Aircraft accidents—whether involving a four-seat private small plane or a commercial jumbo jet—can present difficult questions of fact and law regarding whether the owner and/or operator of the plane is legally responsible (“liable”) for injuries or death arising from his carelessness or the carelessness of his employees. And even if the owner or operator of the aircraft is liable for the injuries, there may be laws that limit the amount of money the injured passenger or the survivors of a passenger who was killed can recover.
Hundreds of thousands of Americans own small aircraft that they use for pleasure flying, attending fly-ins with airplane clubs, and taking vacations, among other things. Suppose your friend owns a small plane and asks you if you’d like to go for a ride. You enthusiastically agree. However, while in mid-flight, there is a problem with the engine and it stops the propeller from turning, and you crash land. Can you sue your friend for injuries you suffered in the crash? Or in the case of fatal injuries, can your loved ones sue your friend’s estate for your “wrongful death?”
A privately-owned noncommercial plane owner does not regularly charge a fee for transporting persons—whether the flight is just for a couple of hours of sightseeing or your friend is taking you from one place to another—and so she is considered a “private carrier.” As such, your friend has the legal obligation (“owes you a duty”) to use ordinary and due care in making sure the plane is airworthy and that she is qualified and fit to be at the controls and not make any careless errors that would result in the passenger’s harm or death. In legalese, the “standard of care” applicable to private pilots flying pleasure craft is one of “ordinary care” for the safe transportation of their passengers. Ordinary care is that degree of care that an ordinarily prudent person would use under like circumstances when charged with a like duty. Ordinary negligence is a lack of due care; and due care means commensurate care, under the circumstances, tested by the standard of reasonable prudence and foresight.
The pilot of the small plane must perform a careful and thorough pre-flight inspection of the plane to ensure that it is indeed safe to fly, i.e., airworthy. She must also be familiar with the weather conditions on the route to your destination. If the pilot is qualified to fly only under visual flight rules (VFR), she must avoid flying into a storm, fog, or other inclement weather that requires an instrument flight rating and the appropriate instruments, indicators, and gauges in the plane to allow her to fly under instrument flight rules (IFR).
Because small planes are not required to have cockpit recording devices or flight data recorders, it may be more difficult to pinpoint the cause of a small plane’s crash than the crash of a commercial airliner. However, the National Transportation and Safety Board (NTSB) has jurisdiction over the investigation of accidents involving planes of all sizes, and can often determine the cause of the accident.
Commercial aviation involves transport “for compensation or hire.” This includes airlines, commuter airplanes, and charter aircraft, but does not include corporate aircraft or privately owned airplanes. Commercial flying is considered to be one of the safest—if not indeed the safest—means of transportation going. You have a much greater chance of being injured in an automobile accident on your way to the airport than you do of being involved in a commercial aircraft accident. Unfortunately, when there is a commercial aircraft accident, it tends to be a major disaster resulting in tens, even hundreds of injuries and deaths and significant property damage.
When a commercial aircraft is involved in an accident that results in loss of life or serious personal injuries, there may be a number of possible defendants who may be legally responsible (“liable”) for the injuries or death. First there is the airline company itself. Because commercial airliners offer to the general public to carry goods or persons and are bound to accept anyone who offers to pay the “price of carriage” depending on seat availability, they are considered by law to be “common carriers.”
As a common carrier, an air carrier and its employees are required to use the “utmost due care and diligence” for the safe passage of, and to prevent injuries to, its passengers, and it can be held financially responsible for injuries resulting from even its slightest carelessness (“negligence”). Commercial airlines are bound to do all that, which with human care, vigilance, and foresight, they can reasonably do under the circumstances to protect their passengers from harm. “Passengers” include not only persons who are on board the aircraft when it crashes, but also passengers who are injured or killed while getting on (“embarking”) or off (“disembarking”) the plane. However, as to other planes and persons who are not passengers, the airliner owes them only the ordinary standard of care, that is, the duty not to expose them to an unnecessary risk of harm (ordinary negligence).
A common carrier is one who holds itself out to the public as engaged in the public business of transporting persons for compensation from place to place, offering its services to those members of the public generally who choose to employ it and pay its charges. The distinctive characteristic of a common carrier is that it undertakes to hold itself out to the public, either expressly or as a course of conduct, as a business to carry for hire on a uniform tariff all persons wanting transportation, so long as it has the room to accommodate them.
“Holding oneself out to the public” means that the carrier in some way makes it known to its prospective patrons the fact that its services are available. This may be done in various ways, as by advertising, solicitation, or the establishment in a community of a known place of business where requests for service will be received. However the result may be accomplished, the essential thing is that there must be a public offering of the service, or, in other words, a communication of the fact that service is available to those who may wish to use it.
For a transporter of passengers such as an airplane to be a common carrier, it is not necessary that it have a regular schedule of flights, a fixed route, or a relatively unlimited carrying capacity. For example, a carrier that provides air transportation may limit its operations solely to charter flights and still be legally considered to be a common carrier. Important factors used to determine whether an operation is a common carrier include an established place of business, engaging in the operation as a regular business and not merely as a casual or occasional undertaking, and a regular schedule of charges.
To be a common carrier, it is not necessary for the carrier to leave one place and transport its passengers to another place. A sightseeing tour that embarks from and returns to the same point can be considered a common carrier. Hence, an airplane pilot who offered sightseeing flights to the ocean and back was held to be a common carrier, even though the flights took off and landed at the same airport. Similarly, a company that provides sightseeing helicopter rides for a fee is a common carrier, even though it takes off and lands at the same helipad. Commercial hot air balloons that advertise or otherwise promote their business of sightseeing trips from Point A to Point B are also considered common carriers.
Although common carriers must use the utmost care and diligence for their passengers’ safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill, a common carrier is not an insurer of its passengers’ safety, and does not give them an absolute guarantee that nothing will go wrong and they will not be injured or killed in any way whatsoever.
The airline, as a common carrier, is also legally required to provide vehicles (in this case, aircraft) that are safe and fit for the purpose to which they are put, and is not excused for default in this respect by any degree of care. Also, the passenger’s motive for seeking transportation is not relevant in determining the carrier’s liability. The common carrier owes the same high duty of utmost care whether the passenger rides for pleasure or business. A passenger’s purpose in purchasing transportation, whether it be to get from one place to another or to travel simply for pleasure or sightseeing, does not determine whether the provider of the transportation is a carrier for reward. Undisclosed purposes on the passengers’ part do not affect the duty of the common carrier to exercise the highest degree of care for the safety of the passenger.
Other causes include improper loading of the aircraft and fuel contamination.
The airline company may be held responsible for the errors of its pilots in operating the aircraft, its maintenance crew for failing to maintain the aircraft properly or failing to detect a crack or other structural problem with the aircraft, or its employees for improperly loading or over-loading the aircraft. The manufacturer of the aircraft or supplier of a component part may be held liable under the doctrine of “strict product liability” (discussed in Chapter 21, “Defective Products”) for any and all defects in the manufacture or design of the plane or its defective parts that caused or contributed to the accident. Similarly, the United States government may be liable where the accident is due to the negligence of one or more of its employees, usually the air traffic controllers. In a collision with another aircraft, the other aircraft may be sued if its pilots were negligent in failing to avoid the crash.
An all-too-frequent yet completely preventable cause of injuries and deaths in aircraft accidents involve “runway incursions.” The FAA defines a runway incursion as “any occurrence at an airport involving an aircraft, vehicle, person, or object on the ground that creates a collision hazard or results in loss of separation with an aircraft taking off, intending to take off, landing, or intending to land.” Runway incursions are frequently the result of the carelessness (“negligence”) of air traffic controllers in managing the flow of air traffic on the ground. Research has shown that the first three minutes of a flight and the last eight are when about 80 percent of airplane accidents take place. This is often referred to as the rule of “Plus Three/Minus Eight.”
A professor in England analyzed the seating charts of more than a hundred plane crashes and interviewed 1,900 survivors and 155 cabin-crew members. He found that the people most likely to survive a plane crash are those sitting right next to the exit row or one row away. He discovered that survivors usually move an average of five rows before they can get off a burning aircraft. The professor’s study concluded that beyond a fiverow cutoff from the exit, your chances of surviving an aircraft fire are greatly reduced.
The National Transportation Safety Board (NTSB) is the governmental agency vested by Congress with the power to investigate all civilian aircraft accidents, whether it be a major airline disaster involving hundreds of deaths or a small, singleengine plane that goes down. Since its creation in 1967, the NTSB has investigated over 115,000 civilian aircraft accidents. After it has made a thorough investigation of the accident, the NTSB releases its report identifying the cause(s) of the crash— if a cause can be determined—and issues safety recommendations designed to prevent future accidents from the same cause.
In conducting its investigation, the NTSB gathers data from the plane’s cockpit voice recorder and flight data recorder if the aircraft was equipped with them. In major air disasters, the NTSB attempts to piece together the remaining parts of the plane in a hangar or other facility to try to reconstruct the plane and find the cause of the accident. The Federal Aviation Administration (FAA) usually also takes part in the investigation to determine what accident prevention steps it should implement to prevent another occurrence of the same cause. The FAA provides the NTSB with technical advice about the aircraft and flight conditions as well.
Commuter planes and regional jets are generally mid-sized planes that connect smaller cities with large ones having major airports. On February 12, 2009, during Continental Connection Flight 3407, a flight operated by Colgan Air under contract to Continental, a commuter turboprop crashed into a home outside Buffalo, New York, killing 50 people—45 passengers, four crew members, and one person on the ground in the house. The plane involved was a Bombardier Dash 8 Q400, a 74-seat twinengine, medium-range turboprop airliner. The plane was less than one year old and had flown for only about 1,500 hours.
Early speculation was that a buildup of ice on the wings was the most probable cause of the tragedy. However, approximately a month and a half after the disaster, the NTSB investigators stated that ice was not the likely cause of the crash and that it was looking at the actions of the pilot immediately before the crash. It was reported that the Flight Data Recorder indicated that the pilot’s control column—basically, the device used to steer the plane—moved sharply backward, pitching the nose of the turboprop upward, causing the aircraft to stall. It is hard to recover from a stall like this, and the crew had only 1,600 to 1,800 feet to do so before the plane hit the ground. This was the deadliest American disaster in more than five years.
A fairly recent crash involving a commuter aircraft happened in the early morning hours of August 27, 2006. During Comair Flight 191, marketed as Delta Connection Flight 5191, a 50-seat Bombardier Canadair Regional Jet CRJ-100ER bound for Atlanta crashed while trying to take off from Blue Grass Airport in Fayette County, Kentucky, four miles west of Lexington. Forty-nine of the 50 occupants of the plane perished in the crash, with only the first officer (the copilot) surviving the crash.
In the Comair disaster, Flight 5191 was cleared for take-off on Runway 22. However, for some reason, the aircraft attempted to take off on Runway 26, a much shorter runway. The aircraft ran off the end of the runway, crashed through the airport perimeter fence, and came to rest in trees on an adjacent horse farm. The aircraft was destroyed by impact forces and a post-crash fire. The NTSB determined that the probable cause of the disaster was the flight crew’s failure to use available cues and aids to identify the aircraft’s location on the airport surface during taxi, as well as their failure to cross-check and verify that the aircraft was on the correct runway before take-off. Contributing factors were the flight crew’s non-pertinent conversations during taxi, which resulted in a loss of positional awareness and the FAA’s failure to require that all runway crossings be authorized only by specific air traffic control clearances.
In 1993, a commercial jet at Blue Grass Airport was cleared for take-off on Runway 22 but mistakenly went to the shorter Runway 26 instead. Fortunately, tower personnel noticed the mistake and cancelled the aircraft’s take-off clearance just as the crew realized their error. The aircraft subsequently made a safe departure from Runway 22. On September 1, 2006, the FAA issued a Safety Alert for Operators (SAFO), titled “Flight Crew Techniques and Procedures that Enhance Pre-takeoff and Takeoff Safety.” This alert highlights existing FAA aircraft ground operation guidance and reminds flight crews that maximum attention should be placed upon maintaining “situational awareness” during taxi operations.
A domestic flight is one occurring entirely within the United States, with no stopovers in another country, whether for refueling or to let off or take on passengers. Unlike crashes involving international flights, passengers on domestic flights do not face any limitations on the amount of recovery the passengers can receive for their injuries or the survivors can receive for the death of their loved ones. Additionally, an injured passenger on a domestic flight can recover damages for purely emotional and mental injuries without having to prove any accompanying bodily injury, as she must do to recover such damages on an international flight.
When a passenger on a domestic commercial flight is killed in a crash, it may be possible for her next of kin to bring a “survival” action to recover monetary damages for the pain, suffering, and mental anguish the passenger experienced from the time she realized that something was seriously wrong with the flight until the time of her death.
When a commercial aircraft crashes, causing a loss of life or serious injuries, the air carrier and its insurance company will usually contact the injured passenger or next of kin right away and provide immediate medical or grief support. The airliner will often pay for the hotel costs of a deceased passenger’s next of kin and help make and pay for funeral arrangements. The air carrier’s representative or its insurance company’s agent will frequently tell the survivors that there is no need for them to obtain a lawyer to represent them, as they will do right by them.
The insurance company may offer to pay what appears to the family to be a fair settlement. Do not accept any settlement offer from an insurance company without the advice of a skilled and experienced aviation accident lawyer. A grieving family is susceptible to accepting a much lower offer than an experienced aviation lawyer can get for them. Although the airliner or its insurance company will try to dissuade you from getting a lawyer saying that a lawyer’s fee will come out of your share, the truth is that studies consistently show that victims of accidents end up with more money in their pockets even after paying the lawyer his fee.
An experienced personal injury law firm can also help with seeing to it that you obtain appropriate and thorough medical care for your physical, emotional, and psychological injuries suffered as a result of the accident. They can also do everything possible to ensure that you obtain full compensation for your medical expenses, pain and suffering, mental anguish, property damage, lost wages, psychological injuries, loss of society, affection, and comfort, and all of your other injuries and damages.
If you are injured or a loved one killed in an international flight, your rights are much more complicated than if you or your loved one were flying on a domestic flight. Up until 1997, the maximum recovery for damages due to injuries to or death of a passenger on an international flight was $75,000. This limit came from a series of treaties and agreements between airline companies and was known as the “Warsaw System.”
In 1929, a treaty was formed in Warsaw, Poland that was intended to protect the new air industry from having to pay excessive damages in the event of an accident. Under its terms, the maximum amount an injured passenger or the family of a deceased passenger could recover was 125,000 francs (about $8,300 in U.S. currency at the time), unless the injury or death was caused by the “willful misconduct” of the airline or its employees, something that was extremely difficult to prove. According to the terms of the Warsaw Convention, an air carrier could escape liability by proving that it took “all necessary measures to avoid the damages or it was impossible for him or them to take such measures.”
In return for the limitation on the amount of money the air carrier would have to pay to compensate injured passengers or families of deceased passengers, the Warsaw Convention created a basis of liability (a “cause of action”) and established a presumption of air carrier liability for passenger death or bodily injury resulting from an accident occurring while the passenger was on board the aircraft or was in the process of embarking or disembarking the aircraft.
In 1955, the Hague Protocol increased the limit of liability to approximately $20,000. Then in 1966, in what is known as The Montreal Agreement, international air carriers agreed to enter into a “special contract” with passengers, giving them higher limitations on liability on international flights originating, terminating, or having a connection point in the United States. As a result of the Montreal Agreement, the damage amount on such international flights was raised to $75,000. The air carriers also agreed not to invoke the defense of having taken “all necessary measures,” and they agreed as well that the $75,000 limitation would not apply if the airline or an employee engaged in willful misconduct that injured or resulted in the death of a passenger.
The Warsaw System led to some unfair results. Suppose two women were sitting side-by-side in an airliner. The plane was traveling from Los Angeles to London with a stopover in Bangor, Maine. One of the women planned on getting off the plane in Bangor; that was the end of her trip. The other woman intended to fly all the way to London. Now suppose that due to mechanical problems, the plane crashes while flying over the United States, killing all on board. For the woman who planned to end her trip at Bangor, Maine, her survivors could bring a wrongful death case against the airline with no limits on the amount of money her survivors could recover. However, for the passenger who intended to continue on the flight to London, the most her survivors could recover under the Warsaw System was $75,000.
In 1996, some 30 years after the Montreal Agreement, at the urging of the United States, many international air carriers considered whether their liability limits were too low. Finding that to be the case, a number of international air carriers, through the International Air Transport Association (IATA) and in cooperation with the United States Department of Transportation, signed a series of agreements designed to change the limits of liability for injured or killed passengers. Over 120 airlines signed the agreement, which removed the $75,000 limit of liability and allows passengers to recover full compensatory damages for physical injury or death in an “accident,” according to the laws of the passenger’s “domicile,” which is usually the permanent place of his residence. The IATA Intercarrier Agreement provides that the international air carrier must pay up to 100,000 Special Drawing Rights (SDRs) to each injured passenger or the survivors of a deceased passenger without raising any defenses. (Special Drawing Rights are a mix of currency values established by the International Monetary Fund, and on June 1, 2009, the exchange rate was 1 SDR = 1.548 U.S. dollars.) This is a form of strict or absolute liability, in that the victims need not prove the air carrier was careless or negligent in any way to recover up to 100,000 SDRs. (approximately $154,800.00 U.S. currency). The international air carriers voluntarily waived the Warsaw System limits of liability for passenger injury and death, and allowed victims to make a claim for damages equal to what they could make if it had been a domestic flight. However, the Montreal Agreement continued the prohibition against recovering damages for emotional injuries and mental distress and anguish without some type of physical injury. It also continued the rule barring the recovery of punitive damages from the air carrier.
Then, in 1999, came The Montreal Convention for the Unification of Certain Rules for International Carriage by Air. The Montreal Convention is the new uniform and exclusive recovery method for applicable recoveries and purports to replace the entire patchwork Warsaw System. The Montreal Convention applies to all “international carriage” of persons, baggage, or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.
Paragraph 1 of Article 17 of the Montreal Convention states that “[t]he carrier is liable for damages sustained in the case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”
The Montreal Convention of 1999 sets up a two-tiered system of liability. The first tier requires the air carrier to pay up to 100,000 Special Drawing Rights (SDRs) regardless of whether or not the air carrier was negligent or otherwise at fault in any way. All the injured passenger or survivors of a deceased passenger need prove is that the passenger was in fact injured or killed, and that such injury or death was caused by an “accident.” This is a form of absolute or strict liability, except that the air carrier can raise the defense that the passenger was also at fault (“contributory” or “comparative” fault) for his injuries or death. The second tier (i.e., claims above 100,000 SDRs) allows for unlimited recovery, up to the amount the victim can prove he suffered as a result of the injury or death. However, the air carrier is not liable if it can prove that the injury or death was not due to the negligence or other wrongful act or omission of the air carrier or its employees, or that the injury or death was solely due to the negligence or other wrongful acts or omissions of a third party.
The Montreal Convention went into force on November 4, 2003, the 60th day following the date of deposit of the instrument of ratification, acceptance, approval, or accession by the 30th country, the United States on September 5, 2003. As of August 2009, there were 92 signatories to the Montreal Convention, including most European countries, the European Union, Japan, Canada, Australia, China, Korea, Mexico, and the United States. The Montreal Convention has been ratified by those countries that cumulatively make up the largest share of international air transport. Under the Montreal Convention, the air carrier may agree to higher limits of liability, or even no limits on liability; however, it may not undercut the limits provided by the Montreal Convention. Additionally, the air carrier may waive defenses under the Montreal Convention.
Two conditions must exist in order to hold an airline liable for injuries or deaths arising in an international flight. First, there must be an “accident,” which the United States Supreme Court has defined as a “happening or event”—including negative conduct, such as an omission or failure to do something, such as the failure of airline personnel to respond to a medical request of a passenger, resulting in the passenger’s injury or death—that is external to the passenger, unexpected from the passenger’s point of view, and not associated with the normal operation of the airplane. Second, there must be an actual physical or bodily injury. Mental anguish or emotional distress cannot be the sole basis for a claim. The Montreal Convention also does not allow the recovery of “punitive, exemplary or any non-compensatory damages.” As mentioned above, the Montreal Convention also gives the air carrier the right to raise the passenger’s own wrongful conduct (“contributory” or “comparative” negligence) as a defense to reduce or eliminate its liability.
Victims of air crash disasters are usually entitled to receive the full economic (“pecuniary”) damages suffered. Pecuniary damages are those items of damage upon which a value can be reasonably placed, such as hospital and medical expenses, lost past and future wages, lost earning power, etc. Non-economic damages (“non-pecuniary”) include such things as pain and suffering in the case of an injured passenger, and the loss of care, comfort, and society in the case of a passenger who is killed. Punitive and similar type damages are not recoverable. The right to all claim types is extinguished if not brought within two years from the arrival or date of scheduled arrival. The time limit is an absolute “condition precedent” to bringing a lawsuit and is not subject to extension.
The Montreal Convention of 1999 applies only if the trip involves a point of origin and point of ultimate destination in countries that are parties to the Convention. For instance, suppose the country Xanadu is not yet a party to the Montreal Convention. An Air Xanadu flight ticketed from Xanadu to San Francisco International Airport with a return to Xanadu is not governed by the Montreal Convention, since Xanadu is not a party to the Convention. However, a passenger on an Air Xanadu flight ticketed from San Francisco to Xanadu with a return to San Francisco would be governed by the Montreal Convention of 1999, because the point of origin and point of ultimate destination is in the United States (a contracting State), with an agreed stopping place in Xanadu (a non-contracting State).
The Montreal Convention and Warsaw System apply only to international air carriers and do not control damage claims by victims against other defendants. For instance, if the crash is due to a faulty design or manufacturer of a component in the airplane, the victim or his survivors can sue the manufacturer of the airplane and/or the manufacturer and supplier of the component part for all damages they can prove, without limitation. Airports, private security companies, and other service providers can be sued without having to worry about the Montreal Convention or Warsaw System’s limitations on damage. Indeed, even the United States can be sued without limitation for, e.g., the negligence of its air traffic controllers.
If a passenger dies in an aircraft crash on or above the “high seas,” the Death on the High Seas Act (DOHSA) applies in United States courts. Under admiralty law, the survivor’s damage was previously restricted to pecuniary loss only, that is, the financial loss the family suffers as the result of the death, reduced by the amount of expenses that would be incurred by the decedent. However, under the 2000 Death on the High Seas Amendment, the victim’s family can now recover for the nonpecuniary loss of care, comfort, and companionship resulting from the death of their loved one in addition to such pecuniary damages as lost past and future wages. But recovery is still not permitted either by the families or the passenger’s estate for the pre-impact pain and suffering suffered by the passenger in the airline disaster. The “high seas” are defined as the seas and oceans more than 12 miles from the shore of the United States and its islands. In most other countries, the high seas are defined as those seas more than three nautical miles off the country’s shore.
If the aircraft crashes within 12 nautical miles of the shores of the United States and results in death, then the cases will be determined using the laws in effect in the various states and under federal law. Crashes on or above the high seas outside 12 nautical miles from the shores of the United States will fall within the Death on the High Seas Act.