Louisiana Appeals Court Says Federal Aviation Regulations Do Not Impose Duty to Ensure 
Passenger Safety on Aircraft Lessors

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Schnader Harrison Segal & Lewis LLPA Louisiana appeals court held that the owner-lessor of an aircraft involved in a fatal accident that occurred during a commercial flight tour did not have a duty to ensure the safety of passengers on the aircraft under the Federal Aviation Regulations (FARs) because it was not the operator or pilot of the aircraft.

Cosey v. Flight Academy of New Orleans arose out of the fatal crash of a Cessna 172 aircraft during a commercial sightseeing tour. The aircraft was owned by Christensen Aviation, Inc. (“Christensen”). Christensen leased the aircraft to Flight Academy of New Orleans (“FANO”), which operated it for commercial sightseeing tours. The family of a passenger killed in the accident sued, among others, Christensen and its insurer. Plaintiffs claimed that Christensen (1) knew or should have known that the aircraft “was not fit for flight”; (2) “so negligently and carelessly maintained, inspected, operated, and/or service[d] the subject Cessna 172 aircraft that it failed catastrophically during a landing approach;” and (3) “negligently entrusted” the aircraft to FANO. Christensen moved for summary judgment on all claims, the trial court granted Christensen’s motion, and Plaintiffs appealed.

The Court upheld the trial court’s order granting summary judgment, finding no basis in state or federal law, or the underlying lease agreement, for Plaintiffs’ claims against Christensen. In particular, the Court noted that the FARs governing safety of flight for commercial air tours (14 C.F.R. § 91.147 & 14 C.F.R. Part 136) apply exclusively to the aircraft operator and pilot—in this case FANO. Because Christensen did not “operate” or “intend to operate” the aircraft, those FARs do not impose duties on Christensen. The Court also considered, but did not explicitly cite as an alternative ground, 49 U.S.C. § 44112, which provides that an aircraft lessor is only liable when the lessor is in actual possession or exercises operational control. Accordingly, the Court held that there is no authority under federal law by which the duty to ensure the safety of passengers in a commercial air touring enterprise can be extended to an owner-lessor of an airplane, when the lessor is neither the operator nor the pilot. Since the Court also determined that Plaintiffs could not maintain claims against Christensen under Louisiana state law or the lease agreement, it held that the lower court properly granted summary judgment in Christensen’s favor. Cosey v. Flight Acad. of New Orleans, 2019-0756, 2020 La. App. LEXIS 1660 (La. App. 4 Cir. 11/12/2020)

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