Another GA lawsuite

"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

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?e...15X45423&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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"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.

"Kevin" wrote in message
newsr2yb.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.

(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
-----------------------------------------------

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

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

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...

"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.

"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