Second 737 Max Disaster Prompts Serious Questions

Less than two years after aerospace giant Boeing introduced its 737 Max with tremendous fanfare, two of these planes have crashed and hundreds of people have died. The families of those lost deserve compensation for their losses.

In March 2019, an Ethiopian Airlines 737 Max crashed just minutes after it took off from Addis Ababa. The wreck killed all 157 people on board. The crash was eerily similar to a Lion Air 737 Max that crashed over the Java Sea in October 2018. That crash killed 189 people.

While government agencies are still investigating both crashes,  preliminary speculation rests on the MCAS, or Maneuvering Characteristics Augmentation System. This failsafe automatically lowers the aircraft’s nose if the computer detects danger. There is some confusion as to whether the system should be on or off during take-off, and that’s when both these fatal crashes occurred.

This is not the first safety setback for the 737 Max. In 2017, Boeing suspended test flights due to concerns about engine turbines. After these two fatal incidents, China and several other nations grounded the 737 Max as investigators continue looking into the crashes.

In a statement, Boeing said it was “deeply saddened to learn of the passing of the passengers and crew” and it would “provide technical assistance at the request and under the direction of the U.S. National Transportation Safety Board.”


What Causes Airplane Crashes?

Statistically, air travel is much safer than some other forms of transportation. But safety statistics are small comfort to the thousands of families whose lives are permanently disrupted due to accidents that were completely preventable.

Pilot error is the leading cause of airplane crashes. That’s especially true in smaller aviation crashes of planes which carry fewer than twenty people. But even pilots who have flown for the big airlines for many years make mistakes.

Sometime, pilots drink alcohol or do not sleep well before flying. So, they are not at their best before they get into the cockpit. Other pilots multitask too much during the flight. Many airlines expect their pilots to be tour guides in addition to airplane pilots.

Although every case is different, the same kinds of pilot error surface in many different situations. Some common pilot errors include:

  • VFR into IMC: Visual Flight Rules into Instrument Meteorological Conditions is an aerospace term for flying into bad weather. Pilot overconfidence, not a lack of expertise, causes most of these crashes. Many pilots stubbornly believe that they do not need to rely on their instruments in bad weather, and by the time they realize their mistake, it is too late to do anything about it.
  • Poor Tower Communication: Very often, people hear what they want to hear, and pilots are people too. The more experience that a pilot has, the greater the chances for this kind of error. Many pilots anticipate what the air traffic controller should say, and therefore do not listen to what the ATC actually does say.
  • Over-Reliance on Ground Crew: Commercial aircraft pilots almost never inspect the planes they fly. Instead, they assume that mechanics on the ground performed an extensive pre-flight inspection. In the case of a new airplane like the 737 Max, these inspections are even more important.

Because airplane crashes often cause catastrophic injuries, individual pilots may not have enough insurance coverage to fully compensate all victims. Fortunately, the airline, shipping company, or other entity which employs the pilot is usually responsible for pilot error crashes. These companies normally have the resources to provide fair compensation to all victims.

Another leading cause of aircraft crashes is mechanic error. These mistakes range from simple oversights, like failing to secure the fuel door, to esoteric errors, like erroneously-fitted EDPs (Engine Driven Pumps).

Like pilots, mechanics are professionals. Therefore, they have a higher duty of care in these cases than non-commercial tortfeasors (negligent actors). As a result, if mechanical error caused the crash, these claims are easier to prove in court.

Finally, defective products contribute to many aviation crashes. Legally, there are two types of product defects:

  • Design Defect: Some people may remember the 1970s exploding Ford Pintos. Engineers placed the gas tank outside the rear axle, so it often exploded, even in a low-speed collision. That’s an illustration of a design defect.
  • Manufacturing Defect: Other products were safe on the drawing board, but become unsafe during the manufacturing process. For example, in the early 1990s, Takata replaced the reliable propellant in its airbags with a cheap substitute. As a result, the airbags often exploded, causing death and serious injury.

In large, complex commercial aircraft like the 737 Max, as well as smaller aircraft, the smallest defective component could cause a disaster, much like a tiny defective O-ring caused the 1986 Space Shuttle Challenger explosion.


Who is Responsible for Airplane Crashes?

In pilot and mechanical error claims, victim/plaintiffs must normally establish negligence, or a lack of reasonable care. But in defective product claims, the manufacturer may be strictly liable for damages. It does not matter how careful, or how careless, the company was.

Negligence often involves third party liability. For example, if a drunk driver causes a car crash, the bar that sold alcohol to the driver may be responsible for damages. And, in airplane crash cases, the respondeat superior employer liability theory often applies. This doctrine kicks in if the tortfeasor was:

  • An employee
  • Who was working in the course and scope of employment.

New York courts define these terms in broad, victim-friendly ways. For example, an “employee” is not just someone who gets a regular paycheck. In this context, the term includes independent contractors, unpaid volunteers, and anyone else the employer controls in any meaningful way.

As mentioned, if a defective product caused injury, the company is liable as a matter of law. Additionally, many defective product cases involve reckless companies. Both Ford and Takata, who were mentioned above, put profits before people. That kind of behavior often prompts jurors to award substantial punitive damages in these cases.


Your Claim for Damages

Since the victim/plaintiff has the burden of proof, the victim/plaintiff must assemble evidence which supports the claim.

Many times, the commercial jet’s black box data recorder provides this evidence. Black boxes capture and record things like:

  • Airspeed,
  • Altitude,
  • Flap position, and
  • Other operational details.


Black boxes provide useful information in all three types of aviation crash claims (pilot error, mechanic error, and defective product).

Written and electronic records provide important data as well. For example, internal emails often indicate that a company knew about a risky product but kept selling it anyway.

All this evidence is much like the pieces of a jigsaw puzzle. They do not mean much until someone puts them together. An attorney has that kind of skill, but a lawyer cannot do this alone. So, at Napoli Shkolnik PLLC, we often partner with top experts and accident reconstructionists. This professional team puts together a compelling picture for the jury.

Complex airplane crashes require lots of resources and a high degree of skill, and the professional team at Napoli Shkolnik PLLC meets those criteria. Call us today for a free consultation. We routinely handle aviation disaster claims in New York and elsewhere.