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.
"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.
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
People may bring lawsuits in Negligence against a defendant person or company when it can be show that:
1. The Person or Company owed a duty of Care to the defendant.
2. The Person or Company breached that the duty of Care owed to the defendant has harmed.
3. The breach was a proximate Cause of the harm.
4. Damages may be awarded.
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.
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.
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.
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).
Most jurisdictions apply the RISK vs. UTILITY TEST in the following manner:
1. If at the time of design of the allegedly defective part there could have been created an alternate design (technically feasible) and if this alternate design was cost effective (economically possible). And,
2. If the alternative design would make the product safer. And,
3. IF the alternative design did not detract from product utility then,
4. The original design or process was defective.
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.
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:
1. What the defendant knew.
2. What the defendant should have known.
3. When the defendant knew it.
4. When the defendant should have known it.
5. What the defendant did or didn't do when armed with the knowledge.
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.
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.
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.
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.
1. By adopting a newer technology.
2. By making a safer product.
3. By making the widget cheaper while maintaining the same utility.
4. Increasing the utility while maintaining the same cost.
5. Deleting some undesirable feature without decreasing utility.
6. To suit marketing
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.
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.
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.
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.
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.
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:
1. How important the evidence was to the issue of the case
2. What level of certainty can be placed as to who was responsible for the act, and
3. Whether the act was intentional or accidental.
Spoliation means more than the simple spoiling of evidence, in fact the word is not derived from spoil. Spoliation signifies an intentional or negligent plundering of the evidence. Recently Negligent Spoliation of evidence has become a cause of action unto itself. It probably has the same elements as any negligence claim, namely:
1. A duty to preserve evidence must be established.
2. That duty must be negligently breached by the party owing the duty.
3. The destruction of the evidence must be the proximate cause of the damage complained of. ( loss of the ability to win with another cause of action )
4. There must be provable damage.
Like a malpractice law suit a spoliation suit requires the proof of two issues.
1. There was the spoliation and
2. Without the spoliation the plaintiff would have prevailed.
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:
1. Waiver of jurisdiction, by appearance
2. Commercial activities waiver
3. Tortuous Activity waiver - among others. The most commonly utilized is the commercial Activities waiver.
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:
1. That a federal employee breeched a non discretionary duty, while acting in the course and scope of his employment.
2. That the negligent act or failure to act was a cause of the damage.
3. That damage was to property, personal injury or wrongful death. ( The claim is for money damages.)
4. The law of the place of the occurrence is such that it would place liability on the government had the government been a person.
Procedurally the United States government can not be sued until an administrative claim requirement is complied with and finished. The Statute of Limits for an action is two years
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:
a. Mid air collisions.
b. Runway traffic collisions.
c. Failure to warn of weather.
d. Failure to provide weather briefing.
e. Radar vectoring into weather.
f. Radar vectoring into terrain.
g. Failure to monitor and warn of approach deviations.
h. Unworkable navigation facilities.
i. Failure to handle emergencies correctly.
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:
1. Classified National Security
2. Privileged, Official Business, Safety Board privilege ( portions of military accidents)
3. Privacy Act restrictions
4. Discretionary government discussions before decisions.
5. Proprietary agreements where disclosure jeopardizes trade secrets.
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:
1. crash site location.
2. Residence of all defendants.
3. Residence of the plaintiff.
4. Nature of and purpose of the flight.
5. Where the negligence occurred.
6. Where the product was designed and manufactured.
7. other significant factors.
In such situations the law of all possible forums must be studied for their ramifications. It is not unusual to see state statutes written
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.
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.
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.
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Myron Papadakis
Textbook (800 pages): B. McCormick and M. P. Papadakis, Aircraft Accident Reconstruction and Litigation, Lawyers and Judges Press, 1996, second edition 1999, third edition 2003.
Reference Text (900 pages): M.P. Papadakis, Civil Trial Practice: Winning Techniques of Successful Trial Attorneys, Lawyers and Judges Press,2000.
Book (chapter): “Air Crash Litigation”, Best of Trial – Products Liability, Association of Trial Lawyers of America Press, 1999
CIVIL TRIAL PRACTICE…WINNING TECHNIQUES
“The text provides an advanced source of legal tactics, strategies and helpful hints for the attorney… This work should be especially helpful to those embarking upon a trial career. It should be required reading for young trial lawyers and new associates.”
________________TURNER BRANCH Albuquerque, NM
AIRCRAFT ACCIDENT RECONSTRUCTION AND LITIGATION
“There is a wealth of material on numerous aviation technical and legal subjects, and it is useful to have all of this in one convenient place.”
________________LEE KRIENDLER, New York, NY
"Aviation Accident Reconstruction and Litigation should be at the right hand of every lawyer who would attempt to handle aviation litigation. Even the most experienced aviation litigation specialists do not have the wealth of knowledge contained in this text."
________________ Dan Cathcart, Los Angeles, CA
“Engineers and probably lawyers will appreciate the book’s refreshing review of elements of aerodynamics, structural design, power plants and aircraft control techniques as well as nuances of Applicable law. The appendix alone is a learning experience. This book should be considered a post graduate guide for the hardware oriented aircraft accident investigator, especially the sections on human errors and human factors. I wish I had this compendium during the early years of my professional experience.”
________________ Jerome Lederer,
________________ First Director of Safety CAB
________________ NASA director of Safety during Apollo
________________President Emeritus –Flight Safety Foundation
Chapter 7 – “Aircraft Accident Investigations “ Aircraft Accident Reconstruction and Litigation “ 4th ed, L and J publishing , 2011
Chapter14. Data recovery – “ Aircraft Accident Reconstruction and Litigation “ 4th ed, L and J publishing , 2011
Chapter 16. – “Manufacturers Safety and Quality Control “ Aircraft Accident Reconstruction and Litigation “ 4th ed, L and J publishing , 2011
Chapter17, – “Quality Control, Quality assurance, Total quality Programs “ Aircraft Accident Reconstruction and Litigation “ 4th ed, L and J publishing , 2011 Myron Papadakis and Dr. Emmanuel Papadakis Phd.
Chapter 18 – “Air Navigation a Brave new World “ Aircraft Accident Reconstruction and Litigation “ 4th ed, L and J publishing , 2011
Chapter 19 – “ACritical Review of Safety Programs “ Aircraft Accident Reconstruction and Litigation “ 4th ed, L and J publishing , 2011
Chapter 20 “ Safety- Lessons Not Learned” Aircraft Accident Reconstruction and Litigation “ 4th ed, L and J publishing , 2011
Chapter 21 – “Paperwork, when an airliner flies a tree must die” Aircraft Accident Reconstruction and Litigation “ 4th ed, L and J publishing , 2011
Chapter 49 – “Checklist for In House Aviation Accident Investigations Investigations “ Aircraft Accident Reconstruction and Litigation “ 4th ed, L and J publishing , 2011
Chapter 50– “Automation : Precursor to Disaster “ Aircraft Accident Reconstruction and Litigation “ 4th ed, L and J publishing , 2011
Chapter 51 “Safely Retiring” Aircraft Accident Reconstruction and Litigation “ 4th ed, L and J publishing , 2011
Appendix B. Internet Resources Chapter – Aircraft Accident Reconstruction and Litigation “ 4th ed, L and J publishing , 2011
“Airline Safety” TALPA Symposium proceeding, Istanbul Turkey, October 2010
Primer on Investigations, Absolute Litigator PESI, Las Vegas ,NV, 2006
The Military Contract Defense, Absolute Litigator PESI, Las Vegas ,NV, 2006
The Airline Industry, -a look back, Absolute Litigator PESI, Las Vegas ,NV, 2006
Safety and Liability, Absolute Litigator PESI, Las Vegas ,NV, 2006
The Safety Office, Work, Horse Seminar AFTL, Orlando, FL, 2006
Military Contract Defense, Work Horse Seminar AFTL, Orlando ,FL, 2006
Aftermath of Disaster ,Work Horse Seminar AFTL, Orlando, FL, 2006
The Aftermath of Disaster, a Primer on Government and Legal Investigations of Aviation Crashes, State Bar of Texas Aviation Section Meeting, 2004
Out Maneuvering THE MILITARY CONTRACT DEFENSE, State Bar of Texas Aviation Section Meeting, 2004
Safety the place where Liability hangs out, L&J Product Liability Seminar ,Scottsdale AZ, 2002
“First of all hands off to you guys for your effort and nice, super tool. Good work mobirise team. We are expecting the new version soon with advance functionality with full bootstrap design. Great effort and super UI experience with easy drag & drop with no time design bootstrap builder in present web design world.”
C. Barry Wetherington
How Clean is Clean? Cost Efficient Alternatives to a Site Cleanup,-Moderator and Speaker - American Law Firm Association -National Client Seminar- Orlando - March 1991
Complex Toxic Tort and Environmental Trial Demonstration,-Speaker and Demonstrator - Cross Examination of Plaintiffs Expert-Michigan Defense Trial Counsel - Traverse City - June 1991
Micro bursts: The Unsolved Danger,-Article - Air Line Pilot - July 1992
Alphabet Soup: State and Federal Environmental Laws Affecting Municipalities,-Speaker Michigan Municipal League Environmental Liability Compliance, -October 1991 - Grand Rapids
Owens v Allis-Chalmers: The Standard of Proof in a Design Defect Case,-Co-Author - Michigan Bar Journal - February 1990
Mediation: The Michigan Practice, -Speaker - SMU Aviation Law Symposium - Dallas - March 1987