Gary C. Robb
When it comes to helicopter crashes, the evidence and potential defendants can be far flung. Prompt investigation of the crash site and knowledge about common causes of these crashes are critical.
When a helicopter crashes, the wreckage can leave a trail of clues that leads all the way back to the aircraft’s design and manufacture. Investigating these cases requires a unique blend of knowledge of aviation, engineering, pilot training, and weather.
In 2012, civil helicopters flew more than 3 million hours in the United States, resulting in 153 accidents. Of that number, 22 were fatal and 23 resulted in serious injuries.1 Some basic knowledge of this unique form of litigation should be in every plaintiff lawyer’s quiver.
As in most tort litigation, the chief objective in preparing to file a helicopter lawsuit is to assess the most likely cause or causes of the crash and the resulting injuries or deaths. Only after that can counsel properly identify and file suit against the defendants. That means obtaining as much information as possible—including the helicopter and its maintenance history, the terrain and crash site, and background data on the helicopter’s owner, operator, and pilot.
Defendants in helicopter crash litigation enjoy several advantages over plaintiffs. They receive almost immediate notification of the crash from the National Transportation Safety Board (NTSB), which invites them to participate in all aspects of the crash investigation. These defendants will have prompt access to both the crash site and the wreckage, and they will retain defense counsel to undertake immediate steps to protect their interests.
But plaintiff attorneys are not powerless to investigative the crash. A wealth of information can help you identify potential defendants and legal theories.
Crash experts. Helicopter crash litigation requires hiring well-qualified and experienced helicopter crash experts. States’ procedural foundations for presenting expert testimony vary, so you should look to the specific jurisdiction to determine the applicable standards.2
Inspection and documentation of the crash site. An immediate inspection and examination of the crash site is necessary. If counsel is retained a year or more after a crash, the likelihood of the site yielding any meaningful information is minimal. In those instances, the investigation must be based entirely on documentation from NTSB investigators, local government, and the media.
Retain an experienced helicopter accident investigator to pinpoint the aircraft’s initial impact with the terrain or surrounding objects. The surrounding search should include careful examination of trees, poles, rooftops, and other objects for any indication of flight path contact. Even when the passage of time and changing seasons have removed remnants of the crash, it is still essential for counsel and the accident reconstruction expert to inspect the crash site. This will give perspective on the direction of travel, gradation, and level of the terrain.
Investigative information from other sources. The reports of local police, fire department personnel, and the highway patrol often are exceptionally thorough. These agencies may have personnel on scene who photographed the wreckage and the perimeter of the site moments after the crash. Media sources, such as local newspapers and television stations, often photograph and videotape the crash site, and the footage can be very helpful. In many cases, witnesses on the ground report that the helicopter’s engine was sputtering or popping or that the aircraft was spinning out of control. These eyewitness accounts may help shed light on how and what caused the crash, so their statements should be taken promptly.
Engine and maintenance logbooks. Federal regulations require the owner or operator of a helicopter to maintain appropriate maintenance records. During this preliminary factual investigation, make every effort to obtain full, complete, and readable copies of the aircraft’s and engine’s maintenance logbooks. Note, as well, that the helicopter and helicopter engine certification are separately regulated. Also, Federal Aviation Administration (FAA) regulations impose much stricter useful life limitations on helicopter components—such as rotor blades and other components that are subjected to high levels of vibration, rotational, or torsional stress—than on comparable components used in fixed-wing aircraft.
Pilot training and certification. In every case, the pilot’s actions will be scrutinized, so you should acquire all of the pilot’s training certificates, ratings, and logbooks. The types and grades of certificates are detailed in Part 61 of the FAA regulations, and you should consult these documents early on. 3
Two matters that crop up frequently are whether the pilot holds a current and valid medical certificate and whether he or she is properly certified for the helicopter model involved in the crash. It is important to review logbooks, because each pilot maintains his or her own log to record the flight time as pilot-in-command (the person aboard the helicopter who is ultimately responsible for its safe operation). Logbooks typically accompany the pilot, so they are often damaged or destroyed in the crash, especially if there was a post-impact fire. If logbooks have incurred significant smoke or water damage, techniques to preserve or even enhance their readability may be necessary, including freeze-dry technology.4
Environmental factors. Many helicopter accident investigators are trained to examine the pilot, the helicopter, and “the environment.” This last factor encompasses not only the weather but also all environmental factors prevailing at the time of the flight. No reconstruction analysis can be complete without an accurate assessment of conditions such as temperature, wind speed and direction, lightning, cloud cover, fog, and sudden or unexpected wind turbulence—which can occur because of weather conditions, other aircraft, or smoke from a forest fire. Fortunately, this information is readily and easily obtainable from the closest air traffic control facility or the National Climatic Data Center.
Many factors may cause helicopter crashes. The initial factual investigation usually will point to one or more causes, the most common of which follow.
Loss of main rotor control. The main rotor blade (MRB) is the only source of lift for maintaining powered flight—it allows the helicopter to fly. Any damage to the MRB itself or inability to control its rotation or pitch will result in a loss of control. Loss of main rotor control is commonly due to a malfunction in either the swash plate (a device that transmits flight controls to the rotor), linkage control, or a hydraulic system.
Loss of tail rotor function. Numerous helicopter crashes are caused by the pilot’s inability to control the tail rotor. The tail or antitorque rotor is designed to prevent the helicopter from spinning in the opposite direction of the main rotor blade.
Main rotor strike to fixed obstacle. While a helicopter’s hovering capability is a unique advantage, it is also a hazard. Whether a police chopper is hovering next to a city building or a tourist helicopter is hovering next to a glacier in Alaska, the danger of an inadvertent main rotor strike to a fixed object is ever present.
Component or system failure. It is often said that everything in a helicopter vibrates excessively—including the passengers. The excess vibratory stresses inherent in the structure of a helicopter lead to increased metal fatigue and cracking of safety-critical components. The added stresses on critical components led the FAA to designate shorter retirement lives for certain helicopter component parts.5 Excessive vibration often leads to catastrophic component failure with no prior warning and may involve a crack in a gear tooth, rotor blade, engine, or bearing, for example.
Engine failure or power loss. Engine failure is a potentially cataclysmic malfunction. Causes run the gamut from poorly designed nozzle guide vanes to faulty fuel pumps to component metal fatigue. In-flight engine failure often is reported by the pilot and preserved on the air traffic control (ATC) voice tape.
Wire strikes. The various uses of helicopters mean they tend to fly at significantly lower altitudes than fixed-wing aircraft, so they are much more frequently involved in wire strikes or contact with utility power lines, which may be all but invisible to the helicopter pilot.
Pilot error. Even when strong evidence points to a pre-impact mechanical malfunction, the pilot’s qualifications, medical condition, and actions will be meticulously scrutinized in every helicopter crash lawsuit. Common errors include improper preflight inspection, loss of situational awareness, loss of visibility, unintended ground impact, exceeding gross weight limits, and flying in hazardous weather conditions.
Pilot incapacitation. The pilot’s physical or mental incapacity to perform the functions of pilot-in-command frequently is the NTSB’s probable cause of a helicopter accident. For this reason, an autopsy of the pilot is routinely performed. The incapacity may result from alcohol use, drug impairment, or a catastrophic medical condition, for example.
Improper maintenance. Serious mistakes can occur when a mechanic works on or approves installation of parts, including using the incorrect size or type of part. The qualifications and experience of all mechanics working on the helicopter are subject to scrutiny, and improper maintenance includes failure to perform inspections at the recommended or scheduled intervals or neglecting to perform major overhauls or annual inspections. Reasons for these failures may include poor training, work overload or fatigue, improper oversight, or misplaced budgetary priorities.
Midair collisions. Like any aircraft, helicopters are not immune from colliding with other aircraft, with catastrophic results.
Avionics or instrument failures. Weather can make reliance on flight instruments essential. When instrument flight rules prevail and the accident seems otherwise unexplainable, a failure of any of the flight instruments is a potential cause. The pilot may report the loss of any flight instrument to ATC, and all flight instruments and their power sources should be examined thoroughly.
In-flight fire or explosion. The combination of high heat, hot metal, and fuel creates the deadly potential for an in-flight fire or explosion. Specialized fire investigators must be retained in such cases: These experts routinely look for indicia of in-flight fire, such as smoke and thermal damage in the cockpit and cabin. The investigation will center on the ignition source, as well as the condition and integrity of the fuel tank.
Midair or structural failures. A helicopter can suffer structure separation, such as losing a tail boom, horizontal stabilizer, or even the entire main rotor mast. One of the hallmarks of any midair structural failure is that helicopter components will be scattered along the flight path some distance away from the wreckage’s final resting place.
Fuel starvation, exhaustion, or contamination. Technically, fuel starvation signifies that fuel is not reaching the engine, while fuel exhaustion means the aircraft is running out of the usable fuel supply. The most common reasons for fuel exhaustion are insufficient fuel for the intended mission, whether due to the pilot’s error in trip planning or a line attendant or mechanic’s failure to fill the fuel tank to the level expected. Or the fuel gauge needle may have been stuck.
Sabotage and combat operations. Foul play is a rare cause of helicopter accidents. But when government officials or other dignitaries are involved in a crash, it is routine procedure for the FBI to investigate. The FBI or an investigator from the Division of Alcohol, Tobacco, and Firearms will check for exterior damage to rule out a direct strike at the helicopter, as well as to detect the presence of any explosives.
Weather and other environmental factors. As discussed earlier, any kind of inclement weather may play a role, including ice, snow, and heavy rain. The possibility of outside factors—such as a flock of birds or severe air turbulence from a commercial jetliner—also must be considered.
Air traffic control errors. ATC operators can make the same mistakes for helicopters as they do for fixed-wing aircraft. The most frequent error occurs when the controller commands a fixed-wing aircraft along a particular flight path that results in a direct collision into a helicopter.
A plaintiff lawyer must consider the level of occupant safety protection in a helicopter crash to determine any contributing causes of injury or death to a crew member or passenger. This is an aspect of the crash that the NTSB largely ignores, in part because the agency’s mission is to determine the probable cause of the crash. Because the ability to survive a crash cannot be its probable cause, NTSB often ignores crashworthiness issues.
The list of potential defendants in a helicopter case is extensive and includes the pilot, maintenance personnel, the manufacturer of the helicopter, its distributor, and its operator.
The helicopter’s lessor may be liable in some cases, because helicopter operators often lease aircraft from various financing entities. The owner or lessee has a duty to properly maintain the helicopter, and a fixed-base operator that provides services for the routine needs of aircraft is responsible for providing a safe and accessible landing area, refueling, maintenance, and passenger boarding services. Airport, heliport, or helipad operators may also be liable, as are flight training schools when a student pilot is injured or killed while on a training flight.
The engine manufacturer is another potential defendant, and a cozy relationship often exists between the helicopter manufacturers and their carefully chosen engine maker. The same is true for component part manufacturers. When a suspect component or system can be identified as having been designed, manufactured, and delivered by an outside manufacturer, that manufacturer should be included as a defendant. Certification or testing laboratories for the helicopter, along with the makers of the pilot’s helmet, seat, and seat belt also may be potential defendants.
In many situations, ATC operator actions or failures may have contributed to a helicopter crash. Most helicopter missions are not flown pursuant to a preassigned flight path and would not be under the auspices of the ATC, but ATC operators should be considered.
When the crash involves another aircraft, the pilot of that aircraft may be liable, especially if he or she was not familiar with the helicopter’s flight capabilities and darting maneuvers. If the helicopter strikes any object, liability may extend to electrical or utility companies, who have a duty to mark their power lines to make them visible to pilots. Wire strike protection manufacturers purport to provide protection in the event the helicopter flies into utility wires or cables.6
Finally, consider the liability of organizations that use helicopters. These include film production companies that use them for television and commercial advertising. And hospitals that use an air ambulance service enter into a joint operational agreement with the helicopter operator.
After painstakingly considering all the pertinent legal theories, jurisdictional options, and known facts of the case, plaintiff lawyers can determine the underlying cause of the crash, the identity of the defendants, and the path toward successful prosecution of their client’s case.
Gary C. Robb is a partner with Robb & Robb in Kansas City, Mo.
Helicopter Assn. Intl., Five-Year Comparative U.S. Civil Helicopter Safety Trends (2012), www.rotor.com/portals/1/safety/2012/4.pdf.
See Gary C. Robb, How to Select and Use Aviation Experts, Trial 18 (Nov. 2002).
See 14 C.F.R. §61, Certification: Pilots, Flight Instructors, and Ground Instructors (2013), http://tinyurl.com/06g6s4x.
Known as lyophilization, this is a dehydration process typically used to preserve perishable documents.
See J. Gordon Leischman, Principles of Helicopter Aerodynamics (2006).
These are large, scissor-like structures on the front of the helicopter designed to protect the aircraft from a wire strike.