AOPA Pilot Magazine - November 2010 - 34

PILOTCOUNSEL

BY JOHN S. YODICE
AOPA GENERAL COUNSEL

Liability release form

L

ast month’s column on flight instructor liability stirred a more general question about the effectiveness of so-called “liability release forms”

the estate of the deceased pilot seeking damages for the death of the pilot. The principal defendants were the pilot of the other colliding aircraft, who survived the crash, and the flight team members. There were others, including the flight team corporation. The case raises a number of complex legal issues, but I mention only one—the effect of an exculpatory agreement signed by the deceased pilot. An Illinois trial court and an appellate court (sometimes called “covenants not to sue” and gave the intended effect to the exculpatory agree“exculpatory agreements”) that purport to proment, releasing the individual defendants from John S. Yodice and his staff provide tect against the liability that could result from liability for the pilot’s death. While the appeal general legal the operation of a general aviation aircraft (“Pilot court gave due recognition to the general rule that services to AOPA Counsel: Instructor Liability Still a Concern,” “exculpatory agreements are not favored and are and its affiiiated strictly construed against the party they benefit” October 2010 AOPA Pilot). organizations. We have tried to track the “effectiveness” cases it nevertheless ruled that they are not against and report them to you as they develop. What has public policy as a matter of law, and that “parties remained relatively constant over the years is the potential may allocate the risk of negligence as they see fit” so long as for an aircraft owner’s and pilot’s liability. What has not certain conditions are met. “An exculpatory agreement will remained constant is the effect given to such agreements by be enforced if: (1) it clearly spells out the intention of the the courts. That has run in cycles. The effect has even varied parties; (2) there is nothing in the social relationship between among states, since tort law is a matter of state law—but even the parties mitigating against enforcement; and (3) it is not in the most liberal states, it seems to have been cyclical. Here against public policy.” are some illustrative cases. Here is another: A father and his daughter decided to take At one extreme we have a decision of the Alaska Supreme a sightseeing flight over the Santa Barbara, California, area in Court that refused to give effect to a “covenant not to sue a Waco biplane. As is its usual business practice, the sightseeand indemnity agreement.” The Alaskan court struggled ing company offering these flights required its customers to mightily to find a reason to avoid the intended effect of sign a “High Risk Activity Release, Waiver and Assumption what appeared to be a well-drafted agreement. The Alaskan of Risk Agreement.” court went to great lengths to construe the language “any Prior to their flights, the father and daughter signed the loss, damage, or injury to my person or my property” to be form. On the last of the flights, the Waco lost power and had ambiguous and unenforceable because it did not specifically to make an emergency landing. In the landing the father and mention “death.” I believe that even if the word death had daughter were injured (the extent of the injuries was not been included, this result-oriented court would have found reported). The inevitable lawsuit followed. In the suit a Calianother reason to void the parties’ agreement. This case is a fornia trial and appellate court ruled against the father and perfect illustration of the general legal principle that exculpa- daughter. However, the appellate court did offer important tory agreements are not favored by the courts and are strictly qualifications. It did indicate that the release would not be a construed against the party they are intended to protect. bar to a suit for “gross” negligence, fraud, or a willful wrong At the other extreme we have an Illinois case that dem- (which has been the general rule over the years). And the onstrates a cycle toward a more favorable result. This case court did indicate that a release of liability for future ordinary arose from a mid- negligence could be void on public policy grounds dependair collision that ing on the overall transaction with special emphasis on the Learn more occurred during importance of the underlying service or program, and the AOPA’s legal counselor John S. an aerobatic prac- relative bargaining relationship of the parties. In this case, Yodice will present two forums at tice session. Two what the court called a recreational airplane ride where the Aviation Summit. He will present “FAR aircraft in for- riders were given time to consider what they were signing, Refresher” on Thursday, November 11, and “What Every Pilot Should Know mation collided, and were offered a refund if they did not sign, did not raise About FAA Enforcement” on Friday, causing one to those kinds of public policy considerations. November 12. See the website (www. crash, killing the So, in retrospect, a liability release form could be effective, aopa.org/summit) for more information. pilot. A lawsuit if we can overcome the sometimes difficult problem of asking was brought by for one. 34 • NOVEMBER
2010

AOPA PILOT •
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AOPA Pilot Magazine - November 2010

Table of Contents for the Digital Edition of AOPA Pilot Magazine - November 2010
