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Liticaphobia?

Something unusual happened while I was at the AOPA Regional Fly-In in Groton, Connecticut: An air crash lawsuit at which I was scheduled to testify as an expert witness had settled on the eve of trial, leaving me unexpectedly with two unencumbered weeks on my hands. I was on the East Coast with my airplane and now could spend those two weeks however I pleased. For someone who hadn’t taken a vacation in years, this was cool!

Wright Brothers National Memorial

Wright Brothers National Memorial — Kill Devil Hills, NC

I decided to spend the first week exploring the Outer Banks of North Carolina, and the second week visiting friends in Raleigh and family in Charlotte. I also made arrangements with a flight school in Raleigh to get a much-needed Flight Review and Instrument Proficiency Check.

The two-hour flight from Groton to the Outer Banks was uneventful, and the last part of it was beautifully scenic. I spent the week in a small waterfront Airbnb with a balcony overlooking the Albermarle Sound, a few miles south of Kill Devil Hills where Orville and Wilbur first flew in 1903. It was a marvelously enjoyable, productive, restorative week.

Early Sunday morning, I checked out of my Airbnb and drove my rental car back to the airport to fly to Raleigh. I turned in my rental car, taxied my plane to the departure end of the runway of the small untowered airport, picked up my IFR clearance from Cherry Point Approach Control, and performed the usual preflight runup.

Like most piston twins, my Cessna 310 has four magnetos—two for the left engine and two for the right—controlled by four toggle switches. The preflight runup involves turning the mag switches off one at a time and checking for excessive RPM drop, unacceptable roughness, or abnormal EGT indications. My routine is to sequence through the switches from left to right, shutting off the left engine’s left mag first and the right engine’s right mag last. I’ve done this thousands of times in the 30 years I’ve owned this airplane, and I must confess I perform it somewhat robotically. This time, things were different.

Uh oh!

S-1200 magneto

Bendix S-1200 magneto

As I cycle the leftmost mag switch, the left engine quits cold. Yikes! I hastily flip the mag switch back on just in the nick of time to get it running again. I cycle through the remaining three mag switches and everything appears normal. I try the leftmost switch again. The left engine quit again.

Hmmm… Turning off the left mag kills the left engine. That means the right mag must not be producing any spark. Not good.

I briefly consider departing anyway—that’s why this airplane has two mags and two engines, right?—and instantly reject that idea. A wise aviation mentor once taught me that when making aeronautical decisions, I should always think about what the NTSB probable cause report would say. “PIC departed into instrument meteorological conditions with a known mechanical deficiency.” No way.

While taxiing back to the airport ramp, I think about the consequences of scrubbing the mission. It’s Sunday. I could order a replacement magneto first thing Monday morning. If I pay for overnight shipping, the mag might arrive by mid-day Tuesday, and the airplane might be back in the air by late Tuesday afternoon. I’ll have to cancel my Tuesday training appointment in Raleigh. I’ll need to find lodging and ground transportation for two more days on the Outer Banks. There’s a rental car waiting for me in Raleigh that’s probably too late to cancel…

Wait…I’m an A&P mechanic and my emergency toolkit is in the airplane’s wing locker. Maybe I can troubleshoot this mag problem and figure out a way to fix it. Maybe it’s something simple that doesn’t require ordering a replacement mag. Maybe I can improvise some battlefield repair…

I’m grasping at straws now, and realize the chances are somewhere between slim and none. But I’ve got to give it a shot, otherwise my plans for the coming week will fall like a row of dominoes.

An Open Door…

Open hangar door

Open hangar door, toolbox inside

Approaching the transient tiedown ramp, I notice a large hangar off to my right with the door wide open. I can’t believe my luck: Someone’s open on Sunday! Maybe I can get some help? I taxi toward the open hangar and shut down on the ramp in front of it. The huge hangar appears largely empty. I don’t see any people or airplanes inside, just a big red roll-around toolbox and some miscellaneous ground support equipment. A beautiful Waco open-cockpit biplane is parked on the ramp nearby.

I uncowl the left engine nacelle to inspect the right magneto and its associated wiring, but find no obvious defects. I disconnect the P-lead from the right mag, but that doesn’t fix the problem, so the problem must be inside the magneto itself. Ugh!

I walk towards the open hangar door. As I get closer, I spot a fellow puttering around deep in the bowels of the hangar. I walk over to him and muster up my most friendly smile.

“Good morning! I’m Mike, and that’s my Cessna 310,” I say, pointing at my airplane on the ramp.

“Good morning,” replied the fellow with a smile, “I’m Sam.”

“Nice to meet you, Sam,” I said. “I’ve got a problem and I’m hoping maybe you can help me.”

I proceeded to describe my plans to fly to Raleigh and my decision to scrub the takeoff because the right mag on the left engine was inoperative during my preflight runup.

“The mag completely dead?” Sam asked. “Not just fouled plugs?”

“Dead as a doornail,” I said.

“That doesn’t sound good,” Sam said as I nodded in agreement.

“Would it be possible for me to pull the plane into your hangar, so I can work on the problem?” I inquired, gesturing at the huge, vacant structure.

“Nope,” Sam replied curtly. That wasn’t the answer I was expecting, but Sam was still smiling, so I persisted.

“Any chance I could use this toolbox,” I pointed at the big red roll-around, “while I’m working on my airplane on the ramp?”

“Nope, I can’t let you do that,” Sam said, still smiling. My puzzlement continued to grow at Sam’s unexpected non-cooperation. Then I had a thought.

“Sam, are you an A&P?” He nodded in the affirmative. “Would YOU like to try troubleshooting my magneto problem?” It occurred to me perhaps he was viewing me as competition.

“Nope, I don’t have time for that. Gotta take some tourists up for a biplane ride,” Sam said. “Besides, I don’t work on magnetos; I always send them out.”  Sigh.

Ultimately, I managed to persuade Sam to lend me a ½-inch offset wrench and a small stepladder. With those and my emergency toolkit, I was able to remove the ailing magneto from the engine, disassemble it, resolve the problem, and put everything back together. Ultimately, I departed on my flight to Raleigh a few hours late, but my plans for the week remained unscathed.

Liticaphobia?

Over the next few days, my mind kept returning to interaction with Sam. He seemed like such a nice fellow. Why did he act toward me in such an uncooperative fashion? What would it have cost him to let me use his empty hangar and his unused toolbox while he was up flying the Waco?

Liticaphobia means fear of being sued

The only answer I could come up with was liticaphobia: the fear of being sued. Sam undoubtedly saw me as a lawsuit waiting to happen. There’s an old joke among aircraft mechanics that the most dangerous thing in aviation is an aircraft owner with a toolbox. I’m sure that in Sam’s mind, if he facilitated my hairbrained scheme of taking a magneto apart (something he stated he’d never do himself) and then anything bad happened, he would be contributorily negligent and vulnerable to civil litigation.

Sam is not alone. In my experience, most aircraft mechanics who work on GA aircraft have a siege mentality about the possibility of being sued. This fear casts a shadow over every decision they make. It causes them to practice “defensive maintenance”—performing more maintenance than justified on the grounds of safety-of-flight—and to be secretive about errors they make for fear that disclosure might lead to litigation.

Twenty-five years ago, before I became an A&P myself, I had an eerily similar experience at an airport in Northern California. I’d flown there for a business meeting, and when I returned to the airport dressed in coat and tie, I discovered to my horror that my right main tank had been misfueled with Jet A instead of 100LL. The fueling company had no A&Ps on staff, so I started contacting the various maintenance shops on the field looking for someone who would help me get my fuel system purged. Not one was willing to touch my airplane for fear of liability. Finally, I succeeded in persuading one A&P to agree to help me if I signed a blanket waiver agreeing to hold him harmless for anything that might go wrong. This mechanic then wanted to disassemble all sorts of stuff on my airplane that didn’t need to be disassembled in order to purge the system. Ultimately, I was successful in getting my airplane flyable again, but not without a terrible struggle.

Overblown

These days, I do a good deal of expert witness work in air crash lawsuits, generally on the defense side defending mechanics, shops and aviation manufacturers against claims by air crash victims. I can testify firsthand that aviation is a horribly litigious field, with way too many lawsuits for my taste.

Overblown

Mechanics’ fear of being sued tends to be greatly overblown.

At the same time, I can also tell you that mechanics’ fear of being sued tends to be greatly overblown. Mechanics are rarely the target of air crash lawsuits, simply because few of them are high-net-worth individuals with enough assets to be worth suing. In the relatively few cases where mechanics and shops do get sued, these suits virtually always settle quickly within the limits of their liability insurance (typically $1 million), simply because the plaintiff lawyers understand that there’s no more money to be had. That’s why these lawsuits almost always target aircraft, engine, and component manufacturers who tend to have deeper pockets.

This paranoia about being sued is not limited to aviation. Doctors have been practicing “defensive medicine” for decades, especially those in high-risk specialties like ob/gyn and anesthesiology. Teachers have become frightened to discipline unruly kids or even give them hugs, while seesaws are disappearing from schoolyards for fear a kid might get injured. Have you purchased a ladder or bicycle or baby carriage lately and seen how many warning placards they now have? The fear level is getting ridiculous.

The incidence of US civil (tort) litigation has remained essentially flat per capita since 1975, but media coverage of litigation has skyrocketed, and that coverage is overwhelmingly skewed toward reporting cases involving huge damage awards. This has created the perception that the risk of being sued is much greater than it used to be, and that the consequences are frequently ruinous for the defendant. That’s seldom the case.

Look at the facts: According to a Harvard University study, for every 100 people hurt in an accident, 10 file a liability claim, 8 are settled within insurance limits, and only 2 actually get to court. Of those that make it to court, the plaintiff wins only 30% of the time, and in those cases the median damage award is $30,000, almost always covered by insurance.

So my appeal to shops and A&P mechanics is to maintain a reasonable amount of liability insurance ($1 million is generally adequate) and then do the right thing without paranoia about being sued if something goes wrong. Enough with the CYA already!

Mike Busch is arguably the best-known A&P/IA in general aviation, honored by the FAA in 2008 as National Aviation Maintenance Technician of the Year. Mike is a 8,000-hour pilot and CFI, an aircraft owner for 50 years, a prolific aviation author, co-founder of AVweb, and presently heads a team of world-class GA maintenance experts at Savvy Aviation. Mike writes a monthly Savvy Maintenance column in AOPA PILOT magazine, and his book Manifesto: A Revolutionary Approach to General Aviation Maintenance is available from Amazon.com in paperback and Kindle versions (112 pages). His second book titled Mike Busch on Engines was released on May 15, 2018, and is available from Amazon.com in paperback and Kindle versions. (508 pages).

22 Comments

  1. Scott S. Mc Lain

    October 27, 2017 at 6:50 am

    Mike,

    Right you are! I am an A&P/IA as well and only wrench on my own planes for this same reason – fear of being sued. You suggest carrying insurance – the last time I checked the minimum write policy was $5,000 in annual premiums! This is just a bad situation…I mainly went back to school to get this done to give back to the community that helped me for so many years. Many A&P’s over the years helped me out of jams plenty of times…..times have changed – I also have flight instructor friends who feel the same way – trying to find a free lance instructor who is an MEII is becoming almost impossible. No one want to stick their neck out in fear of losing everything they have. Scott

  2. I agree. I am an A&P and would love to help out with a problem, but losing all that I have worked my life for is not worth the risk. It’s truly a sad situation. Steve

  3. Lawyers are KILLING America!!!! lawyers are law MAKERS now which is a DIRECT conflict of interests and should NEVER have been allowed. I can prove over and over that lawyers are the biggest problem in America. There was a day when good ideas were thought up by smart people and we ALWAYS benefited from those ideas or they failed on their own. Now anyone that wants to make something new has to spend thousands to millions to see if their idea is “suit proof” and the result is that many great ideas never get to the public. You can forget Piper’s idea of an airplane in every driveway. In fact, piper was sued out of business and Piper himself died penniless directly because of a law suit. A man in Georgia was out of gas in a Cub in and out of IMC and hit high terrain and even though the airplane was decades old and many other pilots had successfully flown that plane, the family sued Piped and won a huge settlement. THAT was the crime . The entire justice system has been bastardized by an overly complicated system designed by the lawyers to PREVENT the average person from accessing our courts and justice system. Forcing us to go to lawyers or face probable loss of everything, not to mention that if a lawyers loses you case they’ll STILL take all your money regardless of the outcome. They’re in a no way to lose situation. Until we get a grip on our justice system and the evil that lawyers do we will never be free in America ever again. We have no idea how much the “justice” system costs us as a whole. But it is a HUGE number. The insurance we all pay for liability alone is crazy. Get a grip America and grow a set. lawyers are our biggest problem. Just FYI, I have every land based powered license the FAA offers including A&P, IA. I’ve been in the biz more than 30 years. It wasn’t near as bad when I first got in the business as it is today and it will only get worse.

    • Perhaps you are right, but if Mike is correct that the incidence of tort claims has been flat, you are probably not. It is precisely the type of emotional reaction you are having that produces the litigation fear we face, not the lawyers or courts.

      Medical practice seems to be a good analogy as high-risk field. I think both the public and physicians seem to think medicine is ruined by lawsuits, but if you actually look at the data on lawsuits, claims and damages, the reality is much different. There is a saying in medical law that is worth remembering: “If you practice medicine to not be sued, you are probably practicing bad medicine. If you practice to not be sued SUCCESSFULLY, you are probably practicing good medicine.”

      I think excessive fear and anger about lawsuits is actually what causes people to perform poorly and get sued successfully.

      I disagree that the insurance we pay for liability is crazy. My car is worth about 10% the value of my plane and can kill just as many people, but my insurance policy for liability only is 25% the cost my comparable aircraft insurance policy that covers liability AND collision.

      • Scott S. Mc Lain

        October 27, 2017 at 9:06 pm

        The point is, if you have signed off an airplane as airworthy and there is an incident, crash or whatever and people are maimed, you will be taken to court. I know of an A&P who signed off an airplane 3 years prior. He was named in the suit – although he was exonerated, it cost him just about $25,000 to clear his name…..

        On the insurance side on A&P’s, experts recommend liability insurance for recent activity as well as an exit strategy that covers you for 3 years after your last logbook entry. Name another part of our society the recommends that!!!!

      • Well apparently you have an esquire tag on your name. Everything you touch or see has some form of insurance on it. From doctors to pilots we ALL pay the price of the justice system…and they will never sue each other. lawyers have gotten rid of many many good ideas and sued others out of business. They have driven the cost of literally everything up and the legal/justice system is our largest cost by far. Only lawyers can claim that the tort law suits cost the people less than 1% of the gdp…which is a total lie. Maybe the awards reflect those numbers but the real cost has to have many things considered…..insurance, loss of freedom, people not taking responsibility for their own actions, healthcare costs have SKYROCKETED because of lawyers and even our military can’t fire on the enemy without a lawyers being involved. The hidden costs are the largest costs and people seem not to notice things like there are absolutely NO (ZERO) diving boards in swimming pools and every trampoline has a safety net. The cost of every airplane made in the world and sold in the US today has more than 50% of the costs attributed DIRECTLY to the insurance/law industry. Even down to how easy it USED to be to get a field approval or a DER to sign off on an issue/item on aircraft and how impossible it has become today. I can go on for hours and if you’re a lawyer I can only say one thing….America WILL wise up and lawyers will become prey…..like they have turned all of America into. I look forward to that day….lawyers are the evil of the earth…BAR none….by the way…did you know that BAR stands for british accreditation registry? Probably do because I am pretty certain you’re a lawyer

      • I think that you’re missing the other point inherent in this discussion. While direct liability insurance is moderately expensive today (for A/C owners, A&P’s and shops) the real crime is the manufacturer’s liability costs that are passed on to the consumer as part of their purchase price. To give a real world example, I was fortunate to purchase a factory new Cessna 172R in 1998 for the princely sum of $144,000. While that seems low today (compared to a new 172 at upwards of $450k…for essentially the same aircraft) it was quite an investment on my part. When negotiating the purchase, the Cessna sales folks on more than one occassion stated that about 30% of the purchase price was their “litigation set-aside”. Apparently their actuaries were able to calculate for a give number of planes sold, X number would be involved in accidents and of those, Y number would sue and Z number would win a ridiculous jury award. So yes, while my $1500/year Avemco insurance policy at the time wasn’t too bad the ~$40k higher purchase price that I paid was not. Imagine how much of the current $450k selling price is there to cover future lawyer’s fees? Now, extend this line of thinking to everything product and service that you purchase and think about the cost to society. Flybob is right on point…the lawyers make the laws that they then benefit from prosecuting…win or lose.

      • Corporations and individuals are far more cautious now, to the point of paranoia, than in 1975, yet even a Harvard study admits that litigation has not decreased! Think about it. I can say a word about the medical business. Every lawsuit or preliminary witch hunt of which I knew the details was without merit, and every instance of real “stuff” was swept away. It seems not about reality so much as about money and opportunity. The result – defensive medicine, paranoia and secrecy, much as Mike suggested.

    • Flybob – you are certainly entitled to your opinion, and from your comments, I am sure that nothing I can say will change your mind. But MIke has correctly noted that there has not been any meaningful increase in tort litigation since 1975 – and the average recovery for tort cases has remained pretty flat as well. I “know” these things because I have been practicing law since 1973. There will always be aberant cases. I don’t know a thing about the PIper Cub case you described, but if you accurately described it, I can assure you that it was an exception, not the rule. My bet, however, is that your description of that case are completely wrong. The legal system you attack is not broken. And your attack on lawyers is a bunch of baloney.

      • It is NOT opinion…it is fact! Healthcare used to be affordable, car insurance, homeowners, aircraft….I can go on and on. And you say TORT has not had a meaningful increase…HOGWASH!!! If you mean to insinuate that the cost of the awards has not increased I would STILL call bullshirt. But the HIDDEN costs of tort is WAY out of control. Every single part on an aircraft is made by a vender. Every single one of those venders has insurance on their products…EXPENSIVE insurance…same as a doctor….and even if the doctor or aircraft manufacturer is never sued, the cost of production includes potential tort suits. Even the truck driver that delivers the parts pays for insurance and ALL of that stems from suits. And my description of the piper case IS accurate. And save your breath if you want to call me a liar….it only shows your own intelligence…and I believe you are another lawyer/liar. What about the suits where the winner prevails but STILL loses their business or home from “billable hours” which are WAY out of control. Don’t even THINK about trying to convince me that lawyers are not the most evil people on earth. Even above islam. I know MANY legal aids and help that work for lawyers…I KNOW lawyers do little when involved in a case…the aids do most of it and yet we are still billed hundreds an hour even though the lawyers hardly take part in the process…some $20 an hour chump does the work and the “firm” gets the profit. And they lie like a rug on the hours billed. AND they guarantee you NOTHING!!!! Go to a car mechanic and get your carburetor repaired…..it better work or you either get it fixed for free or get your money back. And they work for $50 an hour, not $400!!! The let’s get to the little problem of why is there no “loser pays” policy??? It’s because it cuts the money on the table right in half….doesn’t matter HOW fair it is. ALL suits should be loser pays PERIOD! But since lawyers MAKE the law (DIRECT conflict of interests) that will NEVER in a hundred million years ever happen. You’re right about one thing…you will never change my mind but I know for sure, we will NEVER be free in America so long as lawyers make the money and the law. I pray to God there will one day be a bounty on all of them. We need a FEW lawyers for prosecution and to help those who do not have the mental capacity to defend themselves but being against the law to “practice” law is a HUGE travesty and it prevents people from having fair access to the court system. lawyers are KILLING America…and if you stand behind them or are on, then your fate will one day be sealed by your unfair stupidity. lawyers are the scum of the earth…only lawyers defend their position…we the people do not. lawyers are the major cause of out loss of freedom and everything else in America that has gone wrong. The entire “justice” system is so far corrupt that it is irredeemable. America is finished if we do not get a grip on our justice/lawyers system……I believe that with all my heart…and for the record…I don’t care one iota what you think of me….I was poor when I was born and the entire time I grew up….I made something out of myself and a lawyer could end it all in a heartbeat….they almost have just in the extra cost of things……there was a day when $150K was a good living…..it’s not nearly the same as it was even ten years ago…ALL due to lawyers.

        • WOW, I cant believe other people as vehemently against the legal system as I am!!! I also have many stories to tell and comparisons to make but, lets keep this real simple. All the layers have family’s, houses, food bills, car payments etc. etc. The money for those things comes from the cream of the society, period. The society gets NOTHING for that money but more lawyers.

  4. Mike – I am a litigator, and while not specializing in aviation accident cases, I have handled several aviation cases in my 40 years of practicing law. One of my current clients is an engine overhaul shop and I have been involved in defending my client in several meritless lawsuits. Your thoughts and opinions on this subject are dead on point. Fear of litigation, mainly whipped up by sensational media reports, is way overblown. Your advice is spot on as well: Carry a reasonable amount of insurance and do what is right.

  5. Being in the medical field, I see the waste of money & risk to patients from ‘defensive medicine’. I guess that I’m just ‘old school’ enough & believe that building relationships and trust with patients is key, not defensive medicine. I’d rather do the right thing & take my chances (not everyone’s choice).

  6. Daniel A. Oppenheim

    October 30, 2017 at 4:57 pm

    This whole article starts with the “assumed” premise that “Sam” was afraid to get involved for fear of being sued if something went wrong. It could just as easily have been a matter of not performing maintenance on a Sunday or not wanting to get dirty just before flying some paying passengers. More likely than not, “Sam” has read one of Mr. Busch’s numerous diatribes against mechanics, and decided not to become the target of an article himself.

    Mr. Busch then proceeds to write an entire article based on his assumptions for “Sam” not wanting to help. Without “Sam’s” explanation at hand, all we are left with is conjecture and speculation, both of which are pretty weak concepts on which to write a diatribe against the evils of litigation.

    • Dan, keep in mind that all I asked of “Sam” was permission to use his empty hangar and his toolbox. I did not ask him to assist me, and initially had no idea he was a mechanic. I suppose he might have had some other reason for saying no to my requests, but in the absence of an explanation I had no choice but to speculate about what prompted his seemingly unfriendly behavior.

  7. Perhaps it’s true that tort cases (and maybe awards) are “flat”. Perhaps not. I’ve not checked the stats myself so “trust, but verify” hasn’t kicked in yet. I can say that the previous +1 Aviation Director for my state told me there were two programs in his department that were axed for liability concerns: The first was continuing ed supported for GA pilots. Evidently there is less liability incurred by searching for wrecks than by teaching the existing pilot population to make good decisions and thereby avoid a crast. The second instance he mentioned was a requirement by the State’s risk manager that the webpage listing seaplane landing sites be taken down. I was told by the Director that there was too much liability risk if a seaplane hit a log or landed in low water when rocks were just below the surface. Regardless of statistics, it remains true that “perception is reality”.

  8. One other point that skews the public perception: Many of the outrageously huge liability judgments that make the news are reversed on appeal. Problem is the original award makes the front page, while the dismissal shows up as a tiny article tucked in the back of the B section, if anywhere at all. Classic case in point is the recent $400M talcum power / ovarian cancer award that was just tossed.

  9. Friends of mine owned a fight school and maintenance business. Problem being, they had to get out of the aviation business when the county decided to close that airport and move to the former USAF SAC base. All of a sudden, the county mandate of excessive insurance liability coverage was exorbitantly high, and they couldn’t even come close to affording the new insurance minimums specified.

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