The Last Rivet
 
November 20, 2008
 
Alan D. Reitzfeld- New York

We close this issue with an eclectic mix of information, which we hope will be of interest.

NTSB October 2008 Comments on FAA March 2008 CVR and DFDR Rulemaking

On October 17, 2008, the NTSB issued a press release commenting on the FAA’s March 7, 2008, final rule (effective April 7, 2008) amending certain flight recorder regulations.¹ As noted in the summary to the final rule:

This final rule amends cockpit voice recorder (CVR) and digital flight data recorder (DFDR) regulations affecting certain air carriers, operators, and aircraft manufacturers. This final rule increases the duration of certain CVR recordings, increases the data recording rate for certain DFDR parameters, requires physical separation of the DFDR and CVR, improves the reliability of the power supplies to both the CVR and DFDR, and requires that certain datalink communications received on an aircraft be recorded if datalink communication equipment is installed. This final rule is based on recommendations issued by the National Transportation Safety Board following its investigations of several accidents and incidents, and includes other revisions the FAA has determined are necessary. These changes to CVR and DFDR systems are intended to improve the quality and quantity of information recorded, and increase the potential for retaining important information needed for accident and incident investigations.

It is often interesting to read the NTSB’s comments on FAA rulemaking, as is the case with the NTSB’s October 17 press release regarding the flight recorder final rulemaking.² Among the points mentioned in the press release are the following:

• Flight recorder improvements have been on the NTSB’s “list of Most Wanted Transportation Safety Improvements” since 1999
• NTSB has advised the FAA that not all of the NTSB’s recommendations for flight recorder rules were adopted in the final rulemaking
• NTSB Acting Chairman Mark V. Rosenker again urged the FAA to act on the board’s recommendations for cockpit image recorders
• The NTSB was pleased that larger passenger airliners will be required to carry 2-hour CVRs. Although the rule does not require that older 30-minute CVRs be replaced on existing commuter and corporate jets, the rule requires 2-hour CVRs for newly-manufactured commuter and corporate jets, which the NTSB found to be an “Acceptable Action” and closed its Recommendation A-96-171.
• The NTSB Board had asked that airliners be retrofitted with CVRs that have an emergency 10-minute power supply. The rule requires that newly-manufactured airliners have such a CVR but does not require retrofits. The NTSB acknowledged that a retrofit might have created a roadblock for regulatory approval of the rule. It thus found the rule an “Acceptable Alternative Action” and closed its Recommendation A-99-16.
• “The Board closed as unacceptable action A-96-89, which called for certain configurations of microphones and dedicated channels in airliner cockpits, and A-99-17, which called for dual combination recorders, one in the front and one in the back of the plane.”

NTSB Reports Decline in Transportation Fatalities in the U.S.

In another recent press release, the NTSB reported a 4 percent decrease in U.S. transportation fatalities from 2006 (45,085) to 2007 (43,193).³ According to the press release, aviation fatalities decreased from 784 to 545, with 90 percent occurring in general aviation accidents; highway fatalities accounted for almost 95 percent of all U.S. transportation deaths, but, like aviation, marine and pipeline deaths, declined in number in 2007; and rail and motorcycle fatalities increased.

Coffee Anyone?

While the above-mentioned decline in transportation fatalities in the U.S. is excellent news, in-flight personal injuries still occur from time to time. A brief discussion of some points of the law of New York − a frequent venue for aviation cases, large and small − on hot beverage injury claims may be interesting to note (treaty liability for injuries on international flights is excluded from the following discussion):

Unlike some states, New York does not hold common carriers to the “highest degree of care” standard. Rather, a common carrier is subject to the same duty of care as any other potential tortfeasor, i.e., reasonable care under the circumstances.

One of the leading cases in New York on hot beverage burn incidents (which typically arise in the context of ground-based accidents involving food service establishments) is Huppe v. Twenty-First Century Rest. of America, Inc.4 There, the court indicated that, when faced with a motion for summary judgment dismissing claims for negligence, product liability and breach of warranty, a plaintiff must come forward with evidence that the hot beverage or its container was defective or negligently served by a defendant and that such was the proximate cause of plaintiff’s injury. In granting summary judgment dismissing plaintiff’s complaint, the Huppe court discussed a number of important principles regarding hot beverage incident claims:

• “[T]he fact that the coffee was hot enough to cause injury if not properly handled does not mean that it was defective or negligently served. Where, as here, a product by its very nature has a dangerous attribute, liability is imposed only when the product has an attribute not reasonably contemplated by the purchaser or is unreasonably dangerous for its intended use.”
• “[S]ince coffee is customarily served and intended to be consumed as a hot beverage, plaintiffs must present evidentiary facts establishing that the coffee served by defendant was defective or unreasonably dangerous by virtue of being hotter than it should have been.”
• “[T]he hotness of the coffee was such an essential and intended attribute of the product that defendant had a duty to warn of its temperature only if it exceeded the reasonable range of temperature for such a product. . . . Again, there is no evidence that the coffee was hotter than contemplated by plaintiffs so that they should have been warned.”

The first quoted paragraph above from the Huppe case was characterized by the court in Olliver v. Heavenly Bagels, Inc.⁵ as “New York precedent on the issue of scalding coffee that caused first and second degree burns.” The Olliver court held that defendants were entitled to summary judgment dismissing the complaint because plaintiff failed to provide evidence from which a jury could conclude that the coffee was unreasonably hot. “That it caused second degree burns does not suffice . . . consequently, there is no factual basis for a conclusion that the coffee was defective or that a failure to warn was necessary.”⁶

Therefore, at least in situations involving only first and second degree burn injuries, a plaintiff may find it difficult to prove liability without producing evidence from which the finder of fact can conclude that the beverage was unreasonably hot or was negligently served.

For more information, contact:

Alan D. Reitzfeld
212.513.3400
alan.reitzfeld@hklaw.com
toll free: 1.888.688.8500

---

1 See Revisions to Cockpit Voice Recorder and Digital Flight Data Recorder Regulations, 73 FR 12542-01, 2008 WL 609523 (March 7, 2008) (available from the Federal Register Online via GPO Access at: http://edocket.access.gpo.gov/2008/E8-3949.htm).

2 See Press Release SB-08-46, National Transportation Safety Board, NTSB Praises Flight Recorder Enhancements; Notes Some Shortcomings In New FAA Rule (October 17, 2008) (available at: http://www.ntsb.gov/pressrel/2008/081017.html).

3 See Press Release SB-08-43, National Transportation Safety Board, Transportation Fatalities Drop In 2007; Motorcycle Deaths Continue To Increase (October 16, 2008) (available at: http://www.ntsb.gov/pressrel/2008/081016a.html).

4 130 Misc. 2d 736, 497 N.Y.S.2d 306 (Sup. Ct. Broome County 1985), aff’d on opinion below, 116 A.D.2d 797, 498 N.Y.S.2d 332 (3d Dep’t 1986).

5 189 Misc. 2d 125, 127, 729 N.Y.S.2d 611, 613 (Sup. Ct. Nassau County 2001)

6 189 Misc. 2d at 128, 729 N.Y.S.2d at 613. See Fung-Yee Ng v. Barnes & Noble, Inc., 308 A.D.2d 340, 764 N.Y.S.2d 183, 184 (1st Dep’t 2003) (citing Huppe and Olliver, the court held that plaintiff failed to raise a triable issue of fact that the tea was heated beyond reasonably expected limits). See also Wurtzel v. Starbucks Coffee Co., 257 F. Supp. 2d 520, 526 (E.D.N.Y. 2003) (Under Rule 702 of the Federal Rules of Evidence, the court excluded plaintiff’s proferred expert testimony on the basis that the tests done regarding securing the cup lid were too dissimilar to the facts of the case, and, under the facts of the case, held that circumstantial evidence could not be used to prove negligence and that the doctrine of res ipsa loquitor did not apply).

Related Practices

• Aircraft Accident Investigation and Litigation
• Aircraft Finance and Leasing
• Aviation
• Aviation Regulation
• Business Aviation