Obstacles and Guidance in Trying Aviation Wrongful Death Cases

There has been a plethora of aviation crashes in recent years resulting in the death of occupants. As the world wide growth of aviation continues to be astronomical, there is a growing demand for litigation attorneys in the field of aircraft catastrophes.

Counsel for aviation litigants must first satisfy themselves on the applicable limitation periods. They are as follows:

1. For personal injury — five years pursuant to § 516.120, RSMo.

2. Wrongful death — three years pursuant to § 537.100, RSMo. Howell v. Murphy1 provides for tolling.

3. Property damage — five years pursuant to § 516.120, RSMo.

4. Contract — 10 years for payment of money or property in writing pursuant to § 516.110, RSMo; all others five years (§ 516.120, RSMo), including oral contracts.

5. Breach of warranty — four years for transaction claims occurring after July 1, 1965, previously five years. But it is extended to five years if warranty extended to future performance.2

6. Products liability — there is no specific statute of limitations.

1. Pertinent wrongful death statutes are — §§ 537.080-537.100, RSMo.

a. Plaintiffs empowered to sue for wrongful death:

(1) Spouse and children or parents have first priority. Section 537.080(1), RSMo.

(2) Siblings or their descendants have second priority. Section 537.080(2), RSMo.

(3) Plaintiff ad litem has third priority. Section 537.080(3), RSMo.

In the investigation of an aircraft disaster, plaintiff's prudent counsel must immediately commence to marshal the facts and pursue all available documentation, including photographs of the wreckage and of the scene.

1. Determine the names of photographers at the earliest possible time, including video operators who have taken photographs of the subject. For example:

Contact a newspaper photographer dispatched to the scene by his employer. Usually you can purchase copies for counsel's use upon private negotiation with the photographer. In one instance this was accomplished when the photos were taken by a University of Missouri journalism student serving as an apprentice at a small town newspaper in the vicinity of the plane crash.

2. Another important source is a TV/video camera operator present at the scene, either at the time or shortly thereafter. In one case, counsel contacted the helicopter crew of a local TV station and, without charge, he was furnished with a copy of the scene photographed immediately after the event. It was thus available to the jury for demonstrative purposes.

3. The next step is to contact the Federal Aviation Administration at its headquarters in Oklahoma City, OK, for certified copies of their records pertaining to the subject aircraft and its pilots at the time of the incident. Documents requested should include the following:

a. The pilot's "medical certificate" with report of "medical examination" for the past three years if annually, or the past three examinations if for a longer period. The frequency of a medical examination is determined by the classification number of the pilot. These documents will disclose whether or not there are any restrictions or limitations upon the pilot's flying privileges, including poor vision or other disabilities. Of course, if the report received shows no current certificate, it will enhance plaintiff's case in the event the reason therefor contributed to the cause of the accident.3

4. The next concern is the history of the subject aircraft, including the names of the title holders and copies of the periodic examinations in the aircraft registration branch archives of the Federal Aviation Administration in Oklahoma City, OK. The report of "major repair and alteration," "aircraft registration application," and "aircraft bill of sale" are to be included. Again, request the formal certificate, which comes with an elaborate blue ribbon and gold or maroon seal to qualify for the admission of same in the trial. Of great importance is to request a certified copy of the formal report of the cause from the Federal Aviation Administration (FAA) and National Transportation Safety Board (NTSB), together with the supportive documents. Although it may take a year or longer before the report is issued, it is best to request it in the beginning.

5. Search out all radio transmissions between pilot and FAA controllers that were made prior to the crash. Without charge counsel was furnished the last avionic contact between pilot and tower for Chohlis v. Walker.4

6. Also, obtain the pilot's log books.

7. Request all general medical information on the crew and passengers, to include tests for alcohol and controlled substances together with those for carbon monoxide.

8. It is then important to request of the NTSB, Washington, D.C., all of their documentation relative to the subject aircraft, including applicable "safety recommendations" and the "accident report." It is also a necessity to obtain computer printouts from the NTSB of similar crashes of the same types of aircraft. Concerning one case involving a fuel management problem peculiar to one manufacturer, the data bank revealed that there were several prior crashes of the same type and result.5

9. Not to be forgotten are the aircraft "Information Manual," "Pilots Operating Handbook," "Airplane Flight Manual" and similar publications that are relevant. For the more popular models, these books can be obtained from the retail merchandise display at a fixed base operation (FBO) at most airports.

1. Personal injury, § 537.020, RSMo.

2. Property damage, § 537.010, RSMo.

3. Wrongful death, § 537.020, RSMo, § 537.080, RSMo.

4. Punitive damages, State ex rel. Smith v. Greene.6

1. For compensatory and punitive damages: § 537.090, RSMo; M.A.I. 4.00 & 5.00 "Notes of decisions;" Blum v. Airport Terminal Servs., Inc.;7 Bennett v. Owens-Corning Fiberglas Corp.8 There is no ceiling on recovery.

2. Recoverable losses include the following:

a. Pecuniary losses — spouse, children, parents and others ( in same priority as right to sue).9

b. Contribution — Bragg v. Missouri Pacific R.R.;10 Teeter v. Highway & Transp.Comm'n;11 § 537.060, RSMo.; and §§ 537.090-537.095, RSMo.

c. Education, care, maintenance and support, relative to disagreement. Buechel v. United States12 and § 537.095, RSMo.

1. Wrongful death — punitive is allowable in the form of aggravating circumstances. Section 537.090, RSMo. Punitive equates with "aggravating circumstances."13

2. Personal injury cases — punitive is allowable, as held in Sharp v. Robberson.14

3. Generally there is no coverage in Missouri by insurance policies of the tort feasor.15

a. The answer is yes where liability is imposed upon insured solely by peration of law. The vicariously liable insured is covered for punitive damages as a general rule.16

4. Missouri adheres to strict tort liability.17

1. There is such on the basis of relative fault, as shown in Missouri Pac. R.R. v. Whitehead & Kales Co.18 Whitehead provides for indemnity even though the parties are in pari delicto.

1. Conflict rule for most significant contacts is found in Snead by Snead v. Cordes by Golding.19

2. In flight over the state gives Missouri jurisdiction. Section 305.050, RSMo.

3. Comparative fault in a negligence case if the jury could find plaintiff contributed to his damages, unless the parties agree otherwise. Plaintiff must use comparative fault instructions whether or not defendant submits an affirmative defense instruction.20

An example of a general purpose petition or complaint is as follows:

STATE OF MISSOURI

                                                )
                                                )  SS
COUNTY OF                 			)
 
IN THE CIRCUIT COURT OF THE COUNTY OF __________________
STATE OF MISSOURI
Father,						)
Mother,and 					)
Father,						)
Administrator and Personal			)
Representative of the Estate 			)	Cause No.
of           ___________    , DECEASED,	)
						)	Division No.
	Plaintiffs,				)
						)
vs.						)
						)
_________                , Personal		) 
Representative of the estate			)
of __________           , DECEASED,		)
(SERVE:					        )
						)
						)
	Defendant.				)

COUNT I

COMES NOW Plaintiffs and for their cause of action against the defendant states:

1. Defendant is now the duly appointed and qualified Personal Representative of the Estate of , Deceased, having been so appointed by the Probate Court of _______ County, , under Estate No.___________.

2. Plaintiffs are the surviving parents of , Deceased, while ., father of said deceased, is also the duly appointed and acting administrator and Personal Representative of the Estate of , Deceased, County Probate Estate No. .

3. That on or about the day of , 19_ _, plaintiffs' decedent was riding in an airplane owned and being operated by defendant's decedent at a time when said plane crashed, said crash occurring in County, ; and as a result of said crash, plaintiffs' decedent sustained injuries resulting in his/her death.

4. At the time of the aforesaid plane crash, said plane was owned, maintained, and controlled by defendant's decedent, and at the time of said crash was solely and exclusively under the management and control of defendant's decedent. The aforesaid crash of said plane and the resulting death of plaintiffs' decedent was directly and proximately caused by the negligence of defendant's decedent in the operation, maintenance, and control of said airplane. The cause or reason for said crash is solely and exclusively within the knowledge of defendant.

a. That the said defendant's decedent violated Federal Aviation Regulations, Section 91.3, which provides:

"91.3- RESPONSIBILITY AND AUTHORITY OF THE PILOT IN COMMAND.

(a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to , the operation of that aircraft."

That further, said defendant's decedent violated Federal Aviation regulation Section 91.9, which provides:

"91.9- CARELESS OR RECKLESS OPERATION.

"No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another."

That by reason of the aforesaid violations by said defendant's decedent, he/she directly and proximately caused the death of the said plaintiffs' decedent.

5. That at the time of his/her death, was years of age. At the time of his/her death, he/she was not married and left no surviving child or children; that at the time of his/her death, plaintiffs were partially dependent upon him/her for support and maintenance.

6. That as a direct result of his/her death, plaintiffs have sustained pecuniary losses and damages including the reasonable value of his/her services, consortium, companionship, comfort, instruction, guidance, counsel, training and support, expectancy in his/her estate, and benefits, all of which they have been deprived by reason of said death.

7. That as a direct result of his/her death, plaintiffs have sustained pecuniary losses and damages aforesaid in the reasonable sum of $1,000,000.00, including funeral expenses amounting to approximately $10,000.00.

WHEREFORE, Plaintiffs pray for judgment against defendant , in his/her capacity as Personal Representative of the Estate of , Deceased, in the sum of $1,000,000.00 and interest as allowed by law; for any and all other relief to which plaintiffs may justly be entitled, in equity or in law, and for plaintiffs' cost of this action herein.

COMES NOW Plaintiffs and for Count II of their cause of action against defendant , Personal Representative of the Estate of _____________________, state as follows:

8. That the allegations of Count I above are incorporated by reference as if fully set forth herein.

9. That said airplane was owned, maintained and controlled by the said defendant's decedent, and at all times prior to and during the aforesaid flight and at the time of the aforesaid crash, said aircraft was solely and exclusively under the management , care and control of the pilot and owner, . Plaintiffs' decedent, as a passenger, had no part in the control of the aircraft, had no opportunity, ability, or means to prevent the crash of the aircraft as aforesaid, and in no way contributed to same. It was the duty of defendant's decedent, as pilot, to use due care and to operate said aircraft in a careful, prudent and competent manner so as not to injure decedent, his/her passenger.

10. That by the failure of the said pilot and owner to exercise due care and operate said airplane in a careful, prudent and competent manner, while having exclusive control, care, and management of same and the breach of his/her duty to plaintiffs' decedent, as aforesaid, the plane crashed, resulting in the death of plaintiffs' decedent .

11. That said defendant, , Personal Representative, possesses superior knowledge or means of information regarding the cause of the occurrence of said crash, and plaintiff relies herein upon the negligence of defendant's decedent as inferred from the general matters herein alleged.

12. The said crash and the resulting death of decedent were directly and proximately caused by the negligence of the pilot , in the operation, management, and control of the aircraft.

13. That as a direct and proximate result of the negligence of , deceased, as aforesaid, plaintiffs' (son or daughter) was caused to sustain injuries resulting in his/her death; further, that at the time of 's death, plaintiffs and decedent resided together in the same household; that as a consequence of said carelessness and negligence, plaintiffs have been deprived of the society, association and earnings of decedent, and incurred expenses of his/her death and funeral; that he/she contributed to the support and maintenance of plaintiffs and did render other valuable service and contribution toward plaintiffs' welfare, that plaintiffs have been deprived of and will in the future be deprived of all of the foregoing as a result of the death of their (son or daughter).

WHEREFORE, Plaintiffs pray for judgment against defendant , in his/her capacity as Personal Representative of the Estate of , Deceased, in the sum of $1,000,000.00 and interest as allowed by law; for any and all other relief to which plaintiffs may justly be entitled, in equity or in law, and for plaintiffs' cost of this action herein.

COMES NOW Plaintiffs and for their alternative cause of action based on specific negligence against the defendant , Personal Representative, state:

14. Plaintiffs restate, reallege, and incorporate by reference Counts I and II above as if fully set forth herein.

15. That at the time of the aforesaid plane crash, said plane was owned, maintained, controlled, and solely operated by , now deceased, and said pilot and operator was careless and negligent in the operation of his/her airplane in the following respects, to-wit:

a. In operating said plane at a dangerously low altitude with no safe landing site available.

b. In "buzzing" and low flying over rough terrain and populated areas, thereby endangering lives and property.

c. In operating his airplane without the engine to sustain power in flight, and with a defective and malfunctioning engine.

d. In failing to properly manage his fuel tanks and fuel supply to prevent engine stoppage.

e. In failing to operate said plane with the proper governmental licenses, certificates, permits and requirements in violation of the law and federal regulations.

f. In failing to maintain a sufficient and adequate flow of fuel to the engine to sustain power in flight.

g. In failing to correct the defective and malfunctioning engine and the impairment of fuel flow to the engine in time to prevent engine stoppage, and the resultant crash.

h. In failing to observe established procedures to prevent engine stoppage and fuel starvation of the engine and to timely correct same to avoid crashing.

i. In exhausting the fuel supply and permitting the engine to run out of gas.

j. In causing and permitting the airplane engine to stop and to be improperly fueled so that the engine would cease operating before a safe landing could be effected.

k. In failing to prevent the plane's landing gear and structures from striking docks, buildings and ground objects with same.

l. In failing to maintain sufficient altitude so the plane's landing gear and wings would not strike ground structures and to prevent a steep descent into building and water; such prevented the plane from gliding to a safe and proper landing.

m. In failing to operate same at a safe altitude to eliminate the risk of crashing into ground objects and to permit safe gliding distance to a landing field or strip.

n. In failing to maintain control and flying speed and maneuver said plane and apply established procedures and practices to effect safety in flight and a safe and injury free landing.

o. In operating said plane while medically and physically disabled and while suffering from a severe health impairment.

p. In operating said plane without a government required health and medical certificate.

q. In operating said plane with a passenger while unable to pass a flight medial examination and after being rejected and turned down for same.

r. In failing to observe and select an alternate, suitable landing place, area or strip and effect a safe and uneventful landing thereon.

s. In attempting to operate an experimental, unconventional and complex aircraft without the necessary skill, training, and experience to pilot same in a safe and skillful manner.

16. That defendant negligently operated said aircraft in violation of the governmental safety rules and regulations of The Federal Aviation Administration and the Civil Aeronautics Board under 49 U.S.C.A. Section 1421, and more particularly, F.A.R. Part 91.

WHEREFORE, Plaintiffs pray for judgment against defendant , in his/her capacity as Personal Representative of the Estate of , Deceased, in the sum of $1,000,000.00 and interest as allowed by law; for any and all other relief to which plaintiffs may justly be entitled, in equity or in law, and for plaintiffs' cost of this action herein.

Instruction No. _______

In your verdict you must assess a percentage of fault to defendant's decedent whether or not plaintiffs' decedent was at fault if you believe:

First, Plaintiffs were the father and mother, respectively, of plaintiffs' decedent, and

Second, either:

defendant's decedent operated his airplane when it was overloaded, or

defendant's decedent operated his airplane without the proper modification or changes to make it safe and free from defects, and

Third, defendant's decedent, in any one or more of the respects submitted in paragraph Second was thereby negligent, and

Fourth, as a direct result of such negligence plaintiffs' decedent died. (M.A.I. 17.02 modified; M.A.I. 20.02 modified).

Relevant to the foregoing petition and instruction is Bledsoe v. Northside Supply & Development Co.21 In that action for personal injuries sustained in an airplane crash, it was noted that the first question was that of ownership of the airplane which crashed. That question was resolved on the record when the contract of sale and bill of sale for the airplane were admitted in the record. The question for the jury was whether the aircraft pilot, injured in the crash, was contributorily negligent for attempting to fly an overloaded plane. Another question for the jury was whether he attempted to fly the plane with knowledge of defective spark plugs and without knowing if the defects had been corrected. Since those issues were questions for the jury, the court ruled that the pilot "cannot be held guilty of contributory negligence as a matter of law."22

The court held that the verdict directing instruction did not require a finding that the plaintiff/pilot had "actual or constructive knowledge of overloading." The pilot testified that he would not have flown the plane if he had known that it was over weight. Therefore, the verdict directing instruction was prejudicially erroneous, so that judgment for the airplane's owner was reversed and remanded.

This demonstrates the modicum of proof that is required in a typical aircraft crash case.

It has often been said that the doctrine of contributory negligence referred to in Bledsoe v. Northside Supply & Development Co.23 was abolished as a bar to the plaintiff's recovery in negligence cases. Gustafson v. Benda24 came after Bledsoe v. Northside Supply & Development Co., espousing comparative fault over contributory negligence. Thus, under Missouri law, comparative fault is now the rule in aviation cases.25

1. Counsel for the aviation litigant should request the aircraft and engine log books, which record the mechanical and airframe history of the subject aircraft.

2. If so indicated, depositions should be taken of the mechanics named in the log books who performed annual inspections on the aircraft, along with other pilots familiar with the aircraft.

3. Also, request the pilot's log books and medical records.

4. Standard interrogatories that are germane to the issues raised by the pleadings should be prepared and served.

There is usually a surplus of named expert witnesses in classified ads in aviation magazines, including Flying and AOPA Pilot, which have national circulation. Also, members of the Aircraft Owners and Pilot Association (AOPA) can obtain a list of aviation experts in the field related to that of the subject aircraft. This can be accomplished by contacting the national headquarters of AOPA, 421 Aviation Way, Frederick, MD 21701. Non-members may pay a fee for the service.

In one trial, a former National Transportation Safety Board (NTSB) investigator with an aviation engineering background was used. In another instance, an FAA flight instructor was useful. One who proved most effective was an airport fixed base operator who ferried all types of aircraft nationwide. This related to his supplemental occupation of buying and selling aircraft throughout the United States and effecting pick up and delivery of same. This enabled him to log thousands of hours in various planes and in all types of weather. The latter is important, as weather is a frequent cause of accidents. Not to be ignored is the requirement that the expert have as many FAA licenses as possible and at least a commercial license with an instrument rating. If the subject aircraft is multi-engine, the expert witness should be qualified to fly it. It goes without saying that if it is a products liability case or a manufacturer's defect case, a professional engineer or an aircraft licensed mechanic with experience relative to the complaint should be engaged.

Experience has shown that the most desirable attribute of an expert is his ability to express himself in a persuasive manner on the level of the "man on the street." Generally, your case is as good as your expert.

In one lawsuit, the survivors of the deceased pilot reported they had promptly buried the aircraft following the crash, so it was unavailable for inspection by counsel during discovery. However, a photograph of the aircraft was taken by an obscure news reporter at the crash scene. This photograph showed that the wing strut on the aircraft was badly bent. This was consistent with plaintiff's charge that, due to poor maintenance, the strut buckled during a steep descent. This caused the wing to lose lift, resulting in the ultimate death of the pilot and his passenger. Oddly enough, at the trial the proponents of a sound airplane when the disaster occurred physically brought into the court room a perfectly straight, undamaged strut. It was represented as the strut from the aircraft.

Thereupon, plaintiffs' expert took the stand and referred to the photograph of the bent strut. He then rendered his opinion that the strut in the court room was not the one from the accident and could not have been. The jury then found for plaintiffs.26

An alleged aircraft design defect case on strict liability in tort is Lindsay v. McDonnell Douglas Aircraft Corp.27 In Stone v. Farmington Aviation Corp.,28 an airplane bailee failed to show that a motor defect caused oil to spray on the windshield.

Sections 305.010 through 305.630, RSMo. Of special interest is § 305.040, RSMo, which provides, where aircraft collide on land or in the air, that liability "shall be determined by the rules of law applicable to torts on land."

Frequently the owner of light aircraft will take friends for a flight and a crash occurs. As one authority points out, "accidents . . . involving aircraft do not necessarily bespeak negligence, [but] the crashing of an aircraft does." Collins v. Stroh.29 There a pilot/aircraft owner and pilot friend took plaintiff's decedent on a flight and the plane crashed. The plane had dual controls so that either pilot in a front seat could fly the aircraft. The defendant relied on out-of-state authorities that the fact that the left hand or pilot's seat was occupied by the owner did not create a presumption or inference that the owner was at the controls at the time of the crash. The court noted that this would not be a bar to the application of the res ipsa loquitur doctrine asserted in the case. It pointed out the owner of the plane was present in it and he would be chargeable with the negligence of the other pilot therein. This is so even if the other pilot was a licensed pilot and had been operating the controls. This is for the reason that the owner had "right of control."30 And, under federal aviation rules and regulations, "The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft."31 Further, "the pilot in command may deviate" from the rules "to the extent required to meet that emergency."32 However, the deviating pilot must file a written report thereof with the FAA administrator.33 The court ruled that the res ipsa loquitur doctrine was applicable, and the issue of control of the aircraft was properly submitted to the jury.

The same issue arose in Ferrell v. Topp.34 It appeared that the owner of the aircraft was in the left front seat and his friend was in the right front seat. The friend had a student's flying permit and had soloed an aircraft. He could operate the plane from the seat he occupied. The court observed that the jury could find that the owner was operating the plane when it crashed.35 The court also said that the jury could find willful or wanton misconduct because of prior warning of bad weather and the owner's statement that if the mountains were too high he would make a hole in one of them.36

In a case of interest, a country western singing celebrity was piloting his low wing dual control open cockpit experimental airplane over the Lake of the Ozarks. His front cockpit occupant was a highly rated pilot and recent graduate of a flying school. The plane crashed into the lake following a collision with the roof of a boat dock, killing both the owner in the rear cockpit and the occupant in the front cockpit.

Since there were dual controls permitting control from either cockpit, the personal representative of the deceased owner's estate contended that the more experienced pilot was seated in the front cockpit and was, therefore, in control. The jury found otherwise. The basis of their finding was because that type of plane is customarily flown from the rear seat. Further, the rear seat was occupied by the owner and the owner was responsible for the operation of the aircraft.37

Furthermore, as pointed out in Collins v. Stroh,38 "Kisling owned the plane and was present in it, and he would be chargeable of the negligence of Cooper even if Cooper had been operating the controls, for he had the °right of control.'"39

Relevant to the foregoing is Weast v. Festus Flying Service, Inc.46 There the court held that to support an instruction on enhancement of damages for aggravating circumstances in a wrongful death case, there must be a showing of willful misconduct, wantonness, recklessness, or want of ordinary care indicating indifference to the consequences.47 An approved aviation verdict director is set out, discussed and approved therein.

It is crucial to plaintiff's case to offer evidence supporting his or her factual foundation for the theory of plaintiff's case. The accident reports of the NTSB should be obtained and used as evidence, where germane to plaintiff's foregoing theories, to support the allegations in plaintiff's pleadings. The same applies to defendant's case to the extent the facts of said accident reports support defendant's theory of the case.

A case in point is Kastner v. Beech Aircraft Corp.51 That was a wrongful death action brought against the aircraft manufacturer for alleged failure to adequately warn of the dangerous propensity of the aircraft to go into a flat spin. Plaintiff's verdict was reversed and the cause was remanded due to a faulty verdict directing instruction. However, the trial court did not err in receiving into evidence various accident reports of the NTSB, because the accident reports contained only factual evaluations of the airplane's flight characteristics. They did not contain ultimate conclusions as to probable cause of the accident.

Numerous cases were cited by the court "holding that it was proper for an NTSB investigator to give testimony based upon an NTSB factual report which did not contain an ultimate conclusion as to probable cause of the accident."52 The purpose of the reports was to establish that Beech had knowledge of the spin propensities of the Beech Baron aircraft. Also, official recommendations for the avoidance of same would give rise to the duty to give adequate warnings thereof. It was ordered that the jury verdict for plaintiffs be reinstated.

The airplane manufacturer's maintenance manual is a valuable evidentiary tool to establish that a defendant manufacturer did not provide adequate warnings. Reference is to Nesselrode v. Executive Beechcraft Inc.53 The jury found that, had defendant given adequate warnings, the accident would not have occurred. Nesselrode also points out the evidence required toestablish pecuniary damages, including loss of future income.54

Judgment Collections

Regarding law suits, garnishments, claims by the injured persons in aircraft accidents, and their representatives against their insurers, In re Estate of Carroll55 is relevant. It held that the liability insurance policy provided coverage for loss while insured was riding as a passenger, but excluded coverage while riding as pilot or crew member. Further, in resolving that issue the insurer had the burden of proving that the insured was a crew member or a pilot.

General Aviation Aircraft Manufacturers' Limitation of Actions

As pointed out in a recent popular business publication, American aircraft manufacturers in 1979 made and sold 17,000 private planes. In 1989 they made and sold only 1,535. In 1979 aircraft manufacturers paid out $24 million in damages and litigation costs. However, by 1989 they paid a total of $210 million.56

A major cause of the huge payout in damages is that there is no limitation period on the liability of manufacturers for their product. For example, a 50-year-old Cessna aircraft that may have had 10 prior owners can render the manufacturer liable in a current crash if the party injured in the crash can show a defect attributable to the manufacturer.

To cure this vulnerability over a long period of years, President Clinton on August 17, 1994, signed the "General Aviation Revitalization Act of 1994." Understandably, Senator Kassebaum of Kansas sponsored the act to rejuvenate light plane production in Wichita, where Cessna and Beech factories are located. The main feature of the act limits liability to a period of 18 years from the date of the first sale of the aircraft. Only general aviation aircraft are covered, and they must have fewer than 20 seats and not be in scheduled passenger operation at the time of the accident. The law will not apply to accidents before the August 17, 1994 date and specifically preempts state law. There are four exceptions to the limitation period:

1. Misrepresentation or concealment from the FAA of material and relevant facts.

2. Passengers who are receiving treatment from an emergency.

3. Non-occupant injured persons.

4. Written warranty exceeding the limitation period.

Query: Who has the burden of proof, plaintiff or defendant?

Such has not been resolved.

Caveat: Lawyers are subject to malpractice claims for legitimate lawsuits that they failed to file before the enactment of the act.57

Warsaw Convention—Damages

By reason of the great volume of aircraft crashes in international flight, it is important to address the provisions of the Warsaw Convention. The recent crash of TWA Flight 800, Paris-bound, makes it even more timely and significant. In 1929, the U.S., along with more than 130 countries, signed a treaty governing the damages recoverable for injuries in international flight. Initially, the limit of recovery was about $8,300. However, to qualify, the international ticket had to show an origin and a destination in a country that adhered to the convention.58

In 1965, a Montreal agreement was reached which raised the limit to $75,000 per passenger. Some countries, other than the U.S., have raised their limits to about $142,000 per passenger.59

The rationale for low limits was to preserve the infant air carrier industry and to maintain uniformity in international air travel. The limit can be eliminated on proof of willful misconduct of the airlines or the failure to issue a ticket to the passenger. The former is a heavy burden of proof rarely met with success.60

In 1947, John F. Byrne, a Koppers Co. engineer, purchased an airline ticket in New York with a Chile destination. The flight required him to transfer to another airline in Miami for the flight to his destination. Since he had purchased a through ticket for an international flight, his wrongful death claim was limited to $75,000. Since the crash that killed him occurred at Havre de Grace, Maryland, on the first leg of his flight, his damages would have been unlimited if he had purchased a ticket to Miami and another ticket for the subsequent flight out of Miami.61

A related case is Sulewski v. Federal Express Corp.62 Plaintiff's decedent was an aircraft mechanic who travelled to international airports to maintain aircraft for defendant. While travelling on assignment, he was killed when the plane crashed. His widow alleged liability under the Warsaw Convention. The defense was that, as an employee of defendant, plaintiff's exclusive remedy was workers' compensation.

Although plaintiff argued that decedent was travelling as a passenger, the court held that decedent was aboard the flight primarily to perform employment obligations. The appeals court noted that for Warsaw Convention liability purposes, decedent had to be a passenger who boards a commercial flight pursuant to a carrier contract and travels for the primary purpose of either going from one place to another or for the pleasure of the journey itself. Since he was not a passenger as defined, summary judgment for defendant was granted.

On December 21, 1988, Pan Am Flight 103, en route from London to New York, exploded over Lockerbie, Scotland, killing 259 passengers and crew, and 11 residents in the village. A bomb concealed in a Toshiba cassette player placed inside a brown Samsonite suitcase in the forward cargo hold was determined to be the cause of the crash. The bag was a transfer from Air Malta Flight 180 and was not traveling with a passenger. Libyan airline employees at Malta were indicted for the bombing. Pan Am had used a less costly x-ray procedure to prevent detection of the bag and contents when put aboard its aircraft. Pan Am's baggage security procedures were found by a jury to constitute willful misconduct; thereby, the Warsaw limitations were circumvented. The indicted Libyan terrorists have escaped prosecution, since Libya refuses extradition.63

A. Causes of Action-Nonphysical Emotional Injuries

In addition to physical injuries suffered in international flight, recovery for purely mental injuries unaccompanied by physical trauma is allowable. In permitting intentional infliction of emotional distress claims, federal law will follow the state law. However, in regard to the "Convention" it applies and preempts inconsistent local law.64 Even if the state law of intentional infliction of emotional distress conflicts with the "Convention," under the "Convention" the state law is preempted.65

In Floyd, engine trouble forced a plane bound from Miami to the Bahamas to return to Miami. The passengers sued for emotional injuries. The court noted that Florida law is consistent and so provides. It ruled a cause of action was stated. It then held that physical injury is not necessary to state a claim under the Warsaw Convention.66 Such would be the same result in Missouri under Bass v. Nooney67 and its progeny. It is observed that Missouri law does not conflict with the "Convention."

B. Punitive Damages

Even though state law provides for punitive damages, the state law is preempted by the Warsaw Convention which disallows them. This is so even though the "Convention" does not explicitly address the punitive damages issue.68 However, the "Convention" allows full compensation in cases of willful misconduct by the air carrier, unless the carrier permits recovery beyond the $75,000 limitation.69 The Floyd court pointed out that punitive damages are private fines which are not contemplated by the "Convention" and do not thereby compensate victims.70 The court further held that proof of willful misconduct serves to remove the liability limitations on compensatory damages under the "Convention." Willful misconduct is a question of fact. "The plaintiff has the burden of proving willful misconduct by the air carrier."71

The court concluded that physical injury is not necessary to state a claim under the "Convention," and the lack of such is not fatal to plaintiff's complaints. Therefore, the court held that plaintiffs' allegations of emotional injury were sufficient to state a cause of action under the Warsaw Convention.72

Damages Further Defined

"Willful misconduct," referred to above, is usually defined by the court in air crash cases as knowledge that one's action likely will result in death, or a conscious or reckless disregard for that probability. Such was found to exist in the 1983 downing of a Korean airline plane by Soviet fighters and the Lockerbie explosion.73 Defendant should seek the application of the Death on the High Seas Act limiting economic loss to the family members who were dependent on the victim. This precludes other damages, including lost companionship, survivors' grief and mental anguish, and victim's pain and suffering. This restriction would apply to parents' claim for recovery for a child's death. The Death on the High Seas Act applies to accidents beyond about three miles from shore, but it does not apply to those in state territorial waters.74

President Reagan in 1988 extended U.S. sovereignty from three nautical miles to 12 nautical miles from shore. New York law indicates that the state waters are the same as the federal limit. The New York court held the state claims in the Lockerbie case were preempted if the Warsaw Convention applied to the accident. That case denied punitive damages under the Warsaw Convention.75 Since Flight 800 crashed close to the shore, state law may control, thus giving the plaintiffs a wider range of damages.76

Conclusion

The foregoing demonstrate the many complexities in preparing an aviation death case for trial. Also shown are evidentiary considerations in various types of crashes, and the "rocks and shoals" involving claims related to the Warsaw Convention. There are proposals in international air transport groups to scrap the treaty limit and provide for unlimited compensation. The U.S. Department of Transportation supports unlimited and strict liability for passenger claims on international flights involving U.S. citizens. The Japanese airlines have eliminated limited liability so that proof of willful misconduct is no longer required.77 From personal experience, success in aviation litigation depends, for the most part, on the quality of investigation and pre-trial preparation, together with the effectiveness of your expert witnesses. Of course, this assumes you have a bona fide, submissible lawsuit.

D.C.E.D.Mo. 83-256C(5).

© 1997, Charles J. McMullin