April 1, 2005
By John S. Yodice
AOPA General Counsel John S. Yodice has been reporting on aviation law for more than 30 years.
Tort reform is much in the news these days. There are reports of legislation being proposed to control so-called "junk" lawsuits, both nationally and locally. Prominent examples are the news accounts of legislation limiting medical malpractice lawsuits, and rising insurance premiums, that are driving doctors out of the practice of medicine. There are others.
Well, we in general aviation have already had our first round of tort reform. It has been more than 10 years since the enactment of the General Aviation Revitalization Act that gave us a federal statute of repose. General aviation tort reform in the form of a statute of repose can be pretty arcane stuff. It is more easily appreciated if we can see it in action in an actual case. So, here goes.
This case arises out of the crash of a Cessna P210 on approach to landing at the Phoenix Deer Valley Airport in Arizona. The pilot and his wife were killed. On investigation, the cause of the crash seemed evident. The fuel selector handle was found turned to the right wing tank, which was empty. There was fuel remaining in the left wing tank.
The inevitable lawsuits followed the crash. An Arizona appellate court's disposition of these lawsuits is a good illustration of the statute in action and the typical legal issues that are raised in such cases. The guts of the statute essentially bar tort claims based on any design or manufacturing defect in a general aviation aircraft that is more than 18 years old. The theory is that after 18 years of use, any design and manufacturing defects would most likely have manifested themselves, what with annual and more frequent airworthiness inspections, the FAA program of collecting and analyzing maintenance and defects (M&D reports) by aircraft make and model and equipment, the FAA's penchant for issuing airworthiness directives (ADs), and so forth.
The Cessna P210 in this case was manufactured and delivered to its first purchaser in 1980, more than 20 years before the accident. Even though beyond the 18-year period of repose, lawsuits were brought charging that the Cessna's fuel system was defective. The suits attempted to avoid the effect of the statute by taking advantage of the limitations and exceptions of the statute, and even challenging the statute on constitutional grounds. Cessna defended on the basis that the period of the statute of repose had expired.
Here are the facts underlying the allegedly defective fuel system. The pilot's operating handbook for the airplane stated that its fuel capacity was 90 gallons, and the usable fuel was 89 gallons. This information was published in the original 1979 pilot's operating handbook. It was never revised. Apparently there were some fuel management problems, because in 1985 Cessna published its "Pilot Warning and Safety Supplements" as part of a general booklet for multiple models of Cessna aircraft. With respect to fuel issues, the supplements said that for fuel selection on approach or landing for "Cessna single-engine airplanes, the fuel selector has Left On or Right On positions, and takeoffs and landings are to be accomplished using fuel from the fuller tank." It was some years later, in 1994, that the FAA issued an AD for this model Cessna, apparently addressing the same or similar problem. It required owners to recalibrate the fuel tanks and gauges, or to install placards warning that the gauges had not been recalibrated. The AD added to the flight manual that "whenever more than 75 gallons of fuel are needed" for a flight, the pilot should visually confirm that the tanks are full and should visually inspect the fuel caps for fit and spills.
The claimants tried to use this fuel "problem" history to take advantage of the "rolling" repose period in the statute. Rolling means that a new 18-year period begins for any new component or part whenever it is added to the aircraft. So a product liability action is not barred if a newly added component or part was defectively designed or manufactured, and it caused personal injury or property damage during the new 18-year period. The claimants tried to take advantage of an earlier precedent from another jurisdiction that held that a revised flight manual could qualify as a new component or part for purposes of re-triggering the repose period. Whether a flight manual should be considered a component or part under the statute is still very much in dispute. This court did not decide this contentious issue. Instead it held that, even assuming that the AD qualifies as a flight manual revision, there was no evidence that Cessna made the revision, or that the revision caused the accident. The court held that it was the FAA, and not Cessna, that issued the AD. Cessna merely complied with the law. Furthermore, the actual language of the AD did not change the usable and unusable fuel statements in the pilot's operating handbook. Absent a change in these numbers, there is nothing to trigger the rolling repose period.
Furthermore, there is no evidence as to how the AD could have caused the accident. The claimants argued that Cessna originally told pilots that 89 gallons of fuel was available, but revised that figure to 75 gallons. The court rejected the argument, saying that the claimants failed to explain how warning a pilot not to trust that the last 14 gallons would be available caused a pilot to assume that more fuel was available.
The claimants also tried to take advantage of Cessna's issuance of the supplements, saying that it triggered a new repose period. This argument was also rejected by the court — the supplements do not qualify as an airplane component. They are not part of the flight manual. According to the court, even the precedent from the other jurisdiction that a flight manual could be considered to be a component, only considered it to be an aircraft component when it is specific to that aircraft and not a "general instruction guide" as the supplements are. And, in any event, the court said, the claimants did not explain how the supplements could have caused the accident.
The statute of repose has two exceptions that were involved in this case. The first is that the statute does not apply if the manufacturer knowingly misrepresented required information to the FAA, or if the manufacturer knowingly withheld or concealed such information from the FAA, and the misrepresentation or omission caused the harm. The claimants attempted to take advantage of this exception by arguing that Cessna withheld from the FAA required information about the fuel delivery system. They argued that the aircraft type certificate states that the Cessna P210 contains 90 gallons of fuel, 89 of which is usable, and this is a misrepresentation. But the claimants were unable to produce any credible evidence that at the time Cessna knew or should have known that this representation was wrong.
The second exception allows suits to be brought under a written warranty even if the period of repose has expired. The claimants argued that the written warranty exception to the statute of repose applied. The only written warranty associated with this aircraft "warranted the aircraft's components for a range of six months to 12 months (depending upon the component)," and excluded all other express or implied warranties. Fairly typical of a new airplane warranty. The court noted that the warranty expired long before the accident, and the implied warranties that the claimants attempted to rely on were expressly excluded. This argument, too, failed.
Lastly, the claimants alleged that the federal statute of repose is unconstitutional. They claimed that it is an invalid exercise of commerce clause power, violates the Tenth Amendment, violates the equal- protection and due-process clauses, impermissibly prevents free access to the courts, and violates the Arizona Constitution. The court analyzed each of these claims in turn, and found that the statute passes constitutional muster.
In the end, all of the claimants' arguments failed. The lawsuits were dismissed. While other cases can, and do, reach different results depending on their fact situations, nevertheless this one case does present most if not all of the classic legal arguments that are made and litigated in general aviation product liability cases that involve the federal statute of repose. This case provides an unusual bird's-eye view of tort reform in general aviation, at a time when more generalized tort reform is in the news.
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