December 1, 1992
By John S. Yodice
Product liability is a continuing problem to general aviation. We have written about it in terms of the overall problem and the conflicting interests that we have as aircraft owners and pilots. On the one hand, we want a fair compensation system for persons who may be injured or damaged by aviation products — usually aircraft owners and pilots and their families and friends. On the other hand, we would like to have the continued availability of aircraft and parts at reasonable cost, and product liability is driving the manufacturers out of business and driving up the costs of products. But we haven't written too much about individual cases.
A product liability case now working its way through the court system is gaining a lot of attention. There has already been one jury trial, a number of appeals, and the prospect of a second jury trial. The facts of the case and some of the law and procedure are interesting and, potentially, precedent-setting.
The case is a compelling one because the pilot sustained very serious injuries, including massive head injuries and permanent brain damage, in the accident that led to the lawsuit.
The accident happened in 1983 at a residential airpark in New Mexico. The pilot was attempting a takeoff in his Piper Super Cub, towing a sailplane. In the takeoff, the Cub struck a GMC van intentionally parked on the runway by the airpark owner to prevent the takeoff. Apparently, there was some feud going on between the airpark owner and the sailplane operators because of alleged safety violations.
The reason for the flight was to photograph the sailplane for a television commercial. The pilot had the front seat removed (which had a shoulder harness — more about that later) and installed in its place a large movie camera on a camera mount. The camera was mounted in such a way that the cameraman had to sit on two-by-fours facing rearward toward the camera, with his back against the instrument panel. The pilot sat in the rear seat, which had no shoulder harness.
When the Super Cub struck the van, the pilot's body jackknifed forward and his head hit the camera mount. The camera operator was not seriously injured.
The pilot and his wife first sued the van driver for the pilot's injuries. That case was settled for $600,000. The pilot and his wife then brought a product liability lawsuit against Piper Aircraft Corporation. They alleged that Piper was negligent in the design of the Super Cub for two reasons: one, that the Super Cub had inadequate rear-seat forward visibility during takeoff, which caused the collision, and two, that the injuries were caused by the lack of a rear-seat shoulder harness.
At a trial in May 1986, a jury brought in a verdict in the amount of $2.5 million. At the request of the injured pilot's lawyer, the jury was asked to make two separate allocations of fault: first, among the persons responsible for the collision (called "the original tortfeasors"), and second, among the persons responsible for the lack of a shoulder harness (called "the crashworthiness tortfeasors"). The jury decided that the collision was 42.5 percent due to the injured pilot, 41.7 percent to Piper, and 15.8 percent to the person who had approved the alterations to the cabin of the Super Cub to install the camera (that person also was the sailplane pilot). The shoulder harness fault allocation was 8.4 percent to the injured pilot and 91.6 percent to Piper. The jury decided that the van driver had no fault for the pilot's injuries. The injured pilot's lawyer argued that judgment against Piper should be entered for 91.6 percent of the $2.5-million verdict. But the trial court granted judgment against Piper for only 41.7 percent.
Both sides appealed. The appeal court reversed the judgment and sent the case back to the trial court for a new trial, which would permit the jury to find in one "special verdict form" the negligence of the parties and nonparties, whether original or crashworthiness tortfeasors.
Prior to the new trial, Piper asked the trial court to dismiss the case on the basis of federal preemption. Piper argued that a jury should not be permitted to find that the design of the Cub was negligent because the Cub met all of the FAA design requirements, including those relating to pilot visibility and seat restraint systems.
The trial court rejected this argument, and Piper again appealed. That appeal is now pending. The new trial is awaiting the outcome of the appeal.
On appeal, Piper again is urging that federal preemption is a bar to the pilot's claims of negligent design.
In its appeal brief, Piper addressed the alleged defectiveness of the tailwheel design by tracing the history of the Cub and of the tailwheel design.
The Cub came on the scene in 1937 when Piper introduced the J-3 model, which used what was then the standard tailwheel design and had two tandem seats with flight controls at each seat. More than 14,000 of these J-3 Cubs were manufactured and sold from 1937 to 1947. Beginning in 1940, the L-4 Cub, a military version of the J-3 Cub, was manufactured by Piper, and nearly 6,000 of them were produced and extensively used during World War II as trainers, artillery spotters, transports, ambulances, and reconnaissance aircraft. Thousands of pilots received their initial flight training in these airplanes. And, of course, most of the aircraft in use before and during World War II had tailwheel designs, including fighter and bomber aircraft on both sides. The tailwheel is still called the "conventional" gear because it was used on most aircraft models until after World War II.
In 1949, Piper began manufacturing the PA-18 Super Cub. It has the same basic design as the J-3 and L-4 Cub models, with a tailwheel and two tandem seats. Some 10,000 Super Cubs have been built and sold.
The Super Cub involved in this case was manufactured in 1970. At that time, it met FAA design, manufacturing, and production standards and requirements for safe operation, including the tailwheel design. It was issued an FAA airworthiness certificate.
Piper in its brief on appeal argues that "The CAA and the FAA, the federal agencies responsible for aircraft safety, have never considered tailwheel aircraft with their limited preflight forward visibility unsafe nor have these agencies ever believed there was anything wrong or dangerous with the Cub's or Super Cub's tailwheel design or with pilot operations from their rear seats. The CAA and FAA have also been responsible for pilot training and certification, including the instruction given to tailwheel aircraft pilots in how to see that the runway is clear for takeoff and the technique utilized in ground maneuvers which readily overcome[s] the preflight forward visibility limitation."
The lawyers for the injured pilot argue against federal preemption. Recovery for personal injuries due to negligence or product defects has traditionally been a matter of state, not federal, law. That includes injuries arising from air crashes or aviation products. In enacting the Federal Aviation Act, Congress never intended to take this away from the states, plaintiff's lawyers said.
The arguments on both sides about the lack of a shoulder harness run the same general course. The injured pilot's lawyers argue that Piper built the airplane in 1970, using a 1956 design, and delivered it to its owners without shoulder harness strapping (though admittedly having a shoulder harness in the front seat at the time of the accident and attachment points for a shoulder harness in the rear seat). There are 2,000 to 5,000 aircraft crashes each year, and Piper should have known that someday, somewhere, somehow its airplane would crash, the lawyers said. By 1950, federal aviation design guidelines urged shoulder harnesses, and in 1964, the National Transportation Safety Board issued a similar guideline. Both NACA (now NASA) and Piper itself conducted tests that confirmed the value of shoulder harnesses. But for the lack of a shoulder harness, the pilot would not have been injured, the injured pilot's lawyers argued; Piper should have manufactured the airplane with a rear-seat shoulder harness. On July 28, 1983, 14 days after this accident, Piper issued a service bulletin recommending Super Cubs built before 1982, which included the accident airplane, be retrofitted with shoulder harnesses.
Piper argues that the Super Cub involved in this case was never required to have shoulder harnesses. However, all Super Cubs have attach points so that shoulder harnesses can be readily installed in both front and rear seats at the time of sale at the option of the buyer or later by any subsequent owner. The initial owner of this Super Cub did not want any shoulder harnesses, and therefore, none were installed by Piper. A subsequent owner some years later installed a shoulder harness in the front seat.
Shoulder harnesses were first addressed in aviation regulations in 1969 when the FAA required that, for newly type-certificated aircraft, shoulder harnesses were one of three ways to meet a new requirement to protect the head and upper body. Of course, this new requirement did not apply to the Super Cub, which was already type certificated. In 1977, shoulder harnesses became required for front seats only on small aircraft manufactured after 1978. The FAA specifically declined to mandate rear- seat shoulder harnesses, preferring that the decision whether to install shoulder harnesses in small airplanes then in service or in seats other than front seats should be left to the option of the owner of the airplane. In 1985, the FAA required shoulder harnesses in all seats in all small aircraft manufactured after 1986.
And so the arguments go.
In April of this year, AOPA filed a brief amicus curiae (friend of the court), contending that "in the particular circumstances of this case, involving an aircraft design certified by the Federal Aviation Administration and proven over a long history of safe flying, plaintiff's product liability claim based on an alleged failure of the manufacturer to exceed federal design and safety requirements is preempted by paramount federal law and regulation in the field of aircraft design and safety."
AOPA expressed the concern that, without federal preemption, juries across the land could, in effect, require the redesign of aircraft whose design has been approved by the FAA. Juries redesigning aircraft is not a good thing.
The United States, presenting the views of the FAA, also filed a brief as a friend of the court, arguing in favor of federal preemption, as did the General Aviation Manufacturers Association. The Association of Trial Lawyers of America submitted a brief arguing the contrary.
It will be interesting to see how the court decides the appeal and how the case is ultimately resolved.
A state-of-the art medical facility on remote Tangier Island in the Chesapeake Bay serves as a lasting memorial to the late Dr. David B. Nichols’ dedication to providing medical care to the community for 30 years. Now, Nichols’ aviation legacy—flying a Cessna 182 or Robinson R44 to the island every Thursday to provide that care—is set in stone.
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