The typical categories of recoverable damages in a personal injury claim arising from an aviation accident include:
- Past and future medical expenses;
- Lost wages and, lost earning capacity
- Past and future pain and suffering;
- Emotional distress;
- Loss of consortium/association (usually 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.
If an aircraft failed due to improper maintenance, this liability falls onto the owner and/or operator. This party is charged with all maintenance and operation of the vehicle, whether it is in the air or on the ground. If, however, an aircraft failed as the result of manufacturing, whether preventative or other, the liability is on the manufacturer who should have taken the correct steps to prevent the incident. Although not all accidents can be prevented, if it is determined that the manufacturer should have known and reported a defect and the issue could have occurred and either issued a warning or replaced the issue, the manufacturer is liable. However, if proper precautions were warned and stated beforehand, and the issue performed as declared, there is no liability on the fault of the manufacturer but instead the owner/operator.
If an incident occurred as a result of federal guidelines or a mistake made by the FAA regulations part, the liability is placed on the federal government, at which point any airplane injury party should seek damages from the government. In some instances, the incident may have been the result of faulty equipment, which once again will need to be evaluated based on what occurred and who might be liable for the faulty equipment. However, this part falls on the federal aviation regulations part of the government to deal with.
It can be difficult to know who is at fault, especially if you are dealing with any injuries or a possible death as a result of the injury which occurred. If you need to seek information on what occurred, it is best to consult with aviation accident attorneys if you believe you will need assistance. In addition, the attorney will have more resources at his or her disposal in order to determine what happened and what steps should be taken if any to rectify the situation.
It is advisable that individuals do not seek action on their own as they may not have a proper understanding of what occurred. If the injured party continues on his or her own, he or she may hurt his or her case instead of helping it. In addition, further assistance may be obtained which the injured party had not considered.
Can You Sue an Airline for an Airplane Crash?
Thankfully, there are few major airplane crashes every year; however, there are far more small plane crashes and landings than large jets. While we always hope that the people involved in the crash will be ok, what about the property damage that is done? In the U.S. there is a fair amount of controversy over when “strict liability” should govern. Strict liability means that a person or corporation is responsible for the damage and losses caused by their acts or omissions regardless of the reason. This is usually seen in product liability suits, but what about airplane accidents?
Lawsuits against Airlines by Passengers
There have been many lawsuits filed by passengers (or their estates) against airlines, airplane makers, and maintenance companies, but the courts have usually held that there is no strict liability. Instead, the passengers must usually prove some type of fault or negligence by the airline. The reasoning behind this is that traveling by airplane does not constitute an “abnormally dangerous activity.” Abnormally dangerous activities are things like storing thousands of pounds of TNT.
One note, liability for international flights are generally governed by the Warsaw Convention which limits a carrier’s liability to $8,300. However, in 1966, a Montreal agreement raised the limit of carriers operating in the U.S. to $75,000 while imposing a “modified form of strict liability.” Those injured in an airplane crash usually need to hire an attorney who specializes in aviation law.
Lawsuits against Airlines for Damage Done On the Ground
A key difference between passengers filing suit, and those that are innocent bystanders on the ground, is that strict liability would apply to damage done by an airplane crash whereas it would not for airline passengers. For example, if a small plane crash landed on a house, destroying its kitchen, the airplane owner and the pilot would be strictly liable for the damage done. The courts have defined strict liability for ground damage as that caused by “ascent, descent or flight of aircraft, or by the dropping or falling of an object from the aircraft.”
Can the owner/operator be held criminally liable?
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. The difficulty in prosecuting these cases lies in differentiating between cases of negligence and mere accidents.
What is the Statute of Repose?
In the context of aviation litigation, a “Statute of Repose” limits the time a lawsuit may be filed with regard to how long an airplane or part has been in service. The applicable time period varies depending on the jurisdiction.
What is the time period in which an aviation accident case must be brought?
The time period for bringing a suit arising out of a plane crash varies depending upon what law applies. In some of these, limitation periods can be quite short. It is important to contact an attorney as soon as possible.
Who do I call to get information immediately following an aviation accident?
All aviation accidents are to be reported to the NTSB. The phone number for the NTSB Communications Center is (202) 314-6100. This is a good place to start. The NTSB will be able to provide some information, and to the extent answers are available, should be able to direct you to the answers you need. An experienced aviation attorney can help you gather critical information quickly.
What Is Strict Liability?
While pilot error usually plays a part in aircraft accidents but 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.
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 (GARA)
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.
What are the Limitations on Airline Liability for International Flights?
There are major limitations on liability and damages for airlines in international flights.
The 1929 Warsaw Convention created a multinational treaty. The Convention makes air carriers engaged in international flights liable for injuries sustained by airline passengers if the accident that caused the damage occurred onboard the aircraft while boarding or exiting the airplane. However, the Warsaw Convention created strict damage limitations which will be mentioned below.
Absolute liability but limited damage payments by airlines.
In 1966, a document called the “Montreal Agreement” was reached where airlines who signed on to the agreement accepted absolute liability for injury to passengers on international flights that had a point of departure or a stop in the United States. However, this acceptance of “absolute liability” which would waive any potential defenses of the airline came at a severe price to passengers and their heirs who are limited to a total damage recovery of $75,000.
$75,000 limitation applies only to international flights against airlines — product liability and other theories of liability are excluded.
Note that the $75,000 limitation applies only to liability of the airline on international flights “that had a point of departure or a stop in the United States.” Strictly domestic flights do not result in either “absolute liability” of the airline or the $75,000 damage limitation. Further, the absolute liability and damage limitations apply only to cases against the airline and not to manufacturers or suppliers of the aircraft. Further, not all airlines have signed on to the Montreal Agreement of 1966.
Further, some airlines have agreed to a proposed Transportation Department regulation allowing them to waive the $75,000 damage limit.
If plaintiff can prove willful misconduct, the $75,000 limitation does not apply.
An important exception to the limitations of the 1929 Warsaw Convention is that injury or death caused by a carrier’s “willful misconduct” is not subject to the Convention’s limitation on damages. Frequently, in cases involving international flights, a critical battleground is whether the behavior of the airline constitutes “willful misconduct.” Recognizing the harsh damage limitations imposed upon the heirs and survivors in international airplane crashes, jurors and judges seem to want to find a way to rule that the misconduct of the airline was “willful.”
Plaintiffs are entitled to no recovery for purely emotional distress without an accompanying physical injury.
Also, the Convention allows recovery for physical bodily injury and not for emotional distress alone. Plaintiffs are probably entitled to recover for emotional distress arising out of a physical injury, but not for emotional distress standing alone.
Even further limitations for damage for crashes “on the high seas.”
In terms of airplane crashes “on the high seas,” a plaintiff’s heirs are limited to the recovery of their financial losses, i.e., loss of financial support of the decedent. There is no recovery for emotional distress of the decedent or the loss of society, comfort, care of the survivors.
Warsaw Convention trumps State law liability.
The Warsaw Convention has been found to “preempt” State tort liability. Thus, even if an international flight crashes in California, the Warsaw limitations will apply, not California law.
Punitive damages are barred.
Also, punitive damages are barred under the Warsaw Convention.
Proving Airplane Accident Cases.
Actual evidence of what caused an airplane crash may be difficult to find.
Obtaining proof of the cause of an airplane accident can be extraordinarily difficult because, frequently, there are no survivors who can testify as to what happened and the airplane itself is so obliterated by the crash that it is hard for FAA investigators to piece together the cause of the crash.
A legal theory called “res ipsa loquitur” helps plaintiffs win aviation cases.
Plaintiffs are usually aided in an airplane crash case by the doctrine of “res ipsa loquitur” which means that if the following three conditions are met, there is a presumption of negligence:
► the accident is of a kind that ordinarily does not occur absent someone’s negligence.
► the accident or injury was caused by an agency or instrumentality within the defendant’s exclusive control.
► the accident or injury was not due to any voluntary action or contribution of the plaintiff.
Thus, in almost every airplane case brought by anybody other than the pilot or co-pilot, there will be a presumption of negligence if the airplane crashes.
Even pilots or their survivors can sue for injuries and death in an airplane crash if someone other than the pilot or employer is responsible.
Note that pilots cannot sue their employers; however, they can bring a lawsuit against the manufacturer and supplier of the airplane or other parties mentioned in “B” above if plaintiff can prove negligence of other parties. This would also be true for flight attendants, who can not sue their employer if the sole cause of a crash is the airline or the pilot.
Res Ipsa Loquitur can make an impossible case to prove, provable.
The doctrine of res ipsa loquitur protects plaintiffs in cases such as an airplane crash where it is very difficult, if not impossible, to establish the precise cause of the crash.
Violation of statute or regulation may lead to liability.
Plaintiffs are also aided in proving aviation cases if they can establish the violation of a safety statute or regulation. Such a violation creates a presumption of negligence and shifts the burden to the defendant to prove that it was not negligent. There are many statutes regulating the aviation industry; therefore, these statutes should be carefully researched.
However, the violation of a statute will not create a presumption of negligence if it was not intended to protect the public from the kind of injury which a plaintiff or their heirs suffered in the airplane accident.
Can the heirs recover monetary damages?
California cases have further defined wrongful death damages to include the value of future monetary contributions from the decedent to the heirs and the value of any personal service, advice or training that would have probably been given
What emotional distress damages are allowed?
Damages also include compensation for loss of love, companionship, comfort, affection, society, solace or moral support or any loss of decedent’s physical assistance in the operation or maintenance of the home. (However, see section “C” above for a discussion of limitations in recoverable damages on some international flights.)
Are damages for grief recoverable?
The law does not allow recovery for grief or the pain and suffering of the heirs. Instead, damages are focused on the emotional losses suffered by the heirs as discussed above.
Are damages for decedent’s pain and suffering recoverable?
No. Damages for the decedent’s pain and suffering are not recoverable in a wrongful death aviation case.
Are the survivors allowed to recover punitive damages against the defendant?
Punitive damages are recoverable only in a survival action. If the decedent died at the moment of impact, punitive damages, which are damages meant to punish the wrongdoer, are not recoverable.
There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.
Although there are a few exceptions, generally speaking in California a case for wrongful death must be brought within one year of the date of the accident/incident. In rare cases, that time period is extended to one year from the date of the discovery of a wrongdoing and/or an injury. However, be careful. If the case is against a public entity, the claim must be brought within six months of the date of the accident. Except in cases against public entities, minors have until their 19th birthday to bring a case.
What Damages Are Recoverable in a Serious Injury Aviation Accident Case?
In a serious injury aviation accident case, plaintiff can recover for past medical expenses, future predicted medical expenses, past wage loss, future predicted wage loss and for past and future pain and suffering.
The medical expenses are determined by the testimony of physicians or other health care providers. Frequently, an economist or an expert in the industry determines the amount of future wage loss; however, no expert can testify to the value of pain and suffering.
Pain and suffering is typically the most significant element of a plaintiff’s damage and it includes emotional distress. Contrary to popular belief, there is no formula for pain and suffering awards and it varies greatly from case to case depending upon the location of the case, the seriousness of the injury and how well the case is presented.
Claim for Loss of Consortium.
A plaintiff’s spouse can also sue and recover damages for ‘loss of consortium.” A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse’s unavailability due to their injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.