Flight training agreements / indemnification & liability

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Tiberius
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Flight training agreements / indemnification & liability

Post by Tiberius »

Hello,

I am looking into getting a PPL for recreation and researching flight schools in Ontario at the moment. I came across this “agreement” at one school's website which gave me some reservation about signing up. I wont mention the school in name, but there are some clauses that read as follows:


I, ____________________ , hereby affirm that I am aware that flying and activities associated with flying have inherent and unforeseeable risks which may result in serious injury or death. I understand and agree that neither my instructor nor (Name of Flight School), nor any of their respective employees, officers, agents, contractors, or assigns, (hereafter referred to as “Released Parties”) may be held liable or responsible in any way for any injury, death, or other damages to me, my family, estate, heirs or assigns that may occur as a result of my participation in flying aircraft, flying in aircraft, flight instruction, aircraft rental, aerobatics, aircraft operations, ramp operations, or any associated activities involved with these activities, (hereafter referred to as Flight Activities), or as a result of the negligence of any party, including the Released Parties, whether passive or active.

In consideration of being allowed to participate in Flight Activities, I hereby personally assume all risks of Flight Activities, whether foreseen or unforeseen, that may befall me while I am participating in these activities. I, further release, exempt, and hold harmless the Released Parties from any claim or lawsuit by me, my family, estate, heirs, or assigns, arising out of my participation in Flight Activities including both claims arising during any course of training or after I receive my pilot certification(s).



Now, I’m no lawyer, (or a pilot for that matter). I understand this to be generally the indemnification of the school as it relates to injury or death as caused to me. However, what gives me pause is what I understand in aviation to be the “PIC” or “pilot in command” where there is clearly someone in control of the aircraft and that person is generally and legally liable for it’s operation. The way I read these 2 paragraphs, I’m wondering it could be interpreted another way, where say a student could be held liable, or share liability, for negligent operation of said aircraft, even if they are with an instructor and are “passive” participant?

If anyone could advise me or provide some clarification, I would appreciate it.

I will concede that perhaps I’m reading too much into this...



Thanks.
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DanWEC
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Re: Flight training agreements / indemnification & liability

Post by DanWEC »

I'd bring it to a lawyer or just not sign it.
It literally states that they're not liable even in cases of their own negligence. Occasionally, shit happens. And I'd want to cover my ass if I were you. Funny to think that a drunk rampie could jet-A your 172 causing you crash after takeoff, you critically injure yourself or worse, and they're not liable?
A lawyer would be able to tell you what statutes trump contract law in this case.
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7ECA
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Re: Flight training agreements / indemnification & liability

Post by 7ECA »

The FTU I did a bunch of training at, and then later rented from occasionally one day dropped a pile of forms in front of me prior to handing me the keys to an aeroplane - sign these. While there weren't any forms regarding indemnification of the FTU, there was one where they wanted renters to agree to either pay a nominal fee per hour of rental to cover "insurance fees" in the event of an accident/incident that required an insurance claim, or, to agree to be held liable for the deductible in the event a claim was made. Yeah..., F-TU too.
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digits_
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Re: Flight training agreements / indemnification & liability

Post by digits_ »

7ECA wrote: Sat Jan 04, 2020 12:00 am there was one where they wanted renters to agree to either pay a nominal fee per hour of rental to cover "insurance fees" in the event of an accident/incident that required an insurance claim, or, to agree to be held liable for the deductible in the event a claim was made. Yeah..., F-TU too.
If you crash the plane, wouldn't it make sense that you at least pay the deductible? Even without a form, I am pretty sure you are on the hook for that.
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PilotDAR
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Re: Flight training agreements / indemnification & liability

Post by PilotDAR »

I'm not a lawyer, though I have been exposed to accidents. injury and claims to insurance companies. Certainly, get legal advice before you sign, that's always fair. Before that, I'd simply ask the manager of the flying school to explain the whole document to you line by line. One of three things will result: They'll explain, you'll understand, and you'll agree to sign, or, you'll understand and decline to sign, or, they simply can't really explain it - so you should not sign! In fairness to you, believing that you will earn a PPL, and go on to fly other airplanes, understanding insurance is important, and should be a part of your PPL training, so take it at the beginning, and probably they won't even charge you for the half hour it should take to fully explain (I mean train you) in this topic! As a pilot, you are required to carry certain insurance, 'may as well understand your responsibilities early on!

If you are flying as PIC, or the sole occupant, their insurance probably does not cover you at all if you cause injury to yourself. If you are flying as the student, it's probably similar. If you are observing while the instructor is flying, that may be a bit different, though you are still there to be the "pilot" (that's a much smaller risk during you training).

If you injure someone else, and/or cause a liability claim, you should expect insurance to pay that (perhaps less a delectable), though you should certainly understand what's actually insured.

Aviation has many odd scenarios relating to liability, and insurance, and some have taken me decades of flying to come across and resolve. Many relate to just who is PIC? It's not always as straight forward as it would appear: My friend offers a check flight to a new owner. My friend is not flying, and occupying right seat, not an instructor, and not being paid. New owner mis checks the fuel, my friend does not notice, run out of fuel and crash. 'Turns out that new owner does not have a valid medical, my friend does, and just became PIC for the crash. Float endorsed pilot right seat, not flying, in an amphibian, owner left seat lands on the water, but is not float rated, right seat pilot just became PIC.

Take the time to learn and understand early on, flying is not without risk, and you should understand it....
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photofly
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Re: Flight training agreements / indemnification & liability

Post by photofly »

digits_ wrote: Sat Jan 04, 2020 7:57 am
7ECA wrote: Sat Jan 04, 2020 12:00 am there was one where they wanted renters to agree to either pay a nominal fee per hour of rental to cover "insurance fees" in the event of an accident/incident that required an insurance claim, or, to agree to be held liable for the deductible in the event a claim was made. Yeah..., F-TU too.
If you crash the plane, wouldn't it make sense that you at least pay the deductible? Even without a form, I am pretty sure you are on the hook for that.
BIts of paper like that make it easier to pursue you for the deductible, since you already agreed you're on the hook, rather than having to demonstrate (read argue, for which read, spend a lot of money) that you're on the hook.

The deductible costs about the same as an hour or two of a decent lawyer's time; anything that needs more than that to try to get you to pay up becomes worthless. Hence the paper.

On the subject of accidents: look at the St Catharine's crash; three dead, and the families sued. A piece of paper like that would have been appreciated by the flight school at that time. They may even have had one. It's just another weapon that lawyers can use either for you, or against you, when they put a case together. Very few cases get to court; they always settle, and the settlement depends on the strength of the case. That liability waiver might save an insurance company (and cost your family) a five or six figure sum in the worst scenario, if you sign it.
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455tt
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Re: Flight training agreements / indemnification & liability

Post by 455tt »

This is very amateur and not written by a lawyer. It would not have the intended legal effect.

Simply put, one cannot contract out one's negligence. The establishment of legal negligence and damages does not arise out of contract, it arises from the negligent party's conduct.

Think about this for just a moment. Why would a flying school ever need insurance if all they had to do was require students to sign a waiver?

What I recommend is to simply ask the school if they hold an insurance policy for negligence. If they do, which they will certainly have, then there is no need for a waiver!

To be fair, if the school wishes to put students on notice that aviation training has inherent risks and hazards, that is fine, we all understand what we are getting into. But this cannot be extended to have the student promise never to sue in negligence, even where the school is responsible.

Go ahead and sign the document and put in the following just above your signature with your initials:
"In accordance with all rights and remedies provided by law".
That will be fun - see the look on their faces.

If anything ever happens in court, the worst for you by having signed this waiver would be that you could not claim you never knew of any of the hazards of aviation but it would certainly not prevent you from suing in negligence. And you would not have to pay the deductible, this is the responsibility of the school since it is their contract of insurance.

What is going on here in my view is the school probably knows their document is largely unenforceable, but they hope to intimidate you from pursuing your rights in future based upon ignorance.
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digits_
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Re: Flight training agreements / indemnification & liability

Post by digits_ »

455tt wrote: Sat Jan 04, 2020 10:34 am
If anything ever happens in court, the worst for you by having signed this waiver would be that you could not claim you never knew of any of the hazards of aviation but it would certainly not prevent you from suing in negligence. And you would not have to pay the deductible, this is the responsibility of the school since it is their contract of insurance.
Are you saying that if I crash a rental plane during a botched crosswind landing, that I, as the PIC, do not have to pay anything to the school and can just walk away?

What if I crash the plane in a house, and survive, and the house owner is suing me as the PIC. Then what/who do I need to pay?

Assume no negligence in both cases. Assume no faulty maintenance or anything, just "honest accidents".
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photofly
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Re: Flight training agreements / indemnification & liability

Post by photofly »

A tort is a civil wrong whose remedy lies in an action for damages. Other than for breach of contract, you can only sue for a tort. Negligence is one example of a tort, for example. Other examples are nuisance, trespass, battery, assault.
What if I crash the plane in a house, and survive, and the house owner is suing me as the PIC. Then what/who do I need to pay?
The house owner can't sue you just "as the PIC" - they would have to allege and demonstrate you were negligent in some way. (Crashing a plane into a house is pretty good evidence of negligence, I think you'd have to work pretty hard to show it was someone else's fault and not yours.)

However, there is mandatory third party liability insurance in Canada, to cover this kind of eventuality, and to avoid arguments about who is at fault.

Why did the plane crash?
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Bede
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Re: Flight training agreements / indemnification & liability

Post by Bede »

455tt wrote: Sat Jan 04, 2020 10:34 am This is very amateur and not written by a lawyer. It would not have the intended legal effect.

Simply put, one cannot contract out one's negligence. The establishment of legal negligence and damages does not arise out of contract, it arises from the negligent party's conduct.

Think about this for just a moment. Why would a flying school ever need insurance if all they had to do was require students to sign a waiver?

What I recommend is to simply ask the school if they hold an insurance policy for negligence. If they do, which they will certainly have, then there is no need for a waiver!

To be fair, if the school wishes to put students on notice that aviation training has inherent risks and hazards, that is fine, we all understand what we are getting into. But this cannot be extended to have the student promise never to sue in negligence, even where the school is responsible.

Go ahead and sign the document and put in the following just above your signature with your initials:
"In accordance with all rights and remedies provided by law".
That will be fun - see the look on their faces.

If anything ever happens in court, the worst for you by having signed this waiver would be that you could not claim you never knew of any of the hazards of aviation but it would certainly not prevent you from suing in negligence. And you would not have to pay the deductible, this is the responsibility of the school since it is their contract of insurance.

What is going on here in my view is the school probably knows their document is largely unenforceable, but they hope to intimidate you from pursuing your rights in future based upon ignorance.
That's not exactly correct. Generally indemnification waivers ARE enforceable, especially when there is a known risk. For example, the back of your ski ticket has a waiver and indemnity which you agree to by purchasing the lift pass. They are enforceable. Despite the numerous injuries on ski hills, when was the last time that you heard about someone successfully suing a ski hill?

On the other hand, where you would be correct, is if, let's say, a day care had you sign an indemnification waiver. Lo and behold, there's no supervision and a kid is injured because of the owner's negligence. That waiver would likely not be enforceable.
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digits_
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Re: Flight training agreements / indemnification & liability

Post by digits_ »

photofly wrote: Sat Jan 04, 2020 1:47 pm A tort is a civil wrong whose remedy lies in an action for damages. Other than for breach of contract, you can only sue for a tort. Negligence is one example of a tort, for example. Other examples are nuisance, trespass, battery, assault.
What if I crash the plane in a house, and survive, and the house owner is suing me as the PIC. Then what/who do I need to pay?
The house owner can't sue you just "as the PIC" - they would have to allege and demonstrate you were negligent in some way. (Crashing a plane into a house is pretty good evidence of negligence, I think you'd have to work pretty hard to show it was someone else's fault and not yours.)

However, there is mandatory third party liability insurance in Canada, to cover this kind of eventuality, and to avoid arguments about who is at fault.

Why did the plane crash?
The renter spun in turn to final and recovered too late. The roof of the house is destroyed and there is structural damage. The plane is a writeoff. I assume the insurance would pay for a new airplane and for a new roof/house. Who pays the deductable? Pic or plane owner?
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photofly
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Re: Flight training agreements / indemnification & liability

Post by photofly »

Deductible applies only to hull coverage; it wouldn't make any sense for the policy holder to be able to limit damages to a third party.

A more interesting question is what happens if the insurance isn't valid, the plane was over-weight, for instance. Or the damage exceeds the coverage limit. In your example I expect liability would fall on the PIC, who could lose their house, shirt, car, etc to the homeowner. Spinning it in on final looks like text-book negligence, if anyone can prove satisfactorily that's what happened. If the pilot died there'd be a claim against their estate, so the widow and kids could end up on the street, too. And you'd be end up being owed for the plane too, because the insurance wouldn't pay out for that either.
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Last edited by photofly on Sat Jan 04, 2020 5:44 pm, edited 1 time in total.
DId you hear the one about the jurisprudence fetishist? He got off on a technicality.
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Re: Flight training agreements / indemnification & liability

Post by digits_ »

The FTU/owner took out the insurance policy and would be out of the deductible. Why can't the owner then try to get the deductible back from the renter? After all, -in this example- a perfectly fine airplane was given to the renter, and no airplane was returned.
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Re: Flight training agreements / indemnification & liability

Post by 7ECA »

No one has mentioned the simple fact that a contract (of any kind) is rarely worth the paper it is written on.
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Re: Flight training agreements / indemnification & liability

Post by photofly »

digits_ wrote: Sat Jan 04, 2020 5:43 pm The FTU/owner took out the insurance policy and would be out of the deductible. Why can't the owner then try to get the deductible back from the renter? After all, -in this example- a perfectly fine airplane was given to the renter, and no airplane was returned.
If the renter was negligent, the airplane owner absolutely could try to get the deductible back from the renter. It would be even easier if the renter signed a bit of paper acknowledging that. Which is one of the things in the first post in this thread.
No one has mentioned the simple fact that a contract (of any kind) is rarely worth the paper it is written on.
That's true. Until you don't have a written contract. (There is always a contract, it just might be oral.) Then you will wish you had something in writing.
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Re: Flight training agreements / indemnification & liability

Post by Bede »

7ECA wrote: Sat Jan 04, 2020 5:45 pm No one has mentioned the simple fact that a contract (of any kind) is rarely worth the paper it is written on.
That's BS. Contracts are almost always enforceable.
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Re: Flight training agreements / indemnification & liability

Post by 455tt »

digits_ wrote: Sat Jan 04, 2020 1:42 pm
455tt wrote: Sat Jan 04, 2020 10:34 am
If anything ever happens in court, the worst for you by having signed this waiver would be that you could not claim you never knew of any of the hazards of aviation but it would certainly not prevent you from suing in negligence. And you would not have to pay the deductible, this is the responsibility of the school since it is their contract of insurance.
Are you saying that if I crash a rental plane during a botched crosswind landing, that I, as the PIC, do not have to pay anything to the school and can just walk away?

What if I crash the plane in a house, and survive, and the house owner is suing me as the PIC. Then what/who do I need to pay?

Assume no negligence in both cases. Assume no faulty maintenance or anything, just "honest accidents".
So your scenario is not about negligence on the part of the school, but rather, about negligence on the part of the renter.

This is where insurance steps in.

When you rent an aircraft from a school, there are statutory minimum insurance requirements required by CARs. But these are just the minimum - usually the insurance policy will provide greater protections than the bare minimum.

To know for certain what your protections are as a renter, ask to view the school's insurance policy. It will be an interesting read. Look for the part of the policy governing rental of school aircraft. Check for minimum experience requirements, and especially, limitations of coverage! For example, you will often see a clause that will indicate coverage is voided for any breach of CARs or for not operating the aircraft in accordance with the POH. Check the deductibles as well. If the policy looks pretty lame, then there is nothing stopping you as a renter from contacting your own independent insurer and requesting your own "renter's policy" which will be exclusively for you.

The whole point of insurance is to protect you from risk. Knowing the terms and limitations of your insurance coverage is really important when you rent an aircraft.

Now as per your scenario, after you smash up the school plane on a crosswind landing, you would make any reports required to the TSB and then contact the insurer immediately. Take photo's, get witnesses names, take notes. Keep a diary of all events, dates and times. Don't make any admissions of liability to the school. Consult with a lawyer. The school might decide to sue you regardless, and then you would forward the court documents you receive to the insurer who, by the terms of the insurance policy, are required to defend you in accordance with the terms of the insurance policy.

Were you to smash into the house and get sued by the owner, then again, you would contact your insurer who would defend you for the negligence claim, to the limits of the policy. In most cases, the insurer would have one of their lawyers contact you, who would defend you, and if an out of court settlement could not be reached, and a civil judgement were rendered against you, hopefully the policy limits would be sufficient to pay this out. But if the court judgement exceeded the policy limit, you would be on the hook for the differential.

This is why you must be careful and read the insurance policy in advance and if necessary, get your own policy.
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KissPlusOne
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Re: Flight training agreements / indemnification & liability

Post by KissPlusOne »

Just don't crash the plane!
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