Pilot Counsel

Liability release forms

September 1, 2007

John S. Yodice is AOPA's legal counselor.

The liability that could result from the operation of a general aviation aircraft is something that concerns us all. So it is not surprising that one of the most frequent legal questions posed to me by pilots and aircraft owners is the effectiveness of so-called "liability release forms." They are also sometimes called "covenants not to sue," and in the case we are reporting, called "an exculpatory agreement." AOPA Online contains a sample passenger liability release agreement (along with important cautionary language about its use) that resulted from numerous member requests.

We dealt with this topic some years ago (see " Pilot Counsel: A Current Case," March 1992 Pilot) reporting a decision of the Alaska Supreme Court. That decision refused to give effect to a "Covenant Not To Sue and Indemnity Agreement." The Alaska court struggled mightily to find a reason to avoid the intended effect of what appeared to be a well-drafted agreement. The Alaska court went to great lengths to construe the language, "any loss, damage, or injury to my person or my property" to be ambiguous and unenforceable because it did not specifically mention "death." I am convinced that even if the word "death" had been included, this result-oriented court would have found another tenuous reason to avoid the parties' agreement. This case is a perfect illustration of the general legal principle that exculpatory agreements are not favored by the courts and are strictly construed against the party they are intended to protect. It seems to me as an interested observer, that while the potential for liability has remained relatively constant over the years, the effect given to such agreements by the courts has run in cycles. The effect has even varied among states, since tort law is a matter of state law, but even in the most liberal states, it seems to have been cyclical.

So I am happy to report a recent Illinois case that represents what I view as an upswing in recent times in the cycle toward more favorable results. This case arose from a midair collision that occurred during an aerobatic practice session of a well-known airshow-performing formation flight team. It was during a "pop-top" break in a six-aircraft delta formation, that two aircraft came into contact, causing a crash that killed one pilot. A lawsuit was brought by the estate of the deceased pilot seeking damages for the death of the pilot. The principal defendants were the pilot of the other colliding aircraft, who survived the crash, and the flight team members. There were others, including the flight team corporation. The case raises a number of complex legal issues, but I report on only one — the effect of an exculpatory agreement signed by the deceased pilot. It reads:

"Release/Hold Harmless — The undersigned Holder/Applicant of /for the X Wingman, _____ Leader, _____ Check Pilot formation Qualification Card hereby acknowledges, and attests to that he/she is an active member of at least one of the signatory organizations listed below. As an active member of one of the signatory organizations, I hereby agree to be familiar with, and abide by, the Guidelines, Rules and Regulations established by the Confederation of Signatory Organizations known as F.A.S.T.... I further recognize that formation flight training and formation flying is inherently dangerous wherein there is a possibility of injury or death, and in consideration of my acceptance of this Formation Qualification Card/Evaluation, issued by participating Signatory Organizations, I, for myself, my heirs, executor, administrators, and assigns do hereby release and forever discharge the Signatory Organizations listed below each and every one of them and F.A.S.T., its members, employees, suppliers, agents or representatives of and from any and all claims, demands, losses, or injuries incurred or sustained by me as a result of instruction, training, attending, participating in practicing for, and traveling to and from activities involving formation flights (my emphasis).

At the trial court level, an Illinois Circuit Court gave the intended effect to the exculpatory agreement, releasing the individual defendants from liability for the pilot's death. The trial court judgment was appealed to an Illinois Appellate Court, which is an intermediate appeal court below the Illinois Supreme Court (to which the Appellate Court decision may ultimately be appealed). The Appellate Court affirmed the decision and the release.

While the appeal court gave due recognition to the general rule that "exculpatory agreements are not favored and are strictly construed against the party they benefit," it nevertheless ruled that they are not against public policy as a matter of law, and that "parties may allocate the risk of negligence as they see fit" so long as certain conditions are met."An exculpatory agreement will be enforced if: (1) it clearly spells out the intention of the parties; (2) there is nothing in the social relationship between the parties militating against enforcement; and (3) it is not against public policy."

The case was remanded to the trial court for resolution of some other factual and legal issues not important to our discussion in this column. Hopefully, the upswing will continue.

Alan L. Farkas handled this case for the team members. He advises us that the plaintiff's attorney has asked the Illinois Supreme Court to review this decision. Farkas is one of AOPA's legal services plan panel attorneys, practicing in Chicago.