Quoting Mir (Reply 99): And insurance is expensive because manufacturers have been sued on the past.

And the manufacturers were sued because people died. Don't tell me you're going to blame the relatives of dead people for suing the manufacturers that didn't make their planes safe...

Like it or not, aviation is an ultra-hazardous activity, where mistakes made in manufacture or operation lead to the loss of life. That's not true of other industries nearly so much. That's why precision matters (driving up costs), that's why materials matter (driving up costs), and that's why training matters (driving up costs). Lawyers only come in when people are not precise, choose the wrong materials, and have deficient training. Lawyers only come in to protect and enforce the rights of those to whom a duty of care was owed and breached.

Quoting Soon7x7 (Reply 96): be a human, BIG difference between shattered roofs and splattered family members

You're right -- those two are different. In fact, when there are human lives involved, it is even more crucial that rights are protected and enforced. The roof can wait.

Like it or not, aviation is an ultra-hazardous activity,

Actually it is an ultra-safe activity, comparably. But we have an ultra unreasonable expectation about air safety since so many people are publicly involved at once during an aircraft incident.

Many more people are killed in auto accidents. Yet you can fly around town standing up on a city bus, held in place by only one hand on a rubber strap. Try standing up on a taxiing commercial aircraft.

Quoting KFLLCFII (Reply 12): ALWAYS confirm runway heading against aircraft heading.

I'm not a pilot but that sounds like a reasonable and self-explanatory check for the crew to make for me. It really tells the consistent story that one seemingly insignificant item can cause tragedies as history has shown time and time again. Whether this is actually on the compay's checklist or not is interesting. I am really not sure what the FO hopes to gain from this lawsuit and really runs the risk of having the crew's actions (or lack of) exposed to a far greater audience. While most of us are interested in the broad synopsis of an accident, few get right into the detail of the report, whch will now be out there even more.

Quoting Jasond (Reply 103): am really not sure what the FO hopes to gain from this lawsuit and really runs the risk of having the crew's actions (or lack of) exposed to a far greater audience.

I don't see what the poor guy has left to lose - he left hospital having lost a leg, suffered brain damage, and in a wheelchair as a result of a fractured spine. Turns out that the pilot's widow, Mrs. Clay, is also sueing along similar lines (Excerpts - link to full story below):-.

"First Officer James Polehinke, the sole survivor, and Amy Clay, the widow of Capt. Jeffrey Clay, filed similar lawsuits last week in U.S. District Court in Lexington over last year's crash.

"The plaintiffs allege negligence by the Federal Aviation Administration, Blue Grass Airport and Jeppesen Dataplan Inc., which made the runway charts used at the airport.

"Comair Flight 5191 crashed Aug. 27, 2006, shortly after taking off from the wrong runway - a general aviation strip too short for a commercial jet.

"The National Transportation Safety Board found last month that the accident was primarily caused by the failure of Clay and Polehinke.

"However, the lead investigator said other factors were involved, including a fatigued air traffic controller, a short-staffed control tower, outdated airport charts and missing paperwork that would have warned the pilots about a construction project that changed the taxi route.

"In the lawsuit, attorneys for Amy Clay and Polehinke said the FAA, the airport officials and board, and Jeppesen did not follow proper rules and procedures to ensure the safety of the plane."

http://www.examiner.com/a-906084~Co_...__Widow_Sue_Over_Comair_Crash.html

OK guys - anyone care to start saying that the widow shouldn't sue either, since the whole thing was her own fault for marrying a guy who couldn't fly properly.....?  

Quoting NAV20 (Reply 104): I don't see what the poor guy has left to lose - he left hospital having lost a leg, suffered brain damage, and in a wheelchair as a result of a fractured spine.

When you put it like that, not a lot probably, apart from what may be left of his tarnished reputation. I know he will never fly again but sometimes what people think of you as a professional is important especially after your professional life is over for whatever reason, good or bad.

I can't recall but was he the PIC at the time or was it the unfortunatley deceased Captain? If the latter then the FO could argue he is going into bat on his behalf and hopefully the victim's families. If he was the PIC at the time he would have to make absolutely sure he did everything right and can reasonably prove other factors worked against him otherwise the lawsuit is self defeating.

Another aspect is that we can say the lighting on the day was in part, defective. Ultimately the airport management operates the airport and hopefully do it safetly. Either way you look at it the airport management would be the target of a potential lawsuit in this case. The contractor maintains the lighting, sure. But the managers have to sign off on it, yes??

Quoting Drgmobile (Reply 102): Actually it is an ultra-safe activity, comparably.

Safe and ultrahazardous are not inconsistent with each other. Ultrahazardous activities can often be made safe, but as far as the law is concerned, the standards of care shoot up when the activity is ultrahazardous. Ultrahazardous means simply that a mistake will likely cause a death. (Other common ultrahazardous activities made safe are refineries, blasting, racing, making pharmaceuticals, etc.) And if the activity is ultrahazardous, the actors have to do the utmost to make it safe, or they will be liable for the harms caused.

Quoting Drgmobile (Reply 102): Many more people are killed in auto accidents. Yet you can fly around town standing up on a city bus, held in place by only one hand on a rubber strap.

Dude, you're messing with stats now. How many cars are on the roads at any given moment versus how many planes are in the skies? The ratio is probably 10,000:1.

Even still, you can't possibly say that a car accident presents the same risks as a plane accident.

Quoting Zvezda (Reply 82): One would expect that workman's compensation claims would not be payable if the employee's injuries were self-induced through suicidal recklessness

Someone correct me if I am wrong, but gross neglegence is probably all it takes to be denied.

Negative, I'm NOT blaming poor visibilty, I'm blaming our poor planning...I'm saying that as a result of pre flight briefing ,knowing the vis was down , a more careful study of our intended route and the expectation that poor vis MAY create the very situation that occured.If blame is to fall on anyone shoulders, it would have been both mine and my partner at the time.Can't always see into the night but pre flight information while on the ground makes your life in the air so much better. If LEX is notorious about some runway vis or layout problems and it has been an ongoing thing, I personnaly feel any and all pilots should exercise extreme caution and patience with this published knowledge when positioning around that airport.My way of thinking may be my version of a perfect world but as pilots,but we are trained to think that way, regardless of type, size aircraft.

Nav...possibly I'm one of a kind,when I took on flying I vowed to myself at any time if I become unfit physically to command a ship or my actions as a pilot directly caused imminant danger and my actions as PIC were found to be sub standard, I would be the one to clip my own wings....I wouldn't need a judge ,jurry etc to call it. I've made close to 7,500 take off and landings in non powered aircraft and plenty of power flights as well.When I f/up really bad some day,I'll know it and thats all I need to know.I believe in accountability no matter how hard it will sting...j

Quoting Cross757 (Reply 87): Interesting... Perhaps some of our fellow enthusiasts who have experience in ATC could shed some light on this: is it procedure or just technique to include the runway number in a takeoff clearance? Or perhaps is it not required when it is considered intuitive, such as an airport with only a single runway and/or the aircraft is already in position and holding on the runway?

I know that I'm totally splitting hairs here, but every strip of pavement constitutes two runways  

I think one other factor has to be taken into consideration with regard to the ATC. The two runways meet like a V. The Comair flight went out to the base of the V and then proceeded to use the left part of the V instead of the right. I am not sure the ATC could tell which way he was pointing anyway.

Quoting D L X (Reply 95): Quoting Soon7x7 (Reply 94): isn't aviation law handled on a different level than street law? Tort law is tort law, whether it is in the air, on the sea, under ground, or in a box with a fox and a cat with a hat.

Right. I think a lot of people are up in arms on this case because while it's almost indisputable that the company making the lights is not PRIMARILY at fault, that's not the standard you need in torts. Now let me try to go off on a riff here to try to explain this to non-lawyers.

There are two basic standards for dealing with a case where BOTH the plaintiff (Polehinke) and the defendant were negligent. Tort law is almost all state law, and these standards vary widely from state to state. Under one doctrine, "contributory negligence," if the plaintiff is AT ALL negligent (even only 1%) in creating the harm, then that negligence serves as a full defense for the defendant's action. For what are probably fairly obvious reasons, lots of states didn't like that standard. So they moved to another one, "comparative negligence," by which the relative negligence of the two parties are compared when assessing damages. Thus, it is only a partial defense. Many states actually fall somewhat in the middle, but that's unnecessarily complex for this forum and irrelevant.

Kentucky is a pure comparative negligence state. Therefore, according to law, if 10% of the damage was caused by the confusing runway lights, then the light company pays 10% of the total damage as assessed by the jury. In this case, Polehinke obviously was a big contributor to the wrong, probably on the order of 10%. That means that he's responsible for 90% of the damages, but as he doesn't have to pay the damages to himself, that's irrelevant to this case. The problem for the company is that Polehinke likely alleges a HUGE amount of damages (although I haven't seen an actual amount). If the jury finds damages of 10 million dollars, and that AVCON's share of the damages was 10%, that's still a million bucks plus their legal bills.

Now, of course, if this suit were filed in a contributory negligence state (like Virginia, where I live), Polehinke's case would be absolutely terrible because his negligence is nearly undeniable. But under Kentucky law, he can probably recover a fairly large amount of money even if the percentage is small.

Sorry folks, but that's the law.

Sorry, in that last post I meant to say Polehinke's contribution was 90%, not 10. Please excuse the typo.

Quoting Jasond (Reply 105): I can't recall but was he the PIC at the time or was it the unfortunatley deceased Captain? If the latter then the FO could argue he is going into bat on his behalf and hopefully the victim's families. If he was the PIC at the time he would have to make absolutely sure he did everything right and can reasonably prove other factors worked against him otherwise the lawsuit is self defeating.

Sorry to be so late replying, Jasond - that turns out to be a very interesting question. I think we've all been assuming that the F/O was the 'Pilot Flying' and handled the taxi out and the lineup. Turns out - from a closer look at the CVR transcript - that the Captain taxied out and lined up; the F/O only took control at the last moment, for the actual takeoff:-

"06:05:41.3 - HOT-2 transponder's on, packs on, bleeds closed, cleared for takeoff, runway heading. six grand.
06:05:45.4 - HOT-1 all right.
06:05:46.4 - HOT-2 anti-ice off, lights set, takeoff config's okay, line-up check's complete.
06:05:51.2 - CAM [sound of clicks similar to pilot adjusting his seat]
06:05:57.6 - HOT-1 all yours Jim.
06:05:58.9 - HOT-2 my brakes, my controls."

The transcript isn't clear but the F/O may even have been 'in back' briefing the passengers on the PA when the actual lineup was carried out - you can't work out exactly when he returned to the cockpit.

Quoting Jasond (Reply 105): Another aspect is that we can say the lighting on the day was in part, defective. Ultimately the airport management operates the airport and hopefully do it safetly. Either way you look at it the airport management would be the target of a potential lawsuit in this case. The contractor maintains the lighting, sure. But the managers have to sign off on it, yes??

That's also interesting. This article confirms that the runway lights were giving repeated trouble, and that the pilots knew about it. It's established that the centre-line lights on the main runway, 22, were not working - and the article suggests that the edge-lighting was also giving continual trouble. So maybe the Captain wasn't as surprised as he would have been normally to find himself lining up on an un-lighted runway - and neither was the F/O when he took over?

The article also states that the lighting system cables were completely renewed the following October.

Only thing to add is that I read somewhere that the airport management is technically a 'government operation' and has successfully applied to the court for, and been granted, immunity from prosecution.

[i]"On Aug. 25, 2006, the airport issued a notice to pilots that "numerous lights" on the main runway were out of service. That night, at 1:40 a.m. Aug. 26, Polehinke landed at Lexington on a flight from New York. The captain of that flight told the NTSB that only about an eighth of the edge lights on Runway 22 were lit.

"The problems were fixed the following day.

"The NTSB reported that the day after the crash, during a nighttime inspection of the route the Comair plane took to the wrong runway, investigators witnessed dimming runway lights.

"Those problems were fixed the next day.

"According to the NTSB, the lighting problems were caused by ground faults. The entire lighting system cable was replaced on Oct. 18, 2006, NTSB documents state.

"About 12 minutes before the accident, Polehinke told Capt. Jeffrey Clay, "Came in the other night it was like lights are out all over the place," according to the NTSB transcript of the crew conversations picked up by the cockpit voice recorder.

"As the aircraft began its takeoff roll down the wrong runway, which was not lighted, Polehinke said, "Dat weird with no lights," according to the transcript.

"Yeah," Clay answered.

"The plane crashed 17 seconds later."

http://www.courier-journal.com/apps/...cle?AID=/20070828/NEWS01/708280438

In defence of both pilots, it's maybe worth inviting people to have a look at this:-

http://aviation-safety.net/database/airport/airport.php?id=LEX

Enlarge it a bit an you'll see that, to get to Runway 22, you have to taxi right across the threshold of Runway 26. And that the number of 26 is located in a very odd place, right on the threshold, way to the right of the likely taxi path and very possibly out of the throw of the landing lights as they taxied out in the rain and dark.

Soon7x7, I can only say that I agree with everything you say in Post 108; any pilot must accept final responsibilty for the safety of the aeroplane and everyone on board; and, equally, disqualify himself from flying if he ever has doubts about his own capabilities or competence, not wait for other people to do it.

But that doesn't absolve everyone else concerned from the duty to do their own jobs efficiently and reliably - everyone connected with aviation in any capacity has that 'duty of care.' The more I look into this case, the more I sense a large measure of what we call here ''CYA' - "Cover Your Arse."

One poor bloody crippled survivor out of 50 'souls on board' - who didn't even make the original mistake of lining up on the wrong runway himself, just accepted what his captain had done - and a whole load of bureaucrats appear to be doing their best to make sure that he bears 100% of the blame.

Quoting NAV20 (Reply 112): Turns out - from a closer look at the CVR transcript - that the Captain taxied out and lined up; the F/O only took control at the last moment, for the actual takeoff:-

From what I understand, the CRJ (and perhaps most commercial jets as well) only has the ground steering "tiller" on the Captain's side of the cockpit, therefore the Captain has to taxi the jet. Someone please correct me if I'm wrong (which I have no doubt someone would).

Perhaps then it is ironic that the Captain paid for his mistake with his life, and that the F/O has to live with the consequences...

the duty of the F/O is to assist the capn while he taxies, it doesn't matter who is taxying...the F/O is required to be on top of things....

if you fly with an a/c that doesn't have GPS, the shift error in the IRS can result in a display of a position that isn't quite where you really are, which means that on parallel runways, this could be tricky,...

Quoting NAV20 (Reply 112): In defence of both pilots, it's maybe worth inviting people to have a look at this:- http://aviation-safety.net/database/airport/airport.php?id=LEX Enlarge it a bit an you'll see that, to get to Runway 22, you have to taxi right across the threshold of Runway 26. And that the number of 26 is located in a very odd place, right on the threshold, way to the right of the likely taxi path and very possibly out of the throw of the landing lights as they taxied out in the rain and dark.

I'm sorry but it is no defense. All the lights could have been turned off, in the middle of a nasty thunderstorm, with the alphabet painted at the end of the runway instead of the numbers and it would have still been the fault of the pilots because they didn't verify the heading. They failed to do something so critical and so basic. Nothing else honestly matters. They blew it. I don't want to sound too harsh but this just seems to be cut & dry to me.

Quoting Indy (Reply 115): They failed to do something so critical and so basic.

Largely correct, Indy. Must admit, on the rare occasions that I got to fly anything expensive enough to have an autopilot, I always used carefully to set the bug to the runway heading - partly because of the novelty of having such a marvellous aid, and partly to help me fly straight before I even turned the heading hold on. And I'd tend to agree that a heading difference of around 40 degrees - 260 as opposed to 220 - ought to have been big enough to be noticed.

But, as was very ably explained by ADCA above, we're talking percentages here; essentially, whether the F/O was 100% to blame and hiss suit is frivolous, or whether he has a case that is worth testing in court.

On the evidence, the Captain taxied out, and turned not on to the main runway but on to the first runway he came to, the shorter GA runway; both runways being either unlit or only partially lit.

The Captain lined the aeroplane up and failed to check the heading. The F/O then took control and ALSO failed to check the heading.

So we start with both pilots being to blame. Logically that cuts the F/O''s responsibility to 50% straight away. Further, also logically, a number of further questions arise, like:-

1. Whether the runways should have been adequately-lit.

2. Whether up-to-date charts showing the seven-day-old taxiway diversions should have been prepared and issued.

3. Whether clear illuminated signage and/or barriers should have been installed.

4. Whether there should have been two controllers in the tower (as required by the FAA) so that one of them had the time to make a visual check before issuing takeoff clearance.

If the answer to any of those questions is 'Yes' - and, on the evidence I've been able to put together, the answer to ALL of them is 'Yes' - those factors will tend if anything to reduce the F/O's share of the blame to somewhere below the 'maximum' level of 50% established above.

So the F/O appears to 'have a case' - which is all that I've been arguing.

There is a more important angle, though. For whatever reason, the evidence strongly suggests that 'Blue Grass Airport, Lexington, KY.' was being run on a shoestring - defective runway lights, slapdash signage, messy un-signed taxiway works, only one over-worked controller on duty when the regulations require two........

That pattern of declining standards is being repeated at airports all over the world, especially the smaller ones. If the bean-counters get away scotfree in this case they'll feel free to go on 'saving a dime' any way they can, and standards will sink still lower. I for one don't want that to happen.

[Edited 2007-09-01 18:05:04]

Quoting IADCA (Reply 110): There are two basic standards for dealing with a case where BOTH the plaintiff (Polehinke) and the defendant were negligent. Tort law is almost all state law, and these standards vary widely from state to state. Under one doctrine, "contributory negligence," if the plaintiff is AT ALL negligent (even only 1%) in creating the harm, then that negligence serves as a full defense for the defendant's action. For what are probably fairly obvious reasons, lots of states didn't like that standard. So they moved to another one, "comparative negligence," by which the relative negligence of the two parties are compared when assessing damages. Thus, it is only a partial defense. Many states actually fall somewhat in the middle, but that's unnecessarily complex for this forum and irrelevant.

   Check out Reply #60, I'm in exact agreement with you. This is purely a legal issue. It also may be an effort by the FO to get some kind of recognition that he wasn't the ONLY one at fault, regardless of what he may receive through a judgment or settlement.

Quoting D L X (Reply 105): And if the activity is ultrahazardous, the actors have to do the utmost to make it safe, or they will be liable for the harms caused.

Do courts actually consider aviation to be an ultrahazardous activity? I was under the impression that if the activity is deemed ultrahazardous, then there is strict liability, regardless of safety precautions taken. Maybe it's different in New York.

Quoting PC12Fan (Reply 1): Then he should sue himself as well, makes just about as much sense.

I was about to slam on the guy until I remembered the extent of his injuries. That made me remember to be sympathetic to the guy - for a moment. I wish he would man up and say "I was at fault" and face the music. Not all the families would forgive him, but it would be a nice shock in a culture that often eschews personal responsibility.

Quoting SW733 (Reply 3): He might as well take a chance.

   HIs dying gasp, it seems.

Someone remind me, please - when they turned onto the short runway, the taxiway extending to the longer runway was closed (I believe) - how were they supposed to taxi then to the longer runway? Were they to taxi on the closed runway to the longer and takeoff with shortened runway distance? That's how I remember I thought it would happen after looking at the airport layout.

Quoting HuskyAviation (Reply 117): Do courts actually consider aviation to be an ultrahazardous activity? I was under the impression that if the activity is deemed ultrahazardous, then there is strict liability, regardless of safety precautions taken.

That just means that foreseeability and negligence are out. If the thing happened, then the actors are guilty. All of them.

Quoting Allstarflyer (Reply 118): I wish he would man up and say "I was at fault" and face the music.

People, listen.

*** Filing a lawsuit does not say that the plaintiff insists he is not at fault. *** It says that at least some other people are also at fault, and everyone must pay for their share of the damage.

Quoting Allstarflyer (Reply 118): Someone remind me, please - when they turned onto the short runway, the taxiway extending to the longer runway was closed (I believe) - how were they supposed to taxi then to the longer runway? Were they to taxi on the closed runway to the longer and takeoff with shortened runway distance? That's how I remember I thought it would happen after looking at the airport layout.

Diagram here (bottom left). It appears that the normal taxiway leading to the threshold of Runway 22 was blocked off. Departing flights were supposed to use a taxiway leading from the threshold of Runway 26 to a point on 22 some distance from the end (which is presumably more normally used as an exit for arrivals landing eastbound?). Instead, the Captain turned on to Runway 26.

http://www.usatoday.com/news/washing...06-08-28-ntsb-kentucky-crash_x.htm

Quoting NAV20 (Reply 112): One poor bloody crippled survivor out of 50 'souls on board' - who didn't even make the original mistake of lining up on the wrong runway himself, just accepted what his captain had done - and a whole load of bureaucrats appear to be doing their best to make sure that he bears 100% of the blame.

I admit, its a tough one. I am not a pilot but as the little flying I have done has told me the idea of doing elementary things such as confirming a runway heading against an actual heading seems so obvious and elementary.

Quoting NAV20 (Reply 116): But, as was very ably explained by ADCA above, we're talking percentages here; essentially, whether the F/O was 100% to blame and hiss suit is frivolous, or whether he has a case that is worth testing in court.

Maybe the argument then in this thread is all wrong. If the Captain taxis out and the FO takes over at the last minute who is checking what?, particularly in these conditions. You would think as a crew that vigilence would be even more important when you know the conditions are not ideal. The essential principles of CRM demand that this is true. I would not want to say one member of the crew was more to blame than the other and then attach a percentage value to that blame. For mine the whole crew were not operating at their best that day which makes the FO as the sole representative of the outfit taking a big risk here. Under these circumstances he is either trying to absolve himself at the expense of the Captain OR trying to defend the Captains actions as part of the WHOLE crew, remember there is no 'I' in team  

Lets also throw this into reverse. The Singapore Airlines 747 accident in Tapei highlights that no amount of confirming runway heading against actual heading would have averted disaster because the incorrect runway was parallel to the correct runway. Were the crew blameless, NO. The conditions were awful and there were loads of mitigating factors but the utlimately the crew turned the aircraft onto the wrong runway despite a well documented closure. Pilots are in command of the aircraft from the moment it pulls away from the gate, period. Conditions vary every day and at different airports. At the end of the day this ComAir crew turned the aircraft onto the wrong runway. Crash investigations and the recommendations they put forward make sure this accident should not happen again. Lawsuits don't.

Quoting Jasond (Reply 121): If the Captain taxis out and the FO takes over at the last minute who is checking what?, particularly in these conditions.

That's really what I've been getting at all along, Jasond. If you asked a hundred people that question you'd probably get a hundred different answers. That's the function of the courts - they provide a forum where all parties can deploy their arguments and the judge or the jury makes a final ruling on behalf of us all.

As far as I know, the general rule in cockpits is that each pilot assists, checks, and double-checks the other; but I don't think you'd find many people who would dispute that the final responsibility rests with the Captain.

Quoting Jasond (Reply 121): For mine the whole crew were not operating at their best that day which makes the FO as the sole representative of the outfit taking a big risk here.

Quoting Jasond (Reply 121): Under these circumstances he is either trying to absolve himself at the expense of the Captain OR trying to defend the Captains actions as part of the WHOLE crew, remember there is no 'I' in team

Not the sole 'representative', Jasond, the 'sole survivor.' I rather agree with an earlier poster who said that it's entirely possible that the F/O is simply trying to protect his reputation as far as possible. Don't forget, too, that he's sueing along with the Captain's widow - who very possibly has a similar sort of motivation.

In practice, also, they have probably to cooperate closely with the airline in any litigation. If the pilots are saddled with 100% of the blame that means that the airline's insurers will have to pay every cent of the millions of dollars that the relatives of the dead passengers willl undoubtedly be awarded.

Quoting Jasond (Reply 121): Crash investigations and the recommendations they put forward make sure this accident should not happen again. Lawsuits don't.

The investigation phase has already been completed - see above the long list of recommendations the NTSB made as to how the FAA and the airport management should 'lift their game.'

About 'lawsuits,' they are as certain as 'death and taxes,' if only because someone has to assess the amount of compensation due to all the relatives etc. But as I indicated above, I believe that they also serve a purpose in encouraging authorities like airport managers and the FAA not to cut any more corners in areas that have a bearing on safety. In that connection, the only court judgment that has so far been issued in case is a ruling that the airport authority (effectively, Lexington-Fayette County) has 'sovereign immunity' due to it being a government body. So the only people who have so far rushed off to court are in fact the bureaucrats.

http://news.cincypost.com/apps/pbcs....cle?AID=/20070803/NEWS01/708030342

Additionally, the NTSB has found that the FAA (responsible for ATC) did not contribute to the accident even though it ignored its own regulations by having only one controller on duty. Reading about their detailed findings in the matter, it's difficult to see how on earth they arrived at that conclusion:-

"The National Transportation Safety Board was deliberating on Thursday the cause of the Aug. 27, 2006, crash of Comair Flight 5191, which killed 49 of 50 people on board after the jet tried to depart from the wrong runway - a general aviation strip too short for a proper takeoff.

"The board discussed a staff recommendation to enhance airport taxiway markings and cockpit map displays in response to the crash and said the accident also points to the dangers of a distracted crew.

"NTSB staff concluded controller Christopher Damron should never have turned his back to do an administrative task "not critical to flight safety" as the jet was preparing to depart.

"However, the staff dismissed as a non-factor the violation of a Federal Aviation Administration directive calling for two controllers to work overnight shifts in airports like Lexington - one to keep an eye on the ground, the other to monitor radar.

"NTSB board member Deborah Hersman, the lead investigator on scene right after the crash, disagreed with the finding and suggested there were numerous causes - nearly all of them human.

"That's the frustration of this accident - no single cause, no single solution and no 'aha' moment," Hersman said. "Rather than pointing to a mechanical or design flaw in the aircraft that could be fixed or a maintenance problem that could be corrected, this accident has led us into the briar patch of human behavior."

"Staff members also concluded the flight crew's lack of updated maps and notices alerting them to construction that had changed the taxiway route a week earlier was not a factor in the navigation error."

http://www.wkyt.com/flight5191/headlines/8872892.html

Pilots most definitely bear the final responsibility for safety. But that's not the same as saying that they bear the SOLE responsibility. If that were true, manufacturers could build aeroplanes any way they liked, there'd be no need for any kind of certification procedures, there'd be no need for Ground Control or Air Traffic Control, the NTSB could close down.....we'd be going back to the 'Wright Brothers' days.......  

Quoting NAV20 (Reply 122): Not the sole 'representative', Jasond, the 'sole survivor.'

Apologies NAV20, not a good choice or words on my part, I am also trying to keep the emotive aspects of his personal situation out of the debate, no doubt he has suffered a great deal.

Quoting NAV20 (Reply 122): That's the function of the courts - they provide a forum where all parties can deploy their arguments and the judge or the jury makes a final ruling on behalf of us all.

Which brings me back to your earlier observation that there 'could' be some merit in testing this in court. Whilst not being an expert I am interested in constitutional law particularly that aspect of it where the foresight of the original authors is tested against scenarios in the future that they may not have considered. Going through that process naturally tests the strength and spirit of the original document but also adds to the knowledge base of human experience in terms of continued improvement. I will concede that this lawsuit may have merit:

1) If parties holding responsibility accept accountability (shared or otherwise) to ensure improvement during the process;

2) If the process adds value in terms of gaining experience in dealing with these matters in the future;

3) If the process contributes to the enhanced operating safety of the industry either by reinforcing current recommendations contained in the NTSB report or indeed considers other recommendations that may be presented to the FAA; and

4) If compensation is deemed due during the process, that it should paid.

Considering the above, the lawsuit may be considered 'less frivilous' on those terms, lets hope so.

Quoting NAV20 (Reply 122): I rather agree with an earlier poster who said that it's entirely possible that the F/O is simply trying to protect his reputation as far as possible. Don't forget, too, that he's sueing along with the Captain's widow - who very possibly has a similar sort of motivation.

I did also allude to that possibility earlier (see reply 104). This I think is the nub of what is being discussed in this thread and that is the underlying motivation on the part of the unfortunate FO. We simply don't know what that is yet.