Because of the risks inherent in flying, all airmen should have an understanding of their rights, options and responsibilities in the event of an accident. “Operators” should be even better prepared and have a written Accident Response Plan (See Appendix A at end of this article) ready to implement in the event of a crash. The confusion, stress and grief which naturally occur after an accident may interfere with your ability to do the right things at the time. As with emergency procedures, learn now and avoid problems later.
It goes without saying, that the rescue, medical care, and emotional comfort of any survivor of an air crash must be attended to first. Consider that the victims and their families are not the only ones who suffer. Fellow employees and anyone who comes into contact with the chaos and horror associated with an airplane accident will suffer substantial stress. To add to this burden, the media will invariably conduct interviews to publish “human interest” stories of the accident. The NTSB will immediately begin its investigation to determine “Probable Cause.” Insurance company claims managers and adjusters will evaluate potential claims. Lawyers will investigate lawsuits both on behalf of victims and in defense of the aviation businesses involved. The FAA may start an enforcement investigation with an eye towards a certificate action. This article will discuss 10 major issues that arise in almost every air crash.
Carefully File An Official Accident Report With The NTSB
The “operator” of an aircraft is required by law to notify the nearest NTSB field office immediately after an accident by the most expeditious means available. 49 C.F.R. Part 830.5. The operator will then be required to file a written report with the NTSB on the forms provided by the Board within 10 days of the accident. If you run an aviation business, it is a good idea to have a copy of Form 6120 in your Accident Response Binder. When describing the “Nature of the Accident” in Form 6120, do not speculate or render opinions, just state the facts if you know them. If not, state “unverified” or “unknown.” The operator statement will become fully discoverable in subsequent litigation. Any declarations against your interest could be used against you.
You are not required to report an aircraft accident to the FAA, you are required to report it to the NTSB. 49 C.F.R., Part 830.5. Flight Service Stations and Air Traffic Control Towers are often first to learn of an accident and relay information to the NTSB, but don’t make a report to them unless the safety of others requires it. Recognize that the FAA’s interest in an action will be to investigate to determine whether an enforcement action could be brought against the license holder involved.
Complete The Crewmember’s Statement With Advice of Counsel
Crewmembers will be required to submit a “Statement” to the NTSB setting forth their recollection of facts, conditions and circumstances relating to the accident. 49 C.F.R., Part 830.15(b). The crewmembers’ statement should only be completed after the crewmember involved has recovered physically and emotionally from the shock of the accident in order to be able to provide a factual account.
It would be wise to seek the advice of an aviation litigation lawyer before completing the crewmembers’ statement. Competent and ethical aviation attorneys cooperate with the NTSB and will not allow a client to withhold important factual information when such a statement is completed. On the other hand, crewmembers inadvertently make mistakes in completing statements, express speculation or causation, and make liability enhancing admissions. Such mistakes are sometimes made out of inappropriate guilt based on pride. We all try to think of something we could have done to prevent the crash. Frequently, airmen simply do not understand the way investigations will proceed (a good topic for a future article). Rarely does anyone know all the circumstances involved in an accident when completing these forms.
Post Accident Checklist
It is important to recognize that anything a person says or writes after an accident will be viewed as a statement and may become adverse evidence in subsequent litigation. I know an old aviation lawyer who created this “Post Accident Checklist” for his pilot clients:
A. Save yourself and your passengers
B. Have a stiff drink to celebrate being alive? (Old tradition – now risky since many people are subject to alcohol/drug testing)
C. Retrieve a 6″ strip of duct tape from your Emergency Kit and place it over your mouth
D. Remove duct tape only upon arrival at your attorney’s office
Post Accident Confidentiality?
Here is a partial list of some of the people to whom you may have a temptation to give statements about an accident. Whatever you say to them, or give them in writing, or on tape, is fully discoverable and can be used against you. Can you guess which persons may keep your statements confidential?
Law Enforcement Officers
You got it, the only person to whom you can give a statement with absolute confidentiality is your lawyer (under the Attorney-Client Privilege). Under certain circumstances, in some states, what you tell your spouse, statements given to members of the clergy and a journalist’s source, may enjoy some degree of confidentiality. However, everyone else can theoretically be forced by subpoena to divulge what they have said in a deposition.
You should be aware that although the NTSB has the prerogative to declare some items in an investigation confidential, it is rarely exercised. The normal policy of the Board is to make its complete investigative package publicly available, including all statements which have been taken. With this in mind, it is strongly advisable that a pilot or other aviation professional who is involved in an accident, obtain the advice of an aviation lawyer before giving any statement.
Aviation professionals are often concerned about the appearance that will be created if they participate in an interview by an NTSB investigator with a lawyer present. Indeed, an investigator might ask, “Why do you need a lawyer? Is there anything you have to hide?” The response should be, “No, I want to provide my full cooperation, but I want my legal rights protected also.”
Don’t Depend On The NTSB Investigation To Prove Your Case
Some people feel that the decision of hiring a lawyer can be postponed until after the NTSB investigation has been completed. This belief is based on the misunderstanding of the attorney’s role and what actually happens after an air crash. The fact of the matter is that the most critical evidence in the entire case will be developed immediately after the accident. One cannot depend on the NTSB, the FAA or law enforcement agencies to develop evidence to protect your interests or to defend you against liability. The NTSB is a public safety investigative agency, which is not in the business of developing evidence to prove liability. Also remember, that airmen are often the plaintiffs after an accident. They must bring a claim against other aviation entities which may have caused or contributed to their injuries.
The NTSB determines probable cause and “factors.” It does not ascertain percentages of liability. The probable cause/factors determinations of the NTSB are not admissible in evidence. There is conflict in the case law as to whether NTSB reports are admissible. Some cases hold that the factual portions of the reports are admissible, but not the various opinions expressed therein. Other courts have permitted almost the entire NTSB report, except for its probable cause determination, to be admitted into evidence.
How To Use A Lawyer To Conduct Your Own Confidential Investigation
After a crash, many airmen and operators want to conduct their own investigation to determine why the crash occurred. They contact flying friends, technical experts, maintenance professionals, etc., in order to discuss what happened. Likewise, people are tempted to create sketches, notes, diagrams, memoranda or other writings. If you do any of these things on your own, they become discoverable in litigation. A lawyer, on the other hand, can hire investigators, employ consulting experts, and bring to bear a variety of research and investigative resources on your behalf. The rules of procedure and evidence in the federal and state courts, will protect the attorney’s investigation after an accident from discovery, in almost all but the most exceptional circumstances. Moreover, your conversations through your lawyer with these investigators or consultants, are covered by one of the most sacred privileges in our legal system – The Attorney-Client Privilege. Thus, if you have any questions, investigative leads, theories, etc., your attorney can investigate them on your behalf, and use experts, if necessary, so as to report back to you in confidence.
Preserve Wreckage And Documentary Evidence Of An Air Crash
The “operator “of an aircraft is responsible to preserve the wreckage, mail, cargo, and all FAA required records which are maintained concerning the aircraft, its equipment and its maintenance. 49 C.F.R., Part 830.10. As a practical matter, when an accident occurs away from the headquarters of an operator, local law enforcement will be the first persons on the scene. Law enforcement officers will follow local procedure in handling the wreckage scene. The operator should contract local law enforcement as soon as they learn of an accident to insure that protective custody is established concerning the wreckage.
Where the operator or a managing agent of the operator is the first one on the scene, the federal regulations require that that operator insure that wreckage is not pilfered and that accident signs are not destroyed until the NTSB arrives and takes over. Bear in mind that this can be a daunting task during inclement weather or where there are a number of bystanders on hand. It is particularly critical to preserve skid marks, debris patterns, propeller cuts, signs of impact, paint transfer indications, spillage splotches, etc. It may be advisable in some cases to video tape or photograph the scene before the NTSB arrives. Such evidence can be extremely valuable to experts and attorneys.
Besides physical wreckage, various documents such a logbooks, maintenance records, prior flight history, etc., are essential when sorting out the cause of a crash. If the NTSB field investigator wishes to obtain these documents, ensure that originals are kept for your records and give copies to the investigators.
Avoid Spoliation of Evidence
Do not destroy or alter any writings concerning the accident airplane or its flight. Besides being a violation of federal regulations, some states such as California and Florida are recognizing a new tort called, “The Intentional/Negligent Spoliation of Evidence.” A party can be sued if they deprive another party of essential proof by such destruction of evidence. In fact, a technique I use, involves writing to potentially liable parties right after an accident. I put them on notice of potentially valuable evidence believed to be in their custody, with a request that they preserve it. This way they can’t later claim they didn’t know something would be considered evidence in connection with the accident.
File An Insurance Claim And Verify That You Have Coverage
If you have insurance to cover your aviation operation, immediately notify your broker or the insurance company directly at the address found in the policy. Most people will use the telephone, but I strongly encourage a follow-up letter. The letter should state the date and location of the accident and give a broad preliminary description of the injuries and damages which have occurred. The letter should ask the insurance company to immediately advise if they have received a claim, that they are acknowledging coverage and that they will provide a defense. Providing a defense means hiring a lawyer for you and paying the attorney’s fees and costs.
Generally speaking, insurance companies will do one of three things: (i) Acknowledge coverage and provide a defense; (ii) Provide a defense but reserve rights as to whether or not they will acknowledge coverage, or (iii) They may deny coverage and refuse to provide a defense. If there is any reluctance on the part of the insurance company to provide you with unqualified assurance of coverage and a defense, hire your own attorney to defend you in the air crash and to evaluate the coverage issues.
Conclusion – Make Sure You Are Properly Represented
Many people are not aware that an insurance company controls your defense and decides who to hire on your behalf. If you have a serious accident (one involving multiple personal injuries or deaths) make sure that the insurance company hires an aviation lawyer to defend you immediately. Request an attorney that has substantial experience defending air crash cases as opposed to a general personal injury attorney, or one who has pursued aviation as a hobby. You pay the premiums, your liability exposure and reputation are on the line, and you may have exposure beyond coverage limits. Make sure you are properly represented.
Appendix A – Accident Response Plan
This plan may simply consist of a one-page checklist with phone numbers, or may take the form of a notebook containing guidance on every major issue arising out of an air crash. The Accident Response Plan should be prepared in advance and be available to key personnel. When the phone is ringing and you are under pressure, is not the time to start compiling the post accident “To Do” list. The Accident Response Plan contents may vary depending on the nature of the aviation business. The following 10 Accident Response items are provided as examples and may be used in connection with this article and the specific advice of your air crash attorney:
Victim verification procedures
Key management personnel to be contacted in an emergency
Victim (emergency contact) telephone numbers
Your aviation lawyer’s phone numbers
Insurance claim contacts with policy
Wreckage and hazardous cargo preservation guidelines
Records preservation and copying guidelines
NTSB field office contact information and accident report forms
Rules for dealing with the media
The issues and recommendations discussed in this article are based on hypothetical situations and do not constitute legal advice. Mr. Kolczynski’s objective is to describe some common issues to help people avoid or minimize legal trouble. Laws vary significantly from state to state. Anyone with an aviation law problem should be guided by the advice of his or her lawyer, under applicable federal and state laws, after a full and confidential disclosure of all relevant facts.
Mr. Kolczynski cannot provide legal advice or opinions on individual problems or cases to people who call him or send him e-mail questions. Just as a wise person would not expect a doctor to diagnose an illness from a brief description by phone or e-mail it is unrealistic to expect a lawyer to provide advice under such circumstances. A person must be accepted as a client and a confidential attorney-client relationship formed before any advice will be given. ”
? Copyright: This article is Mr. Kolczynski’s Intellectual Property and is protected by the Copyright laws. No part of this article may be reproduced without the express written consent of the author. This article cannot be excerpted for use in publications, newsletters, web sites or even non profit educational materials without Mr. Kolczynski’s approval.
Phillip Kolczynski manages his own law firm in southern California adjacent to the John Wayne Orange County Airport, California. He holds an (AV) rating, the highest peer rating for competency and ethics awarded by The Martindale-Hubbell Bar Register of Preeminent Attorneys. Mr. Kolczynski has 23 years of experience as an aviation lawyer, and a national practice, concentrating in aviation, product liability and business litigation in federal and state courts.
Prior to moving to California in 1983, he was a trial attorney in the Aviation Unit, U.S. Department of Justice, Washington, D.C., and the Litigation Division, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C. While at the Justice Department, Phil received the Justice Department’s Special Achievement Award for Trial Performance and was a regular lecturer and instructor at the Attorney General’s Civil Trial Advocacy Institute. In private practice, Mr. Kolczynski has worked as an associate and partner in large law firms in Washington D. C. And Los Angeles.
Mr. Kolczynski graduated from Case Western Reserve School of Law, Cleveland, Ohio, in December 1976, where he was the Law Review Notes Editor of the Journal of International law. He graduated from Marquette University, Milwaukee, Wisconsin, in 1969, where he held a Navy ROTC Full Scholarship. Before entering law school, Phil Kolczynski was a Marine Corps Captain and F-4 Phantom Pilot. He holds an FAA Commercial Pilot’s License with Single Engine, Multi-Engine and Instrument Ratings.
Phil Kolczynski has published numerous law review and journal articles on a wide variety of aviation law subjects. He is also the author of the book “Preparing for Trial in Federal Court” 2nd Edition (James Publishing 2000).
Mr. Kolczynski teaches Aviation Law in the University of Southern California School of Engineering, Aviation Safety and Accident Investigation Institute. He was the Chairman of the 1990 American Bar Association National Institute on Aviation Litigation in Washington, D.C. and was twice elected Chairman of the Orange County Bar Association Aviation Section. Phil is the Aviation Law Editor for “AVWEB,” the Internet Aviation News Service & Magazine – http://www.avweb.com – where his recent articles on aviation law are available for review.