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
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
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
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
Tortious interference with a contract: occurs when a defendant deliberately harms a contractual relationship between two other parties
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
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
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
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
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
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
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(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:
- 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.
- Piper Aircraft Co.
- Beech Aircraft Co.
- Cessna Aircraft Co.
- Piper Aircraft Co.
- Raytheon Aircraft Co.
- Attorneys have gone after a broader swath of the industry as alternative defendants to the manufacturers.
- Segments include (but not limited to)
- GA safer as a result
- GAO estimated over 25,000 new jobs created due to GARA passing
- Product liability limits motivate safer behavior by consumers
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
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
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
Listen to oral argument
1. Detail the facts of the case and identify each of the parties, taking care to understand the relationship of each to the other, i.e., Danny Ferrer, Donald Palas, Jose Martinez, John Vreeland, Aerolease of America, Inc.
2. Define vicarious liability.
3. Explain the holding of Orefice v. Albert, as discussed in Vreeland v. Ferrer.
4. Describe Florida’s dangerous instrumentality doctrine and Section (b) of 49 U.S.C. § 44112. Does the latter preempt the former? Explain why or why not.
. Explain the central point expressed in the dissent. Is this convincing?
1. Why was the Federal Aviation Act of 1958 created and what was Congress’s intent in enacting the law?
2. The court determined that state and territorial standards of care relating to safety are federal preempted. What examples does the court provide as evidence that Congress intended the FAA to exercise sole discretion in regulating air safety? Is this an example of express preemption or field preemption?
3. Congress directed the FAA to prescribe “minimum standards” to promote safety (49 U.S.C. § 44701). Because the federal standards are “minimum,” does a common law duty of safety exist beyond the FAA regulations?
4. Explain the FAA Savings and Insurance clauses. Does the existence of these clauses support the conclusion that safety standards are not preempted by federal law?
5. According to the court, are federal standards of care and state and territorial tort remedies in conflict? Explain. Additionally, explain whether the Abdullah v. American Airlines, Inc. case is binding precedent outside of the Third Circuit?
1. What is the scope of field preemption under the Federal Aviation Act of 1958? Specifically, does the preempted field include tort claims based on alleged defective design or manufacturing?
2. If the type of tort claims described in question 1, above, fall within the preempted field, may they proceed using a federal standard of care? If so, what is that standard and where is it found within the Act or its regulations?
3. What weight, if any, should be accorded to the issuance of a type certificate in determining whether the relevant standard of care has been met?
4. What fundamental differences exist between the regulations at issue in Abdullah v. American Airlines, Inc. and the issues presented in this case (e.g., aircraft design and agency standards of care)?
5. Describe the precedent in the Court of Appeals on the issue of aircraft design and manufacture preemption and the policy reasons offered by the parties. Does the Sikkelee court find the precedent and policy persuasive to its conclusions? Why or why not?
1. What is a statute of repose?
2. Define the following terms (a) Safe Life; and (b) First Fatigue Critical Location (“FFCL”).
3. Summarize the issues on appeal as to timing.
4. Explain the purpose the General Aviation Revitalization Act (“GARA”).
5. How does the “rolling provision” of GARA function? How are calculations under GARA impacted, if at all, by Service Bulletins? Explain.
Sarah Nilsson, J.D., Ph.D., MAS
602 561 8665
You can also fill out my
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.