[TowerTalk] Action against US Tower?

Bill w7vp at comcast.net
Sat Jun 10 00:19:09 EDT 2006

You are only partly right, Bill.  The issue was not negligence. That issue 
had been taken out of the mix with the advent of Manufacturers Strict 
Liability in Tort beginning with the Yuba Power case  in California in the 
early 60's.  Most states followed that decision and by the 70's virtually 
every state had adopted some form of "product liability" law.

There were two purposes behind the advent of product liability. law. The 
first was the thought that the purchaser of a manufactured product should 
not have to be the one that insures against a defect in that product. 
Instead the manufacturer should incorporate into the cost of the product the 
cost of the defects by insuring against them.  The second was that by 
imposing strict liability for defects on the manufacturer the industry would 
be induced to make better products.  While I generally subscribe to the 
former purpose, I have often argued against the latter, particularly when 
teaching product liability concepts in my Aviation Law classes.  Without 
going into it too deeply, the decision to improve a product will depend on 
many economic issues, including the cost/benefit associated with such 
improvement and the status of  competition in that market.  In a small 
market such as aviation engines, for example, improvements have been very 
slow due to the limited market and the potential exposure, as you have 

As for negligence, it is not a requirement with respect to a manufactured 
product.  Again the concept is that the victim is not in a position to prove 
the negligence of a major manufacturer. Many attempts to find easy ways for 
a victim to prove negligence simply failed, including Res Ipsa Loquitur and 
Negligence Per Se.  So negligence was eliminated just as had been done in 
the blasting cases so that all the victim had to prove was that the product 
was defective and that the defect was the cause of the victim's injury.   He 
can prove negligence too, if he has the proof, but he does not need to 
anymore.  (Some victims try to prove gross negligence in order to get 
punitive damages.)

Many cases have come down that are ridiculous, including the Piper case in 
New Mexico where the airport operator parked a pickup in the runway to stop 
a pilot from taking off in a tail dragger with a movie camera in the front 
seat.  Piper was held liable because the lack of visibility was considered a 
defect in the design of the aircraft. (Huh?).

Joint and several liability has not gone away.  Still the Aviation 
Revitalization Act has been very helpful although erosion of its protections 
has been steady.  The 18 year limit is called a "Statute of Repose" which 
means that after 18 years it is presumed that the design is beyond its life 
limit.  But not if it has been improved or upgraded in the mean time.

Unfortunately similar statutes have not been made available to other 
products, such as medicines and as a result the cots associated with 
litigation is a major part of the cost of the product. The same is true of 
aircraft, even with the Aviation Revitalization Act of 1996.

Bill Trippett, JD

----- Original Message ----- 
From: "Bill Coleman" <aa4lr at arrl.net>
To: "Van K7VS" <wa7fab at cdsnet.net>
Cc: <towertalk at contesting.com>; "'Rick Tavan N6XI'" <rtavan at gmail.com>; "'JC 
Smith'" <jc-smith at comcast.net>; <wc1m at msn.com>
Sent: Friday, June 09, 2006 7:17 PM
Subject: Re: [TowerTalk] Action against US Tower?

> On Jun 6, 2006, at 4:13 PM, Van K7VS wrote:
>> In the mid-seventies Cessna, Piper and others simply stopped
>> manufacturing
>> small planes for private use until they finally lobbied the
>> government and
>> stopped all the foolish law suits and their liability because of
>> the problem
>> associated with primarily Pilot error.
> Uh, this is not correct on many levels.
> First of all, although Cessna ceased production of piston-powered
> aircraft in 1986, Piper aircraft continued to produce them. Or, at
> least they tried. Many other small aircraft manufacturers also tried.
> However, it was a difficult business proposition.
> The key issue was the continuing liability trailer for all the
> aircraft ever manufactured. Aircraft are not like automobiles -- they
> see continuing maintenance and will last for decades. Manufacturers
> needed to insure themselves every one of these existing aircraft.
> The liability is formidable partly because of the concept of joint
> and severable liability. Attourneys would argue that the manufacturer
> had some negligence because they allowed something stupid to happen.
> So, if the juries were convinced that the Manufacturer had even 1%
> liability, they'd end up paying for it all, since their pockets were
> deep.
> The Aviation Revitalization Act of 1996 fixed this by limiting the
> Manufacturer's liability for an aircraft (or any part) to 18 years.
> Overnight, Piper aircraft, which had been in and out of bankruptcy
> for years, suddenly became a going concern - investors immediately
> came forward to bail them out.
> Cessna aircraft immediately started to build a new plant. They have
> been producing piston-powered single engine aircraft since 1997.
> Frankly, the way that the Manufacturer's liability works has been
> broken in this country for years. We've all been paying again and
> again for people who have been lucky enough to prove culpability
> where there probably is none. We've made it an environment where
> manufacturers hesitate to improve the safety of their products for
> fear such improvements will be seen as an admission that their
> previous products were defective.
> The Aviation Revitalization Act of 1996 was a good move, for both
> manufacturers and consumers.
> Bill Coleman, AA4LR, PP-ASEL        Mail: aa4lr at arrl.net
> Quote: "Not within a thousand years will man ever fly!"
>             -- Wilbur Wright, 1901
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