A Primer on Aircraft Flight Instructor Liability

             Certified Flight Instructors (CFIs) needs to protect themselves in a world that seems to present risks of liability arising from flight instruction.  The thought of courtrooms and jury boxes, including the potential loss of one’s hard-earned assets, should rightly give a moment of caution.  However, a healthy respect for liability, along with some healthy precautionary measures, can go a long way towards creating a protective barrier around the target.  The target, of course, is the flight instructor.

            Liability generally manifests itself out of intentional or negligent acts.  The distinction between an intentional and negligent act is important to any discussion of aviation liability.  An “intentional act” generally will leave an individual without insurance indemnity, assuming that the individual had the foresight to procure an insurance policy.  But most acts involving aviation simply arise out of “negligence” or a failure to exercise “due care” under the circumstances involved.  Therefore, this article will focus on the relevant notion of negligence, which in the context of a flight instructor is generally defined as the failure to use the level of care which a reasonably prudent and careful CFI would use under similar circumstances.[1]  And, since most jurors, as the factual deciders of what is or isn’t “reasonable,” are clueless what a reasonable instructor would do, they must, of necessity, rely upon an “expert witness” for each side to advise them.

            A person who claims someone is liable or responsible for a negligent act under a theory of negligence must establish certain basic elements.  These elements are duty, a breach of that duty, and some injury or damage directly and proximately caused by the breach of duty.[2]  Any aviation incident typically will involve some sort of money damage to property or physical injury to a person, so this element merits minimal discussion here.  Duty is where the battle lines will be drawn and the legal war fought.

            The threshold issue of “duty,” and a departure from it, is the central issue in any negligence action.  Plaintiffs claiming damage or injury will first have the burden of proving they were owed a duty by the defendant.[3]  In Snyder-Stulginskis, the plaintiffs were unable to prove that United Airlines somehow owed the victims of an airline crash a duty of care.[4]  Despite the fact that United Airlines provided flight training to the foreign airline pilots of the doomed aircraft, that alone was insufficient to aver an indirect, vicarious duty to a third party in the case.[5]  With no proof of the first and most important element of duty, an action for negligence will fail.

            A primary concern of all flight instructors should be to what standard they will be held regarding their performance and duty to others.  In one case, a court held the instructor pilot had a duty to act as a reasonably prudent pilot during a flight that resulted in a crash.[6]  The instructor pilot was conducting a Biennial Flight Review (BFR) with an instructee who held a valid pilot’s license but was out of his required BFR time, and he was attempting to pass the review for the third time.[7]  The key issue the court focused upon was the identity, and duty of, the “pilot in command” (PIC) of the flight.[8]  Using the Federal Aviation Regulations (FARs) to determine the duties of the PIC, the court found, as a matter of fact, that the instructor was functioning as the PIC, and he breached his duty under three separate regulations.[9]  The relevant Federal Aviation Regulations require dual control aircraft for flight instruction, flight review or flight training and ground training, and the operation of the aircraft in such a manner that does not endanger the life of another by careless or reckless operation.[10]  The aircraft used in this case was effectively a single yoke aircraft, the instructor did not conduct the minimum required pre-flight review, and the instructor endangered the life of the student by operating the aircraft in a careless and reckless manner.[11]  Following analysis of all of these facts, the court decided that ultimately the instructor was liable for eighty percent of the fault, while the instructee at the controls of the aircraft was found liable for the remaining twenty percent of fault.[12]  So, one does not necessarily have to be the PIC to be held liable or at fault.  The court said this instructor did not act as a reasonably prudent CFI under the circumstances.[13]  However, FAR Part 61 permissively provides that a CFI may log the time of actual instruction as PIC: it is not automatic or required per se.  If instructees have the proper ratings, they too can log the time as PIC, making it confusing as to who properly is the PIC.

            May an instructor pilot shift liability to an instructee pilot who is flying the aircraft under a theory of “bailment?”  The court in the Jetcraft case said “no” because there was not enough exclusive possession and control for the presumption of “bailment” negligence.[14]  The plaintiff’s plane, flown by the instructee ATP/non-type-rated pilot and the type-rated CFI instructor pilot, crashed after the landing gear collapsed due to the alleged handle operation by the CFI, who was the Pilot Not Flying (PNF).  The allegation was that the instructor pilot was operating the landing gear controls only, and this was exclusively under his control.[15]  In order to claim “bailment,” the defendant must be in exclusive possession and control of the aircraft, and not just a component, at the time of the crash.[16]  “Ultimate authority,” as discussed under the Federal Aviation Regulations for a PIC, is not the same as the exclusive possession and control requirement for “bailment.”[17]  This final authority contemplates responsibility for another pilot, such as a student or instructee.[18]  An instructee pilot flying and logging time as “dual” instructional flight time (because he was not then type-rated to enable him to lawfully be the PIC), with a qualified instructor pilot, is nonetheless actively participating as an “operator” of the aircraft as the Pilot Flying (PF).[19]  At the time of this crash, the instructee pilot was flying the aircraft as the PF; while the instructor was functioning as Second In Command (SIC), observing, instructing, and operating the landing gear controls.[20]  Although the instructor was merely operating the landing gear controls, the court found that this was insufficient to shift the responsibility and prove the “exclusive possession and control” of the aircraft, by the instructee pilot, which was necessary to make a claim for “bailment” of the aircraft, and consequential negligence.[21].

            Despite the “reasonably prudent pilot” standard and the idea of “bailment” to impute negligence, a good argument can be made that the standard is actually even higher.  At least one commentator argues that courts will usually per se look to the instructor, rather than the student or instructee, for liability.[22]  The student is thought to be less knowledgeable than the CFI.[23]  A CFI is presumed to have greater knowledge, learning, experience, and skill than the student pilot.[24]  In light of this line of reasoning, instructor pilots should consider the real possibility that the bar might actually be set higher for them than the “reasonably prudent pilot” standard.

         One certain way to remove a CFI from the bull’s eye target is to stop instructing student pilots altogether.  This is a very real option likely considered by many instructor pilots.  One instructor expressed such a fear of liability that he felt nearly compelled to stop the training of others.[25]  For “part-timers,” a CFI must weigh the financial benefit of the odd fee against the loss of everything one owns, should liability result.  Does this mean there are no means of avoiding liability, and thus prohibiting a CFI from continuing to teach students to fly?  If the CFI requires absolute freedom from liability, then the answer is probably “yes.”  On the other hand, if CFIs can remember and follow a simple acronym, they just might be able to reduce or limit their exposure to liability. 

            That acronym is “RISC,” and its employment, as part of “risk management,” can help avoid exposure to liability.  RISC stands for Release, Insurance, Scrutinize, and Care/Caution.  If the CFI can remember these four basic concepts, they can utilize them in order to limit potential exposure to liability.  They are not meant to be exhaustive and, to be sure, nothing short of ceasing the activity completely will protect a CFI completely from the very real risks of liability exposure.

RELEASE

            Have the instructee student sign a release of liability before the CFI provides flight instruction.  A release, also known as a waiver or exculpatory clause, can be an invaluable tool in reducing the CFI’s exposure to liability.  Although most courts do not favor exculpatory clauses, there are many situations where they have been held perfectly valid and enforceable.  Exculpatory clauses used with recreational activities undertaken on a voluntary basis, such as snowmobiling, horseback riding, health gyms, swimming pool activities, skydiving, and flying, are often found to be perfectly valid.  The idea of an exculpatory clause is that it represents an expressed assumption of the risk.  This is a widely recognized defense to claims of negligence.  However, there are situations where an exculpatory clause would almost certainly be found invalid.  These involve the typical “gun to the head” scenarios.  Is there a disproportionate relationship of power between the parties?  Is there a choice or is there duress, being “forced” with no viable alternative?  Skydiving, for example, is not an “essential service,” like emergency medical care at a hospital.[26]  Hospitals and the workplace are the most common examples of where an exculpatory clause is signed under duress and without a viable alternative.  As such, it would not be looked upon favorably by any court. 

            One very recent example of an exculpatory clause that a court found to be valid arose in the case of an airplane crash involving the famous Chicago area Lima Lima formations flying team.[27]  A pilot on the team signed an exculpatory clause which warned, and he voluntarily acknowledged, that formation flying was “inherently dangerous.”[28]  The waiver also released the defendants from liability specifically related to instruction, training, participating, practicing, and traveling with the aerial team.[29]  Despite this court’s acknowledgement that exculpatory clauses are not generally favored, and should be strictly construed against the benefiting party, this clause was held to have been valid because it clearly spelled out the intentions of the parties, it did not involve any disproportionate relationships of power, and it was not against public policy.[30]  Furthermore, the injury suffered was within the scope of possible dangers contemplated by the parties.[31]

            Another case where an exculpatory clause was enforced by a court involved a parachutist who fell to his death when his parachute became entangled.[32]  The court held that unless there is a disproportionate relationship of power between parties, or the clause is against public policy, it is good.[33]  The exculpatory clause represented an express and knowing assumption of the risk and a contractual acceptance of it.  The injury was caused by a danger ordinarily accompanying skydiving and the plaintiff knew, or should have known, of the danger and risk of injury.[34]  This exculpatory clause contemplated a wide range of risks which could be expected by jumping out of an aircraft, and it is not necessary to anticipate the precise circumstances which may result in the injury.[35]  There was no evidence presented here that would indicate the plaintiff did not know of, or was not aware of, the risks he had signed off on in the waiver.[36]  However, this court did hold that an exclusion for results of willful and wanton misconduct, as this exculpatory clause contained, is illegal and against public policy.[37]

            When considering the use of exculpatory clauses it is important to remember some basic ideas.  The risks must be spelled out, as best you can, and do not include language which would excuse willful and wanton conduct.[38]  Beware of clauses that are too broad or ambiguous.  In one case, spraying a race car driver with chemical agents after the driver crashed off the track was found to be not covered in the waiver.[39]  Although an exculpatory clause may not be a fullproof bar of liability, one properly drafted can certainly help you.

INSURANCE

            Another basic invaluable tool in the CFI’s quest to build a fortress designed to keep out liability plaintiffs is insurance.  It transfers the liability exposure to an insurer – which typically has much “deeper pockets” than does the CFI.  There is a menu of choices when it comes to insurance, and it is up to the CFI what level of protection to obtain.  In choosing insurance coverage, an instructor pilot should consider several factors.  Some, but not all, of these considerations might be the residual amount of financial risk the instructor pilot is personally willing to assume, the experience level of the instructor, and the ability of the instructor to pass the cost of insurance on to the student by way of fees.

            A check of the Internet website for one aviation insurance company shows several rates and packages depending on the type and limit of the coverage.[40]  Certified Flight Instructor insurance coverage for non-owned aircraft is available in custom or package rates.[41]  Standard custom coverage for bodily injury and property damage starts at one hundred and forty-five dollars for twenty-five thousand per person, two hundred and fifty thousand on property damage, and two hundred and fifty thousand dollars per accident for the lowest coverage.[42]  These go up to as high as six hundred and ninety dollars for one hundred thousand per person, one million on property damage, and one million for each accident for the highest coverage under the standard custom coverage.[43]  Aircraft damage liability limits start at sixty dollars for the low limit of one thousand and one thousand six hundred and eighty dollars for the high limit of one hundred and fifty thousand.[44]

            Package coverage is also available for the CFIs.  Avemco offers the “Aviators Silver” as their lowest package.[45]  This costs two hundred and sixty-four dollars and provides twenty-five thousand per person, two hundred and fifty thousand on property damage, two hundred and fifty thousand per accident, and five thousand in aircraft damage liability.[46]  The highest package available is the “Aviator Platinum.”[47]  This costs, at the most, one thousand eight hundred and sixty dollars and provides one hundred thousand on bodily injury, one million on property damage, one million per accident, and one hundred thousand in aircraft damage liability.[48]

            Once insured, the CFI must be confident that the insurance will protect when needed.  An insurance company will have a duty to defend the CFI, depending on the allegations brought in the complaint.[49]  If the complaint alleges facts that are within the coverage, or even potentially within the coverage, then the duty on the insurance company to defend has been established.[50]  Negligent acts should always normally be covered by a CFI’s professional instruction insurance policy; however, intentional acts will not.  As stated earlier, liability for intentional acts which fail to meet the policy definition of “occurrence” involving aviation incidents are very rare, and should not be a concern to a typical instructor pilot.

SCRUTINIZE

            This means pay attention to details.  Take a very careful look at your instructee candidate: is this your best buddy who needs a BFR (and is unlikely to sue you), or some 18-year-old who likes motorcycles and other high-risk, judgment activity.  But remember, if your best buddy finds himself dead by flying into high tension wires that you perhaps forgot to mention or properly document in his log book, then it won’t be him coming after you: it will be his estate that will be measuring your assets for size.

            Next, be sure you are following a proper training syllabus and that Pilot Training Standards (PTS) requirements are being followed.  Carefully scrutinize and pay attention to the details of the training given, and properly document what you do in satisfying these standards.  While the CFI is not therefore the guarantor that the instructee will always properly execute on the training provided, after-the-fact, post loss litigation will seek to evaluate the CFI’s satisfaction of the duty owed, and if there was any deficiency or deviation from the standards.  The CFI’s principal task then is to fully document what the standard was – and the competency in which it was satisfied.  Proper documentation is the key to avoiding potential liability for the unfortunate negligence or lapse in judgment of others.

CARE/CAUTION

            This goes hand-in-hand with scrutiny in that it entails being precise and observing details.  All log book entries should be proper and detailed.  Safe instructing policies should be employed, as well as critically thinking about what could potentially happen on your “watch.”  Have “situational awareness” and take cognizance of what is happening around you.  If you are in heavy winds and your propeller is still in motion during shutdown, don’t tell a student to exit the aircraft.[51]  Know the limit of your student.  Don’t trust a new student’s ability to assess and judge the weather, which can be a killer.  Students may simply lack the ability to assess the risk and danger.[52]

            There are some who will read this material and feel it does not apply to them because they feel somehow they are “judgment proof.”  Perhaps they do not have much in the way of assets or feel a claim of liability will not come their way.  For the individuals who realize that they are “judgment proof” at the time, they likely hope they won’t remain that way forever.  Remember, liability can follow you now and into the future.  For example, the Statute of Limitations in Illinois allows a judgment to be revived seven years after it is entered.[53]  If a judgment is revived, it can be enforced any time within twenty years of the original date of judgment.[54]  That is something to seriously consider.  One might not have much now, but it is unlikely that a competent instructor pilot with a bright future will remain penniless for twenty years.

            Now that you know what RISC stands for, the only thing left for the CFI to do is remember and use it.  Prudent CFIs should consider having their students sign a release, insure themselves, scrutinize every student meticulously, and always use care and caution when providing training to their students.  Trying to stay one or two steps “ahead of the game” in the cockpit is important in the air, and the CFI should strive to do the same on the ground.  CFIs shouldn’t spend their lives “sweating it out” as they think about what liability they might face, as one instructor seems to have resigned himself to doing.[55]  Employ some “RISC” management and the CFI may then learn to enjoy instructing and teaching once again.