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RiddlePilot

RiddlePilot

New Member
This might be an old urban legend, but I had to ask.
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I've heard stories of CFIs riding as passengers in GA aircraft being violated after an accident, even though they weren't giving instruction on the flight. As a newly-minted CFI, this is kind of strange to hear (and a bit unnerving). Any truth to such reports?
 
I can hardly wait for the responses. I've been trying to track this one down for years without success.

There are a few NTSB report in which the probable cause of an accident included the actions of a CFI/passenger. But in all of them, the CFI was doing a more than just being a passenger. They range from the unfortunate, like this one where the Passenger/CFI, faced with an engine failure. attempted to help (personally, I think the result would have been the same if the passenger were not a CFI, but just another rated pilot )

http://www.ntsb.gov/ntsb/brief.asp?ev_id=20001211X15194&key=1

to the stupid, such as this one where the CFI essentially talked another pilot into flying in marginal conditions with an inoperative artificial horizon and ended up sharing the blame for the accident..

http://www.ntsb.gov/ntsb/brief.asp?ev_id=20001208X05581&key=1

But the CFI in the back seat taking a nap and being held responsible for an accident? No hits.

Some might see these two (and the few others) as prime examples of the urban legend, but I thing they illustrate two categories to be careful about.

In the first, taking action always involves the risk of being held for the consequences if you do it wrong. I'm not that thrilled with the idea, but I'm comfortable with accepting that level of responsibility. (Besides, despite the probable cause finding, I don't know whether there was any certificate action or civil legal action taken. There may not have been).

The other category is illustrative of a more general rule that if you act like a moron you're going to share the blame for what happens.
 
I don't have it in front of me now, but AOPA published a case in which a JAA Commercial Pilot, with FAA Private and Commercial priviledges, asked a CFI to fly along with him in a Diamond. The CFI explicitly told the other Pilot that he would not be providing instruction during the flight and that he would only be a passenger. Upon arriving at the destination airport the commercial pilot bounced the airplane and the CFI suggested a go around. The commercial pilot began to execute the go around and then suddenly changed his mind at 300' agl, he closed the throttle, and then proceeded to take the airplane off the end of the runway. NTSB decided that the CFI was the ranking pilot and therefore responsible for the accident. FAA suspended the CFI's certificates for 30 days. The CFI appealed, and an administrative law judge agreed with NTSB that the CFI was in fact partially responsible for the safe conduct of the flight, even though the Commercial Pilot was PIC, however; the judge concluded that the CFI could not have anticipated the Commercial Pilot's actions and so could not have prevented the accident by taking control of the airplane. The law judge vacated the certificate action against the CFI.

AOPA published this info in an article concerning the logging of PIC time. Many CFI's log dual given even when they are only a passenger in an attempt to increase their time. According to AOPA the FAA is aware of this fact and will typically try to go after the CFI. At the very least, the CFI will be questioned about his/her role in the incident and his/her awareness of what was happening. The FAA may also ask to examine the CFI's log books. The pilot can screw you too, if he tries to claim that you told him to do whatever it was he did.

AOPA made the point that as a CFI passenger, it is important to establish that you are not acting in any capacity as an instructor while you are on board the aircraft as a passenger. In theory, if you start offering opinions or advice as to how the pilot is flying, NTSB can conclude that you are in fact instructing and therefore partially responsible for any accidents/incidents. If you survive an accident you could also be sued by the pilot's family, even if you had nothing to do with the accident. The family may not win, but it will cost you to defend. If you are worried, buy CFI insurance, it's relatively cheap and well worth the money.

I know exactly where the article is in my hanger bookcase and I'll dig it out tomorrow. It's kind of scary.
 
I don't know but that incident just doesn't seem to make any sense at all. The CFI made it clear that he was not going to exercise his instructional abilities and as such would be a passenger on that flight. Now I have a question had the instructor fallen asleep (perhaps he got tired) and the same incident occured, would he have been found at least partly at fault? I can see how he would if they had descended below an MDA or something on an instrument approach or something where a glaring error was dismissed by the instructor. However if a pilot is landing his plane, bounces, tries to execute a go-around and aborts that go-around what the hell (sorry for the explitive) can the instructor do??? Go back in time so they are maybe 3000 more feet before their landing point. That's absurd! That's just my 2 cents.
 
That is why the law judge found in favor of the CFI. A couple of notes though. The airplane belonged to the school that the CFI worked for, not the commercial pilot. They had the airplane at an airshow at which the CFI and the pilot had volunteered to work for the school. The pilot volunteered to fly the Diamond back to the school but he had not flown a Diamond before. He asked the CFI to ride along and provide an aircraft checkout, the CFI refused, stating that the checkout was unneccessary, and it was agreed that the CFI would only be a passenger. The NTSB agreed that the pilot was current and qualified in class and category and therefore did not legally require a checkout.

The real problem is the trust and understanding between the pilots and an often unforgiving FAA/NTSB. If the problem was something that you could have reasonably noticed and corrected than you may be held responsible. You may have agreed that you are not acting as an instructor, but you are still an instructor in both the FAA's eyes and the other Pilot's eyes. Even if the other pilot agree's that you are not acting as an instructor, there is an assumption that an experienced pilot (read instructor) is onboard, and would not be likely to let things get out of control without saying something. I have to admit that I have flown with owner's many times and I'm usually very aware of what they are doing during critical phases of flight. I have flown with relatively experienced pilots, in their own airplanes, that have done dumb things like porpoise the airplane or lose control in cross winds and then just stop flying because they think I will fix it, (and believe me, I do!
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It is unfortunate perhaps, but you are assuming a big responsibilty when you become a flight instructor. The FAA tends to be heavy handed with instructors, and insurance companies are always looking for a scapegoat too. Beware! It could even be argued that it is unreasonable for an experienced pilot (read CFI) to be sound asleep, while sitting at the controls, in the right seat, during a landing. I wake my passengers up during critical phases of flight so that they can be alert and prepared in case there is an emergency.

I'm not saying I agree or disagree with any of this, I'm simply passing on what I read and heard. I have saved out of control landings many times, seconds before, during, and after touch down and many CFI's have been found responsible for a students faulty landing. In this case, the CFI could have taken control, applied full throttle, and continued the go around. The commericial pilot claimed he freaked out and didn't know what to do, and thought the CFI would take over, an arguably reasonable assumption given the CFI's greater experience. Would you have just sat there? I wouldn't have! And the NTSB didn't think the CFI should have either.

Crazy stuff. Lawyer's like crazy stuff, especially when dealing with distraut families and an uninformed jury.
 
[ QUOTE ]
but you are still an instructor in ... the other Pilot's eyes.

[/ QUOTE ]That's where the problem occurs. We take on an added responsibility as CFIs because others will often look to us. That's the real issue in the one I linked about the flight with the inop attitude indicator. "Oh go ahead, it's okay" are words of responsibility when you know that your advice will be respected and you will be looked to because of your status.

Compare those with

www.ntsb.gov/ntsb/brief.asp?ev_id=20001213X30493&key=1

where a CFI was in the back seat, the PIC was an idiot, the CFI attempted to help out when the emergency occurred, and the sole probable cause issued by the NTSB was the PIC. The CFI didn't even get a "contributing factor" mention.

BTW, when reading the NTSB reports, you will often come across the phrase CFI/Passenger or Pilot/Passenger. That does not mean the CFI was =only= a passenger. The NTSB looks at people in an airplane as either required crew or passengers. If someone is not required crew, that person is technically a passenger. So, for example, these two situations are different and will be reflected that way in the reports:

CFI acting as PIC giving flight instruction to a rated pilot - the rated pilot is referred to as passenger

CFI giving flight instruction to a rated pilot, where the rated pilot is acting as PIC - the CFI is referred to as passenger
 
At the risk of getting long winded (too late, I know
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Jim King, from the Atlanta FSDO-11, was at Georgia Aviation and Technical College a couple of weeks ago to let us know about the FAA's new "Instructor Surviellence" program. In Mr. King's opinion (and so, the Atlanta FSDO's opinion), instructors choose to be instructors, and it is very much a priviledge. The FAA feels that instructors are at the forefront of aviation, especially now that the military is training fewer pilots, and so are responsible for shaping the future of aviation. Jim King's opinion is that instructors need more recurrent training, and periodic check rides, just like Part 135 and 121 pilots. Jim let us know that the FAA intends to start paying closer attention to instructors now that they are getting all of the FSDOs in to the modern computer age.

If you ask your local FSDO Inspectors whether or not they hold an instructor to a higher standard than other pilots, I think you will find the answer is always yes.

If I had a buddy that was a police officer, I would still expect him to stop me from doing something illegal, even if he was off duty.

Wouldn't it be nice if our CFI pay reflected all of our liability?!
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[ QUOTE ]
Wouldn't it be nice if our CFI pay reflected all of our liability?!
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[/ QUOTE ] I'm still not convinced of "all that liability".

Ever see what CFI insurance costs? A CFI policy is a regular non-owned aircraft policy with an additional provision to cover instructor liability. It costs about $100 more than the exact same policy without the CFI part. So, the insurance companies are perfectly happy to cover "all that liability" for $100 per year.

I'm looking forward to seeing that article you mentioned.
 
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The FAA feels that instructors are at the forefront of aviation, especially now that the military is training fewer pilots, and so are responsible for shaping the future of aviation.

[/ QUOTE ]

Want better instructors? Pay more.

It's really that simple. Higher pay = more selectiveness. More selectiveness = better quality of instructors. Better quality instructors = forefront of aviation.

Unfortunately aviation is a profit motivated venture and thus low pay for "entry level" jobs will always be a problem. And if low pay is always a problem the vast majority of instructors will always be "temporary" minded.

Vicious circle.
 
Mark, I'm still trying to find an on-line link to the article on AOPA's web site. It's buried there somewhere. It's title "Pilot Counsel: Pilot in Command?" by John S. Yodice, and it was originally published in the November, 1995 AOPA Pilot magazine. If you PM me a fax number I'll be happy to fax you a copy.

When it comes to insurance, if you are talking about Avemco's "CFI Non-owned" policies, you are correct, they only charge slightly more than renter's insurance, however; if you read the fine print, they are not covering the CFI for third party lawsuits brought about by the CFI's negligence during or after instruction. True CFI third party liability insurance, insurance that will cover you against a suit brought by the estate of a student for negligence, is far more expensive and difficult to get. Falcon Insurance has a policy for NAFI members that is better, but the coverage is still bare bones, $5000 for legal defense will barely cover the retainer charged by any decent attorney. Most policies, with the exception of Falcon's, will not cover legal fees to defend FAA/NTSB enforcement actions, so in fact you can't judge the amount of liability involved simply by looking at the premium charged.

To think that there is little or no liability every time you endorse a student for solo, or conduct an insurance check- out, or send a student off on a cross country, is a dangerous mindset. I am not saying that we should be paranoid as instructors. I personally build, sell, rent, and teach in Ultralights as part of my flight school business. If I was in the office hiding under my desk I wouldn't be able to survive. I do think that it is important to think and teach defensively. Document everything you do, cross every t and dot every i, follow the Regs to the letter, and you don't have to worry all that much about liability. Of course, being a broke CFI and not owning anything helps too!
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. Lawyers don't like to sue if there's nothing to get (a good arguement against carrying insurance).

Fortunately, it's been my experience that most people in this business understand the risks they are undertaking and they choose not to sue each other.
 
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To think that there is little or no liability every time you endorse a student for solo, or conduct an insurance check- out, or send a student off on a cross country, is a dangerous mindset.

[/ QUOTE ]Agreed. No question about it. Any time you get into an airplane to give instruction you are exposing yourself to a liability risk. And when you sign off a student pilot, you are responsible for what they do. Those are the risks that are inherent in teaching.

I'm far less convinced about the insurance checkout, The whole spiel is part of my personal FAQ. Here's the copy and paste:

==============================
As a veteran of some of these discussions, it seems that the CFI liability that everyone worries about is virtually non-existent, and the liability that exists is one few CFIs worry about.

Specifically, my personal analysis (which means I rely on it but you can't) is that our liability as instructors are, in order of highest to lowest):

1. When we are in the aircraft. Pretty obvious, but this seems to be the one that most CFIs don't seem to worry about.

2. When a student pilot is soloing.

[Big Gap. Cavern, actually. But these are the ones that CFIs tend to be most concerned about]

3. The day after a BFR or IPC.

4. The day after the pilot passes a checkride based on our recommendation.

[Grand Canyon]

5. Sometime later.

Truth is that I've never even heard of a real case that isn't covered by (1) or (2). Not too surprising. When the last time you heard of a medical school sued for a graduate's malpractice?

And I've asked. I've been running an on-line challenge for about 5 years now: Tell me about a real situation when a CFI was successfully sued because of something that happened when the CFI was not in the airplane. No urban legends allowed. No, "Well, I heard about this guy who was the third cousin of a nephew of my ex sister in law who..."

I've managed to collect a total of two solid references.

First is a case from 1958. A flight school was successfully sued when a student pilot took off with the control lock on.

Second is not a case. In response to my "challenge" someone mentioned (and I was able to verify) an NTSB determination of "improperly instruction" as a probable cause of the accident in which there was a fatality. I count it because it's highly likely that the CFI was sued or that his insurance settled (unless he was totally uncollectible).

So that's about it. Two real examples over the last 36 years. Huge liability! Scares the crap out of me. Not.

I'm still collecting.
==============================
 
I agree with you Mark, completely. And again, let me state that I really don't think it's neccessary to be paranoid!!!

On a slightly different note, did you read in AOPA Pilot a couple months ago about what happened to the Frasca's last year? They, and their mechanic, got sued for what turned out to be pilot error on the part of the person suing them. The Frasca's, and the mechanic, eventually won, but it cost so much in legal fees, and insurance premium increases, that they got out of the business of maintenance, flight instruction, and rental, entirely. Kind of like a scaled down version of the Parker Hannifin Corp law suit. We live in a law suit crazy world.
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If you are looking for examples of lawsuits brought against CFI's, and more commonly, flight schools, I think you might want to contact AOPA's legal department, they can, and will, give you numerous examples of lawsuits brought against CFI's, both succesful and unsucessful. 9 times out of 10, these types of tort claims are dismissed for lack of cause, but it can still be expensive to defend. Many lawsuits never make the newspapers, most people aren't very proud of them and they get settled with out much publicity. My company, which I own, was named in a lawsuit by a woman that slipped and fell on a public side walk outside of our building, she collected $20,000 from my insurance company, even though it was a public side walk! The company told me that it was cheaper than defending the suit. I was furious. It never made the news papers, and I doubt you could find any reference to it anywhere.

As far as the original question, and FAA enforcement is concerned, AOPA's website has several hundred articles on the subject on line. It's a fantastic resource and makes for some interesting and educational reading.
 
[ QUOTE ]
The real problem is the trust and understanding between the pilots and an often unforgiving FAA/NTSB. If the problem was something that you could have reasonably noticed and corrected than you may be held responsible. You may have agreed that you are not acting as an instructor, but you are still an instructor in both the FAA's eyes and the other Pilot's eyes. Even if the other pilot agree's that you are not acting as an instructor, there is an assumption that an experienced pilot (read instructor) is onboard, and would not be likely to let things get out of control without saying something. I have to admit that I have flown with owner's many times and I'm usually very aware of what they are doing during critical phases of flight. I have flown with relatively experienced pilots, in their own airplanes, that have done dumb things like porpoise the airplane or lose control in cross winds and then just stop flying because they think I will fix it, (and believe me, I do! ).



[/ QUOTE ]

So if you are an instructor and sitting at a set of controls, and an emergency should occur then, by default as the highest rated pilot, you will be held partially responsible? If you are liable, as these posts suggest, wouldn't this be a justification for logging PIC time as an Instructor/Passenger?
 
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So if you are an instructor and sitting at a set of controls, and an emergency should occur then, by default as the highest rated pilot, you will be held partially responsible? If you are liable, as these posts suggest, wouldn't this be a justification for logging PIC time as an Instructor/Passenger?

[/ QUOTE ]No. First of all, no one has suggested that in these CFI/passenger situations, the CFI was the =only= one held to have some responsibility.

More importantly, remember that the rules of logging PIC time have absolutely nothing to do with flight responsibility any way.
 
I thought, by your first 2 NTSB reports, that you had shown that CFI's were liable if they are passengers and offer any kind of advice/insight, in the case of an emergency?
 
[ QUOTE ]
More importantly, remember that the rules of logging PIC time have absolutely nothing to do with flight responsibility any way.


[/ QUOTE ]

Not entirely true. A safety pilot, whom both pilots agree is acting PIC, will be held responsible for any errors/mistakes/infractions/etc. of the pilot under the hood who is also flying the aircraft and usually logging that time as PIC through the "sole manipulator" rule. If the safety pilot does not agree to be PIC he or she can log the time as SIC or simply not log it at all.
 
That's partially the point of the article. If you are going to try to use the "I'm just a passenger defense", then you had better not log it. If you do intend to log it as dual then you should log the students name and sign his log book for good measure. Many times when I have flown with an owner on a friendly basis, it has turned into a dual session and we both log it as such. It's helpful to the other pilot for insurance and currency purposes, and it increases my dual given experience record, which is also helpful for insurance. On a side note, I personally will only log a landing if I actually have the controls, or if I had to take control in order to save a landing. Many instructors log every takeoff and landing.

One crazy logging case AOPA discussed was about two MEI's that bought an old Apache and flew together, they both had identical hours in their log books. They claime one was always giving instruction and the other was receiving. When they had an accident with the Apache the FAA examined their log books as part of the investigation and the FAA issued emergency certificate revocations for both pilots. The pilots appealed to the NTSB and they lost the appeal. The judge (a non pilot type) was even harder on them then the FAA because he didn't understand how time was supposed to be logged. It seems that the point came up that the pilots were logging Hobbs time and the judge (again, he was not a pilot) thought they should only be allowed to log engine tachometer time. They were charged with intentional logbook falsification. The pilots even succeeded in proving that the engine tach was slow, but to no avail.

Always remember the FAA Moto: We're not happy until your not!

Reference article: "Pilot Counsel: Watch What You Log", AOPA Pilot Magazine, April 1994.
 
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It seems that the point came up that the pilots were logging Hobbs time and the judge (again, he was not a pilot) thought they should only be allowed to log engine tachometer time. They were charged with intentional logbook falsification. The pilots even succeeded in proving that the engine tach was slow, but to no avail.

[/ QUOTE ]

Eh? They couldn't prove that nobody ever uses tach time for logging? Man, that's some judge. :-\

Seriously though, I appreciate the excellent replies in this thread. I can see that while a CFI/passenger (not giving instruction) isn't exactly "on the hook" in an accident, the fact that a lot of pilots in touchy situations expect the CFI to "make it all better" can be a real problem.

This whole legal discussion makes me wonder about something, though. If I were to be a passenger on a pleasure flight with some friends of mine, I wonder if it might be a decent idea to leave my flight instructor certificate at home. This way, if something did happen while someone else was PIC, I could not have been legally able to exercise the privileges of my certificate, and therefore avoid some potential legal hassles. I dunno...that's probably a paranoid approach, but it's something to chew on.
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Interesting thought. Probably wouldn't help much if you had an overzealous FAA inspector, but an interesting thought.
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Statistically, it's highly unlikely you'll ever have to worry about it, especially if you are at least a little selective about who you fly with.
 
[ QUOTE ]
This whole legal discussion makes me wonder about something, though. If I were to be a passenger on a pleasure flight with some friends of mine, I wonder if it might be a decent idea to leave my flight instructor certificate at home. This way, if something did happen while someone else was PIC, I could not have been legally able to exercise the privileges of my certificate, and therefore avoid some potential legal hassles. I dunno...that's probably a paranoid approach, but it's something to chew on.
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[/ QUOTE ] It wouldn't' help. Remember that in the "no one was planning on this being a training flight" situation, the problem in many isn't that flight instruction was really being given, but that there was a more experienced pilot on board. Leaving the certificate at home doesn't help with that. CFI status may be an almost automatic example, but there's a lot of other situations that might make you be similarly "looked up to".

Greg, I got the fax. It was 5 pages long and I didn't see the situation you were talking about earlier. I'm familiar with the Tomahawk case that's described. Despite the CFIs protests, as I read the case, and even Yodice's synopsis (parts of which I disagree with, but that's not all that ususual) it was absolutely clear to me that the CFI was in the airplane giving flight instruction. And, even in that context, the CFI was cleared because a CFI is =not= responsible for everything, even if he =is= giving instruction. If anything, I see the case being a relatively good one for CFIs.

Here's the case itself - it's a pdf file

http://www.ntsb.gov/O_n_O/docs/AVIATION/4384.PDF
 
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