Overview
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 traffic is considered to be a safe means of transportation, but when accidents do occur they often result in fatalities. Smaller, less serious accidents involving private aircraft are more frequent than people realize because most of these accidents are not reported in the media.

It is the duty of the National Transportation Safety Board (NTSB) and other government agencies to investigate and determine the cause of aviation accidents, whether they involve commercial airline carriers or non-commercial private aircraft. However, the opinions of the NTSB as to causation are not admissible in a court of law, and it is up to the parties to prove their own cases.

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; 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 for the trial to take place in, or to choose from. 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.

Causes of Plane Crashes
Aviation accident law covers both commercial airline carriers and general aviation accidents. General aviation includes all non-commercial aircraft including small planes, large business jets, charter flights, pleasure crafts, helicopters, and hang gliders. The most common causes of both commercial airline and general aviation accidents include:

• Pilot error
• Equipment failure
• Manufacturing defects
• Structural or design problems
• Violation of Federal Aviation Administration (FAA) regulations
• Negligence of Flight Service Station employees
• Negligence of Federal Air Traffic Controllers
• Negligence in a third party's selection of a carrier
• Failure to properly maintain or repair the aircraft or its components
• Failure to properly fuel the aircraft

The FAA and NTSB
Two federal agencies regulate air travel and investigate every aviation accident (both commercial and general aviation) 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.

Accident victims sometimes wait for the results of an NTSB investigation before deciding whether to bring a lawsuit. For various reasons, this is not wise. One reason is that NTSB Probable Cause determinations and conclusions are not admissible in evidence pursuant to 49 U.S. Code Section 1441(e). Private parties must prove the cause of the air crash to a jury without the benefit of the conclusions of the NTSB Accident Investigations.

In the past, many courts have allowed factual data in the Field Investigator's "Factual Accident Report" into evidence and some courts have allowed the jury to read portions of the NTSB "Blue Cover" Aviation Accident Report of major air disasters. However, Federal Courts have begun to follow 49. U.S. Code Section 1441(e) "literally," and have simply refused to allow the NTSB "Blue Cover" Aviation Accident Report into evidence in airline disaster litigation (e.g., Sioux City United Airlines DC-10 Disaster.) There is good reason for this caution because the Board's full report often has factual findings intertwined with opinion and analysis, such that it would be very difficult for a Judge to extract purely factual information that will have meaning for the jury.

Judges have even a greater concern - if they were to show the jury the NTSB Report with opinions and conclusions, juries would simply defer to the opinions of the federal investigators. Litigants would, in effect, be denied their right to a jury trial because the jury's prerogatives would be usurped by the findings of investigators who had investigated a particular accident.

A new reason why the opinions in NTSB Reports release may not be admissible into evidence is the fact that lawyers are no longer able to ask NTSB Investigators in deposition, why they interpreted the facts the way they did. NTSB Regulations allow lawyers to take the depositions of the NTSB Investigators, but the investigators are no longer permitted to reveal their analysis or express opinions in the deposition. Thus, private litigants need to have their own experts to analyze the evidence and reach opinions as to causation.

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, aircraft maintenance providers, and commercial 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 accident, then product liability law may allow recovery against the manufacturer or seller of the defective product.

Liability - Owner or Operators
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.

Liability - Common Carriers
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 - Manufacturers
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.

According to the doctrine of strict liability, the presence of the defect is evidence enough to prove a case, and one need not show any specific act of negligence.

Although laws vary from state to state, what must generally be proven in a product liability case is that the victim's injury did indeed result from a defect in the product, and that this defect rendered the product unreasonably dangerous when used for its intended purpose.

To minimize potential risks, aircraft manufacturers, as well as manufacturers of parts and equipment used in aviation, are expected to adhere to rigorous production standards. If a defect occurs during the design or manufacturing stage of production, or if there is a failure to adequately warn of foreseeable dangers involved in the intended use of a product, the manufacturer may be held legally liable for any injuries or deaths that ensue as a result.

Product liability laws differ from state to state. In some states, a manufacturer may be held liable for a defective product simply because the product was determined to be "unreasonably dangerous" for its intended use by the average consumer. Most states, however, use a "risk-benefit" analysis to determine whether a manufacturer can be held strictly liable. This analysis weighs the risks associated with a given product against the benefits of its design. In such cases, it is the responsibility of the jury to decide whether there was a safer, mechanically feasible alternative to the existing design that could have been used, depending on the "state-of-the-art" at the time of manufacture.

To establish strict liability, it must be shown that the product:

1. Was defective at the time that it left the control of the manufacturer;
2. Was used for its intended purpose or in a reasonably foreseeable manner; and,
3. Contributed to the injury or death that resulted from the aviation accident.

It is important to remember that product liability laws differ from state to state, however, under most state laws, there are generally three types of product liability - manufacturing defect, design defect, and failure to warn liability:

Manufacturing Defect: If the manufacturer fails to build the product correctly, a manufacturing defect may exist. Thus, if the finished product is substandard by comparison to identical products in that product line, then the manufacturer may be held liable for failing to catch the defect before it left the assembly line and was sold to the consumer. Typical manufacturing defects include the use of substandard materials, faulty assembly, inadequate quality control, etc.

Design Defect: A design defect is one in which the whole product line, or the same component in each product of that particular model is dangerously deficient. Alternatively, defects can be shown revealing that there are risks in the design which outweigh the benefits of the design, coupled with proof that there was a feasible, safer design but the manufacturer failed to use it. If there is more risk than usefulness, then the product should have been designed differently or adequate warning should have been issued considering the hazards associated with the use of the product.

In most product liability trials, a jury is provided with technical evidence to assist them in performing this balancing test. One of the most important types of evidence that helps decide whether a product is defective in design is expert opinion testimony. Experts can explain whether there was an alternative, safer design that was mechanically feasible at the time the product was built and sold, and thus, tip the scales of the risk/utility balancing test in favor of the product user.

Failure to Warn: Sometimes, a manufacturer is unable to design a product to remove all risk. Similarly, the product may be complicated to use, and may need adequate instructions in order to use it safely. If the manufacture knows or should have known, at the time of manufacture and distribution, that there were risks associated with the use of the product, they have an obligation to notify the user of the product in clear language about the risks. If manufacturers fail to provide adequate warnings and instructions for use, they can be held strictly liable on a theory of failure to warn.

It is important to note that, in certain cases, there are limits to manufacturer liability. In 1994, Congress passed the General Aviation Revitalization Act (GARA), which in essence states that manufacturers of non-airline aircraft are protected from product liability lawsuits once an aircraft and its original parts have been in service for 18 years.

Comparative Liability - Shared Responsibility
In many cases, liability is shared among multiple parties. Most jurisdictions handle this matter by allowing juries to compare the contributions of those parties responsible for an aviation disaster to determine the extent to which the individual parties are liable for damages. For instance, it may be decided that a product defect was 60 percent responsible for an accident, but that the failure of a pilot to respond appropriately accounted for the remaining 40 percent. In jurisdictions that allow for findings based on comparative fault, liability would therefore be divided 60/40 between the two parties.

Liability of the United States
The Federal Aviation Administration is responsible for controlling air traffic in the United States through its Air Traffic Control (ATC) system. In cases of mid-air collisions, controlled flight into terrain, and some weather related accidents it must be determined whether ATC personnel performed their duties competently. If it is proven that negligence on the part of ATC personnel caused or contributed to the accident, the United States government may be held liable for any damages that result.

Damages
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 attorney can help you choose the best jurisdiction and present your damages properly to ensure that you are fairly compensated for your injuries.

Time Limits on Filing Suit
Every case has a statute of limitations that will apply. It varies by the type of case and the state where the case is filed. 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, aeronautical engineering, industry standards, and federal government rules and regulations. An attorney can help you determine the proper course of action to take and help avoid problems that could damage your potential case.

If you or a loved one has been injured by the negligence of another person or company, please contact us for an honest and fair evaluation of your case.