Legal Memorandum: Concurrent Duty of Care in an Aviation Crash

Issue: Under the laws of the state of California, in the case of an aviation crash, does the negligence of a decedent absolve a defendant of liability for its own negligence?

The standard of due care in some cases can be concurrent.  The principles governing the concurrent negligence of pilots and ground personnel, such as air traffic controllers or flight service personnel, in aviation crash cases apply with equal force here.  Because “[o]ne who undertakes to render service for another which he recognizes as necessary for the protection of the other is liable in tort for his failure to exercise due care which results in increased risk of harm,” Calarie v. United States (W.D. Ky. 1984) 18 Av. Cas. (CCH) 18,393, 18,395, the duties of and liabilities imposed on, for example, air traffic controllers are “not necessarily circumscribed by procedure manuals and regulations but can arise from undertaking to perform services for a pilot,” Burchett v. United States (S.D. Ga. 1986) 19 Av. Cas. (CCH) 18,440, 18,447.  See also Spaulding v. United States (9th Cir. 1972) 455 F.2d 222, 226 & n.8 (air traffic controller duty to give warnings beyond those contained in manuals in certain situations, such as when the controller “is able to gather more accurate information or make more accurate observations than the pilot,” “is based on the simple tort principle that once the Government has assumed a function or service, it is liable for negligent performance”); Webb v. United States (D. Utah 1994) 840 F. Supp. 1484, 1514 (duties of flight service specialists arise “‘from both the dictates of the Flight Service Manual as well as the reliance pilots place on FSS briefers'”) […]