PILOT-Counsel: Instructor Liability Still A Concern

---

February 2021 editorial comment and update: This article first appeared in the October 2010 issue of PILOT Magazine​.  All the case examples noted in John Yodice’s article involved circumstances where either the CFI was present in the airplane or was actively participating in an on-going course of instruction. What about a situation where a pilot had received past flight training from a flight school and purported deficiencies in training are claimed to have contributed to an accident? It’s often more difficult for a plaintiff to succeed in such an instance because most states simply refuse to recognize a cause of action based on the so-called educational malpractice doctrine.
 
This doctrine basically holds that courts should not be asked to measure the standard of care (see John Yodice’s reference to “due care” in his article) afforded to students by educational institutions and teachers.  Courts have traditionally left quality of education determinations to the domain of public policymakers.  In aviation, this bar has stymied many negligence-based plaintiff’s actions against flight schools, but certainly not all of them. There are several exceptions including a 2013 case where the U.S. District court in Florida ruled that a negligence claim against a simulator-based training provider was not barred due to the educational malpractice doctrine.  The court found that “The public policy considerations that are relied upon to bar traditional educational malpractice claims do not carry over to the flight training setting, at least not on the facts of this case.”  This case involved TBM 700 crash which allegedly occurred due to a loss of control consistent with “torque roll” during a missed approach. The training provider had trained the accident pilot and the plaintiffs alleged that they failed in their “…duty to warn and train regarding a known lethal propensity of an aircraft.” The court further noted “…application of the educational bar in cases such as this amounts to a categorical grant of immunity to all entities engaged in instruction in the operation of dangerous equipment.”  There are other cases where the courts made a distinction between specialized aircraft training and the more traditional educational settings and rejected the bar on educational malpractice, but based on our recent review of cases, such decisions remain the exception, rather than the rule. 
​​

---

The legal liability of flight instructors is a legitimate concern that is continually raised. The question comes up because flight instructors are generally aware that they could be sued, not only for something that happens during the flight instruction period, but also something that happens afterward--something that somebody could say was caused by faulty flight instruction given earlier. The good news is that, so far, the threat to the individual flight instructor has been just that—a threat. In general, the actual liability imposed on individual flight instructors has not been significant.
 
As any flight instructor will be quick to tell you, it is not the most financially rewarding profession in the world.  While we have in this country a tort system that many believe is out of control, the plaintiff lawyers who handle death and personal injury cases only go after the "deep pockets."  They typically handle these cases on a contingent-fee basis--if there is no recovery, the lawyer gets no fee; if there is a recovery, the lawyer gets a percentage as a fee.  The lawyers are not about to take cases in which there is not a promising prospect that they will be well paid for their time and trouble.  

​Individual flight instructors historically have not had "deep pockets."  As a result, there have not been many suits against individual flight instructors.  Sure, there have been suits against flight schools and fixed-base operators based on the alleged negligence of their flight instructors.  In these cases, the flight instructor's negligence is imputed to the employer who ordinarily has liability insurance.  The insurance companies defend these suits and pay any judgments and settlements, typically without any contribution by the flight instructor. 
 
There have not been many reported court decisions, and the ones there are involve suits against FBOs and flight schools.  It is easy to draw from these cases, as well as the general law, that a flight instructor has potential liability--and a legitimate concern.  

This area of the law falls under the classification of "torts," which is mostly governed by the law of each individual State.  A tort is a civil (as opposed to criminal) wrong other than a breach of contract.  It is a wrong for which the court will provide a remedy in the form of an action for damages.  The tort usually involved in the flight instruction situation is "negligence."  There are other torts.  For example, negligence is distinct from intentional torts (punching somebody in the nose) and from torts for which strict liability is imposed (for example, the product liability of a ​manufacturer).

Under the law of negligence, the law imposes on each person a duty to exercise "due care" to protect others from unreasonable risk.  In the flight instruction situation, an instructor owes this duty of care to his student and others.  If the instructor fails to exercise due care, the instructor is negligent, and is liable if the negligence causes damage.  An instructor's FBO or flight school can be, and usually is, held liable for the instructor's negligence.  There are sometimes defenses, such as the contributory or comparative negligence of the person damaged.
 
In one case, an instructor and his FBO were held to be negligent when a pre-solo student fell into a propeller while alighting from the training airplane.  In another, a flight school was found to be negligent when a student on a solo flight crashed after failing to discover that the rear stick of his airplane was tied back with a seat belt.  Another case involved a student and his instructor who were killed in a wake turbulence accident.  The instructor and the FBO (and ATC) were found to be negligent because the instructor failed to delay the takeoff to allow the wake turbulence to dissipate.  But the flight instructor and his employer are not always found to be negligent.  An instructor was found not to be negligent when a student crashed after letting his airspeed get too low on approach.  After the instructor tapped the airspeed indicator, the student pushed the stick forward abruptly.  The aircraft crashed before the instructor could recover it.  The court found that the instructor had not been negligent in failing to issue a verbal warning, or in failing to take control sooner.  In another case a flight school was found not to be negligent for the crash of a student on his first solo cross-country flight.  The flight school was sued for allegedly sending the student on cross-country when he wasn't ready.  The court disagreed, finding that the student had been properly prepared.
 
Even in these cases where the flight instructor and the FBO/flight school prevailed, you can expect that there were significant defense costs involved, and that the results were not that predictable, especially before a judge or jury unfamiliar with general aviation. [Aircraft insurers offer] insurance coverage at reasonable premiums specifically for the flight instructor.  Some might question the adequacy of the liability limits available at affordable prices, but some is better than none, and they all typically provide for the cost of defense--which could be considerable.
 
 
                                   Copyright © Yodice Associates 2010.  All rights reserved.
       
    
John Yodice is the Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com