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Personal Injury

  • Aviation

Aviation Personal Injury Law

Although aviation accidents are generally governed by tort law, Federal air regulations are an important reference [1]. For the most part, the same law applies to both private aircraft accidents as well as airline carriers. Private crashes, however, are much more common.

Which Rules Apply?

Aviation accidents are complex because they usually involve ties to multiple states: the flight may cross state-lines, passengers may be from multiple states, and the plane may have been manufactured and repaired in still different states. Parties often argue over choice of venue, or which court is appropriate to hear a certain lawsuit, because choice of venue determines choice of law. Choice of law is important because state and district laws vary a great deal, and some laws are more favorable to either the plaintiff or defendant. When there is a question about choice of law in a lawsuit, Texas uses the most significant relationship test. The test takes into account a number of factors, like the place where the injury occurred and where each party is from, to determine the most appropriate law to apply.

When an aircraft accident occurs on the ocean or navigable waters, it is even more complicated. The relevant law depends on factors like the distance from shore, whether the incident results in injury or death, and whether the injured party was employed as a seaman.

International flights also bring their own set of rules. 120 parties have signed the Montreal Convention, including the United States in 2003 [2]. It is an agreement that applies to certain international flights. The Montreal Convention sets a presumption of liability against airlines for personal injury and death while on an aircraft, but also sets liability limits for the amount of damages an airline is responsible for.

Although some areas of aviation law are considered questions of Federal law, personal injury is not usually preempted by Federal law. This means that personal injury lawsuits can usually be brought in state court, and are not by their nature limited exclusively to federal court. The federal government does, however, have control over a lot of factors related to aviation: licensing pilots, certifying aircrafts, air traffic control, etc. As a result, the federal government is often named a defendant in aviation accident cases. When a claim is brought against the federal government, there are some special rules that apply; for example, there is no right to jury trial, and there are strict notice requirements.


Courts sometimes award “pre-impact” damages to family members in cases where the family can prove the deceased experienced apprehension leading up to the crash. However, this can be difficult for the family to prove. For example, in the 1984 case Air Florida Inc. v. Zondler, the court decided the testimony of a crash survivor who experienced fear and apprehension was not sufficient to show that the deceased experienced the same [3]. However, the 5th Circuit Federal Court has repeatedly awarded mental anguish damages to the families of deceased passengers based on testimony and evidence of what the deceased likely experienced leading up to the crash.

Because passengers do not usually contribute to causing aircraft accidents, aviation personal injury lawsuits rarely invoke issues of comparative liability wherein the plaintiff is found partially responsible for their own injury. However, multiple defendants can be held responsible for different portions of a plaintiff’s injury using Texas’s system of modified comparative negligence. Please see the Comparative Negligence article for more information.

Although not the only possible cause of action, negligence is often the cause of action brought against a defendant in aviation injury lawsuits. In a negligence case, the plaintiff must prove that the defendant must owed the plaintiff a duty, and their breach of that duty must have proximately caused injury to the plaintiff. Please see the Negligence articles for an in-depth discussion of negligence in general. There are several potential defendants in an aviation personal injury lawsuit.

  • The manufacturer of an aircraft may be at fault for either negligence, breach of warranty, or product liability claims. In Texas, a manufacturer can be held responsible via product liability for “any product in a defective condition unreasonably dangerous to the user [4].” Products, including aircrafts, can be defective in design, manufacture, or by the failure to include appropriate warnings or instructions for safe use.
  • If an aircraft received negligent maintenance or repair work, a maintenance and repair station could be liable for resultant damages. The federal government sets specific standards for how maintenance and repair of aircrafts should be completed and recorded. If a repair station fails to abide by the federal regulations, that might be evidence of negligence. A plaintiff who sought services from a maintenance or repair station might also have a claim under the Texas Deceptive Trade Practices Act (DTPA).
  • The federal government can be held liable for the negligence of its employees, like air traffic controllers, via vicarious liability. Air traffic controllers have several duties toward aircraft pilots. They must provide all the warnings and information required by the Federal Aviation Administration (FAA) manual, as well as warnings beyond the manual in some specific situations. For instance, when the controller is better equipped to evaluate the danger of the circumstances. A controller must warn a pilot of any dangers that are apparent to them, but not to the pilot. For example, if the controller is aware of another aircraft posing a traffic hazard [5]. This duty to warn can also extend to weather conditions in certain situations.
  • The pilot might also be found liable in a crash, for operating an aircraft in a negligent manner. Interestingly, when a pilot and an air traffic controller are both found negligent, the pilot’s contributory negligence can reduce or even bar the liability of the United States Government.

It’s important to note that many aviation accident lawsuits also give rise to insurance coverage disputes. Aviation litigation is a very complex field that requires the expertise of experienced attorneys.

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