Crash of Flight 5191

Aviation law experts weigh in on potential lawsuits

Potential defendants in any wrongful-death lawsuit filed as a result of Sunday’s crash of Comair Flight 5191 include the airline and its parent company, Delta Air Lines, said attorneys who have represented victims and their families in air-crash litigation.

Less likely as defendants are the Federal Aviation Administration and the plane’s manufacturer, the attorneys said.

“We know that the airline has liability here,” because its crew took off from the wrong runway, said Michael Pangia, a Washington, D.C., lawyer, pilot and aviation-law expert.

“Whether there’s contributory negligence on the part of the airport and air traffic control remains to be seen, but they are potential defendants in any lawsuit.”

Because Delta Air Lines is in bankruptcy, a court would have to grant permission to file claims, said Frank Granito Jr., a New York aviation lawyer.

“When an airline or any entity is in bankruptcy court, claims against them are automatically stayed, and you have to get leave of the bankruptcy court in order to file actions,” Granito said.

Usually the plaintiffs must agree to limit claims to insurance proceeds and not go after airline assets.

“The amount of the insurance is usually more than adequate to cover all claims,” Granito said.

Granito said the airport is “not a very attractive defendant when you have the crew -- the survivor himself who was flying the plane -- take off on the wrong runway.”

Attorneys differed on whether the Federal Aviation Administration might be named in a lawsuit.

Stan Chesley of Cincinnati said it would be difficult to sue the FAA.

“That’s going to be a very tough case because courts have granted federal immunity to federal controllers unless there is something really out of the ordinary,” Chesley said.

Preliminary investigation has shown that the air traffic controller in the tower clearly directed the plane’s crew to the correct runway, Chesley said.

But while it is more difficult to sue the FAA, “they are not immune from suit,” said Robert Spragg of New York.

Spragg noted that the FAA now says it violated its own policy and was understaffed in the control tower.

That admission “may make the possibility of the Federal Aviation Administration being named as a defendant more likely,” Spragg said. “The question from a legal perspective is whether the fact that they only had one fellow in the control tower was causally related to the crash.”

Spragg said the plane’s manufacturer might be a potential defendant, although there is no evidence so far that there was an equipment malfunction.

“The only aspect that could potentially lead that way is a post-crash fire survivability issue with regard to the airframe and whether it was designed to permit a certain amount of time for the passengers to escape the aircraft without being overcome by lack of oxygen or a post-crash fire,” Spragg said.

The lawyers said potential payouts from litigation in this case could reach seven or eight figures per passenger.

Payouts depend upon factors such as a person’s income, how many children he or she supported and the victim’s potential lifetime earnings.

“It really varies,” Pangia said. “We’re talking about a very substantial sum of money here.”

Granito said airline companies “would just as soon see the case gets settled and the litigation go away. It’s the rare airline that wants to be defended into bankruptcy.”

The attorneys said they support state Attorney General Greg Stumbo’s warning yesterday that lawyers should not contact family members of the 49 people killed in the crash.

Citing the Aviation Disaster Family Assistance Act of 1996, Stumbo warned the legal community that grieving family members are protected from any unsolicited communication for 45 days after their loss.

There had been no reports of unsolicited contact, said a spokeswoman for the attorney general.

And the rules do not apply to contact initiated by victims’ family members.

“Unfortunately, the folks and colleagues in my profession are, I think, overly aggressive in this area,” Pangia said. “Right now, I think the families need comfort. They don’t need attorneys knocking on their door.”

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