A Pilot's Perspective.

By Barry Meek.

December 2014 

A Responsibility Issue

Is it the responsibility of the pilot or the aircraft owner when things go wrong?

Many years ago the Canadian Law system (I don’t think of it as a justice system) attached liability and negligence to someone other than the person who caused an alcohol related accident. What that means is a restaurant or bar could be held responsible for damages caused by a patron who drank too much, then drove away and was involved in a mishap. This became known as “Commercial Host Liability”, and it is similar to “social host liability”, which pins the blame on a private citizen who hosts a party, for the damages/injuries caused by someone attending that party.

Another way the courts attach liability is with what is called “Negligent Entrustment”. The term has been around a long time in the United States, but is relatively new in Canadian negligence cases. The basic concept is that the supplier of an item (legally known as a chattel), often a vehicle like a car or a snowmobile, even an aircraft, has a duty not to supply it to someone he/she knows is incompetent to safely use it. Negligence can be found against a supplier who ought to have known he was supplying the item to a person who would cause an unreasonable risk of harm.

It is all legal ideology, but in simple terms is nothing more than placing responsibility where it probably should not be placed … the passing of the buck, so to speak, from the one committing the act to someone else.

It seems to me that there is always something new coming out of the courts. Huge sums are awarded a plaintiff for frivolous lawsuits, the likes of which make headlines and inspire other opportunists to hire a lawyer to make a fortune. Almost everything associated with aviation is a target. Negligent Entrustment is sure to grow in Canada as it has been long considered a “sleeper” of sorts, an underused additional source for finding liability in certain circumstances.

I suspect there is plenty of room for negligence lawsuits directed at small aviation charter operators. As well, FBO’s who supply rental aircraft can be on dangerous ground and facing prosecution from survivors and family members of airplane renters who meet with an accident. Let’s assume the renter/pilot is properly licensed and meets all the requirements of Transport Canada. If the FBO rents the aircraft to the pilot, can the FBO still be held responsible for what turns out to be the pilot's mistakes?

Sometimes, the answer is yes. A good example is this story from 2010. An FBO/flight school in San Jose, California was successfully sued by the family of a passenger who was killed in the crash of a rental airplane belonging to that FBO. A young pilot had just recently received his private pilot certificate (known in Canada as a license). He was comfortable flying the FBO's Piper Archer in which he had been "checked out" by one of their instructors. The renter was considered a good pilot. 

One day the pilot showed up to rent the Archer. He told the FBO that he wanted to fly two friends to Lake Tahoe airport, which is 6,250’ ASL. The pilot hadn't obtained the mountain-flying instruction, but the FBO rented the aircraft to him anyway.

The pilot landed at Lake Tahoe airport without incident. But he wasn't prepared for the effects of the altitude, heat, and weight of the aircraft on takeoff.  When he attempted to depart, he crashed, killing himself as well as his two passengers.

The family of one of the passengers sued the FBO, arguing it should never have rented the plane to the pilot for this particular trip. The jury agreed and held the FBO liable.

During the appeal, the FBO argued that the pilot held a license that legally entitled him to fly anywhere he wanted, including mountain airports like Lake Tahoe.  If the pilot was competent in the eyes of the FAA, he should have been deemed competent in the eyes of the court.

The court of appeal disagreed, and affirmed the jury's verdict against the FBO.  Though the young pilot may have been a competent pilot generally, that wasn't the issue.  The FBO knew that, notwithstanding his license, the pilot wasn't competent for the particular flight he had planned.  The appeals court ruled that the jury properly held the FBO liable for the accident under the law of “negligent entrustment”.

This is really not that complicated, at least in the eyes of the law. In my opinion though, it’s the law that is flawed, and although it must be interpreted as written, it should not have been written in the first place. Go back to the commercial host liability explained at the beginning of this article. That too is something that should be scrapped. When I was a young boy, I was taught responsibility! When I did something, it was my decision, therefore my responsibility. When my bicycle was lost, it wasn’t anyone’s fault but mine. It was my decision if I drank too much beer to drive home from a pub too. We never thought to try blaming someone else. But in today’s world, things are different. The question is which came first? Was it the laws or the people refusing to take responsibility for their own actions?

I understand and expect there are many out there who would disagree. But there is no doubt that more and more, people are demanding that the government should take over the care, the decision-making and the management of just about everything in society! Buyer beware, due diligence, social and personal responsibility are all disappearing as choices that individuals should be making for themselves. We’re turning in to a brainless society, feeling secure with someone else, some form of government or marketing board or regulatory body being there to care for us. If we trip on a curb, it’s the fault of the business that happens to share that sidewalk. If a pilot makes a mistake, the blame is shifted to the airplane manufacturer for allowing a fool-proof machine out the doors of the factory.

It’s near time the madness was brought under control, lest we all become robots, cared for by the state.

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