Sarah Nilsson, JD, PhD, MAS
Sarah Nilsson, JD, PhD, MAS

Liability

 

Tort: violation of a duty imposed by the civil law - "wrong" - e.g. libel, negligence, interference with a contract - the injured party must seek compensation

 

Intentional Torts: involve harm caused by deliberate action

Defamation: concerns false statements that harm someone's reputation

Libel: written defamation

Slander: oral defamation

Element: fact that a plaintiff must prove to win a lawsuit

Elements of Defamation:

1. Defamatory Statement: statement likely to harm another person's reputation

2. Falseness: statement must be false

3. Communicated: To at least one person other than the plaintiff

4. Injury: Plaintiff generally must show some injury

Slander per se: slander cases that involve false statements about sexual behavior, crimes, contagious diseases, and professional abilities - law assumes injury without requiring plaintiff to prove it

(libel too)

Opinion: cannot be proven true or false - generally a valid defense in a defamation suit

Public personalities: less protection from defamation (play in the open) - to win, a public figure or public official must prove actual malice by the defendant

New York Times Co. v. Sullivan

Actual malice: defendant in a defamation suit knew his or her statement was false, or acted with reckless disregard of the truth

 

False Imprisonment: intentional restraint of another person without reasonable cause or consent

Generally, a store may detain a customer or worker for alleged shoplifting provided there is a reasonable basis for the suspicion and the detention is done reasonably

Battery and Assault:

Battery: harmful or offensive bodily contact - intentional touching of another person in a way that is harmful or offensive

Assault: action that causes another person to fear an imminent battery

Trespass: intentionally entering land that belongs to someone else or remaining on the land after being asked to leave - you don’t have to be aware that the land belongs to someone else - also trespass if you have some object, let’s say a car, on someone else’s property and refuse to remove it

Conversion: taking or using someone’s personal property without consent

Fraud: injuring someone by deliberate deception

Intentional Infliction of Emotional Distress: extreme and outrageous conduct that causes serious emotional harm

Jane Doe and Nancy Roe v. Lynn Mills

 

Damages

Compensatory Damages: intended to restore the plaintiff to the position he was in before the defendant's conduct caused injury

Single recovery principle: requires a court to settle a legal case once and for all, by awarding a lump sum for past and future expenses

Punitive damages: punish the defendant for conduct that is extreme and outrageous - court must consider 3 guideposts:

1. reprehensibility of the defendant's conduct

2. ratio between harm suffered and the award (generally, not more than 9 times the compensatory award)

3. difference between punitive award and any civil penalties used in similar cases

 

Tort reform and Exxon Valdez

Economic damages: lost wages, medical expenses, and other measurable losses

Non-economic damages: pain and suffering and other losses that are difficult to measure

 

Business Torts

Tortious interference with a contract: occurs when a defendant deliberately harms a contractual relationship between two other parties

Four elements:

1. contract between plaintiff and a third party

2. defendant knew of contract

3. defendant improperly induced third party to breach contract or made performance of contract impossible

4. injury to plaintiff

 

Intrusion: (into someone's private life) tort if a reasonable person would find it offensive

 

Commercial exploitation: prohibits the unauthorized use of another person's likeness or voice for business purposes

 

Negligence: harm that arises by accident - unintentional

Palsgraf v. Long Island Railroad

 

Special duty: Landowner's Liability

- lowest liability - trespassing adults - trespasser is anyone on property without consent - landowner liable only for intentionally injuring him or some other gross misconduct

- midlevel liability - trespassing children - if there is some manmade thing on land that may be reasonably expected to attract children - landowner probably liable for any harm

- higher liability - licensee - person on property for her own purposes, but with the owner's permission - eg social guest - entitled to warning of hidden dangers that owner knows about (hidden dangers are NOT obvious ones!)

- highest liability - Invitee - person who has a right to be on property because it is a public place or a business open to the public - owner has a duty of reasonable care - owner must conduct inspections of property to make sure no condition is becoming dangerous

 

Special duty: Professionals

while on the job must act as a reasonable person in her profession

Special duty: Hiring and retention

companies can be liable for hiring or retaining violent employees 

 

Defenses

Assumption of the risk: a person who voluntarily enters a situation of obvious danger cannot complain if she is injured

Contributory negligence: plaintiff who is even slightly negligent recovers nothing

Comparative negligence: plaintiff may generally recover even if she is partially responsible

 

Strict Liability

A high level of liability assumed by people or corporations who engage in activities that are very dangerous

Defective products: generally lead to strict liability

Ultra-hazardous activities: defendant engaging in such acts is virtually always liable for resulting harm

New Jersey Department of Environmental Protection v. Alden Leeds, Inc

 

Civil Law: Tort (intentional torts and negligence) and Contract

 

Tort: Act or omission that causes injury to another person by breach of a legal duty not arising out of a contract  and subjects the actor to liability for damages in a civil lawsuit

 

Intentional Torts:

Battery: harmful or offensive contact with another person with intent to cause the contact or apprehension of contact and without the consent of the other person (or where consent is obtained by fraud or duress) 

Assault: simply an attempted battery that missed

Intentional Infliction of Emotional (Mental) Distress: intentional conduct that results in mental reaction such as anguish, grief, or fright to another person's actions that entails recoverable damages

False Imprisonment: intentionally confining, restraining, or detaining another person against her will

False Arrest: false imprisonment carried out by a false or erroneous assertion of legal authority to detain the other person

Trespass: intentional invasion of someone else's land

Conversion: assuming rights to personal property that are inconsistent with the rights of the owner or person entitled to possession

Conversion gives the owner the option to sue for either:

1. money damages (for the consequences of being deprived of the use of the aircraft while it was in the converter's possession) OR

2. a court order that the converter has bought the aircraft, compelling payment of its fair market value (You took it - you bought it - you pay for it!)

Fraudulent Misrepresentation: elements 

1. representation was made

2. that was false

3. that when made, the representation was known to be false or made recklessly without knowledge of its truth

4. that it was made with the intention that the plaintiff rely on it

5. that the plaintiff did rely on it, AND

6. that the plaintiff suffered damages as a result

 

Negligence: You are responsible for the consequences of your actions - means failing to do an act that a reasonably careful person would do to protect others from harm or doing an act that a reasonably careful person would not do under the same or similar circumstances

Elements:

1. duty to be reasonably careful - to avoid harming others - extends to anyone who might foreseeably be injured by your neglect

2. failure to be reasonably careful - jury or judge decides this - based on mandatory government standards (FAR, AD) and non-mandatory guidance (AIM, AC)

3. which is the proximate cause of - at least by setting in motion a sequence of events that would not otherwise have occurred - may be more than one proximate cause of an accident, and more than one person's negligence may be proximate causes of the accident

4. injury to another person or her property - real physical injury or property damage

Joint and several liability: even if more than one defendant is found negligent, the victorious plaintiff can collect the entire judgment from any defendant found negligent

 

Negligent Entrustment: the act of leaving an object, such as an aircraft, automobile or firearm, with another whom the lender knows or should know could use the object to harm others due to such factors as youth or inexperience

Burden of proof: fall on plaintiff to prove elements of tort - preponderance of the evidence (51%) as opposed to beyond a reasonable doubt

 

Negligence per se: negligence as such - where plaintiff can prove that the accident resulted from violation of an FAR that is intended to prevent such accidents, the FAR violation also constitutes civil negligence as a matter of law

 

Res judicata: literally "a matter judged" - a matter may not, generally, be relitigated once it has been judged on the merits

 

Res ipsa Loquitur: the facts speak for themselves - plaintiff can rely on to prove negligence, e.g. even if no one knows what really happened to the aircraft if:

1. accident is not the sort of thing that normally occurs unless someone was negligent

2. aircraft involved in the accident was within the exclusive control of the defendant AND

3. whatever happened, the accident was not caused by any fault of plaintiff

 

Strict liability for defective product: seller of any product (e.g. aircraft or component) delivered in a defective condition unreasonably dangerous to purchaser, anticipated user, or other persons in area of anticipated use, is strictly liable for injuries to them resulting from defect even if they were careful if

1. seller is in business of selling such a product AND

2. product is expected to be used without substantial change in the condition in which it is sold

(applies to everyone in stream of commerce - manufacturers - distributors - dealers)

(applies ONLY to injuries and damage to persons and property, other than the product itself, as damage to the property itself e.g. defective aircraft is covered by warranty law)

 

Common law: law made by judges

Constitutional law: law made by citizens

Statutory law: law made by legislators

Regulations: laws adopted by administrative agencies

 

Strict liability for ultrahazardous activities: where a non participant is injured as a result of the defendant's conducting what the court considers to be an ultrahazardous activity

 

Defenses: to prevail in the lawsuit, defendant must present evidence to rebut plaintiff's proof and support any legal defenses asserted

Sudden emergency doctrine: law recognizes that the stresses imposed by the sudden onset  of an inflight emergency situation may interfere with human decision-making

 

Assumption of risk doctrine: may serve to relieve other of legal responsibility for harm befalling an injured person where it is proved that the injured person:

1. knew and understood the scope, nature, and extent of the risk involved in the activity AND

2. voluntarily and freely chose to incur that risk

 

Plaintiff's contribution and comparative negligence: most states have adopted comparative negligence which allows judge or jury to decide what % of proximate cause of the accident was attributable to defendant and what % resulted from plaintiff's own (contributory) negligence and then apportion liability for the plaintiff's injuries accordingly

2 different general approaches to apportionment of liability:

1. some states - jury makes a finding of % and then apportions liability for plaintiff's injuries accordingly

2. other states - draw a line usually at 50% - if plaintiff's contributory negligence accounted for 50% or less then follow 1. above BUT if plaintiff's contributory negligence accounted for more than 50%, then defendant has no liability

 

Joint and several liability: Used in civil cases where 2 or more people are found liable for damages - the winning plaintiff in such a case may collect the entire judgement from any one of the parties, or from any and all of the parties in various amounts until the judgment is paid in full (has been abolished in AZ)

Last clear chance doctrine: defendant cannot rely upon plaintiff's contributory negligence to escape liability if the facts show that even though the plaintiff was negligent, the defendant had the last clear chance to extricate the plaintiff from a position of peril

 

Government Contractor Defense: shields manufacturers from liability for injuries and death to both military and civilian personnel caused by the manufacturer's products that are ordered by the government for military use - this defense is ONLY for design defects NOT manufacturing defects

Liability for design defects cannot be imposed upon a civilian manufacturer of military equipment if:

1. US approved reasonably precise specifications

2. equipment conformed to those specifications AND

3. manufacturer warned the US about any dangers in the use of the equipment that were known to the supplier but not to the US

(defense continues to protect manufacturer even after equipment passes into civilian hands)

 

Statutes of Limitation: all states have them - impose time limits on how long a person has after an injury to file suit or be forever barred

Statutes of Repose: impose time limits on how long after a product is manufactured the manufacturer may be held liable for injuries caused by defects in the product (whether in design or fabrication and whether brought under a strict liability or a negligence theory)

 

General Aviation Revitalization Act (GARA) 1994 - summary - federal 18-year statute of repose for FAA-certified general aviation aircraft having less than 20 seats

- General Aviation(GA) Industry declined in the 1980s and 1990s.

- Growing liability insurance costs, driving prices beyond the market

- Surge in Student Pilots

- Early 80s proposed elimination of GI Bill Funding of Private Pilots Certificate

- Would have been spread out over MANY more years if no fear of discontinuance!

- Underwriters refused to sell product liability insurance to GA due to:

  • Long Life expectancy
  • Higher Fatality Rate
  • US Legal System Changes - Rule of Strict Liability

- Companies went out of business due to skyrocketing prices, and a market that could not handle to buy the planes for the prices they needed to break even.

- Cessna Aircraft Co.

  • World’s highest volume aircraft producer
  • First ever loss in 1983
  • Suspended ALL prop production in 1986 - except the 206 Caravan for commercial operations
  • Specifically stated that insurance was the reason they stopped selling single engine prop aircraft.

- Piper Aircraft Co.

  • In and out of bankruptcy, under various names. 
  • Suspended or eliminated long-running and popular lines
    • Piper Super Cub
    • Piper PA-32 ”Cherokee 6”

- Beech Aircraft Co.

  • Acquired by Raytheon Corp.
  • Shifted from GA propeller aircraft canceling all but 2 lines
  • Shifted to
    • Pro operated corporate turboprops
    • Small military
    • Commercial aircraft

- Opponents:

  • Public-interest/consumer advocacy groups - public citizen
  • Association of Trial Lawyers of America

- Supporters:

  • Sen Nancy Kassebaum(R-KS) - KS is leading producer of GA aircraft
  • General Aviation Manufacturers Association (GAMA)
  • International Association of Machinists and Aerospace Workers Union (IAM)/(IAMAW)
  • Aircraft Owners & Pilots Association (AOPA)

- GARA

  • Was passed by Congress in 1994
  • Signed into law on 17 Aug 1994 by President Clinton
  • Is a statute of repose
    • shields manufacturers of liability after 18 years
    • even if manufacturer negligence was cause!
    • Exceptions:
      • Manufacturer withheld or misrepresented  info from FAA, if directly related to cause of accident
      • If victim is a passenger on an Air Ambulance/Medical Flight
      • otherwise-exempt aircraft killed or injured someone NOT aboard the aircraft
      • suit over Written Warranty

- Cessna Aircraft Co.

  • 1994 - Resumed Limited Propeller production of:
    • 172
    • 182
    • 206
  • Stated that it was in response to the passage of GARA and keeping with his “Promise”
  • Did Not resume productions of more efficient/high performance lines
  • Continued focus on business jets and turboprop aircraft 

- Piper Aircraft Co.

  • Continued troubles, BUT still produced the “80s survivors”
  • Restored the PA-32 line in 1995

- Raytheon Aircraft Co.

  • renamed from Beechcraft Corp.
  • Continued production of Survivors:
    • Beech Bonanza
    • Beech Baron
  • Never resumed production of other lines cut

- Attorneys have gone after a broader swath of the industry as alternative defendants to the manufacturers.    

- Segments include (but not limited to)

  • Parts manufacturers
  • Maintenance shops
  • Flight instructors
  • Flight schools
  • Charter pilots
  • Aircraft owners and their assets

- GA safer as a result

  • GARA cited by many
  • Shift from private flying to professionally flown aircraft in GA sector 
  • Reduction in flight hours of GA aircraft due to other economic factors also suspected

- GAO estimated over 25,000 new jobs created due to GARA passing

- Product liability limits motivate safer behavior by consumers

 

General Aviation Manufacturers Association (GAMA)

 

General Accounting Office (GAO) - investigative arm of Congress

 

Exculpatory Contracts: rare circumstances - individuals and businesses can protect themselves from potential liability for aviation accidents beforehand through these contracts with voluntary participants

International law: international treaties govern the tort liability of airlines in international flight operations

 

Employers' liability: employers is vicariously liable for torts committed by its employees within the scope of their employment - adds employers as a responsible party but never relieves the individual employees of personal liability for their negligence (opposite of "off on a frolic of his own" when employee is NOT doing employer's work)

 

Damages and Attorney Fees: generally limited to compensatory damages - the sum that will compensate the injured persons or their survivors for the consequences of the accident - includes medical expenses (past and future) lost earnings and pain and suffering

American Rule: under most circumstances, win or lose, each party to a lawsuit is responsible to pay her own attorney's fees

Exemplary or punitive damages: rare exception - only where defendant's negligence was so extreme as to indicate a wanton and reckless disregard of the possible consequences of his actions

Litigation procedures: if you don't show up on time to play, you lose by default!

Summons and Complaint: usually handed to you by a process server

Answer: filed with the Court within typically 20 days 

Discovery: before trial - to find out what the other side's case is all about and to learn about your defenses - many types:

- written interrogatories: questions to be answered in writing

- depositions: sworn testimony by prospective witnesses

- examination of documents and other physical evidence - by a motion to produce

Motions: alert the court to an issue that may be properly resolved at that point, argue the moving party's view of the matter, and ask the court to rule on the issue - opposing party may respond with counterarguments - eg motion for summary judgment, motion to dismiss (these may dispose of entire case)

Trial: judge or jury

Jury: listens to evidence presented by both sides - judge instructs jury on applicable law - jury retires to jury room to debate which version is more believable by preponderance of the evidence - if decision is not legally flawed judge will enter decision as judgment

Appeals: may follow

Alternative Dispute Resolution

Arbitration

Mediation

 

Rome Convention 1952

 

Duties to employees

Duty to provide workers compensation insurance and unemployment compensation insurance, to pay agreed wages and withhold payroll taxes, and to provide a safe place to work

Independent contractors distinguished from employees

 

Workers Compensation Insurance

Most states law - if business has covered its employees with workers compensation insurance, an employee who is injured on the job is prohibited from suing the employer for such injuries

 

Withholding Taxes

Internal Revenue Service (IRS)

Has benefit of hindsight review

Right to control and direct test

 

Lines of Defense in Risk Management

type of business entity

accident prevention program 

liability insurance

exculpatory contracts

 

 

Contact Me

Sarah Nilsson, JD, PhD, MAS

 

602 561 8665

 

sarah@sarahnilsson.org

 

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Legal disclaimer 

The information on this website is for educational purposes only and DOES NOT constitute legal advice. While the author of this website is an attorney, she is not your attorney, nor are you her client, until you enter into a written agreement with Nilsson Law, PLLC to provide legal services.

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