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A. INVESTIGATE
The basic concern in an aviation accident case is to determine what actually happened to cause or contribute to the cause of the accident. A legal accident investigation, when done completely results in establishing facts as to what happened and how it happened. From a properly conducted investigation an attorney will establish what parts malfunctioned, what human errors occurred, and what chain of events transpired. Relationships will become clear between actions and results. The potential defendants and innocent actors will be determined. Probable cause will transform into proximate cause and cause in fact.
B. WHO INVESTIGATES AIR ACCIDENTS
The N.T.S.B. (National Transportation Safety Board) has the duty of investigating all civilian accidents in the United States. It combines with the military and conducts a joint investigation when there is military involvement with a civilian aircraft. (midairs) It provides investigators to an I.C.A.O investigation, and at times sends an investigator, to foreign investigations at the request of the foreign country made through State. The main NTSB work is conducted in the United States, Alaska and territories. Functionally they are set up to handle two varieties of investigations. The Mass Air Disasters (airlines and commuters) and General Aviation Crashes.
C. INVESTIGATION?
"PARTIES to the field investigation shall be limited to those persons, government agencies, companies, and associations whose employees, functions, activities or products were involved in the accident or incident and who can provide suitable qualified technical personnel to actively assist in the field investigation."
49 U.S.C. section 831 Translated to the real world this means: Owners, operators, airframe manufacturer, engine manufacturer, propeller manufacturer, suspect component manufacturer, airline union representatives and some F.A.A. people. Generally it precludes others and almost always precludes attorney's and the representatives of possible litigants.
D. MILITARY ACCIDENT INVESTIGATIONS and REPORTS
All services are similar in the Handling of an aircraft accident investigation. I will limit myself to a discussion of the U.S.A.F. Reports and then talk generally of the others. There are two separate accident investigations, and there are two separate accident reports. The way the accidents are investigated is delineated in military instructions. One investigation is conducted for the purpose of gathering and disseminating fact. It is supposed to be devoid of opinion,conclusion or recommendation for safety. When a witness statement appears it has been obtained with a warning "you have been advised, that you do not need to testify, whatever you say can and will be used against you, you have a right to counsel. Your statement will be sworn and recorded." or words to that effect. The other Report is called the Board's Safety Report or the Board's Accident Report. This Board is convened to determine the cause of the accident and contributing Factors to the accident. It includes opinions, conclusions and recommendations for safety. It naturally contains a lot of the same facts that were gathered by the other board as well as independently gathered fact. The Boards sole purpose for existing is to enhance safety by determining what happened and recommending fixes to prevent reoccurrence Two Varieties of Lawsuits: NEGLIGENCE and STRICT PRODUCT LIABILITY IN TORT
E. LEGAL ACTION NEGLIGENCE CAUSE OF ACTION
People may bring lawsuits in Negligence against a defendant person or company when it can be show that:
F. GROSS NEGLIGENCE
And if the Breach of care was so grievous that it constituted a wanton willful act of disregard to the rights of others. This is considered Gross negligence.
G. PRODUCT LIABILITY LAW
The designer, manufacturer and seller of a defective product may be held liable for the harm that product does. A product may be defective in one of three ways. It can be defective in design, meaning that each identical product is also defective. It may be manufactured defectively so it does not live up to its specification. Finely a product may be found defective because of its marketing in that it failed to warn of or train of the hazards inherent to user of the product.
H. TO WIN A PRODUCTS CASE YOU MUST PROVE ALL ELEMENTS
The Elements of a STRICT PRODUCT LIABILITY CASE ARE:
I. ESTABLISH LEGAL CAUSATION
Rules concerning causation vary from jurisdiction to jurisdiction. The general idea is that one must show a legally allowed connection between a cause and a later effect. Again the causation must link a legal defect or legal negligence to the effect ( the accident ). Without causation you lose. You may lose because you cannot find fact causation, or you may lose because you can't find legal causation.
J. PRODUCTS…THE TESTS FOR DEFECTIVENESS
The test for defectiveness has changed over the years and from state to state: The original test for defect was a showing that the product caused an unreasonable risk of harm to exist. ( unreasonable risk of harm test). Later the test was modified to be the risk of harm from usage of the product was greater than that a reasonable Consumer would expect. (Consumer Expectation Test) and finally a test for defectiveness that balances the utility of the product as produced with the risk of usage of that design and production. ( risk vs. utility test).
K. PRODUCT RISK V. UTILITY… TEST OF DEFECTIVENESS
Most jurisdictions apply the RISK vs. UTILITY TEST in the following manner:
L. EFFECT OF RISK V. UTILITY
Basically the Risk vs. Utility test for defectiveness is: If the designer could have economically made his product safer, using technology available at the time of manufacture, he should have. This test for defect has an automatic state of the art defense built within, and it does not require a manufacturer to advance the state of the art. It does require the manufacturer to remain abreast of the state of the industry and utilize alternative designs if they are cost effective as well as safer.
M. LEGAL CAUSATION.
Rules concerning causation vary from jurisdiction to jurisdiction. The general idea is that one must show a legally allowed connection between a cause and a later effect. Again the causation must link a legal defect or legal negligence to the effect ( the accident ). Without causation you lose. You may lose because you cannot find fact causation, or you may lose because you can't find legal causation.
N. PUNITVE DAMAGE - THE TEST
The test of punitive damages is often stated as Gross Conduct that is wanton or willful disregard of the rights of others. Another test of gross conduct is whether or not it shocks the conscience. A single act in disregard of safety is usually not enough. It is when a pattern has been established. More than one occasion where the manufacturer had notice of a problem and did nothing. Better yet, the manufacturer knew and considered the fatal consequences and still failed to act. Better yet the manufacturer cheated, lied and covered up defect willfully. In any negligence case, any product case, and any punitive action case the important things to discover are:
O. PRODUCT LIABILITY STATE OF THE ART
State of the Art is an engineering concept and principal that has been scientifically duplicated and reduced to capture. It may only be proven by drawings and scale prototypes. It must be witnessed to be captured. The state of the art advancement has occurred at the first date of patentable invention, not the date of patent issue, not the date of design of the production widget, and not at the date of production of the widget. The invention may be a terrible idea, it may never be used - and it is still a state of the art advance.
P. LEGAL STATE OF THE ART
Only in the legal risk utility - test analysis for defect do we find a reasoned approach to what legal authors were looking for when they used the words State of the Art. It is explained that an alternative design is only required when it is technically available and reasonable economical. This is probably what the authors should mean when they say it was state of the art from a legal standpoint. In fact, it would be an advance in legal writing in the area of products liability to use the exact wording" LEGAL STATE OF THE ART" to be defined as a design that was technically feasible and economically reasonable for inclusion in the product under scrutiny at the date of manufacture.
Q. PRODUCT LIABILITY STATE OF INDUSTRY
State of the Industry is a misnomer with no exact and decided and agreed upon meaning. Probably the accepted idea would be that state of the industry probably has to do with accepted practice within the industry or engineering discipline. It has been used in the context to hold that a manufacturer do the same as the average manufacturer does. In the second meaning it is legally useless.
R. PRODUCT LIABILITY - CHANGES IN PRODUCTS
Obviously a manufacturer will not change a product that is working well, selling well and is profitable, unless something can be done to improve the product. This may be in the form of a "product improvement" fix. These generally enhance the product in one or more of the following ways.
S. PRODUCT LIABILITY ENGINEERING CHANGES ECP
The Engineering Change Proposal - E.C.P. is forwarded to the government for approval by the company. An E.C.P. may be submitted by the manufacturer simply because the manufacturer has thought up a better product or simply because the manufacturer has discovered a shortcoming in his product as it exists. The government can also suggest the need for a change or an improvement by asking or demanding that the manufacturer create a E.C.P. for a specific improvement desired by the military.Once such an improvement is designed by the manufacturer in the form of an E.C.P. it can not be installed unless it is approved by the government. In the Air Force this approval is in the form of an Air force Technical Order. In the navy it is called a Engineering Order.
T. G.A.R.A. The General Aviation Revitalization Act ( Tort Reform ) Pub. L. 103 - 298, August 17, 1994, 108 Stat. 1552.
On August 17th President Clinton signed the ACT into law. At that time he stated. "This limited measure is intended to give manufacturers of general aviation aircraft and related component parts some protection from lawsuits alleging defective design or manufacture after an aircraft has established a lengthy record of operational safety." The act establishes an 18 year statute of repose for the aircraft of older design and manufacture. No liability actions may be held against any general aviation aircraft that is older than 18 years from the date of its first sale.
U. DEALING WITH THE FAA
The Federal Aviation Act of 1958 empowers and requires the administrator of the FAA to enforce rules and regulate security provisions. These powers are far reaching and include the ability to impose civil, criminal and equitable sanctions against violations. The administrator is empowered, in the public interest, to order, amend, suspend, and revoke type certificates, airworthiness certificates, air carrier certificates or agency certificates. However, before issuing such an order the administrator must specify the charges, give notice and allow the alleged offender an opportunity to reply.
V. C.A.M.I. - Civil Aero Medical Institute
Oklahoma City, Oklahoma. The Civil Aero Medical Institute, at Oklahoma city is a F.A.A. facility that has many important facets. It houses Airmen's Medical Records for the F.A.A., it houses the F.A.A. laboratory that conducts Toxicological examinations post accident. It may house the best aero medical library in the country. C.A.M.I trains all F.A.A. designated physicians as Aviation Medical Examiners. These doctors are those allowed to administer F.A.A. physical examinations to airmen. The A.M.E. is not a F.A.A. employee, but an independent licensee with designated powers and responsibilities. There are approximately 7,000 such physicians in the United States. All of these examiners are physicians, and some carry with them other specialty skills such as military flight surgeon designations and myriads of medical certifications and board specialties. C.A.M.I. is routinely asked to participate in accident investigations. The original request comes through the N.T.S.B., and is forwarded to the F.A.A. and thence to C.A.M.I.
W. INCIDENT REPORTING SYSTEM
The military and the manufacturers keep track of incidents and the outcomes, thereof. They do this through a computerized system. Typically there will be the narrative of the incident. Manufacturers investigation, status and recommendation as well as How mal codes. This computerized system is in place in the military and is shared with the manufacturer. What it is called changes with manufacturer. Data from such a computerized system is discoverable from the manufacturer or from the government.
X. SPOLIATION OF EVIDENCE
Within this context of an already filed lawsuit where already identified evidence is tampered with or "lost" the sanctions have ranged from stern lectures, to pecuniary discovery sanctions, to striking portions of pleading or defenses, to dismissal. The sanctions may continue outside the context of the original case by giving rise to disbarment actions and legal malpractice lawsuits. Much of what sanctions are imposed by the court seems to hinge on:
Y. FOREIGN SOVEREIGN IMMUNITIES ACT (1976)
Up until the year 1976 the Government of the United States had not codified under what conditions a Foreign Sovereignty could be sued in United States Courts. The act sets forth the requirements for jurisdiction of a Foreign as well as delineates the restrictions as to liability of the foreign. Under the act any entity that is an agency or instrumentality of a Foreign state, be it a company, a majority share of an agency or company or a political subdivision of the state is defined as the variety of potential defendant envisioned by the act. This is true so long as the entity in no way is it already a citizen of the United states or created under the laws of a third country. Provisions of the act that makes the entity available to the jurisdiction of our courts are found in the exceptions provisions. They include:
Z. FEDERAL TORT CLAIMS ACT
The United States of America may be sued for it's negligence. FEDERAL TORT CLAIMS ACT 28, U.S.C Section 1346. The action is one of negligence. For the purposes of the act the elements are:
AA. FAA and Federal Tort Claim Liability
The federal government is involved with all facets of aviation through the Federal Aviation Agency. They are responsible for the certification of aircraft, for the testing of airmen, for the control of air traffic, and for providing weather and aeronautical warnings. The key test of government negligence is to determine if the government breached a non discretionary duty. When a government employee breaches a requirement you may feel optimistic that such a failure was non discretionary. Aviation Federal Tort Claims act cases are common in areas of:
BB. FOIA INFORMATION
The F.O.I.A. act is a very helpful tool in obtaining information from the U.S. Government. The government is required by law to release government records to the public. There are several commonly used exceptions to the release of such data. The most common are:
CC. CONFLICT OF LAW
Conflicts on the other hand is the facet of law relied upon to determine what law should apply to the case at hand.Even though a certain court may have jurisdiction to hear a case it may be forced to apply the substantive law of a foreign forum in determining the outcome. Looking at conflicts first, there are to rules that are used to determine what law will apply. The minority and old position was that the place of the accident determines the law to be applied. The " SITUS " rule is deemed unfair since it subjects victims to some times harsh results simply because an airplane chose to crash on an unfavorable forum. Perhaps it was the intention of the aircraft to overfly the forum entirely.
DD. SIGNIFICANT CONTACTS RULE
The significant contacts rule applies the law of the forum with the most significant contacts to the accident. This test requires the court to analyse the entire accident and rule where the most significant contacts reside. This analysis will include:
EE. MONTREAL CONVENTION 2003
The United Nations formed a organization to unify and make standard the rules, regulations and law all countries are expected to abide by when they participate in International Airline operations, both Civilian passenger and air cargo. About 110 nations have signed and others work within the system voluntarily while having not completed ratification. The ICAO organization resides in Montreal Canada and it oversees many aspects of International flying. The latest treaty is called the MONTREAL CONVENTION 2003 and its entire 24 pages may be obtained in PDF format by Googling MONTREAL CONVENTION 2003 The convention allows and controls lawsuits aimed at the airline defendant. It does not include third parties or aircraft manufacturers. This Convention suggests to be covered you must be a ticketed passenger on an international ticket (NRSA Frequent flyer pass, vacation pass etc are same as fare paying passengers.) You must be hurt or killed by an accident on an aircraft or in the process of boarding or deplaning. Then you have 2 years to file a lawsuit in one of several places to include – City of Take off or destination, Airline home and a few other places. If the victim fits the criteria the victim will be compensated according to a simple negligence action. Generally will be computed using method allowable in victims country of residence. Punitive damages are not allowed under Montreal.
FF. INTERNTIONAL ACCIDENTS
The Montreal Convention attempts to bring some uniformity to a vastly complex system of laws as practiced and suitable for the differing 109 countries. On International flights from one Hub city to another foreign hub it is likely to have a vast array nations represented in the passenger Manifesrt. As example thing of a Lufthansa flight from New York Kennedy to Frankfort Germany. Here the list might easily include persons from USA, Central America, Germany and several European, middle Eastern and Former Eastern Bloc countries. If there were not soe uniformity provided by the Convention it would be hectic. The truth is it still is as Montreal does not trump all foreign laws and so litigation outcome are vastly different. International accidents of countries under Montreal do a systematic investigation under agreed investigative protocol called ANNEX 13. These reports are handled and released by the Host Nation.
GG. THE TEAM CONCEPT WORKS
Unless you are a huge law firm, it is very unlikely that you have individual Attorneys who specialize in every of the myriad of legal specialties recognized by the ABA or the various State Bar Associations. Aviation Law is one such discipline that requires intensified knowledge in areas peculiar to that specific endeavor. Lawyers are used to hiring testifying expert witnesses to help bridge the understanding gap. It may be more cost effective and outcome determinative to form a team of consulting attorneys who can help you master the complex field for the benefit of your client. Consider this.
HH. AIRLAWS MEMBERS CONDUCT A NO COST PRIVELEGED CASE EVALUATION
The work involves analyzing and evaluating preliminary accident data. This evaluation is completed at no charge to any potential client. A determination will be made and an opinion issued as to what legal avenues may be taken. A further determination will be issued suggesting preliminary work and investigation that need be accomplished. At this time an evaluation will be completed to determine if there is reason to employ this firm or another to handle your specific case requirements. We prefer to work on contingent fee, which means there is no legal fee charged to a client unless there is successful recovery by verdict or settlement.
AIRLAWS MEMBERS CONSULT ON LITIGATION :
NON LITIGATION AVIATION MATTERS AIRLAWS MEMBERS CONSULT ON:
The Airlaws Consulting Group focus includes but is not limited to:
Aviation, Aviation Accidents, Aviation Litigation, Aviation Attorney, Air Crash Litigation, Aviation Law, Air Accidents, Airplane accidents, Helicopter accidents. Military accidents, General aviation, General Aviation Accidents, Commuter Accidents, Airline Accidents, Air worthiness, Air Worthiness Directives, Aviation Safety, Air Safety, Air Safety Investigations, Air Safety Investigators. Aviation Schools, Flight training, Air Crew Training, Air Crews, Piloting, Pilot errors, Human factors, Design induced error, Probable Cause, Aviation Safety Reporting, Airmen Certification, Aircraft Certification, Military contract defense, Aircraft design, Aircraft engineers, Air Crash, Air Crash Litigation, Aviation records, Cockpit Resource Management, System Safety in Aviation Aircraft warning systems, Aircraft automation. Approach accidents, Cruise accidents, Take off accidents, Icing encounters, CFIT accidents, Landing accidents
If your legal problems involve any of the following subject matters THE AIRLAWS GROUP can either help you or direct you to places where your problem can be quickly and easily resolved.
In addition to our in house expertise and experience we have access to another twenty attorneys with aviation focus in some of the specialty areas below. If that is insufficient we have listings of several hundred lay specialist we will employ for your benefit as case specifics require.
Please Contact us if you have questions on : Air Craft Accidents, Airplane Accidents, Airline Accidents, Helicopter accidents, Military accidents, Aeronautical endeavors, Flight Schools, Flight Training , IFR Training, Aeronautical charts, Aerodynamic Flutter, Aero-elastic deformation, Aeronautical systems, Aerodynamic forces, Approach, Approach stall, Approach speed , Approach accidents, Aviation, Aviation Accidents, Aviation Litigation, Aviation Attorney, Aviation Attorneys, Aviation Law, Aviation Safety, Aviation Schools, Aviation Safety Reporting, Aviation records, Aviation Law Firm, Aircraft accident Investigation, Aircraft mid air separation, Aircraft fires, Autopilot, Auto flight, Auto throttles, Air Safety, Air Safety Investigations, Air Safety Investigators, Air worthiness, Air Worthiness Directives, Air Crew Training, Air Crews, Air Crash Litigation, Air Accidents, Air Crash, Airplane accidents, Aircraft Noise, Air Port Accidents, Airport Control zones, Approach Control, Air Traffic Control, Air Traffic, Aircraft warning systems, Aircraft accidents, Aircraft automation, Airline Accidents, Aircraft Certification, Airmen Certification, Aircraft design, Aircraft engineers, Aircraft Maintenance, Aircraft Overhaul and Repair, Overhaul and Repair, Inspect and Repair, Airframe Icing, Airframe failures, Airframe flutter, Helicopter accidents. Military accidents, General aviation, General Aviation Accidents, Commuter Accidents, Flight training, Piloting, Pilot errors, Human factors, Design induced error, Probable Cause, Military contract defense, Cockpit Resource Management, System Safety in Aviation, Cruise accidents, Take off accidents, Icing encounters, CFIT accidents, Landing accidents. Experts, Expert witnesses, Next generation automation, Auto flight, Auto throttles.