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LPBA Winter 1998 Meeting

Tuscon, AZ

Saguaro West National Park

Pima County Air Museum

"Boneyard" at Davis Monthan A.F.B.

Katie Moore wins spot landing contest

The LPBA spot landing contest rules do not require that the aircraft remains flyable after touchdown, but the landing gear must be utilized !!!

Ryan Field Fire Department-Tucson

The LPBA spot landing contest rules also require placing crash-fire-rescue services at the host airport on full alert anytime aircraft utilizing LPBA callsigns are in the pattern!

CLE PROGRAMS_TUCSON

Edward Booth, Esq. of Jacksonville, Florida, updated the Winter 1998 Meeting attendees in Tucson, Arizona on the published decisions which addressed the General Aviation Revitalization Act of 1994. Mr. Booth's paper, without the illustrations used in the presentation, is included here.

 


Mr. Booth is the Florida State Chair for LPBA, and a State Bar of Florida Certified Aviation Lawyer. Mr. Booth is a graduate of Florida State University School of Law. He is a partner with Booth and Arnold in Jacksonville, FL., where he is a trial attorney practicing principly in the areas of personal injury, aviation law, and commercial litigation.

GENERAL AVIATION REVITALIZATION ACT OF 1994

Historical Background

From the very beginning, the development and production of aircraft has been a challenging task. Historically, those involved in the development and the production of aircraft have embraced simplistic "fixes" to solve major problems that have confronted them.

An early example is found in a speech presented by Mr. Wilbur Wright to the Western Society of Engineers on September 18, 1901. This was prior to the "first flight," during a time when the Wright Brothers were conducting glider experiments on the seashore of North Carolina. Wilbur Wright told the audience:

The difficulties which obstruct the pathway to success in flying-machine construction are of three general classes: (1) Those which relate to the construction of the sustaining wings; (2) those which relate to the generation and application of the power required to drive the machine through the air; (3) those relating to the balancing and steering of the machine after it is actually in flight. Of these difficulties two are already to a certain extent solved. Men already know how to construct wings or aeroplanes which, when driven through the air at sufficient speed, will not only sustain the weight of the wings themselves, but also that of the engine and of the engineer as well. Men also know how to build engines and screws of sufficient lightness and power to drive these planes at sustaining speed. As long ago as 1884 a machine weighing 8,000 pounds demonstrated its power both to lift itself from the ground and to maintain a speed of from 30 to 40 miles per hour, but failed of success owing to the inability to balance and steer it properly. This inability to balance and steer still confronts students of the flying problem, although nearly eight years have passed. When this one feature has been worked out, the age of flying machines will have arrived, for all other difficulties are of minor importance.

The Wright Brothers soon found that there were many difficulties of major importance. They had to convince the public that their new invention was more than a novelty and had practical uses; as well as locating investors, business organizations, etc. to fund development and purchase these new machines. The fame and glory the Wright Brothers received for developing the first practical aircraft was overshadowed by years of bitter litigation over just who was responsible for developing the mechanisms to balance and steer these new aircraft.

The 1970's

General aviation experienced unprecedented growth during the 1970's. The production of general aviation aircraft was consistently in excess of 10,000 units per year during that decade with a peak of 17,811 aircraft during 1978. Attachment No. 1 dramatically demonstrates the levels of production during the 1970's. It also suggests an oversupply of new aircraft that a limited market was hardly able to absorb.

The 1980's Production Declines -- Let's Blame It On The Lawyers

By 1983, annual production had fallen to only 2,691 units. By 1994, production had fallen to a record low of 444 aircraft.

Without mentioning an obvious oversupply of aircraft, lack of interest by the public, competition for expendable income, increased complexity of the aviation environment, high operating costs, failure to implement product improvement and innovation, and abolition of the investment tax credit, the general aviation industry was suggesting one cause and one cause alone "soaring product liability costs." The General Aviation Manufacturers Association was successful in convincing Congress that a true crisis existed, that over 100,000 jobs had been lost nationwide, and that unprecedented federal relief was required. This relief came in the form of legislated immunity from long-term liability for general aviation aircraft manufacturers.

The Role of Cessna Aircraft In Obtaining A Federal Statute of Repose

Cessna Aircraft ceased production of piston powered aircraft in 1986. A major proponent of a federal statute of repose was Russell W. Meyer, Jr., Cessna's Chairman and Chief Executive Officer. Meyer promised that Cessna would restart its single engine piston aircraft production line if some type of meaningful nationwide tort reform was enacted. Meyer believed that product liability laws had crippled general aviation, and cited these laws as the reason Cessna exited the single-engine aircraft business in 1986. By the early 1990's Meyer was telling us that the demand for new single engine airplanes greatly exceeds the current supply, and that there was a "tremendous need to replace existing units and satisfy the demand of people who want to learn to fly." In March 1995, Meyer stated that Cessna would build 2,000 single engine airplanes annually by 1998.

The General Aviation Revitalization Act of 1994

The General Aviation Revitalization Act of 1994 ("GARA"), 49 U.S.C. §40101 is a federal eighteen (18) year statute of repose. The Act became law on August 17, 1994. The 18-year period commences on the date of delivery 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. With respect to replacement or added components, systems, subassemblies or parts, the 18-year period commences on the date of completion of the replacement or addition. General aviation manufacturers, and component manufacturers are protected against for actions for wrongful death, injury, and property damage after running of the 18-year period.

Exceptions to GARA

There are four exceptions:

1. If the victim pleads "with specificity" and proves the manufacturer knowingly misrepresented to the FAA or concealed or withheld from the FAA information material in relevant with respect to the type or airworthiness certificate or with respect to obligations pertaining to continued airworthiness (14 C.F.R. §21.3), which information pertains to the performance or maintenance of the aircraft, its components, etc. in which information was casually related to the victim's claim.

2. If the victim was a passenger for the purposes of receiving treatment for a medical or other emergency.

3. If the victim was not aboard the aircraft at the time of the accident.

4. If the victim's claim is predicated on a written warranty enforceable under law.

What Is A General Aviation Aircraft?

GARA defines the term "general aviation aircraft" to mean any aircraft for which a type certificate or an airworthiness certificate has been issued by the administrator of the Federal Aviation Administration, which, at the time such certificate was originally issued, had a maximum seating capacity of fewer than 20 passengers, and which was not, at the time of the accident, engaged in scheduled passenger-carrying operations at the time of the accident.

Case Law Interpreting GARA

The first appellate decisions interpreting GARA began appearing during early 1996. These decisions answer a few questions, but there are many issues yet to be raised and addressed by the appellate courts.

A representative sampling of the reported decisions is as follows:

1. Cartman v. Textron Lycoming, unreported decision found at 1996 WL 316 575 (E.D. Mich.) Feb. 27, 1996: Cartman shows the operation of GARA in its most basic form. Plaintiff was injured in an aircraft accident occurring on October 16, 1992. It was alleged that the plane crashed due to a faulty carburetor float installed on June 3, 1966. Plaintiff's allegations of the defective carburetor float were not raised until an amended complaint was filed on March 22, 1995.

Summary Judgment was granted for the defendants. The court points out that amendments to the original complaint, initially filed prior to GARA being enacted, do not "relate back." The case also demonstrates that the plaintiff cannot satisfy the "knowing misrepresentation or concealment" exception unless it is pled with specificity that defendant concealed information from the FAA. Here the court finds that plaintiff's allegations to that effect were insufficiently specific.

2. Altseimer v. Bell Helicopter, 919 F.Supp. 340 (E.D. Ca.) March 20, 1996: Helicopter crash due to defective gear box manufactured more than 18 years prior to the crash. Summary judgment was granted for defendants. Case points out that causes of action that occur prior to the enactment of GARA on August 17, 1994, are nonetheless extinguished by the 18-year statute of repose, if the action filed after that date.

3. Alter v. Bell Helicopter, 944 F.Supp. 531 (S.D. Tx.) June 17, 1996: Helicopter crashes in Israel on November 24, 1993, due to alleged failure of engine compressor stator vane. Plaintiffs admitted that more than 18 years passed between the first delivery of the helicopter and engine from the manufacturer and the accident. Plaintiffs attempted to avoid GARA by alleging that maintenance manuals for the engine in question had been issued within the 18 year limitation, and that the manuals contained a misleading statement that proximately caused the helicopter crash. Plaintiff specifically alleged that the maintenance manual contained instructions on how to inspect the engine compressor stator vane that, if followed, would not enable a mechanic to detect serious wear and tear in the component. Court rejects the allegation that GARA does not apply to accidents that occur in a foreign country. Court also rejects plaintiff's theory that maintenance instructions were a "product," and that their issuance within the repose period did not recommence the running of the statute of repose.

4. Rickert v. Mitsubishi, 923 F.Supp. 1453 (D.Wyoming) April 12, 1996, reversed 929 F. Supp. 380 (D. Wyoming ) June 19, 1996: Mitsubishi MU-2 crashes on April 6, 1993, 21 years after the sale of the aircraft by Mitsubishi in April 1972. Plaintiffs alleged knowing misrepresentation by defendant of matters pertaining to the aircraft's deicing system, controllability issues and other design defects.

Court initially finds that plaintiff's allegations of misrepresentations and concealments, in an attempt to avoid GARA, were nothing more than innuendo and inference. The court found that GARA demands specificity in order to avoid the period of repose. The court then granted Mitsubishi's motion for summary judgment.

In a somewhat unusual move the court reversed itself two months later based on new evidence that Mitsubishi had been less than forthcoming with its discovery responses, and is allowing limited additional discovery. The court will apparently reconsider the motion of summary judgment in the future.

The federal court system rarely provides plaintiffs in civil actions a second chance, but here Judge Bremer noted that "this court's earlier order obviously served as a wake-up call for Rickert. She apparently now realizes that GARA has altered the legal landscape for aviation product liability lawsuits, and that she cannot withstand a GARA based motion for summary judgment simply by creating a genuine issue of material fact concerning Mitsubishi's negligence or strict liability. Rickert now understands that she must produce some evidence that Mitsubishi knowingly misrepresented something to, or concealed something from, the FAA concerning the MU-2's performance and handling." 929 F. Supp at 381.

5. Wright v. Bond-Air, Ltd., 930 F.Supp. 300 (E.D. Michigan) July 15, 1996: Cessna manufactured a Cessna 310 and sold it in October 1967. Aircraft crashes on February 5, 1995 killing plaintiff.

Plaintiff sues airframe and engine manufacturers in Michigan State Court. Defendants seek removal to federal court claiming that the action "arises under federal law due to the General Aviation Revitalization Act of 1994."

The court makes it clear that GARA does not confer federal jurisdiction upon state court claims, nor does it create a federal cause of action. The action was remanded back to state court, where one suspects the provisions of GARA will result in summary judgment in favor of defendants.

It is likely there are numerous state trial court decisions that are unreported and are probably working their way through the appellate system at this time. Likewise, many practitioners have never heard of GARA, as evidenced by an article appearing in Flying Magazine in the July 1997 issue that a foundation established in the name of Jessica Dubroff is suing Cessna for negligence in the design of the 1975 Cessna 177B Cardinal that crashed while the seven year old girl was attempting a cross-continent flight some 22 years later. Cessna General Counsel, Tom Wakefield, reports Cessna will seek summary judgment through the provisions of GARA.

Has GARA Revitalized General Aviation?

Piper has emerged from bankruptcy and has pre-sold nearly all of its 1998 production. Beechcraft and Mooney never left the market and continue to produce fast luxury aircraft. Perhaps the best evidence that the act is working, is it provided the incentive for Cessna to restart piston aircraft production. During November 1996 the first "new" Skyhawk rolled off the assembly line in Independence, Kansas.

It remains to be seen if anyone other than the ultra-rich or "Embry-Riddle" type flight schools can afford the new Cessnas. Attached is a current price list for the new line of Cessna singles, suggesting that the availability of these new aircraft is unlikely to revitalize aviation for the masses. Attachment 3.

General aviation production figures for the first quarter of 1997, as compiled by the General Aviation Manufacturers Association and reported in Aviation Week and Space Technology issue of May 5, 1997. First Quarter 1997 Production were as follows:

63 business jets
39 turbo props
135 piston powered aircraft
_________________________
Total: 237 units

(73) of these were for export, 164 will be sold in the United States, 14 of these aircraft were Cessna Skyhawks

Could it be that the product liability crisis had little to do with the decline of general aviation? After all, the industry told Congress that meaningful product liability reform, in the form of GARA, was all that would be required to revitalize the industry. The current production does not even come close to replacing aircraft lost through crashes and age. Take a look at "www.faa.gov/avr/aai/iirform.htm" to get an idea of the daily destruction of general aviation aircraft. Could it be that the lawyers were not to blame after all?

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