AOPA Pilot Magazine - April 2018 - 26

PILOT COUNSEL

Flight instructor liability

BY JOHN S. YODICE

Concerns mount over potential claims of negligence
I JUST ATTENDED AN AOPA FLIGHT INSTRUCTOR revalidation course and found that many flight instructors
still remain concerned about the the threat of legal
liability for their instruction activities. And it is still a
concern to all of general aviation. We are losing many
highly qualified and highly motivated flight instructors.
Many of these are people who have been successful in
life and have built up a nest egg-people such as retired
airline pilots, and doctors and lawyers and other professionals. They want to continue to give of their talents,
but are having trouble justifying the risk.

Many flight instructors remain
concerned about the the threat of
legal liability for their instruction
activities. So far, the threat has been
just that-a threat.

JOHN S. YODICE

is a longtime
aviation attorney,
flight instructor, and
Cessna 310 owner.
After decades of
writing for AOPA
Pilot, this is Yodice's
last column. Read
about his impressive contributions
to the aviation
community in "Pilot
Briefing: Yodice's
'Pilot Counsel'
Column Ends" on
page 37.

26 | AOPA PILOT April 2018

So far, the threat has been just that-a threat. The
actual liability imposed on individual flight instructors has not been significant. Why? There has been a
very practical reason. As any flight instructor will be
quick to tell you, it is not the most financially rewarding profession in the world. Plaintiff lawyers typically
handle death and personal injury cases on a contingent fee basis, only going after the "deep pockets."
The contingency is that if there is no recovery, the
lawyer gets no fee; if there is a recovery, the lawyer
gets a percentage of the recovery as a fee.
As you would expect, lawyers will only take cases
in which there is a reasonable prospect that they will
be paid for their time and trouble. Individual flight
instructors historically have not had deep pockets. As
a result, there have not been many lawsuits 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
lawsuits and pay any judgments and settlements, typically without any contribution by the flight instructor.

This situation has been changing for two reasons. One is that more and more flight instructors
are getting insurance to cover their flight training
activities. While that is good for many reasons, it now
makes instructors more attractive targets for claims.
But, that by itself is not enough to account for the
change. The other reason is that one of the prime targets of claims has a relatively new shield. The prime
targets have been the manufacturers of general aviation aircraft, engines, and components. In 1994,
the General Aviation Revitalization Act was passed.
As a result, these manufactures now have a federal
statute of repose to help protect them against liability for older aircraft. The act cuts off claims against
a manufacturer for design defects in aircraft older
than 18 years. These older aircraft comprise most
of the general aviation fleet. Plaintiff attorneys handling the crashes of these older aircraft are sighting
in on other targets.
So, what is the legal liability of a flight instructor?
There are not many reported court decisions, and the
ones there are involve suits against FBOs and flight
schools. Nevertheless, it is easy to draw from these
cases, as well as the general law, that a flight instructor has significant potential liability.
This area of the law is governed by the law of
each individual state, and so there could be some
variation, but here are some general principles. This
area of the law falls under the general classification of torts. A tort is a civil (as opposed to criminal)
wrong, other than a breach of contract, 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. 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 making the claim.
Here are some situations from reported cases in
which a flight instructor's negligence was alleged. In

AOPA Pilot Magazine - April 2018

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