August 22, 1997 What If You Are Involved in an Air Crash?

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by	Phillip J. Kolczynski

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 symposia. 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 ratings. AviationLaw@AVweb.com AviationLawCorp.com

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 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 seven major issues that arise in almost every air crash.

1. 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 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 requirements.

2. Complete the Crewmember's Statement

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.

3. Avoid Giving Statements After Accidents

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:

1. Save yourself and your passengers
2. Have a stiff drink to celebrate being alive
3. Retrieve a 6-inch strip of duct tape from your Emergency Kit and place it over your mouth
4. 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 confidential?

• Paramedics
• Rescue Personnel
• Treating Physicians
• Firemen
• Law Enforcement Officers
• Other Pilots
• Employers
• Flight Instructors
• Mechanics
• Clergymen
• Lawyers
• Journalists
• Insurance Adjusters
• NTSB Investigators
• FAA Officials
• Passengers
• Co-Employees
• 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."

4. 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 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.

5. Use a Lawyer to Conduct Your Own 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 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.

6. Preserve Wreckage and Documentary Evidence

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.

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.

7. File an Insurance Claim and Verify 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:

1. Acknowledge coverage and provide a defense;
2. Provide a defense but reserve rights as to whether or not they will acknowledge coverage; or
3. 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 represented.

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.

Prepare Your Accident Response Plan Now!

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.