Posts about: "Accountability/Liability" [Posts: 49 Page: 3 of 3]¶

Wall Street Journal,
quoting in full (claiming fair use):

The U.S. government accepted fault for a midair collision earlier this year that killed 67 people near Washington, D.C., saying it is willing to pay damages to the families in connection with the incident.

The Justice Department\x92s filing in federal court Wednesday said the pilots of an Army Black Hawk helicopter \x93failed to maintain vigilance so as to see and avoid\x94 an American Airlines regional jet.

\x93Their failure was a cause-in-fact and proximate cause of the accident,\x94 the department\x92s lawyers wrote.

The filing said that an air-traffic controller didn\x92t comply with a federal order to tell aircraft on converging courses to separate. The government also said the American Airlines pilots should have been alerted to the location of the Black Hawk helicopter by a collision alert system and that the pilots \x93failed to maintain vigilance\x94 to avoid the aircraft.

The American regional jet had been flying from Wichita, Kan., when it collided with the Army helicopter on approach to Ronald Reagan Washington National Airport on Jan. 29. The military helicopter was conducting a training exercise along the Potomac River, one of the most congested airspaces in the U.S.
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Edit: The court filing in which liability is admitted is the Answer by the United States to the Complaint. It's 209 pages, not a surprise, as the Complaint includes quite detailed allegations, most all of which needed to be addressed point by point.
Notably, the airline is still a defendant and in fact lead counsel for the plaintiffs already has issued a statement to that effect.
I'm not indulging any further law prof mode for now.

The summary of the admission of liability was:

"GENERAL ADMISSION OF LIABILITY The United States admits that it owed a duty of care to Plaintiffs, which it breached, thereby proximately causing the tragic accident on January 29, 2025, as specifically set forth below. The United States admits that it, among other tortfeasors, is liable to a Plaintiff who is legally eligible to recover monetary damages, as permitted by the Federal Tort Claims Act, 28 U.S.C. \xa7\xa7 1346(b), 2671\x9680, in an amount yet to be determined and apportioned among other tortfeasors."

The admission is based on the failure of the helicopter pilots to see and avoid traffic. The US also accepts that the air traffic controller failed to comply with a regulation but denies that this was a proximate cause of the accident and therefore that this incurred legal liability. The US briefly makes reference to the policy and political questions exemption with reference to some of the plaintiff's broader claims. The US also appears to be claiming that the jet pilots also had a duty to see and avoid traffic and so that the US is not solely liable.

Some reactions and at least attempts at valid observations.

FAA and ATCOs. Did the Department of Justice's Answer to the Complaint throw the controller(s) "under the bus?" Yes, and no. In brief, the Answer does not state that the controllers' acts or omissions were a cause-in-fact and proximate cause of the accident.

The Complaint alleges a long list of allegedly negligent acts by the controller(s) in Paragraph 250, which starts on page 158 and runs on to 164 (in the Answer). Without having studied the pleadings for hours upon hours (as one might do in actual practice) perhaps I've missed something -- but I think the only admission made by DOJ with regard to the controllers is that a very specifically cited FAA rule or procedure of some sort was not followed: "the DCA local controller did not comply with \xb6 7-2-1(a)(2)(d) of FAA Order JO 7110.65AA, chg. 3, Air Traffic Control (Sept. 5, 2024)." This specific admission is made recurrently in the Answer, amidst many other denials of (again, unless I missed something) everything else in the massive and detailed Paragraph 250 of the Complaint.

Edit [forgot to include]: the Complaint alleges generally the following about FAA and the ATCOs.
"the Federal Aviation Administration\x92s air traffic controllers failed in their two most important priorities, namely to separate aircraft in airspace and issue Safety Alerts when aircraft are in an unsafe proximity to one another; that the air traffic controllers on duty failed to abide by numerous other policies and procedures, including that air traffic control failed to provide traffic advisories to both aircraft and air traffic control failed to resolve an aural and visual Conflict Alert that advised air traffic control that the two aircraft were on an unsafe and converging collision course; and that the air traffic controllers failed in their duties concerning the \x93tower team concept\x94 within an air traffic control facility so that all controllers assist each other to prevent, amongst other things, a mid-air collision. The Defendants\x92 [meaning, both the U.S. and the airlines] collective failures (for which they are jointly and severally liable) caused, and/or contributed to this senseless and entirely avoidable tragedy."

So, "no", because the DOJ does not admit ATC was a cause-in-fact and proximate cause (both needed for liability, if I recall 1-L) but yes, first, specifically with regard to the FAA Order, and second, for all of the reasons ATC Watcher invokes. Whether those several factors would ever be considered for inclusion in an Answer to a big tort case such as this is doubtful . . .BUT especially after the fireworks over Section 373, watch for the NTSB report to lay it all out. (And incidentally, the Complaint now includes several excerpts from NTSB hearing and docket - not sure if these were part of the original Complaint. The Answer is the first pleading in response to the Complaint and it has become the Master Complaint, as I understand it, because it is the pleading on behalf of all the plaintiffs, regardless of whether they are represented by the attorneys who filed the very first Complaint in the case. Further, according to press reports (WSJ print edition today) both the airline companies filed motions to dismiss. Thankfully, or maybe not, my Pacer account is acting up, so, no comment....)

2. The airline and its parent company. The Complaint paints a very negative picture about the acts and omissions of the airline companies and the two pilots of 5342. The Answer was filed only on behalf of the United States (FAA and Army) and so the DOJ does not address the specific allegations forming the claims against the airline - this is standard practice. Still, I found this in the Answer (re: Para. 174): "The United States admits that the AE5342 pilots failied to maintain vigilance and to see and avoid PAT25".

I am refraining from trying to summarize or comment on the many aspects of the story about the airline pilots and airline companies alleged in the Complaint. It is a very detailed story. It probably if not certainly will outrage people in the industry writ large. I've not practiced tort law, either suing or defending, but that won't stop me from saying that it seems pretty clear that the trial lawyers are gunning for the airline company deep pockets, the availability of punitive damages when those are not awardable against the Federal Government, the availability of a jury trial, and insurance policies. To state the obvious.

As for the Army, Para. 253 starts on page 168 and runs to 176; the DOJ admits some but not all of the many specifically alleged negligent acts and omissions by the Army and those pilots.

One other little item caught my attention. In paragraph 106, reference is made to "risk assessment" stuff the Army aviation unit conducted or did not conduct. "Risk Assessment", that wouldn't be the same thing as showed up in Section 373, by chance?

(For information, the case number in federal district court in D.C. is 1:25-cv-03382-ACR.)

Uh, yes, very conspicuous by its absence.

First, I have taken something posted on this thread some time ago as a deeply important article of faith. It was (I'm not quoting it exactly but from memory) "they owned the airspace of the last several hundred feet of the final approach to 3-3." The effort to paint them as negligent by the (estimable and highly successful) plaintiff lawyers frankly makes me want to puke. And I don't care one iota that some or several of those lawyers own their own aircraft and have pilot licenses. They didn't build hours, did they? And, .... it's one thing to try build a case against the airline company, but something else to assail the deceased pilots.

Relatedly, and second, I tend to think the NTSB sees this in somewhat the same way. But the NTSB really excoriated the FAA, and it richly deserved it too. This was - it cannot be said too often AFAI-am concerned - a systemic failure. So between being revolted by the effort to invade the ownership of those last few hundred feet of airspace or flight path of Bluestreak 5342 on final to 3-3 on the night of 29 January 2025, and gunning for bear in the form of a complacent, ridiculously evasive if not obstructionist if not dishonest FAA, the Board had zero-decimal-zero tolerance or inclination for assigning causal factors to two dead pilots on final to 3-3. And that's EVEN IF the airline company should have done more.

Third, and I don't know if it would be viable, but to the extent that the accountability for this accident lies mostly with FAA, and somewhat with the Army pilots and Army, then aren't the pilots victims too, rather than negilgent party-defendants? Shouldn't their estates have legal representation, as a party-intervenor in the case? That is what I meant earlier, who speaks for them? As we all know, the Board does not find fault. I somewhat think the lawyers seeking their contingency fee will probably, I guess, be talking about "fault." But the Army pilots are a bit different. It is distasteful and unseemly to criticize them, as they were in service, and just as much victims of the systemic failures as Bluestreak 5342's two pilots. And Uncle Sam, why, he's already admitted fault.

Fourth and last, yes, the airline company will get raked over the coals for not having outsmarted the failures of the FAA. Jackpot justice, what a way to improve the architecture and operation of the NAS. (With apologies to a very estimable and deservedly highly well-respected airline industry attorney - a real one - who at a conference in Paris oh, a couple three years or so ago, made the point that plaintiff lawyers should not be the ones setting aviation policy through liability lawsuits.)

What good is a lawyer clodding around a pilot's forum on the internet without a rant now and again, eh?

There is one lawsuit pending in federal district court in Washington, D.C. - although I am fairly certain that it is a consolidation of claims arising from the accident brought by some different groupings of plaintiffs represented, in each instance, by different attorneys. This imprecision of my knowledge of the actual litigation at present, for which I am making no excuses, is another reason why I will have to shift some attention away from other pursuits and spend some time reading court filings on the Pacer U.S. court systems web portal. More on the first reason, later. (And among my other pursuits is actual legal work, and it happens to be in the aerospace domain - transactional, not litigation, however.)

I want to draw three distinctions about the lawsuit arising from the accident. First, insofar as deriding (and mocking, and disliking or worse) the legal profession in general and particular individual lawyers is concerned, I will say in advance that I will shake my head in disbelief if anyone in this forum community believes that litigation against the U.S. federal government relating to this accident is improper or just about lawyers enriching themselves. Essentially every single post here, or at the very least every line of inquiry or analysis or interpretation of the facts as they have emerged, points a very straight finger of blame at the FAA's way of doing things.

Related to that, secondly, in my reference to the advocacy by the parents of Bluestreak 5342's F/O I was not trying to highlight their grief or the grieving process. The point was - and in my mind (capable of being derided because it sometimes is a legal mind to some extent) still is - that although obviously connected to their grief, these survivors also appear to be on a quest to exonerate the F/O's conduct on the final approach in question. I suppose I could hope to have learned more aviation history and be able to recite some, maybe most, of the significant previous accidents in which survivors of aviators, when those aviators were blamed for accidents in which they were killed, sought to clear their names. I don't think the instance of 5342's F/O's parents is unique. I do think it is very relevant to the impact, the implications, of the lawsuit and the Board's report. (More on this also later.)

Soon after the accident, I read about two young attorneys who were passengers on Bluestreak 5342. From memory, they were mid-level associates (maybe four or five years in practice, not yet partners in the firm) in a comparatively small law firm. They were returning to D.C. from taking depositions. I realize no one (or probably no one) on this forum who qualifies for the first Papa letter in the forum title will care much about the travails of young lawyers doing the equivalent of building hours. I will just say that it is hard work, and often far more thankless than digs at the legal profession would have a reasonable person conclude. And ..... I mention these two particular victims of the accident because I could - when I read that news report soon after 29 January - largely relate to where they were in their careers. Say what you will, and say it with as much vitriol as forum rules will allow - their deaths in the accident deserve their day in court, despite digs at lawyers and the profession. Discussion of what is wrong with the court system and the legal process in the United States - well, this isn't Scotus blog or something; that's all another subject. But: I maintain strongly that the attorneys who represent accident victims' families and other survivors of those victims have as much right to attack the responsible parties in court as attorney-bashers do to make fun of their profit motive. I haven't done that kind of legal work. I have met very fine, very excellent attorneys who do, and I think it behooves aviation professionals to recognize that bringing their clients' claims forward to that ultimate day in court is honorable, and necessary work. (This is not to defend jackpot justice awards, or bad-attorney behavior, as if I need to make that clear.)

Third, and the "first reason" I'll need to start eating more time on Pacer, is that I continue to believe that the aviators of Bluestreak 5342 are being taken advantage of by an otherwise respectable legal process. If one believes that they did nothing wrong, then why is it that their estates are not represented in the courtroom in order to defend them? Aren't they implied or implicit defendants, though obviously not named as such? And as I said in an earlier post, one could argue, 'well, the Army pilots aren't there to defend themselves, and they're getting pretty seriously wrung out as having primary responsibility - in addition to the systemic factors of course - and these three deceased U.S. Army aviators, they don't have an active defense in the courtroom either, do they? So why should the airline pilots have one?" Pretty simple answer: the U.S. federal government admitted liability, so the Army pilots - admittedly indirectly - have had their possible defense as pilots waived out from under them.

But since I haven't been delving into all the various court filings which by now presumably have piled up during pre-trial discovery, it is possible that the Bluestreak 5342 aviators' estates have retained their own counsel and are seeking to intervene in the case. I'll find out. Though I should apologize for repeating myself, and while admitting that intense study of intracacies of federal procedure was something I left behind when I picked up the J.D. (after all, reading Advisory Committee Notes about amendments to the Federal Rules of Civil Procedure and the Federal Rules of Evidence, it's fascinating stuff, amiright?), the gross unfairness of alleging negligence against the pilots who do not have their own legal representation in the case strikes me as an error and an injustice. And I am not a stranger to dealing with insurance carriers who want to settle, while the client wants to fight on - if the pilots' estates had separate representation, their lawyers would need to make sure their cowboy or hiking boots are on snuggly - the stuff to be thrown at them by the airline's corporate types and the insurance carrier attorneys who mostly call the shots, would seem likely to be intense.

Almost last, with mega-billions coming out of Congress for a totally new ATC system, it continues to seem obvious to yours truly that in designing it, and then doing all the many steps of implementing it, the lessons learned from the Board report will have a window of opportunity not usually present in the U.S. NAS. It should not go to the same fate of being ignored or shrugged off as so many Board reports have suffered. If the litigation - though of course separate from the Board work - creates leverage for such a beneficial outcome, I would say "Who wants it?" (with apologies to WSJ sportswriter extraordinaire, Jason Gay - about the U.S. Women's Hockey Team and the Wisconsin Badgers Women's Hockey Team as well). Or in less cryptic terms, Go fo It.

Last, Uberlingen. One of the Skyguide officials who was deeply involved with the aftermath of the accident delivered several presentations about it, most all of which went into some depth, during my academic residence at that certain Air and Space Law graduate law degree program located in Montreal, Quebec. Those presentations, as the old saying goes, "left a mark."

Interesting or not, "Uberlingen" has made over time the most significant changes in modern aviation ( safety, accountability and rensposibility....) that lead us to these days where it is bussiness as ussual , predictable, profitable even for wide range of investors...

Once happened, DCA crash had the same potential to change things- at least in USA. It seems that it wont happen- due many reasons- as we have already discussed here.

Indeed they did, the deep structural changes Skyguide made afterwards were used and sometimes followed by many European ANSPs , but not all .

The judicial has it own ways . Sadly in Switzerland in the last years we saw younger eager State prosecutors going after Pilots and Controllers after incidents to get in the spotlight and threatening to end incident reporting , the basis of our Safety management systems .Ironically some of the lessons (and the presentations ) of Ueberlingen had been forgotten with time in the very country it happened, .

I suspect there are very few reading this thread who are not appalled at the suggestion of negligence on the part of the CRJ pilots.

If I undestand correctly, Uberlingen bring changes in terms of accountability and responsibility not alone SMS. That case brings us that managers/ owners of bussiness can not be non accountable.
And I asked if it was accepted by all ICAO states including biggest ( Russians, USA etc). Of course. They accepted it? Yes, russians children died at that accidents. And no owners of bussiness were ever prosecuted.

That is the reason, why at some aviation providers managers are accountable for accidents not only legally but financially.
It is not unheard that financial accountability for medium level managers is 600 000\x80 - if legal process proves their mistake or misjudgement.
For that amount money, overall risk is reduced, ( yes I know that is small amount but....) and one by one- total cost are down - that push forward bussiness..
Interesting or not, some systems do not have so strict definied amount- but there is no managerial promotion , regardless of knowledge and ability, if candidate for manager has no real estate owned on his name. Less legal- but quitte effective.