Ryan Seib is an AOPA panel attorney who holds a doctorate of law and is an associate attorney at Horn & Johnsen, SC in Madison, Wisconsin. In addition to being an active private pilot, Ryan presents aviation law courses and writes about aviation law in areas throughout Wisconsin.
Consider the following hypothetical: a woman visits a friend who owns a small aircraft. They want to go for a flight. Before boarding, the friend hands her a document entitled “Liability Release Agreement”. She reads and signs it. After takeoff, the engine quits and they crash into a field, killing her and injuring the pilot. The major question is what, if anything, can be predicted about the outcome of the resulting wrongful death lawsuit?
The effectiveness of liability waivers for passengers, also variously called “hold harmless agreements”, “exculpatory agreements”, or “covenants not to sue”, is uncertain. Attorneys have opined on this topic before. As of today, the uncertainty cannot be fully resolved. Federal laws leave the matter largely open to state interpretation. Local court decisions are usually not published, either. Most guidance therefore comes from the few published decisions from cases that were appealed.
There are certain known facts that frame the question, however. All else being equal, a signed piece of paper is better than no signed piece of paper. If the waiver came from an aviation attorney, it is likely better than the local fitness gym’s waiver with the names changed. Waivers are generally only effective for ordinary negligence, not for gross negligence or violations of law. Like any contract, a waiver is typically void if signed by a minor. We also know that courts will initially consider waivers against public policy. The reason is narrower than usually supposed, however.
Public policy means protection of the public. But adults can voluntarily assume risk. Where courts tend to throw out waivers is when waivers risk lowering the standard of care. For example, when pilot error is the cause of harm, courts want to keep the pressure on pilots to fly safe, not take small liberties sanctioned by a waiver.
I recommend clients use waivers as just another tool in a layered risk-management strategy, and salt to taste. Some pilots are uncomfortable giving waivers to passengers in certain situations. The key is to realize the trade-off between comfort and the potential benefits of a waiver. And, realize that proper presentation is key. The right time to present the waiver is not while taxiing. Sending a waiver a couple of days ahead of time to the passenger in an email is better. The communication can be prefaced that the pilot’s attorney requires it. If the passenger is an employee, provide them with alternatives to flight.
The next question regards how much risk is actually managed. This is a matter of study and attorney advice. Briefly, it involves, (1) how well the waiver is written, and (2) the circumstances of its presentation. Having an aviation attorney who is a member of the bar of your state create or modify an existing waiver for the pilot fulfills the first category. Next, anyone who has tried parachuting may have noticed that these groups do it best. It is wise to find out what they are doing. Yet, there is no answer that fits all situations. It may help to think about the following scenario of what a lawyer would consider ideal:
A waiver, entitled “High Risk Activity Voluntary Waiver of Liability by Adult Participant”, is emailed to the prospective passenger ten days before the flight. The email contains instructions for the passenger to review with family and consult with an attorney regarding its contents. The email provides contact information for AOPA and other organizations to find a local aviation attorney. The pilot’s license number and instructions on how to check into the pilot’s qualifications are provided. The email recommends the passenger attend safety seminars put on by the FAA, and states that the flight can be postponed for the passenger to look into safety and aviation related matters as much as needed. Have the waiver signed in advance by the passenger and the passenger’s family members.
The waiver is written from a first person point of view. For example, “I agree to give up my rights to sue…”. When the passenger arrives for the flight, go over the waiver with them by reading it verbatim. Videotape all of this. The pilot fills in blanks describing the pilot’s PIC time, the aircraft engine time, the type and limitations of the aircraft, its last annual, and the area of operations on the flight and future flights with the passenger. Have the passenger fill in their previous experience and knowledge of flying including the safety risks. Have the passenger initial each paragraph and pause for questions. Have them show their identification, and then sign at the bottom. Have two witnesses also sign.
While uncertainty remains, it is only uncertain how effective the waiver is. There is no question of negative usefulness. At the very least, the waiver weeds out passengers who do not understand the risks. At best, it serves as protection against personal liability.
If you expect to fly passengers, you should always consider the limits (and sublimits) of your liability coverage. Waivers are still one of the weaker tools in your risk-management toolbox, after safe flying and proper insurance. Your insurance coverage is your first line of defense in case of a mishap. With those insurance limits in mind, you can discuss the possible benefits of a waiver with aviation counsel and determine whether a waiver makes sense for you.