aviation law
Tomm.
Aviation_Law_Ch_92020_Fall_.pptChapter Nine
Government Liability
Chapter Nine
Government Liability
In Civil Law Countries: like France
- Only the Legislature or Executive is a source of law
- There are generally no jury trials
- Trial is conducted by a judge or a panel of judges
Chapter Nine
Government Liability
In Common Law Countries: like the US
- Judges add to, interpret, change, or create law
- Jury trials are “common”
- The US inherited common law in 1776 from Great Britain
- Won independence from Great Britain, but
- Kept the same judicial process
Chapter Nine
Government Liability
Common Law
- Sovereign immunity
- Part of Great Britain’s common law
- The sovereign can do no wrong
- Citizens could not sue the government
Chapter Nine
Federal Tort Claims Act (FTCA)
- Sovereign immunity incorporated into common law
- Remained part of U.S. law until after WWII
- Citizens could not sue the government
- FTCA passed into law in 1946
- Government employees required to exercise:
Ordinary degree of care
Of a reasonably prudent person
Federal Tort Claims Act
Liability, generally
- U.S. government is vicariously liable for negligence of federal employees
Acting within the scope of their employment
Just as a private company would be liable for its employees
- Citizens can sue their government
Federal Tort Claims Act
Exceptions
Geographic Limitations
- Excludes claims arising in a foreign country
- Sovereign country’s laws rule
- Treaties and agreements
- Status of Forces agreements between nations
Federal Tort Claims Act
Exceptions
Combatant Activity
- Any claim arising out of combatant activities, or
- Military actions during times of war
- Suits brought for activities conducted during war time
- Barred by the doctrine of sovereign immunity
Federal Tort Claims Act
Exceptions
Activities Incident to Military Service
- If negligent conduct of a government employee
- Caused Damage, Injury, or Death, and
- The person suffering was engaged in,
- An activity incident to their military service
- Government is not liable
Federal Tort Claims Act
Exceptions
Discretionary Function
- If negligent conduct of a government employee
- Performing a discretionary function
Planning and policy making
Does not subject the federal government to liability
- Negligent operational decision making may expose the federal government to liability
Federal Tort Claims Act
Exceptions
Intentional Torts
- Tort
An action or a failure to take an action
Resulting in Damage, Injury, or Death
- Government is not liable for intentional torts committed by its employees
- Federal employees are not immune to personal liability having committed an intentional tort
Federal Tort Claims Act
Exceptions
Punitive or Exemplary Damages
- Federal government is not subject to punitive or exemplary damages
Cannot be forced to make payment as a means of punishment
Cannot be forced to make payment to set an example
Federal Tort Claims Act
Liability for Negligent Air Traffic Control
- Discretionary functions not acceptable defense
Not involved in planning/policy making decisions
ATC makes operational decisions
- ATC negligence leading to an accident subjects Federal government to liability
Federal Tort Claims Act
Liability for Weather-Related Accidents
- FAA Flight Service Stations (FSS)
Operated by a government contractor
Not subject to FTCA
- Incorrect weather reporting by government employees has subjected the government to liability claims
Federal Tort Claims Act
Liability for Weather-Related Accidents
- Flight crew must continuously exercise judgment in the face of changing conditions
- Incorrect weather reporting does not relinquish this responsibility
- Flight crew also rely upon their observations
Federal Tort Claims Act
Liability for Weather-Related Accidents
Superseding or Supervening cause
- Flight crew receives a weather report favorable to their planned route, and they depart
- Enroute they observe a significant deterioration in the weather along their route
- Flight crew continues along their planned route
- Bad weather is the probable cause of their accident
Federal Tort Claims Act
Liability for Weather-Related Accidents
Comparative Negligence
- If ATC provides bad information, and
- Flight crew neglects to exercise professional judgment, and
- The resulting accident was caused by:
ATC’s bad information, and
Flight crew failure to use professional judgment
Federal Tort Claims Act
Liability for Weather-Related Accidents
Comparative Negligence (continued)
- Then both parties are at fault
Trial judge will apportion liability
Between those responsible for the accident
Federal Tort Claims Act
Liability for Negligent Airworthiness Certification
Type Certificate
- Design proven to conform to certification standards
- Intensive process taking a significant amount of time
- FAA issues Type Certificate for that design
Federal Tort Claims Act
Liability for Negligent Airworthiness Certification
Production Type Certificate
- Manufacturer capability to duplicate the design
- FAA issues a Production Type Certificate
- Process runs in parallel with type certification
Airworthiness Certificate
- Each aircraft produced is inspected and tested
- Must conform to all type certificate criteria
- FAA issues Airworthiness Certificate for each aircraft
- Must be on public display in the aircraft
Federal Tort Claims Act
Liability for Negligent Airworthiness Certification
Federal Tort Claims Act
Liability for Negligent Airworthiness Certification
Supplemental Type Certification (STC) and/or
FAA Form 337
- Changes, modifications after aircraft enter service
- Improvements and/or upgrades
- EASA have become very skeptical of FAA STC process
Federal Tort Claims Act
Liability for Negligent Airworthiness Certification
- FAA employees engaged in the certification process
- Are not performing a discretionary function
- Following written standards, orders, or handbooks
- Do not have discretion to deviate from those documents
Federal Tort Claims Act
Liability for Negligent Airworthiness Certification
- Aircraft, parts, components, equipment
- Must conform to FAA standards
- The “minimum” standard for certification
- Strict liability may apply for delivery of substandard aircraft, parts, components, equipment
Federal Tort Claims Act
Administrative Claim Prerequisite to Suit
- Administrative remedy must be exhausted before seeking judicial relief
- Claimants must file an administrative claim
With the federal government
Await decision on the claim
Before filing a lawsuit
Federal Tort Claims Act
September 11, 2001 Claims
Victims Compensation Fund
- Protected federal government
- From almost all legal claims
- By victims of the September 11, 2001 terrorist attacks
Federal Tort Claims Act
Personal Liability of Federal Employees
- In most cases,
Federal employees are protected against personal liability
For the consequences of their on-the-job negligence
- The U.S. government becomes the defendant
- Any settlement is paid by the U.S. government
- In private industry, both the company and employee may be held liable for employee on-the-job negligence
Federal Tort Claims Act
State and Local Government Liability
- Doctrine of sovereign immunity may still apply
- Most states adopted legislation similar to the FTCA
- No standards between states
Chapter Nine
Workbook Questions
Compare and contrast the vicarious liability of the federal government for the consequences of torts committed by its employees with the same liability of employers in the private sector.
Compare and contrast the personal liability for the consequences of torts committed by individual federal employees with that of individual employees in the private sector.
Chapter Nine
Workbook Questions
A fighter pilot experienced an engine failure on takeoff from an air base in Afghanistan and was killed when the aircraft’s ejection seat failed to function. His spouse asks whether she might be able to successfully sue the federal government or anybody else for the fighter pilot’s death. Analyze the potential legal liabilities for each of the following causation scenarios, showing your reasoning.
The ejection seat failure was determined to have been caused by a design defect incorporated in the specification provided to the manufacturer by the United States (US).
The failure was determined to have been caused by an assembly line worker in the ejection seat manufacturer’s plant who assembled the trigger mechanism incorrectly.
Chapter Nine
Workbook Questions
You are an air traffic controller (ATC) employed by the Federal Aviation Administration (FAA). An aircraft crashes in your operational sector, and an attorney for persons injured in the crash sues you personally for negligence, claiming that the instructions you gave the pilot caused the crash. Will the U.S. attorney help you? How?
What is a discretionary function? What other kind of exercise of judgment is there? Distinguish between them.
What difference does it make whether a government employee’s activities alleged to have contributed to cause an aircraft accident were a discretionary function or not?
Chapter Nine
Workbook Questions
A midair collision occurs within Class D airspace at a local airport with a federally operated control tower. Visibility at the time of the accident was three miles (marginal Visual Meteorological Conditions [VMC]). Both aircraft had radioed the tower minutes before the collision, each reporting similar positions. Each obtained landing instructions from the tower. Air traffic control warned the second aircraft that another aircraft had reported inbound from the same area. The aircraft were not yet visible to ATC when the collision occurred. A tower controller later stated: “I told Washington months ago that we needed radar at this tower and that if we didn’t get it pretty soon, there was probably going to be a midair collision. If only we’d had radar, we could have kept those planes apart.” Can the survivors of the people who died in the collision reasonably hope to successfully sue the federal government for the FAA’s negligence in not installing air traffic radar at this airport? Explain.
Chapter Nine
Workbook Questions
During night operations under VMC at a busy airline hub having a federal control tower, ATC clears a regional airliner to line up and wait preparatory to take of on runway 26R (Taxi into position and hold). The aircrew acknowledges and taxis onto 26R, halting in position for takeoff. Distracted, ATC forgets about the regional airliner and clears a jumbo jet to land on the same runway. The larger airliner lands on top of the waiting regional airliner. Both aircraft are destroyed. Numerous injuries and deaths result.
Who is potentially liable, and why?
If more than one person or entity is found legally liable, how will the responsibility to pay the plaintiff’s damages be apportioned? Describe.
Chapter Nine
Workbook Questions
Is the US liable for negligence of a FAA Designee, such as an Aviation Medical Examiner (AME), Designated Airworthiness Representative (DAR), Designated Engineering Representative (DER), Designated Manufacturing Representative(DMR), Inspector Authorization (IA), or an Organization Designation Authorization (ODA)?
An ATC is going through a bitter divorce. One dark and stormy night the ATC realizes that among the aircraft he’s controlling is a private jet owned by the man who stole the affection of his wife and that she is among the passengers in that aircraft. In a fit of anger and jealous rage, the ATC deliberately gives the jet a series of vectors intended to confuse the crew’s situational awareness before putting them on a course at an assigned altitude that causes the aircraft to collide with an obstacle. No survivors! Will the US be held liable for the controller’s actions?
Government liability
Sovereign Immunity.
Federal Tort Claims Act (FTCA) 1946
Permits the U.S. government to be sued and be liable for actions of its employees in the scope of their employment if a private employer would be liable under the same circumstances.
(With some exceptions)
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1946 Federal Tort Claims Act -- Exceptions
The federal government is immune from liability for damage caused by military combat in times of war.
The federal government is not liable for damage caused by the intentional acts of government employees.
The federal government is not liable to military members who are injured through the negligence of other federal employees. (Ferres Doctrine).
The federal government is not liable for damage caused by acts or omissions within the discretionary function of a government agency or employee.
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Government Contractor Defense
Manufacturers who produce military equipment under government contract are protected from liability for injury caused by the product if:
The government provided or approved reasonably precise specifications.
The product was manufactured in accordance with those specifications.
(The defect at issue was a design defect, rather than a manufacturing defect.)
3. The manufacturer warned the government of any dangers in the use of the product known to the manufacturer and not to the government.
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