Category Archives: Wrongful death

Scott Brooksby featured as speaker and moderator regarding birds, pets, lasers, and other hot topics in aviation

On June 1, 2016, Scott Brooksby was featured as a speaker and moderator on a panel entitled “Birds, Pets, Lasers, Stowaways, and Other Hot Topics in Aviation”, at the American Bar Association’s 22nd Annual National Institute on Aviation Litigation, at the University Club of New York in New York, New York.

Scott and the other distinguished panelists provided an overview of emerging security issues for airlines, airports, manufacturers, and governments with respect to bird and animal strikes, laser strikes, and wheel well stowaways. Each pose the danger of catastrophic mass torts.  The topics discussed included the following issues:

• Bird strikes are the second-leading cause of death in aviation, with more than 400 deaths globally. Learn about required airport wildlife management plans and mitigation techniques, and how airports and the government can address liability risks.
• Flight crews are increasingly targets of inexpensive, and increasingly powerful hand-held green lasers. More than 7,000 laser strikes were reported to the FAA in 2015. This panel will discuss efforts by prosecutors pursuing criminal charges, and liability issues arising from laser strikes.
• Pigs, snakes and turkeys are just some of the pets, or emotional support animals, that airlines are confronting. The safety of other passengers, who may be the victims of physical injury of property damage, present liability issues for airports and airlines.
• The number of wheel well stowaway incidents are rising which poses security risks for airports and airlines, and it is not inconceivable that the stowaway with destructive intent could cause a catastrophic mass tort.

Bird Strikes and Aviation: Facts and Fault

From Scott Brooksby’s article, “Bird Strikes and Aviation: Facts and Fault” published in the American Bar Association’s Mass Torts Practice Points on December 7, 2015:

Bird strikes are an increasing danger to commercial aviation and result in death and serious injury to passengers and crew, and soaring costs for aircraft damage.

According to Boeing, the first bird strike was recorded by the Wright Brothers in 1905. Now, aircraft-wildlife strikes are the second leading cause of aviation-related fatalities. Globally these strikes have killed over 400 people and destroyed more than 420 aircraft. In addition to birds, wildlife strikes have been reported involving horses, antelope, moose and many other mammals.

Potential Liability for Airport Operators
The USDA’s Airport Wildlife Hazards Program plays a leading role in the supervision and management of aircraft-wildlife strikes. The USDA notes that airport managers must exercise due diligence in managing wildlife hazards to avoid serious liability issues. The U.S. Code of Federal Regulations requires that Part 139-certificated airports experiencing hazardous wildlife conditions as defined in 14 C.F.R. section 139.337 to conduct formal wildlife hazard assessments. The certificated airports must develop wildlife hazard management plans as part of the certification standards. Airports are required to employ professional biologists trained in wildlife-hazard management. (14 C.F.R. § 139.337 and FAA Advisory Circular 150/5200-36). Failure to comply with the regulations can give rise to liability for airport operators.

Data Sampling
According to Boeing, the relevant wildlife-strike facts include:

1. More than 219 people have been killed as a result of bird strikes since 1988.

2. Between 1990 and 2009, bird and small and large mammal strikes have cost U.S. civil aviation $650 million per year.

3. The Air Force sustains about $333 million dollars in damage per year due to bird strikes.

4. About 5,000 bird strikes were reported by the Air Force in 2012.

5. About 9,000 bird and other wildlife strikes were reported for U.S civil aircraft in 2009.

6. The FAA has identified 482 species of birds involved in strikes from 1990-2012.

Factors Contributing to the Rise in Bird Strikes

1. The North American non-migratory Canada goose population increased from 1 million birds in 1990 to 4 million birds in 2009. Concentrations are particularly high at JFK airport and surrounding regions, with the ample grass and wetlands, but populations of various sizes are found near airports across the country.

2. A 12-pound Canada goose struck by an airplane moving at 150 miles per hour during takeoff generates the kinetic energy of a 1000 pound weight dropped from a height of ten feet.

3. Nesting populations of bald eagles increased from 400 pairs in 1970 to 13,000 pairs in 2010. Between 1990 and 2009, 125 bald eagle strikes were reported. The body mass of a bald eagle is 9.1 pounds for males and 11.8 pounds for females.

4. Finally, the population of European starlings is now the second most prevalent bird in America, numbering over 150 million. Often called “silver bullets,” they fly at high speed and have a body density that is 27 percent greater than gulls.

Prevention
In January 2009, U.S. Airways Flight 1549 landed on the Hudson River after multiple Canada goose strikes in flight.  As a result, New York City Mayor Michael Bloombergdeclared war on geese. Suzanne Goldenberg, New York Declares War on Geese to Prevent Airport Bird Strikes, The Guardian (June 12, 2009). A mayoral steering committee gave the go-ahead to the USDA to cull geese in a 450-mile area encompassing JFK, LaGuardia, and Newark airports. Other means of control include:

1. Each summer, teams of USDA goose catchers capture geese that, in the molting condition cannot fly, including offspring that are then taken to slaughterhouses and dispatched. Between 2009 and 2010, 2911 geese were killed.

2. The USDA reports that 80 percent of Canada geese are resident, and remain in place, rather than migrate. The government and airport operators strongly advocate for the culling of non-migratory birds.

3. Discouraging nesting and grazing.

4. Letting grass grow taller, planting unpalatable grasses, reducing standing rainwater, and oiling eggs to prevent hatching.

5. Firing pyrotechnics and propane cannons.

Conclusion
Given the rapid growth of non-migratory birds at some of the busiest airports, and the dramatic increase in flights, it may only be a matter of time before a catastrophic bird or wildlife strike will happen again, with more disastrous results than the extraordinary landing of Flight 1549 on the Hudson.

Loss of Consortium Law in Oregon and Evaluating Catastrophic Aviation Cases

Loss of consortium is a recognized cause of action in Oregon.  It is critical to have a thorough understanding of the permutations in the marital status of a couple involved in a catastrophic injury such as an aviation disaster where both death and/or serious injury are distinct possibilities.  Historically, verdicts for loss of consortium in Oregon have been relatively low, but each case is fact specific.  Previously, a verdict awarding damages for loss of consortium exceeding $1,000,000 was rare in Oregon.  However, in the last decade verdicts have become less regional in the United States, and the availability of a loss of consortium claim to a spouse and a loss of services claim to a child (a relative of the loss of consortium claim) can have significant impact on the overall verdict.  Loss of consortium claims can range upward of $2,000,000.00.

Children’s Loss of Services Claims

If a couple is not married, the children of that deceased couple may still have loss of services claims as beneficiaries under Oregon’s wrongful death statute.  A claim for loss of services is a category of uncapped economic damages stemming from the death of either parent.  The value of a loss of services claim is usually somewhat higher in cases where the deceased parent was the higher earner.

Parental Claims for Loss of Services of a Minor Child

The right of a parent to sue for an injury to his or her child arises out of the common law right of a master to sue for deprivation of the services of a servant.  Oregon codified this cause of action in ORS 30.010(1), which provides that: “A parent having custody of his or her child may maintain an action for the injury of the child.”

A claim for loss of services of a minor child is different than a wrongful death claim brought by a parent due to the death of a child.  Pursuant to ORS 30.010(2), “[a] parent may recover damages for the death of his or her child only under ORS 30.020 [the wrongful death statute].”

A parent’s claim for loss of services also allows damages for loss of society and companionship.  Beerbower v. State ex rel Or. Health Sci., 85 Or App 330, rev den, 303 Or 699 (1987).

Regarding defenses to such loss of services claims, the contributory fault of the child may bar an action by the parent for loss of services of the child.  See Boyd v. Portland Electric Co., 40 Or 126 (1901), overruled in part on other grounds by Ritchie v. Thomas, 190 Or 95 (1950).

No Wrongful Death Damages or Loss of Consortium for Unmarried Cohabitants

Suppose that, during an aviation disaster, one parent, the father, is killed and the mother of a child they have together is also killed.  If the couple was not married, the surviving female is not a beneficiary under the wrongful death statute.  In Ore-Ida Foods v. Gonzalez, 43 Or App 393 (1979), rev den, 288 Or 335 (1980), the court held that there could be no wrongful death recovery under ORS 30.020(1) (Oregon’s wrongful death statute) for unmarried cohabitants.

Additionally, although not completely settled under Oregon law, an action for loss of consortium appears to be limited to the marital relationship and does not apply to extramarital living arrangements.  The general concept under Oregon law that unmarried cohabitants are not entitled to loss of consortium goes all the way back to the lack of common law marriage in Oregon under Huard v. McTeigh, 113 Or 279 (1925).

The theory underlying a claim for loss of consortium is that, by virtue of marriage, a spouse receives certain benefits both tangible, as in material services, and intangible, such as companionship and affection, from the other spouse.  Accordingly, when one spouse is injured, the uninjured spouse may lose those benefits and is entitled to compensation.  Axen v. Am. Home Prods. Corp., 158 Or App 292, modified on other grounds by 160 Or App 19 (1999).  Since 1941, the Oregon legislature has granted to wives the same right to sue for loss of consortium as husbands previously had at common law.  ORS 108.010.  Ross v. Cuthbert, 239 Or 429 (1965).

Furthermore, as Justice O’Connell suggested in his dissent nearly 50 years ago in Ross v. Cuthbert, the courts do not particularly favor loss of consortium actions.  Id. at 441.

No Loss of Consortium for a Surviving Spouse 

If we change the aviation disaster case scenario above so that the two parents are legally married, and the husband dies in the aviation crash, his wife is probably not entitled to loss of consortium because the noneconomic damages that the wife is entitled to under Oregon’s wrongful death statute are, under Oregon law, enough to compensate her. Under Oregon law, loss of consortium is only available if the injured spouse is still alive because, in a death case, the personal representative is entitled to seek benefits for loss of society and companionship under the wrongful death statute.

Additionally, if death is instantaneous, no cause of action for loss of consortium arises.  Harp v. Montgomery Ward & Co., 223 F Supp 780 (D Or 1963).

Damages can be recovered for any suffering between the time of injury and the time of death.  However, even if the court were to theoretically allow the surviving spouse to proceed with a loss of consortium claim, assuming she is able to satisfy all conditions precedent, defense lawyers can argue that the surviving spouse’s claim (and child’s loss of services claim) would be subsumed and provided for under the wrongful death statute. Oregon’s wrongful death statute compensates “for pecuniary loss to the decedent’s estate”.  ORS 30.020(c).  It also compensates “the decedent’s spouse [and] children * * * for pecuniary loss and for loss of the society, companionship and services of the decedent.”  ORS 30.020(d).

If, however, the husband survives, and he and his wife are injured, they both have the right to bring a cause of action for loss of consortium and allege loss of society and comfort.  These are not available in the above scenario where the spouse dies because the permanent deprivation of society and companionship is fundamentally unavailable, as opposed to the temporary deprivation of society and comfort in an injury case where the spouse survived.

Comparative Fault as a Defense to Loss of Consortium Actions

Oregon’s comparative fault statute, ORS 31.600, may bar a loss of consortium claim (and the lawsuit as a whole) if the injured person’s fault is greater than the combined fault of the defendants.  ORS 31.600 provides that:

“Contributory negligence shall not bar recovery in an action by any person or the legal representative of the person to recover damages for death or injury to person or property if the fault attributable to the claimant was not greater than the combined fault of all persons specified in subsection (2) of this section, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the claimant.  This section is not intended to create or abolish any defense.”

Conclusion

Aviation claims often involve catastrophic injuries.  They also often involve accidents where unmarried couples and family members were together when the injuries occurred.   In such cases, loss of consortium claims should be carefully evaluated.