By John Alan Cohan, Attorney at Law

Aviation accidents often result in injury or death during takeoff before the plane even lifts off. In a recent incident, a Cessna 340A vaulted an embankment and came to rest on an airport service road during an aborted takeoff at Santa Monica Municipal Airport, California. The private pilot and one passenger were fatally injured, and the airplane was destroyed by impact and fire. The National Transportation Safety Board preliminary report said that the airplane’s flight control lock was found with the pin engaged through the mating hole of the pilot’s control column. Apparently, the pilot had failed to remove the pin before takeoff was attempted.

The pin is designed to protect flight controls when the plane is inactive, to prevent the controls from moving from wind or other interference during ground storage. The pilot of the Cessna that crashed, Richard Runyon, a graphic designer who created the Federal Express logo, had 45 years of flight experience, making it hard to comprehend how he could have failed to remove the control pin.

Normally these pins keep smaller planes from even starting, but it had been rigged so that the engine could start without the pin being removed, according to the NTSB.

The standard of care owed by a pilot or operator of an aircraft to passengers can vary, depending on what state the incident occurs in, and whether the passenger is a guest or a passenger for hire. The term "guest" is generally used to include all persons, other than employees, carried in the aircraft with the owner’s or operator’s knowledge and consent, and who are not passengers for hire. Sharing of expenses between a pilot and a social acquaintance going on a golf trip, for instance, does not constitute a "payment" that would constitute a passenger for hire, which would then impose a greater standard of care on the pilot’s part.

Aviation guest statutes in some states limit the liability of the owner or operator of an aircraft to a guest injured or killed while being transported. Liability is limited that, in order to recover damages there must be willful, wanton or gross negligence, as distinguished from ordinary negligence. In some states that means the injury or death must be due to intoxication or other willful misconduct of the pilot (Indiana, South Dakota, Illinois, Oregon).

"Willful" means the pilot must have actual knowledge of the peril to be apprehended, coupled with a conscious failure to avert injury. Sometimes courts speak of this as evincing a reckless disregard of consequences. If a pilot performs an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must have been aware of it, and was conscious from such knowledge that injury or death would be the likely or probable result of his action—-that would constitute willful misconduct.

Thus, guests subject to guest statutes are owed, in effect, a lower standard of care, while passengers for hire are owed the highest standard of care, and all other passengers are owed a duty of reasonable care.
Liability involving guest statutes include flying with inadequate fuel, improper maintenance, improper inspection or loading, thrill seeking, stunt flying or flying while intoxicated.

Most states have abolished aviation guest statutes, and in some states they have been declared unconstitutional as denying equal protection of the laws (California, Idaho, Michigan, Nevada, Utah).
In states where there is no guest statute, pilots owe the duty of ordinary care under the circumstances--the same degree of care that an owner or operator of a motor vehicle on land owes to a guest, which is the care that a reasonably prudent person would exercise in the same or similar circumstances.

In a case such as that involving the Cessna 340A that crashed on takeoff in Santa Monica, California, with the flight control lock pin engaged, a court might find negligence based on the doctrine of res ipsa loquitur. That expression means "it speaks for itself." The doctrine is applied because the progress of aviation has been such that it is now an ordinary mode of transportation, and accidents do not occur in the ordinary course of events absent lack of care. The law will infer negligence on the part of the pilot when the injury is the sort that that does not occur in the ordinary course of things. The doctrine is used when there is no direct evidence available of negligence. Other cases have used that theory to show negligence when, for instance, an aircraft crashes after flying into the side of a hill in clear weather.

It is always important to "think ahead" when flying so as to avoid placing one’s aircraft and passengers into unnecessary peril.

FMI: John Alan Cohan is a lawyer who handles tax and aviation matters. He serves clients in all 50 states, and can be reached at: (310) 557-9900 or via e-mail at johnalancohan@aol.com. You can visit his web site at www.legalalertnews.com.