from Colorado Pilots Association discussion on the issues, posted with permission of the author...
--------------------------------------------------------------------------
1-30-07
All –
Here are a few of the legal ramifications flowing from taking riders in an airplane.
First of all, I will not deal with the instances where a pilot undertakes to intentionally perform an act which is clearly calculated to result in serious bodily injury or death. Those instances are treated differently by both civil and criminal law. If a pilot is loading up an airplane with the intention of injuring people, then he shouldn’t be flying. We should refer such a pilot to the FBI as a terrorist.
Secondly, I will not address violations of FARs, or actions of the FAA regarding same.
Thirdly, it’s not really a case of “buyer beware”, or even “flier beware”. I don’t think that principle applies to these situations. The law is a lot more clear than that.
I will briefly address the situation where you load up a person for a flight during which you expect all to go well.
You can have all riders sign a document which absolves you of civil liability (assuming the rider is competent to sign such a document, and assuming the activity you are involved with is one regarding which the courts actually allow the rider to waive liability). Those are quite useful. I recommend using one in every instance.
The good faith (or not) of the pilot, passenger, or the organizations involved is largely irrelevant (outside the event where the pilot intends to wreck the plane). The fact is that there is a presumption in the mind of the rider (and family) that the pilot is competent and current, and that the aircraft is airworthy. With that in mind, I will very briefly address the potential civil and criminal liabilities.
Civil law: In civil law, one obtains as a result of a claim either injunctive relief (the court tells someone to do something), or judgment for damages (money). What generally matters is the presence of negligence. Negligence is simply defined as the doing of something which a reasonably prudent pilot would not have done… or the failure to do something which a reasonably prudent pilot would have done. Then if that action (or inaction) proximately causes damages, there is an opening for civil liability. Please note that this definition is quite simplistic, and is not a full definition as would be given to the jury in a civil case. But it will work for our discussion. The sad fact is that in airplane incidents, the injuries are normally either quite benign, or quite severe. Generally, a good thing to do in an aircraft incident is to immediately ascertain the condition of the people involved. If you can, use a video camera to view the scene, and keep it on while you talk to people involved and see how they are. Unless they are really injured, they will normally tell you they are fine. You can use a pen and notepad to record quotes. Get somebody to keep track of everyone involved, and attempt to settle any medical claims immediately. They will settle much cheaper at the outset than they will later. Your insurance company will try to hire an attorney from a big downtown firm to defend any claims, but don’t get the feeling that they are your friend. Their primary loyalty is to the insurance company – who pays them. You should hire your own attorney to move things along (and hold the downtown attorney’s feet to the fire) to get things resolved early and cheaply. The more connected you stay with the injured person, the less likely you are to face a lawsuit.
Criminal law: There is considerable cross-over between what will produce civil liability and what will produce criminal prosecution. The “OJ” case is an example. In criminal law, if one is negligent enough, it will rise to the level of criminal negligence. Again, I don’t deal with the intentional injuring of another – which in almost every case can produce criminal prosecution. But the standard of proof is far more difficult in criminal law. In civil law, the standard of proof is simple… is it more likely than not that the fact alleged is true? In criminal law, the standard is that the guilt of the accused must be proved beyond a reasonable doubt. There is a lengthy definition of that term which I will not post here, to save space, but suffice it to say that it is a very high standard. In criminal law, if the charges are proved (or admitted), the judge imposes a sentence. Normally a sentence can be anything from probation to prison time. Fines are sometimes assessed as well.
I will tell you that the authorities seem to get more energized about a plane incident where serious injuries (or deaths) occur, than merely gear-up landings where the passengers are only inconvenienced by a little wet spot in their pants.
I read the report of what happened to the Stearman pilot. What the report didn’t say was whether the power lines were shown on a Sectional map. If so, then the pilot was presumed to know of their existence at this point. The fact that he knew this river and had flown it before will not help. It will hurt. He knew the lines were there, and should have been far more vigilant. Flying into power lines is not uncommon. That is why most helicopters have “cable cutters”. The hope is that they will be able to cut the cable rather than be captured like a bug in a spider-web. Airplanes don’t have such defenses. I wonder whether the altitude of flight was within the Regs. If not, then the story is pretty much over. Violation of Regs can be used as a jumping-off-point for either civil or criminal liability. Seeing the power lines only a half-second before impact tells me nothing more than the fact that power lines are hard to see. Besides, looking through the various wires and such which hold a Stearman together serves to camouflage them even further.
When I finished reading the report, my initial thought was not complimentary toward the pilot. First of all, he should have hired an attorney before making any statements to ANYONE. Almost all criminal cases are founded upon admissions of the accused. This is also true of civil matters. Further, he was flying so low that stuff like this happens. 40-50 feet is way too low, I think. All he had to do was be above the altitude that power lines normally hang, and this would have been a far different story. Clearly, he was hot-dogging before the incident. When we “hot dog” in an airplane – especially when showing-off for a passenger – this kind of stuff happens. I can’t remember all the stories I have heard about a pilot showing-off for passengers or people on the ground, and things ended poorly. So, the moral of the story is to take extra care when flying passengers, not less.
I don’t write to discourage you from taking riders, or from giving away an experience of a lifetime. But I do write to remind all of us to just use our heads and to do stuff that will actively keep persons and property undamaged. Most people are afraid to carry riders, and stories like these have a tendency to suppress this kind of laudable activity. Please don’t let one pilot’s mistakes dissuade us from introducing youngsters to the wonderful world of flight.
Having said that, and without further information, I will predict that this pilot will face serious civil liability as a minimum, but maybe even criminal prosecution. Folks, your life can turn from wonderful to tragic in a moment. Let’s work hard to reduce all aircraft incidents to merely unforeseeable mechanical failures, OK?
Thanks.
Jay
H. J. Ledbetter, Jr.
