AOPA Pilot Magazine - May 2023 - 28

FOR THE RECORD
Off the hook
Employer or employee: Who is responsible?
BY IAN ARENDT
OCCASIONAL LY, WE HAVE D ISCUSSIONS with pilots about
possible liability exposure for a past or proposed operation. A
litany of things could go wrong in any given flight: The aircraft
could be technically unairworthy, the pilot might not have all
required documents in his or her possession or may have lapsed
currency, or the operation might not be strictly in accordance with
the federal aviation regulations. Each situation presents its own
legal risks and, in the case of an accident or incident, could be
grounds for a potential lawsuit. In the case of a pilot operating his
or her own aircraft for personal use, the exposure is clear. In the
case of a pilot flying for an employer, however, the party ultimately
responsible for causing harm is not as cut and dried.
Here's the punchline: The party responsible for the acts of an
employee-pilot is a resounding " it depends. " It depends on the
particular facts and circumstances of the flight and the employer/
employee relationship. It depends on whether any FARs or
other rules were violated. It also depends heavily on state law,
which varies considerably. It could be that the employer is solely
responsible, it could be only the employee-pilot, or it could be
both. But just because you fly under the employment of another,
doesn't mean that you're off the hook if something goes wrong.
True, the general rule is that employers (principals) may be
held liable for the damages or injuries caused by their employees
(agents), so long as the employees were acting within the scope
of their employment. This doctrine is called respondeat superior,
and states that a principal is generally liable for harm caused by
an agent. Stated another way, without independent action from
an employee or otherwise willful or grossly negligent conduct,
employers can expect to pay for the actions of their employeepilots.
However, employee-pilots might also share in the obligation
to right a wrong.
A recent, unpublished opinion from the Louisiana Court
of Appeals highlights this issue. In that case, the estate of a
commercial pilot was sued after the airplane he was flying crashed
near the end of a what should have been a routine sightseeing
flight. Unfortunately, the pilot and one of the two passengers died.
Importantly, the pilot was employed by and acting under the
direction of an authorized air tour operator, the aircraft was operated
by the air tour operator, and the air tour operator scheduled
the flight and contracted with the passengers. However, after
28
AOPA PILOT / May 2023
explaining the general rule in Louisiana-that an employee is not
liable for damage or injury caused while acting within the scope
of his or her employment-the court found that an employee can
be liable for committing certain negligent or wrongful acts. In
reversing the trial court's order dismissing the case against the
pilot's estate, the court of appeals recognized the plaintiffs to
the lawsuit may have a justiciable claim because the pilot owed
personal duties to the passengers. Ultimately, the court did not
determine what those duties are, whether the pilot breached
those duties, or whether his estate was liable, but remanded the
case for the trial court to decide. In other words, if the trial court
determines that the pilot breached a duty owed to the passengers,
the pilot (through his estate) might be personally liable to
the plaintiffs even though the pilot was acting under the direction
of his employer and within the scope of his employment.
As to the duties a pilot owes to his or her passengers, many
courts have found that the FARs enumerate these duties. Indeed,
in an earlier case involving the same accident, the Louisiana
Court of Appeals specifically noted that the FARs apply to
aircraft operators and pilots. The court later confirmed that the
accident pilot's personal duties owed to passengers arise from
the FAA's rules and regulations.
This raises the question: What should an employee-pilot do
to better protect against liability? Again, the answer depends
on the circumstances, but employee-pilots should verify that
their employer's insurance includes a duty to defend the pilot
in the case of a lawsuit. For independent contractors, ensure the
pilot is named as an additional insured for the aircraft's liability
coverage and request a waiver of subrogation as to hull coverage.
Additionally, contractors might consider obtaining their own
commercial insurance products.
In short, if an employee-pilot is found to have negligently
caused harm to third parties, whether by violation of an FAR
or some other established duty, the employee-pilot may be
exposed to personal liability.
So, if you're a commercial
pilot and something goes
wrong, don't assume you're
off the hook.
ian.arendt@aopa.org
IAN ARENDT is an in-house
attorney with AOPA's Legal
Services Plan and a private
pilot who owns a Piper
PA-12 Super Cruiser.
AOPA Pilot Magazine - May 2023

Table of Contents for the Digital Edition of AOPA Pilot Magazine - May 2023
