When a Learner Messes Up, Who Is Liable?

When something happens, be sure the authorities investigating it will come back to the flight school—and the certified flight instructor (CFI) to see if there were any red flags.

Under Part 61 the CFI who endorsed the client for solo is directly responsible for their actions. This is why some CFIs simply refuse to provide solo endorsements, preferring instead to teach only upper-tier tickets such as instrument and commercial. Often this is because something that happened in the past taught the CFI not to do it again. They won't even sign off on a learner's solo cross-country plan. Other Part 61 CFIs add caveats to their solo endorsements in an effort to protect themselves.

One of the most experienced Part 61 CFIs I know told me about a time a student pilot took an airplane into marginal VFR, trying to get a few laps in the pattern before the weather turned worse—and worse it became when he was on downwind. The student—because he was a student in those days—had a valid solo endorsement, and it was his responsibility to receive a weather briefing. The person who dispatched him was not a pilot, and her office was a windowless former closet in the back of the building, so she had no idea the weather was getting worse.

The student launched into what almost immediately turned into heavy rain. Although he claimed he could see the runway, the people on the ground could hear the airplane but not see it. The CFI arrived at the airport just as the student took off. He was surprised to learn the student had taken off and greatly relieved when the student landed after one lap in the pattern. There was a discussion about the preflight weather briefing. Had the student obtained one before the flight? The answer was no, although the student replied it had "looked pretty good" when he got to the ramp.

More discussion followed, and the CFI then added a line to all endorsements he gave for solo flight from that day forward that in addition to the weather minima included "student must obtain and document a weather briefing and determine aircraft performance before flight" and "student must notify CFI before flight." The latter could be done with a text message. The CFI wanted to create an electronic information trail: "Have you received a weather briefing? What are the winds and ceilings?" is how he often responded to the texts. 

Note: "Looks pretty good" was not an acceptable reply.

Some of the other CFIs at the school jeered at the CFI for being an overprotective nanny. The CFI stuck to his guns, saying he wasn't about to risk his career over something that could be addressed with a few lines in a logbook.

Under Part 141, the flight school, not the individual instructor, is allegedly responsible if there is an accident or incident. If the learner does something against school policy or violates an endorsement, some schools just remove the learner from their roles. In a best-case scenario, there is a discussion with the learner before separation takes place. Or it can be passive-aggressive—the learner comes in to find out they have been disenrolled from the school, can't access the online schedule, or they are flying with another instructor—with no explanation. When the learner is forced to switch instructors, they may be forced to repeat their training. This isn't required under Part 141, and sometimes it is just a ploy on the part of the school to run the learner out of money to get them to leave.

The latter often leads to the learner going to social media to share their negative experience or filing a complaint with the FAA or even the Veterans Affairs if the learner is using VA funds to pay for flight training. Sometimes the separation of the learner from the school is justified—like the learner who has flown with three or four different instructors who all refuse to fly with the learner again because he or she doesn't follow instructions because they are anti-authority, macho, impulsive, and invulnerable. Does this sound like someone you know?

Things get more complicated when the pilot with the hazardous attitude is a renter pilot. Most flight schools require a checkout flight before you rent their aircraft, and CFIs who witness hazardous behavior can do little more than offer admonishments or counseling to the errant pilot. 

If the renter’s skills are lacking and they are not receptive to more training and practice, it is within the purview of the CFI and business owner to deny the person renter privileges.

Most business owners would rather turn the person away than deal with the aftermath of an accident or incident. When there is an accident, especially one that results in a fatality, there is often an attempt to project liability on anyone even remotely connected to the flight.

This became vividly apparent in 2012 when there was an accident involving a 30-year-old Seattle area CFI who took two friends for a spontaneous night flight in an airplane that belonged to the flight school he worked at. He was not scheduled to fly that night. It was February, and the night was dark as in very little lunar illumination. The CFI had keys to the school. Security camera footage captured them entering and exiting the building. The aircraft departed and headed toward a mountainous area. Sadly, the flight ended in CFIT, controlled flight into terrain. According to the National Transportation Safety Board (NTSB) it was later determined the CFI had a blood alcohol level "four times the legal limit" to fly.

In the days that followed, the FAA sent representatives to the local flight schools to find out what steps they were taking to “prevent a situation like this from happening again” as it was suggested the flight school was somehow liable for the CFI’s decision to take the aircraft.

Many schools put their aircraft dispatch books under lock and key after the accident—and made it a rule that all flights must be on the schedule. The thought being that if someone took an airplane without permission, without following the rules, the school was not liable because the aircraft was essentially stolen.

Fear of liability can deny opportunities. A CFI that I trained recently told me about the challenges his flight school is having as it tries to set up a Part 141 program and partner with the local community college. The school district slammed on the brakes, fearing the liability issues of offering such a program. There was no room for discussion, and therefore no opportunity for education.

What makes this extra painful is that the Part 61 FBO had provided some introductory aviation classes with the local high school students and they were well received. The FBO was looking into the possibility of obtaining an advanced aviation training device (AATD) to continue the classes, but even that is raising some liability alarm bells. I hope it gets sorted out soon.

Liability usually breaks down to the fear of a lawsuit. The brutal fact is that you can be sued for anything—collecting on a lawsuit is a different story, however. How many teeth the threat of a lawsuit has depends on where you are in life. If you are in the position of supporting a family and have obligations, such as a mortgage or car payments, etc., a lawsuit is more of a threat. You won't even go there, and no one would blame you. But if you are a 20-something living in a shared apartment with a futon for a bed, stolen milk crates for furniture, and less than $200 in your bank account, you may not feel as if you have as much to lose.