Accountability After The National Championship Air Races Disaster

In the blink of an eye, Jimmy Leeward’s P-51 Galloping Ghost went from rounding the last turn at National Championship Air Races in Reno to sharply pitching upward, rolling over, and then diving straight down into box seats full of spectators. Strange as it is to say, there are reasons to be grateful — had his airplane hit the grandstands, there would have been hundreds, not dozens, of injuries.

Flying in general and P-51s in particular have a special place around our firm; Jim Beasley, Sr., was an FAA-certified flight instructor who flew several WWII-vintage planes, including P-51s, and Jim Beasley, Jr., flies his Mustang with a P-51 acrobatic team and with the Air Force Heritage Flight team. (We litigate aviation accidents, too.)

Air shows are a big deal in America — attendance is around 17 million visitors to the 400 or so air shows each year, roughly around the same attendance as the NFL — and, apart from the causal attendees, there’s a sense of community around types of planes, types of shows, and locations. They know the history of the sport; the Ramstein disaster, for one, still lingers in the minds of many in the air show community, and the frequency of fatal and near-fatal crashes is not lost on anyone. The casualty numbers are lower, but they still look more like a major air disaster than a simple crash; Reno will likely take a similar place to Ramstein in the minds of the air show community, and may end the National Championship Air Races, at least in their current form.

As always, when a crash happens, the media attention shifts quickly to the National Transportation Safety Board’s “Go Team” investigation. Maybe it’s something about the allure of governmental rapid response teams, or maybe it’s the idea that, with an investigation and findings will come some sort of closure. The NTSB is a good organization with talented and dedicated personnel, and it’s no stretch to say that NTSB Aviation Accident Reports and other recommendations have saved countless lives, but one thing needs to be understood about the NTSB.

Coincidentally, a few hours before the crash I conducted the deposition of the former fleet operations manager for a company involved in a fatal maritime accident. The NTSB Marine Accident Report recommended that her company “review existing safety management program and develop improved means to ensure that your company’s safety and emergency procedures are understood and adhered to by employees in safety-critical positions.” The fleet operations manager argued that the NTSB’s finding that her company had at all contributed to the accident was merely “political.”

In one sense, she’s right: the NTSB’s findings are “political,” in that they are made by the government for the benefit of everyone, rather than made for accountability among those involved in the crash. The NTSB reviews accidents primarily for the purpose of making recommendations for the future and secondarily for determining fault. In contrast, civil litigation exists to determine who should pay for the losses arising from an injury, and thus cases are reviewed by the judicial system primarily for determining fault.

This difference in focus isn’t just a matter of word choice. There’s an entire field of ‘root cause analysis’ that assesses the way in which accidents and other failures are investigated. Its lessons have been applied to aircraft safety as well, including in the federal regulations governing military aircraft safety, which direct audits towards the cause, not just the symptom, of safety deficiencies.

That’s not to say the NTSB’s process is flawed or that their conclusions are wrong (although it’s always disturbing to me how the “party system” always gives the likely culpable parties a seat at the table but never gives any voice to the victims). It’s just important to understand that they answer a different question — what can we, as a government agency, recommend to prevent this in the future? — from the question asked in a lawsuit: who, if anyone, was responsible?

Tim OBrien Photo - P51 Loss Of Trim TabInitial reports have focused on the trim tab of the Galloping Ghost. A remarkable photo just before the crash taken by Tim O’Brien, himself an air show organizer, shows the plane missing one of its left side trim tab entirely. Still images from video taken of the crash show the trim tab in the process of falling off.

It wouldn’t be surprising if the flutter caused the trim tab to break off. (For those unfamiliar with flutter, Mike Danko dug up an old NASA video of trim tab flutter). That’s a known problem with P-51s; consider this report regarding the P-51 Voodoo Chile at the Reno National Championship Air Races just a couple years ago:

… Voodoo very abruptly pulled up; however, Hannah didn’t radio a distress call. … Steve Hinton flew over to take a look Voodoo. “You OK Bob?” called Hinton. “Yea, this thing just popped big time,” replied Hannah. What Hannah didn’t mention is that the g-load from the quick pull-up had caused him to black out. He finally managed to reach the throttle and reduced Voodoo’s power. At that point Hannah radioed that he “(wasn’t) out of it yet,” but he wasn’t thinking clearly. Later, he declared a mayday and made a perfect landing. … On the ground one could see what cause Voodoo’s problems during the race. The left elevator torque tube failed when the elevator trim fluttered and departed the plane. Fortunately, Bob Hannah’s skill and coolness in the cockpit saved day.

When the trim tab fell off Voodoo, the plane shot upwards and the 10G deceleration force caused Bob Hannah to black out entirely. That’s just as you would expect: the faster you go, the more the plane points upwards on its own, and the more you need to point the nose down to trim the airplane. Thus, at speed and level, the trim tab points up relative to the airflow over the elevator, causing the elevator to be deflected slightly down to maintain level flight.

At over 500 miles per hour, there are enormous airloads on the elevator trim tab to keep the elevator in a position that allows the pilot to maintain control, making damage to the trim tab more likely. Remove the trim tab and the non-trimmed elevator settings immediately deflect up, just like when pulling the stick back hard. That’s what causes the abrupt climb (and corresponding loss of consciousness) when the trim tab falls off.

Hannah regained consciousness at 9,000 feet and, as you can tell from the above, took some time to come back to his senses. You can see pictures of the damage here. It was even the same trim tab. The difference between Voodoo’s close call and Galloping Ghost’s tragedy may have been pure, dumb luck: Voodoo didn’t roll after losing the trim tab while Galloping Ghost did.

But that doesn’t necessarily mean flutter caused the trim tab to dislodge, or that the trim tab was the cause of the accident, or that the trim tab was the only cause of the accident. It’s quite possible something else caused the Galloping Ghost to climb rapidly, and in that process the flutter developed or the trim tab was damaged. As has been reported, some members of the crowd noticed “a strange gurgling engine noise” before Galloping Ghost pitched upwards. Further, as discussed below, it’s possible the trim tab failure could have been avoided, and more could have been done — such as ensuring the pilot was harnessed properly and plotting the race further from the stands — to prevent this tragedy.

So, where might liability fall? I often say that fatal maritime and aviation accidents rarely happen as the result of a single, unlikely event. Usually, they’re caused by a cascade of failure.

First, pilot error. There was initially some chatter about the propriety of allowing an “80 year old man” (Leeward was really 74, but “80” somehow ended up being widely repeated) to fly in an air race, but he was among the more highly qualified pilots in the country — including having a third class medical certification certification as of March 2010, which was still valid as of the accident. The question, then, is not if the organizers or other third parties appropriately evaluated his health — he was certified — but rather if he or anyone involved with his flight preparation recognized any physical disabilities that arose after March 2010 and which could have impaired his ability to fly. Of course, his health is irrelevant if he never became disabled and there’s some other explanation for why his aircraft suddenly climbed, rolled, and dove.

There might be other pilot error, though. Planes aren’t like cars; improper control settings can cause damage to the plane even in the absence of a defect or a collision. Leeward could have been using excessive trim inputs to assist with the turns. It also appears that Leeward didn’t lock his shoulder harness to stop him from slumping forward, which is why you can barely see him in the plane. After the abrupt turn upwards and corresponding deceleration, his torso probably contacted the stick causing the plane to roll (unlike Bob Hannah, who had a locked harness [Update: See Brad Haskin's comment about this below.]). The videos show him hitting the ground at full power, so he was not conscious.

Second, defective parts, an unsafe design, or inadequate maintenance. A broken trim tab is obviously a problem, and it’s a known weakness in P-51s. Was the plane properly inspected and maintained? Here, there are questions of method and timing. FAR 43.13 requires:

Each person performing maintenance, alteration, or preventive maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer’s maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator, except as noted in §43.16. He shall use the tools, equipment, and test apparatus necessary to assure completion of the work in accordance with accepted industry practices. If special equipment or test apparatus is recommended by the manufacturer involved, he must use that equipment or apparatus or its equivalent acceptable to the Administrator.

As Mike Busch summed it up, “The key to understanding FAR 43.13 is the phrase ‘methods, techniques and practices.’ That phrase refers to how to do something, not when to do something.” There’s thus not as much federal law for when maintenance should be done, but industry standards — and the general duty of reasonable under negligence law — demand it be done with some frequency. I’d be surprised if someone of Leeward’s stature didn’t have his planes inspected very frequently, but, in investigating these claims, you often never know what you find. We’ve seen aircraft parts sold as “new” that turned out to be patched up parts from the WWII-era.

Moreover, it bears mention that Galloping Ghost had been heavily modified to make it faster. Can a P-51 be modified to the point that it is so fast, and creates such force and stress, that it becomes inevitable that the elevator trim tab breaks off? Absolutely, and it would be negligent on the part of the owner, designer, and builder to fly such a plane at racing speeds above a dense crowd of spectators. [Update: See the comment about experimental planes below.]

Third, flight planning. Whenever a plane crashes into a populated area, the choice of route comes under scrutiny, as does the possibility of airport controller error. All low-flying planes create a danger of impact (consider, for example, the Ramstein disaster) and the National Championship Air Races has had more than its fair share of fatal crashes and near-misses like Voodoo. It is no stretch to say that it was only a matter of time before one of those accidents ended up happening in the stands. Sure, it’s thrilling for the crowd to be up close to the planes as they race, and unsurprising that the organizers would set up the race that way [Update: see TCinLA's comment below, it wasn't always that way, spectators used to be prohibited from even stepping foot on the tarmac, much less having seats there], but the companies making money off the event are charged by law with ensuring the safety of those spectators, including by toning down the thrills just a bit if it makes everyone safer.

So now what? Nine people are dead and dozens are injured, many seriously, many permanently. Lives lost, contributions to families lost, wages lost, and medical care needed. Some tort reformers have complained that, even though most accidents are simple pilot error, every airplane crash results in a flurry of litigation against airplane manufacturers, event organizers, and plane owners and mechanics.

There’s a reason for that: airplane crashes cause a lot of damage and are rarely a fluke or understandable mistake. They are one of the classic types of situations that our civil litigation system was designed to address.

A rule of thumb in aircraft disaster litigation is: name all involved parties in the complaint. It’s unfortunate, but in general plaintiffs need to sue everyone — from the City that hosted the event, to the organizers of the show, to the owners of the field, to the owner of the plane, the mechanics for the plane, and the pilot of the plane — to ensure that a plaintiff doesn’t learn, after the statute of limitations has expired, that they sued the wrong party. Defendants and insurance companies are more than happy to play games with shell entities and business arrangements, and there’s no way to know, pre-suit, what the contracts between the parties look like or how a court will rule on their various relationships. (Here’s one air show crash case, from California, in which the plaintiffs won against the company and City that managed the airport in front of the trial court only to have that entire part of their case thrown out on appeal.)

There’s no reason why an injured party can’t file a lawsuit before the NTSB investigation concludes — indeed, they usually have to, given how long the investigation takes — but typically those cases take a back seat to the initial interviews and damage assessment. Whatever the NTSB and legal outcome, this crash may spell the end of the National Championship Air Races, at least in their current form. Maybe that’s for the best; if they’re not run in a safe manner, they shouldn’t be run at all. Or maybe the solution is something as simple as ensuring planes conform to safe designs, mandating the use of proper harnesses, and moving the race a little bit further from the crowd.

[Note: I already allowed through a couple comments of the lawyers-are-scum variety, and I replied in turn. If you're about to leave a comment that plaintiffs' lawyers are ruining America or the like, then don't bother. We have enough already. Words are cheap; lifelong medical care or the death of a spouse or parent, not so much.]

Tweet Like Email LinkedIn
  • Guest

    Blackout is not loss of consciousness. You don’t understand basic aerospace physiology.

    I’m still waiting to hear if friends of mine are among the casualties, but you vultures are already circling, trying to turn this tragedy into a profit center.

    You are sick, Mr. Kennerly.

    • Anonymous

      I’d be happy to discuss the ins and outs of syncope with you, but that’s obviously not why you left a comment.

      I hope the best for your friends. Do you truly believe your friends, the innocent spectators, are somehow responsible for what happened, and that the truly culpable should be allowed to walk away from any accountability? That the many insurance companies involved here, all of which collected premiums for this very purpose, should be allowed to keep that money as profit while the injured pay their own expenses arising from the crash?

      If you ever find a species of vulture that tracks down predators and makes them pay for their victims’ medical care, let me know.

      ________________________________

  • Guest

    You are everything that is wrong with this society. Litgious cockroach.

    • Anonymous

      Readers, take note: this is what it’s like to represent injured people against insurance companies in 2011. Before you file a single piece of paper, much less walk in the courtroom doors — all I did was jot down some thoughts that came to me after seeing an event in the news, same I’ve been doing on this site for years — potential jurors will already see you as a “cockroach.”

      Why? Because they’ve been trained through years of corporate and insurance company propaganda that all lawsuits are frivolous. It doesn’t matter what the facts are: millions of people assume every lawsuit is frivolous until they themselves are injured.

      What’s wrong with this society is that too many people believe that accountability and responsibility applies only to the injured, the poor, and the sick, and that big corporate interests should be allowed to do whatever they want without paying a penny — not even of insurance money — for the damage they cause.

      If I negligently hit someone with my car, I’m responsible. Is there some reason we should suspend this rule for companies that fly planes into crowds?

      • Chris

        Max,

        I think you’ve got the bias a bit backwards. The bias is that many lawyers are cockroaches because we get pounded day-in and day-out by ads on TV from Ambulance Chasers who do really embody the idea. In addition to that, we see tons and tons of legal cases go through the courts (like the McDonalds coffee incident) where lawyers for the “victim” do everything they can to absolve the victim of basic accountability, the exact opposite of what you’ve talked about here. One of the things that these people have done is make legal liability waivers in most cases not even worth the paper their written on. Used to, if you did something dangerous and got hurt, it was your own fault, and the liability releases you signed ensured that you couldn’t sue as long as it wasn’t something negligent. Now, certain lawyers sue for anything, regardless of the facts (kinda like some news media – they don’t let the facts get in the way), and even worse – they win.

        If there was true negligence that occurred, then I’ll bet that every single person would support a proper civil legal challenge. But if there wasn’t, then it falls under the category of “act of God” and we learn from the accident, do what we can, and move forward. As of right now, unless there’s some “smoking gun” that comes out, this was the first time in 40+ years of the Reno National Air Races that an aircraft has crashed into the stands much less anywhere close (the next closest accident was about 1/4 mile away if I remember correctly), and we need to give proper consideration to those whom lost their lives or were badly hurt. Beyond that, we need to ensure that whatever decisions are made are instituted (and RARA has proven to be very good at making sure they address quickly any issues that arise) and that we don’t drop our guard in the future.

        • Anonymous

          Interesting you mention the McDonald’s coffee incident. Take the time to watch Hot Coffee, you might learn something: http://hotcoffeethemovie.com/

          Obviously, nobody knows at this point if there was, or was not, negligence. I’ve laid out some of my thoughts above. Your argument seems to be that negligence requires both a “smoking gun” and the prior occurrence of an identical accident. I think that’s too low a bar, and it’s certainly a lower bar than the law sets. As I recall seeing in conjunction with the rising rate of air traffic controller errors, “A lack of body bags does not indicate safety.’’ http://articles.boston.com/2011-09-05/business/30116325_1_air-traffic-controller-operational-errors-controls-planes/4

        • Runwayinsight

          Isn’t it interesting that SO MANY refer to the McDonalds coffee case when they know ONLY WHAT the insurance industry wants you to know about that case. Few bother to sort thru the insurance company jargon to realize that McDonalds had been warned REPEATEDLY about serving coffee MUCH HOTTER than National Restaurant Association standard. Yet 200+ serious coffee-burn injuries later McDonalds had to pay a token (ONE DAYS COFFEE PROFITS) to the little old lady who was scalded by the same source of injury to all those others.KEEP UP THE GOOD WORK, MAX! At least some of us appreciate your thoughts on these matters. Those who see you as a cockroach, no doubt are the same types as the short-cut supervisors who deny culpability for their own actions.Getting a case past the bias of WELL-OWNED court justices is no small task these days. That is especially true in states where just a few big industries control the courts. Massey Coal is the big Kahuna in my area — miners here in our area either work under constant threat of losing their jobs if they testify about hostile or unsafe conditions, or they don’t work at all. Being from WV where Big Coal and the Insurance Industry own our State Supreme Court and a few circuit court judges such as some judges in Kanawha, Wayne & Cabell Counties — note that Statefarm recently bought another State Supreme Court seat this time in Illinois where they spent the $3-M to elect their own monkey to the court….and they hit the jackpot with Karmeier right away as demonstrated by the following CHAMBER OF COMMERCE owned writeup:[MSK Edit -- I removed the quoted part to avoid copyright concerns. The article quoted is here: http://www.legalnewsline.com/news/233830-plaintiff-lawyers-state-farm-bought-karmeiers-sc-seat ] KEEP THE TRUTH COMING OUT, MAX. Some will listen, most won’t care until their family suffers the coffee burn.

        • Brad

          It’s really about the money. Come on admit it.
          My family was with me in section C/D.
          If the plane had killed some of them I would not sue.
          We know the risks involved.
          I will go next year.

          Brad

        • Anonymous

          It’s so easy for healthy people to claim they would never sue if they were injured. Words cost nothing.

        • Mart

          Imagine this: Your wife is hit and killed instantly, you lose your legs, your kids are turned into vegetables, your life in ruins, you won’t be able to work anymore, won’t be able to feed your kids, you’ll end up in the streets. Still not sueing? Be honest to yourself.

        • Chris Trott

          The law establishes a standard for negligence as criminal and/or civil. Obviously, the difference in the two is substantial, but in my opinion, case law creates a standard for civil negligence that is a “false positive”. The reason I say this is that I’ve seen several cases in aviation where negligence was found in the civil trials but the evidence presented (I read the whole casefile) said that all the investigators and “experts” didn’t find any negligence and several had testified under oath that they felt that all due care and diligence had been taken to prevent a failure and that the failure which had occurred could not have been reasonably predicted. The McDonald’s suit may be a “bad example”, but it’s that case that is a poster child (to me) of what the problem is. Yeah, the lady was entitled to restitution for McDonald’s negligence, but her lawyer team (which took home 90% of the judgement) weren’t. I once read a settlement about 5 years ago here in Texas where the settlement (negotiated for by the lawyers of the producers) got a sum of money from Exxon for failure to pay market rate for oil produced at some independent contractor wells as was stipulated in their contracts. The problem with the settlement? The amount was for the actual losses and the lawyers took 95% of that settlement, leaving the guys who had stood up to Exxon and won with just enough money to cover the cost of their going to court for the hearings and depositions. That’s where the problem lies. Not that there aren’t valid lawsuits being brought, but that the money goes to the wrong place and the amount of money is out of proportion to the actual and potential losses of the victim and then when they do win, most of it has (in the recent past) gone to everyone but the victim.

          However, for the negligence issue alone, let me try to use a case that might illustrate what I think is wrong with the way civil negligence works a little better – Air France 4590, the Concorde accident. Recently, a French Court found both Continental and the mechanic who ramp checked the plane negligent for allowing a part that was designed to fall off in case of failure do so. Yet, he found no direct fault in Air France or any of the regulatory agencies for failing to enact stringent and repeated recommendations from BAe and Goodrich to make modifications to the aircraft to prevent a tire failure from causing catastrophic damage to the aircraft as it had nearly done twice before. Yeah, the part fell off, but it falling off should not (and could not) have been foreseen by Continental or the mechanic to be the root cause of a tire failure that could take down an entire aircraft. However, Air France, British Airways, and the regulatory agencies did have warning that a tire could fail that explosively and could cause that much damage to the aircraft if it did fail and thus should have reasonably foreseen that their not fixing the problem (no matter what the cost) could result in the loss of an aircraft. Thus, since they should have reasonably known there was a significant potential for failure (tires are a item which have a high risk of failure) they are negligent for not addressing the issue in a way that minimized that risk. I know it’s in France and that’s not US courts, but it’s the only aviation reference I know of that illustrates my point.

          How does this translate to Reno? If there is evidence that Jimmy or his crew had knowledge that the aircraft would fail in the way it did prior to flying the aircraft then he is negligent. However, if there is no proof that they had any prior knowledge to show they should have reasonably believed a failure of that type was possible and failed to account for it, then he and his crew are not negligent for the failure. They may have LIABILITY in the accident, but the fault would be mechanical, not human. A person can reasonably push the envelope and know that a failure is possible, but you can also have a reasonable belief (and prove such belief) that such a failure would be of a type that you could safely handle or not place 3rd parties at risk should you not be able to handle it. As long as there’s no information to prove that this wasn’t the case, then negligence isn’t an issue. That’s what Risk Management is about. If the proof of negligence became so low that any failure can be negligence, then you will quickly find that people stop taking risks and pushing the envelope because they’re afraid that no matter what they do, they’ll have their lives ruined if something goes wrong. We’re already seeing the effect of it in volunteer organizations that have become so burdened by risk adverse rules and insurance requirements that they’re loosing their core membership because suddenly being a volunteer is a full time job in addition to their own full time job because of the hoops they have to jump through to stay “qualified” to do that position.

        • Anonymous

          “If there is no proof that they had any prior knowledge to show they should have reasonably believed a failure of that type was possible and failed to account for it, then he and his crew are not negligent for the failure.” In fact, plaintiffs need to show more than just “proof” of that, they need to present a preponderance of evidence showing that. The law sets a higher bar than you’re recommending.

          Your two anecdotes about lawyers taking home 90% of the settlements are almost certainly false or are missing critical information. There are no “90%” contingent fee agreements out there. There may be rare instances in which a lawyer nominally ends up taking the bulk of a settlement, but those situations only happen where the lawyer already had to pay enormous out-of-pocket costs to get the case into a settlement posture, and so the bulk of the money is going to reimburse those costs — which is a mere recovery of expenses, and is not in any sense profit (in fact, it’s a loss due to the time value of money).

          I can assure you no trial lawyer has ever been made rich by a case in which they spent hundreds of thousands or millions of dollars just to get a settlement modestly higher than their own costs; in fact, many lawyers have been bankrupted by exactly that. See, e.g., the book & movie A Civil Action.

        • Chris

          You’re right, it may be the “exception” for a lawyer to take that much of a settlement, but it happens and certainly happened in these cases. I wish I could find an online version of the settlement statement, but this was back in 2005 and the newspaper that carried the public notice does not have archives available back to that time for such notices. You’re right, it may have been their costs, but it seems to me that if their costs were that high, they had a responsibility to their clients to tell them not to take the settlement for anything less than making them whole and covering the costs. Why take a settlement for what they’re owed knowing they’re going to end up with pennies on the dollar after you take your costs out? That is the kind of thing that makes a lot of people mad at civil lawyers when they see things like that.

        • Anonymous

          In every jurisdiction I’m aware of, clients have full control over when to settle their own actions. I’ve never seen a case where the client or lawyer thought the case was strong but they settled it at such an amount — because there’s no incentive to do so. The only time that happens is when the client and lawyer recognize the case will likely not prevail for more than the costs, so they resolve the action that way, covering the lawyer’s costs and protecting the client against sanctions, costs, or a wrongful use of civil proceedings lawsuit if they lose.

    • Juan Jimenez

      People only refer to an attorney in a situation like this as a “litgious (sic) cockroach” until they become the injured party and need to sue for damages due to lost wages, hospitalization and rehab costs, etc. As a non-attorney who has used the services of one to recover after an injury caused due to negligence, I view the anonymous cowards who post things like this as garden-variety asswipes.

  • Rich

    When one chooses to attend an event like the Reno Air Races as a spectator, is there any law, legal precedent or legal concept that as a spectator you assume some level of risk to yourself? As a visitor, do I have a legal right to expect protections for myself from the unexpected? What if I go to a fireworks show? NASCAR event with front-row seats? Does the fine print of the back of my admission ticket have any legal value?

    As a victim, at what point is the line between someone/some entity being “responsible” for an incident versus simple fate? People die all the time doing things in day-to-day life and it’s not always someone’s fault. Does the legal world operate on the base assumption that the world is perfect, nothing ever breaks, designs are perfect, acts of god are preventable, and human error does not (or should not) exist?

    I’m not being snarky – just genuinely curious.

    • Anonymous

      All fair questions that arise frequently in the context of spectator injuries. Consider Turner v. Mandalay Sports Entm’t, 180 P. 3d 1172, a 2008 case from the Nevada Supreme Court relating to injuries from a foul ball at a baseball game which held:

      “12 jurisdictions have adopted the “limited duty rule,” which places two important requirements on stadium owners and operators. First, the rule requires stadium owners and operators to provide a sufficient amount of protected seating for those spectators “who may be reasonably anticipated to desire protected seats on an ordinary occasion.” Second, it requires stadium owners and operators to provide protection for all spectators located in the most dangerous parts of the stadium, that is, those areas that pose an unduly high risk of injury from foul balls (such as directly behind home plate).”

      You can read the case here: http://scholar.google.com/scholar_case?case=8241173357883640621

      The legal world emphatically does not assume the world is perfect; at all times, a plaintiff alleging negligence must prove the defendant had a duty to the plaintiff, the defendant failed to exercise reasonable care, and that such caused plaintiff’s injuries. “Reasonable care” is a factual question determined by considering prevailing customs and practices of reasonably competent pilots, airplane owners, and air show organizers in similar circumstances, typically as shown through expert testimony.

      As for the fine print on your admission ticket, that’s a long and thorny legal question. One important distinction, though: usually, even if a plaintiff ‘assumes the risk of injury,’ they assume the risk of injuries inherent to the activity, like a foul ball in the stands or falling while skiing. They don’t, however, usually assume the risk of someone else’s negligence — like, as may be pertinent here, modifying a racing plane to make it faster without similarly reinforcing the trim tabs — unless their agreement specifically says so.

    • http://www.facebook.com/people/Scott-Brown/1525756291 Scott Brown

      Oh no….to a lawyer, its ALWAYS somebody’s fault…despite the fact that “at your own risk” is printed on the tickets to the air race. Yes, the legal “profession” operates under the assumption that the world is perfectly safe. Had these people been killed by a meteor… almost as fantastic a chance as being killed by an out of control racing plane..I’d imagine the adage “sue everybody” would apply…you know…just to be safe. Somebody would have to pay…NASA, the World Bank, George Bush…somebody with deep pockets HAD to have known about that meteor and failed to prevent it, or actually caused it to strike the earth.The crowds at the Reno are well away from the aircraft as they go by that one tiny stretch of the course…in the history of the race, no aircraft has ever come anywhere near the stands during an emergency, specifically because of the design of the course and the organizers desire for safety. Otherwise, they’d allow the spectators to stand around by the pylons, which would be FAR more enjoyable than a quarter mile from the straightaway down rwy 8/26. The fact that the Reno organizers spend most of their time drilling safety into the event, and the FAA is neck deep in it from every standpoint you can possibly fathom simply means there are more people to sue…I assume the FAA is on the list? I know…you can’t sue the government…well…maybe you can.You lacked SA in bad weather, had an emergency, couldn’t perform your duties as PIC…but its the FAA’s fault… http://www.news4jax.com/news/1

      • Anonymous

        The crowds at Reno were quite obviously not “well away from the aircraft.” Maybe they were within the standard of care — the FAA does permit them to be fairly close to air races — but it’s more than a bit absurd to argue at this point that the crowd was a safe distance from the aircraft.

        On the subject, the FAA sets its own minimum standards; it does not try to grant anyone legal immunity from their duties to exercise reasonable care. The FAA sets a floor for safety, not a ceiling.

  • Kevin Costa

    This is a very illuminating piece, both on the technical side and the legal side. I am also slightly bewildered by the two ferocious comments. Anyway, thanks for your thoughts.

  • guest

    Interesting article.

    Does the fact the aircraft was certified in the ‘experimental’ category enter into the equation? Experimental aircraft often have their certifications expire after a year. After which they need to be renewed by the local FAA FSDO office. Galloping Ghost’s EXP cert shows no expiration date. Perhaps with no prospective FAA review of the continued airworthiness certain inspections or maintenance items could have been overlooked. Typically as an owner of an aircraft with EXP certification you are pretty much left to your own as to the maintenance program you ascribe to. The FAA gives quite a bit of leeway. An EXP ticket almost gives you carte blanche to make whatever modifications or changes you want to the airframe. No Form 337′s or DER’s are required. A logbook entry is sufficient. You are not obliged to follow 43.13 with an EXP ticket on the aircraft.

    Another issue is the pilot only having a class 3 FAA medical. The qualifications for obtaining a class 3 are less stringent than a class 2 or class 1. I’m sure Mr Leeward’s AME will no doubt be called testify. It may be an outcome from the investigations that a higher class medical will be required to participate in air racing. After all airline pilots are required to have class 1 medicals and must retire from the airlines at age 65.

    When I was attending A&P school years ago the instructors always said the litigators go for the ones with the deep pockets. That’s one of the reason aircraft parts so expensive to begin with; product liability insurance. That FAA-PMA sticker on your aircraft part is what jacks the price up. Many small, civil aircraft use the same parts as you find in your automobile. the only difference is for airplane use they have that extra certification. It doesn’t mean the parts are any better, it just means they are covered by product liability insurance. And once again, going back to the EXP certification you can install any part you want to on the airplane. The one who signs the logbook is the one taking the responsibility for it being airworthy.

    Will this accident ban air racing or air shows? I doubt it. I’m sure there will be new rules in place regarding flight lines, safety zones, spectator viewing areas, pilot requirements, etc. The downside will be greater expense incurred due to the litigation fees and fines levied. of course these costs will be passed on to the spectator and consumer……

    • Anonymous

      All great points and I imagine the experimental status played a role here. FAA regulations give you leeway, but tort law does not: if your plane was unsafe, you can be liable for damage caused when it crashes. It would not surprise me if the ‘root cause’ of this accident was overengineering for speed. You can’t just make a propeller plane go jet speeds and expect the rest of it to hold up. If you modify the plane to make it go significantly faster, you need to modify vulnerable parts like trim tabs to ensure they can withstand the increased stress.

      • Anonymous

        Experimental status may be very significant here, see FAR § 43.1, “Applicability:

        (b) This part does not apply to—

        (1) Any aircraft for which the FAA has issued an experimental certificate, unless the FAA has previously issued a different kind of airworthiness certificate for that aircraft; or

        (2) Any aircraft for which the FAA has issued an experimental certificate under the provisions of §21.191 (i)(3) of this chapter, and the aircraft was previously issued a special airworthiness certificate in the light-sport category under the provisions of §21.190 of this chapter.”

        • Anonymous

          You are quite right — I had referenced the primary FAR as a way of explaining some of the ways in which the FAA doesn’t control airplane maintenance, but, truth is, 21.191, 21.193, 21.195 are the sections applicable. Under that, Galloping Ghost needs to be set on its maintenance schedule and the like. The FAA gives a lot of room to experimental aircraft — and, correspondingly, they have a greater responsibility to establish on their own appropriate protocols.

  • Brad Haskin

    Well written. I would, however, like to correct a comment about Bob Hannah’s incident. The article stated that Hannah’s inertia reel was locked. This was false. I was in the pilot briefing the next morning where Bob specifically stated that coming down for the start he had unlocked the inertia reel to reach for a switch on the instrument panel…and then forgot to lock it again. After the pitch up, he found himself (in his own words) with his hands on the sandpaper (the floorboard) and the stick stuck between his helmet and shoulder, literally doubled-over in the cockpit. Eerily similar to Mr. Leeward’s experience, it sounds.

    Hannah’s number one regret, in hindsight, was that he had neglected to re-lock the inertia reel.

  • Michael Nance

    This was a tragic ACCIDENT. Period. There is not a “legally liable party” in every situation unlike the ambulance chasing lawyers will have you believe. I was injured as a result of this accident, but guess what? I knew there was that chance just like there is at any sporting event, car race, air show etc. It is ludicrous to hold the pilot, his family and crew, or the event organizers responsible for this tragedy.

  • Anonymous

    What disturbed me as someone who attended the races regularly in the 1970s and early 1980s was to see the box seats out in front of the grandstand on the tarmac. Back in my day, that area was off limits to anyone but officials, and race crews with airplanes parked there. I couldn’t get out there with a press pass. If that rule had been in place this year, there would have been no more than 1 or 2 fatalities at most, and none of them would have been spectators. I have been told that these seats were created to generate revenue, about $250 per day per person (which might not be entirely accurate, but it wasn’t cheap whatever it is, corporate-run Nevada being what it is nowadays). That rule was there because of safety. If safety was dropped in favor of money, then it is entirely reasonable to sue the hell out of the morons who made that decision.

  • Shipmate7

    Most of the people at the race knew there was some danger associated with being so close to the planes. This country is dying a deathbof a million cuts. Closing the air races and bankrupting a whole bunch of people is just another cut. Unfortunately, i agree that the people holding the razor are most often the bar and the activist court.

    Damn shame

    Mark in Atlanta

    • Anonymous

      Everyone who gets in a car “knows there’s some danger” of being hit by a drunk driver; does that mean drunk drivers and their insurers shouldn’t be responsible for the damage they cause?

      The only individuals who might declare bankruptcy over this are the families of the victims. The responsible parties are insured and protected. Some of those corporate entities might strategically declare bankruptcy and reorganize with the same owners; of all the tragedies here, you cry tears over that?

      • ZatchF

        With all due respect, are you really comparing this incident to that of an accident cause by someone driving drunk? Really? As a crew member of one of the Unlimiteds in that fateful race, I can tell you that the #1 priority of ever single pilot and crew member is safety. We go above and beyond even what the FAA requires of us because we want to ensure to the best of our abilities that the races are safe and fun for all.

        At this point in the investigation, it appears that this was just a freak accident that no one saw coming. Stuff like that happens in life; there’s always going to be risks. If we come to find out that some individual is at fault for this tragedy, it is not because that person was irresponsibly reckless like some careless drunk who gets behind the wheel of a car and deliberately puts other people’s lives at risk, as is implied by your fallacious, insulting, and incompetent analogy. If the responsibility of this accident falls on anyone’s shoulders, it was because those people are human and, despite our best efforts at ensuring the safety of each aircraft and race, we are still capable of missing things.

        There’s no perfect world in which no one makes mistakes. We do our best to hold each crew member accountable, by checking and double checking their inspections and so forth. When people go out to Stead to watch our planes compete, they have to assume that there is some risk that, despite our best efforts, accidents could still happen. I cannot emphasize enough the absurdity and insensitivity of your drunk driver analogy because it compares people who work insanely hard to ensure the safety of others to someone who has absolutely no regard for other people’s safety.

        • Anonymous

          You might want to re-read my comment again, it seems you didn’t understand it. That particular comment is about the assumption of risk by the spectators, not about the actions of the crew.
          “Freak accident no one saw coming” is an interesting choice of words. Nobody could foresee a trim tab coming off and so reinforce it or adjust it? The race organizers couldn’t foresee the possibility of a crash of any sort, and so couldn’t have moved the crowd back? There have been dozens of accidents at that race; it’s not a “freak accident” that one of them ended up on the tarmac, it was an accident waiting to happen. There was no good reason to seat spectators that close.

        • ZatchF

          Mr. Kennerly, thank you for your response.

          First of all, I understand that your comment was regarding the assumption of risk by spectators. But putting yourself at risk by potentially driving on the same road as a drunk driver is far different than assuming the risks at an event like the Reno Air Races. Maybe it would be more comparable if drivers willingly chose to drive next to someone they knew was drunk. Even then, it’s not an appropriate analogy because drunk drivers and skilled pilots/crew members are on two completely opposite ends of the safety-concern spectrum.

          Also, drunk driving is a crime – racing planes at Reno is not. If a race plane crashes, it was not because the pilot was deviant, it was because he suffered from an accident that many competent people put a lot of effort into trying to prevent. The responsibility of drunk drivers towards their victims is different than the responsibility of a race team/race organization/government agencies that allow these event to occur, etc. (This is not to say that none of the aforementioned parties should do anything: the event is insured and will cover the medical expenses of all those injured, thus making a lawsuit for this specific incident unnecessary).

          In regards to your assertion that “Nobody could foresee a trim tab coming off and so reinforce it or adjust it”, I believe I addressed that concern in my comment when I said that all areas of each aircraft are checked and double checked by crew members. Even then, people are human, and they are not incapable of overlooking something unknowingly. However, I also do not think this is the case. Obviously, it is in the pilot’s and crew’s best interest to ensure that the trim tabs are secure, and The Galloping Ghost’s crew apparently believed they were. Hindsight is 20/20. For all we know, the trim tab was solid when the plane took off, and something happened to it while the plane was in flight that caused the trim tab to come off. Perhaps no additional reinforcement could have prevented that from happening – we will just have to wait and see what the NTSB comes up with.

          Also, regarding the distance of the crowd from the planes, the spectators are already 300 feet further away from the deadline than the FAA requires. (The deadline is the minimum distance any plane can fly from the crowd without being disqualified. When The Galloping Ghost rounded the corner, wobbled, and pitched up, Mr. Leeward was flying well within the deadline, even further away from the crowd). In Reno’s 48 years of air racing, this is also the first time any spectator has every been injured or killed, thus justifying my “freak accident” remark.

          If this incident was, as you claim, “an accident waiting to happen”, then why is it ludicrous to say that the spectators bear some level of responsibility if they got hurt? If YOU know the risks, and the Reno Air Race Association warns people of the risks, than why is it unreasonable to say that any person injured as this event bears some level of responsibility? How much responsibility do you believe spectators assume in this incident?

          Thank you for time in discussing these concerns with me.

        • Anonymous

          The problem is that your arguments defeat one another: you argue that the spectators knowingly accepted the risk this accident occurring, yet the pilot, crew and race officials couldn’t reasonably foresee it. As a general theoretical matter, the law tries to put the risk of loss on the party that is in the best position to avoid the loss — here, the pilot, crew and race officials. The law similarly imposes legal duties on business operators, here the race officials.
          You seem to have an implicit “one bite” rule, so named for the old rule that a dog that hadn’t yet mauled anyone wasn’t dangerous. The fact that this is the first time spectators have been killed says nothing about whether anyone was negligent, it just says they were lucky.
          Maybe every reasonable precaution was taken, maybe not: that’s the point of our civil justice system, to answer these questions. At the moment, you and I have a fraction of the information that would come out through full civil discovery, so it’s premature for either of us to do anything but speculate. I don’t doubt Leeward’s team thought they were being diligent. That doesn’t necessarily mean they weren’t negligent. Same goes for the race organizers.
          Thanks for the comments.

  • Guest

    Sigh. As my wife says, “It depends” With VooDoo Chile having the same trim flutter problem in 1998, did the ‘Ghost team do any substantive engineering to test or analyze the issue? If not, why would they have ignored what happened to VooDoo? (Who was it that said “hope is not a strategy?”) If so, was the testing/ analysis adequate?

    Unfortunately, some snarky comments about lawyers are perceptably justified, most notably the successful suit against Parker Hannifin for a pneumatic pump that was working just fine when Senator Carnahan’s plane went down. http://www.iasa.com.au/folders/Publications/Legal_Issues/carnahanfail.html

    That being said, when I read aboutt the recent successful suit against Lycoming http://www.aviationlawmonitor.com/2010/04/articles/lawsuits-1/defective-carburetor-results-in-jury-verdict-against-avco-lycoming/ because the plaintiff’s team did use some engineering to prove (to the jury at least) that the use of subpar materials in the carburetor did, in fact, contribute to the crash and Lycoming didn’t pay attention to the issues, so I have to hand ti to the plaintiff’s team in that case.

    Sigh.

  • Kelliadamson

    So can we assume that your firm will be representing the victims of this tragic accident pro bono?
    Because this is really about serving the needs of the victims and ensuring changes are made to keep fans safe at future events right? Seems to me that would be the right thing to do. If not, then this is about money and profiting off of other peoples pain and suffering.

    • Anonymous

      If the responsible parties tender their insurance policies to a trust fund for the victims, I’ll represent anyone who asks on a pro bono basis to negotiate the value of their claim. You can donate funds for expenses like copying, medical records, etc.

      I’m betting that, instead, the responsible parties and insurance companies put up a vicious, multi-year fight that requires thousands of hours of attorney time and hundreds of thousands of dollars in expenses, both with no guarantee of any return. If that’s case, why should plaintiffs’ lawyers — who put their time and money on the line for the victims’ — sacrifice while the responsible parties, their insurers, and their lawyers profit?

  • Jeremy

    something I found interested is on the ticket it says that the air show will not be held liable for any injure or death at the air race. So how does that give anyone the ability to sue the people doing the air races. I could understand sueing the pilot since he seems to have been negligent in a couple of things that seem to have lead to the crash.

    • http://www.litigationandtrial.com/ Max Kennerly

      That’s a complicated question. Courts don’t always enforce those; last month, for example, in our of our cases the Pennsylvania Supreme Court held that landowners couldn’t absolve themselves from responsibility for “reckless” conduct.