Minimizing Flight Instructor Liability
One of the most significant areas of concern in today's flight training environment is that of flight instructor liability. It is not difficult to understand this concern considering the litigious nature of society. As flight instructors, our exposure to litigation occurs not only during the administration of instructional activities, but may continue for extended periods of time thereafter.
According to Jerry Eichenberger, author of General Aviation Law, "A . . . the instructor has all of the liability, not only to the student, but also to any other person who might reasonably be foreseen to come into contact with that [accident] flight." Mr. Eichenberger continues, "A The flight instructor has a duty not only to fly the airplane safely while giving instruction, but also to instill basic concepts of safety, judgment and attitude in the trainee. If an accident arises, it is the flight instructor who will answer to the FAA and the civil courts as well."
Regardless of our personal motivations for becoming flight instructors, the threat of litigation in our chosen position is very real. Fortunately, however, we are not helpless. The flight instructor does have certain strategies available to minimize the potential for litigation. While no method is ever 100% effective, the following guidelines may be helpful in establishing the credibility of the flight instructor facing potential litigation.
It is important to understand that the flight instructor has a legal duty to provide complete and thorough flight training in accordance with all applicable Federal Aviation Regulations. If, in the opinion of the court, the flight instructor has failed to adequately perform this legal duty, the instructor may be guilty of negligent liability, i.e., the flight instructor breached his or her duty to the individual receiving flight training. Consequently, the most important strategy to use in minimizing exposure to potential litigation is COMPLETE ALL TRAINING REQUIRED BY FEDERAL REGULATIONS! There is no excuse, nor defense, for omitted training. The most effective method available to assure that all required training items have been accomplished is through the use of a training syllabus. The syllabus is a valuable tool to use in conducting training activities in an orderly and systematic manner.
At the completion of each training event, it is extremely important for the flight instructor to create a written record of all training conducted. Unlike FAR Part 141 Approved Schools, flight instructors operating under FAR Part 91 are not required to maintain extensive training records. FAR 61.189, Flight Instructor Records, requires the CFI to maintain, for a period of three years, the name of each person whose logbook or student pilot certificate he or she has endorsed for solo flight privileges. Additionally, a record of each person the instructor has signed a certification for a written, flight, or practical test, including the type of test, the date of certification, and the result of the test must be maintained. When endorsing a pilot to take a practical test for a certificate or rating, the flight instructor certifies the applicant has been given flight instruction in all areas of training required by regulations. Unfortunately, this endorsement, while adequate for the purposes of certification, is not a satisfactory defense in court. In many cases, the court will assume that training not recorded in a permanent record has not been accomplished. Without evidence to substantiate the testimony, the question of whether specific training has been conducted becomes a debate between the instructor and the plaintiff. Most juries and courts, however, realize that the defendants (the flight instructor in this case) recollection of events tends to be beneficial to his or her own position.
Because the flight instructor is always the pilot in command during pre-certification instructional flights, it is important to conduct training in accordance with Federal Aviation Regulations and safe operating practices. Additionally, the student has no authority to contravene any decision made by the flight instructor. This means that the instructor should never allow the student to engage in any maneuver that exceeds the performance capability of the aircraft or the personal ability of the instructor.
It may be helpful for the flight instructor to encourage students to sign the training record at the completion of a training event, thereby certifying that the required training was accomplished. If the flight instructor does not feel this is appropriate, an Exculpatory Release and Assumption of the Risk Agreement may be acceptable. This agreement releases the instructor from liability resulting from flight training activities. It must be stressed, however, that this type of agreement may not stand up in court, especially if it is determined that the instructor was grossly negligent in conducting instructional activities.
Finally, consider purchasing a flight instructor liability insurance policy. There are several variations of this type of policy ranging from protection against damage of rental aircraft to professional liability coverage for both bodily injury and property damage sustained during dual instruction and after instruction has been completed. This type of policy is currently available through the National Association of Flight Instructors and Avemco Insurance.
To review, flight instructors should:
- Provide complete and thorough flight instruction in all required training areas
- Operate instructional flights within the confines of the FARs and safe operating practices
- Keep good written records of flight instructional activities
- Have students sign training records or Release From Liability Statement
- Confirm insurance coverage with the glider owner or consider purchasing a non-owner policy covering instruction activities