Right Seat Guy denies being Pilot in Crash? Hmmmm... Interesting, huh?

[Sonar5]

Ok,

I just saw this in my AvwebFlash, and thought it was interesting.

from:
http://www.avweb.com/eletter/archives/avflash/596-full.html#191783


[FONT=arial,helvetica,geneva][/FONT]

[FONT=arial,helvetica,geneva]Pilot Says He Was A Passenger In Crash Plane[/FONT]

An Ohio flight instructor says the NTSB is wrong to assume that just because he was the only one aboard a plane with the proper credentials that he was the pilot in command. Matthew Sullivan, 24, of Dublin, Ohio, was sitting in the right front seat of a Bonanza when it crashed a mile short of Rock Hill/York County Airport in South Carolina in July.



"I was strictly a passenger," Sullivan told the Rock Hill Herald. There were two other pilots on board, including the owner of the plane, and both died in the crash. The owner, Dr. Bill Coulman, sat in the back and Eric Johnson, whom Sullivan understood to be an experienced ex-military pilot, was in the left seat. But it was an IFR flight and only Sullivan held the instrument rating.



He's also an instructor. And the story could be much more complicated. In a letter to the NTSB, quoted in the Herald, Sullivan said he had no idea he was the only one with an instrument ticket and he wasn't acting as an instructor. "Dr. Coulman owned the plane, filed the flight plan and made the decision as to who would fly the aircraft," Sullivan wrote. "Mr. Johnson actually flew the plane knowing he did not have the certification or authority to do so.



It would be an injustice to blame me (as an invited guest) for their errors." The crash had nothing to do with the weather. Fuel mismanagement led to a loss of power, according to the NTSB. The question of who was flying is, of course, important in determining liability and could have an impact on Sullivan's future flying career.
​

From The NTSB report:
HISTORY OF FLIGHT

On July 24, 2005, at 1100 eastern daylight time, a Beechcraft V35B, N9JQ, registered to and operated by a private pilot, collided with the ground during a forced landing in Rock Hill, South Carolina. The personal fight was operated under the provisions of Title 14 CFR Part 91 with an instrument flight plan filed. Visual meteorological conditions prevailed at the time of the accident, and the airplane sustained substantial damage. The commercial pilot received serious injuries. The pilot rated passengers in front left seat ,and the rear seated passenger were fatally injured. The flight departed Ohio State University Airport, Ohio on July 24, 2005, at 0900.

PILOT INFORMATION

Review of pilot records revealed the pilot was issued a commercial certificate on July 30, 2003, with ratings for airplane single engine, multiengine land and instrument ratings. Review of medical records revealed the pilot held a third-class medical certificate issued on February 1, 2005, valid when wearing corrective lenses during flight. Review of pilot records indicated that the pilot accumulated a total of 900 flight hours.

So interesting defense claiming he was only along for the ride as a passenger.... of course the other two witnesses are dead so it's kind of hard to determine what's what here....

Something tells me there is something else here, but we are not in the know.

1) He didn't file the flight plan, the guy in the rear seat did.
2) He was in the front right, which is where an instructor usually sits.
3) The Avweb article lists him as an instructor, but the NTSB does not...

Hmmm.....

What do you folks think about this?

Regards,
Joe

 

[Frank Browne]

Hmmm.....

What do you folks think about this?

Regards,
Joe

I dunno. If he was along as a passenger I'm curious as to why he would be in the front seat with the owner in the back unless he was in fact acting as legal PIC. Curious circumstances that's for sure.

 

[James_Dean]

According to the FAA website he is in fact a CFII. This will be an interesting one.



James Dean

 

[Greebo]

1) He didn't file the flight plan, the guy in the rear seat did.
2) He was in the front right, which is where an instructor usually sits.
3) The Avweb article lists him as an instructor, but the NTSB does not...

Well, the flight plan will show who filed it (or at least in whos name it was filed).

The right front seat doesn't automatically make him an instructor for the purpose of the flight.

He might have a defense. He'll have to have a good attorney. He's 24 - I can believe a 24 year old, even with a CFI certification, could lack the wisdom and experience (and possibly the intestinal fortitude) to check up on the pilot doing the flying before taking off and just taking it on faith that all was copasetic before departure.

 

[Sonar5]

Well, the flight plan will show who filed it (or at least in whos name it was filed).

The right front seat doesn't automatically make him an instructor for the purpose of the flight.

He might have a defense. He'll have to have a good attorney. He's 24 - I can believe a 24 year old, even with a CFI certification, could lack the wisdom and experience (and possibly the intestinal fortitude) to check up on the pilot doing the flying before taking off and just taking it on faith that all was copasetic before departure.

Also read this part...

At 0900, the pilot contacted Ohio departure to open the flight plan

.

And then:

The Piedmont Medical Center, Rock Hill, South Carolina preformed the postmortem examination of the private pilot on July 25, 2005. The reported cause of death was "blunt force trauma." The postmortem toxicology specimens from the pilot were negative for carbon monoxide, cyanide, drugs and alcohol.

Again, the NTSB report is not clear as to who is who here, unless I'm missing something.

I wonder if the right seat guy made the Radio call opening the flight plan.

Little bit of inconsistency here on the NTSB part. Unless I'm missing something here.


We also have this:

On July 24, 2005, at 1100 eastern daylight time, a Beechcraft V35B, N9JQ, registered to and operated by a private pilot, collided with the ground during a forced landing in Rock Hill, South Carolina.

And then:

Review of pilot records revealed the pilot was issued a commercial certificate on July 30, 2003, with ratings for airplane single engine, multiengine land and instrument ratings.

Ok which is it.....

 

[Dave Siciliano]

I thought I read somewhere that the instructor was the only one instrument rated and they were previously on an insturment flight plan.

Got to tell you, it will be an uphill battle for this instructor. In the past, the most qualified person aboard has been presumed to be PIC unless there was some tangible proof to the contrary.

Dave

 

[tonycondon]

the way i have always heard/felt, if you are a CFI and are on board and something goes south, your balls will be put in the blender. just a consequence of having the license, something ive learned to live with.

 

[wbarnhill]

At 0900, the pilot contacted Ohio departure to open the flight plan. Review of records revealed the uneventful flight departed Ohio State on a cross-country flight to Rock Hill, South Carolina. Approximately four miles away from destination airport the pilot canceled the instrument flight plan and continued the flight under visual flight rules. No other radio transmissions were received from the pilot.

Hmm.

http://www.ntsb.gov/ntsb/brief2.asp?ev_id=20050801X01123&ntsbno=ATL05FA135&akey=1

And...

Post accident examination of the fuel system revealed that there was no fuel found in the fuel lines from the main tanks to the fuel mechanical pump. Fuel selector was found in the left tip tank position. The electrical cross feed selector switch was in the off position. The electrical valve was tested for operation, and when energized open and closed with the movement of the switch. The mechanical fuel pump removed and the drive coupling was found intact. The fuel pump was tested, and produced suction and pressure. The connecting lines had no traces of fuel or debris. The fuel manifold was removed, and disassembled. Fuel residue was found in the manifold, and the manifold screen was clear of debris. Approximately 2-3 gallons of fuel was found in the left and right main tanks, and the tanks were breached. No fuel was found in the left tip tank, and the tank was not breached. The right tip tank was breached. Air was blown through the fuel system lines and pressure was obtained. Small traces of fuel were found in the fuel manifold and small traces were found in the fuel sump.

I say the damage is done. Regardless of if this guy is found at fault or not, if he filed the IFR plan, the plan itself would have an indication of fuel on board, etc. If he didn't take the time to ensure the fuel was sufficient, or cut other corners, he's responsible for poor fuel management, and thus responsible for the end result.

 

[ejensen]

Not sure if I was a 24 year old cfi and going for a ride with an owner and an ex-military pilot that I'd demand to see certificates and medicals. I know in theory you should but when the last time you asked? I don't remember anyone asking me outside a wings weekend or a FBO checkout.

 

[wsuffa]

As Dave pointed out, there is some established case law that holds that a CFI (particularly sitting in the front seat) is held responsible unless there is compelling evidence otherwise.

In this case, he was the only person on-board that was instrument qualified, which would strengthen the NTSB case.

I think the CFII has an uphill battle on this one. At best, I think the FAA/NTSB might hold that he should have known to check the PIC for qualifications (or at least asked him if he were instrument qualified).

We don't know who's name was on the flight plan, but supposedly it was filed by the plane's owner, who was in the back seat. I think even if the back seater were instrument qualified, the NTSB would be hard pressed to lay blame on him when a qualified CFII were in the front seat.

 

[Greebo]

Oh, I agree he has an uphill battle ahead of him - I'm just saying he MIGHT have a case with a good lawyer. He'd be a fool not to at least try.

 

[ggroves]

This one is going to be interesting. As a CFII, I find myself in this position from time to time...flying in the right seat, usually with a friend for pleasure, and not instructing.

I flew with a friend in his SR22 the other weekend. There were 3 of us on-board. I was in the right seat, and the only CFI. I was not PIC, nor was I instructing. What would the NTSB have assumed post-crash if none of us survived, if only I survived, etc.

I think Ron Levy or someone else once suggested that CFI's should get something in writing, that they leave on the ground, before every non-instructional flight stating who is PIC and that the flight is non-instructional.

Greg
CFII

 

[EdFred]

I think Ron Levy or someone else once suggested that CFI's should get something in writing, that they leave on the ground, before every non-instructional flight stating who is PIC and that the flight is non-instructional.

And leave it in the FBO/Hangar/Car. That way if the plane goes **whoof** in flames, there's a record of it.

 

[Dave Siciliano]

I've had a couple discussions about this with CFIs and some pretty high time ATPs that are friends that rode with me. Since I do own the plane, I can tell them I'm PIC--period. Pretty stupid to have someone with a lot of qualifications aboard and tell them that, but I can. If that other person is uncomfortable with that, we can produce a writing to that effect and put it in the hanger before we leave or otherwise memorialize it. But, the highly qualified person/CFI takes a chance here. As Tony says, that person should know that and if uncomfortable shouldn't ride there.

Dave

 

[RotaryWingBob]

I flew with a friend in his SR22 the other weekend. There were 3 of us on-board. I was in the right seat, and the only CFI. I was not PIC, nor was I instructing. What would the NTSB have assumed post-crash if none of us survived, if only I survived, etc.

Interesting point, Greg. I'm sure this situation happens all the time. A couple of months ago the CFI who was my primary RH instructor flew out with me for lunch to Cape May in the Cherokee. He sat in the right seat, I acted and logged PIC, and there was no instruction (just a BS session during the flight ). Besides being ATP-RH and CFII, he's also ATP-SEL, MEL, so I suppose it would have been his 709 checkride if I had bent the airplane...

 

[Len Lanetti]

I suppose it would have been his 709 checkride if I had bent the airplane...

Nothing says the FSDO can't give two 709 rides.

A CFI friend of mine feels he can never just goes for a ride. I know for a fact that he does not like going up with someone in a weird or complex aircraft that he has never been in before, where he doesn't know the systems.

Fuel system knowledge may have played a part in the cited accident. Tip tanks with fuel transfer pumps...that's the kind of stuff where you have to know the systems inside and out. Like, how do you get a reading on fuel in the various tanks, is it SOP for fuel to be transfered to the mains with a transfer pump to be usable, how fast does it transfer, how fast does it transfer in comparison to the fuel usage rate, what are the safeguards to prevent transfer to an already full main tank.

Len

 

[Let'sgoflying!]

I think there is case law. Ron? Didn't you say they can nail a guy even if he was in the back seat? I swear I heard that a long time ago. Paging Ron.

 

[Larry Liebscher]

Let's look at a hypothetical situation. I'm going for a flight in my plane and invite a friend along who happens to be a CFII. I am completely qualified, current and proficient. It is clearly established that I'm PIC and we are just out for an enjoyable afternoon.

We are at a busy field and I taxi to the runway. Tower tells me to hold short for landing traffic. My friend and I both have headsets on and are on an intercom system.

As we approach the hold short line, I show no effort at slowing down and keep right on going onto the active runway. The landing aircraft has to attempt a go around, but is unable and crashes with loss of life.

Do you really think that the FAA is going to let my CFI friend off? Sure, they will nail me but I'd bet they will say that the CFI knew what was going on, understood the situation and failed to act regardless of the fact that he wasn't PIC.

I'm sure Ron will be able to bring case law to clear this up, but in the accident in question on this thread I'd bet it will come down to whether the CFII should have been aware of the situation. If it was possible that the pilot could have caused the situation unbeknownest to the CFI, then it will be a he said, he said situation as to who was PIC. If the CFII could or should have been aware of the impending disaster, then they will nail him as well, regardless of being PIC or not.

 

[AdamZ]

Well Joe it is confusing and the fact that holding a CFI responsible just b/c he is in the plane doesn't make sense, in fact makes perfect sense remember its da gubberment.

So lets assume the NTSB and FAA find the CFII at fault then we should ask despite the NTSB finding who do we think is at fault. If I were filing a flight plan for someone as SIC or a pilot pax I sure as heck would list the actual PIC as PIC. I wouldn't file it under my name. As for actually checking the other guys ratings does anyone here really do that. The first Time I met and flew with Ron It was me, a CFII and Ron we discussed who would act as PIC... well they discussed who would act as PIC I just wondered how comfy the back seat of a Tiger was. Ron had a gajilloin hours so he was PIC. No one asked to see credentials. Perhaps ATC tapes will help them figure it out. Sad story.

 

[RotaryWingBob]

I agree, Len. There could be two 709's. That's why I try not to bend the airplane!

 

[Ed Guthrie]

I think there is case law. Ron? Didn't you say they can nail a guy even if he was in the back seat? I swear I heard that a long time ago. Paging Ron.

Civil suit held a sleeping CFI responsible; the FAA did not.

 

[Richard]

This one is going to be interesting. As a CFII, I find myself in this position from time to time...flying in the right seat, usually with a friend for pleasure, and not instructing.

I flew with a friend in his SR22 the other weekend. There were 3 of us on-board. I was in the right seat, and the only CFI. I was not PIC, nor was I instructing. What would the NTSB have assumed post-crash if none of us survived, if only I survived, etc.

I think Ron Levy or someone else once suggested that CFI's should get something in writing, that they leave on the ground, before every non-instructional flight stating who is PIC and that the flight is non-instructional.

Greg
CFII

I find it hard to believe that such a waiver of responsibility is defensible against an agency which has already determined that the guy with the highest rating is responsible.

But I also think is completely absurd that a piloted rated pax would be held responsible. How Orwellian. And Carrolian.

 

[Greebo]

As we approach the hold short line, I show no effort at slowing down and keep right on going onto the active runway. The landing aircraft has to attempt a go around, but is unable and crashes with loss of life.

Do you really think that the FAA is going to let my CFI friend off? Sure, they will nail me but I'd bet they will say that the CFI knew what was going on, understood the situation and failed to act regardless of the fact that he wasn't PIC.

There is, however, an arguable difference between the two scenarios.

In the right front seat, in most planes, your CFI friend would be able to stomp on the brakes and pull the throttle to avoid the incident right then and there. The FAA would have a strong case that, even if he wasn't PIC, the CFI had an obligation to act to stop the incursion.

In the specfiic case at hand, the CFI in the right seat couldn't exactly hop out and get a few gallons of fuel to put into the airplane.

Again, an uphill battle, but with a good attorney he may be able to beat the rap. Remember - he's 24, flying with ex-military pilots if I recall. A 24 year old is, in my experience, going to be more worried about offending the older pilots or looking stupid than he is about making sure the flight is all good to go. Never mind that any GOOD pilot would appreciate the desire on the CFI's part to check the data for himself - youth doesn't always - or even usally - think like that.

 

[Len Lanetti]

That's why I try not to bend the airplane!

How does that saying go..."Don't hit anything but if you do have to hit something make it the softest, cheapest thing around and hit it as slowly as possible."

Len

 

[tonycondon]

Remember - he's 24, flying with ex-military pilots if I recall. A 24 year old is, in my experience, going to be more worried about offending the older pilots or looking stupid than he is about making sure the flight is all good to go. Never mind that any GOOD pilot would appreciate the desire on the CFI's part to check the data for himself - youth doesn't always - or even usally - think like that.

Thats a tough part of being a young CFI, some guys are intimidated by old guys/percieved experience. gotta speak up, obviously it can save your bacon.

 

[poadeleted20]

First, let's separate the liability issues from the enforcement issues from the NTSB findings. They are covered by different standards and adjudicated under different procedures.

The NTSB is only in the business of determining probable cause. They operate under exemptions from many legal standards operable in other areas, and while any factual evidence they uncover is admissible in court, their conclusions are not. One could certainly make the argument that absent documentary evidence (i.e., the name on the filed flight plan), determination of who was PIC in this case is a conclusion, not a factual matter. In addition, the NTSB report is a "preliminary" report which comes with a caveat that basically says, "none of this can be taken as fact until the report goes final." Note the discrepancy in the report between the line that says the plane was owned and operated by the private pilot to whom it was registered, and later talks about its commercial pilot. I suspect the NTSB will be reviewing the FSS and ATC tapes to see who got the briefing, filed the flight plan, and talked on the radio. In any event, it seems clear to me that the NTSB has not yet fully sorted this out, although I think this instructor is smart to engage legal assistance before it goes any further.

In terms of enforcement actions, the FAA normally assumes that if there's only one rated pilot at a control station, he's the PIC, whether in the right seat or the left. However, if there's an instructor in the right seat giving instruction, they usually assume he's the PIC. In this case, it's not at all clear from the published information who the PIC was (or even whose name was in the PIC block on the flight plan), and if it comes to an enforcement action or assignment of the accident to a pilot's record, that will probably end up being adjudicated by an ALJ and perhaps eventually by the US Court of Appeals.

As for liability actions in civil courts, one need not be the PIC or even a pilot to share in the responsibility for damages resulting from an accident. The classic case is Newburger v. Porkrass (10 Avi. 17,119), in which the non-pilot passenger who as asleep in the right seat was found contributorily negligent. Newburger went to sleep in the right seat even though he knew the pilot Porkrass was tired and might fall asleep -- which Porkrass did, resulting in a gentle descent into the terrain resulting in a nonfatal injury accident. Newburger's damages against Porkrass (who found negligent for falling asleep while acting as PIC, among other failures to exercise due care) were accordingly reduced. Thus, if you are a CFI sitting in the back, and you see the inexperienced private pilot in the left seat is continuing into adverse weather, a jury could easily find that you had a duty at least to attempt to talk the PIC out of his bad decision. Failing that, other passengers injured in the ensuing accident could sue you and perhaps win damages against you as well as the PIC.

 

[SJP]

Let's look at a hypothetical situation....

You are driving along in your car with a buddy who happens to be a Driving Instructor. You run into the guy in front. Should your buddy get a ticket too ?

 

[poadeleted20]

You are driving along in your car with a buddy who happens to be a Driving Instructor. You run into the guy in front. Should your buddy get a ticket too ?

The rules under which aviation operates are different from the rules under which driving operates. But from a liability standpoint, that Driving Instructor could still be sued for negligence and found liable for damages to the driver/owner of the vehicle in front if he saw what was coming and failed to at least warn his driver.

 

[ausrere]

I find it hard to believe that such a waiver of responsibility is defensible against an agency which has already determined that the guy with the highest rating is responsible.

But I also think is completely absurd that a piloted rated pax would be held responsible. How Orwellian. And Carrolian.

That's kind of what I was thinking as I read this thread. If you compare it to other forms of transportation, it really doesn't make sense.

If a commercially licensed truck driver is sitting in the right seat of car as a passenger, and the driver of the car, who only holds an operators license, hits something, nobody would think of charging the truck driver with anything. Much less take his/her license away. The one behind the wheel takes full responsibility in the accident.

Around here, if the driver of the car turned out to be unlicensed, the truck driver could be cited for allowing an unlicensed driver to drive, but that's about it.

I could see a CFI (or any rated pilot) getting into some trouble by allowing an unlicensed pilot to fly where it results in an accident, but to made responsible for the actions of someone else when you are just along for the ride..and especially in the back seat..it's crazy.

 

[AdamZ]

Guess some professions are just 24/7 Cops being one of them

 

[flyingcheesehead]

If a commercially licensed truck driver is sitting in the right seat of car as a passenger, and the driver of the car, who only holds an operators license, hits something, nobody would think of charging the truck driver with anything. Much less take his/her license away. The one behind the wheel takes full responsibility in the accident.

Two issues: First, a commercial driver's license is very different from a commercial pilot's license. Any old schmoe can drive a truck of up to 26,000 pounds GVWR and a trailer up to 10,000 pounds GVWR with nothing other than a regular driver's license, and get paid for it. If the truck's GVWR is 26,001 or more they need a Class B CDL, trailer 10,001 or more they need a Class A CDL. It's kind of more akin to how you can fly a King Air 200 with nothing more than a PP-AMEL or CP-AMEL but you need to add a type rating to fly a King Air 350 (over 12,500 pounds).

Second, most airplanes have dual controls, most ground-pounder vehicles do not. If one of my trainees sees a deer run in front of us, swerves to avoid it (bad idea) and hits a car and injures someone, well, there's not a whole heckuva lot I can do about it. I'd hope that I'd be found less liable than a CFI with a full set of controls in front of him, as the best I can do is lean over and grab the trailer brake lever.

What I'm really curious about is the many trucking companies whose idea of "training" goes like this: Brand-new driver gets behind the wheel, so-called "trainer" goes to sleep in the bunk. Yikes! Who's liable for the accident there? My job does scare me sometimes, as it's somewhat akin to taking a newly certificated private pilot and throwing them in the left seat of a King Air with no dual controls! But, I'm at least going to be in the seat watching what's going on...

 

[bbchien]

In terms of enforcement actions, the FAA normally assumes that if there's only one rated pilot at a control station, he's the PIC, whether in the right seat or the left. However, if there's an instructor in the right seat giving instruction, they usually assume he's the PIC. In this case, it's not at all clear from the published information who the PIC was (or even whose name was in the PIC block on the flight plan), and if it comes to an enforcement action or assignment of the accident to a pilot's record, that will probably end up being adjudicated by an ALJ and perhaps eventually by the US Court of Appeals.

As for liability actions in civil courts, one need not be the PIC or even a pilot to share in the responsibility for damages resulting from an accident. The classic case is Newburger v. Porkrass (10 Avi. 17,119), in which the non-pilot passenger who as asleep in the right seat was found contributorily negligent. Newburger went to sleep in the right seat even though he knew the pilot Porkrass was tired and might fall asleep -- which Porkrass did, resulting in a gentle descent into the terrain resulting in a nonfatal injury accident. Newburger's damages against Porkrass (who found negligent for falling asleep while acting as PIC, among other failures to exercise due care) were accordingly reduced. Thus, if you are a CFI sitting in the back, and you see the inexperienced private pilot in the left seat is continuing into adverse weather, a jury could easily find that you had a duty at least to attempt to talk the PIC out of his bad decision. Failing that, other passengers injured in the ensuing accident could sue you and perhaps win damages against you as well as the PIC.

Which is why, when I am in a "friendly" right seat, there is always a discussion, in front of everyone, as to who will be PIC. If it cannot be amicably agreed, then either I am PIC (after examining the aircraft logbooks) or that seat is not "friendly" any longer.