"SWIMMING WITH SHARKS"
by
Charles M. Finkel, Esq.
Pilots, at least where I hang out for hanger flying sessions, are notoriously anti-lawyers and lawsuits. That is, until they get into trouble. The most vociferous of opponents to one's right to bring private causes of action to a court of law, can come crawling to a lawyer if his or her best interests are at stake. Then, the one who was crying out for the death of all lawyers, starts asking "What can you do for me," or, "How do I get out of this mess." All too often, those who vigorously advocate personal responsibility, undergo metamorphosis into finger pointers and blamers.
The law has a way to deal with persons who don't want to take responsibility for their own actions; it's called ASSUMPTION OF THE RISK. A recent California case points out how in some circumstances, lawsuits must be barred by this doctrine. In Rosenbloom v Hanour Corp. (4th Dist. Ct. App., Sept. 30, 1998), the plaintiff, Mr. Rosenbloom, got a little to personal with a shark. The defendant did business as a posh pool club. They maintained a large salt water tank with a lemon shark inside. As the shark had reached a length of four feet, it outgrew its surroundings and was to be transported to a large aquarium. The plaintiff was an employee of the company that built and maintained the club's shark tank. He and another drained the tank, and then stepped inside to remove the shark. As the other person tried to hold the shark's head, Mr. Rosenbloom grabbed its tail. Naturally disturbed by this intrusion into its solitude, the shark spun around and bit Rosenbloom's arm (in defense of the shark, if someone grabbed my tail, I would have the same reaction).
Now in California, as in most states, the law says that one who keeps a dangerous animal can be subjected to strict liability. So, plaintiff Rosenbloom decided to file suit against the club's owners under the theory that they were strictly liable for the actions of its shark. However, the law rode in on its white steed to the rescue of the defendant, and proclaimed with six shooters blazing that the doctrine of assumption of the risk barred plaintiff's claim.
I can understand the defendant's jubilation with the Court of Appeal's ruling, since I was once in a similar situation. The only time I was ever sued was for the actions of my son. He, as a 17 year-old, went to the annual UCLA vs USC football game as the guest of responsible adults. I was nowhere near the game, and certainly had nothing to do with the events that ensued. He, and a few adults played their own game of touch football in the parking lot before the college game. During the college game, the adults consumed some alcohol. They then again played their own game after the conclusion of the UCLA/USC game, also in the parking lot. While my son was on defense, he went after a ball thrown to one of the offensive players. They both went up for the ball at the same time, and my son came down with it. The other player, at least 10 years older than my son, fell to the ground and struck his knee. About a year later I was served with a lawsuit, naming me as a defendant for the actions of my son, which were claimed to be intentional and reckless.
I think the injured player was hoping I would turn the matter over to my homeowner's insurance company so that they would settle the case. Instead, I filed a demurrer to the Complaint, claiming it did not state any facts sufficient for a cause of action based upon assumption of the risk. Their are numerous cases involving sports injuries, including one almost identical to that involving my son, so I was on sound footing to fight the case. Sure enough, the lawsuit was thrown out, and I became a hero, if only in the eyes of my son.
As a bit of legal history, the doctrine of assumption of the risk existed from the days of English common law. It had been anesthetized for a while in many jurisdictions, including California, having been replaced by what is known as comparative or contributory negligence. States differ on the application of contributory negligence. For instance, some states allow that once a defendant is found to be at fault, any contributory negligence on the part of a plaintiff will bar the entire suit. Other states' laws dictate that if a plaintiff is found to be 51% contributorily negligent, that would prohibit his right to collect against a lesser negligent defendant. States such as California allow that a plaintiff's award in a negligence action will be diminished by the amount of his own comparative negligence. With this type of law in place, assumption of the risk no longer acted as a complete bar to a lawsuit, having been replaced with the kinder and gentler notion of comparative negligence.
But things have changed over the last several years, and assumption of the risk is back with a vengeance. Most notably found to apply in sporting events, such as football, hockey, horseback riding, sky diving, scuba diving, etc., it's presence has deterred cases involving working conditions, such as climbing ladders, handling animals, and other circumstances that pose occupational risks. As succinctly stated by the California Supreme Court in the leading case of Knight v Jewett:
"In cases involving 'primary assumption of the risk' - where by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury - the doctrine . . . operate[s] as a complete bar to the plaintiff's recovery."
So how do we get from sharks to pilots? Well, many corollaries may be drawn between Mr. Rosenbloom's biting encounter with a lemon shark and activities which we as pilots partake in. Flying was once considered an ultra hazardous activity, akin to working with explosives. As equipment and training progressed from the infancy of aviation, aircraft operation advanced from its prior categorization. Thus, the decision to fly an aircraft no longer amounts to assumption of the risk. But certain activities within the world of aviation could be considered to have inherent risks. Take, for instance, low level aerobatics, air racing, aerial filming in confined airspace, or work with explosives, such as is often the case in the movie business. Most of us will never partake in these ventures. But, other more mundane activities might be considered by some courts to be assumption of the risk as well.
Activities which I consider to be a foolish assumption of the risk include flying with insufficient fuel, taking off into known icing conditions, entering IMC without an instrument rating and clearance, departing without a weather briefing, departing after a weather briefing, but failing to heed the warnings of the briefer, flying into thunderstorms, and piloting an aircraft under the influence of drugs and/or alcohol. I am not saying these activities automatically fall within the realm of legal assumption of the risk. But in my opinion, they amount to common sense assumption of the risk. Nonetheless, probable cause reports continue to mention these items as primary factors leading to death, or serious injury.
It is easy to forget the enormous responsibility we pilots undertake when closing the door(s), switching on the master, and starting up the engine(s). Student pilots understand it, and thus religiously adhere to checklists, and the hopefully sound guidance of their instructor. But the more we fly without an incident or accident, the easier it is to become complacent. Then, we end up stepping into a shark tank, with a nervous shark ready to take a big chunk out us. Don't assume the risk! If you do, don't look to blame others, when the real person at fault is staring right back at you in the mirror. | |
