Economic Losses and Loss of Consortium Claims in Oregon Product Liability Cases

Economic Loss is Not Available in Oregon in Strict Product Liability Cases

The recovery of economic loss such as lost profits or lost sales is not recoverable in Oregon in product liability actions where strict liability is alleged.  In Brown v. Western Farmers Assoc., 268 Or 470, 480 (1974), the Oregon Supreme Court held that strict product liability was not designed or intended to offer a remedy for such commercial aspirations as sales and profits.  Oregon is a physical injury state and the Oregon appellate courts have uniformly held that strict liability is not a remedy for purely economic loss in the absence of a physical injury to persons or property.  Russell v. Deere & Co., 186 Or App 78, 84-85 (2003).

Lost Income to a Spouse Who Cares for an Injured Spouse is Not Recoverable as Part of a Loss of Consortium Claim in a Product Liability Action

It should also be noted that a spouse is not entitled to recover for lost income sustained as a result of having to care for her injured spouse as part of a claim for loss of consortium.  Axen v. American Home Products Corp., 158 Or App 292, 309-311, adh’d to on recons, 160 Or App 19 (1999).  In Axen, a husband and wife brought a strict product liability claim for injuries to the husband allegedly caused by a prescription drug.  The husband and wife alleged that the husband’s use of the drug Cordarone caused a loss of vision.  The wife argued that she was forced to take an early retirement in order to care for her husband and as a result, lost retirement benefits of $436,392.00.  The jury awarded the wife nearly one million dollars for loss of consortium.  The Oregon Court of Appeals reversed the wife’s award of economic damages.  The court stated it would adhere to the “traditional rule” that lost income is not a proper subject of a damage award for loss of consortium.  Id. at 311.

Product Liability Issues Arising From Rail Car Wheel Cracking and Fatigue

Olson Brooksby PC, product liability and railroad lawyers

Rail car wheel cracking and fatigue can lead to significant product liability exposure and potential negligence claims.  Unless specifically exempted by another statute or federal regulation, Oregon’s product liability statutes, starting at ORS 30.900, govern product liability actions in Oregon, including products such as railroad car wheels.  This article will explore three important studies regarding rail wheel cracking and fatigue issues and will end by discussing critical product liability issues associated with rail wheels.  In rail wheel cases, the phenomena commonly known as rolling contact fatigue (“RCF”) can lead to cracking and even the uncontrolled discharge of portions or rail car wheels.  In extreme circumstances, the wheel itself may be subject to vertical cracking and disintegration.

Rail Car Wheel Cracking:  Three Scientific Studies

There is a vast body peer-reviewed scientific literature that examines the relationship between various manufacturing processes, uses and stresses on railway wheels, and metal fatigue and cracking.  This article explores three such scientific studies that focus on the susceptibility of railway wheels to wear and RCF damage.  As explained in further detail below, studies have found that rail wheel damage is influenced by the properties of the wheel material, including steel composition and hardening techniques.

Below there are links to each study discussed.  If, however, you cannot access the links and would like to review the studies, please contact Olson Brooksby.

The Molyneux-Berry, Davis, and Bevan Study

This study examined railway wheels on fleets from the UK and concluded that the materials that make up the wheels themselves influence the amount of wear and RCF damage that the wheels are subjected to.  Factors that contribute to wheel damage are the composition of the steel, the process by which wheels are manufactured, and loading during operation.

This study can be found here: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3914578/

The Liu, Stratman, Mahadevan Study

This study developed a 3D “multiaxial fatigue life prediction model” to calculate the life of a rail car wheel and to assist with predictions regarding the timeline of its fatigue.

This study can be found here: http://yongming.faculty.asu.edu/paper/fatiwheels-ijf.pdf

The Peixoto and Ferreira Study

In this study, fatigue crack growth rate behavior tests were performed according to ASTM E647 (2008).  The purpose of this study was to contribute to the development of accurate models that predict fatigue problems in rail car wheels in order to assist with maintenance and safety standards.

This study can be found here: http://www.deepdyve.com/lp/emerald-publishing/fatigue-crack-propagation-behavior-in-railway-steels-6SBquFt7Pn

Defenses to Rail Wheel Product Liability Claims

A common issue in rail wheel cases is the age of the wheel at issue and the amount of use it has received.  When an older wheel is involved, defense counsel for the manufacturer should look first for a defense based on statute of ultimate repose.  ORS 30.905 provides for a ten year statute of repose.  If the plaintiff does not file a claim for personal injury or property damage within ten years from the date the product was first purchased for use or consumption, the claim is barred.  Oregon has a strong statute of ultimate repose.  There are no “useful safe life” or other exceptions or rebuttable presumptions codified in the statute that provides for an absolute ten years.

Absent an ability to obtain a complete dismissal under the statute of ultimate repose, the three studies discussed above illustrate the variety of causation factors and scientific models concerning rail car fatigue issues.  Manufacturing materials and processes, steel fabrication techniques and materials for both wheels and rails, the nature of the loads, gradients, and cycles are all among the factors that provide fertile ground for defending rail wheel claims.

Information Regarding Grand Jury Proceedings Is Difficult to Obtain in Later Civil Actions

Jurors in the jury box

Information regarding grand jury proceedings is generally not discoverable.  Many times in civil cases, such as in dram shop cases, or in cases where a cooling off period (such as domestic violence) may have impacted potential testimony, it would be useful to know the evidence that was presented during a grand jury proceeding.  For example, counsel defending a drunk driver in a dram shop civil suit for injuries, would probably want to know what was said at the grand jury proceeding regarding her client. However, trying to obtain discovery in a civil case regarding grand jury proceedings is likely to be an uphill battle.  As explained below, with the exception of the defendant’s testimony (and the defendant almost never testifies), grand jury proceedings are to remain secret. There is no court reporter or formal record of what took place during the proceeding. Although there is no statute (and we could find no Oregon case law) preventing the DA from theoretically being called as a witness to testify about what happened at a grand jury proceeding, the practical reality is that it would likely be an uphill battle to try to obtain discovery regarding a grand jury proceeding if the defendant did not testify.

Under Oregon law, the purpose of the grand jury is to determine whether the evidence presented to it, if not contradicted, would be sufficient to support a conviction.[1]   The prosecutor presents evidence and the sworn testimony of witnesses to the members of the grand jury.  The grand jury then deliberates in secret to determine whether or not there is sufficient evidence to support the conviction and, therefore, to issue an indictment.  Grand juries consist of seven persons, five of whom must agree to find an indictment.[2]  The rules of evidence generally apply to grand jury proceedings.[3]

The Oregon Constitution provides that one of two methods may be used procedurally for obtaining felony charges, either by grand jury indictment or by a district attorney’s information filed in circuit court after a showing of probable cause in a preliminary hearing before a magistrate, unless the accused waives either indictment or the preliminary hearing.[4]  In 1983, the Oregon Supreme Court ruled that each county must use the same procedure because failure to use one method or the other violated potential defendants’ Constitutional rights to equal protection and due process.[5]

Generally, no person other than the district attorney or a witness actually under examination shall be present during the sittings of the grand jury.  Exceptions include provisions for a court reporter; parents or guardians of children 12 years of age or under; parents or guardians of persons with mental retardation; interpreters; and, when appropriate, a guard, medical or other special attendant, or nurse. [6]   No person, including the district attorney, may be present during grand jury deliberations and voting on a matter before it.[7]

Grand jury proceedings are held in secret.  ORS 135.855 provides that “[t]ranscripts, recordings or memoranda of testimony of witnesses before the grand jury, except transcripts or recordings of statements made by the defendant,” shall not be disclosed.  Transcripts of proceedings are not created in Oregon state court.  The only records of proceedings are the notes of the jurors and the prosecutor.  Each juror also takes an oath to “keep secret the proceedings before you, the counsel of the state, your own counsel and that of your fellows…”[8]

Although there is no specific rule prohibiting the admissibility of information concerning a grand jury proceeding in a civil case, given the secret nature of the proceedings and In light of the statutory framework, mining useful impeachment evidence from a grand jury proceeding will likely be an uphill battle.


[1] ORS 132.090

[2] ORS 132.010; Oregon Constitution, Article VII, § 5(d)(2)

[3] ORS 132.320

[4] Oregon Constitution, Article VII, § 5

[5] State v. Freeland, 295 Or 367, 667 P2d 509 (1983).

[6] ORS 132.090 (1) – (3)

[7] ORS 132.090(4)

[8] ORS 132.060(1)

In ORS 20.080 Cases, the Plaintiff’s Attorney Fees Can Quickly Outstrip Damages

Kristin_0862_bw

In ORS 20.080 cases, the plaintiff’s attorney fees can quickly outstrip damages.  Kristin Olson’s article, “An Overlooked Attorney Fee Statute in Oregon”, published by Insurance Thought Leadership, explores ORS 20.080 cases and how to strategize appropriately so that you do not become liable for attorney fees in cases with small damages amounts.  The following is from Kristin’s article:

Companies doing business in Oregon should be aware of ORS 20.080, which can provide for attorney fees in cases seeking damages of $10,000 or less.  That statute provides that prevailing plaintiffs may be awarded attorney fees. It is important to be aware that, in ORS 20.080 cases seeking compensatory damages of $10,000 or less, the attorney fees can quickly approach or outstrip the compensatory damages.

This article will explore three key questions that clients generally have when defending against an ORS 20.080 case: 1) How does the plaintiff receive attorney fees?; 2) Do courts require plaintiffs to strictly comply with ORS 20.080?; and 3) How can defendants escape attorney fees in ORS 20.080 cases?

1. How Does the Plaintiff Receive Attorney Fees Under ORS 20.080?

Generally, a plaintiff has a claim for attorney fees under ORS 20.080 if the plaintiff: gives the defendant notice of a claim for $10,000 or less at least 30 days before the plaintiff files a lawsuit; provides enough documentation for the defendant to generally value the claim; and was awarded more at trial or arbitration than the defendant offered before the plaintiff filed the lawsuit.

ORS 20.080 provides that:

“(1) In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $10,000 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action, if the court finds that written demand for the payment of such claim was made on the defendant, and on the defendant’s insurer, if known to the plaintiff, not less than 30 days before the commencement of the action or the filing of a formal complaint under ORS 46.465, or not more than 30 days after the transfer of the action under ORS 46.461. However, no attorney fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action or the filing of a formal complaint under ORS 46.465, or not more than 30 days after the transfer of the action under ORS 46.461, an amount not less than the damages awarded to the plaintiff.

“(2) If the defendant pleads a counterclaim, not to exceed $10,000, and the defendant prevails in the action, there shall be taxed and allowed to the defendant, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the counterclaim.

“(3) A written demand for the payment of damages under this section must include the following information, if the information is in the plaintiff’s possession or reasonably available to the plaintiff at the time the demand is made:

“(a) In an action for an injury or wrong to a person, a copy of medical records and bills for medical treatment adequate to reasonably inform the person receiving the written demand of the nature and scope of the injury claimed; or

“(b) In an action for damage to property, documentation of the repair of the property, a written estimate for the repair of the property or a written estimate of the difference in the value of the property before the damage and the value of the property after the damage.

“(4) If after making a demand under this section, and before commencing an action, a plaintiff acquires any additional information described in subsection (3) of this section that was not provided with the demand, the plaintiff must provide that information to the defendant, and to the defendant’s insurer, if known to the plaintiff, as soon as possible after the information becomes available to the plaintiff.

“(5) A plaintiff may not recover attorney fees under this section if the plaintiff does not comply with the requirements of subsections (3) and (4) of this section.

“(6) The provisions of this section do not apply to any action based on contract.”

2. Do Courts Require Plaintiffs to Strictly Comply With ORS 20.080?

The short answer is no.  Although ORS 20.080 requires that plaintiffs make their demands in writing to the defendant AND the defendant’s insurer, if known, courts generally do not require plaintiffs to strictly comply with this portion of the statute.  Under Schwartzkopf v. Shannon the Cannon’s Window & Other Works, Inc., 166 Or App 466, 471, 998 P2d 244 (2000), a person may act as an agent for the defendant (and therefore may be considered “the defendant”) for purposes of ORS 20.080 if that person has authority to defend or settle a claim for the defendant.  Under Schwartzkopf, trial court judges have allowed plaintiff’s lawyers to provide notice to the defendant’s insurer without providing notice to the defendant, even though the plain language of ORS 20.080 requires that the plaintiff provide notice to both.  In these kinds of cases, the insurer has usually already engaged in some kind of negotiations for the defendant or has gathered facts for and on behalf of the defendant, giving the plaintiff evidence of agency.  Therefore, under ORS 20.080 and Schwartzkopf, if the insurer is the only person who receives a demand, practically and generally speaking, the insurer should treat that demand as sufficient notice as long as it was made at least 30 days before plaintiff filed the lawsuit.

Courts do generally require plaintiffs to send any additional written information that the demand would include, such as additional medical bills, to the defendant (or the defendant’s insurer) as soon as possible if the plaintiff obtains such information after the plaintiff has made her written 20.080 demand and before she has filed the lawsuit.

However, in the initial written demand, courts generally give plaintiffs leeway and, as long as the plaintiff has provided the defendant with enough documentation to generally value the claim, the plaintiff generally does not have to strictly comply with the statute and provide all of the documentation “reasonably available at to the plaintiff at the time.”  For example, if you are provided with an ORS 20.080 notice from a plaintiff’s lawyer that includes most of the medical records and bills but does not include copies of the x-rays, a trial judge will generally hold that the plaintiff’s lawyer substantially complied with ORS 20.080 and that the claim may proceed.

3. How Can Defendants Escape Attorney Fees in ORS 20.080 Cases?

The only way the defendant can escape attorney fees in ORS 20.080 cases is if the defendant makes an offer to the plaintiff before the lawsuit is filed that is more than the damages ultimately awarded to the plaintiff. In other words, if the plaintiff recovers $5,000, but the defendant offered $3,000 before the lawsuit was filed, the plaintiff gets her attorney fees.  If the plaintiff recovers $5,000, but the defendant offered $8,000 before the lawsuit was filed, the plaintiff does not receive her attorney fees.

If the lawsuit is filed and the defendant has a counterclaim of up to $10,000 and the defendant prevails in the lawsuit, the defendant gets its reasonable attorney fees.  What is “reasonable” is decided by the court.

In Oregon, it is important to notify your attorney right away after receipt of an ORS 20.080 letter to ensure that you strategize appropriately.  Although it may seem unpalatable, generally the best strategy is for defendant to make its best offer first, to minimize the risk of an award in excess of the offer and exposure to attorney fees. Many times, lawyers don’t receive cases until the lawsuit is filed and, in ORS 20.080 cases, that is usually too late; the plaintiff’s attorney fee claim is already in play.

Scott Brooksby Featured at Prominent Aviation Litigation Conference

SB Maverick

Scott Brooksby will be speaking at the 2014 American Bar Association’s Aviation Litigation Seminar on June 5, 2014, in New York.  Scott’s panel is entitled “Federal Rules of Evidence: New Treatment of NTSB Factual Reports and Underlying Findings.”

The American Bar Association’s Aviation Litigation Seminar enables aviation lawyers to stay up to date on current developments, ethical issues, and new trends in aviation litigation. Scott Brooksby will be featured as part of the distinguished faculty of seasoned litigators, who will address topics such as:

• Significant recent legal developments and case law
• The ethics of prepping and presenting witnesses for deposition or trial
• Impact of unmanned aerial vehicles in aviation litigation
• Effectively handling non-catastrophic aviation cases
• Pilot training issues and litigation
• Recent applications of the General Aviation
Revitalization Act
• Legal, regulatory, and insurance implications of space tourism
• New treatment of NTSB factual reports

Scott Brooksby practices aviation and product liability defense.  He is an experienced trial lawyer who has defended businesses, manufacturers, and organizations in many personal injury and and commercial cases. He has defended and counseled product manufacturers and distributors in a variety of industries including aviation, drugs and medical devices, toys and recreational products, paints and solvents, power tools, heavy equipment and machinery, retail, food, consumer products, and automobiles. He is the former co-chair of a large West Coast law firm’s product liability practice group.

Scott has tried numerous personal injury and product liability cases in Oregon state and federal courts.

In cases that do not necessitate a trial, Scott is a skilled negotiator who has resolved hundreds of cases through arbitration and mediation. He has successfully argued many motions that resulted in the dismissal of claims, or outright dismissal of his client. He also has experience counseling product liability clients regarding the avoidance of litigation, handling product recalls, product modifications, and unwanted governmental intervention.

Scott has litigated everything from small defective product claims to catastrophic injury and wrongful death cases involving punitive damages.  He has experience with medical treatment issues that result from falls, burns and amputation injuries in manufacturing facilities.

As one of the few lawyers in Oregon with significant aviation experience, Scott has litigated helicopter and plane crash cases, as well as aviation component part product liability claims.  Scott was co-counsel on a team that defended a large aviation product manufacturer in a months-long trial.

Scott Brooksby recognized as Business Edition “Super Lawyer” for Product Liability

Scott_0844_linkedin

Scott Brooksby has been recognized as Business Edition “Super Lawyer” in the 2013 Business Edition of Super Lawyers for product liability defense. Scott has been recognized as one of the top attorneys in product liability defense commercial practice, selected from attorneys across the nation and in London.

Scott Brooksby is experienced in defending companies of all sizes against product liability claims–from small franchisees to Fortune 500 companies.  Scott is aware of the needs of different-sized companies facing issues like product recalls and compliance issues.

Scott has handled product liability cases in both state and federal courts.  He is intimately familiar with the various applicable state and federal regulations that apply in product liability cases, and he serves as on-demand counselors for his clients as issues come up. He also assists his product liability clients with insurance issues, employment and temporary worker concerns, and contract analysis.

Scott has extensive experience with product liability law through decades of representing national and international manufacturers, sellers, distributors, and suppliers.  He is a trial lawyer who provides sound recommendations to his clients regarding when to settle and when to try product liability cases, and how to minimize risk and avoid future claims.

Scott works efficiently with a wide variety of the nation’s most recognized product liability experts regarding complicated factual and medical issues.  He is familiar with federal and state product liability law and regulations, and he works with his clients to determine the best defense strategy when faced with a product liability lawsuit or potential lawsuit.

Three types of product defects are recognized in Oregon: design defects, manufacturing defects, and failure to warn.  Scott has defended companies against all three types of product defect claims and have successfully challenged product liability cases pleaded under both negligence and strict liability theories.

The NTSB’s role in the investigation rail accidents and accident prevention

Scott Brooksby (pictured above) is the chair of Olson Brooksby’s product liability group.  Scott has extensive experience with cases involving the NTSB, including rail and aviation cases.  

This article will discuss statistical and philosophical rail safety.  While rail accidents generally do not garner a great deal of media attention unless, say, a school bus is involved, the NTSB’s role in the investigation rail accidents allows for the compilation of valuable information for those in the rail industry and can assist them with developing solutions for accident avoidance.

The National Transportation Safety Board (NTSB)’s Unique Role In Rail Accident Investigation

The practical reality is that most media attention as it relates to the NTSB is focused on plane crashes.  Plane crashes are unique in their ability to capture the average person’s attention.  While we will not delve into every statutory or regulatory provision or procedure employed by the NTSB, some key elements are worth noting here.  The NTSB is a completely unique federal agency, consisting of five members, one of whom serves as the chair.  The NTSB is congressionally chartered and has subpoena and prosecutorial powers, but it is not an agency supervised by the Executive branch of the U.S. Government.  Its sole and unique mission is to investigate every transportation disaster in the United States, make a probable cause determination, and, if appropriate, issue safety regulations.  It is the only government agency authorized to investigate the causes of transportation accidents and make safety recommendations.  The NTSB’s authority is set out at 49 U.S.C. §§ 1101-1155.

The origin of the NTSB was the Air Commerce Act of 1926.  (NTSB, History of The National Transportation Safety Board, http://www.ntsb.gov/about/history.html (accessed 5/10/13)).  The NTSB was established in 1967 as the federal government’s primary accident investigation agency for all modes of transportation.  The core of the new agency was the Civil Aeronautics Board’s Bureau of Safety (closed due to the Airline Deregulation Act of 1978).  (Id.)  Originally established with strong ties to the Department of Transportation, these ties were later severed under the Independent Safety Board Act 1974 when the provisions of 49 U.S.C. §§ 1101-1155 enabled the agency.  (Id.)

The NTSB division that handles rail accident investigations is the Office of Railroad, Pipeline and Hazardous Materials Investigations (“the Office”).  (NTSB, Office of Railroad, Pipeline and Hazardous Materials Investigations, http://www.ntsb.gov/about/office_rph.html (accessed 11/15/13)).  The NTSB makes safety recommendations based on the rail accident investigations it conducts.  (Id.)  The Railroad Division of the Office conducts investigations “involving passenger railroads, freight railroads, commuter rail transit systems and other transportation systems operating on a fixed guideway.  These accidents typically involve collisions or derailments; some of these accidents lead to the release of hazardous materials.”  (Id.)

Rail Fatality Statistics

In 2011, the most recent year for which NTSB statistics for fatal accidents are available, there were 759 rail accidents.  The accident data for 2011 was comprised of trespassers and nontrespassers (499); light, heavy, and commuter rail (230); employees and contractors (24); and passengers (6).  (NTSB, Data & Statistics: 34,434 Transportation Fatalities In 2011http://www.ntsb.gov/data/index.html (accessed 10/27/13)).

Information regarding NTSB reports concerning rail accidents going back to the 1970s can be found on the NTSB website at http://www.ntsb.gov/investigations/reports_rail.html.

Causes of Rail Accidents

Fatigue

In September of this year, NTSB Board Member Dr. Mark Rosekind made a presentation to a workshop of locomotive engineers and trainmen.  Mark Rosekind, The NTSB Safety Mission: From Investigation to Recommendation, https://www.ntsb.gov/doclib/speeches/rosekind/rosekind_09232013.pdf (last accessed Nov. 15, 2013).   One of the causes of rail accidents that Dr. Rosekind identified is fatigue, about which the NTSB feels strongly and almost constantly designates as a cause of accidents.  As Dr. Rosekind stated in his remarks, “fatigue can degrade the very aspect of human capability”.  (Id.)

On April 17, 2011, there was a collision between two BNSF railway freight trains in Red Oak, Iowa.  (Id.)  The cause of the accident was found to be fatigue.  (Id.)  Specifically, the crew of the striking train was so fatigued that they failed to comply with the signal indication requiring them to stop before colliding with the standing train.  (Id.)  The crew had fallen asleep “‘due to fatigue resulting from their irregular work schedules and their medical conditions.'”   (Id.)

Based on some of the NTSB investigations pinpointing fatigue as the cause of rail accidents, Dr. Rosekind recommends that “fatigue management systems” be developed for operators and that such systems be monitored and continually improved upon in order to reduce fatigue-related accidents.  (Id.)

Distraction 

Another cause of rail accidents is distraction.  (Id.)   In Chatsworth, California, on September 12, 2008, a Metrolink train collided with a Union Pacific train due to an engineer’s texting.  (Id.)  Metrolink’s engineer’s phone records on the day of the accident showed that 95 text messages were sent or received.  (Id.)  During the time the engineer was responsible for operating the train, he sent 21 texts, received 21 texts and made four telephone calls.  (Id.) Upon investigation it was found that the engineer’s phone usage on the day of the accident was consistent with his previous use, so this accident was simply waiting to happen.  (Id.) The cause of the crash was found to be the failure of the Metrolink engineer to observe and respond to the red signal.  (Id.)  Although the Metrolink engineer was prohibited from using his phone while operating the train, he did so anyway, causing the accident.  (Id.)

NTSB Investigations as a Useful Tool for Avoiding Future Rail Accidents

NTSB investigations into rail accidents can serve as useful  tools for avoiding accidents in the future.  Because valuable information is compiled and because the NTSB makes a causation determination for each accident, future rail accidents can be avoided by looking at the causal mechanisms of the accident and implementing systems to avoid such accidents in the future.

Aviation Fatalities: Most are Caused by Human Error

Developing and Following Good Standard Operating Procedures (“SOPs”) and Crew Resource Management (“CRM”) Procedures Are the Keys to Avoiding Aviation Fatalities

The National Transportation Safety Board (“NTSB”) recently released its statistical data calculating transportation fatalities across all modes of transportation in 2011.  There were 494 fatalities in aviation.  The breakdown was as follows: general aviation, 444; air taxi, 41; foreign/unregistered, 9; airlines, 0; commuter, 0.[1]

In comparing the 2011 data against the prior decade or so, there are certainly positive signs.  But, like all raw statistics, the numbers are most useful when integrated into a longitudinal data comparison from which conclusions are drawn.  The NTSB fatality statistics draw a conclusion that might not be obvious from the 2011 data alone: Human error absolutely dominates as the leading cause of aviation fatalities (and injuries).

There are two keys to avoiding aviation fatalities: developing and following good SOPs and CRM procedures.  This article will examine some of the persistent human causes of aviation accidents, many of which are merely outgrowths of the failure of aviation organizations to develop, adhere to, and not willfully disregard SOPs.  The second cause of aviation fatalities examined in this article is the failure of flight deck crews to follow CRM procedures.  Complications that lead to failure to follow CRM procedures include factors such as cockpit chaos; multi-lingual cockpits; failure to maintain cockpit discipline; surprise; and failure, during emergencies, to rely on the crew member with the most flight time, if appropriate given the constitution of the crew as a whole.

Accidents Can Be Avoided Through Proper Cockpit Procedures and Compliance With SOPs

On September 16, 2013, NTSB Member Robert Sumwalt (“Member Sumwalt”) gave a presentation to the Southern California Aviation Association[2] on the importance of SOPs.  Member Sumwalt, quoting from an NTSB accident report, noted that, “[w]ell-designed cockpit procedures are an effective countermeasure against operational errors, and disciplined compliance with SOPs, including strict cockpit discipline, provides the basis for effective crew coordination and performance.”[3]

Member Sumwalt then presented facts about what the accident data show regarding crew-caused accidents.  In an NTSB study of 37 crew-caused air carrier accidents between 1978 and 1990, procedural errors, such as not making required callouts or failing to use appropriate checklists, were found in 29 of the 37 (78%) reviewed accidents.  The accident data also show that, with respect to turbine-powered operations (2001-2010), the NTSB identified at least 86 accidents involving lack of adequate procedures, policies, or checklists, or lack of flight crew adherence to procedures, policies, or checklists.  These accidents resulted in 149 fatalities.[4]

Developing Effective SOPs

The development of SOPs in various industries has been accomplished through a variety of regulatory bodies, industry groups, and volunteerism.  One of the first groups to establish such guidelines was the International Conference on Harmonisation (ICH), which defines SOPs as “detailed written instructions to achieve uniformity of the performance of a specific function.”  The international quality standard (“ISO”) 9001 essentially requires the establishment of SOPs for any manufacturing process that could affect the quality of the product.  Although ICH’s implementation of the ISO 9001 SOPs was in the context of clinical drug trials, a substantially similar system has been expanded to other industries.[5]

In the context of aviation, the SOP provides a flight crew with a step-by-step guide to effectively and safely carry out operations.  A particular SOP must not only achieve the task at hand but also be understood by a crew of various backgrounds and experiences within the organization.  SOPs can also be developed over time to incorporate improvements based on experience, accidents, near misses, or innovations from other manufacturers or operators to suit the needs of a particular organization.  SOPs can also provide employees with a reference to common business practices, activities, or tasks.[6]  New employees use SOPs to answer questions without having to interrupt supervisors to ask how an operation is performed.[7]

Although reference is made to ISO 9001 in the context of clinical trials, the ISO 9000 family of standards is related to quality management systems and designed to help organizations follow consistent procedures to meet the needs of customers and other stakeholders.[8]  “AS 9000” is the Aerospace Basic Quality System Standard–an interpretation developed and adopted by virtually all the major aerospace manufacturers.  The current version is AS 9100C.  A new version of the standard will be published in September 2015 if the ISO members vote favorably in March 2015.[9]

The Failure of Flight Crews to Comply With SOPs and the Consequences

During his remarks on flight crew error, Member Sumwalt cited a Boeing study of accident prevention strategies where the data suggested that the single most important factor in prevention of hull loss accidents over a ten-year period was pilot flying (PF) adherence to SOPs.  Member Sumwalt noted that SOPs are typically not followed for three specific reasons.  He discussed each reason, and then used data from an NTSB investigation, or preliminary cause report, as support or illustration for each of the three reasons.

The reasons SOPs are typically not followed are:

(1) the organization lacks adequate SOPs;

(2) the organization doesn’t adhere to their SOPs; and

(3) flight crews intentionally disregard SOPs.

SOPs should be clear, comprehensive, and readily available in the manuals used by flight deck crew members.[10]  Member Sumwalt provided three real-life corollary examples:

  • The Organization Lacks Adequate SOPs – Crash of East Coast Jets, Hawker Beechcraft BAe 800, on July 31, 2008, Owatonna, Minnesota (8 fatalities)

The NTSB found that, although as a charter operator, East Coast Jets was not required to incorporate SOPs into its operations manual, if it had done so, it may have supported the accident pilots in establishing cockpit discipline and, therefore, a safer cockpit environment.  An example was provided where the SOP identifies the triggering event, designates which crewmember performs the action or callout, what the callout is, and what the action is.

  • The Organization Fails to Adhere to Its Established SOPs – Crash of Cessna 310, N501N, July 10, 2007, Sanford, Florida (5 fatalities)

In this case the organization did not adhere to SOPs.  The aviation director could not locate the SOP manual, which was viewed as merely a training tool.  The aircraft was to be used only for company business, but the accident flight was a personal flight.  The Pilot in Command (“PIC”) must possess an Airline Transport Pilot (“ATP”) Certificate/Rating, but the PIC did not possess the necessary ATP.  The last three maintenance discrepancies had not been addressed.  The NTSB noted that these lapses were contrary to industry guidelines directing that procedures should be written in accordance with the organization’s operating methods, and once the procedures are in place, the organization should make every effort to follow those procedures.  Having a strong commitment to standardization and discipline were among the key elements of safe operations observed in a Boeing study.  Cockpit procedural language is tightly controlled to maintain consistency and to avoid confusion from non-standard callouts.  Callouts and responses should be done verbatim.[11]

  • Flight Crews Intentionally Disregard Established SOPs – Hard Landing of US Airways Express, January 19, 2010, Charleston, West Virginia

The NTSB probable cause determination was “the flight crewmembers’ unprofessional behavior, including their non-adherence to sterile cockpit procedures by engaging in non-pertinent conversation, which distracted them from their primary flight-related duties and led to their failure to correctly set and verify the flaps.”  Intentional crew non-compliance was a factor in 40% of the worldwide accidents reviewed.[12]

NTSB Member Sumwalt concluded by noting that well-designed SOPs are essential for safety.  Making a strong commitment to procedural compliance should be a core value of the organization.  The SOPs must not merely exist, but they must be religiously followed as a way of doing business.

Well-Coordinated CRM is a Crucial Part of Accident Prevention

CRM[13] is a set of training procedures for use in environments where human error can have devastating effects.  Used primarily for improving air safety, CRM focuses on interpersonal communication, leadership, and decision making in the cockpit.

CRM grew out of an NTSB analysis of the crash of United Airlines flight 173 where the plane, a DC-8, ran out of fuel while troubleshooting a landing gear problem over Portland Oregon.[14]  The NTSB issued its landmark recommendation on June 7, 1979, to require CRM training for airline crews.  A few weeks later, NASA held a workshop on the topic, endorsing this innovative training.[15]  United Airlines was the first airline to provide CRM training for its cockpit crews in 1981.[16]

Since that time, CRM training concepts have been modified for application to a wide range of activities where people must make dangerous time-critical decisions.  These arenas include air traffic control, ship handling, firefighting, and medical operating rooms.[17]

The Difficulty of Precisely Executing CRM Procedures In a Multicultural Cockpit

Multiculturalism in the cockpit is a largely recent phenomenon.  Globalization and shrinking militaries around the world have led to a decrease in the availability of trained pilots, a lack of homogenous flight crews, and the emergence of multicultural cockpits.  In 2005, a Helios Airways Boeing 737-300, with its pilots incapacitated by hypoxia after they failed to recognize a cabin pressurization system malfunction, provides a good example of what can happen when communication and crew resource management break down in the multicultural cockpit.[18]  All 121 people on the airplane were killed when the 737 depressurized and ran out of fuel, the engines flamed out, and the airplane crashed, after what was to have been a flight from Larnaca, Cyprus, to Prague, Czech Republic, with a stop in Athens.

In its final report on the accident, the Hellenic Air Accident Investigation and Aviation Safety Board said the crew had failed to recognize that the cabin pressurization mode selector was in the wrong position.  The Helios crew exhibited poor CRM before takeoff and during climb, and the difference in their nationalities and primary languages–the captain was German, the first officer was Cyprian–contributed to poor communication during the event.  A blaring cabin altitude warning horn and the illumination of master caution lights degraded the crew’s cognitive abilities and processes.  Inter-cockpit communications were reduced, perhaps in part because English was a second or third language for the crew.[19]

The CRM Lessons Learned From Air France 447–“Crew Coordination Vanished”

On March 27, 1977, two Boeing 747s crashed on the single runway on the Spanish island of Tenerife, killing 583 people.  More than 35 years later, it is still measured by the number of casualties, and is by far the worst aviation disaster in history.  One aspect of the accident, unlike many tragic and significant disasters, is that the non-aviation community was fixated on the Tenerife crash, the individuals involved, and exactly what the sequence of events was.  Arguably the next time both the aviation community and the non-aviation community became as fixated on an aviation disaster was the 2009 crash of Air France 447.[20]

Within four and a half minutes in the early hours of June 1, 2009, an Airbus A330-200 operating as Air France Flight 447 from Rio de Janeiro to Paris, departed from cruise flight at 35,000 feet and descended into the Atlantic Ocean, killing all 216 passengers and 12 crewmembers.  Glimpses of what may have gone wrong emerged from the several interim reports issued by the French Bureau d’Enquetes et d’Analyses (BEA) during the long investigation.  In July, 2012, the BEA issues a nearly 300-page final report.

According to the report, the trouble began when the A330’s pitot tubes were obstructed by ice crystals, causing the various air data sources to produce unreliable airspeed information.  Reacting as designed, the autopilot and autothrottle disengaged, and reverted to a lower control law that provides fewer protections against flight-envelope deviations.  Startled, the pilot flying (“PF”) inadvertently commanded a steep nose-up pitch change while leveling the airplane’s wings.  The flight crew–a copilot and a relief pilot filling in for the resting captain–recognized the loss of reliable airspeed data but did not conduct the associated checklist procedure.  As a result, “[c]onfusion reigned on the flight deck, and crew coordination vanished.” [21]  Without automatic angle-of-attack protection, the airplane entered a stall.  The crew either believed that the stall warnings were spurious or mistook the airframe buffeting as a sign of an overspeed condition.  When the resting captain was called to return to the flight deck, he continued to apply nose-up flight inputs, when, at such a low altitude, the only possible chance to get the plane back into the flight envelope would have been nose-down inputs.  In addition, the PF almost immediately took back priority without any callout and continued piloting.  The priority takeover by the PF contributed to the de-structuring of the task-sharing between the pilots.  No recovery action was taken, and the A330 remained in a stall as it descended into the sea.

Additional sections of the BEA final report comment on the fragmented nature of the augmented crew, and the fact that some junior officers had far more flight hours in type than some of the more senior crew members, further eroding the opportunity for effective CRM in a surprise situation.

SOPs and CRM Must be Properly Implemented and Adhered To

Disciplined implementation of, and adherence to, SOPs is inseparable from the disciplined implementation of, and adherence to, CRM.  Although this article only scratches the surface on data supporting this conclusion, it is an irrebuttable presumption that if flight crews fully embrace SOPs and CRM, flying will be safer.


[1] Data and Statistics-NTSB-National Transportation Safety Board http://www.ntsb.gov/data/index.html (last visited, October 18, 2013).

[2] Member Robert L. Sumwalt, Standard Operating Procedures:  The Backbone of Professional Flight Operations,  http://www.ntsb.gov/news/speeches_sumwalt.html  September 16, 2013 (last visited October 18, 2013) (unpaginated).

[3] Id. (citing from National Transportation Safety Board Accident Report NTSB/AAR-11/01, PB2011-910401, Crash During Attempted Go-Around After Landing, East Coast Jets Flight 81, Hawker Beechcraft Corporation, 125-800A, N818MV, Owatonna, Minnesota, July 31, 2008).

[4] Id.

[5] ICH Harmonized Tripartite Guidelines For Good Clinical Practice. (1.55.)  May 1, 1996.

[6] Green, R. G., Muir, H., James, M., Gradwell, D., & Green, R. L. (1996) Human Factors for Pilots (2nd ed). Ashgate Publishing Ltd (Hants, England), 1996.

[7] Anderson, Chris.  How to Write Standard Operating Procedures.  Bizmanualz, June 4, 2012.

[8] Poksinska, Bozena; Dahlgaard, Jens Jörn; Antoni, Marc (2002). The State of ISO 9000 Certification: A Study of Swedish Organizations. The TQM Magazine 14 (5): 297.

[9] Nigel H. Croft (2012). ISO 9001:2015 and Beyond – Preparing for the Next 25 Years of Quality Management Standards“. ISO.

[10] FAA Advisory Circular AC 120-71.

[11] Reference to Lautman-Gallimore Study.  Member Robert L. Sumwalt, Standard Operating Procedures:  The Backbone of Professional Flight Operations  http://www.ntsb.gov/news/speeches_sumwalt.html  September 16, 2013 (last visited October 18, 2013) (unpaginated).

[12] R. Khatwa & R. Helmreich, cited in Member Robert L. Sumwalt, Standard Operating Procedures:  The Backbone of Professional Flight Operations  http://www.ntsb.gov/news/speeches_sumwalt.html  September 16, 2013 (last visited October 18, 2013) (unpaginated).

[13] Diehl, Alan (2013) “Air Safety Investigators: Using Science to Save Lives-One Crash at a Time.” Xlibris Corporation. ISBN 9781479728930. http://www.prweb.com/releases/DrAlanDiehl/AirSafetyInvestigators/prweb10735591.htm.

[14] UNITED AIR LINES, INC. “McDONNELL-DOUGLAS DC-8-61, N8082U PORTLAND, OREGON : DECEMBER 28, 1978.” National Transportation Safety Board. December 28, 1978. 9 (15/64).

[15] Cooper, G.E., White, M.D., & Lauber, J.K. (Eds.) 1980. “Resource Management on the Flight Deck,” Proceedings of a NASA/Industry Workshop (NASA CP-2120).

[16] Helmreich, R. L.; Merritt, A. C.; Wilhelm, J. A. (1999).  “The Evolution of Crew Resource Management Training in Commercial Aviation.”  International Journal of Aviation Psychology.  9 (1): 19–32.

[17] Diehl, Alan (June, 1994). “Crew Resource Management… It’s Not Just for Fliers Anymore.” Flying Safety, USAF Safety Agency.

[18] Hellenic Air Accident Investigation and Aviation Safety Board.  Aircraft Accident Report 11/2006, Helios Airways Flight HCY522, Boeing 737-315, at Grammatiko, Hellas, 14 August 2005.

[19] Id.

[20] The following summary of the facts and conclusions associated with AF 447 is based on the English translation of the BEA’s “Final Report on the Accident on 1st June 2009 to the Airbus A330-203, Registered F-CZCP, operated by Air France, Flight AF 447, Rio de Janeiro-Paris”.  The report is available in English and the original French at www.bea.aero.

[21] Mark Lacagnina, Sustained Stall: Blocked Pitot Tubes, Excessive Control Inputs and Cockpit Confusion Doomed Air France 447, http://flightsafety.org/aerosafety-world-magazine/august-2012/sustained-stall (accessed October 22, 2013).

The Elements of a Premises Liability Case in Oregon Depend on the Visitor’s Legal Status at the Time of the Injury

Kolisch steps

As explained in detail below, there are three types of visitor status: business invitee, licensee, and trespasser.  The duty of the person in control (the “possessor”) of the premises where the injury occurred is controlled by the legal status of the injured visitor at the time of the injury.  This may include the obligation of the possessor to protect the visitor against injuries from third parties or animals.

An understanding of negligence law in Oregon requires a brief discussion of pre- and post-1987 common law decisions.  Prior to 1987, Oregon generally held to a conventional approach to negligence cases, requiring the existence of a duty, a breach of that duty, causation, and damages.  However, since the cases decided in the period around 1987, common law negligence in Oregon now depends on whether the defendant’s conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.

This change from the strict adherence to the traditional common law elements of duty, breach, causation, and damages was a result of the Oregon appellate courts’ perceived overuse of the cliché “duty” or “no duty.”  Oregon courts, therefore, began to encourage juries and judges to decide each case on its own facts.  Duty continues to play an affirmative role when the parties invoke a particular status, relationship or standard of conduct beyond the standards generated by common law.  This was the result of the so-called Fazzolari principle, which now governs negligence law in Oregon.  Fazzolari v. Portland School District 1J, 303 Or 1 (1987).

Fazzolari typically requires a three-part test:

  1. Determine whether a particular status or relationship exists;
  2. If so, analyze that status, relationship, or standard to determine whether a “duty” beyond that of ordinary care exists;
  3. If such a standard, status or relationship is not alleged, then analyze the case under principles of general negligence based on foreseeability of risk of harm.

The General Premises Liability Claim Under Oregon Law

Premises liability is based on the fact that a defect in the land that poses a danger to those who are not in possession of the land, but are present on the land either for their own benefit or the benefit of their host.  The person in possession and control of land is obligated to cause no unreasonable harm to others in the vicinity.  W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 57 at 386 (5th ed 1984 and Supp 1988).  The particular duty owed by an occupier of land to a visitor is dictated by the visitor’s status.  Settle v. PGE, 81 Or App 474, 477 (1986), rev den, 302 Or 460 (1986).

As discussed above, the Oregon Supreme Court has dealt extensively with the concept of duty in common-law negligence cases and, in the series of cases in 1987 discussed above, largely overhauled common-law negligence principles in Oregon.  The same negligence principles apply in premises liability cases.  In other words, as in Fazzolari, 303 Or 1, discussed above, Oregon premises liability law determines whether the defendant’s conduct created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.

Business Invitees

Three categories of visitor status exist in Oregon:  invitee, licensee, and trespasser.  Stewart v. Kralman, 240 Or App 510, 517 (2011).  Business invitees are, for example, customers in stores, restaurants, gyms, or entertainment events.  Johnson v. Short, 213 Or App 255, 260 (2007) (stating that, “In general, a business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”  (Internal citation and quotation marks omitted)).  A possessor of premises has the duty to “warn of latent dangers” and to “protect the invitee against dangers in the condition of the premises about which the [possessor] knows or should reasonably have known.”  Id. (internal citation and quotation marks omitted).

Licensees

Most cases involving injuries to invitees concern allegedly defective conditions.  Stated simply, a licensee is someone who is on the premises at the possessor’s invitation and for the benefit of the licensee.  A good example might be the guest at a dinner party.  Determining whether the possessor of the premises breached a duty owed the licensee involves a three-part test.  For an injured licensee to recover, he or she must allege and prove all three parts.  The possessor of land is subject to liability for physical harm to a licensee caused by a condition of land if the possessor:

  1. Knows of the condition or by the exercise of reasonable care would discover the condition and realizes or should realize that it involves an unreasonable risk of harm to the invitee;
  2. Expects or should expect that an invitee will not discover or realize the danger or will fail to protect himself or herself against it; and
  3. Fails to exercise reasonable care to protect the invitee against the danger.

Katter v. Jack’s Datsun Sales, Inc., 279 Or 161, 167 (1977).

Trespassers

The possessor of land has no duty to a trespasser to make the premises safe.  However, the possessor of land cannot intentionally create hazards for trespassers.

The Duty To Make a Business Invitee Safe and/or to Protect Him or Her from Acts of Third Persons

A more specific premises liability claim stems from the Oregon common law notion that a possessor of land has a duty to protect invitees from the negligent or intentional acts of third persons or animals.  If the possessor fails to exercise reasonable care to discover acts being done or likely to be done and fails to warn patrons or protect against harm by third persons, he or she is liable.  Restatement (Second) Of Torts §344 (1965).  See also Whelchel v. Strangways, 275 Or 297 (1976) (tavern owner who knows or should know of likelihood of boisterous conduct may be required to provide additional employees for protection of patrons).  A premises liability claimant must first have a premises liability theory to have a cause of action that the possessor of land did not protect him or her from the injuries of third parties.

Recreational Use Immunity

The recreational use statute was enacted by the Oregon legislature in 1995.  Oregon encourages landowners to make their land available to the public for recreational purposes.  ORS 105.676.  See also ORS 105.672-699.  Consistent with that policy, the recreational use statute provides that an owner of land who makes it available for public use is not liable for any personal injury arising out of the injured person’s use of the land.  ORS 105.682(1).  The recreational use statute is a powerful and complete defense.

However, if the injured party paid money to use the land, the statutory immunity is not available to the defendant.  ORS 105.688(3).  In such cases, the possessor must rely on conventional defenses for premises liability.

Assumption of the Risk 

The doctrine of implied assumption of the risk has been abolished in Oregon.  ORS 31.620(2).  A defendant is prohibited from asserting implied assumption of the risk as an affirmative defense that might act as a complete bar to recovery.  Blair v. Mt. Hood Meadows Dev. Corp., 291 Or 293 (reh’g den, modified on other grounds by 291 Or 703 (1981)).  This statutory abolition was largely orchestrated by the powerful skiing industry–economically, the largest recreational industry in Oregon.

A defendant may choose to informally raise arguments that previously would have been allowed as affirmative defenses, e.g., implied assumption of the risk.  However, those arguments are now placed into the comparative fault equation.  In other words, if a defendant can establish that a plaintiff “voluntarily and unreasonably” undertook a risk created by the defendant’s conduct, the fact finder must consider such conduct in comparison to the defendant’s negligent acts.  Id. at 301.

Oregon Law Does Not Permit Experts to Testify in the Form of Legal Conclusions in Product Liability or Negligence Cases

Under Oregon law, witnesses are not allowed to testify as to legal conclusions.  See, e.g., Olson v. Coats, 78 Or App 368, 370 (1986) (excluding testimony by witness that certain road signs complied with statutory requirements).  “Each courtroom comes equipped with a ‘legal expert,’ called a judge, and it is his or her province alone to instruct the jury on the relevant legal standards.” Burkhart v. Washington Metro. Area Transit Auth., 112 F3d 1207 (D.C. Cir. 1997).  Examples of inappropriate testimony in the form of legal conclusions include, but are not limited, to:

  • Defendants were clearly reckless, acted in a reckless manner, or acted in a grossly reckless manner;
  • Plaintiff was negligent; and
  • The helicopter/engine had a known and recognized defect.

Neither plaintiff nor defendant should be permitted to elicit such legal conclusions at trial.  An increasing number of products liability cases have excluded similar expert testimony.  A district court was held to have correctly excluded expert testimony that “the lack of adequate warnings and instructions constituted defects which made the products unreasonably dangerous.”  Strong v. E.I. DuPont de Nemours Co., 667 F2d 682, 685-86 (8th Cir. 1981).  Similarly, in Harris v. Pacific Floor Machine Mfg. Co., 856 F2d 64, 67 (8th Cir. 1988), a district court was held to have properly refused to permit the plaintiff’s expert to opine as to the adequacy of the particular warning on the product.

Likewise, expert testimony that a party was “willful” was excluded in United States v. Baskes, 649 F2d 471, 478 (7th Cir. 1980).  On similar grounds, a federal district court excluded expert testimony that the plaintiff was “negligent.”  The court’s ruling also encompassed “any testimony . . . that contains a variation of the term ‘negligent,’” or any opinions that certain conduct was the “direct, proximate and efficient cause” of an accident.  Hermitage Industries v. Schwerman Trucking Co., 814 F Supp 484, 487-88 (D. S.C. 1993).

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