The "L" word: Demystifying Liability

In an op-ed in the New York Times, Damien Fowler recently offered some thoughts on "The Dangers of Private Planes."  I'm not going to go into the questionable accuracy of his statistics, or the fact that this may be a ploy to sell more copies of his book, but the article does bring up one serious and under-considered issue among GA pilots: liability.  This will be the first "Demystifying" article to try and explain some tricky legalese in plain English.  Please remember that Jacob is NOT (yet) a lawyer and this site DOES NOT offer legal advice.  If you need a legal opinion, go get a real lawyer. (*1)

What?

In legal terms, liability is "The quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment." (*2)

Huh?

Yeah, it can be confusing to lawyers, too.  In fact, that same legal dictionary entry cross-references 32(!) specific types.  We won't go through them all, but there are a couple of general things you need to know.  First, liability always means that a person (let's call him Andy) owes something to either an individual (Bob) or society as a whole (Country). (*3) Second, liability isn't a suggestion; Bob or Country have a right by law to extract whatever money, time, or other resource Andy owes them.  That right really means something: in most civil cases, Bob can sell it for cash to a willing buyer just like any other asset.  In every criminal case, it gives Country the right to throw Andy in jail (or enforce some other penalty).

So...what makes Andy liable?

There are a whole lot of ways to get there, but there are the three main ones you usually learn in your first year of law school.

1. Contract. "Sell you my horse for $125," Andy says.  Bob shakes his hand and beams, "contract say we all." (*4) Bob is now liable to Andy for $125, and Andy likewise owes Bob a horse.  The necessary pieces of any contract are an offer, an acceptance, consideration (basically a price), and (sometimes) a writing that satisfies the statute of frauds. (*5)
2. Tort.  If Andy steals Bob's plane (and Bob can prove it in court), Andy is liable to Bob for the cost of that plane. (*6)
3. Criminal.  If Andy steals Bob's plane, and Country proves it in court, Andy owes Country jail time.

Wait...Andy's liable to Bob and Country for the same theft?

Yeah, though he owes them different things.  With a few exceptions, Andy's going to owe Bob money and Country time.  These are called civil and criminal penalties, respectively.  Those categories break down on occasion - Andy could owe Bob labor (specific performance) or Country money (fines, civil forfeiture, etc...) - but those are your general silos.

"I can't stall. I'm on a mission from me."

Who?

Do I need to be worried about this?

Yes, unless you're sinless.  Liability is the only reason most lawyers ever have any business, and as you've probably heard it said, everyone needs a good lawyer at least once in his or her life.  Liability doesn't always depend on intent; sometimes it doesn't even require any particular mental state.

Where?

So Bob can just take Andy's money?

Not exactly.  Liability is different from cash in hand in that you can't legally use force to make a debtor cough up that cash.  Only society has that authority, so Bob has to go through the civil court system (usually some kind of State court) to get a "judgment" against Andy.  Lawyers call this "civil procedure," and there are a jillion rules about how and how not to do it.  If Bob does end up getting a judgment in his favor, Andy's resources can be forced away from him by the court's authority under penalty of indefinite jail time.

It works roughly the same way on the criminal side: Country can't just throw Andy into prison because it thinks Andy did something wrong.  Instead, it has to prove to a court that it has a good reason for charging Andy, and then has to actually haul Andy into court to sort the whole thing out.  That's "criminal procedure."

One major difference between the two is that criminal (but not civil) defendants have a constitutional right to legal counsel, which the court can appoint to that defendant.  That means Andy has a right to a lawyer when Country comes after him, but not when Bob does.

When?

Is there something I can do before this all goes down to save my skin?

You bet.  There are two steps every pilot ought to take to cut down on the potentially catastrophic effects legal liability can have on your life.

First, reduce your risk.  Yes, I'm serious: the best way to avoid liability is to avoid liability, and we all know most accidents have pilot error as a primary factor.  There are a jillion ways to do this, but here are a few ideas you should take seriously:

1. Make good decisions on the ground.  Know your weather, terrain, fuel/endurance, and other operational limits and stick to them.  Have a plan for the foreseeable.  Above all, know thy airplane.  If you listen at all to The Finer Points, you may have heard Jason Miller's philosophy on pre-flights; approach your inspection assuming there's some reason your bird can't fly, and make it your mission to find it.  If you fail, you may proceed.
2. Make good decisions in the air.  I know I'm not the only pilot who chuckled the first time he hear Aeronautical Decision Making (ADM) was an actual portion of ground instruction, but it's serious stuff.  Specifically, consider your pneumonic devices and whether you can actually run through them in a pinch.  Get yourself into a simulator and see how you do with various system failures or emergent weather.  If your pneumonics fail you, work out the kinks or find something else - I'm a fan of visual or tactile flows.
3. Use SOPs.  I promise The Finer Points hasn't paid me to do any advertising here, but Jason has an ebook out that talks a lot about this.  Standard operating procedures are a huge part of what helps airlines achieve a safety record more than two hundred times better than their general aviation counterparts, and constantly reevaluating your SOPs is as important as using them.
4. Maintain your proficiency, not just your currentness.  Don't get in the air (or let anyone else get you in the air) unless you feel totally confident in your ability to get back down.  There are all kinds of "rusty pilot" resources available if you haven't done it for awhile, and CFIs are always happy to give an extra check-up.  If you're in an area with challenging terrain or regular visibility issues, consider some aerobatic or instrument training.  You'll enjoy the challenge and become an all-around better pilot.

Second, buy some sensible liability insurance.  No, your FBO's rental insurance is not enough.  I'll probably be doing another article to demystify insurance for pilots in the future, but you know the basics: you pay a company money each month/year/whatever in exchange for their promise to pay if someone makes a claim against you.  On its face, that's a very simple contract.  In reality, of course, it gets stickier.  You can't buy criminal insurance for reasons that should be pretty obvious, but you can buy all the civil liability insurance you want from anyone willing to bear the risk that you'll actually come a-calling.

How?

So what does all this have to do with that NYT article?

Fowler spends most of the article lambasting the safety record of General Aviation with questionable figures, but does offer an intriguing proposition: what if having liability insurance actually makes pilots safer?  His basic argument is that insurance companies are harder on pilots than the FAA, and higher standards make for safer pilots.

Regardless of the merits of that argument in the context of aviation, insurers in other sectors seem to believe they can reduce the claims made by or against the people they insure by modifying their behavior.  You see this fleshed out in safe driver discounts, Progressive's Snapshot program, Farmers' 15 Seconds of Smart ads, wellness programs, and a host of other means.

Manufacturers have also gotten into this game, especially with high-performance and homebuilt aircraft.  They've realized that it's cheaper to train pilots and give them a discount on their insurance than to insure them without that additional training.  The hyped-up concern around those aircraft may or may not be overdone, but if too much caution saves one life, the juice is worth the squeeze.

Why?

I only fly solo, in clear weather, over perfectly flat terrain, immediately after complete inspections, in unpopulated areas.  Why should I care?

First of all, you're a liar.  Nobody's perfect, and mistakes are as much a part of aviation as any other facet of human life.  We all know this, but there's something about also knowing we can lurch a heavier-than-air machine into the clouds and bring it back again that makes us pilots feel like saints, or maybe wizards.  You should care because you have made and will continue to make mistakes, and just because they have been cheap so far doesn't mean they'll stay that way.

Second, you should care because liability doesn't just affect you.  Depending on your financial planning, family situation, business organization, and a host of other factors, incurring a big financial burden on yourself could put the people around you into debt if you don't have an insurer lined up to step in.

Third, you should care, but you shouldn't let that worry drive you from aviation.  We all know or learn the risks of this passion through our observation, training, and pilotage, and while we can continue to improve there will always be something inherently risky about sitting thousands of feet above the surface of the earth.  Responsibility makes the world go 'round, but a life lived out of fear is no life at all.

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*1 If you are an aviation lawyer and want to advertise on this site, please let me know.  I am a poor law student and will plug you shamelessly.

*2 Black's Law Dictionary 997 (9th ed. 2011).
*3 Technically, Bob could be a couple of people, or a partnership, or a corporation, or anybody else that's not "society."  You get the idea.  I'm pushing civil/criminal here, not individual/collective.
*4 Shamelessly stolen from papa Works' entire first year Contracts class.  I'm proud to be a disciple.
*5 I'm not going to explain the statutes of frauds, but they do matter.  Basically, they mean that certain kinds of contracts have to be in writing or there's no deal at all.
*6 Again, I'm not going into replacement cost, fair market value, or any of that.  Ask a lawyer.

"Unfit for Flight" Part I

A few weeks ago, USA Today and its syndicates ran a story entitled "Unfit for Flight," the first of three articles criticizing general aviation's safety record over the last five decades.  It was pretty scathing - the long form is entitled "Safety last: Lies and coverups mask roots of small-plane carnage." This first story is divided into six subsections with objective, non-sensational headings like "Post-crash fires threaten helicopter passengers: IF IT'S CHEAPER TO LET YOU DIE THAN FIX IT, YOU'RE GOING TO DIE."

Predictably, general aviation advocates have lashed back in force, saying the article mischaracterizes the industry and ignores a vastly improved safety record over the same period.  They say the report unfairly "paints GA aircraft as death traps, pilots as amateur, and aircraft manufacturers as villains, and pits pilots against manufacturers" while selectively ignoring information running counter to the shock value of the story.

So...who do you believe?  Is general aviation dangerous?  Has its safety improved?  Is anybody here telling the truth?

Maybe.

I listened to a radio story a while back about the relationship between a prisoner in jail and his corrections officer.  The officer had ordered the prisoner to pick up dandelions as a disciplinary action.  It's worth a listen, but here's the excerpt "Unfit for Flight" brought to mind: *1

Lt. Cecil Dooley

OK. So you're still upset over the dandelion deal?

Antwaun Wells

Yes, I really am. That really actually frustrated me.

Lt. Cecil Dooley

If you wouldn't have bucked up against that officer that day--

Antwaun Wells

But see, that's what I'm saying. You never came and asked me exactly what happened.

Lt. Cecil Dooley

Don't need to.

Antwaun Wells

Exactly. You took your officer's word and you left it at that. It's always three sides to each story. My side, his side, and the truth.  You left two sides out and you went off of what your officer said. You never came to me as a man and asked me. You know what I'm saying?

The amalgamation of this article and its backlash are one side and another, and neither seems to be particularly concerned about objectively portraying the truth.  As a card-carrying member myself, the most interesting reading has been the comments from other AOPA members on our association's own PR.

"Seems this guy had an idea for ["Unfit for Flight"] and a direction he wanted to go with it ..... evidence to the contrary be damned. Imagine if every car on the road was required to pass an annual inspection, every driver to be proved medically fit, any modifications made to that factory built car required an STC and driver needing to prove their driving skills every 2 years minimum." 

"The AOPA response reads like it was written by a lobbyist for aircraft manufacturers instead of a group supporting owners and pilots ... Does the NTSB’s reliance on manufacturer reps and exclusion of pilot reps makes sense? Since NTSB conclusions are not admissible in court, what is wrong with allowing a pilot representative to participate in the investigation? What are the manufacturers afraid of?"

"I find it hard to believe the timing of this piece is not somehow connected to the pressure the FAA is feeling regarding the third-class medical. I doubt a sudden ostensible expose trying to paint GA as extremely dangerous appearing now, despite the recent dramatic decline in incidents that it fails to even mention, is a coincidence."

I called this post "Part I" because I imagine I'll be coming back to debunk some of the mischaracterizations and misinformation from both sides.  For my part, I'll call them out on this: block-quoting legalese to add shock value to general journalism is inaccurate, unethical, and contrary to USA Today's mission "to serve as a forum for better understanding and unity to help make the USA truly one nation."  Shame on the author and editor.  On the other hand, the article does bring up some legal questions that have piqued my curiosity.  Stay tuned.

In the end, we all need to do our own reading and come to our own conclusions.  I'll keep trying to help you wade through the muck.

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*1 The irony that I'm excerpting a long piece in my story about an article that selectively picked and chose information is not lost on me.  The whole thing really is worth a listen, and I'll even give you a teaser: the cop looks like the bad guy now, but in the end the prisoner almost sees the situation his way.

Tradition

I was listening to an interview the other day with the man responsible for the lyrics in Fiddler On The Roof, which happens to be celebrating its 50 year anniversary.  He spoke about many interesting facets of the show, but I thought the most interesting few minutes were about the songs they didn't end up using, including the original opening number.

"It wasn't used because when Jerome Robbins became our director, we had many, many meetings before we went on to rehearsal. At each meeting he started with the same question: what is this show about? And he would say there's something that gives this show its power and we don't know what it is. And finally at one of those meetings one of us said hey, you know what this show is about? It's about changing of the way of life of a people in these Eastern European communities, these little towns, these shtetls, and Robbins got very excited about that. He said if that's the case, then what you have to write is a number about traditions, because we're going to see those traditions change. And that's so important in the show. Every scene or every other scene will be about whether a tradition changes or whether it remains the same. So instead of a song with the mother and the daughters getting ready for the Sabbath, he wanted us to write a song about tradition because he thought that's what the show is really about."

This weekend I had the chance to visit my fiancé's family cabin for Memorial Day weekend.  If you grew up somewhere other than the Northwoods (like I did), you may not understand the traditional significance of that holiday in that part of the world.  It's the unofficial start of summer, and it's easy to see just how widespread that celebration is when you're actually there.  Towns double in size, boat engines roar to life for the first time in months, and spirits are high.  These folks are creatures of habit in a strange but endearing way.

While I did grow up as a creature of the plains, I was extremely fortunate to have experienced aviation from an early age through the pilots God gave me for a father and grandfather.  I've heard it said that there are ultimately only old pilots and bold pilots, and becoming a third-generation old pilot is definitely a tradition I aim to honor.

My future grandmother in law sees us off

This weekend, our family traditions collided when I flew that rental Archer up to D25.  It's a marvelous little airport if you ever have the chance to visit.  I had the opportunity to take my future father in law and grandfather in law up for a little aerial tour of the area they've been frequenting for decades by car, and it was an experience I will absolutely never forget.

I think we as general aviators know Tevye's love for tradition as well as anyone.  Our planes are, on average, over 40 years old.  At our best, we rely on checklists and procedures to give our flights a firm foundation.  At our worst, we get stuck longing for the golden age of aviation to return without actually getting off our rears and doing what we can about it, and I think that's the side that concerns me.  If you haven't seen Fiddler, watched the above clip, or heard of the concept of foreshadowing, here's a little spoiler alert: in the end, Tevye's traditions can't save his village from the sweeping societal changes knocking at his door.  Its residents are eventually forced to adapt, but one can only imagine how much more difficult that integration was as a result of their longtime resistance.  On the one hand, they experienced a life very few others around the world were able to perceive.  On the other, that same world left them in the dust.

So what's it going to be?  Will we continue to lose 10,000 private pilots per year, dump lead into the atmosphere out of Metathesiophobia, or resist technological changes that will increase situational awareness for every pilot? Or will we honor our collective heritage by embracing the future with all its costs and benefits, and make of it what we can?

Let's choose the latter.  Let's honor our collective heritage of innovation and responsibility that has made aviation great. Let's fly.

Freedom and Responsibility

If you've never seen this video, do yourself a favor and watch it.  The actual interview starts at :40.



A very experienced GA pilot first shared this with me long before I had my own wings, and it's stuck with me.  I love Harrison as an actor, but I think I appreciate his words in this little clip more than any of his many films.  His story of becoming a pilot is probably different from most, but nevertheless relatable.  He exhibits the drive that makes any good pilot good: a desire to constantly improve and broaden his abilities.  He's lucky enough to fly for fun, but many would see him as even luckier for being able to incorporate GA into his non-aviation career.  In any case, he humbly recognizes that luck for what it is.  He is almost shockingly humble about his success, which makes you want to empathize with rather than mock his failings - you can't help but laugh along when you visualize his first solo (3:44).  His appreciation for small towns and small-town people also reflects one of the beautiful aspects of GA.  Even having grown up in a state with more cows than people, hopping into a little local airport feels to me like stepping back to a simpler era built on history and mutual trust.

What I really love about this video is when Harrison talks about why he flies.  Ask any pilot to do the same and freedom will be high the list (if they're honest); nobody gets into this because it's cheaper or safer than other modes of transportation.  But it is the mixture of freedom and responsibility (5:08) that fuels the adrenalin from takeoff to touchdown.  We pay dearly for the opportunity to launch into the sky, but that makes us value every second.  We take our lives (and those of our passengers) into our hands every time we line up on the numbers, but the gravity of that situation heightens our senses.  I think overcoming both of these hurdles is what makes us not only glad but proud to fly, and keeps us coming back for more.

Determination

What is it about the sky that makes us wonder?  Its blueness?  Its vastness?  Its usefulness or mystery or distance from home?  Whatever it is, we seem to keep our necks craned and our eyes wide.

I was walking around my grandparents' place the other morning, trying to identify the low-and-slow a few thousand feet above my head, when my eye caught something odd.

I'm no botanical expert, but I know one thing about that tree: it couldn't thrive in the space it was placed.  Maybe it had a biological issue within itself.  Maybe there was an environmental obstacle, or maybe some other plant grew in to block its place.  By whatever method, nature blocked the conventional route - but that tree wanted to go up, and it found a way.

I think this tree embodies the spirit of aviation both historically and today.  Humans found themselves shackled to the ground they walked on until they realized they could make vehicles that skidded or rolled.  Then they realized they could make their vehicles float and opened up a whole new world of discovery, but even once they discovered ways to penetrate the sky I believe they've never stopped looking up.  They probably never will.  At our roots we are firmly in the dust, and to dust we will return, but we will stretch upward and outward until that day comes.

Today, pilots find themselves simultaneously creating new ways to reach the heavens and dealing with new hurdles that try to keep them on the ground.  For some, it may be excessive regulation.  For others, personal health.  Maybe it's the financial burden, or the risk flying places on life itself.  But like that tree, we find a way.  We adapt, and grow, and find a way to be further into the air than we were yesterday.

Getting Off the Ground

Hello and welcome to TFL.  This isn't a law firm and I'm not a lawyer (yet).  This is just my way of funneling my passion for general aviation through my small but growing ability as a law student to hopefully come up with something useful for you.  Thanks for reading and welcome aboard!