Liabilities of the A/HB builders

[wabower]

Yep, and for a variety of reasons he was willing to discuss and some that he wasn't.

Apparently some certified owners are reluctant to sell as well, didn't Dick Collins destroy his P-210 rather than sell it?

 

[wanttaja]

Read the letter of limitations for each home built, that is where I see each one has " BUILDERS NAME-TYPE' for aircraft manufacturer.

Example "Jones CoEZ" ---- "Smith Celebrity"

Not on mine. Mine has a block marked "Make", not "Builder." The name entered is identical to the one in the FAA registration database.

I agree the actual builder's name *should* be listed on both the Operating Limitations and FAA registration. I'll even bet there's an FAA guidance, somewhere, saying it should. But some FAA registrations *do* list the designer or kit manufacturer, instead.

In these cases, I don't know if the Operating Limitations has a different entry. I would tend to think they would show the same; an affront to the bureaucratic mind, otherwise. Is there a database of Operating Limitations that I can download and compare?

Ron Wanttaja

 

[Tom-D]

Not on mine. Mine has a block marked "Make", not "Builder." The name entered is identical to the one in the FAA registration database.

I agree the actual builder's name *should* be listed on both the Operating Limitations and FAA registration. I'll even bet there's an FAA guidance, somewhere, saying it should. But some FAA registrations *do* list the designer or kit manufacturer, instead.

In these cases, I don't know if the Operating Limitations has a different entry. I would tend to think they would show the same; an affront to the bureaucratic mind, otherwise. Is there a database of Operating Limitations that I can download and compare?

Ron Wanttaja

Not that I know of..

I just deal with 3 EXP aircraft and that is the way it is on them.

 

[PPC1052]

So a client tells you he wants to sell his E-AB, and wants to access the risk. He is worth 2 million and is a bottom line type of guy and wants to know the chances of losing a lawsuit if the E-AB crashes due to faulty workmanship. He wants to know the risk on a scale of 1-10. What do you say.

Actually, I would probably say the risk is a 10 IF something happens. The question of whether something will happen isn't a legal question, and I can't given anything but guesses, which are no better and probably worse than anyone else' guess.

 

[JeffDG]

Why can't a EAB seller use the " 'as is where is, with known and unknown defects'" defense ??

Because the pilot's family was never part of the contract where that disclaimer was in, and as such never ceded their rights.

 

[Geico266]

Because the pilot's family was never part of the contract where that disclaimer was in, and as such never ceded their rights.

Wrong. The liability waiver the EAA suggests using has language in it about the sellers heirs being a part of the waiver.

Don't start yelling at me, call EAA legal counsel and yell at them.

The EAA has a seller's waiver form that they recommend be used in any experimental transaction. They suggest an attorney from your state review it ( always a disclaimer ) and have them draft it according to your state laws. It has been upheld in court many times as a valid waiver when properly executed.

Nothing is perfect, nothing is absolute, nothing is guaranteed, but this waiver has worked, is proven effective in court, and is a proven deferent for the plaintiff's attorney before going to court. No successful liability lawsuits using this form. Spin it any way you want, it works.

 

[JeffDG]

Wrong. The liability waiver the EAA suggests using has language in it about the sellers heirs being a part of the waiver.

An individual can waive their own damages. That waiver can extend to estates.

However, the wife/children of someone can sue you wrongful death. And as those people do not have privity of contract in your waiver, that waiver has absolutely zero impact on their rights. I cannot surrender a right that my wife possesses, regardless of how it is worded.

 

[PPC1052]

Wrong. The liability waiver the EAA suggests using has language in it about the sellers heirs being a part of the waiver.

Yes. This is often the case. I think it would hold up in my state if properly done. But I don't know about your state, or anyone else'.

 

[Geico266]

Yes. This is often the case. I think it would hold up in my state if properly done. But I don't know about your state, or anyone else'.

Very true, this is why the EAA recommends you have an attorney review it.

 

[PPC1052]

Another scenario, AB-EXP crashes and kills pilot. Pilot bought aircraft from an individual worth mega bucks . Cause of crash faulty workmanship, or so it seems. Family wants you to take case on a contingency basis. Do you?

Oh, and let"s add a bystander killed on the ground and that family also wants you to pursue the case on a contingency basis. Action against the builder, of course.

Can't take both, as the bystander would probably need to pursue the pilot.
If I have a choice, I take the bystander case because I can go after both pilot and builder. If I can just take the pilot case, I need to know more. I want to see the purchase documents, etc. and know about the evidence of the defect.

 

[Geico266]

An individual can waive their own damages. That waiver can extend to estates.

However, the wife/children of someone can sue you wrongful death. And as those people do not have privity of contract in your waiver, that waiver has absolutely zero impact on their rights. I cannot surrender a right that my wife possesses, regardless of how it is worded.

Where are all the court cases where this has happened?

Everyone wants to become Perry Mason ( an attorney for you youngsters) and try and shoot holes in a system of liability protection that is proven for experimental aircraft. The facts are it works in a court of law to protect the sellers of said aircraft, from the seller's heirs. It has worked 100% of the time in the past. The future, no one knows for sure.

 

[JeffDG]

Where are all the court cases where this has happened?

Everyone wants to become Perry Mason ( an attorney for you youngsters) and try and shoot holes in a system of liability protection that is proven for experimental aircraft. The facts are it works in a court of law to protect the sellers of said aircraft, from the seller's heirs. It has worked 100% of the time in the past. The future, no one knows for sure.

How has this been proven?

Where are the cases where the waiver has been effective?

You've demanded cases to prove liability, I demand cases to prove protection.

 

[N801BH]

How has this been proven?

Where are the cases where the waiver has been effective?

You've demanded cases to prove liability, I demand cases to prove protection.

The absence of successful lawsuits confirms Geico's stance.... I stand next to him on this matter...

 

[wabower]

Exactly the opposite. When the right set of circumstances occur, all that "but it's never happened before" goes out the window quicker than first-grade artwork in a windstorm. EAA has already disclosed and discussed the risk, so your continued insistence that anything is "proven" at this point simply reinforces that you are either incredibly naive or simply unable to understand the facts.

I don't see any evidence to suggest that anybody hopes it will happen, or thinks it will ever happen in large numbers. But when Piper was building J-3's in 1941 they probably didn't envision successful PL suits against them 40-some years later for millions of dollars because the restraint systems in their cockpits were insufficient.

Where are all the court cases where this has happened?

Everyone wants to become Perry Mason ( an attorney for you youngsters) and try and shoot holes in a system of liability protection that is proven for experimental aircraft. The facts are it works in a court of law to protect the sellers of said aircraft, from the seller's heirs.

 

[N801BH]

................ But when Piper was building J-3's in 1941 they probably didn't envision successful PL suits against them 40-some years later for millions of dollars because the restraint systems in their cockpits were insufficient.

Just another GREAT reason to follow Shakespeare's advice......

http://www.howardnations.com/shakespeare.html

 

[JeffDG]

Exactly the opposite. When the right set of circumstances occur, all that "but it's never happened before" goes out the window quicker than first-grade artwork in a windstorm. EAA has already disclosed and discussed the risk, so your continued insistence that anything is "proven" at this point simply reinforces that you are either incredibly naive or simply unable to understand the facts.

In the absence of case-law to the contrary, we are left with well-established principles of tort law:

• The manufacturer of a product is held to strict liability for any defects in design or workmanship
• That manufacturer liability is joint and several with the owner of the product and the operator of the product...all 3 are subject to liability
• A waiver may be available for the builder and the first buyer, but subsequent buyers are not subject to that contract
• Those not part of the builder-first buyer contract (including family and unrelated third parties) are not impacted by any waiver whatsoever

Nobody has yet enunciated a single limiting principle that would make E-AB builders be treated any differently than any other product manufacture in terms of product liability law.

 

[JeffDG]

But when Piper was building J-3's in 1941 they probably didn't envision successful PL suits against them 40-some years later for millions of dollars because the restraint systems in their cockpits were insufficient.

But, it didn't happen for decades! There was not a single case for over 3 decades...so all liability was extinguished, right?

 

[wabower]

Absolutely. The first time they were required to pay damages was only at the conclusion of a successful suit was decided in the plaintiff's favor based on components and case law that nobody ever considered a problem.

These discussions always remind me almost identical reasons given by the old-timers in Destin about why the area had never been hit by a hurricane. The explanations were complete with maps and drawings about the interface of the river and the beach and the tide and who-knows-what and all concluded that you could buy or build whatever you wanted on the beach without any storm-related worries.

Then they got nailed.

But, it didn't happen for decades! There was not a single case for over 3 decades...so all liability was extinguished, right?

 

[Geico266]

Exactly the opposite. When the right set of circumstances occur, all that "but it's never happened before" goes out the window quicker than first-grade artwork in a windstorm. EAA has already disclosed and discussed the risk, so your continued insistence that anything is "proven" at this point simply reinforces that you are either incredibly naive or simply unable to understand the facts.

Of course when the right set of circumstances occur a lawsuit may be successful.

The records show NO successful court cases so far, that is a proven track record. If you have different information call EAA legal counsel.

Blood sucking attorneys looking for a case, now there is something to discuss.

 

[JeffDG]

Of course when the right set of circumstances occur a lawsuit may be successful.

The records show NONE so far, that is a proven track record.

So, I presume you will be appealing Piper's liability mentioned above? There were NO cases of that type before they were hammered, so that was a proven track record.

Still looking for a legal principle that make E-AB different from any other manufacturer.

 

[wabower]

You mean like "The Texas Hammer" on TV every night chasing PI claims? Or the ongoing mesothelioma commercials? Or the roofers whe leave a card in my door after every wind-storm? Is it any secret that these people are constantly prospecting for business? Is it illegal for them to do so where you live?

When my partner was killed in the 340 crash I received dozens of PI letters and cards, but ignored them. Then sat down with our aviation guy and worked out a proposed settlement (for their kids and family, the plane was fully insured) that he presented to the prospective defendants and had approved by the close of business the next day. I think their payouts end in 2017.

Of course when the right set of circumstances occur a lawsuit may be successful.

The records show NO successful court cases so far, that is a proven track record.

Blood sucking attorneys looking for a case, now there is something to discuss.

 

[vintage cessna]

So, I presume you will be appealing Piper's liability mentioned above? There were NO cases of that type before they were hammered, so that was a proven track record.

Still looking for a legal principle that make E-AB different from any other manufacturer.

The company that supplies the aircraft kit is a manufacturer, the guy that buys the kit is a home builder.

Kit producers have been sued for PL but not home builders.

 

[JeffDG]

The company that supplies the aircraft kit is a manufacturer, the guy that buys the kit is a home builder.

Kit producers have been sued for PL but not home builders.

So, Ford isn't a manufacture, the people who make the parts are...yeah, go ahead and try and sell that one.

 

[wabower]

And EAA discloses and discusses the risk of such action in the future. Yes or no?

If you decide to put a little private deal together to build a kit and decide you should do it right to avoid any violation of Reg-D securities laws, will the attorneys require disclosure of the risk in the offering circular?

The company that supplies the aircraft kit is a manufacturer, the guy that buys the kit is a home builder.

Kit producers have been sued for PL but not home builders.

 

[weilke]

The company that supplies the aircraft kit is a manufacturer, the guy that buys the kit is a home builder.

That is incorrect.

Building from a kit is no different than building from plans or scratch. The builder is the manufacturer of the aircraft.

Kit producers have been sued for PL but not home builders.

That is because Vans and Aircraft Spruce have insurance and assets in a amount interesting to a product liability attorney.

 

[vintage cessna]

And EAA discloses and discusses the risk of such action in the future. Yes or no?

Yes. They don't say you will never get sued or are completely immune from liability .

What they did say , that in the context of PL, a home builder is not a "manufacturer."

 

[JeffDG]

Yes. They don't say you will never get sued or are completely immune from liability .

What they did say , that in the context of PL, a home builder is not a "manufacturer."

That's flatly false:

v. The primary meaning of this word is “making with the hand,” but this definition is too narrow for its present use. Its meaning has expanded as workmanship and art have advanced, so that now nearly all artificial products of human industry, nearly all such materials as have acquired changed conditions or new and specific combinations, whether from the direct action of the human hand, from chemical processes devised and directed by human skill, or by the employment of machinery, are now commonly designated as “manufactured.” Carlin v. Western Assur. Co., 57 Md. 526, 40 Am. Rep. 440; Evening Journal Ass’n v. State Board of Assessors, 47 N. J. Law, 36, 54 Am. Rep. 114; Attorney General v. Lorrnan, 59 Mich. 157, 26 N. W. 311. 60 Am. Rep. 287; Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346. MANUFACTURE, n. In patent law. Any useful product made directly by human labor, or by the aid of machinery directed aud controlled by human power, and either from raw materials, or from materials worked up into a new form. Also the process by which such products are made or fashioned.


Law Dictionary: http://thelawdictionary.org/manufacture/#ixzz2e7ZvcXgu

 

[vintage cessna]

Ok guys, what ever. I'm just relaying what this attorney said. Over the course of his career he said he represented about a dozen home builders. And when he sat down and explained to the opposing attorney what this EXP-AB thing was, every single time they walked away.

Anyone worried about law suits should structure their assets to make them very difficult to get at.

 

[Geico266]

Ok guys, what ever. I'm just relaying what this attorney said. Over the course of his career he said he represented about a dozen home builders. And when he sat down and explained to the opposing attorney what this EXP-AB thing was, every single time they walked away.

Anyone worried about law suits should structure their assets to make them very difficult to get at.

Thank you.

So the real question is, (I've asked it several times with no response) how many times has the owner / seller of a certified plane been held liable?

 

[PPC1052]

The company that supplies the aircraft kit is a manufacturer, the guy that buys the kit is a home builder.

Kit producers have been sued for PL but not home builders.

The term "manufacturer" is a term of art, with a legal definition. That definition can vary from state to state. In my state, there is a statutory definition set forth in the product liability act. It defines a manufacturer as "a person or an entity who designs, assembles, fabricates, produces, constructs, or otherwise prepares a product or a component part of a product before the sale of the product to a user or consumer." This seems to me to include you, the amature builder.

I was involved in a case in which an issue was presented as to whether a particular defendant was a manufacturer. This defendant had designed the original OEM gear in a reduction gear assemply in a military helicopter that crashed some 30 to 40 years after original design and construciton. The army took the plans and specs prepared by the defendant, and shopped the actual fabrication of replacement part gears to another contractor that had fabricated the actual gear that failed using the specifications that had been prepared by the defendant. (As an aside, the defendant had revised the the plans for the gear over time with increasing metalurgical technology, but the army didn't give the most recent updates. It just gave the old un-updated version of the plans to the new contractor.) The defendant contended that it wasn't a manufacturer, and therefore couldn't be liable. After all, it didn't fabricate the gear, had no knowledge this gear was being made, and received no payment for the sale of the gear at all. Someone else did all of that. The district court held that because the defendant had developed the plans, they were the "designer", and therefore it met the legal definition of a "manufacturer" set forth above. Consequently, the defendant could be held liable if that gear had been defective.

My point is that just because your common sense tells you one thing, a court may hold something very different. Where courts go wrong, I think, is improper use of syllogisms. A=B; B=C; therefore A = C. Except A doesn't exactly equal B, and B doesn't exactly equal C. So, you get "rounding errors" that result in decisions that look like 2 + 2 = 5.

 

[PPC1052]

Yes. They don't say you will never get sued or are completely immune from liability .

What they did say , that in the context of PL, a home builder is not a "manufacturer."

I doubt they said this. But if they did, they are wrong, at least as product liability goes in my state.

 

[Geico266]

The term "manufacturer" is a term of art, with a legal definition. That definition can vary from state to state. In my state, there is a statutory definition set forth in the product liability act. It defines a manufacturer as "a person or an entity who designs, assembles, fabricates, produces, constructs, or otherwise prepares a product or a component part of a product before the sale of the product to a user or consumer." This seems to me to include you, the amature builder.

I was involved in a case in which an issue was presented as to whether a particular defendant was a manufacturer. This defendant had designed the original OEM gear in a reduction gear assemply in a military helicopter that crashed some 30 to 40 years after original design and construciton. The army took the plans and specs prepared by the defendant, and shopped the actual fabrication of replacement part gears to another contractor that had fabricated the actual gear that failed using the specifications that had been prepared by the defendant. (As an aside, the defendant had revised the the plans for the gear over time with increasing metalurgical technology, but the army didn't give the most recent updates. It just gave the old un-updated version of the plans to the new contractor.) The defendant contended that it wasn't a manufacturer, and therefore couldn't be liable. After all, it didn't fabricate the gear, had no knowledge this gear was being made, and received no payment for the sale of the gear at all. Someone else did all of that. The district court held that because the defendant had developed the plans, they were the "designer", and therefore it met the legal definition of a "manufacturer" set forth above. Consequently, the defendant could be held liable if that gear had been defective.

My point is that just because your common sense tells you one thing, a court may hold something very different. Where courts go wrong, I think, is improper use of syllogisms. A=B; B=C; therefore A = C. Except A doesn't exactly equal B, and B doesn't exactly equal C. So, you get "rounding errors" that result in decisions that look like 2 + 2 = 5.

So far the terms "Experimental - Ametur Built" aircraft has been understood by courts and juries.

Will that holdup? Probably not, but the track record is excellent so far.

 

[PPC1052]

So the real question is, (I've asked it several times with no response) how many times has the owner / seller of a certified plane been held liable?

I know of none-- meaning that I know of know actual judgment entered against a defendant solely because of defective building.

I just know of the one where one apparently paid a settlement in the John Denver case.

 

[PPC1052]

So far the terms "Experimental - Ametur Built" aircraft has been understood by courts and juries.

Will that holdup? Probably not, but the track record is excellent so far.

Honestly, I think you and I are talking about two different things. I am talking about legal bars to recovery. As I said earlier, there are a lot of practical reasons why suits don't get filed. Past performance is no guarantee of future returns. I don't think you and I disagree on any of this.

 

[PPC1052]

Oh, I should also point something else out. I have noted repeatedly that the law changes from state to state. Airplanes are just about the most mobile product that I can think of. That means the airplane you built and sold can be crashed in just about any state. Right off the bat, your going to be faced with a choice of law issue. I have one right now where the accident occured in my state, the flight originated in another state. One state has a cap on damages for personal injury claims. One has a cap on damages for wrongful death. Any guesses where the decedent's estate is going to file? Anyone think it will be the same state where the survivors filed? What happens when there is a material difference in the products liability law between the states that might be determinitive. Do you think the defendant can absolutely control where the injured third party plaintiffs choose to file?

 

[weilke]

Oh, I should also point something else out. I have noted repeatedly that the law changes from state to state. Airplanes are just about the most mobile product that I can think of. That means the airplane you built and sold can be crashed in just about any state.

It turns out, no matter where an aircraft crashed, the courts in downtown philadelphia allways find a nexus to claim jurisdiction
I guess an internet network packet routed by a PA company will do that.

 

[RotorAndWing]

Honestly, I think you and I are talking about two different things. I am talking about legal bars to recovery. As I said earlier, there are a lot of practical reasons why suits don't get filed. Past performance is no guarantee of future returns. I don't think you and I disagree on any of this.

 

[Tom-D]

Ok guys, what ever. I'm just relaying what this attorney said. Over the course of his career he said he represented about a dozen home builders. And when he sat down and explained to the opposing attorney what this EXP-AB thing was, every single time they walked away.

Anyone worried about law suits should structure their assets to make them very difficult to get at.

The reason for that is easy to figure out. The production built aircraft have a standard for airworthiness, and a deep pocket. the EXP/AB do not, and it is very difficult to prove it did not meet its build standard because there isn't any.

 

[Henning]

Wrong. The liability waiver the EAA suggests using has language in it about the sellers heirs being a part of the waiver.

Don't start yelling at me, call EAA legal counsel and yell at them.

The EAA has a seller's waiver form that they recommend be used in any experimental transaction. They suggest an attorney from your state review it ( always a disclaimer ) and have them draft it according to your state laws. It has been upheld in court many times as a valid waiver when properly executed.

Nothing is perfect, nothing is absolute, nothing is guaranteed, but this waiver has worked, is proven effective in court, and is a proven deferent for the plaintiff's attorney before going to court. No successful liability lawsuits using this form. Spin it any way you want, it works.

Please show me where in law that you can waive someone else's rights.

 

[PPC1052]

Please show me where in law that you can waive someone else's rights.

"Although we repeatedly have articulated and relied on the principle that the settlement of the underlying injury claim bars the derivative action for loss of consortium, we recognize that neither Hopson, Jacoby, nor Ladd had a procedureal posture identical to the present one. Accordingly, we take this opportunity to articulate the strong policy reasons that support the application of this rule to claims such as the plaintiff's. The same rationale that mandates the joinder of loss of consortium claims with the claims of the directly injured party also should apply to bar a claim for loss of consortium once the predicate action has been settled."

Voris v. Molinaro, 302 Conn. 791, 798; 31 A.3d 363, 367 - 368 (Conn. 2011).

Of course, the rule on this varies from state to state.