Larry Dighera
June 20th 08, 07:40 PM
Here's a timely story about piloting and the law. While I might
disagree with some of the FSDO Inspector's conclusions, there seems to
be little doubt that the pilot made a fatal mistake in failing to
realize the substantial and unreasonable risk of death or great bodily
harm flying low over the river created.. That said, you can bet the
DA wasn't offering a plea bargain because he believed a conviction was
assured.
http://www.aopa.org/members/files/pilot/2008/accident0807.html
July 2008 Volume 51 / Number 7
After the Accident
From ultimate freedom to incarceration
By Dave Hirschman
...
This year, Strub became the first U.S. pilot jailed for a domestic
aircraft accident. He pleaded guilty to reduced charges of
negligent operation of a motor vehicle and disorderly conduct and
was sentenced to 30 days in jail, 150 days home confinement,
fines, court costs, and two years probation during which he won’t
be allowed to fly. ...
FAR 91.119 places no limit on how low pilots are allowed to fly
over sparsely populated areas or open water, as long as they stay
at least 500 feet from any persons or vessels and can glide to a
landing in case of engine failure without “undue hazard to persons
or property on the surface.”
An FAA investigator later cited Strub for “careless and reckless”
flying, defining the river as a “congested area,” and said Strub
violated minimum safe altitude rules that require pilots to fly at
least 1,000 feet above or 2,000 feet horizontal distance from
obstacles. Strub said he believed at the time of the accident he
was flying over a portion of the river that was free of hazards.
...
Strub was charged with vehicular homicide, a felony that carries a
maximum sentence of 10 years in prison. ...
To convict, a jury would have to find Strub had acted “with intent
to cause damage,” or that injury or death “would probably result”
from his actions. Strub believed he could show that the crash was
purely accidental, and that he never would have flown low over the
river if he thought he was putting his passenger, his airplane, or
himself, in jeopardy. ...
Here's a link to copy of the Criminal Complaint filed against the
pilot (and excerpts thereof):
http://www.wisconsinrapidstribune.com/assets/pdf/U059422129.PDF
Criminal Complaint
Count 1: HOMICIDE BY NEGLIGENT OPERATION OF AN AIRPLANE
The above-named defendant on or about Saturday, August 28, 2004,
in the Village of Port Edwards, Wood County, Wisconsin, did cause
the death of Kimberly Reed by the negligent operation or handling
of an airplane, contrary to sec. 940.10(1), 939.50(3)(g) Wis.
Stats....
Strub states that while flying along the River at a low
altitude because he believed he could do so, he saw some power
lines across the River. He attempted to pull the plane up but was
unsuccessful and struck the lines causing the plane to crash into
the River. Strub stated that after freeing himself, he went to
Reed but could not free her because the top of the wing had
collapsed over her seat. ...
Ronald Miller, Senior Electrical Project Manager for Domtar
Papers, obtained measurements of the power poles and lines
involved in the crash. Miller advised that there would have been
three poles on the west and east sides of the River. On the west
side, the center pole had a total length of 71 feet above the
ground. The other poles would have had a total length of 56 feet
above the ground. On the east side of the River, the center pole
had a total length above ground of 54 feet and the two outer poles
would have had a total length of 39 feet above ground. Miller
further states that due to the sag factor of the lines over the
River, he believed that the sag or lower most part of the lines
over the River would have been approximately 48 feet. Miller also
indicated that when the crash occurred, the lines were never
severed from the impact, however, the poles on the east side of
the River were pulled down. ...
5. On October 28, 2004, Karen Krueger, Aviation Safety Inspector
(ASI) for the Federal Aviation Administration (FAA), reviewed her
findings with Inv. Gosh. It should be noted that ASI Krueger has
28½ years in her capacity as an Aviation Safety Inspector and that
her duties include pilot certification, surveillance
responsibility of small air carriers, investigations of accidents
and enforcement of FAA actions. Her findings revealed that
Strub was violating two regulations in the way he piloted his
plane. Her opinion was that he flew in violation of § 91.119 of
the US FAR 91.16, which is entitled “Minimum Safe Altitudes” that
requires an altitude of 500 feet about the surface over congested
areas. This would include that an aircraft should not be operated
closer than 500 feet between a person, vessel, vehicle or
structure. She further believes that his piloting was in violation
of FAR 91.13 entitled “Careless or Reckless Operation of an
Aircraft.” ASI Krueger’s opinion was that Strub was negligent in
the piloting of the airplane over the River flying at altitudes
somewhere in the area of 50 feet above the water. ASI Krueger
states that all pilots are required to fly at higher altitude so
that if there is a problem with the aircraft, the pilot can
attempt to safely land. The distances off the ground that Strub
was piloting his plane would clearly not allow him to recover from
any engine problem. ...
Here are links to National Transportation Safety Board investigatory
documents (and excerpts thereof):
http://www.ntsb.gov/ntsb/GenPDF.asp?id=CHI04LA243&rpt=fa
I noticed the power lines not more that 1/2 second before impact."
The main landing gear struck the power lines and the airplane
landed inverted in the river in about 3-4 feet of water.
The pilot reported that he had flown the river going south from
ISW "many times." He reported that he was not where he thought he
was when the accident occurred. He reported that he thought he was
4 miles south of his location.
http://www.ntsb.gov/ntsb/GenPDF.asp?id=CHI04LA243&rpt=fi
The National Transportation Safety Board determines the probable
cause(s) of this accident as follows.
The pilot's improper in-flight decision when he decided to fly at
a low altitude over the river and failed to maintain clearance
from the power lines. A factor was the wires.
Findings
1. (C) IN-FLIGHT PLANNING/DECISION - IMPROPER - PILOT IN COMMAND
2. (C) ALTITUDE - LOW - PILOT IN COMMAND
3. (C) ALTITUDE/CLEARANCE - NOT MAINTAINED - PILOT IN COMMAND
4. (F) OBJECT - WIRE,TRANSMISSION
http://www.ntsb.gov/ntsb/brief2.asp?ev_id=20040901X01341&ntsbno=CHI04LA243&akey=1
Here are links to the Wisconsin state criminal statutes with which the
pilot was charged:
http://www.legis.state.wi.us/statutes/Stat0940.pdf
CHAPTER 940
CRIMES AGAINST LIFE AND BODILY SECURITY
940.10 Homicide by negligent operation of vehicle.
(1) Whoever causes the death of another human being by the
negligent operation or handling of a vehicle is guilty of a Class
G felony.
History: 1987 a. 399; 1997 a. 295; 2001 a. 109.
Judicial Council Note, 1988 Homicide by negligent operation of
vehicle is analogous to prior s. 940.08. The mental element is
criminal negligence as defined in s. 939.25. [Bill 191-S]
A motorist was properly convicted under this section for running a
red light at 50 m.p.h., even though the speed limit was 55 m.p.h.
State v. Cooper, 117 Wis. 2d 30, 344 N.W.2d 194 (Ct. App. 1983).
The definition of criminal negligence as applied to homicide by
negligent operation of a vehicle is not unconstitutionally vague.
State v. Barman, 183 Wis. 2d 180, 515 N.W.2d 493 (Ct. App. 1994).
A corporation may be subject to criminal liability under this
section. State v. Knutson, Inc. 196 Wis. 2d 86, 537 N.W.2d 420
(Ct. App. 1995), 93-1898. See also State v. Steenberg Homes, Inc.
223 Wis. 2d 511, 589 N.W.2d 668 (Ct. App. 1998), 98-0104.
It is not a requirement for finding criminal negligence that the
actor be specifically warned that his or her conduct may result in
harm. State v. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App.
1999), 98-2239. The common law “year-and-a-day rule” that no
homicide is committed unless the victim dies within a year and a
day after the injury is inflicted is abrogated, with prospective
application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249,
661 N.W.2d 381, 01-3063.
http://www.legis.state.wi.us/statutes/Stat0939.pdf
939.25 Criminal negligence. (1) In this section, “criminal
negligence” means ordinary negligence to a high degree, consisting
of conduct that the actor should realize creates a substantial
and unreasonable risk of death or great bodily harm to another,
except that for purposes of ss. 940.08 (2), 940.10 (2) and 940.24
(2), “criminal negligence” means ordinary negligence to a high
degree, consisting of conduct that the actor should realize
creates a substantial and unreasonable risk of death or great
bodily harm to an unborn child, to the woman who is pregnant with
that unborn child or to another.
(2) If criminal negligence is an element of a crime in chs. 939
to 951 or s. 346.62, the negligence is indicated by the term
“negligent” or “negligently”.
History: 1987 a. 399; 1989 a. 56 s. 259; 1997 a. 180, 295.
Judicial Council Note, 1988: This section is new. It provides a
uniform definition of criminal negligence, patterned on prior ss.
940.08 (2), 940.24 (2) and 941.01 (2).
Criminal negligence means the creation of a substantial and
unreasonable risk of death or great bodily harm to another, of
which the actor should be aware. [Bill 191-S]
The definition of criminal negligence as applied to homicide by
negligent operation of a vehicle is not unconstitutionally vague.
State v. Barman, 183 Wis. 2d 180, 515 N.W.2d 493 (Ct. App. 1994).
http://www.legis.state.wi.us/statutes/Stat0939.pdf
939.50 Classification of felonies. (
(1) Whoever causes the death of another human being by the
negligent operation or handling of a vehicle is guilty of a Class
G felony.
Below are links to case law discussions of the statutes:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=app2%5C98-0104&invol=1
Section 940.10, Stats.
Under Wisconsin's homicide by the negligent operation of a
vehicle statute, "[w]hoever causes the death of another human
being by the negligent operation or handling of a vehicle is
guilty of a Class E felony." Section 940.10, Stats. ...
Sufficiency of the Evidence.
Homicide by the negligent use of a vehicle has three
elements: (1) the defendant caused a death, (2) by criminal
negligence, (3) in the operation or handling of a vehicle.
Knutson , 196 Wis.2d at 109, 537 N.W.2d at 428. One cannot be held
criminally liable for ordinary negligence under §940.10, Stats.
Rather, the negligent act must rise to the level of criminal
negligence. Knutson , 196 Wis.2d at 109, 537 N.W.2d at 428.
Criminal negligence differs from ordinary negligence
in two respects. First, the risk is more serious-death or great
bodily harm as opposed to simple harm. Second, the risk must be
more than an unreasonable risk-it must also be substantial.
Criminal negligence involves the same degree of risk as criminal
recklessness-an unreasonable and substantial risk of death or
great bodily harm. The difference between the two is that
recklessness requires that the actor be subjectively aware of the
risk, while criminal negligence requires only that the actor
should have been aware of the risk-an objective standard.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=2007%5C31258&invol=2
Wis. Stat. ? 940.10(1) (2005-06).[1]? A person who ?causes the
death of an unborn child by the negligent operation or handling of
a vehicle? is guilty of homicide of an unborn child by negligent
operation of a vehicle.? Wis. Stat. ? 940.10(2).? The crime of
homicide by negligent operation of a vehicle contains three
essential elements: ?(1) the defendant operated a vehicle; (2) the
defendant operated the vehicle in a criminally negligent manner;
and (3) the defendant?s criminal negligence caused the death of
the victim.
disagree with some of the FSDO Inspector's conclusions, there seems to
be little doubt that the pilot made a fatal mistake in failing to
realize the substantial and unreasonable risk of death or great bodily
harm flying low over the river created.. That said, you can bet the
DA wasn't offering a plea bargain because he believed a conviction was
assured.
http://www.aopa.org/members/files/pilot/2008/accident0807.html
July 2008 Volume 51 / Number 7
After the Accident
From ultimate freedom to incarceration
By Dave Hirschman
...
This year, Strub became the first U.S. pilot jailed for a domestic
aircraft accident. He pleaded guilty to reduced charges of
negligent operation of a motor vehicle and disorderly conduct and
was sentenced to 30 days in jail, 150 days home confinement,
fines, court costs, and two years probation during which he won’t
be allowed to fly. ...
FAR 91.119 places no limit on how low pilots are allowed to fly
over sparsely populated areas or open water, as long as they stay
at least 500 feet from any persons or vessels and can glide to a
landing in case of engine failure without “undue hazard to persons
or property on the surface.”
An FAA investigator later cited Strub for “careless and reckless”
flying, defining the river as a “congested area,” and said Strub
violated minimum safe altitude rules that require pilots to fly at
least 1,000 feet above or 2,000 feet horizontal distance from
obstacles. Strub said he believed at the time of the accident he
was flying over a portion of the river that was free of hazards.
...
Strub was charged with vehicular homicide, a felony that carries a
maximum sentence of 10 years in prison. ...
To convict, a jury would have to find Strub had acted “with intent
to cause damage,” or that injury or death “would probably result”
from his actions. Strub believed he could show that the crash was
purely accidental, and that he never would have flown low over the
river if he thought he was putting his passenger, his airplane, or
himself, in jeopardy. ...
Here's a link to copy of the Criminal Complaint filed against the
pilot (and excerpts thereof):
http://www.wisconsinrapidstribune.com/assets/pdf/U059422129.PDF
Criminal Complaint
Count 1: HOMICIDE BY NEGLIGENT OPERATION OF AN AIRPLANE
The above-named defendant on or about Saturday, August 28, 2004,
in the Village of Port Edwards, Wood County, Wisconsin, did cause
the death of Kimberly Reed by the negligent operation or handling
of an airplane, contrary to sec. 940.10(1), 939.50(3)(g) Wis.
Stats....
Strub states that while flying along the River at a low
altitude because he believed he could do so, he saw some power
lines across the River. He attempted to pull the plane up but was
unsuccessful and struck the lines causing the plane to crash into
the River. Strub stated that after freeing himself, he went to
Reed but could not free her because the top of the wing had
collapsed over her seat. ...
Ronald Miller, Senior Electrical Project Manager for Domtar
Papers, obtained measurements of the power poles and lines
involved in the crash. Miller advised that there would have been
three poles on the west and east sides of the River. On the west
side, the center pole had a total length of 71 feet above the
ground. The other poles would have had a total length of 56 feet
above the ground. On the east side of the River, the center pole
had a total length above ground of 54 feet and the two outer poles
would have had a total length of 39 feet above ground. Miller
further states that due to the sag factor of the lines over the
River, he believed that the sag or lower most part of the lines
over the River would have been approximately 48 feet. Miller also
indicated that when the crash occurred, the lines were never
severed from the impact, however, the poles on the east side of
the River were pulled down. ...
5. On October 28, 2004, Karen Krueger, Aviation Safety Inspector
(ASI) for the Federal Aviation Administration (FAA), reviewed her
findings with Inv. Gosh. It should be noted that ASI Krueger has
28½ years in her capacity as an Aviation Safety Inspector and that
her duties include pilot certification, surveillance
responsibility of small air carriers, investigations of accidents
and enforcement of FAA actions. Her findings revealed that
Strub was violating two regulations in the way he piloted his
plane. Her opinion was that he flew in violation of § 91.119 of
the US FAR 91.16, which is entitled “Minimum Safe Altitudes” that
requires an altitude of 500 feet about the surface over congested
areas. This would include that an aircraft should not be operated
closer than 500 feet between a person, vessel, vehicle or
structure. She further believes that his piloting was in violation
of FAR 91.13 entitled “Careless or Reckless Operation of an
Aircraft.” ASI Krueger’s opinion was that Strub was negligent in
the piloting of the airplane over the River flying at altitudes
somewhere in the area of 50 feet above the water. ASI Krueger
states that all pilots are required to fly at higher altitude so
that if there is a problem with the aircraft, the pilot can
attempt to safely land. The distances off the ground that Strub
was piloting his plane would clearly not allow him to recover from
any engine problem. ...
Here are links to National Transportation Safety Board investigatory
documents (and excerpts thereof):
http://www.ntsb.gov/ntsb/GenPDF.asp?id=CHI04LA243&rpt=fa
I noticed the power lines not more that 1/2 second before impact."
The main landing gear struck the power lines and the airplane
landed inverted in the river in about 3-4 feet of water.
The pilot reported that he had flown the river going south from
ISW "many times." He reported that he was not where he thought he
was when the accident occurred. He reported that he thought he was
4 miles south of his location.
http://www.ntsb.gov/ntsb/GenPDF.asp?id=CHI04LA243&rpt=fi
The National Transportation Safety Board determines the probable
cause(s) of this accident as follows.
The pilot's improper in-flight decision when he decided to fly at
a low altitude over the river and failed to maintain clearance
from the power lines. A factor was the wires.
Findings
1. (C) IN-FLIGHT PLANNING/DECISION - IMPROPER - PILOT IN COMMAND
2. (C) ALTITUDE - LOW - PILOT IN COMMAND
3. (C) ALTITUDE/CLEARANCE - NOT MAINTAINED - PILOT IN COMMAND
4. (F) OBJECT - WIRE,TRANSMISSION
http://www.ntsb.gov/ntsb/brief2.asp?ev_id=20040901X01341&ntsbno=CHI04LA243&akey=1
Here are links to the Wisconsin state criminal statutes with which the
pilot was charged:
http://www.legis.state.wi.us/statutes/Stat0940.pdf
CHAPTER 940
CRIMES AGAINST LIFE AND BODILY SECURITY
940.10 Homicide by negligent operation of vehicle.
(1) Whoever causes the death of another human being by the
negligent operation or handling of a vehicle is guilty of a Class
G felony.
History: 1987 a. 399; 1997 a. 295; 2001 a. 109.
Judicial Council Note, 1988 Homicide by negligent operation of
vehicle is analogous to prior s. 940.08. The mental element is
criminal negligence as defined in s. 939.25. [Bill 191-S]
A motorist was properly convicted under this section for running a
red light at 50 m.p.h., even though the speed limit was 55 m.p.h.
State v. Cooper, 117 Wis. 2d 30, 344 N.W.2d 194 (Ct. App. 1983).
The definition of criminal negligence as applied to homicide by
negligent operation of a vehicle is not unconstitutionally vague.
State v. Barman, 183 Wis. 2d 180, 515 N.W.2d 493 (Ct. App. 1994).
A corporation may be subject to criminal liability under this
section. State v. Knutson, Inc. 196 Wis. 2d 86, 537 N.W.2d 420
(Ct. App. 1995), 93-1898. See also State v. Steenberg Homes, Inc.
223 Wis. 2d 511, 589 N.W.2d 668 (Ct. App. 1998), 98-0104.
It is not a requirement for finding criminal negligence that the
actor be specifically warned that his or her conduct may result in
harm. State v. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App.
1999), 98-2239. The common law “year-and-a-day rule” that no
homicide is committed unless the victim dies within a year and a
day after the injury is inflicted is abrogated, with prospective
application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249,
661 N.W.2d 381, 01-3063.
http://www.legis.state.wi.us/statutes/Stat0939.pdf
939.25 Criminal negligence. (1) In this section, “criminal
negligence” means ordinary negligence to a high degree, consisting
of conduct that the actor should realize creates a substantial
and unreasonable risk of death or great bodily harm to another,
except that for purposes of ss. 940.08 (2), 940.10 (2) and 940.24
(2), “criminal negligence” means ordinary negligence to a high
degree, consisting of conduct that the actor should realize
creates a substantial and unreasonable risk of death or great
bodily harm to an unborn child, to the woman who is pregnant with
that unborn child or to another.
(2) If criminal negligence is an element of a crime in chs. 939
to 951 or s. 346.62, the negligence is indicated by the term
“negligent” or “negligently”.
History: 1987 a. 399; 1989 a. 56 s. 259; 1997 a. 180, 295.
Judicial Council Note, 1988: This section is new. It provides a
uniform definition of criminal negligence, patterned on prior ss.
940.08 (2), 940.24 (2) and 941.01 (2).
Criminal negligence means the creation of a substantial and
unreasonable risk of death or great bodily harm to another, of
which the actor should be aware. [Bill 191-S]
The definition of criminal negligence as applied to homicide by
negligent operation of a vehicle is not unconstitutionally vague.
State v. Barman, 183 Wis. 2d 180, 515 N.W.2d 493 (Ct. App. 1994).
http://www.legis.state.wi.us/statutes/Stat0939.pdf
939.50 Classification of felonies. (
(1) Whoever causes the death of another human being by the
negligent operation or handling of a vehicle is guilty of a Class
G felony.
Below are links to case law discussions of the statutes:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=app2%5C98-0104&invol=1
Section 940.10, Stats.
Under Wisconsin's homicide by the negligent operation of a
vehicle statute, "[w]hoever causes the death of another human
being by the negligent operation or handling of a vehicle is
guilty of a Class E felony." Section 940.10, Stats. ...
Sufficiency of the Evidence.
Homicide by the negligent use of a vehicle has three
elements: (1) the defendant caused a death, (2) by criminal
negligence, (3) in the operation or handling of a vehicle.
Knutson , 196 Wis.2d at 109, 537 N.W.2d at 428. One cannot be held
criminally liable for ordinary negligence under §940.10, Stats.
Rather, the negligent act must rise to the level of criminal
negligence. Knutson , 196 Wis.2d at 109, 537 N.W.2d at 428.
Criminal negligence differs from ordinary negligence
in two respects. First, the risk is more serious-death or great
bodily harm as opposed to simple harm. Second, the risk must be
more than an unreasonable risk-it must also be substantial.
Criminal negligence involves the same degree of risk as criminal
recklessness-an unreasonable and substantial risk of death or
great bodily harm. The difference between the two is that
recklessness requires that the actor be subjectively aware of the
risk, while criminal negligence requires only that the actor
should have been aware of the risk-an objective standard.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=2007%5C31258&invol=2
Wis. Stat. ? 940.10(1) (2005-06).[1]? A person who ?causes the
death of an unborn child by the negligent operation or handling of
a vehicle? is guilty of homicide of an unborn child by negligent
operation of a vehicle.? Wis. Stat. ? 940.10(2).? The crime of
homicide by negligent operation of a vehicle contains three
essential elements: ?(1) the defendant operated a vehicle; (2) the
defendant operated the vehicle in a criminally negligent manner;
and (3) the defendant?s criminal negligence caused the death of
the victim.