It can happen to you — probably when you least expect it. Would you know what to do when the dust clears and the authorities, insurance adjusters, lawyers and media start asking questions? Would you even be able to think clearly while under the stress of an airman's worst nightmare? In this article, a practicing aviation attorney (who once was an FAA lawyer himself) provides the seven key elements for your own personal Accident Response Plan. (You might want to print a hard copy and keep it in your flight case.)
August 22, 1997
|About the Author ...
Phillip J. Kolczynski
manages his own law firm in Irvine, California. He has a national practice,
concentrating in aviation, product liability and business litigation in federal
and state courts. Phil teaches evidence, product liability and aviation law at
the Aviation Safety Program, School of Engineering, University Of Southern
California. He chaired the 1990 ABA National Institute on Aviation Litigation in
Washington, D.C., and has spoken nationally at numerous aviation litigation
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. Phil graduated from Case Western Reserve School of Law,
Cleveland, Ohio, in December, 1976, and attended college at Marquette
University, Milwaukee, Wisconsin, in 1969 where he held a Navy ROTC Full
Scholarship. Before entering law school, he was a Marine Corps Captain and F-4
Phantom Pilot. He is a Commercial Pilot with instrument and multiengine
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. 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. "Operators"
should be even better prepared and have a written "Accident Response
Plan" ready to implement in the event of a crash.
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
- Insurance company claims managers and adjusters will evaluate potential
- 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
This article will discuss seven major issues that arise in almost every air
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 NTSB 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 you are unsure, 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. 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
certificateholders involved (i.e., you and/or your business).
Some states have reporting requirements that require that the owner or
operator of an aircraft report accidents to their State Department of
Aeronautics when someone is killed, injured or where there has been significant
property damage. In California, The Aircraft Financial Responsibility Act
requires that a report be filed within 15 days of the occurrence. If the owner
or operator dies in the crash, the legal representative must make the report.
The purpose of these reports is to assist the State in requiring that a security
deposit be established for the protection of non-passenger victims such as
people on the ground, who have been injured or suffered property damage as a
result of the accident. Frequently, if the owner or operator carries sufficient
liability insurance, a security deposit does not have to be posted. Each state's
laws must be checked for specific reporting and financial responsibility
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 crewmember's 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 crewmember's 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 (and we'll be
covering this in a future AVweb article). Rarely does anyone know all the
circumstances involved in an accident when completing these forms.
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:
- Save yourself and your passengers
- Have a stiff drink to celebrate being alive
- Retrieve a 6-inch strip of duct tape from your Emergency Kit and place it
over your mouth
- Remove duct tape only upon arrival at your attorney's office
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 of the people on this list may keep your statements
- Rescue Personnel
- Treating Physicians
- Law Enforcement Officers
- Other Pilots
- Flight Instructors
- Insurance Adjusters
- NTSB Investigators
- FAA Officials
- Your Spouse
That's right! 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 heard 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 to anyone.
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."
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 and 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 "contributing factors." It does not
ascertain percentages of liability. The probable cause and 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.
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 and can be used against you.
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, using experts if necessary,
and report back to you in confidence.
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
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.
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.
A technique I use in my aviation law practice 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.
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:
- Acknowledge coverage and provide a defense;
- Provide a defense but reserve rights as to whether or not they will
acknowledge coverage; or
- 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.
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 — not a general
personal injury attorney, even 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
NOTE: The issues and recommendations discussed in this
article are based on hypothetical situations and do not constitute legal
advice. My objective is to alert you to some common issues so that you can
avoid or minimize legal trouble. 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.
When the phone is ringing and you're under pressure is not the time to
start compiling a post-accident "To Do" list! Your Accident Response Plan should
be prepared in advance and made available to key personnel. Your plan may
consist simply of a one-page checklist with phone numbers, or may take the form
of a notebook containing guidance on each of the major issues that may arise out
of an air crash (as discussed in this article).
The contents of your Accident Response Plan will vary depending on the nature
of your aviation business or involvement. The following ten items are examples
of things you might want to consider including in your plan:
- Victim verification procedures
- Key personnel to be contacted in an emergency
- Victim emergency contact telephone numbers
- The telephone numbers of your aviation lawyer
- Insurance policy and claim contact information
- Guidelines for wreckage and hazardous cargo preservation
- Guidelines for preservation and copying of records
- Guidelines for dealing with the media
- NTSB Field Office contact information and accident report forms
- A supply of duct tape!
You may want to solicit the specific advice of your aviation attorney before
preparing your plan.