Whose fault?

A jury verdict against Duluth-based Cirrus Design is likely to reignite the product liability vs. personal responsibility debate.

According to MPR’s Elizabeth Stawicki, Cirrus and the University of North Dakota have to pay $14.5 million to the families of James Kosak and Gary Prokop. The suit claimed the organizations didn’t properly train the two to fly in bad weather (“instrument meteorological conditions” or IMC). Their plane crashed not long after take-off from Grand Rapids in January 2003 for a flight to St. Cloud.

“By all appearances, one day of in-flight training on how to fly the airplane in bad weather conditions was skipped, ” Attorney Phil Sieff said when the lawsuit was filed in 2006. “We believe it would have given him the tools to avoid the crash. If you agree to provide four days of training, you do it. We think there was a very specific identifiable failure to train this guy as they said they would.”

According to the National Transportation Safety Board, the pilot had undergone flight training from Cirrus when he bought the plane just six weeks earlier, but his completion certificate specified he shouldn’t fly in “instrument” weather conditions.

According to the NTSB, the pilot received a weather briefing before leaving Grand Rapids and was told it would be marginal. (See narrative). And the NTSB blamed the accident on the pilot. “Contributing factors were the pilot’s improper decision to attempt flight into marginal VFR conditions, his inadvertent flight into instrument meteorological conditions, the low lighting condition (night) and the trees,” the official report said.

The verdict may add to another debate in aviation circles: Whether the Cirrus Design airplanes are too much airplane for relatively inexperienced pilots.

At the end of 2008, according to a Cirrus owners group, there had been 44 fatal accidents with 88 fatalities and 13 serious injuries, and 29 survivors. More than 4,000 models of the airplane were flying.

The organization also points out that “all but one of the 28 probable causes determined by NTSB accident investigations lists pilot causes.” It said the large number of crashes in which pilots inadvertently flew into bad weather “suggests that the increased situational awareness in a Cirrus SR2X was not sufficient to help those accident pilots escape bad weather encounters. And the IFR-in-IMC accidents suggest a lack of proficiency with flying in challenging weather.” The question: Whose fault is that?

But the majority of fatal accidents involving a Cirrus plane, involved experienced pilots. The only Cirrus accident in which the pilot had fewer than 150 hours of flight experience, was the New York crash with New York Yankee pitcher Cory Liddle.

His family is suing Cirrus, too.

  • bj

    sounds like Cirrus Design needs better lawyers.

  • Rich Dietman

    I’m trying to fathom how a jury could find for the plaintiffs in a case where the pilot had been so completely in error. I’m sorry that the families lost loved ones, but the unfortunate facts in the NTSB finding of cause all point to pilot error. And an additional few days of training by Cirrus would not likely have conferred the instrument rating (and experience) that would have made less risky the flight into the low ceilings and visibility that led to this crash.

    It’s one thing to hold an aircraft manufacturer libel for equipment failure due to negligence or bad design. It’s quite another to penalize the airplane maker for a pilot’s failure to analyze flight conditions that were apparently beyond his abilities and training.

  • Scott

    If you are not rated to fly under those conditions — DON”T FLY.

  • Neal

    So why not sue auto, boat and motorcycle manufacturers when operators don’t know how to handle the equipment?

  • Bob Collins

    Did I mention it was a night flight?

    And doing some more reading, the weather briefer said the weather conditions “2,800 feet overcast and that he was “hoping to slide underneath it .

    This is known as “running scud” and there isn’t a pilot out there who hasn’t been told this is a very, very bad thing to do (and many do it anyway).

    So they already had training that said this was a bad thing to do, and yet they broke a number of advisories that they’d been trained — as every pilot is — not to do. And yet the lawyer was able to win with an argument that training would’ve made a difference.

  • In fairness to the pilot… witnesses seemed to indicate the weather was much better than what the weather briefing would indicate.

    By the same token, the pilots lack of experience, lack of experience in a Cirrus, lack of night experience, and only 20 minutes of instrument time in a Cirrus, combined with the forecast weather should have led him to cancel the flight.

    Having an instrument rating would have likely saved this pilots life, but an instrument rating is not required for flying at night The additional flight training time in the Cirrus syllabus which the pilot did not receive is no substitute for an instrument rating, and is realistically unlikely to have made any difference. Judgement is really the key, and in 248 hours of pilot time, if judgement is not in place, greater skill achieved through a day of training, rather than preventing an accident, is more likely to just delay its occurrence.

  • Bob Collins

    Hi, Ron. I thought it was interesting, though, that one witness said it was clear and moonlit. Another said it was cloudy. One said if he’d been X yards to the left/right, he’d have hit the water tower. But that might’ve been after he lost situational awareness.

    Also thought it interesting that the pilot had 57 hours of instrument time. Does that indicate that perhaps he was working on his instrument rating?

    Richard Collins had a good article in Flying a couple of years ago. His son was studying accident data and found that most accidents aren’t related so much to total flight time, but are related to total flight time in type; that the critical period is the first few hours after transitioning into a particular plane. That certainly was the case here, as well.

    I believe the report said his previous hours were in a Cessna 172. I wonder what the instrument panel was like in that 172 – steam gauges, perhaps? I believe the Cessna is a glass panel and I’ll be there are transition issues there, too.

  • Fred

    As an instrument-rated pilot with over 3,000 hours, I can tell you that every pilot encounters some degree of situational awareness when first departing. This is exagerated by night-time departures.

    Anyone without an instrument rating needs to be extra cautious, especially in marginal conditions at night. Add in a new airplane – recipe for disaster.

    Cirrus needs to appeal this verdict.

  • Aeromot

    Since the pilot was not instrument rated, Cirrus Design would have been remiss if it HAD provided instrument instruction. That would have simply given the pilot (whose faulty judgement is the real cause of this accident) a false sense of being able to handle this weather. In that case, the lawyer would have blamed to company for just that.

    Airplanes are not very forgiving when you screw up. Sometimes the only way out is to wait until conditions are better, especially if you lack the experience and training to handle the conditions, as this pilot did.

  • DearBeth

    “And doing some more reading…”

    I have a question about the reporting here. I see these sorts of stories from time to time, and inevitably the plaintiff’s attorneys speak up for whatever reasons, usually publicity, pride, marketing. Defense attorneys are usually not allowed by their clients to say much at all, so they end up looking like they’re hiding something or are poor losers or whatever. There are always two sides in any litigation, but we seem to hear more from the plaintiffs.

    Do reporters ever think about going to the courthouse and reading through some of the pleadings/memos/motions that are publicly available? The facts and allegations of the case (usually in detail) are available if reporters would bother, and would often make for compelling journalism.

    Why do we not see that?

  • Nick

    Sounds like this years Stella Award winner to me.

  • Bob Collins

    I’m not really sure what you’re talking about, DearBeth. The circumstances of the crash and the actions of the pilots and the company are what is at issue. I’ve provided documentation on the circumstances of the crash and the actions of the pilots, and company.

    I’m not that interested in the give and take of attorneys, only the facts of the crash itself.

    The question is who’s fault is it when an airplane crashes under a particular set of circumstances. The key to answering that question is the analysis of particular set of circumstances.

    Given that it’s obvious that pilots are here answering these questions, I think you’re actually seeing far better analysis than you would at a courthouse where cases like this are mostly won through emotional content and a sympathetic (and non-flying) jury that only knows what it’s told , now through an actual analysis of facts.

    Though I would be interested to see if anyone asked the question, “since the pilots ignored basic training that they DID receive, where’s the evidence the training they didn’t receive would’ve been absorbed?”

  • DearBeth

    The facts in such cases are usually highly disputed, and all too often we see one side (like here) proclaiming that “the pilot wasn’t trained,” but the real story is all too often readily available in what you dismiss as “the give and take of attorneys.”

    The comments do give a good analysis of what happens in general, but not what happened here and why a jury awarded such a huge amount to someone who looked like he shouldn’t have flown when he did. These cases are (as you say) won on emotional arguments, but isn’t there some service in looking at paperwork that is open to the public and usually more objective?

    And you rightfully say, “Though I would be interested to see if anyone asked the question, ‘since the pilots ignored basic training that they DID receive, where’s the evidence the training they didn’t receive would’ve been absorbed?'”

    I would bet that question, essentially a question of causation, was likely the subject of pretrial motions before the court, and that there are discussions of it in all those papers the trial lawyers filed. I also suspect that not one reporter has looked at those papers.

  • Rich Dietman

    I agree with DearBeth that documents and perhaps portions of transcripts of the proceedings might offer some insight into the jury’s decision in this case. I’d be particularly interested to see how Cirrus’ attorneys used (or didn’t use) basic facts about proper flight training and the exercise of judgement by a pilot-in-command. What, if any, expert testimony did they present on those topics?

    But here I have to set aside my pilot hat. For me it comes down to how deep such a case can be covered and reported. The general public isn’t likely as interested as those of us who have offered comment here, and I can understand this trial not getting the kind of daily coverage with a reporter in the courtroom that might have yielded details of the arguments that swayed the jury. That kind of reporting is usually reserved for high-profile cases with broad public appeal.

    Perhaps if Cirrus appeals, there’ll be a chance to get a clearer idea of how the case was argued.

  • Tim Barzen

    My compliments to you Bob on a well written article. From my perspective with over 25k hrs (more than 400 in a Cirrus) I have to agree fully with your observations and your editorial comments. It is a sad day when the legal system successfully blames (in the uneducated mind of the general public – which includes the jurors in this case) the manufacturer for an accident which was, in the opinion of the NTSB, 100% pilot error.

    Tim Barzen

  • Bob Collins

    I covered a case much like this for my “other” (non paying) job. Here and here.

    Basically a guy tied his control stick with his seat belt when he went to watch an airshow. He tried to beat the crowd out and didn’t preflight his airplane, took off and stalled and crashed (he had no pitch control).

    His family sued because a fire engine wasn’t stationed close enough. Of course the city that was responsible for fire coverage had immunity, so they sued airshow organizers, and won.

    You can read some of the documentation there but what lawyers tried to do — obviously — was to get the jury to react to the death and the manner of it, rather than a knowledgeable function of how airplanes fliy and what pilots are supposed to do.

    Let’s face it: A jury in Itasca County probably doesn’t know the difference between instrument and visual flight rules, nor understand the extent to which pilots are trained to make good decisions — including the critical “go/no go” decision. Those of us who are pilots understand how unlikely a day of transition training is to saving pilots who disregard the most basic tenets of airmanship in the first place.

    That obviously is the job of the defense attorney in this case and he/she obviously didn’t get the job done. Could the decision be legally justified? Of course it could. That’s a separate issue from the reality of who is at fault when a plane crashes.

    It takes a LOT to have a jury ignore pictures of a charred body and twisted metal to consider exactly how the people inside got in that predicament and what really would’ve allowed them not to be there. And in the end, juries don’t have to explain why they ruled the way they ruled.

    In the Washington case, eventually the jury verdict was overturned on appeal. I suspect if Cirrus wants to appeal — they hadn’t decided — they would have a good chance. As with many cases, the outcome turned on the very specific instructions the judge gave to the jury.

    On the other hand, sometimes paying the extra insurance premium for the settlement to make it go away makes more financial sense than continuing to fight it.

    I’ll try to get the documents in this case. But as Rich pointed out, there isn’t going to be a lot of interest in it here and given the cost of duplicating etc, it’s unlikely I’ll be able to offer much as I won’t be spending MPR member money on it. It’s difficult to justify the time it would take to drive 200 miles to Grand Rapids and then pay the costs of getting the documents to examine and drive 200 miles back.

    Unfortunately, Minnesota’s court system — unlike Snohomish County, Washington — remains in the dark ages with regard to making material available online. In that case, I also had a pilot friend who was a lawyer in the county helping out.

    Any lawyers from Grand Rapids want to volunteer to help out?

    As far as covering the case. There are a million stories to cover before spending the thousands of dollars it would’ve cost, even if you could find an editor who would say OK.

  • Elizabeth T

    Is there a difference in liability if the flight was commercial or recreational?

    Would the liability for the accident fall on the employer, rather than the manufacturer, if it is a commercial pilot?

  • Bob

    First, nobody’s worth that much money.

    It is the most egregious discarding of individual responsibility to suggest that companies are required to teach customers to use what they sell.

    Buy a knife. Is the knife company required to send you to culinary school?

    Buy a car. Is the car company required to teach you to drive it? How about racing school if the car can go over 70 mph?

    If I pay you $10 for a haircut, am I required to teach you how to spend it, not gamble it away, or buy a knife to cut off your finger?


    Restoring common sense begins with individual responsibility.