Magana Cathcart & McCarthy

Do I have a right to recover?

The Accident
An experienced pilot and co-pilot are at the controls of a DC-9 as it approaches an international airport during a violent thunderstorm. The aircraft is carrying 52 passengers and a crew of five. The weather is typically hot and muggy for the time of year. The captain’s decision to proceed with the approach is influenced by weather information from other pilots who have preceded him.

As the aircraft begins its final approach to the runway, air traffic controllers broadcast two warnings about windshear conditions to the left of the DC-9. Two other aircraft announce that they are postponing their takeoffs. Nonetheless, the DC-9 continues descending toward the runway.

Moments later, the captain notices a sudden increase in the plane’s airspeed. The rains increase obscuring visibility. The pilot orders a go-around with the command "Max power!" The aircraft briefly responds as the engines roar in a futile attempt to gain altitude. But then, the DC-9 slams into the ground carving a path through a grove of trees before the cockpit breaks free from the rest of the fuselage. The aircraft erupts into a huge fireball. Thirty seven of the passengers are killed. The remainder, including the pilots and flight attendants, survive with varying degrees of physical and psychological injury.

The Aftermath
Why did the aircraft crash? Who is responsible? These questions as well as others typically follow both commercial and general aviation accidents. The answers to these questions determine who may be liable to compensate those injured or the heirs of those who died. However, the scope of this article is limited to the airline employee’s ability to seek compensation in such an accident.

Does a pilot have the right to seek compensation when he is charged with causing the accident, either in whole or in part? What are the rights of the flight attendants when their co-employee (the pilot) has caused the accident?

The Role of the NTSB
Soon after the wreckage comes to rest, the National Transportation Safety Board (NTSB) moves to the scene of the accident in order to gather evidence to determine the cause(s) of the accident. The findings of the air safety investigator in charge will be submitted to the Safety Board for a determination of probable cause. While attorneys rely on the NTSB’s findings concerning evidence, the Safety Board’s determination of probable cause is not admissible in a court of law and is therefore not determinative of the cause of the accident nor the rights of the crew to bring a lawsuit.

Defense of the Pilot
The captain receives a call from an attorney who indicates that he has been hired by the insurance company providing liability coverage to the airline. It is his responsibility to defend the pilot and the airline against all claims for compensation. The captain asks about his personal exposure if he is found to be liable for the accident. It is explained that the airline carries limits which far exceed the potential damages to be awarded and therefore his personal assets will not be exposed to any judgment. The attorney also explains that since the captain was injured during the course and scope of his employment with the airline, he is entitled to make a claim for workers’ compensation benefits which will pay for all medical expenses incurred as a result of his injuries as well as disability benefits which will provide him compensation during the period of time he is unable to work. The workers’ compensation benefits are paid notwithstanding fault.

While the captain is relieved to hear that he will be defended, and that the insurance will indemnify him, he wonders about his own claim for the injuries sustained in the accident. The attorney advises that captain that he has only been retained to "defend" the pilot and that he is not in a position to seek any affirmative relief for his injuries and damages. The captain will need to retain his own personal lawyer, should he choose. The attorney also advises him that he is not entitled to sue the airline even though they may have been negligent in causing the accident since he is an employee of the airline and he is therefore limited solely to a workers’ compensation claim. He may not file a lawsuit against his employer.

Consultation With An Attorney
The captain calls the first flight attendant and advises her that his lawyer will not file any claim on his behalf. The flight attendant tells the captain that she has consulted with a lawyer who is going to take her case and suggests that the captain may want to consult with him for advice. The captain decides to call the attorney to discuss representing him as a plaintiff. The attorney discloses that he is already representing the flight attendant and is investigating the cause of the accident. He states that the pilot’s interests and the flight attendant’s interests would be aligned since neither are able to sue their employer and that both would be looking to a third party for compensation as a result of their role in contributing to the accident.

The captain asks the attorney how many of the passengers that he represents, thinking that it would be important for the attorney to represent a number of passengers to motivate the lawyer to act aggressively in prosecuting the claims. To his surprise, the lawyer says that he does not represent any passengers. The captain’s concerns are alleviated when the lawyer explains to him that he is not in a position to represent any passengers since a conflict of interest would exist. On behalf of any of the passengers, an attorney would be required to sue the airline as well as any others who are potentially liable. On the other hand, if an attorney represents any of the airline’s employees, the attorney’s role would be to negate any negligence on the part of the airline or any of its employees since the employees are not entitled to sue their employer. This creates a clear conflict of interest which precludes representation of both passengers and airline employees by the same attorney. Satisfied with the explanation, the captain decides to retain the attorney and now asks who will be sued.

Determination of Defendants
At this point in time, the investigation is ongoing. The investigation is conducted not only by the NTSB but also by aviation experts who are retained by the attorneys involved. The attorney states that the NTSB has not yet announced its probable cause finding but it appears from his own investigation that the following defendants should be named in a lawsuit:

1) United States of America. The attorney explains that his client’s decision to continue the approach was based at least in part on the weather information provided by the FAA. The attorney explains that the flight crew may not have been provided with updated weather information which reflected severe thunderstorms and rainshowers; that terminal Doppler radar had not been installed at the airport as scheduled which would have provided the air traffic controllers with information about the severity of the weather and such information would have been beneficial to his client. The windshear which was encountered was of 61 knots over a 15-second period. The attorney advises the captain and first flight attendant to file governmental claims against the FAA which will ultimately be denied. At the point of denial, a lawsuit against the USA can be filed.

2. Honeywell, Inc. The captain knows that the DC-9 which he was flying had been equipped with a windshear warning system. He nor the co-pilot recall hearing any warning prior to the crash. The attorney advises his clients that the NTSB investigation confirmed that the onboard windshear warning system failed to enunciate any warning to the flight crew. Why had the windshear warning system not activated? Was there a defect in design or manufacture? The pilot recalls that during the approach, with flaps extended to 40 degrees, the aircraft then encountered the heavy rainshowers. He called for the first officer to discontinue the approach, and in accordance with approved procedure, the flap handle was raised to the 15-degree position. It was later learned that Honeywell’s windshear alert system incorporated a flap-rate compensation feature that inhibited nuisance alerts generated by airflow anomalies when the flaps are in transit. As a result, during flap extension or retraction, oral windshear alerts are delayed until the flaps have reached their selected position. The device is designed to activate within five seconds of encountering windshear. Because of the moving flaps, the warning system would not have activated until about twelve seconds after the aircraft encountered the windshear which was approximately four seconds before impact. The attorney suggests that Honeywell should also be named as a defendant for a defect in design of the windshear warning system which should have activated seven seconds earlier and would have provided the crew with additional time to react.

3. McDonnell Douglas. The attorney explains to his clients that the manufacturer of an aircraft is also strictly liable for any defects that exist in any components of the aircraft even though those components are manufactured by others. If a defect exists in the Honeywell windshear warning system, McDonnell Douglas would similarly be liable.

Recoverable Damages
During their course of representation, the captain and first flight attendant inquire of their attorney as to what, if anything, they may be entitled to recover as a result of their lawsuit. They are informed that their ability to recover as well as the amount and type of damages can be evaluated once a decision has been made concerning which state’s law will apply. Each state will have its own laws concerning the impact of the employee’s negligence, the employer’s negligence and whether joint and several liability exists. The attorney states it is probable that the laws of the state in which this accident occurred will apply. Pursuant to these laws, his clients will only need to prevail against one defendant because of the existence of joint and several liability. Joint and several liability provides that each defendant is liable to the plaintiffs for all damages proximately caused whether that defendant is 1% at fault or 100% at fault. Each defendant is entitled to a reduction in the award to the plaintiff based on the plaintiff’s own negligence in causing the accident. In this respect, the evaluation of the captain’s case versus the first flight attendant’s case is different. The captain will be able to recover 100% of his damages if he proves fault on the part of one of the defendants less a percentage reduction in his damages for his own percentage of fault. For example, if the United States of America is found to be 75% at fault, and the pilot is 25% at fault, the captain will recover only 75% of his damages. On the other hand, the flight attendant will not have her damages reduced because she was not actively negligent in causing the accident. However, the flight attendant may be required to reimburse the workers’ compensation carrier depending on the percentage of the airline’s (her employer) fault.

With respect to the types of damages, the clients learn that they are entitled to recover the reasonable value of all medical expenses already incurred or to be incurred in the future as a result of their injuries; all lost income, past and future, or loss of earning capacity as a result of their inability to work due to the injuries sustained in the accident; and, finally, an amount to be determined by the trier of fact, whether a judge or a jury, to compensate each for general damages for the pain and suffering sustained.

The Outcome
The accident described above was the USAir crash at Charlotte-Douglas International Airport which occurred on July 2, 1994. The NTSB subsequently determined the probable cause of the accident as: 1) the flight crew’s decision to continue an approach into severe convective activity which was conducive to a microburst; 2) the flight crew’s failure to recognize a windshear situation in a timely manner; 3) the flight crew’s failure to establish and maintain the proper airplane altitude and thrust setting necessary to escape the windshear; and 4) the lack of real-time adverse weather and windshear hazard information dissemination from air traffic control, all of which led to an encounter with and the failure to escape from a microburst-induced windshear that was produced by a rapidly developing thunderstorm located at the approach end of Runway 18R.

Although not determined to be a cause of the accident, the NTSB also criticized the design of the DC-9’s Honeywell reactive-type windshear alert system and blamed its failure to warn the crew as a factor in the accident.

The majority of the USAir passengers or the heirs of those who perished in the subject accident sued USAir for compensatory and punitive damages on the theory that USAir’s conduct rose to a reckless disregard of passenger safety. The USAir flight attendants, precluded from suing their employer, filed claims against the FAA and subsequently sued the United States of America for negligence on the theory of air traffic controller error.

Prior to trial, the USA admitted liability on the flight attendant cases and agreed to pay all damages proximately caused in the accident as determined by way of settlement or by a federal judge sitting without a jury. In addition, the USA entered into an agreement with USAir where they would jointly pay compensation to each of the passengers for damages determined by way of settlement or trial before a federal jury.

The passenger cases did indeed go to trial against USAir where a jury found that USAir had been negligent in causing the subject accident; however, the conduct of USAir did not give rise to punitive damages.

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About the Author
Peter T. Cathcart is a partner in the Los Angeles based firm of Magaña, Cathcart & McCarthy which specializes in aviation accident litigation. The firm has been involved in most of the major commercial air disasters and has been privileged to be involved in general aviation accidents including those which took the lives of Thurman Munson, Rick Nelson, KFI Traffic Reporter Bruce Wayne, and Michael Scully (son of Dodger announcer Vin Scully).

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