Pilot Counsel

Instructor liability still a concern

October 1, 2010

The legal liability of flight instructors is a legitimate concern that is continually raised. The question comes up because flight instructors are generally 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 good news is that, so far, the threat to the individual flight instructor has been just that—a threat. In general, the actual liability imposed on individual flight instructors has not been significant.

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 handle death and personal injury cases only go after those with “deep pockets.” They typically handle these cases on a contingent-fee basis—if there is no recovery, the lawyer gets no fee; if there is a recovery, the lawyer gets a percentage as a fee. The lawyers are not about to take cases in which there is not a promising potential that they will be well 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.

There have not been many reported court decisions, and the ones that exist involve suits against FBOs and flight schools. It is easy to draw from these cases, as well as the general law, that a flight instructor has potential liability —and a legitimate concern.

This area of the law falls under the classification of “torts,” which is mostly governed by the law of each individual state. A tort is a civil (as opposed to criminal) wrong other than a breach of contract. It is a wrong 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 (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 sometimes are defenses, such as the contributory or comparative negligence of the person damaged.

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 stick of his airplane was tied back with a seat belt. Another case involved a student and his instructor who were killed in a wake turbulence accident. The instructor and the FBO (and ATC) 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 when 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. In another case, 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 cross-country when he wasn’t ready. The court disagreed, finding that the student had been properly prepared.

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 that predictable, especially before a judge or jury unfamiliar with general aviation. The AOPA Insurance Agency and others offers insurance coverage at reasonable premiums specifically for the flight instructor. Some might question the adequacy of the liability limits available at affordable prices, but some is better than none, and all typically provide for the cost of defense—which could be considerable.

Yodice and Associates provides legal counseling to AOPA.

Learn more

AOPA’s legal counselor John S. Yodice will present two forums at Aviation Summit. He will present “FAR Refresher” on Thursday, November 11 and “What Every Pilot Should Know About FAA Enforcement” on Friday, November 12. See the website for more information.