An aviation accident is, happily, not a common occurrence; however, these accidents happen more often than people think, and they take many forms. Hundreds of thousands of Americans own small aircraft they use for commuting, traveling, or for the sheer enjoyment and experience of flying.
A private, non-commercial plane owner who does not regularly charge a fee for transporting people is considered a “private carrier.” This is true even if the plane owner sometimes charges people to ride in, or transport items on the plane, but not as a regular business.
Sometimes called a “contract carrier,” a private carrier is one who makes an individual contract, on a case-by-case basis, to carry certain passengers to a certain destination. Private carrier does do not hold themselves out to the public as ready to accept and transport anyone who offers to pay the fare. Each act of transportation is a private transaction, not for public convenience and necessity. As such, a private carrier may refuse to carry any prospective passengers.
The standard of care to which the private carrier is held is the duty to exercise ordinary care for its passengers’ safe transportation. Ordinary care is the degree of care a reasonably prudent person would use under similar circumstances. This includes making sure the plane is airworthy, that he or she is qualified and fit to be at the controls, and to not make any careless errors that result in a passenger’s injury or death.
Conversely, a “common carrier” is someone who offers services to the general public, as a regular business, to transport people or commodities from place to place for anyone willing to pay a uniform fee.
The chief test applied to determine whether a mode of transportation is a common carrier is whether or not the operators hold themselves out to the public as willing to carry anyone applying for transportation, at a fixed rate, so long as there is room in the vehicle to carry them.
“Holding oneself out to the public” means that the carrier in some way makes it known to its prospective patrons that services are available to those who may wish to use them. This may be done by advertising, solicitation, or the establishment in a community or known place of business where the service is needed or requested.
Private Carrier Aviation Accident Injuries
Suppose your friend owns a small plane and asks you if you’d like to go for a ride. You enthusiastically agree, but while in mid-flight, there is a problem with the engine, and you crash land. Can you sue your friend for injuries you suffered in the crash? Or in the case of fatal injuries, can your loved ones sue for your wrongful death?
As a private carrier, your friend has the legal obligation (“owes you a duty”) to use ordinary care to protect passengers, just as you would for passengers in your automobile.
If the engine problem was due to a mechanical defect, and not a result of your friend’s lack of maintenance or adherence to proper safety checks and protocols, your friend may not be liable. You may, however, be able to file a product liability claim against the manufacturer.
However, if your friend failed to properly maintain the plane, that is a breach of duty for ordinary care. It would also make it difficult to prove that the problem was due to a manufacturing defect, and not caused by poor maintenance. In that case, your friend could be held liable for your injuries or wrongful death.
Common Carrier Aviation Accident Injuries
Suppose a newlywed couple pays a professional company for a hot-air balloon ride, but because of a mistake on the pilot’s part, the balloon crashes, seriously injuring the couple.
The company that provided the ride is considered a common carrier, and as such owes its passengers the highest degree of care for their safety, so far as is consistent with the practical operation and conduct of its business. This includes hiring licensed pilots with experience and clear safety records; ensuring ongoing safety inspections, checks and training; and performing regular maintenance of their equipment.
If the couple’s injuries occurred due to pilot error, the company that offered the hot-air balloon ride would be liable for the couple’s injuries.
Regular Schedules Are Not Necessary To Be Considered a Common Carrier
For a transporter of passengers to be a common carrier, such as an airline, it is not necessary to have a regular schedule of flights, a fixed route, or an unlimited carrying capacity. For example, an air transportation carrier may limit its operations to small-plane charter flights on a reservation-only basis, and still be legally considered to be a common carrier.
Key factors used to determine whether an operation is a common carrier include an established place of business, engaging in the operation as a regular business and not merely as a casual or occasional undertaking, and a uniform schedule of charges.
To be a common carrier, it is not necessary for the carrier to transport its passengers from one place to another different place. A sightseeing tour that embarks from and returns to the same point can be considered a common carrier, is subject to a higher duty of care.
A common carrier is also legally required to provide vehicles that are safe and fit for the purpose to which they are put, and is not excused for default in this respect by any degree of care.
Also, the passenger’s motive for seeking transportation is not relevant in determining the carrier’s liability. The common carrier owes the same high duty of utmost care whether the passenger rode for pleasure or business. Undisclosed purposes on the passengers’ part also does not affect the duty of the common carrier to exercise the highest degree of care for the safety of the passenger.
A Release Or Waiver Of Liability Is Not Always Valid
Carriers often require prospective passengers to sign a release and waiver of liability before a tour or transport. In such a release, the passenger agrees not to sue the carrier for injuries or death, even if caused by the action, inaction, carelessness, or negligence of the carrier or its employees.
The law generally looks with disapproval on attempts to avoid liability or to obtain exemption for a person’s future negligence. Nevertheless, courts will enforce releases and waivers of liability of common carriers if they meet certain criteria.
To be valid and enforceable, a liability waiver must be in clear, explicit, and understandable language, conveying as to an ordinary person untrained in the law that he or she is agreeing not to sue the carrier. Generally speaking, the provision containing the release must be conspicuous and obvious. An exculpatory clause is not binding if it is printed in small type, and is not readable, clear, or comprehensible.
If a person fails to read the release or waiver of liability before signing, it is no defense. If, however, the person is given the release to sign immediately before the vehicle takes off, a good argument can be made that the carrier did not give the person enough time to read it.
Also, releases and waivers of liability are enforceable only when they do not conflict with the public interest. For instance, an air transportation company that provides sightseeing trips can require prospective riders to sign releases and waivers of liability for ordinary negligence because a sightseeing or pleasure trip does not involve an important public policy. A commercial airline such as United or American, on the other hand, cannot avoid its duty of utmost care to its passengers, because it performs a service of practical necessity to members of the public.
No carrier can limit its liability for more serious conduct than simple “ordinary” negligence, such as gross negligence or intentional misconduct.
Aviation Accident Types
If you have been injured, or a loved one was killed in an aviation accident involving a recreational or sightseeing carrier, such as a plane, helicopter, train, or hot air balloon, contact TorkLaw today. We can send an investigator to the scene of the accident to inspect and photograph the accident site and any dangerous condition that caused or contributed to the accident. The attorney or investigator will also interview any witnesses while the facts are still fresh in their minds.
TorkLaw attorneys can also help you obtain appropriate and thorough medical care for any physical, emotional, and psychological injuries suffered due to the aviation accident. We will do everything possible to ensure that you obtain full compensation for your medical expenses, pain and suffering, mental anguish, property damage, lost wages, and all other injuries and damages.
Call now and talk to a lawyer for free about your case. 888.845.9696