Aviation Law

Exculpatory Contract

(This is also referred to as liability release and covenant not to sue. Know all three of these interchangeable terms.) In some rare circumstances, individuals and aviation businesses can protect themselves from potential liability for aviation accidents beforehand through contracts. In the case of aviation, an exculpatory contract is an agreement between the aircraft owner (or airport or FBO owner or operator) and another participant in an aviation operation in which the participant agrees not to sue the owner/operator if the participant is killed or injured during the operation.

Canon of Social Utility

(Utilitarianism) This is one of the canons of distributive justice described by Nicholas Rescher. It refers to justice that advances the common good, or public interest over the interests of the individual.

Jury

A body of men and/or women sworn to give a verdict on some matter submitted to them; especially a body legally selected and sworn to inquire into any matter of fact and to give their verdict according to the evidence.

Case of First Impression

A case where no similar case or precedent has been decided in court previously in dealing with similar situations. Realizing the potentially far-reaching and long-lasting effect of a decision on such a case, the court usually proceeds with great caution and deliberation. Each case of first impression is a precedent but not every precedent setting case is a case of first impression.

Ad Coleum Doctrine

A common law precedent from Roman times that literally means "to the stars". This ancient doctrine states that a person not only owns a parcel of land but also the airspace above it. This doctrine was used in the Causby case and in the Griggs cases making claim under the Fifth and Fourteenth Amendments about rights to enjoyment of their property.

Libel

A defamation of one's character made in print.

Loss of Consortium

A law that allows the spouse (or in some states, the children), to recover for the losses he/she suffers as a result of the injuries to that individual's injured spouse, parent, or other significant other. Examples are decrease of sexual activity, loss of the ability to be a devoted spouse, loss of the ability to perform normal household services like maintenance, cleaning, etc.

Juror

A member of a jury. A member summoned to serve on a jury.

Deep Pockets

A rationale for imposing broad liability on the manufacturer the ability to bear the expense of personal injury or loss, as opposed to the individual financial burden which would be placed on the injured person or the burden of society in having to care for an injured person who is unable to care for himself/herself. An example would be making the manufacturer pay for accidents resulting from their products--even when the cause is not directly related to the manufacturer's negligence. The one page handout on the Piper Cub case which I handed out in class is a case in point that is a good example of this.

Code of Hammurabi

An ancient legal system supported by a code of laws that were carved in stone in the eighth century B.C. for the king of Babylon, Hammurabi. They are sovereign legislative acts with references to citizens' rights. It prescribed the social classes to whom the law applied, defined social status, described property and ownership, the order of the family, and included a body of criminal law.

Certiorari (or writ of certiorari)

Appellate proceeding for re-examination of decision by an inferior court, or auxiliary process to enable appellate court to obtain further information in pending cause. This is when a party files to appeal a case. His/her lawyer must file a writ of certiorari. Sometimes the higher courts allow for this. Other times the higher courts deny certiorari.

Retribution

Certificated airmen are regulated through threat of sanction. This form of punishment/sanction focuses on the offender and punishing him/her. This type of sanction enforces the "payback theory or the philosophy of an eye for an eye.

Restitution

Certificated airmen are regulated through threat of sanction. This form of punishment/sanction involves reciprocity and cooperative effort to restore conditions to an original state. Restitution includes the restoration of the deprived rights of the victims of rule-breaking, not just restitution of the offender by "paying him/her back."

Strict Liability

In class we discussed that internationally, the airlines agreed upon a set amount to pay for passengers killed in a crash under strict liability. In the case of manufacturers, suppliers, or sellers, strict liability means that any one of them is liable only for injuries caused by a defect that existed in the product before it left their direct or indirect control. Strict liability arises from injurious conduct alone. In strict liability the individual or agency is held responsible for paying the injured party without the inured person even taking them to court. However, in strict liability the agency accepts this requirement in exchange for a limitation on the amount they have to actually pay out.

Assumption of Risk

In negligence cases it a recognized principle that one who knowingly and voluntarily assumes the risk of injury from a know danger or defect, cannot recover. While often associated with contributory negligence, it is distinguishable. If the injured person can be proved to have known and understood the scope, nature, and extent of the risk involved and to have voluntarily and freely chosen to incur that risk, that may serve to relieve others of legal responsibility for harm that befalls that person.

Nuisance

Nuisance is invoked in property rights when the property owner has been deprived of quiet enjoyment. If there has been undue annoyance, inconvenience, discomfort, or injury which has caused the loss of quiet enjoyment, then it may be established by the plaintiff's lawyer that a nuisance has occurred.

Jurist

One having a thorough knowledge of law. (lawyer, judge)

Affirmative Action

Positive action to accomplish the purposes of a program which is designed to increase the employment opportunities of certain groups. This may involve goals, timetables, or specifically outlined steps to be undertaken to assure objectives are reached.

Administrative Law

That branch of public law which deals with the various agencies of the sovereign power--their regulations and the enforcement of those regulations. Ex: Rules and regulations of the Federal Aviation Administration (FAA) and those of the National Transportation Safety Board (NTSB). In other administrative areas like medicine or law or communications, those are also served by administrative courts. The reason for this is that the judge of the regular courts do not have the specialized training to make general decisions on those expert areas.

Themis

The goddess of justice and wife of Zeus.

Codification

The process of organizing and arranging law into a systematic form. A code of laws provides society with an easy reference to the rules and standards for which it is expected to abide. Examples: The United States Code that is organized under 50 titles---

Warsaw Convention

The terms of the Warsaw Convention form a treaty which has been ratified by more than 100 nations since 1929. The purpose of the convention was twofold: (1) establish a certain degree of uniformity for tickets, waybills, claims arising out of international transportation, etc. (2) limit the liability of the carrier in case of accidents where passengers might be killed or injured. This convention shifted the burden of proof so that the carrier was assumed liable. In exchange for accepting the burden of proof, the treaty limited the carrier's liability.

Shepard's Citations

These are a compilation of citations to all cases reported in the Reporters. The citations include affirmations, reversals, and dismissals by appellate courts and by the U.S. Supreme Court. Through a procedure known as shepardizing, case histories can be traced in the Shepard's McGraw Hill series to trace a particular case to its conclusion.

Federal Tort Claims Act

This act grants the rights to citizens to bring action against the Federal government based upon tort for injury caused by an employee of a government agency.

Fifth Amendment

This amendment provides for rights relative to the due process of law. There are two due process clauses in the Constitution—they are in the 5th and 14th.

Beyond a Reasonable Doubt

This applies in a criminal trial--not in a civil court proceeding. The prosecuting attorney has the burden of convincing the jury "beyond a reasonable doubt" of the accused person's guilt of the crime charged. For the accused to be found guilty, all jurors must concur in the verdict. This is different from a civil trial where only a "preponderance of the evidence" is required.

"Preponderance of the Evidence"

This applies in civil trials. The plaintiff must prove his/her case by a "preponderance of the evidence", ie. by convincing to the jury that the weight of the evidence is more than 50% in his favor. (In their evaluation of the evidence, the individual jurors may give differing degrees of weight to testimony of witnesses or other evidence.) For the plaintiff to prevail, in a civil case, 9 out of 12 must decide for the plaintiff.

Chicago Convention

This convention in 1944 established a basic framework of regulation essential to the development of international air transportation. It addressed such issues as sovereignty over airspace and traffic rights, (commonly referred to as the five freedoms: aircraft nationality and registration; crew regulations; air navigation services; and the provision of airport facilities.) Its major provisions are the 3 areas of air navigation, International transport, and formation of the International Civil Aviation Organization, called ICAO.

Case Law

This is "judge made law" resulting from a decision in a particular situation with a particular set of facts. It depends upon precedents--earlier court decisions.

Last Clear Chance Doctrine

This is a defense available to the manufacturer in a product liability suit. It states that in spite of negligence of the manufacturer, the injured party had the last chance or opportunity to avoid the injury. It also refers to tort liability for an individual in which a plaintiff had the opportunity to prevent an accident or injury (or harm) to himself/herself.

Attractive Nuisance Doctrine

This is a legal concept related to premises liability that says that even though a person may be a trespasser (child or retarded only), if the defendant did not adequately secure or remove the nuisance, he/she is liable for any accident that happened. An example of this would be a person being sued for death or injury from a pool (the attractive nuisance) that they own-----if they did not have a locked fence surrounding the pool.

Aviation Safety Reporting System (ASRS)

This is a program established to identify potential dangers in aviation. In order to receive frank and honest reports about potential hazards within the system, it was considered essential that airman certificate holders such as pilots, mechanics, controllers, etc, give input. In order to receive the frank information, airmen who submit reports of their own violations are granted immunity from certificate action if the infraction was not due to intentional or reckless violations.

Common Law

This is a system of jurisprudence that is based upon custom and tradition rather than upon codified law. The most important single root of the American legal system is common law that was imported directly from England. It is the body of law which accumulated and collected from the decisions of the English courts and adopted as the basis of law in the U.S. It rests upon precedent and a trial-by-jury custom.

Contract

This is an agreement that is legally enforceable in a court of law. (Examples: when you purchase aircraft insurance, rent tie-down space, rent or lease aircraft, join flying clubs, etc.) It is a legally enforceable agreement upon sufficient consideration. There is a subject (or object) over which there is an offer and acceptance agreed upon for some consideration (recompense). The essential elements of a contract are 1) competent parties, 2) the subject or object, 3) legal consideration, 4) mutuality of agreement (or assent), and 5) mutuality of obligation (i.e. both parties are bound by the terms)

National Transportation Safety Board

This is an independent federal agency responsible for investigating and determining the cause(s) of accidents in all five modes of transportation (airway, railway, highway, waterway, and pipeline) After completing an aircraft accident investigation, the NTSB makes recommendations to the FAA on how to help prevent similar occurrences in the future.

Proximate Cause

This is one of the four elements of negligence that must be proven to win a negligence case. This is a legal concept that demonstrates that the accident was caused by one's negligence, by setting in motion a sequence of events that would otherwise not have occurred. Most aviation accidents result not from a single mistake, but from a series of errors that snowball and cause the event. (Keep in mind that the NTSB's finding of probable cause is not the same as proximate cause and, in fact, is not admissible as evidence at the trial.)

Jurisprudence

This is the philosophy and science of law.

Affirmative Defense

This is where an excuse is offered to relieve the defendant of liability even though it is clear that the defendant's negligence was the proximate cause of an accident and the cause of the damages incurred by the plaintiff. It says, in effect, that yes, the injury did occur and it is due to the defendant's action(s) but there is a reason that this defendant should not be held liable to the plaintiff. That is, yes, the defendant affirms he/she did it but.... (An example could include self defense.)

Negligence Per Se

This is where the plaintiff can prove that the accident resulted from violation of an FAR intended to prevent such accidents. However, to invoke negligence per se, the alleged violation must have been the approximate cause (or one of the approximate causes) of the accident.

Contributory Negligence

This may relieve the defendant from liability. This can only be used if the plaintiff's negligence was also a proximate cause of the accident. It is where both parties are negligent and, therefore, the injured party's own lack of care might deprive him or her of the right to recover damages. (Some states do not permit the use of contributory negligence.)

Stare decisis

This means the law of the binding precedent or concept of legal precedent. (Our system developed around the concept that judges would apply particular law to particular like cases that had set precedent previously.) It is used to describe the process of using a previous case (a precedent) to help defend a later case.

Slander

This refers to a defamation of one's character made in a malicious manner, but verbally---as opposed to libel, which refers to defamation of character in print.

Crashworthiness

This refers to a legal concept established in the 1960's that states that manufacturers have a duty to foresee the possibility of a future accident in a manufactured vehicle and have a duty to protect its occupants in certain crashes from serious bodily harm or death. The human body can withstand tremendous amounts of force applied to it. If that force is of sufficiently short duration, and if the person involved is properly restrained, they can survive the impact.

General Aviation Revitalization Act (GARA)

This refers to the act that was passed in 1994 in order to help revitalize the aviation industry after a wave of frivolous law suits against aviation manufacturers had brought the industry to the brink of bankruptcy due to the extreme awards they were ordered to pay in liability law suits. This act established an 18 year statute of repose (limitations) on general aviation products. It provided that after 18 years, no civil action for damages for death or injury to persons or damage to property arising out of an accident involving a general aviation aircraft could be brought against the manufacturer of the aircraft (nor the manufacturer of any aircraft product, component, system, subassembly, or other part of the aircraft.)

Liability

This refers to tort law and includes all manner of responsibilities, obligations, debts, and assumption of risk. It is a broad legal term including almost every character of hazard or responsibility. It is also defined as an obligation one is bound in law or justice to pay, or make good something which may be enforced by legal action.

Probable Cause

This term is not to be confused with proximate cause--which is determined in the court room. In aviation cases, this refers to decisions made by the NTSB in regards to cause(s) of an accident that was investigated. The primary mission of the NTSB is to investigate accidents in all five modes of transportation. Then they are to identify problems and propose changes so that the same type of accident does not occur again.

Brief (or case brief)

This term refers to a detailed statement of a party's case. It is a condensed statement of the propositions of law that counsel desire to establish indicating reasons and authorities that sustain them. It is a vehicle of counsel to convey to a court the essential facts of the client's case. It is a synopsis of a case.

Positivist

This term refers to an individual with a narrowly defined attitude toward compliance with laws/regulations. The positivist believes that the law should be consistently enforced in the same manner, with the same consequences, regardless of mitigating circumstances. Alternatively, the moralist does not see law as black and white but as having varying shades of grey. He/she believes that one should not always just interpret the law necessarily as written.

Moralist

This term refers to an individual with a predisposed attitude toward a broad set of acceptable responses for compliance with laws/regulations. The moralist does not see law as black and white but as having varying shades of grey. He/she believes that one should not always just interpret the law necessarily as written. The moralist considers what the intent of the law is as well as the actual written words of the law. Being concerned more with the intent of the law than the written word itself, the moralist asks, "What ought the law to be?" and responds to enforcing the law in varying ways, depending upon the varying circumstances. Alternatively, the positivist believes that the mitigating circumstances are not relevant. He/she feels the law should be consistently enforced in the same manner, with the same consequences, regardless of mitigating circumstances.

Conversion

This term refers to the act of assuming rights to personal property that are inconsistent with the rights of the owner or person entitled to the possession. Conversion is considered a criminal act so it would result in a felony.

Comparative Negligence

Unlike pure contributory negligence used in some states (which makes a plaintiff lose if his/her own negligence contributed even one per cent), in comparative negligence the jury is told to compare the negligence of the plaintiff and the defendant by virtue of percentage amounts of total negligence attributable to each. The judge or jury decides what percentage of the proximate cause of the accident was attributable to the defendant and what percentage resulted from the plaintiff's negligence, and then apportions the liability settlement for the plaintiff's injuries accordingly.

Notice of Proposed Rule Making (NPRM)

When a federal regulation is proposed to be changed, a document known as a NPRM is issued. In aviation, NPRM's are initiated by the FAA to give notice to the public of the proposed change so that they can respond to the proposed changes within a stated period of time. (NPRM's are also required to be issued in other administrative professions by agencies such as the IRS, FCC, Occupational Safety and Health, etc.)

Willful misconduct

When a pilot engages in conduct that is more serious than a simple negligent action such as failure to exercise good judgment. This conduct refers specifically to a person who exercises blatant disregard for others. (Example = "buzzing")

Taking

While the government may regulate property use, if regulation goes too far, it becomes a "taking." When the state "takes" private property for public use, the owner must be justly compensated. (In the Causby case, the court's opinion was that mere flight over land does not constitute a "taking" but rather must be attended by something else such as noise and/or glare. In that case, the court found that flights over private land are not a taking unless flown so low and so frequently as to be a direct and immediate interference with enjoyment and use of the land.

Habeas Corpus

in Latin means, "you have the body." In law it is the name given to a variety of writs, having for their objective to bring a party before a court or judge. When employed alone in common usage, and as the term has been used in this text, it is understood to mean habeas corpus subjiciendum, which is a writ directed to the person detaining another, and commanding that person to produce the "body" of the prisoner, or person detained.

Amicus Curiae

is a Latin expression meaning "friend of the court." The term refers to a bystander (usually an attorney) who volunteers information or states some matter of law for the assistance of the court. It may also be a person who is permitted to introduce evidence, or arguments, to protect his or her interests even though the person has no legal standing in the current case.

Caveat Emptor

is a Latin expression meaning "let the buyer beware." According to this maxim a purchaser must examine, judge, and test before buying—and ultimately must be held responsible for his or her actions. It is a principle that has been generally outmoded by strict liability, warranty, and other consumer protection laws, which favor the consumer-buyer.

Res Ipsa Loquitor

is a Latin term denoting that negligence is obvious. Literally it means, "the thing speaks for itself." Whenever the conditions surrounding an event are so extraordinary, it is presumed someone must be at fault; i.e., an accident in question could not have happened without negligence

Tort Law

is law designed to compensate a plaintiff for the failure of a party to carry out a duty owed the plaintiff to keep him/her from harm. To recover damages, the plaintiff must show a breach of duty and that injury or damage has resulted. A "tort" is a civil wrong, an act, or failure in one's duty toward another, causing property damage or loss, or injury.

Appellant

is one who appeals the decision of a lower court to a higher court for review.

Defendant

is the defender, the one against whom a claim or charge is brought. It is the one who denies a claim in a court action.

Negligence

is the omission of doing what a reasonable person would do, the failure to exercise "ordinary care," or to be "careless." This is the principle invoked most commonly in aviation accident cases. A person is negligent when he/she fails to exercise a degree of care that an ordinarily prudent or careful person would use under the same or similar circumstances to keep someone from harm.

Plaintiff

is the one who begins a legal action. It may be the person who begins a personal action to recover damages for injury to his or her rights; i.e.; the complaining party in a lawsuit. It may also be a defendant who is appealing the adverse decision of a lower court; that is to say, litigant roles may be reversed in an appeal.

Appellee

is the other party in a litigation against whom an appeal is taken (also called the "respondent".)

Venue

is the place where injury happened, crime was committed, or where the accused is brought to trial.

Reverse

is to annul, revoke, or to make void a legal decision. A higher court may "reverse" the decision of a lower court.

Affirm

is to confirm, ratify, or approve a judgment of a lower court.

Precedent

is what common law is all about. It is the underlying principle of case law and of the American judicial system. A precedent is something said or done that may serve as an example or rule to authorize or justify a subsequent act of the same or analogous kind. It is synonymous with common law or law based upon custom, tradition, and what has been done before under similar circumstances.

Assault

occurs where one, without consent, intentionally places another in apprehension of immediate physical harm. This is often confused with the term battery. Battery applies only when there has been non-consensual contact with another's person. (The contact need not actually cause physical damage---physical contact of any sort is all that it takes for battery to apply instead of assault. Of course, often the alleged violator is charged with both assault and battery.

Fourteenth Amendment

states that no state shall make or enforce any law which shall abridge the privileges of the citizens of the U.S. for life liberty, and the pursuit of happiness.