1975, February, Pg. 239. Evidence Problems Created by a Crash of Aircraft with Dual Controls.

• Author: by Paul D. Renner

4 Colo.Law. 239

Colorado Lawyer

1975.

1975, February, Pg. 239.

Evidence Problems Created by a Crash of Aircraft with Dual Controls

239Vol. 4, No. 2, Pg. 239Evidence Problems Created by a Crash of Aircraft with Dual Controlsby Paul D. RennerMost small aircraft are equipped with full dual controls, so that the aircraft can be flown from either of two seats. Dual controls facilitate the instruction of student pilots and make the transfer of operation from one pilot to another during flight easier and safer. However, when such an aircraft meets with disaster, killing all occupants, the factual determination of who was operating the aircraft at the time of the crash becomes difficult.

Some courts have held that evidence of negligent acts is immaterial without proof of the identity of the negligent party.(fn1) Therefore the resolution of the identity of the pilot becomes critical to each party.

In most of the reported litigated cases, a survivor or estate of the deceased is suing the estate of the alleged pilot for the wrongful death of an occupant of the airplane. Generally there are no survivors or any other witnesses who can positively identify the pilot at the time the negligent act occurred.

The legal problem is posed when the traditional rule is observed that the plaintiff must prove the identity of the negligent party by a preponderance of the evidence or his claim fails. Since the evidence to be presented in such cases is circumstantial, it is helpful to the attorney to be aware of what circumstances some courts have considered significant in resolving the issue of burden of proof.

The following checklist of certain cir-cumstances appears in Am. Jur. Proof of Facts.(fn2) It is a list of "important facts and circumstances which tend to prove who, among two or more occupants of a dual-controlled airplane, was piloting it at the time of an accident."

(1) Identity of alleged pilot in control as owner.

(2) Possession of license by alleged pilot in control.

(3) Nonlicensure of other occupants of plane.

(4) Alleged pilot in control was pilot in command of flight.

(5) Flying experience of alleged pilot in control contrasted with inexperience of other occupants of plane.

(6) Observed maneuvers of plane during flight compared with alleged pilot in control's known flight habits.

(7) Contrast between observed maneuvers of plane and flight habits of other occupants of plane.

(8) Pilot's previous habit to control plane during entire flight.

(9) Mechanical set-up prohibiting

240control and take-off or landing by other than alleged pilot in control.

(10) Seating of alleged pilot in control in position customarily occupied by pilot operating plane.

(11) Alleged pilot in control observed at controls at each take-off and landing during flight.

(12) Giving and receipt of signals on take-off by alleged pilot in control.

(13) Voice on radio seeking instructions from control tower identified as that of alleged pilot in control.

(14) Owner's or pilot's agreement with airport not to permit other pilots to operate plane or to give flight instructions.

(15) Post-crash circumstances which include position of bodies and condition of controls.

As might be expected, courts have not afforded the burden of proof issue uniform treatment. Some courts have taken a strict view that the plaintiff has the burden of proof, and that, because the plaintiff can only offer circumstantial evidence from which there is more than one reasonable inference as to the cause of the crash, the plaintiff cannot sustain the burden. Other courts take a more liberal view and by the use of evidentiary presumptions ease the plaintiffs burden of proof.

It is rare to find the court using only one circumstance as the sole basis for presuming the named defendant to be the negligent pilot. It does seem that the courts are handling the cases on an ad hoc basis using all the evidence bearing on the determination of the identity of the negligent party taken as a whole.

Again, to no one's surprise, from similar evidence some courts have found that no presumption was created; others have found that the presumption has been rebutted, and still others that the plaintiff may recover. It would prove very difficult, and serve no purpose, to try to resolve the various inconsistencies which might be pointed out from these myriad holdings. Rather than review each case for its evidence, analyze its holding, ratio decidendi, and potential uses, this paper discusses only the various circumstances which the courts have considered (and the treatment of each factor) in the determination of the identity of the negligent pilot.

One Licensed OccupantOne might expect little difficulty identifying the negligent party when only one occupant of the aircraft has flying experience or a pilot's license. However, there is apparently only one case in which a court has ever held that there is a presumption that the licensed occupant was actually the pilot of the aircraft.(fn3) Even in the cited case, there was testimony to the effect that the passenger, a woman, knew it would be unsafe for her to fly the aircraft. It also might be pointed out, although not commented on in the opinion, that there was no indication the passenger even had a desire to learn to fly or "see what it's like" to operate the controls.

Other cases in which the evidence was held to have created a presumption that the sole licensed occupant was the negligent party rely on other circumstances to create such a presumption. In one instance the other circumstances were ownership of the aircraft, occupancy of the customary left-side seat of the pilot in command, positive voice identification as pilot on takeoff, and observations of maneuvers on fatal landing by three witnesses with extensive flying experience.(fn4) In other cases, ownership of the aircraft, occupancy of the customary left seat of pilot in command, bad weather landing, allegation of negligence in deciding to land (as against negligent execution of landing) were factors which were also relied upon to identify the pilot.(fn5)

Many courts have held that any verdict could only be speculative, particularly when circumstances show that "a radical maneuver" of the aircraft (which may have been caused by a moving of the controls by the non-licensed occupant), occurred prior to the crash.(fn6)

241 More Than One Licensed Occupant

Perhaps in no other phase of tort law have the cases received such a variety of treatment as in dual controlled aircraft where two licensed pilots were present. The majority of cases...