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Are you at risk?

When bad things happen to good CFIs

You've carefully reviewed your student's plans for a solo cross-country flight. Route of flight--check; flight log--check; performance requirements--check; weather--check. Your student has been flying in a safe and consistent manner. He's ready to go, and you sign him off. But, as with all your students, you still worry, don't you? You sweat out the trip with him--wondering how he's doing. Have you considered that you might also be financially accountable if there is an accident?

When it comes to personal injury litigation, there is an old saying among lawyers--sue everyone in sight. While that might seem harsh and feeds bad perceptions of lawyers, it's a pretty logical response to an accident. Generally, there are a variety of potential causes and responsible persons, so what better way to get to the bottom of it than to get together everyone who is possibly involved? The truth is likely to emerge from their explanations.

Aircraft accident litigation is no different. Was the accident the product of a mechanical malfunction, a product defect, poor maintenance, air traffic controller error, the pilot's poor decision making--or, perish the thought, poor CFI instruction and inadequate supervision? When an aircraft accident happens, you, as the CFI, could be one of the people "in sight." You may even be in sight after your student has obtained his certificate, or even if your role was limited to a pilot's flight review or an aircraft checkout.

Generally, a CFI owes others a duty of reasonable care, and is liable for damages if he breaches that duty (i.e., is "negligent"), and the breach is the proximate cause of an accident. You don't even have to be in the airplane at the time of the accident to owe a duty of reasonable care. In a very early accident case, an instructor OK'd a student for solo landing practice at his home field. The trouble was--and this was in the days before radios--another student from a rival school at the field had just taken off to practice simulated emergency spot landings. The two aircraft collided, and the instructor's student was seriously injured when he crash-landed. He sued his school and his instructor. They were found liable because they owed the student a duty of reasonable care; their duty included responsibility to know that another aircraft was overhead practicing emergencies and might be maneuvering unpredictably, and their failure to prevent the student from soloing was the proximate cause of the accident.

But much depends on the particular circumstances presented. In another early case, an instructor was found not liable when his student crashed and died on his first solo cross-country. The weather was good, the airplane had just had a mechanical check, and there was no evidence of a mechanical malfunction. It wasn't clear what caused the crash. The CFI was deemed not to have been negligent in authorizing the cross-country flight, because there was evidence the student had sufficient skill and training to make the flight, including training for emergency landings. An important additional factor favoring the CFI was that the route he approved was not a difficult one, as there were highways and railroads and landing fields along the way.

Your chances of being held liable when the cause of a crash is unknown may also depend on which court you're in. One line of cases holds that there must be "direct evidence" of negligence to hold a CFI liable. But at least one case has held a CFI negligent when other causes were ruled out. In that case, a pilot who sought to rent an aircraft was required to first take a checkout flight with an instructor. This checkout flight was anything but routine, as the airplane crashed just a few minutes after takeoff. Both pilots were killed. The CFI's employer (but apparently not the CFI) was sued. The evidence was clear that there was no airplane malfunction, and the flying weather was ideal at the time of the crash. The court took a hard line and ruled that, since other causes had been excluded, there was an inference of negligence. The pilot being checked out had the status of a "trainee" (even though, in fact, he also was a CFI), and the negligence therefore was charged to the CFI conducting the checkout.

In some jurisdictions, financial responsibility for a crash can be apportioned among those who were negligent. A CFI and his student were killed when they collided with an aircraft that entered the pattern unannounced at a towered airport. The court in that case allocated relative responsibility among everyone who failed to keep a proper lookout--the FAA, the pilot who entered the pattern (who also was killed), the student, and the CFI. The CFI's estate was held liable for damages.

As a CFI, you can be negligent if you fail to stop your student from doing something wrong. A CFI was conducting a flight review with a certificated pilot in the pilot's Bonanza when he pulled the power to simulate an engine failure. In accordance with the checklist, the owner announced that he was moving the fuel selector valve to the other tank. The CFI told the owner it was not necessary to do so. The CFI terminated the simulated engine failure at about 1,000 feet above ground level by pushing the throttle in. Five seconds later, the engine stopped. The owner had moved the fuel selector to the "Off" position, and the position of the selector was not visible to the CFI without having the left-seat pilot reposition his body and/or leg from a normal seating position.

The airplane landed gear up and sustained significant damage. The pilots were uninjured. But the owner's insurance company went after the CFI's employer--a flight services company. While the CFI apparently was not sued, his actions determined whether his employer was liable. The CFI was found negligent, because he failed to establish the ground rules in advance of the flight regarding whether the pilot should physically execute the engine failure checklist procedures and to actually check the position of the fuel selector during the simulated emergency and efforts to restart the engine.

So how can a CFI stay out of a plaintiff lawyer's gun sight? For many of you, your youth and relative poverty, ironically, may protect you. The most attractive defendants are those with money. That may account for some of the decided cases in which the CFI's employer, but not the CFI, was a named defendant. Keep in mind that a money judgment against you can be enforced years into the future, when you do have assets.

Insurance also is an important consideration. If you're working for a flight school, confirm that it has substantial coverage and that you, as well as the flight school, are covered parties. And before you get in someone else's airplane to instruct them, ask whether you're covered as an authorized pilot under the aircraft's insurance policy. CFI insurance (including insurance available through the AOPA Insurance Agency) can protect you if there is an accident while you're flying with a student in an airplane you don't own.

Probably your best protection is you. You can protect your financial well-being by protecting your physical well-being and that of your students at all times. Stay focused throughout each flight and don't assume that the student or pilot you're flying with is doing the right thing. Check it yourself! And when sending a student off to solo, or signing off a "trainee" for a flight review or after a checkout, be extremely careful. If you're not very confident of his ability or knowledge, do not sign him off.

And keep excellent records. Not just your logbook with a short description of a flight, but a longer journal for each instructional flight, recording more detail as to what was covered and how the student performed. In addition to being an excellent reference for keeping track of and improving the training you provide, if something bad does happen, it might be just the evidence that proves you were professional, took every reasonable precaution, and gave your student and others the care the law requires.

Steve Frahm is an attorney who learned to fly in the 1970s. He is a part-time CFII for Capitol Air Services at Tipton Airport in Fort Meade, Maryland.

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