The Savvy Aviator #51: A Mechanic's Liability
By Mike Busch
, Columnist | November 22, 2007
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The Savvy Aviator #14: Engine Cooling -- Less Is More
Mike Busch has been a pilot for more than 40 years and 7,000 hours, and an aircraft owner and CFI for more than 35 years. He became increasingly interested in the maintenance aspects of aircraft ownership about 20 years ago, and ultimately earned his A&P/IA. Mike is also a prolific aviation writer, with hundreds of technical articles published in Air Facts, ABS Magazine, Aviation Safety, AVweb, CPA Magazine, Cirrus Pilot Magazine, IFR, Light Plane Maintenance, and The Aviation Consumer. He co-founded AVweb in 1995 and served as its editor-in-chief for more than seven years. Mike conducts weekend "Savvy Owner Seminars" at which aircraft owners learn how to obtain better aircraft maintenance while spending a lot less money.
The Savvy Aviator
Recently, I attended a two-day, FAA-sponsored, aviation maintenance symposium in Southern California, along with a few thousand other A&P mechanics who were there to renew their Inspection Authorizations. The symposium featured many informative presentations by experts in many different facets of aircraft maintenance. One that I found particularly fascinating -- and also frightening -- was a session about mechanic's liability given by two exceptional aviation trial lawyers, Stuart R. Fraenkel and Douglas C. Griffith.
Fraenkel is a founding partner of the Los Angeles office of Kreindler & Kreindler LLP, the largest U.S. aviation law firm representing plaintiffs. He is a maintenance expert, a Marine Corps veteran who served as a crew chief on CH-46 Sea Knight helicopters and A-4 Skyhawk jets, who now makes his living representing plaintiffs in air crash and other aviation litigation, including lawsuits against maintenance shops and mechanics.
Griffith holds a degree in aerospace engineering as well as a law degree. He served as a Marine combat pilot who flew AH-1W SuperCobra attack helicopters in Operation Desert Storm and received the Distinguished Flying Cross, several Air Medals and the Navy Commendation Medal. After leaving active duty, he worked for eight years at large law firms defending airlines, aircraft and component manufacturers, maintenance facilities, pilots and mechanics (against plaintiff lawyers like Fraenkel). Griffith is now in private practice specializing in aviation defense work.
Here were two formidable hired guns -- one dressed in black, the other in white. I just knew this was going to be interesting! Here are some highlights (or lowlights, depending on your frame of reference) of what they talked about.
FAA Sanctions
Stuart R. Fraenkel (left) and Douglas C. Griffith
Mechanics and repair stations that perform improper maintenance have always been subject to FAA certificate actions (suspension or revocation), civil penalties (fines) and lesser administrative sanctions (warning notices, letters of correction, remedial training, etc.). But during the 1960s and 1970s -- the heyday of piston general aviation (GA) -- such enforcement actions against GA mechanics were exceedingly rare. That's no longer the case.
In 1978 the FAA amended its maintenance regulations (14 CFR Part 43) by adding a new rule (�43.12) making it a violation for any person or firm to "... make, or cause to be made, any fraudulent or intentionally false entry in any record or report this is required to be made, kept, or used to show compliance with any requirement under this part [of the FARs]."
Back in the 1980s, the agency had taken steps to soften its traditional bad-boy image, billing itself as "a kinder, gentler FAA that's here to help you." An important element of that facelift was a de-emphasis on enforcement actions. However, all that changed in the wake of the May 1996 crash of ValuJet Flight 592 and the congressional investigations that followed. By the end of 1996, both FAA Administrator David Hinson and DOT Secretary Federico Pe�a found themselves unemployed, and under new management the FAA added hundreds of additional maintenance inspectors and issued orders to its field offices to start counting noses and kicking asses.
The word went out to the FSDOs loud and clear: No more Mr. Nice Guy. No more singing Kumbaya with certificate holders around the campfire. The unofficial FAA slogan became "we're not happy until you're not happy," and �43.12 became a key weapon in the FAA's new war against rogue mechanics and maintenance facilities.
In plain English, �43.12 makes it a violation for a mechanic or repair station to "pencil whip" a logbook entry, maintenance release, yellow tag, etc. (Believe it or not, there was no explicit regulation prohibiting this prior to 1978!) So if a mechanic or shop makes a logbook entry stating that some airworthiness directive or service bulletin was complied with or that some other work or inspection was performed in accordance with manufacturer's instructions, and if the FAA discovers that the work wasn't actually done as documented, the mechanic or shop is toast.
The penalties for violating �43.12 are extraordinarily severe. An individual mechanic accused of violating it almost certainly faces revocation of all his FAA certificates and will likely be looking for a new career. A repair station can face daunting fines up to $250,000 per violation and/or revocation of its repair station certificate.
How To Avoid Them
That said, it's not all that difficult for an honest and reasonably conscientious mechanic to keep his nose clean and avoid getting in trouble with the FAA. The regulations that govern GA mechanics (Part 43) are vastly more concise and understandable than the ones that govern GA pilots and aircraft owners (Parts 91 and 135). In fact, Part 43 contains a grand total of 13 rules ... that's it! And those rules are remarkably straightforward.
Reduced to their bare essentials, those rules simply require that a mechanic:
Do all work "by the book" in accordance with manufacturer's instructions or FAA guidance;
Use the proper tools in accordance with manufacturer's recommendations or industry practice; Do all work in such a fashion that the aircraft is safe to fly, conforms to its type design and complies with all applicable ADs and airworthiness requirements; Accurately record and sign off all his work in the aircraft maintenance records; and
Get supervision whenever he does work that he's never done before. Pretty commonsense stuff, isn't it? A mechanic who makes a good-faith effort to comply with these few basic rules is very unlikely to find himself in trouble with the FAA.
Civil Liability
Unfortunately, a mechanic who follows the FAA's regulations to the letter and is right at the top of his Principal Maintenance Inspector's Christmas card list isn't out of the liability woods ... not by a long shot. If an aircraft he works on winds up in an accident, the mechanic may easily find himself hauled into court as a defendant in a civil lawsuit, accused of negligence for allegedly performing improper maintenance and facing ruinous money damages and legal expenses.
A mechanic may be found to be negligent and liable for money damages even if he can prove that his work was in scrupulous compliance with all applicable FAA regulations. That's because most maintenance-related FARs are considered to be minimum standards. The "prevailing standard of care" in the industry is presumed to higher.
Under tort law, there's no need to show that a mechanic violated a regulation in order to find him negligent. It is only necessary to prove that he "failed to exercise such care as would be reasonably expected of a prudent person under similar circumstances," either by doing something a prudent mechanic would not do or by failing to do something a prudent mechanic would do. Furthermore, it is not necessary to prove this "beyond a reasonable doubt," but only by "the preponderance of the evidence" -- in other words, the jury need only be convinced that it's more likely than not that the mechanic acted negligently.
In the context of aircraft maintenance, this "prudent person" standard can be mighty fuzzy. Suppose, for example, the plaintiff attorney representing the widow of an air-crash victim alleges that a mechanic who worked on the aircraft was negligent because he failed to comply with a mandatory service bulletin. We all know that, under FAA regulations, there is no requirement to comply with manufacturer's service bulletins (even so-called mandatory ones) for aircraft operated under Part 91, unless the service bulletin is explicitly mandated by an FAA airworthiness directive. In point of fact, the vast majority of Part 91 operators do not comply with the vast majority of manufacturer's service bulletins.
But can a mechanic be judged to be negligent if he fails to comply with a service bulletin? Would a prudent mechanic have complied with such a service bulletin? What if the mechanic recommended that the service bulletin be complied with but the aircraft owner declined to authorize the work? How do you suppose a jury of citizens who have no background in aviation, aircraft maintenance or FAA regulations would decide these questions?
"Mr. Mechanic, when you performed the annual inspection on the airplane operated by Widow Smith's husband, were you aware of Cessna Service Bulletin SEB76-43 calling for the number two frammis at the distal end of the primary portoflan armature to be replaced with an improved part? Please explain to the jury why you elected to approve the aircraft for return to service without replacing the frammis, contrary to the manufacturer's published instructions?"
If you're a mechanic, this is the stuff that keeps you awake at night.
The GARA Effect
Back in the salad days of piston GA, civil suits against GA mechanics and shops were relatively rare, simply because few GA mechanics and shops had enough assets to make them worth suing. Aircraft manufacturers like Cessna had deep pockets and product liability insurance, so they were the primary targets of air-crash litigation. Even if the cause of the crash seemed unrelated to the hardware (as is usually the case), the aircraft manufacturer would be sued anyway and would often wind up paying substantial settlements rather than incur the huge legal defense costs of going to trial.
Things changed dramatically on August 17, 1994, when President Clinton signed into law the General Aviation Revitalization Act of 1994 (GARA), which immunized GA aircraft manufacturers against product liability for aircraft older than 18 years. The GARA immunity is extremely broad and protects the manufacturer from being sued even if an aircraft is proven to have design defects that caused a crash and resulted in injuries or death.
There are a few exclusions from GARA's immunity. Aircraft with 20 or more seats and aircraft engaged in scheduled passenger-carrying operations are exempt. The immunity does not apply to injury or death of medevac patients or persons not on board the aircraft. Nor does it apply if it can be proven that the manufacturer intentionally concealed or withheld information about a known design defect. But for the overwhelming majority of piston GA aircraft flying today, GARA provides the manufacturer with bulletproof immunity against air-crash lawsuits.
At first glance, GARA sounds like a Good Thing (unless you happen to be an air-crash victim or aviation plaintiff attorney). In the pre-GARA era, the GA manufacturers spent hundreds of millions of dollars defending themselves against bogus air-crash lawsuits and that burden was passed on to aircraft owners in the form of higher aircraft and parts prices. Common sense suggests that if an aircraft has managed to fly accident-free for more than 18 years, it seems fair and reasonable to take the manufacturer off the hook. Congress obviously thought so when it passed GARA more than a decade ago.
The rub is that taking the aircraft manufacturers off the hook in most piston GA air-crash lawsuits didn't make those lawsuits go away. It simply increased the liability burden for everyone else involved with the accident aircraft, including engine and component manufacturers, aircraft owners and operators, and especially mechanics and maintenance facilities. In the wake of GARA, there has been an explosion of civil suits against maintenance folks.
Just as with manufacturers, maintainers are now frequently getting sued over air crashes that were almost certainly caused by pilot error rather than improper maintenance (as most crashes are). But the maintainer or his insurance company must still bear the financial burden of defending the suit and must still face the real possibility that a skillful plaintiff's attorney will convince the jury to find the maintainer at least partially liable for the crash.
This litigation explosion has created a nasty second-order problem: Liability insurance for mechanics and shops has become extraordinarily difficult to obtain in recent years. Many underwriters have abandoned the maintenance market, leaving maintainers with few market choices and little competitive pressure to keep premiums affordable. As a result, many shops and most individual mechanics are forced to "go bare" and those lucky enough to be able to find insurance often pay exorbitant premiums for unrealistically low coverage limits.
Nightmare Scenario
To illustrate this risk, Fraenkel and Griffith offer the following nightmare scenario which, while obviously hypothetical, is undoubtedly derived from a composite of actual air-crash cases:
Peter Pilot of Charlie's Charter Service is flying passengers in a 1980 Cessna T210 on leaseback from Oscar Owner and maintained by Mike Mechanic of Aircraft Repair Corp. During approach in IMC conditions and while being given extensive vectoring from ATC, Peter Pilot is twice observed deviating from assigned altitude and heading and has to be given corrections. Shortly after the second correction, the Cessna enters into a spin and crashes, killing all on board. Witnesses report to the NTSB investigator that they heard the engine sputter.
NTSB investigators determine that Peter Pilot's medical expired a month before the crash. The toxicology report showed the presence of antihistamine medication in Peter Pilot's blood. The Cessna's tail section is located approximately 100 yards from the main wreckage. Mike Mechanic of Aircraft Repair Corp. had overhauled the airplane's TCM TSIO-520 engine 10 hours prior to the accident but -- at the direction of Oscar Owner -- did not comply with a TCM mandatory service bulletin.
18 months after the accident, the NTSB releases its probable cause determination: Peter Pilot became disoriented under IMC and lost control of the aircraft. A contributing factor was Mr. Pilot's use of an over-the-counter cold medication.
The families of the dead passengers file a civil suit. Defendants include the estate of Peter Pilot, Charlie's Charter Service, Mike Mechanic, Aircraft Repair Corp., Oscar Owner, Cessna Aircraft Company and the United States government (who provided ATC services). In pre-trial motions, the judge dismisses the suit as to defendants Cessna (because of GARA) and the United States government (because the air traffic controller's actions were deemed to be immunized under the "Discretionary Function" exception to the Federal Tort Claims Act).
The plaintiffs demand a jury trial. By law, the NTSB investigation findings and probable cause determination are inadmissible at trial, so the jury never hears about them.
The end result of the trial is a judgment for the plaintiffs in the amount of $10 million. The jury allocates fault as follows: 10% to Peter Pilot and his employer Charlie's Charter Service; 10% to Mike Mechanic and his employer Aircraft Repair Corp.; and 80% to Oscar Owner.
That does not mean that Mike Mechanic and Aircraft Repair Corp. are responsible for only $1 million, however. State law provides for "joint and several liability" for economic damages, which means that all five of the defendants are equally liable to the plaintiffs to satisfy the entire amount of the $10 million judgment. Conceivably, the plaintiffs could come after Mike Mechanic for the entire $10 million and leave it up to him to go after the other defendants for their share. Is it any wonder that so many A&Ps seem over-cautious and self-protective in their approach to maintenance these days? (Is it paranoia if space aliens really are after you?)
The A&P's Dilemma
In the good ol' days before GARA, an A&P's maintenance decisions were guided by two principal concerns: (1) Is it safe? (2) Does it comply with FAA regulations? Those are precisely the two considerations a mechanic should be concerned about.
But in today's post-GARA world, the prudent A&P is now forced to worry about a third concern: (3) How will it appear to a civil jury that knows nothing about aviation after being spun in the worst possible light by a skilled plaintiff's attorney? That is a very different standard indeed and has had a tremendous chilling effect on A&P maintenance decision-making.
Consider the following situation: An owner brings his Cessna 310 to an A&P mechanic complaining of nosewheel shimmy. The mechanic investigates and discovers that the cause of the shimmy is that the bolt holes in the upper torque-link attach-lugs in the nose gear trunnion are worn, elliptical and sloppy. The mechanic must now decide how to correct this problem.
The mechanic finds that a new NLG trunnion (p/n 5842000-211) costs $3,151 from Cessna. He locates a used, serviceable trunnion from a salvage yard costing less than half that amount. In either case, the mechanic estimates that replacing the trunnion will require about $1,000 in labor.
The mechanic also considers the possibility of repairing the existing trunnion by reaming the worn attach-lug holes oversize and installing a couple of NAS bushings to restore the bolt holes to their original dimension. Although Cessna has not explicitly approved such a repair, the mechanic believes that it would functionally restore the trunnion to good-as-new condition, and would be a minor alteration that conforms to acceptable industry practices. The cost of such a repair would be $15 for the bushings plus $150 in labor.
The mechanic considers all of these repair options safe and legal. But he worries what might happen should the customer's airplane ever be involved in a nose-gear collapse accident and the mechanic finds himself as a defendant in a civil lawsuit -- perhaps a subrogation action by the aircraft owner's insurance company against the mechanic and his shop.
If the A&P repairs the existing nose strut with bushings, a plaintiff's attorney might well ask him to explain to the jury why he made a repair that was not authorized by the manufacturer. If he replaces the damaged trunnion with a serviceable one from a salvage yard, a plaintiff's attorney might well ask him to explain to the jury why he decided to install "an undocumented part from a junkyard" instead of a proper Cessna part with an FAA Form 8130-3 attesting to its airworthiness.
After due consideration, the A&P decides that his safest course of action is to install a new, documented trunnion from Cessna. The aircraft owner winds up paying $4,151 rather than $165, and is a mighty unhappy camper. The owner quietly vows never to patronize the A&P's shop again. This is not a good outcome for either the A&P or the owner.
A&Ps are faced with such decisions all the time: What to do about an engine that is past TBO that the owner wants to continue in service because it's running fine and not making metal? How to deal with a costly service bulletin that the owner doesn't want to comply with? The A&P believes that keeping the engine in service or ignoring the SB is both safe and legal, but is understandably worried that such actions might not appear reasonable and prudent at trial before a jury of aviation-challenged citizens.
A Possible Solution
During their presentation, Fraenkel and Griffith suggested an approach that mechanics and shops might use to deal with this difficult dilemma: The maintainer should shift the decision-making burden to the aircraft owner (where it belongs) and document the owner's decision to make it clear who it was that made the decision.
For example, the mechanic could record something like this: "On April 17, 2007, I advised the aircraft owner of Cessna Service Bulletin SEB76-43, which calls for the number two frammis at the distal end of the primary portoflan armature to be replaced with an improved part. The aircraft is operated under Part 91 and therefore service bulletin compliance is not required by regulation. After a thorough discussion of the technical and regulatory aspects of this service bulletin, the aircraft owner decided that he did not want this work to be performed, and instructed me not to do it." According to Fraenkel and Griffith, a contemporaneous written record like this, signed by the mechanic, would go a long way toward convincing a jury that the mechanic was not negligent in failing to comply with the service bulletin.
Many A&Ps might be inclined to record such information in the aircraft's maintenance records. However, a knowlegeable aircraft owner would find such a logbook entry objectionable, and rightfully so. FAR �43.9 requires that a mechanic's maintenance record entry contain "a description of the work performed." A logbook entry describing work not performed is neither required by regulation nor appropriate.
A much better way for an A&P to handle this is to document such things in a letter to the aircraft owner. The letter should be signed and dated by the A&P and countersigned by the owner acknowledging receipt and agreement. The A&P should give a copy of the signed letter to the aircraft owner and retain the original for his records. This procedure will protect the A&P without creating problems for the aircraft owner.
This approach is hardly a universal solution to the problem of mechanic's liability and the chilling effect it has on maintenance decision-making. Unless he is blessed with 20-20 foresight, it's not easy for a mechanic to document every possible decision that might subsequently be used as a basis for an allegation of negligence.
Also, many aircraft owners just don't want to get involved in the messy details of maintenance decision-making. They expect the aviation maintenance professionals they hire to make maintenance decisions on their behalf. Such an owner may feel alienated if their mechanic hands them a "CYA letter" placing the burden back on him.
Such an attitude is fine, so long as the owner understands that today's savvy maintenance professionals, if left to their own devices, will usually make decisions that minimize their exposure to civil liability. Such decisions often are very costly to the aircraft owner. An owner who is concerned about controlling his maintenance costs will need to get involved in the decision-making process, and to be willing to accept responsibility for those decisions.
See you next month.
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