June 1, 2011
By John S. Yodice
Some say that it was inevitable that a manufacturer of electronic flight displays would get sued over the in-flight distraction that a display might cause. We now have such a case. As a result of a fatal midair collision, Garmin was sued, alleging that Garmin failed to warn of the risks associated with the use of such a unit by noninstrument-rated pilots operating in good visual flight conditions. A summary review of this case offers some valuable insights into the law of torts, and specifically the subclassification of product liability, as it applies to our flying.
A Lancair 235 and a Cessna 172, both operating VFR in good weather, collided over Ohio, killing all four occupants of the two aircraft. Neither aircraft was, or was required to be, in contact with any air traffic control facility. The collision killed the Lancair owner and his very experienced professional-pilot passenger, and it killed the flight instructor and his instrument trainee in the 172. The Lancair pilot-owner took more than 10 years to build the single-engine, low-wing aircraft. His efforts earned the aircraft a prestigious EAA workmanship award.
The Lancair owner installed a Garmin GNS 430 navigation unit about a year prior to the crash. The unit, of course, is capable of displaying a moving map that charts the progress of the airplane in flight (represented by a white airplane icon) relative to a desired course being flown (represented by a magenta line), which are key facts in this case.
The National Transportation Safety Board investigated the accident. The NTSB report includes the radar track showing the path taken by the two airplanes. The faster Lancair overtook the Cessna, hitting the side of the Cessna at a crossing angle of approximately 61 degrees, at an altitude of between 2,300 and 2,500 feet. The NTSB report concludes that the Cessna should have been visible to the pilots of the Lancair for 40 seconds leading up to the collision. A witness who saw the airplanes just prior to the crash observed them both in straight-and-level flight. The witness noted that neither airplane made any apparent effort to avoid the collision.
The plaintiffs hired four aviation experts to advance their case. Reviewing this radar track, plaintiff’s experts describe the Lancair’s path as a straight line, which they contend could only be produced by navigating using the GNS 430. According to these experts, the straight character of the Lancair’s track rules out the possibility that the pilots employed any of the other three acknowledged methods of flying—dead reckoning, pilotage, and VOR. Thus, the plaintiffs’ experts conclude, the Lancair pilots must have been flying the airplane by maintaining eye contact with the GNS 430 and manipulating the controls to keep the white airplane icon on the magenta line. “Close tracking,” they called it. In doing so, the pilots abrogated their duty to look through the windscreen for other traffic. They thus failed to see and avoid the Cessna in the final 40 or so seconds of the flight during which it should have been in plain view.
Originally, the suit alleged that,
It was acknowledged that the GNS 430 is widely available—counting its companion model, the GNS 530, Garmin had sold more than 100,000 units at the time of the suit. The packaging of the sale includes a “Pilot’s Guide and Reference Manual,” an Addendum, and a CD-ROM. None of these materials contained any warning or instruction concerning the risk at issue in the case.
On Garmin’s motion for summary judgment, the court dismissed the case, obviating the necessity for a trial. The court granted judgment on three grounds:
For one, the plaintiffs failed to present any evidence that Garmin knew or should have known of the alleged risks, a necessary element of a “failure to warn” case. The court said: “The mere possibility that the device could be used in a dangerous fashion if a pilot disregarded his acknowledged duty to scan for other traffic—a duty specifically put in place to ensure safe flight practices—does not suffice to establish Garmin’s knowledge of the risk that it would, in fact, be used that way.”
For another, that the purported “risks” were “open and obvious.” Under Ohio law, failure to warn or instruct “about open and obvious risks or a risk that is a matter of common knowledge” does not render a product defective.
And for the third, the GNS was not the proximate cause of the accident. “The court finds that the Lancair pilots’ inattention to their duty to maintain a visual scan severed any causal connection between Garmin’s alleged failure to warn and plaintiffs’ injury as a matter of law.”
We don’t know yet whether this judgment will be appealed.
Aside from the legal aspects that are the subject of this particular column, it is also a reminder of our duty to see and avoid other traffic, particularly when operating behind our wonderful electronic flight displays.
Legal counselor John S. Yodice is a private pilot who owns and flies a Cessna 310.
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