Another GA lawsuite

[Kevin]

http://www.ntsb.gov/NTSB/brief.asp?ev_id=20001215X45423&key=1

NTSB Identification: NYC01FA040 . The docket is stored in the (offline)
NTSB Imaging System.
14 CFR Part 91: General Aviation
Accident occurred Sunday, November 26, 2000 in RIXFORD, PA
Probable Cause Approval Date: 11/14/01
Aircraft: Mooney M20K, registration: N252MW
Injuries: 3 Fatal.

The pilots family is suing the FAA for wrongful death. This report
clearly indicates the pilot was at fault. Inexperienced in IMC and flew
it into the ground. What am I missing here?

[James M. Knox]

Kevin > wrote in news:Dr2yb.253469$275.925372@attbi_s53:

> NTSB Identification: NYC01FA040 . The docket is stored in the (offline)
>
> The pilots family is suing the FAA for wrongful death. This report
> clearly indicates the pilot was at fault. Inexperienced in IMC and flew
> it into the ground. What am I missing here?

Probably the fact that the NTSB conclusions can not be admitted to court
for the lawsuit. So it's just a matter of what an attorney can convince
the jury of that *might* have happened. Doesn't have to prove that his
scenario DID happen, just that it might have.

-----------------------------------------------
James M. Knox
TriSoft ph 512-385-0316
1109-A Shady Lane fax 512-366-4331
Austin, Tx 78721
-----------------------------------------------

[Icebound]

James M. Knox wrote:
....
>
> Probably the fact that the NTSB conclusions can not be admitted to court
> for the lawsuit. ...

Does this mean, that to produce a complete defense, the FAA would have
to, in effect, re-create the NTSB investigation for the court???
Calling in the mechanical inspectors, controllers, ground witnesses,
etc., all over again???

[G.R. Patterson III]

Icebound wrote:
>
> Does this mean, that to produce a complete defense, the FAA would have
> to, in effect, re-create the NTSB investigation for the court???
> Calling in the mechanical inspectors, controllers, ground witnesses,
> etc., all over again???

Yep. And the judge might rule some of that testimony inadmissible.

George Patterson
Some people think they hear a call to the priesthood when what they really
hear is a tiny voice whispering "It's indoor work with no heavy lifting".

[Larry Smith]

"James M. Knox" > wrote in message
...
> Kevin > wrote in news:Dr2yb.253469$275.925372@attbi_s53:
>
> > NTSB Identification: NYC01FA040 . The docket is stored in the (offline)
> >
> > The pilots family is suing the FAA for wrongful death. This report
> > clearly indicates the pilot was at fault. Inexperienced in IMC and flew
> > it into the ground. What am I missing here?
>
> Probably the fact that the NTSB conclusions can not be admitted to court
> for the lawsuit. So it's just a matter of what an attorney can convince
> the jury of that *might* have happened.

Not true. Provided the judge allows such a case to go to the jury, the
jury must be convinced by the greater weight of the evidence that the
defendant owed a specific duty of care to the plaintiff, that the duty was
breached, and that the breach proximately caused the plaintiff's damages.


Doesn't have to prove that his
> scenario DID happen, just that it might have.

This is a misstatement of the law. It is misleading. "Might" have could
mean a 1 in 3 chance, which is insufficient to get the case to the jury.

>
> -----------------------------------------------
> James M. Knox
> TriSoft ph 512-385-0316
> 1109-A Shady Lane fax 512-366-4331
> Austin, Tx 78721
> -----------------------------------------------

[Larry Smith]

"Icebound" > wrote in message
le.rogers.com...
> James M. Knox wrote:
> ...
> >
> > Probably the fact that the NTSB conclusions can not be admitted to court
> > for the lawsuit. ...
>
> Does this mean, that to produce a complete defense, the FAA would have
> to, in effect, re-create the NTSB investigation for the court???
> Calling in the mechanical inspectors, controllers, ground witnesses,
> etc., all over again???

A highway patrolman's motor vehicle accident report is not admissible in
court. Except insofar as he is a witness, his report is mostly a document
containing hearsay. Are you suggesting that hearsay be admitted in court?

[Larry Smith]

"G.R. Patterson III" > wrote in message
...
>
>
> Icebound wrote:
> >
> > Does this mean, that to produce a complete defense, the FAA would have
> > to, in effect, re-create the NTSB investigation for the court???
> > Calling in the mechanical inspectors, controllers, ground witnesses,
> > etc., all over again???
>
> Yep. And the judge might rule some of that testimony inadmissible.

How so, and what testimony do you foresee as inadmissible?

>
> George Patterson
> Some people think they hear a call to the priesthood when what they
really
> hear is a tiny voice whispering "It's indoor work with no heavy
lifting".

[Mike Granby]

"Larry Smith" > wrote:

> "Might" have could mean a 1 in 3 chance, which
> is insufficient to get the case to the jury.

I'm puzzled by this statement. As I understand it, the burden of proof for
civil cases is the balance of probabilities, so if there's better than a 1
in 2 chance that things are as the plaintiff claims, then his case is made.
But you appear to be saying that a similar test will be applied to establish
whether the case would even come before a jury, which seems a awfully high
hurdle for a civil case. I know that some criminal cases have to meet this
test in preliminary hearings, but that makes sense, as the burden of proof
in the case is much higher ie. beyond a reasonable doubt. I thought you
could only get a civil case struck out (and thereby prevent it coming before
the jury) if you could show that the case has no chance of succeeding even
if all the facts fall so as to favor the plaintiff? I'm not a lawyer, so I
could easily be 100% wrong here, but I'd welcome some clarification so I
might better understand the procedures involved.

--
Mike Granby, PP-ASEL,IA
Warrior N44578
http://www.mikeg.net/plane

[Brian Sponcil]

Are we sure the family is suing the FAA? It's hard to believe since the
Federal Govt typically hides from lawsuits under qualified immunity or some
such principle.

My guess is this case will be thrown out in a summary judgement.

-Brian
N33431
Iowa City, IA

"Icebound" > wrote in message
le.rogers.com...
> James M. Knox wrote:
> ...
> >
> > Probably the fact that the NTSB conclusions can not be admitted to court
> > for the lawsuit. ...
>
> Does this mean, that to produce a complete defense, the FAA would have
> to, in effect, re-create the NTSB investigation for the court???
> Calling in the mechanical inspectors, controllers, ground witnesses,
> etc., all over again???
>

[Peter Gottlieb]

"Kevin" > wrote in message
news:Dr2yb.253469$275.925372@attbi_s53...
> The pilots family is suing the FAA for wrongful death. This report
> clearly indicates the pilot was at fault. Inexperienced in IMC and flew
> it into the ground. What am I missing here?


$$$$$

[Peter Gottlieb]

"Larry Smith" > wrote in message
...
> A highway patrolman's motor vehicle accident report is not admissible in
> court. Except insofar as he is a witness, his report is mostly a
document
> containing hearsay. Are you suggesting that hearsay be admitted in
court?


A rigorous NTSB investigation is very different from a highway patrolman's
report.

[Greg Esres]

<<FAA would have to, in effect, re-create the NTSB investigation for
the court??? >>

NTSB factual statements are admissible; conclusions are not.
(According to NTSB people.)

[R. Hubbell]

On Sat, 29 Nov 2003 14:55:31 GMT
Kevin > wrote:

> http://www.ntsb.gov/NTSB/brief.asp?ev_id=20001215X45423&key=1
>
> NTSB Identification: NYC01FA040 . The docket is stored in the (offline)
> NTSB Imaging System.
> 14 CFR Part 91: General Aviation
> Accident occurred Sunday, November 26, 2000 in RIXFORD, PA
> Probable Cause Approval Date: 11/14/01
> Aircraft: Mooney M20K, registration: N252MW
> Injuries: 3 Fatal.
>
> The pilots family is suing the FAA for wrongful death. This report
> clearly indicates the pilot was at fault. Inexperienced in IMC and flew
> it into the ground. What am I missing here?
>


You're forgetting that if it goes to trial they can win. A jury will
see the big bad FAA and the grieving family. Who says you can't put a
price on human lifes?



R. Hubbell

[Jeff]

man, this flight should not have happened at all. They say that usually
accidents are caused by multiple things going wrong and not just one thing.

This guy only had like 40 hours of solo time, the rest were instruction.

here is an article written about him from the owner of his flight school
http://www.landings.com/_landings/forums/sf/article3.html



Kevin wrote:

> http://www.ntsb.gov/NTSB/brief.asp?ev_id=20001215X45423&key=1
>
> NTSB Identification: NYC01FA040 . The docket is stored in the (offline)
> NTSB Imaging System.
> 14 CFR Part 91: General Aviation
> Accident occurred Sunday, November 26, 2000 in RIXFORD, PA
> Probable Cause Approval Date: 11/14/01
> Aircraft: Mooney M20K, registration: N252MW
> Injuries: 3 Fatal.
>
> The pilots family is suing the FAA for wrongful death. This report
> clearly indicates the pilot was at fault. Inexperienced in IMC and flew
> it into the ground. What am I missing here?

[Jeff]

I just had to quote this from the owner of his flight school

"This instructor reported back to me later that Pete had no business in
this airplane, that he was "way behind the airplane." The situation soon
went beyond our control to correct it however when Pete went and took an
accelerated, guaranteed instrument course elsewhere. I believe he finished
this "Crash" course in mid November, just in time to take his wife and
their 13 year old son on a family Thanksgiving Trip to Pennsylvania. I
guess the moral of this story is that flight instructors have a
responsibility to aviation and the people in it, and this responsibility is
not to get your hours as fast as you can for your big airplane job, or to
sell a well off student more airplane than he can handle so that you can
get a nice commission check"


Kevin wrote:

> http://www.ntsb.gov/NTSB/brief.asp?ev_id=20001215X45423&key=1
>
> NTSB Identification: NYC01FA040 . The docket is stored in the (offline)
> NTSB Imaging System.
> 14 CFR Part 91: General Aviation
> Accident occurred Sunday, November 26, 2000 in RIXFORD, PA
> Probable Cause Approval Date: 11/14/01
> Aircraft: Mooney M20K, registration: N252MW
> Injuries: 3 Fatal.
>
> The pilots family is suing the FAA for wrongful death. This report
> clearly indicates the pilot was at fault. Inexperienced in IMC and flew
> it into the ground. What am I missing here?

[Larry Smith]

"Mike Granby" > wrote in message
...
> "Larry Smith" > wrote:
>
> > "Might" have could mean a 1 in 3 chance, which
> > is insufficient to get the case to the jury.
>
> I'm puzzled by this statement. As I understand it, the burden of proof for
> civil cases is the balance of probabilities,

Correct. Proof by the greater weight of the evidence, or a preponderance of
the evidence, or by tipping the scales in favor of the plaintiff.

so if there's better than a 1
> in 2 chance that things are as the plaintiff claims, then his case is
made.
> But you appear to be saying that a similar test will be applied to
establish
> whether the case would even come before a jury, which seems a awfully high
> hurdle for a civil case.

Usually judges let even flimsy cases go to the jury but if the plaintiff is
playing with 33% of the marbles and the defendant has 67%, the judge will
step in and dismiss sooner or later. That's my experience, even though the
judge waits until ALL the evidence is in, or even until after a verdict for
the plaintiff.

The rule, at the end of the plaintiff's evidence and upon motion to dismiss
by the defendant, is that if the plaintiff has failed to show evidence of
each of the elements of his case, he is subject to dismissal. The court,
if it finds by considering the evidence in the light most favorable to the
plaintiff that the plaintiff has failed to establish he is entitled to
relief, may enter an order of dismissal against the plaintiff.

So let's assume that each of the plaintiff's witnesses testifies that X
could have occurred or might have occurred, instead of saying that it in
fact DID occur, you won't get THAT to the jury.

I know that some criminal cases have to meet this
> test in preliminary hearings, but that makes sense, as the burden of proof
> in the case is much higher ie. beyond a reasonable doubt. I thought you
> could only get a civil case struck out (and thereby prevent it coming
before
> the jury) if you could show that the case has no chance of succeeding even
> if all the facts fall so as to favor the plaintiff?

The point is that a plaintiff must affirmatively produce evidence to support
his allegations sounding in tort against the FAA by competent evidence.
When a judge dismisses at the end of the plaintiff's evidence, and he does
it quite often in my neck of the woods, it's not only because the
plaintiff's case has suffered a fatal flaw in an element of proof but also
because his evidence preponderates against a verdict any jury might award
him.

There are a whole battery of motions a plaintiff must withstand before he
collects, and his case had better be better than "might have occurred" or he
ain't going to collect. This law isn't so much written in the books as it
is in the history of lawyering.

>I'm not a lawyer,
I'm not either. I quit practicing some time ago. But I tried quite a few
jury cases in civil and criminal courts, and it's not like rolling dice or
showing that a state of facts may have existed.

so I
> could easily be 100% wrong here, but I'd welcome some clarification so I
> might better understand the procedures involved.
I believe you have a good grasp of what it takes to get past an order of
dismissal and get the case to the jury. Plus you have a good grasp of the
difference in the burden of proof in a civil case and a criminal case.
> --
> Mike Granby, PP-ASEL,IA
> Warrior N44578
> http://www.mikeg.net/plane
>
>

[Larry Smith]

"Peter Gottlieb" > wrote in message
et...
>
> "Larry Smith" > wrote in message
> ...
> > A highway patrolman's motor vehicle accident report is not admissible in
> > court. Except insofar as he is a witness, his report is mostly a
> document
> > containing hearsay. Are you suggesting that hearsay be admitted in
> court?
>
>
> A rigorous NTSB investigation is very different from a highway patrolman's
> report.

Still not admissible because it is almost all hearsay.

[Larry Smith]

"Brian Sponcil" > wrote in message
...
>
> Are we sure the family is suing the FAA? It's hard to believe since the
> Federal Govt typically hides from lawsuits under qualified immunity or
some
> such principle.
>
> My guess is this case will be thrown out in a summary judgement.

That would be my guess too, or he could wait until the plaintiff rests his
case.

>
> -Brian
> N33431
> Iowa City, IA
>
> "Icebound" > wrote in message
> le.rogers.com...
> > James M. Knox wrote:
> > ...
> > >
> > > Probably the fact that the NTSB conclusions can not be admitted to
court
> > > for the lawsuit. ...
> >
> > Does this mean, that to produce a complete defense, the FAA would have
> > to, in effect, re-create the NTSB investigation for the court???
> > Calling in the mechanical inspectors, controllers, ground witnesses,
> > etc., all over again???
> >
>
>

[Tom S.]

Interestingly, the NTSB report said "he handled the plane well", but
Crawford said "This instructor reported back to me later that Pete had no
business in this airplane, that he was "way behind the airplane."

"Jeff" > wrote in message
...
man, this flight should not have happened at all. They say that usually
accidents are caused by multiple things going wrong and not just one thing.
This guy only had like 40 hours of solo time, the rest were instruction.
here is an article written about him from the owner of his flight school
http://www.landings.com/_landings/forums/sf/article3.html


Kevin wrote:
http://www.ntsb.gov/NTSB/brief.asp?ev_id=20001215X45423&key=1
NTSB Identification: NYC01FA040 . The docket is stored in the (offline)
NTSB Imaging System.
14 CFR Part 91: General Aviation
Accident occurred Sunday, November 26, 2000 in RIXFORD, PA
Probable Cause Approval Date: 11/14/01
Aircraft: Mooney M20K, registration: N252MW
Injuries: 3 Fatal.
The pilots family is suing the FAA for wrongful death. This report
clearly indicates the pilot was at fault. Inexperienced in IMC and flew
it into the ground. What am I missing here?

[Kevin]

Jeff wrote:
> I just had to quote this from the owner of his flight school
>
> "This instructor reported back to me later that Pete had no business in
> this airplane, that he was "way behind the airplane." The situation soon
> went beyond our control to correct it however when Pete went and took an
> accelerated, guaranteed instrument course elsewhere. I believe he
> finished this "Crash" course in mid November, just in time to take his
> wife and their 13 year old son on a family Thanksgiving Trip to
> Pennsylvania. I guess the moral of this story is that flight instructors
> have a responsibility to aviation and the people in it, and this
> responsibility is not to get your hours as fast as you can for your big
> airplane job, or to sell a well off student more airplane than he can
> handle so that you can get a nice commission check"
>
>
> Kevin wrote:
>
>> http://www.ntsb.gov/NTSB/brief.asp?ev_id=20001215X45423&key=1
>> <http://www.ntsb.gov/NTSB/brief.asp?ev_id=20001215X45423&key=1>
>>
>> NTSB Identification: NYC01FA040 . The docket is stored in the (offline)
>> NTSB Imaging System.
>> 14 CFR Part 91: General Aviation
>> Accident occurred Sunday, November 26, 2000 in RIXFORD, PA
>> Probable Cause Approval Date: 11/14/01
>> Aircraft: Mooney M20K, registration: N252MW
>> Injuries: 3 Fatal.
>>
>> The pilots family is suing the FAA for wrongful death. This report
>> clearly indicates the pilot was at fault. Inexperienced in IMC and flew
>> it into the ground. What am I missing here?
>>

A classic example of:

Just because you can buy it, doesn't mean you can fly it.

[smackey]

"James M. Knox" > wrote in message >...

.... So it's just a matter of what an attorney can convince
> the jury of that *might* have happened. Doesn't have to prove that his
> scenario DID happen, just that it might have.
>
>
Actually, proving that it "might have happened" won't do. He has to
prove "by a preponderance of the evidence that it is more likely than
not" that it did happen.

[smackey]

Icebound > wrote in message gers.com>...
> James M. Knox wrote:
> ...
> >
> > Probably the fact that the NTSB conclusions can not be admitted to court
> > for the lawsuit. ...
>
> Does this mean, that to produce a complete defense, the FAA would have
> to, in effect, re-create the NTSB investigation for the court???
> Calling in the mechanical inspectors, controllers, ground witnesses,
> etc., all over again???

Essentially, yes; where the investigators, witnesses, etc can be cross
examined, and their conclusions examined under stricter standards.

[Peter Gottlieb]

"Kevin" > wrote in message
news:heayb.257013$275.934649@attbi_s53...
> A classic example of:
>
> Just because you can buy it, doesn't mean you can fly it.
>

Happens with automobiles also. Around here a lot of people roll SUVs
because they think the "sport" means it's a sports car.

[Peter Gottlieb]

"Larry Smith" > wrote in message
...
> Still not admissible because it is almost all hearsay.

Radar and radio records, training records, mechanical engineering analysis
of the wreckage. All heresay?

[Larry Smith]

"Peter Gottlieb" > wrote in message
et...
>
> "Larry Smith" > wrote in message
> ...
> > Still not admissible because it is almost all hearsay.
>
> Radar and radio records, training records, mechanical engineering analysis
> of the wreckage. All heresay?

They would be hearsay if not properly qualified as evidence. The reason
for the hearsay rule is to require examination of evidence in the crucible
of the adversary process. It avoids prejudice. If a document reciting
certain allegations is put into the record for the jury to consider as truth
of the matters recited therein, then the opposing side doesn't have much of
a chance to cross-examine the document, now does it? And that wouldn't be
fair to the opposing party.

OTOH, there are exceptions to the hearsay rule. Radar and radio records
could probably be put into evidence by the proper testifying custodian,
after he duly qualifies himself and the record.

An engineering analysis cannot be entered into the record simply by the
attorney who wants it entered saying, "We offer into evidence Plaintiff's
exhibit number 81. It must be duly authenticated and qualified in
accordance with the law of the jurisdiction.

Now let me ask you something. Let's say that engineering report is damning
to the Plaintiff's case, or to the Defendant's case for that matter.
Wouldn't it be better for the engineer who made that report be present,
sworn and examined before the jury, so that both sides can examine and
cross-examine him firsthand? Of course, the document can also be entered
into evidence and shown to the jury as corroborative of the engineer's
testimony.

I never tried an aircraft crash case, but did try quite a few auto accident
cases. The highway patrolman is one of your best witnesses because he
measures tire tracks, makes photographs, and is usually articulate about
injury to victims and damage to the motor vehicles. He can sometimes
recite what was told him by victims or witnesses at the scene, especially if
they show up at court and testify to something entirely different from what
they told him, or what he has observed. He is a particularly eloquent
witness if the defendant motorist happened to have been just about
knee-walking drunk.

So basically the hearsay rule makes the testimony of an out-of-court
declarant inadmissible when it is offered to prove the truth of the matters
stated therein. The rule is old and time-honored. Much of our tort law
and rules of evidence in the USA are older than the nation. They go back
to the common law of England.

[Mike Granby]

"Larry Smith" > wrote:

> [Much interesting stuff]

Thanks for this, Larry. One final question... When you talk about the judge
dismissing at the end of the plaintiff's case, is this in front of the jury?
Or is there some preliminary hearing first? I was reading your "getting to
the jury" as referring to presenting the case (or part thereof) to a jury,
whereas rereading it, it could also mean getting to the jury for
consideration.

--
Mike Granby, PP-ASEL,IA
Warrior N44578
http://www.mikeg.net/plane

[Peter Gottlieb]

"Larry Smith" > wrote in message
...
> They would be hearsay if not properly qualified as evidence. The reason
> for the hearsay rule is to require examination of evidence in the crucible
> of the adversary process. It avoids prejudice. If a document reciting
> certain allegations is put into the record for the jury to consider as
truth
> of the matters recited therein, then the opposing side doesn't have much
of
> a chance to cross-examine the document, now does it?

Aha. Now I see what you're getting at. Now it makes sense.

> So basically the hearsay rule makes the testimony of an out-of-court
> declarant inadmissible when it is offered to prove the truth of the
matters
> stated therein. The rule is old and time-honored. Much of our tort law
> and rules of evidence in the USA are older than the nation. They go back
> to the common law of England.

Your explanation cleared up my confusion and taught me a few things.
Thanks!

[G.R. Patterson III]

Larry Smith wrote:
>
> How so, and what testimony do you foresee as inadmissible?

For example, there was a fairly famous suit against Piper. IFRC, Wouk was the
plaintiff's attorney. The pilot lost it somehow during an instrument approach.
The plane caught fire and the occupants who survived the crash (if any) burned
to death. Wouk argued that there was some sort of fuel problem that caused an
engine fire that caused the crash. The evidence used by the NTSB to determine
that the fire occurred *after* the crash was deemed inadmissible because it
was produced by Lycoming investigators who were "prejudiced".

The same judge ruled that a fictional videotape of all the people frying before
the crash was rule admissible, however. You can guess where *I* think the
prejudice lay in that case.

George Patterson
Some people think they hear a call to the priesthood when what they really
hear is a tiny voice whispering "It's indoor work with no heavy lifting".

[Gene Kearns]

On Sun, 30 Nov 2003 00:00:42 GMT, "Peter Gottlieb"
> wrote:

>
>"Larry Smith" > wrote in message
...
>> Still not admissible because it is almost all hearsay.
>
>Radar and radio records, training records, mechanical engineering analysis
>of the wreckage. All heresay?
>

Peter.... although I am in your corner on this. In a court of law,
nearly anything can become inadmissible or tainted in some way. A
clever attorney could make Bob Hoover (possibly called as an expert
witness) look like he *really* knew nothing about flying.

Remember that *truth* and *logic* aren't on trial.... what can be
*proved* is. If you have never sat on a jury in an important case,
you should know that one job of the attorneys is to keep you ignorant
of all of the facts in the case... all legal and with a history
centuries old.

"The biggest joke is a jury of your peers...." which will NOT be
populated by a single pilot, A&P, dispatcher, anybody else that has
ever touched an airplane in any way.

Sickening..... but typical of the American justice system....

[Kevin]

Gene Kearns wrote:
> On Sun, 30 Nov 2003 00:00:42 GMT, "Peter Gottlieb"
> > wrote:
>
>
>>"Larry Smith" > wrote in message
...
>>
>>>Still not admissible because it is almost all hearsay.
>>
>>Radar and radio records, training records, mechanical engineering analysis
>>of the wreckage. All heresay?
>>
>
>
> Peter.... although I am in your corner on this. In a court of law,
> nearly anything can become inadmissible or tainted in some way. A
> clever attorney could make Bob Hoover (possibly called as an expert
> witness) look like he *really* knew nothing about flying.
>
> Remember that *truth* and *logic* aren't on trial.... what can be
> *proved* is. If you have never sat on a jury in an important case,
> you should know that one job of the attorneys is to keep you ignorant
> of all of the facts in the case... all legal and with a history
> centuries old.
>
> "The biggest joke is a jury of your peers...." which will NOT be
> populated by a single pilot, A&P, dispatcher, anybody else that has
> ever touched an airplane in any way.
>
> Sickening..... but typical of the American justice system....

Yes, you can bet any one in the jury pool who was a pilot would be
unacceptable to the plaintiff's atty , and would be excused.

[Larry Smith]

"Mike Granby" > wrote in message
...
> "Larry Smith" > wrote:
>
> > [Much interesting stuff]
>
> Thanks for this, Larry. One final question... When you talk about the
judge
> dismissing at the end of the plaintiff's case, is this in front of the
jury?

No, the judge tells the jury they have some nonjury business and has the
bailiff escort them back to the jury room. The idea is not to have the 12
hear the attorneys wrangling. Argument gets hot at this time, and then the
judge must rule. If he rules for the plaintiff while the jury watches, it
would be arguably prejudicial to the defendant.

> Or is there some preliminary hearing first?

It's usually a 5-minute thing, in which the moving attorney makes his
motion, states his reasons, then the other attorney stands on his hind legs,
thumps on a lawbook, and howls a rebuttal. The judge will then ask a few
questions, then more howling from both sides, then he rules. Sometimes if
it's not even close, the judge calls the attorneys to the bench for a
"sidebar" and tells the defense counsel he thinks there's enough there for
the case to get by the motion to dismiss. He then whispers to the clerk
that the motion was made, denied, exception to the defendant, in order to
protect defendant's record on appeal -- then the jury are escorted back into
the box.

I have had jurors come up to me after a case was over with and ask what all
the fuss was about during motion time when they were confined in the jury
room.

I was reading your "getting to
> the jury" as referring to presenting the case (or part thereof) to a jury,
> whereas rereading it, it could also mean getting to the jury for
> consideration.
>
> --
> Mike Granby, PP-ASEL,IA
> Warrior N44578
> http://www.mikeg.net/plane
>
>

[Mike Spera]

I would say the instructor's "responsibility" is to assess your
capabilities and report them to you and write them in your syllabus
and/or logbook. If you are stupid enough to ignore that assessment and
take chances with you life and the lives of others, it is YOU that
should be held responsible. Not the instructors, not the FAA, not the
NTSB, not the airplane manufacturer, not the flight school, etc.

The problem with our society is that the legal system has been allowed
to mutate to a point where personal responsibility is no longer a
consideration. My thanks to the attorney who is educating us all on the
letter of the law. However, I cannot help wondering if there is some
missing "check and balance" that would make it less attractive for a
plaintiff (and their esteemed attorney) to roll the "lottery" dice.

The English system of "loser pays" might ratchet up the stakes a bit for
all the ambulance chasers and greedy plaintiff/family members.

Good Luck,
Mike

Jeff wrote:
> I just had to quote this from the owner of his flight school
>
> "This instructor reported back to me later that Pete had no business in
> this airplane, that he was "way behind the airplane." The situation soon
> went beyond our control to correct it however when Pete went and took an
> accelerated, guaranteed instrument course elsewhere. I believe he
> finished this "Crash" course in mid November, just in time to take his
> wife and their 13 year old son on a family Thanksgiving Trip to
> Pennsylvania. I guess the moral of this story is that flight instructors
> have a responsibility to aviation and the people in it, and this
> responsibility is not to get your hours as fast as you can for your big
> airplane job, or to sell a well off student more airplane than he can
> handle so that you can get a nice commission check"
>
>
> Kevin wrote:
>
>> http://www.ntsb.gov/NTSB/brief.asp?ev_id=20001215X45423&key=1
>> <http://www.ntsb.gov/NTSB/brief.asp?ev_id=20001215X45423&key=1>
>>
>> NTSB Identification: NYC01FA040 . The docket is stored in the (offline)
>> NTSB Imaging System.
>> 14 CFR Part 91: General Aviation
>> Accident occurred Sunday, November 26, 2000 in RIXFORD, PA
>> Probable Cause Approval Date: 11/14/01
>> Aircraft: Mooney M20K, registration: N252MW
>> Injuries: 3 Fatal.
>>
>> The pilots family is suing the FAA for wrongful death. This report
>> clearly indicates the pilot was at fault. Inexperienced in IMC and flew
>> it into the ground. What am I missing here?
>>


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[FF]

"Peter Gottlieb" > wrote in message
et...
>
> "Larry Smith" > wrote in message
> ...
> > A highway patrolman's motor vehicle accident report is not
admissible in
> > court. Except insofar as he is a witness, his report is mostly a
document
> > containing hearsay. Are you suggesting that hearsay be admitted
in
> > court?
>
> A rigorous NTSB investigation is very different from a highway
patrolman's
> report.

I can't agree they're rigorous at all, where it involves GA crashes
and occupants who are not famous or important. I've observed the
on-scene work in two fatal cases, and in one case I had dinner at a
Holiday Inn with the investigators -- I was a not-too-useful witness,
and we we all from out of town. They need only probable cause and can
call it they see it from the basic facts with a few hours work at the
site and in talking to various people, pending only toxicology
results. Here, two investigators arriving at 1:00PM, talked to a
dozen people, examined wreckage, and tentative conclusion by dinner
time. Also, they weren't NTSB people, but FAA FSDO working under
delegation.

They seemed very good at what they do, but I don't think you'd want
them as defense witnesses. Better to hire experts and investigators to
spend the time to do a thorough job, arriving at a conclusion from
other than first impression.

Fred F.

[C J Campbell]

"Kevin" > wrote in message
news:Dr2yb.253469$275.925372@attbi_s53...
|
| The pilots family is suing the FAA for wrongful death. This report
| clearly indicates the pilot was at fault. Inexperienced in IMC and flew
| it into the ground. What am I missing here?
|

The plaintiff does not always expect to win. Frequently the plaintiff sues,
hoping that the high cost of defense will force the defendant to settle. On
the other hand, if the suit does go to trial, the plaintiff can rely on a
legal system that weights the rules of evidence very heavily against the
defendant and chooses jurors based on their ignorance and gullibility.

Then you hear lawyers, judges, etc., bemoaning the fact that there is no
respect for the law any more, forgetting that people will only respect the
respectable.

[James M. Knox]

(smackey) wrote in
m:

> ... So it's just a matter of what an attorney can convince
>> the jury of that *might* have happened. Doesn't have to prove that
>> his scenario DID happen, just that it might have.
>>
> Actually, proving that it "might have happened" won't do. He has to
> prove "by a preponderance of the evidence that it is more likely than
> not" that it did happen.

That's certainly the legal rule. But the (admittedly non-official)
summaries of the Piper crash someone else brought up earlier in this
thread was just that. The attorney for the family actually produced a
number of scenarios that he said "might have happened."

There were lots of potential scenarios presented where some equipment
problem or poor ergonomic aircraft design might have contributed to the
crash. There was basically only one where the pilot was at fault (i.e.
he just screwed up and got below the glideslope). There was no evidence
PROVING any of them, for either side, given the post-impact fire. So
essentially the case was awarded on percentages - $145 million against
Piper (although I am sure it came down on appeal). Basically did in
Piper (who was self insured at the time, and led to "The New Piper
Aircraft" corporation.

-----------------------------------------------
James M. Knox
TriSoft ph 512-385-0316
1109-A Shady Lane fax 512-366-4331
Austin, Tx 78721
-----------------------------------------------

[Mike Granby]

Again, thanks, Larry, for taking the time to explain this.

--
Mike Granby, PP-ASEL,IA
Warrior N44578
http://www.mikeg.net/plane

[Matthew P. Cummings]

On Sat, 29 Nov 2003 14:55:31 +0000, Kevin wrote:

> The pilots family is suing the FAA for wrongful death. This report
> clearly indicates the pilot was at fault. Inexperienced in IMC and flew
> it into the ground. What am I missing here?

Nothing, just stupidity. It's like the idiot who landed on a closed
runway at MBY and did $20K damage to his plane and decided to sue the city
since they didn't mark it, or put out notams.

Both were done of course, but stupidity knows no limits...

[Larry Smith]

"Mike Granby" > wrote in message
...
> Again, thanks, Larry, for taking the time to explain this.
>
> --
> Mike Granby, PP-ASEL,IA
> Warrior N44578
> http://www.mikeg.net/plane
>
>

Thank *you*, Mike, for the opportunity to respond, and for your splendid
courtesy.

[smackey]

"Larry Smith" > wrote in message >...
....
> >> Usually judges let even flimsy cases go to the jury but if the plaintiff is
> playing with 33% of the marbles and the defendant has 67%, the judge will
> step in and dismiss sooner or later. That's my experience, even though the
> judge waits until ALL the evidence is in, or even until after a verdict for
> the plaintiff.
>
As a practicing plaintiff's lawyer, I appreciate your "defense" of
the plaintiff's burden of proof. However, to be fair, in real life
the judges are loath to dismiss a case once the trial begins. Even if
the plaintiff has 33% of the marbles and the defendant has 67%, the
judge will (in fact, should) let the case go to the jury. That is why
we try cases to juries, rather than just judges. Although the judge
can reject a jury's verdict, it is EXTREMELY rare,at least on
liability. Although it happens, it is virtually anecdotal.


> The rule, at the end of the plaintiff's evidence and upon motion to dismiss
> by the defendant, is that if the plaintiff has failed to show evidence of
> each of the elements of his case, he is subject to dismissal.

If this were the case, it would already have been dismissed at the
summary judgement stage (ie, "thrown out of court").

The court, if it finds by considering the evidence in the light most
favorable to the plaintiff that the plaintiff has failed to establish
he is entitled to relief, may enter an order of dismissal against the
plaintiff.
So let's assume that each of the plaintiff's witnesses testifies that
X
> could have occurred or might have occurred, instead of saying that it in
> fact DID occur, you won't get THAT to the jury.

I agree that the plaintiff's witnesses can't win the day by saying
that it "could have" or "might have" occured this way. However, they
need only say that it "more probably than not" happened this way.
They do not need to say that it "did" happen this way.
>
> I know that some criminal cases have to meet this
> > test in preliminary hearings, but that makes sense, as the burden of proof
> > in the case is much higher ie. beyond a reasonable doubt. I thought you
> > could only get a civil case struck out (and thereby prevent it coming
> before
> > the jury) if you could show that the case has no chance of succeeding even
> > if all the facts fall so as to favor the plaintiff?
>
> The point is that a plaintiff must affirmatively produce evidence to support
> his allegations sounding in tort against the FAA by competent evidence.
> When a judge dismisses at the end of the plaintiff's evidence, and he does
> it quite often in my neck of the woods, it's not only because the
> plaintiff's case has suffered a fatal flaw in an element of proof but also
> because his evidence preponderates against a verdict any jury might award
> him.
>
I agree 100%.

> There are a whole battery of motions a plaintiff must withstand before he
> collects, and his case had better be better than "might have occurred" or he
> ain't going to collect. This law isn't so much written in the books as it
> is in the history of lawyering.

Again, I agree 100%.
>
> >I'm not a lawyer,
> I'm not either. I quit practicing some time ago. But I tried quite a few
> jury cases in civil and criminal courts, and it's not like rolling dice or
> showing that a state of facts may have existed.
>
> so I
> > could easily be 100% wrong here, but I'd welcome some clarification so I
> > might better understand the procedures involved.
> I believe you have a good grasp of what it takes to get past an order of
> dismissal and get the case to the jury. Plus you have a good grasp of the
> difference in the burden of proof in a civil case and a criminal case.
> > --
> > Mike Granby, PP-ASEL,IA
> > Warrior N44578
> > http://www.mikeg.net/plane
> >
> >