Pilot Counsel

Flight instructor liability

August 1, 1999

A hot issue at recent flight in-structor certificate revalidation courses is the legal liability of the flight instructor. It seems that flight instructors are becoming more and more aware that they could be sued, not only for something that happens during the flight instruction period, but also for something that happens afterward — something that somebody could say was caused by faulty flight instruction given earlier. The amounts of money involved could be staggering. To flight instructors, it's a scary prospect.

It is now becoming a concern to all of general aviation. We are losing many highly qualified and highly motivated flight instructors. Many of these are people who have been successful in life and have built up a nest egg — people such as retired airline captains and even doctors, lawyers, and other professionals. They want to continue to give of their talents, but they are having trouble justifying the risk.

So far, the threat has been just that — a threat. The actual liability imposed on individual flight instructors has not been significant. But that is changing.

Why hasn't it been significant? There has been a very practical reason. As any flight instructor will be quick to tell you, it is not the most financially rewarding profession in the world. While we have in this country a tort system that many believe is out of control, the plaintiff lawyers — who typically handle death and personal injury cases on a contingent-fee basis — go after only the "deep pockets." The contingency is that if there is no recovery, the lawyer gets no fee; if there is a recovery, the lawyer gets a percentage of the recovery as a fee. Plaintiff lawyers are not about to take cases in which there is not a reasonable prospect that they will be paid for their time and trouble. Individual flight instructors historically have not had "deep pockets."

As a result, there have not been many suits against individual flight instructors. Sure, there have been suits against flight schools and fixed-base operators based on the alleged negligence of their flight instructors. In these cases, the flight instructor's negligence is imputed to the employer, who ordinarily has liability insurance. The insurance companies defend these suits and pay any judgments and settlements, typically without any contribution by the flight instructor.

This situation is changing for two major reasons. One is that more and more flight instructors are getting insurance to cover their flight-training activities. While that is good for many reasons, it does now make instructors more attractive targets for claims. But that by itself is not enough to account for the change. The other major reason is that one of the prime targets of claims coming out of general aviation accidents has a new shield. The prime targets have been the manufacturers of general aviation aircraft, engines, and components. In 1994, the General Aviation Revitalization Act was passed. As a result, these manufacturers now have a federal statute of repose to help protect them against liability for older aircraft. The law cuts off claims against a manufacturer for design defects in aircraft older than 18 years. These older aircraft comprise most of the general aviation fleet. Plaintiff attorneys handling the crashes of these older aircraft will be sighting in on other targets.

So, given the prospect of more claims, what is the legal liability of a flight instructor? There are not many reported court decisions, and the ones that there are involve suits against FBOs and flight schools. Nevertheless, it is easy to draw from these cases, as well as the general law, that a flight instructor has significant potential liability.

This area of the law is governed by the law of each individual state, so there could be some variation; but here are some general principles. This area of the law falls under the general classification of torts. A tort is a civil (as opposed to criminal) wrong, other than a breach of contract, for which the court will provide a remedy in the form of an action for damages. The tort usually involved in the flight instruction situation is negligence. There are other torts. For example, negligence is distinct from intentional torts (punching somebody in the nose) and from torts for which strict liability is imposed (e.g., the product liability of a manufacturer). Under the law of negligence, the law imposes on each person a duty to exercise "due care" to protect others from unreasonable risk. In the flight instruction situation, an instructor owes this duty of care to his student and others. If the instructor fails to exercise due care, the instructor is negligent and is liable if the negligence causes damage. An instructor's FBO or flight school can be, and usually is, held liable for the instructor's negligence. There are sometimes defenses, such as the contributory or comparative negligence of the person making the claim.

Here are some factual situations from reported cases in which a flight instructor's negligence was alleged. In one case, an instructor and his FBO were held to be negligent when a presolo student fell into a propeller while alighting from the training airplane. In another, a flight school was found to be negligent when a student on a solo flight crashed after failing to discover that the rear control stick of his airplane was tied back with a seat belt. Still another case involved a student and his instructor who were killed in a wake-turbulence accident; the instructor and the FBO (and air traffic control) were found to be negligent because the instructor failed to delay the takeoff to allow the wake turbulence to dissipate.

But the flight instructor and his employer are not always found to be negligent. An instructor was found not to be negligent in a case in which a student crashed after letting his airspeed get too low on approach. After the instructor tapped the airspeed indicator, the student pushed the stick forward abruptly. The aircraft crashed before the instructor could recover it. The court found that the instructor had not been negligent in failing to issue a verbal warning, or in failing to take control sooner. Finally, a flight school was found not to be negligent for the crash of a student on his first solo cross-country flight. The flight school was sued for allegedly sending the student on a cross-country when he wasn't ready. The court disagreed, finding that the student had been properly prepared.

These cases suggest many other situations in which negligent flight instruction could be claimed. Even in these cases where the flight instructor and the FBO/flight school prevailed, you can expect that there were significant defense costs involved, and that the results were not very predictable — especially before a judge or jury unfamiliar with general aviation.

It is an inevitable part of life, or at least part of modern American culture, that almost any time there is an accident involving injury or death, there will be a lawsuit against someone who appears to have insurance or the wherewithal to respond in damages, however tenuous the basis for the suit.

Flight instructor liability insurance, a rarity in the past, is becoming increasingly popular. Flight instructors are asking more questions about their protection under the liability insurance carried by their employers. Freelance flight instructors are asking questions about their protection under the liability provisions of the insurance on the aircraft in which they are instructing. Potential liability is a fact of life that is catching up with flight instructors. Flight instructors are legitimately concerned.

Flight instructor liability insurance is available from the AOPA Insurance Agency. For more information, call 800/622-2672 or visit the Web site ( www.aopaia.com). — Ed.

John S. Yodice