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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.
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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