General aviation crash course: the first 15 days.

Receiving a telephone call from the family of someone involved in a small airplane or helicopter crash is gut-wrenching. Because of the shocking nature of the event and because of the cloak of secrecy thrown around the accident investigation by "insiders"--the National Transportation Safety Board (NTSB), the aircraft operator, the fixed base operator, and others--family members often call attorneys very soon after a crash to get someone on their side who will help answer their questions. Amid the urgency of funerals, hospital visits, critical medical care, and economic calamity, every family wants to know two things: that their lost relative did not cause the crash and, if the person they lost was a pilot, a crew member, or a mechanic, that the investigation will exonerate their loved one.

The family will look to you to bring them that news--a daunting task under the most favorable conditions, and an impossible one under other conditions. They want, and need, to know how they are going to survive. And they want to know, "Is there a case?"

Family members' focus is properly on their problems, not on whether you have an encyclopedic grasp of aircraft and federal investigations. In fact, they may have contacted you because they have discovered that there is no simple process for getting information about the crash. Your investigation will be difficult--and in the first 15 days after the crash, more people involved in the investigation will want to avoid providing information than will help you. But in general aviation crashes, nothing succeeds like shoe leather, telephones, and a plan. Fifteen days after the crash you won't have all the answers, but you will be able to make some reasonably informed decisions and give some preliminary advice.

While the family is burying a loved one, the NTSB, the aircraft manufacturer, and other interested parties are poring over the crash scene and carting away evidence. The rules do not permit you to join them. NTSB investigation procedures are outlined in 49 C.F.R. [section]832. Section 831.11 provides that parties to the investigation "shall be limited to those persons, government agencies, companies, and associations whose employees, functions, activities, or products were involved in the accident or incident and who can provide suitable qualified technical personnel actively to assist in the investigation." Subsection (a)(3) provides that "no party to the investigation shall be represented in any aspect of the NTSB investigation by any person who also represents claimants or insurers."

In practice, this means that only those with a stake in defending the accident can be "party participants" in the investigation. Those who lost a loved one in the accident are excluded. However, it is important to understand how the investigation will proceed, even though you are not formally allowed to participate.

The NTSB dispatches a rapid-response team to the site of any domestic crash it investigates. (1) The team consists of an investigator in charge (IIC) and, at his or her choosing, one or more NTSB employees who will be responsible for group investigations. Often the Federal Aviation Administration (FAA) will send a representative to the scene.

The investigator in charge will usually invite representatives of the companies that manufactured various aircraft parts, as well as the aircraft operator, to participate in the investigation on the premise that one or all of them can contribute technical expertise or specific information about the aircraft, flight, or crew. Representatives from the manufacturers' safety departments will also go to the scene.

The NTSB's mission is to improve air safety by identifying factors that caused the crash and, where appropriate, bring to light procedures and processes to reduce the likelihood of recurrences. That mission often cannot be pursued without cooperation from technical participants who have detailed knowledge of specific aircraft structures, powerplants (engines), systems, and designs. The NTSB cannot assist in legal action, actual or potential, pursuant to 49 C.F.R. [section]835, which severely restricts the use of NTSB reports and depositions in civil litigation.

The government and the companies that designed, built, maintained, and flew the aircraft will take custody of the wreckage, block off the site, and conduct a series of meetings that will eventually result in one or more reports about the facts of the crash.

The NTSB systematically investigates crashes by gathering data, records, and observations about the aircraft, crew, and flight. The NTSB will form groups to investigate each subject area that may be related to the crash. The groups cover, generally, structures, systems, powerplants, and operations; maintenance records; flight data recorder; and cockpit voice recorder. Other groups cover air traffic control, weather, human factors, and witnesses. Not every investigation requires that a group be formed for each of those areas or that every group produce a report.

The groups are supported by technical investigations. The NTSB has material-failure laboratories that have the capacity to examine components for evidence of malfunction. For example, the lab may microscopically examine nicks in propellers for fatigue cracks, or a broken fixture for manufacturing flaws. In many investigations, manufacturers will examine their own components and assemblies, using their own laboratories.

Excluding the families and their attorneys from the investigation, particularly while including those most likely to be defendants, may seem unfair. However, the issue is pretty well settled. In Graham v. Teledyne-Continental Motors, the Ninth Circuit upheld the NTSB's refusal to permit a representative of a pilot's estate to participate in or even observe NTSB disassembly and testing of a crashed aircraft's engines. (2) Spending time and money in the first weeks after a crash trying to persuade a court to order the NTSB to allow you or your client to participate would be futile.

Drop in on the investigation

Although victims, families, and their attorneys will not be invited to participate in the investigation, that doesn't mean you can't show up.

First, armed with a letter signed by your clients identifying you or your investigator as acting on their behalf, make professional efforts to attend any events in progress. For example, seek permission from the IIC or other official in charge of the scene to observe the activity at the site and photograph evidence. The IIC neither routinely grants nor denies permission.

Although [section]831.11 (a)(3) excludes claimants, attorneys, and insurers from the official investigation, in practice the NTSB almost always admits insurance representatives to the scene if requested by the hull insurer. Insurance representatives usually offer to fund hauling and storage of the wreckage and identify the principal insured as a stakeholder and salvage owner. The NTSB usually agrees.

When seeking permission to investigate the crash scene, make it clear that you will not touch or move anything. Offer to share any photographs you take. Promise not to ask any questions of NTSB personnel.

Try to find out who the party participants are. Ask to see sign-in sheets that list participant representatives who have come to the scene.

Next, contact the owner, operator, or lessor of the aircraft, and other parties whom the NTSB allows to participate. Frequently, charter-aircraft operators and flight schools have records on the aircraft, its maintenance operations, and pilot that the NTSB needs. These parties often have little experience in NTSB investigations. If there is no inherent conflict between such a party and your client, urge it to seek permission from the NTSB for you to participate. At best, the NTSB may authorize you to attend the scene with that party, and, during the investigation, you may have an opportunity to review the materials generated by all the participants and exchanged during the investigation. At worst, if all potential party participants refuse to share information with you or your client, you will be no further behind than before.

Finally, the "rule of committees" often prevails: Everyone who is present usually invokes the names of those not present. If an invited party does not participate in an NTSB crash investigation when it has the opportunity to do so, parties that do participate may not disclose any evidence that points to their own responsibility but may find key facts that point the finger at the absent party.

Get early NTSB reports

The incident report is available on the NTSB's Web site for a period of 10 days after a crash occurs. Although the report will often include minimal information and is frequently updated, some of the information it does contain is important.

For example, the aircraft registry and registration number can lead you to the record owner. The aircraft description provides a precise model number and, occasionally, some focus for your investigation. For instance, a report about a 1971 Bell OH-58A will tell you that the helicopter was probably a former military helicopter. This raises the question of whether the aircraft had been reconfigured to comply with the "civilian type certificate" issued by the FAA when similar Bell helicopters are converted to civilian use. Since the helicopter is a former military aircraft in civilian use, you may assume there are military maintenance records on the aircraft, and you should immediately send a Freedom of Information Act (FOIA) request for them.

The NTSB accident synopsis is also available online, often within days of the crash. It is usually in a narrative form and provides extremely important information, such as the identity of the registered owner. Since many aircraft are leased, the owner may or may not be the operator. For example, a synopsis that states the aircraft was on a "Part 91 positioning flight" indicates that it was not on a revenue flight and would be considered a private, or "general aviation," flight. If the synopsis indicates that no flight plan was filed, information that would ordinarily be included in a flight plan will not be available from the FAA.

The report also summarizes any witness observations, although it does not list names. From this you know that there were witnesses to the crash whom you need to identify and interview. This is often not the case; many crashed aircraft are discovered hours or days after disappearing from a radar screen.

Obtain other records

Local fire and law enforcement personnel, ambulance attendants, and volunteers often arrive on the scene first. The death certificate will probably identify the "informant" who provided information such as name, birth date, and date of death to the local registrar, justice of the peace, or other official. Some states include a "cause of death" on the certificate, and if the death was accidental, the informant is often a witness to the accident. Add these individuals to your list.

Nothing prohibits you from obtaining records from these departments or speaking with their employees. Whether you obtain it by an FOIA request or by simple inquiry, the information is available and valuable. If local newspapers covered the crash, get a copy of each photograph taken by the reporter or photographer. This is not public information, so many newspapers may request payment.

Other records may be more difficult to obtain. Pertinent records are rarely available from just one source: The FAA governs day-to-day operations of the federal airways and airports. The NTSB picks up the pieces at crash sites. It is important to request necessary information before the agency responsible for collecting and maintaining it disposes of or recycles it. Requests made within 15 days should result in impoundment and preservation of the records; requests made after 15 days may be too late.

Records you should request from each agency follow.

FAA. Contact the FAA regional office by telephone and in writing. Make an FOIA request to the chief of air traffic control under 5 USC [section] 522. Ask for:

* the air traffic control (ATC) report

* the transcript and audio copy of the communications between the aircraft and air traffic controllers from departure to the crash

* the flight plan

* reconstructed radar tracks or plots of the aircraft's actual flight path

* weather reports from the departing airport, en route, and arriving airport

* automatic terminal information service (ATIS) report for the arriving and departing airports, which includes information such as frequency of arrival and departures and local runway conditions

NTSB. Even though the NTSB may not invite you and your client to participate in the investigation, the agency may communicate with you about the crash. Call the regional office assigned to the accident and ask the investigator in charge about available information. Send an FOIA request for all publicly available records to the IIC and also to NTSB headquarters in Washington, D.C. Ask for:

* Form 6120.4, called the "factual aircraft accident report," with appendices and photographs. This is a collection of observations made by NTSB personnel about the subject of each group. Occasionally, it is the only formal report the agency publishes on a general aviation accident, particularly for accidents in which no one died. It contains specific objective data, such as the flight times, weather observations, powerplant and equipment serial numbers, pilot ratings and experience, amount of fuel on board, and so on. It also includes interpretive data, such as the probable angle of impact, speed at impact, and kinematic estimates.

* "Group chairman factual reports" with appendices and photographs. Generally, these are narrative reports by NTSB employees who have been designated by the IIC to supervise a specific aspect of the investigation. For example, a report by the cockpit-voice-recorder group would describe the technical steps taken to recover the recorder and retrieve and transcribe the recording. A structures-group report would give details on the investigation into any components that may have played a role in the crash. A powerplant-group report would describe efforts to recover the engines and examine them to determine how they were operating. It would also discuss potential causes of any power interruption, such as fuel contamination.

Group reports often include data gathered by party participants. For example, a helicopter manufacturer's materials-failure employee, acting as a party participant, may have performed a laboratory examination of a fractured main rotor grip. This information would probably be included in the structures-group chairman report.

* Board accident report. This is the agency's final determination of the probable cause of a crash. It may be issued as a narrative report or as a computer-generated "brief" available online. (3)

These NTSB reports will not be available in the first 15 days after a crash but you should request them as soon as you have sufficient identifying information from the preliminary report or accident synopsis to submit an accurate FOIA request. In general, many group chairman reports and the board accident report will often not be available for a year or more. The Form 6120.4 report is often available within a few months.

Get information about the aircraft and crew

After a crash, the owner/operator of the aircraft is obligated to impound all records it has or controls, including information about the aircraft's major mechanical systems and service history, and details about the pilot and crew. It must provide records or copies of them to the NTSB for examination and copying.

The records are not always kept in a single location. For example, pilot logbooks are personal and should be kept by the pilot. Company personnel files should contain copies of the pilot's ratings, certifications, requalifications, and flight hours.

Federal regulations require owner/operators to keep aircraft maintenance and repair records. (4) These should show whether the aircraft was inspected and serviced regularly, and whether mechanical components were overhauled or replaced. They should also reveal whether the FAA issued any "airworthiness directives," which identify potential defects in an aircraft and whether they were corrected.

Even if these records exist, the owner/ operator may not simply hand them to you. Each crash produces unique conflicts and alliances among the interested parties. Whether you can obtain maintenance records without going through litigation varies from case to case. However, without such records, it is unlikely that anyone will ever get a complete picture of the circumstances that led to the crash.

Speak to the witnesses

The NTSB and aircraft manufacturers often disregard eyewitness testimony and instead rely on technical investigations of the wreckage. Lay people on the ground do occasionally give reports that conflict with other witnesses' statements. The variables of location, familiarity with aircraft, and ability to communicate unusual movements such as spins, spirals, stalls, and the direction a rotor may have been turning--compounded by the shock of seeing an aircraft crash--can lead to more questions than answers and lessen the reliability of eyewitness testimony.

The NTSB often does little more than obtain eyewitnesses' names and addresses at the site and then send them a form asking, "Where were you at the time of the accident?" and "Tell in your own words what you saw or heard before and at the time the accident occurred." (5) Often, the statements will be included in the NTSB's factual report, with no followup from the agency or other party representative.

Because no one spends time getting exhaustive information from each eyewitness immediately after the crash, it is up to you to gather the information and record and preserve it in order to assist everyone, including the witness, should defense counsel try to discredit the testimony when the case goes to trial a few years later.

Understand the General Aviation Revitalization Act

Congress passed the General Aviation Revitalization Act (GARA) in 1994, to protect general aviation manufacturers from the uncertainties and costs associated with liability for crashes involving aircraft more than 18 years old. (6) You'll need to explain at least the general outlines of GARA to victims or their survivors when a crash involves such an aircraft.

GARA protects general aviation and component manufacturers against actions for wrongful death, injury, and property damage after the 18-year period expires. The act applies only to certain types of defendants, and then only to certain claims. While the body of law is growing and not all decisions are uniform, some general principles are clear.

The 18-year period begins on the date the aircraft is delivered to the first purchaser or lessee, if delivered directly from the manufacturer, or on the date of delivery to a person engaged in the business of selling or leasing aircraft. When components are replaced or added, the 18-year period begins on the date the replacement or addition is completed.

There are four exceptions to the 18-year statute of repose. It does not apply when the manufacturer knowingly misrepresented safety information or concealed it from the FAA; the claimant was a passenger for purposes of receiving medical or emergency treatment; the claimant was not aboard the aircraft at the time of the accident, meaning he or she was injured on the ground or conceivably while in another aircraft during the crash; and the claimant's cause of action is based on the manufacturer's written warranties. (7)

Under [section]2(c), GARA applies only to aircraft that have received a type certificate, carry fewer than 20 passengers, and are not engaged in scheduled passenger carrying. If these prerequisites apply to an aircraft that is more than 18 years old, no products liability suit can be brought against a manufacturer.

Clearly, both the manufacturer's and the owner/operator's records are indispensable in any crash of an older aircraft. At a minimum, the aircraft's age alone poses an obstacle that you must discuss with your clients.

Consider pilot error

Under 14 C.F.R. Part 91, the pilot is the final authority on, and therefore responsible for, the safety of a flight. If a structural, powerplant, maintenance, weather, or other observable condition that contributed to a crash existed before takeoff, the aircraft should not have taken flight. Most people will blame the pilot for taking off and for the crash. However, it is never that easy.

The Rand Institute has studied NTSB policies and practices as they relate to air safety. (8) The study indicated that 55 percent or more of all aviation crashes have a component of pilot error as a cause of the crash. To view it another way, 45 percent or more of all crashes are caused by something other than or in addition to pilot error. The study also addressed the role of the party-participant system in NTSB investigations and whether the process biases investigations by including manufacturers and operators while excluding victims and attorneys.

According to the institute, human factors are a frequent cause of crashes. (9) Some experts note that as aviation equipment becomes more sophisticated to reduce or eliminate specific situational risks, such as an approaching aircraft on a potential collision course, pilot errors increase. For example, pilots often face complicated choices in operating a cockpit computer mode or display while flying at several hundred miles per hour. (10) Whether human error may have contributed to a crash usually cannot be resolved within 15 days of a crash. Be sure to weigh all the possible causes--human error, mechanical failure, and environmental or external factors.

Aircraft crashes have an almost infinite number of causes. You must consider each of them. Mechanical defects--both from manufacturing errors and from maintenance deficiencies--contribute to hundreds of crashes. Design defects also cause crashes, as do fueling mistakes and changing weather conditions. It is not always possible to explain what caused a crash, to say whether your clients have a viable case, or even to quickly identify all the people, companies, and agencies that play a role in the investigation.

Counseling the family of a victim is not easy, whether it is the first time or the hundredth, but plaintiff lawyers serve as counselors as well as advocates. If you have a plan to work with, and a high degree of persistence, you can meet your clients' needs on both scores.

Notes

(1.) Not every domestic crash is investigated by the NTSB or the FAA. Many crashes are not reported at all, despite the breadth of 49 C.F.R. [section]830. Some pilots or owners simply violate the rule. Military crashes may not be reported to the NTSB. Each service branch has its own flight-safety investigative arm.

(2.) 805 F.2d 1386 (9th Cir. 1986).

(3.) www.ntsb.gov/NTSB/month.asp.

(4.) 14 C.F.R. [section]43.

(5.) NTSB Form 6120.11: Statement of Witness.

(6.) 49 U.S.C. [section]40101.

(7.) Rickert v. Mitsubishi Heavy Indus., 923 F. Supp. 1453 (D. Wyo. 1996).

(8.) LIAM P. SARSFIELD ET AL., RAND INST., SAFETY IN THE SKIES: PERSONNEL & PARTIES IN NTSB AVIATION ACCIDENT INVESTIGATIONS (2000).

(9.) Id. at 52-55.

(10.) Edward H. Phillips, NTSB: Mode Confusion Poses Safety Threat, AVIATION WEEK & SPACE TECH., Jan. 30, 1995, at 63.

Jack W. London is a partner in Jack W. London &Associates in Austin, Texas.