December 2007

When Things Go Wrong: Helicopter Accident Litigation in Washington

by Robert F. Hedrick

Washington continues to have its share of helicopter accidents, including one on August 2, 2007, involving a small helicopter crash near Easton tragically taking four lives. During the past 25 years, there have been 215 helicopter accidents in the state, of which 38 involved fatalities. Washington is ranked sixth among states with the most general-aviation accidents. Washington courts have also experienced their share of helicopter accident litigation, including cases that resolved legal issues with regional and national significance.

In the Northwest, helicopters are an everyday method of transport for many modern-day pursuits, including aerial news and traffic reporting, search and rescue, air ambulance, aerial lifting, aerial firefighting, aerial photography, survey and inspection, heli-logging, aerial agriculture application, and, of course, personal transport for work and pleasure.

The utility of these machines is second to none. Notably, airports and runways are not needed, because helicopters can take off and land from almost anywhere, even in the mountains, on building rooftops, and on small ships at sea.

In addition to flying more slowly than most fixed-wing aircraft, there is another trade-off for the greater utility of helicopters: They are more dangerous to operate than airplanes, plain and simple. The National Transportation Safety Board Aviation Accident (NTSB) statistics for 2001–2005 show an accident rate for helicopters of 9.3 accidents per 100,000 flight hours. The rate for fixed-wing non-commercial general aviation aircraft was 6.6 accidents per 100,000 flight hours.

Helicopter Design and the Washington Product Liability Act

The Federal Aviation Regulations (FARs) govern helicopter manufacturing activity and set forth the minimum safety standards for FAA certification. 14 Code of Federal Regulations (CFR) Parts 27 and 29 provide the airworthiness standards for rotorcraft, covering areas such as performance, operating limitations, stability requirements, rotor-blade clearance, fuel and oil system requirements, emergency systems, and operations, to name a few.

Under Washington law, a helicopter manufacturer’s failure to comply with these regulations, when causally related to an accident, may subject the manufacturer to strict product liability.

Case in point: On May 11, 2001, two Washington pilots departed Boeing Field in a brand-new four-place light helicopter. Fifteen minutes later, near Gorst, Washington, the helicopter tail rotor contacted the tail boom, causing an in-flight break-up. The helicopter crashed and both pilots died. The NTSB found no evidence of mechanical failure or malfunction, and attributed the accident to “an abrupt application of the tail rotor/anti-torque pedal by an unknown pilot resulting in tail rotor contact with the tail boom.”1

The subsequent wrongful-death claims were filed in King County Superior Court. After expert investigation and discovery, it became apparent that the helicopter was flying straight and level when the tail section sliced off, making it unlikely that any pilot input was the initiating factor.2 Plaintiffs moved for summary judgment based on the following.

Section 27.661 of the FARs, entitled “Rotor Blade Clearance,” mandates for helicopter design:

There must be enough clearance between the rotor blades and other parts of the structure to prevent the blades from striking any part of the structure during any operating condition.

RCW § 7.72.030, which is part of the Washington Product Liability Act3 (WPLA), provides:

(1) A product manufacturer is subject to liability to a claimant if the claimant’s harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed . . . .4
 
RCW 7.72.050 addresses the effect of a manufacturer’s liability when the product does not comply with mandatory government design regulations:

(2) . . . [w]hen the injury-causing aspect of the product was not, at the time of manufacture, in compliance with a specific mandatory government specification relating to design or warnings, the product shall be deemed not reasonably safe under RCW 7.72.030(1).5

Based on the above legal argument and the underlying facts, a King County judge granted plaintiffs’ motion for summary judgment, holding that the helicopter “was not reasonably safe as a matter of law,” and that “the defective helicopter caused the accident and deaths” of the pilots.6 The only issue remaining for trial was damages.

After the case was resolved, one pilot’s family, through counsel, requested the NTSB to review their investigation and revise their probable-cause determination consistent with the court’s summary judgment ruling. The NTSB considered the request but later refused to amend the probable-cause finding, despite strong evidence contradicting the NTSB’s original theory involving excessive pilot input. The deceased pilots were at least vindicated by the justice system.

Defenses

Despite the requirement of mandatory compliance with government regulations and the policing effect of the WPLA, on the other side of the coin there are two additional aviation-related defenses which may be available to helicopter manufacturers.

First, the General Aviation Revitalization Act7 (GARA), which became effective in 1994, is a federal statute of repose enacted to cut off the otherwise unlimited tail of product liability on general aviation aircraft. GARA places an 18-year time limit on bringing product liability actions against manufacturers of allegedly defective “general aviation aircraft” and component parts. GARA contains specific elements that must be met, and also contains numerous exceptions.

By its own terms, GARA applies to “general aviation aircraft,” which are defined as aircraft that are FAA certified. However, in a case arising out of a helicopter accident in Washington, the Ninth Circuit extended GARA to cover manufacturers of military-surplus helicopters, and held that GARA commences to run from the date the helicopter is delivered to the military before any FAA certification.

In Estate of Kennedy v. Bell Helicopter,8 a heli-logging pilot was killed in 1996 near Leavenworth, Washington, when the vertical fin and tail rotor assembly separated from the tail boom, causing complete loss of control. The trial court denied the manufacturer’s motion for summary judgment based on GARA even though the helicopter was 26 years old, because it was originally delivered to the Navy where it flew for 14 years. Therefore, it was not a “general aviation aircraft” at that time, and GARA did not commence running until the helicopter was certified for civilian use, which was less than 18 years before the accident.

The Ninth Circuit reversed, holding that GARA applies to protect manufacturers of military-surplus helicopters, and commences to run when the “aircraft” was first delivered to the Navy (1970), even if it was not a “general aviation aircraft” at that time. The court recognized that this was a matter of strict statute interpretation, even though there was no supporting legislative history. The court held that the helicopter must be a “general aviation aircraft” at the time of the accident. Kennedy is significant, because military-surplus helicopters and their component parts are widely used in heli-logging and other helicopter operations in the Northwest, of which manufacturers may reap broad GARA protection in the years to come.

Another Washington case further interprets the breadth of GARA. Though the legislative history of GARA clearly reflects that it was enacted to protect U.S. manufacturers, Washington courts have extended GARA’s veil of protection to include foreign manufacturers. In LaHaye v. Galvin Flying Service, Inc.,9 the Ninth Circuit affirmed the Washington District Court in holding that GARA’s “general aviation aircraft” includes “any aircraft” for which the FAA has issued a type certificate or airworthiness certificate, regardless of the manufacturer’s country of residence. GARA does not limit itself to U.S. manufacturers, and therefore foreign manufacturers are protected.

Second, when a manufacturer originally builds aircraft for the United States, the government-contractor defense (GCD) may arise to shield the contractor from liability. The GCD is another defense somewhat unique to aviation that found its way to Olympia and the Washington State Supreme Court.

The GCD was solidified in the 1988 U.S. Supreme Court decision Boyle v. United Technologies, Inc.10 In a nutshell, the defense is an extension of sovereign immunity. It insulates contractors for design defects when they contract with the government to build products based upon government-approved specifications. One of the reasons cited for the doctrine is that courts should not be involved in reviewing discretionary policy decisions involving “the trade-off between greater safety for greater combat effectiveness.”11

Virtually all military helicopters were designed and manufactured pursuant to government contracts. Since the Vietnam War ended, thousands of these helicopters and millions of parts have been sold as surplus in the commercial market. Courts have generally held that even when government products end up in the civilian market, the GCD is still available.12

As set out by Justice Scalia in Boyle, the GCD contains the following elements:
 
Liability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.13

In addition to the common law GCD, Washington has a statutory-based government-contractor defense which is part of the WPLA. RCW 7.72.050(2) provides in relevant part:

When the injury-causing aspect of the product was, at the time of manufacture, in compliance with a specific mandatory government contract specification relating to design or warnings, this compliance shall be an absolute defense.

This provision gives aircraft manufacturers under government contracts additional protection for cases governed by Washington law. Yet, unlike most states, Washington has carved out an exception to both the Boyle GCD and WPLA defenses for claims of post-sale failure to warn.

Timberline Air Serv., Inc. v. Bell Helicopter-Textron, Inc.14 involved an action against the manufacturer of a military-surplus helicopter. When the dust cleared, the Washington State Supreme Court held that a claim for post-manufacture failure to warn is not covered by the common law GCD or statutory. The Court reasoned in part that complying with government-approved design specifications is one thing, yet failing to warn of dangers post-sale is another, especially when the government does not impose a contractual requirement for such warnings. Claimants need precise pleading in order to stay the course and avoid summary judgment.

Last, a third defense is one that is raised in nearly every helicopter accident case: pilot error. Of course, sometimes the defense is justified, such as when the pilot inadvertently allows the main rotor blade to contact trees or other obvious obstructions. A closer call arises when there is a complete engine failure and the pilot is left to land the helicopter safely. This is where helicopters may be more dangerous than fixed-wing aircraft, because helicopters cannot glide back to earth like airplanes. Their glide path is much steeper, giving them less available terrain to select for an emergency landing. When that occurs, assuming there is enough altitude and time, pilots will set up for an autorotation landing.

Autorotation occurs when the engine stops driving the main rotor blades yet the blades continue turning (windmilling) because of the passage of air. In other words, as the helicopter descends, the relative wind (which flows opposite to the direction of travel) pushes up through the rotor blades, causing them to continue to turn, which normally provides a desired increase in rotor RPM. When the helicopter is close to the ground, the pilot rapidly increases the main rotor-blade pitch angle (by collective control input), which substantially slows the helicopter’s rate of descent seconds before contacting the ground. This power-off flare procedure is challenging even to the best of pilots. Yet a worse situation arises when the free rotation of the main rotors is impeded for some reason, causing a loss of glide capability and the helicopter to fall to earth.

There is a dangerous flight envelope that helicopter pilots are well aware of, called the height velocity curve (sometimes referred to by the misnomer “dead man’s curve”). This refers to a curve contained on a graph in the pilot operating manual which depicts an airspeed/altitude relationship, below which, if an engine malfunction occurs, a safe landing by autorotation will be difficult or impossible because of the inability to sustain the requisite main rotor RPM. This regime of flight is not prohibited, just potentially dangerous.

When an accident occurs while a helicopter is flying within the height velocity curve, and the pilot does not perform a successful autorotation, defendants will claim pilot error by alleging that the pilot should not have flown in this zone of danger. What cannot be overlooked, however, is that helicopter manufacturers advertise and market their products’ utility while in flight regimes within the height velocity curve. Plaintiffs’ counsel can make a strong argument that a manufacturer should be estopped from arguing pilot error in this type of case, because the manufacturer uses the very same flight regime (inside the dead man’s curve) to market and sell their product. They also do not prohibit flight operations inside the curve.

Conclusion

As helicopter use continues to rise in Washington, more accidents are inevitable, because humans make mistakes — “humans” being manufacturers, pilots, mechanics, line persons, and air traffic controllers. Hopefully the national helicopter accident rate will come down to a level more on par with their fixed-wing counterpart. However, Washington courts will continue to decide challenging issues arising from helicopter accidents, which, fortunately, will be easier to handle than an emergency autorotation.  

Robert Hedrick practices law at Hedrick Smith PLLC in Seattle, where his practice  focuses on aviation accident litigation, wrongful death, and product liability. He is also a commercial pilot, aircraft mechanic, past skydiver and jump pilot, and adjunct professor at Seattle University where he teaches aviation accident law. He can be reached at hedrick@air-law.com or 206-464-1177.

NOTES
 1.  NTSB Report SEA01FA089.
 2.  Even if pilot input were causally related to the failure of the tail rotor system, that mechanical condition would likely violate the FARs. See generally 14 CFR 27.141, 27.151, 27.397, 27.683.
 3.  RCW Ch. 7.72.
 4.  RCW § 7.72.030(1).
 5.  RCW § 7.72.050(2) (emphasis added).
 6.  King Co. Sup. Ct. No. 02-2-14957-0SEA, April 23, 2004, Order on Plaintiff’s Motion for Summary Judgment.
 7.  49 U.S.C. § 40101.
 8.  283 F.3d 1107, (9th Cir., 2002, WA).
 9.  144 Fed.Appx. 631 (9th Cir. 2005 ,WA) (fixed-wing aircraft accident).
 10.  487 US 500 (1988).
 11.  Id. at 513.
 12.  See, e.g.,Glassco v. Miller Equip. Co, 966 F.2d 641(11th Cir. 1992); See also Timberline, infra, at 323-324. 
 13.  Id. at 512.
 14.  125 Wash.2d 305, 884 P.2d 920 (1994).