) in 1994. It protects manufacturers of non-commercial aircraft (light aircraft and business aircraft with maximum seating of less than 20 passengers) from product liability lawsuits for defects on aircraft older than 18 years. This means that once an aircraft and its original components reach 18 years of age, the manufacturer cannot be held responsible for an accident caused by a defective product. As a result, lawsuits are often brought against the pilot, the owner of the aircraft, mechanics, replacement component part manufacturers and aircraft distributors.
Contact a personal injury lawyer
Aviation claims against manufacturers of aircraft or component parts requires a detailed understanding about aviation and the rules and regulations of the FAA and specific laws related to aviation. If you have suffered injury or the death of a loved one due to an aviation accident, and you suspect a defective product is to blame, contact an attorney with experience in aircraft litigation.
Criminal Liability in Aviation Accidents
In addition to a civil claim against individuals or entities for causing an aviation accident, the government may also pursue criminal sanctions. Both the federal government and individual states can impose criminal sanctions in cases involving aviation. Although the classifications and details may vary between them, most states impose criminal sanctions on aviators for reckless conduct that leads to injury, death or property damage.
Criminal liability is different from civil liability in that, in civil cases, individuals or the government may initiate a claim and punishments are usually limited to fines and damage awards. In a criminal matter, the government brings the case and generally does so in order to seek monetary damages or incarceration of the person or entity accused of the crime. In federal aviation law, the government has the right to bring criminal charges against a party involved in an aviation accident. If a conviction occurs, the result may be punitive damages or time in prison. If a party is found liable in a civil action for punitive damages as well as compensatory damages, it is more likely the state will pursue a criminal case.
Breaking aviation law
Aircraft, owners/operators and commercial airlines are regulated by aviation law. Most aviation law is federal, although states are able to enact some of their own laws related to air travel. The Federal Aviation Administration (FAA) and the National Transportation Safety Board (NTSB) are the two most relevant players in federal aviation law.
Aviation laws are intended to maintain safety. Breaking an aviation law may lead to criminal sanctions. There are several things related to aviation that could constitute a criminal offense. For example, if a commercial airline intentionally and consistently fails to comply with regulations, the government could pursue criminal charges. Other examples include a pilot who uses drugs or alcohol prior to flying.
How states classify aviation crimes
Despite the differences between states’ criminal legal codes, there are three common levels at which air travel industry workers may face criminal charges:
- “Criminal negligence” or “involuntary manslaughter” alleges the creation of a risk to others’ lives and that the risk had foreseeable consequences. The person may recognize the danger his or her behavior creates but fails to alter it.
- “Manslaughter” alleges the defendant know that the risk of his or her actions may result in death for others, and yet the defendant continued the behavior anyway.
- “Third-degree murder” holds the defendant responsible for causing the death of another while the defendant was committing another felony.
Exposure to punitive damages
Punitive damages are imposed if the jury finds the defendant committed a serious and willful offense. If the defendant knowingly put the aircraft in danger by his or her behavior, they may face criminal prosecution. For example, if a manufacturer knowingly used substandard parts, or a pilot flew the aircraft after drinking several alcoholic beverages, or knowingly transported illegal substances.
Aviation Safety Tips
The severity of injuries suffered in a serious aviation accident depends on many factors. Most people assume there isn’t very much an individual can do to protect themselves. However, there are some general safety tips to follow when you travel by air.
Before the flight
- Listen to the pre-flight safety briefing.
- Read the safety data card in the seat pocket in front of you.
- When in your seat, keep your seat belt on.
- Identify the closest emergency exit in front and behind you, and then count the seat rows to reach those emergency exits. This will be very helpful in case of evacuation in a smoke filled airplane.
What to wear to reduce your risks
In the unlikely event of an airplane evacuation via escape slides, synthetic fibers can become very hot due to friction, and melt causing first, second and even third degree burns to the body and legs. The following steps should be taken when traveling to ensure passenger comfort and safety.
- Wear clothes made of natural fibers such as cotton, wool, denim and leather. These fibers offer the best protection during an airplane evacuation or fire. Synthetics such as rayon, polyester and nylon (especially in hosiery) can melt when heated.
- Wear clothing that is roomy and comfortable.
- Wear long pants and long sleeves. Avoid wearing shorts or skirts since these types of clothes do not appropriately cover extremities.
- Wear low-healed laced or strapped shoes, boots or tennis shoes. Shoes made of leather or canvas are preferable. High-heeled shoes will have to be removed before leaving the airplane via an escape slide. This will slow your departure from the airplane and put you at risk for severe injury from possible hazards such as broken glass or metal debris. Avoid wearing sandals or flip flops for the same reasons.
Turbulence happens and much of it is unpredictable. When it does occur, adults and children who are not buckled up can be seriously injured. According to the FAA, the majority of turbulence-related injuries and deaths occur when the seat belt sign is on. The following advice should keep you from becoming one of those statistics.
- Wear your seat belt at all times; turbulence is not always predictable.
- In non-fatal accidents, in-flight turbulence is the leading cause of injuries to airline passengers and flight attendants.
- Each year, approximately 58 airline passengers in the United States are injured by turbulence while not wearing their seat belts.
- From 1981 through December 1997, there were 342 reports of turbulence affecting major air carriers. As a result, three passengers died, 80 suffered serious injuries and 769 received minor injuries.
- At least two of the three fatalities involved passengers who were not wearing their seat belts while the seat belt sign was illuminated.
- Of the 80 passengers who were seriously injured, approximately 73 were not wearing their seat belts while the seat belt sign was illuminated.
- Generally, two-thirds of turbulence-related accidents occur at or above 30,000 feet. In 1997, about half of the accidents occurred above 30,000 feet.
The best preparation for an emergency evacuation is to be familiar with the location of the exits, be ready to follow the commands of the flight and cabin crew, and to wear clothes that facilitate moving down an emergency slide. For example, high heeled shoes may cause the slide to rip. In the case of deployment of emergency oxygen, your first priority is to put on your own mask. If the cabin is depressurized, you face the risk of loss of consciousness. Putting on your mask first decreases the risk of your passing out before having the opportunity to help your children or other passengers with their oxygen masks.
In the unlikely event that you are involved in an emergency situation the most important thing you can do is to remain calm and follow the directions of the flight attendants and flight crew.
Settlements and Damages In Wrongful Death Cases
Wrongful death actions can be very complicated, as the wrongful acts of several parties may have contributed to an individual’s death. Pretrial settlements involving a single defendant are common in wrongful death cases, because many defendants want to avoid the publicity associated with having been found liable for someone’s death. When such out-of-court settlements occur, a reduction of the wrongful death damages award issued by a judge or jury will also occur should the remainder of the defendants proceed to trial.
Thus, if a plaintiff settles a claim against one defendant, the plaintiff’s recovery from any other defendant is thereby reduced. Additionally, the plaintiff’s release of one defendant frees that defendant from liability to contribute to any other defendant, and waives his/her claim for any contribution from co-defendants. In other words, the released defendant is out of the action, and the remaining defendant(s) will pay no more than their comparative share of the culpable conduct as found by the jury.
As a procedural matter, the court generally must hear any evidence of a payment to or settlement with another party, when it is offered by a defendant in mitigation of that defendant’s own liability for damages. The court then deducts the proper amount, if any, from the jury’s award. The defendant in a wrongful death action has the burden of proving that a plaintiff has settled with another party. In the end, if the defendant is able to prove the existence of such a payment, then the court must reduce the award by the appropriate amount.
The law governing wrongful death actions also provides for the reduction of a damages award in proportion to any payments to the plaintiff from “collateral sources.” A collateral source may include insurance (except life insurance), Social Security, workers’ compensation or employee benefit programs. However, a reduction in the damages award is appropriate in only two situations: 1) in an action for medical malpractice; and 2) an action by a public employee against his employer or fellow worker for personal injury or wrongful death.
Similarly, a reduction in the damages awarded may occur in a wrongful death and/or personal injury action by a public employee against a public employer, who is subject to indemnification when the injury occurs while the plaintiff was acting within the scope of his employment. In such a case, the court must reduce the award for payments from collateral sources provided or paid for by the public employer. This includes paid sick leave, medical benefits, death benefits, dependent benefits, a disability retirement allowance, and Social Security (except those benefits provided under title XVIII of the Social Security Act). However, these collateral sources do not include those entitled by law to a lien against the plaintiff’s recovery. If the court finds such a payment from a collateral source, then the court must reduce the award by that amount minus the amount the public employee contributed for that benefit.
Department of Transportation (DOT) Aviation Consumer Protection Division
The DOT Aviation Consumer Protection Division oversees consumer issues related to air travel.
Federal Aviation Administration (FAA)
The FAA is responsible for ensuring that the manufacture, operation and maintenance of all aircraft meet minimum standards and current regulations.
National Transportation Safety Board (NTSB)
The NTSB is responsible for improving air travel safety by investigating all aviation accidents and recommending changes.
Airlines for America
Airlines for America represents the industry on major aviation issues before Congress, federal agencies, state legislatures and other governmental bodies to promote safety by coordinating industry and government safety programs.
This site, provided by John Eakin Air Data Research, has a large library of air safety data, as well as links to numerous domestic and foreign resources and transportation safety agencies.
Aviation Safety Information Analysis and Sharing
The FAA system for integrating, analyzing and sharing aviation safety data and information.
Aircraft Owners and Pilots Association
This site provides information on flight planning, aircraft and ownership, government advocacy, training and safety.