Just the mention of the term, "product liability" to many aviation professionals, one will hear comments about frivolous lawsuits and gold digging passengers claiming emotional distress over some minor incident. In reality, the key issue in most product liability lawsuits is whether pilot error is the sole proximate cause of the accident. Also, many of the plaintiffs who sue aviation manufacturers are the heirs or estates of the pilots, who have already paid the ultimate price for their mistakes. The usual question is whether the pilots were entirely at fault for the crash? This article will explain how product liability laws are applied to determine whether the manufacturers should share the blame with pilots for crashes.

Strict Liability

To successfully sue a pilot or operator, a victim must prove that they were negligent and that their negligence was a cause of the crash. However, manufacturers and sellers can be sued, even if the injured person cannot prove negligence by the manufacturer. In almost all states, a victim can hold a manufacturer or seller "strictly liable" if the plaintiff's attorney can prove that a defect in the product was a cause of his injuries. The plaintiff does not have to prove negligence by the manufacturer. This concept called, "strict product liability" was developed by Courts in the 1960s and 1970s to protect consumers. Judges felt that it would be too hard for victims to prove negligence in technical cases involving engineering design and manufacture. Courts created strict product liability laws 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 builder. Many people feel that the Courts have gone too far in protecting people against themselves and that product liability is destroying the aviation industry.

When Are Aviation Products Deemed Defective?

In about one half of the states, a manufacturer may be held strictly liable for a defective product if the product is "unreasonably dangerous" for use by the ordinary consumer. This is a poor test for aviation products because it is highly subjective and aircraft are not consumer products. Aviation products are used by highly trained and licensed professionals.

In a growing majority of states, a different test for product liability is used. A product manufacturer may be held strictly liable if the product fails to perform as safely as an ordinary consumer would expect, when it is used in an intended or reasonably foreseeable manner. Alternatively, these states use a "risk-benefit" analysis test which requires the jury to decide if the risk associated with the design of the product outweighs the benefits of the design. The first part of this standard "consumer expectation" is still too subjective, but the second part is actually a pretty good measure whether an aviation product is defective.

Product liability laws are almost always created by Courts, with the exception of very narrow legislation on specific topics. Courts create these product liability laws for all kinds of products. Thus, in an air crash product liability trial, the parties will find the jury being instructed on the same principles of product liability law that are used in consumer products such as automobiles, home gadgets, children toys, etc. Is this fair? An aviation product is at much greater risk than something we buy off the shelf at a supermarket. The judges who designed 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.

The Supreme Court of California is generally credited (or disparaged) for creating the principle of strict liability in product defect cases. Because many states have copied California's product liability laws, an aviation product liability case will usually involve scrutiny under the "risk-benefit" analysis test. Under this test, juries 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. Jurors are permitted to consider expert opinions on whether the supposed safer design is too costly or whether the safer design has adverse consequences. Here's an example of how the "risk-benefit" test was applied in a case I tried on behalf of a helicopter operator against a European helicopter engine manufacturer.

Actual Aviation Product Liability Trial Using The "Risk-Benefit" Test

A helicopter was on a "life flight" type mission over an urban area at night, when the pilot saw the oil pressure dropping off rapidly. He attempted an emergency auto rotation landing in a parking lot, but misjudged the flare, due to the fog which had blanketed the area. The ensuing crash landing seriously injured the crew and passengers. Investigators found that a pressurized oil supply line had come loose with the result that oil spewed out! The oil supply line was secured by a bolt/nut with a lock "tab" washer which had been required by the European engine manufacturer for his type of application. Investigation revealed that most helicopter engine manufacturers use safety wire, threaded through holes in the nut and bolt head instead of lock tab washers, to "secure" the nut. Vibration is an ever present problem that could cause the nut to loosen, no matter whether proper torque had been applied during installation. My helicopter maintenance expert explained to me that a helicopter was "nothing more than a 1,000 vibrating parts waiting to let go."

Applying the risk-benefit test, my helicopter engine maintenance expert was able to use a mock up to demonstrate for the jury how easy it was to safety wire the bolt and nut and how the safety wire, if correctly twisted, would actually prevent the nut from unscrewing, even if it vibrated loose. The cost of the safety wire was about the same as a lock tab washer. Alternative adverse consequences were minimal if the correct type of wire was used. The state of the art at the time allowed for this alternative, safer design. The jury returned a verdict in favor of my client and found that the lock tab washer was defective. (The jury also determined that the pilot had over-reacted to the loss of oil pressure and had attempted a premature landing such that he had substantial comparative fault for the accident.) The risk-benefit test did help in focusing on the defective component.

Three Types of Strict Product Liability

To establish strict liability in a product liability lawsuit, the plaintiff must show that:

1. The product was defective when it left the defendant's control;
2. That the product was used in the intended manner or a reasonably foreseeable manner;
3. That the product caused plaintiff's injury.

Strict liability can arise as a result of a defect in design, manufacture, or failure to warn.

Design Defect

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.

Manufacturing Defect

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.

Failure To Warn Defect

Sometimes a manufacturer is unable to design a product to remove all risk. Alternatively, a product may be so complicated that it needs adequate instructions in order to use it safely. If the manufacturer knows or should have known, at the time of manufacture and distribution, that there were risks associated with the use of the product that are not patently obvious, then it has an obligation to notify the user in clear language about the risks. The risks include foreseeable misuse. 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.)

Pilot Error Versus Product Defect

One of the most common issues that arises in air crash liability trials is the issue of the comparative fault of the operator versus the manufacturer. In most jurisdictions, the jury must determine the percentage of liability that is attributable to each of the defendants who are involved in the trial. Two of the most common defendants in air crash trials are the operator and the manufacturer and the jury must assign a percentage of fault to each if they feel both are culpable. This is called comparative fault. Thus, one of the major battles that goes on in such trials, is the question of determining who has more comparative fault. The contributory negligence of the pilot bars recovery in only a few jurisdictions. Most states simply require that an injured pilot's recovery be reduced by his percentage of comparative fault.

Manufacturers As "Deep Pocket" Defendants

Manufacturers have become defendants in air crash litigation simply because the pilot did not have adequate insurance or assets to compensate the victims for their losses. Recognize that the typical general aviation policy may only provide $100,000.00 per seat limits. The death of a middle class wage earner may result in damages to the spouse and children which frequently exceed $1 Million. Traditionally, the "joint and several liability" laws of most states allowed victorious plaintiffs to recover all of their $1 Million damages from either of the liable defendants, even if one was 90% at fault and other only 10% at fault. Thus, if the pilot was 90% at fault, but only had $100,000.00 per passenger seat insurance coverage, the victims traditionally collected $1 Million from the "deep pocket" manufacturer.

Product Liability Reform

The deep pocket problem has led states, like California, to abrogate the traditional joint and several liability rules, so that a defendant will only be held liable for the percentage of non-pecuniary damages for which it is responsible. (Non-pecuniary damages are emotional losses, such as the loss of care, comfort and society of the loved one.) Thus, if the manufacturer is only 10% at fault, as described above, the victim can only collect 10% on his non-pecuniary damages from the manufacturer. The victim would have to get 90% of his non-pecuniary damages from the operator. (The victim can still collect their "economic" lost wages and medical expenses from either defendant). This "deep pocket" protection, which has been part of California law for over ten years, is being copied by many states as part of their "Tort Reform."

Currently, Congress is asking the President to sign The Product Liability Reform Bill and many of its provisions are expected to pass. Some of the Tort Reform measures in The Bill, such as stricter standards for punitive damages and comparative fault for misuse, have already been part of the product liability reforms in all but the least progressive states. I predict these Federal Tort Reform measures will have little impact on aviation product liability litigation in most states.

Compliance With FAA Certification Regulations Does Not Preclude Aviation Product Liability

Yes, you read the caption correctly! Even if a manufacturer builds the product in conformity with FAR Part 21, et seq., the manufacturer may still be held strictly liable under state product liability laws. How can this be? The answer lies in the fact that many of the certification FARs merely establish minimum standards. State laws usually require that the product be safe for its intended use as well as for misuse which is reasonably foreseeable. The fact that the product received an FAA type certificate does not immunize the manufacturer against a product liability lawsuit. Certainly, a manufacturer may bring in evidence to show that they built the product in full conformity with FAA standards, but most Courts do not consider this evidence conclusive. Plaintiffs may still prove that the product is defective because there is an alternative, safer and mechanically feasible way to design the product. In defense of manufacturers, "feasible" should also mean that the FAA would have approved an alternative design and that the plaintiffs' product design would have been marketable.

Assumption of Risk and Misuse

In aviation product liability, a victim can be found to have assumed the risk of a defective product only if the victim clearly understood the risk of using the product, notwithstanding the apparent defect. On the other hand, if the defect is latent and the victim cannot appreciate the danger, then the manufacturer cannot successfully argue that the user assumed the risk.

Misuse is a defense in most jurisdictions only if the misuse was not reasonably foreseeable. Thus, if certain types of misuse are predictable, such as gear up landings, ground loops, minor crashes, etc., manufacturers may be responsible to design their product to protect occupants from severe injury in such mishaps.

Aviation Crashworthiness

I remember an old engineer telling me once that he "designed airplanes to fly, not to crash." I had to advise him that his thinking was not in conformity with the laws of most states. As you recall, I explained that the manufacturer may be held strictly liable if the product was defective when it left the control of the manufacturer and was used in the intended or reasonably foreseeable manner. The words, "reasonably foreseeable" are what led to the creation of the "Crashworthiness Doctrine" because a certain amount of misuse are reasonably foreseeable. Typical crashworthiness issues in aviation include, seat design, fuel system crashworthiness, shoulder harness and integrated restraint systems, cockpit integrity, non-flammable, non-toxic materials, etc.

An Aviation Crashworthiness Trial

Let me give you a real case example of an aviation crashworthiness trial involving a comparative fault analysis between pilot error and alleged product defect. A few years ago, I tried a case for the former Piper Aircraft Corporation. A pilot lost control of his Piper Super Cub while during a crosswind landing on a ridge top, dirt landing strip. When the pilot lost control, he veered off the edge of the landing strip and careened down the side of a hill where his plane came to rest with moderate structural damage. The pilot suffered a broken leg. The pilot's young girlfriend in the backseat, who was an aspiring model, was uninjured at the time the airplane came to rest. Then, the fuel started dripping from the wing tanks onto the girl and the pilot. The pilot was also doused with fuel from the forward fuel header tank. This tank provides an alternative source of gravity feed fuel for the Piper Super Cub while in unusual altitudes. A spark ignited the fuel resulting in fatal third degree burns to the pilot, and burn disfigurement to the girl. She sued the estate of the pilot and Piper. The pilot's heirs sued Piper. Both alleged that Piper failed to design the Super Cub to have a crashworthy fuel system. In particular, the plaintiffs alleged that the design of the forward fuel header tank was susceptible to rupture and was placed in the worst possible location. They suggested that it was a "Molotov cocktail", installed right in front of the pilot, on the other side of the flimsy firewall, just waiting to be ignited in the event of a crash.

The crashworthiness trial involved opinions on the design of a fuel system in a relatively primitive aircraft like a Piper Super Cub. Also at issue was whether the pilot should be held entirely responsible for the ensuing damage after he lost control of an airplane. The argument was that the pilot caused the wreck, but Piper caused the fire. This issue was particularly poignant because it is clear that the passenger would have escaped from the crash unscathed, had it not been for the ensuing fire. There was precedent for this argument in California, in that Cessna had been held liable for crash fires involving a ruptured auxiliary fuel tank, located below the floorboards of one of their models, which had been involved in gear up landing accidents. Fortunately, the jury, using the "risk-benefit" test, had balanced the risk of the fuel system design against the benefit of the overall design and exonerated Piper.

Adequate Warnings As A Defense

Manufacturers must seriously consider the nature and extent of warnings which must be issued when they become aware of dangers in the product after it has been sold. Here, I am speaking of hazards discovered after sale, which the manufacturer did not know of or would not have reasonably been expected to know about, before they sold the product. Courts have held manufacturers responsible to give warnings to foreseeable users about the newly discovered dangers which render the product defective. Whether the manufacturer will be held strictly liable in such circumstances will depend on the adequacy of their warnings. Adequacy will be viewed by judges and juries in terms of whether the warning was calculated to reach the foreseeable user in such a fashion as to enable that user to minimize the danger. Typical after market warnings may include operations manual amendments, update kits, service bulletins, and other service communications.

In aviation, we do not have product recalls as in the automotive industry. In aviation, the FAA's Airworthiness Directives serve the same purpose. Indeed, under some circumstances, manufacturers are well advised to request that the FAA issue Airworthiness Directives concerning dangers discovered in their products.

Modification/Alteration

One common defense available to manufacturers in air crash litigation involves proof that someone altered or modified the product after it left the control of the manufacturer, and that the alteration or modification was a cause of the accident. Supplemental Type Certificates issued by the FAA, may allow a modified design to be used. But, the company modifying the product pursuant to an STC, may have product liability exposure, if a plaintiff proves that a defect in the modification caused the crash. Operators must be particularly careful about altering, refabricating or "jury rigging" an aircraft component or they may become manufacturers for product liability purposes.

Statutes of Limitations and Statutes of Repose

Many people are familiar with the term, Statute of Limitations which establishes the time from the date of the injury, by which one must bring a lawsuit . A typical Statute of Limitations for injury or death due to product defect is one year. Some state's laws are different and allow two or three years to bring a product liability lawsuit.

There has been a lot of publicity concerning the new General Aviation Revitalization Act (GARA) which is a federal statue of repose that was signed into law in 1994. This Statute of Repose is not a Statute of Limitations. GARA simply cuts off the general aviation product liability tail which has dragged manufacturers such as Piper, Beech and Cessna into litigation involving old aircraft. The Statute of Repose immunizes a general aviation manufacturer for an accident occurring more than eighteen (18) years after the delivery of the aircraft to the customer or dealer. GARA only applies to aircraft certified by the FAA, which have a capacity of nineteen passengers or less when originally certificated and only applies to aircraft not engaged in scheduled, passenger-carrying operations.

Here's an easy way to remember the difference between a Statute of Limitation and a Statute of Repose. A "Statute of Limitations" is the date by which the window for a lawsuit must be opened or the right to bring the lawsuit is lost. The "Statute of Repose" is the date by which the window closes on any potential plaintiffs, after which they cannot sue the manufacturer. There are exceptions to GARA, such as where plaintiffs prove the manufacturer is guilty of misrepresentations in order to obtain certification, patients are injured in medical emergency operations, or ground victims are hurt by a defective aviation product.

Military Aviation Product Liability

Other than general aviation aircraft protected by GARA, all aviation products in the United States are wide open to product liability lawsuits, except aviation products manufactured for the government. Manufacturers of military products enjoy a special defense called the "Government Contractors' Defense," if they can convince the Court that:

1. The United States Government approved reasonably precise specifications for the design of the product;
2. The equipment conformed to those specifications (that it had no manufacturing defects); and
3. The supplier of the product warned the United States Government about the dangers of the use of the product that were known to the supplier, but not known to Government officials.

This defense coupled with other laws, has the effect of preventing the families of servicemen, killed or injured in military accidents, from getting any recovery for their loses other than their veteran's benefits. The United States Government is immune from suit by its servicemen or their families, if the serviceman is injured or killed while performing duties "incident to service."

Product Liability Warranty Claims

This article is focused on product liability where there is injury or death. Many operators have a different problem with respect to manufacturers. They may have purchased or leased a product which does not function as advertised or fails such that the airplane can't be flown. In this scenario, the operator is suffering property damage or economic loss and may have both a tort and a contract case against a manufacturer.

Usually, an operator will have the foresight to get a written contract in connection with product acquisition, which contains express warranties, providing recourse to the purchaser in the event of a product malfunction. If there is no written contract or there are no express warranties, a purchaser may still assert implied warranties of marketability or fitness for a particular purpose when making a claim against a manufacturer for a repair or replacement. A much more difficult issue (beyond the scope of this article) exists when the product itself was not damaged, but the operator has "lost the use" of the product resulting in extensive down time. Various cases limit the options of the operator who has suffered economic damages without property damage, because it was felt that the operator could have bargained for warranty protection.

Conclusion

This article has stressed liability and litigation involving operators and manufacturers. There is a current trend towards the use of Alternative Dispute Resolution (ADR) measures such as Mediation and Arbitration to avoid litigation between parties such as operators and manufacturers, who must live together in order for our industry to prosper. Another article will focus on these dispute resolution methods and how manufacturers and operators can use them to minimize litigation and avoid unnecessary attorneys' fees. After an air crash, the goal of aviation businesses should be to work out their own percentage of comparative fault, in confidence, between each other, so as to be able to jointly settle the legitimate financial claims of victims and their families.