March 1, 1992
By John S. Yodice
We are often asked by members to supply sample liability release forms — something a passenger can sign that would protect a pilot or an aircraft owner from legal liability to the passenger in the event of a mishap. The technical name for such a document is "a covenant not to sue."
AOPA will furnish a sample form because it could help. But we do so with the warning that, even if it is knowingly and willfully signed, there is no way to determine in advance if it will be effective. We strongly urge that the member carry adequate aircraft liability or nonowner insurance.
It seems reasonable that a person about to accept a free ride in a private aircraft should be able to voluntarily agree in advance not to sue the host. In theory, the law will recognize such an agreement. But as we will see, it is dangerous to rely on this legal theory. In practice, the courts will bend over backwards to avoid the effect of such an agreement.
A recent decision of the Alaska Supreme Court reminds us of how far a court will go to strike down a liability release form. It teaches us that we should not rely on even a carefully drafted and executed form.
Our case involves a major in the U.S. Air Force who was a member of an Air Force Aero Club. He invited three friends to fly with him in a club airplane to a nearby lake for a fishing trip.
Air Force Aero Clubs are strictly controlled. While club members are authorized to fly with nonmember civilian passengers, Air Force regulations prescribe procedures to assure the safety of the flight and, incidentally, protection from liability. One of the requirements is that a passenger must sign an Air Force form called a "Covenant Not To Sue and Indemnity Agreement." As you would expect, this is a good form, well drafted by Air Force lawyers. In clear, simple English, the passenger agrees not to bring a claim against the government or any aero club member "for any loss, damage, or injury to my person or my property which may occur from any cause whatsoever as a result of my participation in the activities of the Aero Club."
Under the direction of the club's supervisor of flying, each of the major's passengers completed, signed, and dated the agreement. The supervisor also, in the presence of the passengers, checked on the major's piloting qualifications and reviewed with him the flight plan and the weather.
The flight then departed, and under circumstances not explained in the decision, the airplane crashed into a mountain. The major and his passengers were killed. The inevitable lawsuits dealing only with claims against the pilot followed. The widows of the passengers sued the estate of the major for the wrongful deaths of their spouses.
An issue in these lawsuits was the validity of the agreement not to sue the pilot. The trial court ruled that the agreement was not effective. The court struck it down because it was "ambiguous." The court seized upon the fact that even though the term "injury to my person" was present, the word "death" was missing from the agreement. Therefore, it was ambiguous and must be interpreted to exclude death.
An appeal was taken to the Alaska Supreme Court, which affirmed the trial court, using the same reasoning. One justice dissented, saying: "I am incredulous that the phrase 'any loss, damage, or injury to my person or my property' can be construed ... to exclude death."
The decision subjected the pilot's estate to potentially millions of dollars in liability. The decision does not tell us what ultimately happened.
The hidden danger of the decision is that it could mislead one into believing that, if the word "death" had been included (as it is in the AOPA form), the agreement not to sue would have been valid. I read in-between the lines and find a different message. I believe that even if the word "death" had been included, the court would have struggled to find another basis to avoid the agreement.
For example, the court cited a New York case involving a similar agreement that did contain the word "death." Different result? No, the New York court "refused to give effect to releases of this kind where the injured plaintiff had not received a gratuitous benefit from the defendant." The deceased passenger had been hired by the Air Force to write a script for a recruiting film, and the Air Force suggested that he fly on military airplanes to gather information.
It also cited another case involving the Massachusetts Death Act and an agreement similar to the aero club's except that it included "death." For some unexplained reason, that agreement was not recognized either. So the inclusion of the word "death" did not automatically lead to a different result.
The real meaning of the decision for aircraft owners and pilots is that we should not rely on the use of a liability release form. As reasonable as it seems that a competent person should be able to waive his or her right to sue for personal injury for what might be deemed after the fact to be carelessness, our judicial system is just too unpredictable and too inclined to impose liability.
Kissick v. Schmierer, Alaska Supreme Court, August 23, 1991.
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