If your A&P seems over-cautious and self-protective, there’s good reason.
By Mike Busch
Mechanics have always been subject to FAA sanctions: certificate suspension or revocation, fines, warning notices, letters of correction, and remedial training. But enforcement actions against GA mechanics were exceedingly rare. The most common way for a mechanic to run afoul of the FAA is to “pencil whip” a logbook entry—for example, stating that some Airworthiness Directive (AD) was complied with or some other inspection or repair was performed—and then the FAA finds that the work wasn’t actually done as documented. If a mechanic is caught “autographing a lie” by the FAA, his certificates are probably toast.
That said, it’s pretty easy for mechanics to avoid getting crossways with the FAA. The regulations that govern mechanics (Part 43) are far more concise and understandable than those that govern pilots and aircraft owners (Parts 91). Part 43 contains just 13 rules and they’re remarkably straightforward. Reduced to its essentials, Part 43 simply requires that a mechanic:
- Perform work “by the book” per manufacturer’s instructions or using other written guidance acceptable to the FAA.
- Use the proper tools per manufacturer’s recommendations or industry practice.
- Do all work in such a fashion that the aircraft is safe to fly, conforms to its type design, and complies with all applicable ADs and airworthiness requirements.
- Memorialize all work accurately in the aircraft maintenance records.
- Get supervision when doing any maintenance task for the first time.
Pretty commonsense stuff. A mechanic who makes a good-faith effort to follow these simple rules is unlikely to get hassled by the Friendlies.
Civil Liability
But an A&P who complies with these regs isn’t out of the woods. If an aircraft he works on winds up in an accident, the mechanic could find himself hauled into court as a defendant in a civil lawsuit, accused of negligence and facing ruinous money damages and legal expenses.
Under civil tort law, there’s no need to show that a mechanic violated a regulation to find him negligent. It is only necessary to convince a jury that he “failed to exercise such care as would be reasonably expected of a prudent person under similar circumstances,” either by doing something a prudent mechanic would not do or by failing to do something a prudent mechanic would do. It’s not necessary to prove such negligence “beyond a reasonable doubt” but only by “a preponderance of the evidence”— the jury need only conclude that it’s more likely than not that the mechanic acted negligently.
This “prudent mechanic” standard is a fuzzy one. Suppose, for example, the plaintiff attorney representing the widow of an air crash victim alleges that a mechanic who worked on the aircraft was negligent because he failed to comply with a mandatory Service Bulletin (SB). We all know that there is no FAA requirement for a Part 91 owner to comply with SBs (even so-called “mandatory” ones) unless the SB is explicitly mandated by the FAA via an AD or Airworthiness Limitation. Realistically, most Part 91 operators don’t comply with most manufacturer’s SBs, nor are they required to.
Can a mechanic be found negligent if he doesn’t comply with a SB? Would a prudent mechanic have complied with the SB? What if the mechanic recommended that the SB be complied with but the aircraft owner said “thanks, but no thanks”? How would a jury of citizens who have no background in aviation, aircraft maintenance or FARs decide these questions? If you’re an A&P, this stuff that keeps you awake at night.
Nightmare Scenario
Consider this hypothetical scenario created by aviation attorneys Stuart Fraenkel and Doug Griffith and derived from a composite of actual air crash lawsuits:
Peter Pilot of Charlie’s Charter Service Inc. is flying passengers in a 1979 Cesscrafter 780 on leaseback from Oscar Owner and maintained by Mike Mechanic of Pristine Repair Corp. During an approach in IMC while being vectored by ATC, Peter Pilot is twice observed deviating from assigned altitude and heading and has to be given corrections. Shortly thereafter, the airplane enters a spin and crashes, killing all on board. Witnesses tell NTSB investigators that they heard the engine sputter.
Investigators find that Peter Pilot’s medical expired a month before the crash. The toxicology report showed the presence of diphenhydramine (Benedryl) in his blood. The airplane’s tail section is located about 100 yards from the main wreckage. Maintenance records indicate that Mike Mechanic of Pristine Repair Corp. had overhauled the airplane’s engine 120 hours prior to the accident, but at the direction of Oscar Owner did not comply with one of the engine manufacturer’s mandatory service bulletins.
Eighteen months later, the NTSB issues its probable cause determination: Peter Pilot suffered spatial disorientation while in IMC and lost control of the aircraft. A contributing factor was Mr. Pilot’s use of an over-the-counter sedating allergy medication.
The families of the deceased passengers file a civil lawsuit. Defendants included the estate of Peter Pilot, Charlie’s Charter Service, Mike Mechanic, Pristine Repair Corp., Oscar Owner, Cesscrafter Aircraft Company, and the U.S. Government (who provided ATC services). In pretrial motions, the judge dismisses the suit as to defendants Cesscrafter (because of GARA) and the U.S. Government (because the controller’s actions were deemed to be immunized under the “Discretionary Function” exception to the Federal Tort Claims Act).
The plaintiffs demand a jury trial. By law, NTSB investigation findings and probable cause determination are inadmissible at trial, so the jury never hears them. The jury returns a judgment for the plaintiffs in the amount of $10 million, and allocates fault as follows: 10% to Peter Pilot and his employer Charlie’s Charter Service; 10% to Mike Mechanic and his employer Pristine Repair Corp.; and 80% to Oscar Owner. Oscar’s $1 million aircraft liability policy is limited to $100,000 per person.
This does not mean that Mike Mechanic and Pristine Repair Corp. are responsible for only $1 million, however. State law generally provides for “joint and several liability” for economic damages, which means that all defendants are equally liable to the plaintiffs to satisfy the entire amount of the $10 million judgment. Conceivably, the plaintiffs could come after Mike Mechanic and Pristine Repair Corp. for the entire $10 million, and leave it up to them to go after the other defendants for their share.
Is it any wonder that so many A&Ps and shops seem over-cautious and self-protective in their approach to maintenance these days?
The A&P’s Dilemma
In the good ol’ days, an A&P’s maintenance decisions were guided by two principal concerns: (1) Is it safe? (2) Does it comply with the FARs? Those are precisely the two considerations a mechanic should be concerned about.
But in today’s litigious climate, the prudent A&P is now forced to worry about a third concern: (3) How will it appear to a civil jury that knows nothing about aviation after being spun in the worst possible light by a skilled plaintiff’s attorney? That is a very different standard indeed and has had a tremendous chilling effect on A&P maintenance decision-making. Consider this scenario:
An owner brings his Cessna 182 to an A&P, complaining of nosewheel shimmy. The mechanic investigates and discovers that the cause of the shimmy is that the bolt holes in the nose landing gear trunnion are worn, elliptical, and sloppy. The mechanic must now decide how to fix the problem.
A new trunnion from Textron Aviation costs more than $5,000. A used serviceable one from a salvage yard is available for half that price. The mechanic also considers the possibility of reaming the worn holes in the original trunnion oversize and installing bushings to restore the holes to their original dimensions; Textron hasn’t explicitly approved such a repair, but the mechanic believes that it would fix the shimmy and be a minor alteration conforming to acceptable industry practices.
The A&P considers all three repair options to be safe and legal. But he worries what might happen should the airplane ever be involved in a nosegear collapse and the mechanic finds himself in court. If the mechanic repairs the existing nose strut with bushings, a plaintiff attorney might ask him to explain to the jury why he made an unapproved repair. If he replaces the damaged trunnion with a salvage yard part, a plaintiff attorney might ask him to explain to the jury why he decided to install “an undocumented part from a junkyard.”
If you were the A&P, what would you do?
A&Ps face such dilemmas all the time: What about an engine that is past TBO that the owner wants to continue in service because it’s running great? How about a costly SB that the owner doesn’t want to comply with? The mechanic may believe that keeping the engine in service or ignoring the SB is both safe and legal but is understandably worried whether such actions might appear unreasonable and imprudent to a jury of aviation-challenged citizens, especially after the plaintiff lawyer makes them sound like capital crimes.
How Owners Can Help
The obvious solution to this dilemma is that aircraft owners shouldn’t put their mechanics in situations like this. The decision-making burden should rest with the owner, not with the mechanic.
Here’s how I think this ought to work: The A&P informs the owner about Cesscrafter Service Bulletin 99-44 that calls for the frammis at the distal end of the portoflan armature to be replaced with an improved part, and explains that compliance with the SB will cost approximately $2,400. After consulting with a tech rep at the Cesscrafter Owners Association, the owner decides this costly SB isn’t worth doing, and directs his A&P not to comply with it. The A&P then presents a signed-and-dated letter to the owner that says:
“I advised the owner of N12345 of Cesscrafter Service Bulletin 99-44. The aircraft is operated under Part 91, and therefore compliance with this SB is not required by regulation. After a thorough discussion of the technical and regulatory aspects of SB 99-44, the owner decided that he did not want this work performed, and instructed me not to do it.”
The A&P asks the owner to countersign a copy of this letter, acknowledging receipt, and keeps the copy in his files. Such a contemporaneous written record would almost certainly go a long way toward convincing a jury that the A&P was not negligent in failing to comply with the SB. The same approach can be used for owners who decide to continue past TBO or depart from other manufacturer recommendations.
Some owners just don’t want to get involved in the messy business of maintenance decision making and expect their mechanics to make decisions on their behalf. They might even feel annoyed if their mechanic hands them a “CYA letter” placing the decision-making burden on them. That’s fine so long as the owner understands that in today’s climate, mechanics and shops can be expected to make decisions that minimize their perceived liability exposure, and that such decisions can sometimes be very costly for the owner.
Owners concerned with controlling maintenance costs simply must get involved in the process and be willing to accept responsibility for key maintenance decisions. If you let your mechanic make those decisions for you, you might not be happy with the outcome.
You bought a plane to fly it, not stress over maintenance.
At Savvy Aviation, we believe you shouldn’t have to navigate the complexities of aircraft maintenance alone. And you definitely shouldn’t be surprised when your shop’s invoice arrives.
Savvy Aviation isn’t a maintenance shop – we empower you with the knowledge and expert consultation you need to be in control of your own maintenance events – so your shop takes directives (not gives them). Whatever your maintenance needs, Savvy has a perfect plan for you: