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Things We Wish We Never Need to Know: Legal Consideration for Aviation Accidents

April 20, 2009

Airplane crashes cause a substantial amount of pain and suffering for all those involved—families, friends and the surrounding community. Dealing with that pain and suffering can at times be unbearable, especially given the suddenness of a loved one being taken away. At the beginning, it is hard to imagine how one will press on and be able to continue supporting (financially and emotionally) the survivors of the victim. It is a rare occurrence when family or friends don’t question “why did this happen” and wonder if the accident was fate or if it could have been prevented.

I’m sure we’ve all heard in recent news about the many plane crashes occurring both inside and outside the United States.  Although much less likely to occur than other types of accidents, like car accidents for example, plane crashes have the possibility to have a greater and more lasting effect than most other types of tragedies. Often after a crash, the families of the victims bring suits to recover for their losses. Although nothing will ever bring their loved one back, lawsuits to recover damages sustained by the death and/or injury of a family member is our imperfect justice system’s attempt to relieve the pressure and strain caused by the crash. However, some people may be hesitant to sue or are reluctant to be seen as part of a “sue happy” society, lawsuits can also bring about change and have a positive impact on the safety measures and precautions taken by the airline industry, whether voluntarily or as a federal government mandate.
For those contemplating a lawsuit where a loved one was injured or killed in a plane crash, there are many factors to consider. Of course, if you are seriously thinking about filing a suit, you should consult with an attorney to determine the best course of action. However, there are a few things that can be considered before consulting with an attorney.

Time Limitations
Depending on whether your loved one was injured or killed in the crash, the time limitations to bring suit are different in each state. In New York, a wrongful death suit must be brought within two years of a person’s death. If the victim was injured in the crash and later died from those injuries, the family may have a survival claim which is unique and in addition to the wrongful death claim. That claim for pre-death injuries, depending on the liability theory, has its own statute of limitations (a time deadline after which you cannot file the suit). Some statute of limitations can be tolled or paused for various reasons, but more often than not they cannot. After consulting with an attorney, if you remain hesitant to sue, it is important to remember that if you decide not to sue and change your mind down the road, if the statute of limitations has expired, you are forever barred from bringing the suit. If you decide after a suit has been filed that you do not wish to proceed, your attorney can discontinue the action. Many people consider it advisable to preserve your right by filing a lawsuit and after a thorough investigation is completed, making a decision about whether to continue the case.

Choice of Law
Almost all airplane crash cases involve choice of law issues, which are considerations of the conflicting laws of the different state laws that may be involved. For instance, if a flight originated in State A and crashes in State B, but the victim of the crash and the surviving family members reside in State C, three different sets of law could come into play. You should consult with an experienced attorney who has the capabilities to research and recognize the similarities and differences in the various laws that could be involved, and that attorney can explain the best option based on your family’s particular circumstances.

Statutes Involved
The airline industry is heavily regulated, and so too are the lawsuits against those airline entities. For example, GARA (General Aviation Revitalization Act) bars suits against airplane or component part manufacturers after the airplane or part has been in service for eighteen years. However, GARA does not apply when, for example, at the time of the accident, the airplane was engaged in scheduled passenger-carrying or engaged in air medical service operations. For international flights, the Warsaw Convention limited the monetary exposure for aircraft carriers from personal injury and/or wrongful death lawsuits. The Convention’s harshness was abridged a bit by the Montreal Agreement (or Protocol), which holds aircraft carrier’s absolutely liable for personal injury/death for up to $75,000 per passenger. While common sense dictates that this is a low amount, the limitation on liability may be lifted if “willful misconduct” on behalf of the airline is proven. These are just a few examples of the state, federal, and even international statutes that could affect the process and outcome of airplane crash litigation.

As can be expected, when airplane crashes are involved, there are many potential defendants that may be at fault for the accident—the airplane manufacturer, the airplane owner, the pilot(s), a flight school, Air Traffic Control, the maintenance company and/or maintenance workers, etc. The list can be expanded considerably. A good attorney should be able to narrow down the defendants that were involved in playing a role in the accident, which may not be limited to one or two. Multiple defendants can each be a substantial cause of the crash. However, the more defendants, the more there will be finger pointing; that is, the defendants may blame one another as the cause of the crash (disputing who is the actual “tortfeasor”). Again, a good attorney can narrow down and decipher which of the possible defendants are at fault, a process accomplished with the aid of expert witnesses (in the field of aeronautics, aircraft manufacture, accident reconstruction, etc.). Another issue that comes into play with multiple defendants (as with airlines) may be bankruptcy. When one defendant files bankruptcy, that filing can disrupt the entire path, duration, or progress of the case. The attorney you consult with, or an affiliate of their office, must be trained and experienced in dealing with bankruptcies, especially with corporations.

Practical Considerations
While speaking with family members who have lost loved ones in an airplane crash and who decided to proceed with a lawsuit, I was interested in knowing what their “take” was on the process. Most of these individuals were never involved with the legal system before filing their personal injury/wrongful death suit. While some had mixed reactions, usually fluctuating based on the status of their case and/or the outcome, I was given a few pieces of advice for fellow families of airplane crash victims to share.

  1. Documentation – The most common comment I encountered was people’s surprise at the amount and types of documentation involved in airplane litigation. With airplanes, the paperwork involved can be overwhelming (such as maintenance records, pilot flight records, etc.), and it is important to discover and request copies of the documents right away (which of course will be your attorney’s job). Sometimes lawsuits can take many years and the documents will not always be available years down the road.
    Documentation about the effects of the crash on the victim’s family can probably prove to the best type of documents in a plane crash. Keeping a diary of the emotional impact and events going on in the survivor’s life (e.g. how you felt during the first holiday without your loved one) helps to refresh your recollection in a trial. Many find psychological counseling helpful during the grieving process, and it can also represent a neutral observer’s record of the effects of the crash on the survivors. It is sad to admit that, depending on the state where the litigation takes place, you may be required to prove your pain and suffering. For most of us it seems obvious that the crash would cause an immense amount of pain and suffering; however, in the event of a trial, these records could be very helpful, especially if the trial is a few years down the road. Alternatively, and again based upon in which state the litigation takes place, your family may not be able to recover for the pain and suffering you have endured as the result of your loved one’s untimely death.
  2. Interactions with the Airline Industry – Many times immediately after a crash, representatives from the airline involved will be present and will attempt to help the victim’s survivors deal with the situation—it is basic human nature to want to help one another. Typically, after the sting of the crash has faded away in the public’s eye, representatives from these airlines may be few and far between and their respective attorneys will be replacing these friendly faces. There is nothing diabolical about this situation, however, it is prudent that you should not make any statements to these representatives or their attorneys, and should never sign anything without your attorney’s review or without your attorney present. Statements made, no matter how well-intentioned at the time of delivery, can be used later by the defense depending on the context of those statements. The legal saying that ‘anything you say can and will be used against you’ applies to any trial.
  3. Timeline of Lawsuit – Many families who decide to file suit, and who have never been involved in a lawsuit before, are unaware of the timeline or sequence of events involved in a lawsuit. Depending on the family’s unique circumstances and the complexity of the legal issues involved, an airplane accident case can take a long time. That is why it is important to consult with an attorney who has done this type of work before, because he or she will be able to push the case forward without having to learn what to do in the process. It is important to note that bankruptcy issues and settlement considerations can lengthen or shorten the lawsuit duration drastically. And although a lawsuit is not an instantaneous event, it is sometimes the necessary and proper course of action.
  4. Justice – It is important to realize that no amount of damages or money will ever bring back your lost loved one. The justice system attempts to reduce your strain financially and to compensate you with awards, but this will never completely replace the loss you have sustained. Some awards include punitive damages, which are given in an attempt to “punish” the wrongdoer and deter others from engaging in a similar course of conduct that could result in another devastating crash. Sometimes the lawsuits can bring about change in the industry, such as conducting more research on a certain faulty component part, spurring the adoption of more federal regulations, or, at the very least, raising public awareness about the issue. As a plaintiff, you must realize and understand the limitations of the lawsuit and what it can or cannot accomplish.
  5. Treatment by Others – Losing a loved one can be the most difficult time in your life, especially during the initial stages of the grieving process. Each family member deals with the loss of a loved one differently. Those outside the family/friend unit may not understand what you’re going through, and will not understand why you just can’t “get over it.” While some can be judgmental of how you are dealing with the loss, others will see your loss as an opportunity. A sad observation by one of my clients is to beware of those “relatives” you never knew of, who coincidentally appear after the accident to “help” you, but whose intentions are not so altruistic (i.e. they heard about the accident, and believe that you will be entitled to a million dollar award). It may seem common sense, but these individuals are only interested in the lawsuit and should be avoided. As time wears on in the suit, they will most likely lose interests and disappear. This is why having a solid support structure is so important to dealing with the loss and with the effects a lawsuit may have. Common sources are family, friends, church or community groups, or professional counseling. A grief counseling program called ACCESS (AirCraft Casualty Emotional Support Services) is a group designed to deal exclusively with airplane crashes. This program matches you with a mentor (someone who has experienced a similar loss through a plane crash) and helps you track and progress through the grieving process. Visit for more information on their programs and services.