Identifying and Handling a Military Aviation Claim

A military aviation claim is a tort claim – usually negligence – that arises out of an aviation mishap resulting in injury or death to military members or veterans. Defendants are commonly the government, aircraft manufacturers, component manufacturers, maintenance companies, and pilots or the companies who employ them. Claimants are commonly close family members or estates of deceased persons. Only the luckiest crash victims survive to bring their own injury claims. Following are some guidelines for identifying and handling such cases.

How do I know who to sue?

As with any tort claim, you can only determine who to sue after a thorough investigation of the facts and any potentially applicable law. Potential defendants are often in different jurisdictions. When considering who to sue, review potentially applicable statutes of limitations and statutes of repose in the relevant jurisdictions. Aviation cases almost always involve multiple states or countries, so determining which statutes apply requires conflict-of-laws analysis.

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How should I start my investigation?

Search online to find news articles, eyewitness interviews, photographs, and videos of the crash scene. Often cell phone video of the crash itself is available. Go to the area of the crash and talk to people. Hire investigators to find eyewitnesses and secure any photographic or video evidence. If the mishap aircraftwas privately owned, search the FAA database to find more information about the aircraftand the identity of the owner. The NTSB investigates private aviation crashes and gathers detailed factual information about each crash. Research the NTSB website and send a request under the Freedom of Information Act, 5 U.S.C. § 552 et. seq., (FOIA) for copies of the NTSB’s factual report, probable cause report, and docket materials. Learn the name of the NTSB’s investigator-in-charge (IIC) and make contact with them. If you treat them professionally, most of them will give you any information they can release. If the mishap aircraftwas a military aircraft, send FOIA requests to the relevant branch aviation office. Ask for any collateral investigation board reports and copies of any military briefings given to next-of-kin of any decedents.

Are soldiers allowed to sue the government?

The Feres Doctrine prohibits active-duty military personnel from suing the government if they suffer injury incident to their military service. Feres v. Unites States, 340 U.S. 135 (1950). However, family members of active-duty military members can sue the government under many circumstances. Military members themselves can recover for their injuries more often now than ever before due to the increasing trend of outsourcing traditionally military aviation activities to private contractors.

If my client is active-duty and can’t sue the government, do they have any other legal options?

Usually, yes. Crashes rarely result from governmental negligence alone. Crashes usually occur when several parties’ negligence combines. Defects in component parts, private maintenance errors, and the like cause or contribute to crashes. State tort laws protect active-duty military members in such circumstances.


If my client is a military veteran working for a contractor, what legal options might they have?

Veterans working for military contractors have more avenues to meaningful compensation than do active-duty military personnel. The Federal Tort Claims Act, 28 U.S.C. § 2671 et. seq., and state tort laws protect veterans if the crash occurred in the United States. The Defense Base Act, 42 U.S.C. § 1651, and Military Claims Act, 10 U.S.C. § 2733, were implemented to protect veterans injured while working overseas. However, the level of compensation and opportunity for judicial review are more limited under these latter two acts.

What are typical damages in these cases?

Aviation mishaps have tragic consequences. Lives are usually lost. The damages are tremendous and incalculable. Military members know they might be hurt or killed by an enemy if put into a combat situation. They assume that risk to support their families and their country. None, however, assume the risk that they will be hurt or killed due to the negligence of someone on their own side of the fight. When negligence causes an aviation mishap, military families make spectacular clients. Judges and juries respect them and appreciate their sacrifice. That appreciation is shown in damage awards that are larger than might be expected for civilians.

What if I’m not comfortable handling a military aviation claim?

Teddy Roosevelt said, “Whenever you are asked if you can do a job, tell ‘em ‘Certainly I can!’ Then get busy and find out how to do it.” Follow his advice. Never turn away an injured client just because you’re not comfortable handling their claim. You can learn. You can find experienced cocounsel to help. Call your lawyer friends and ask who they would recommend to handle this type of claim. Get information about the attorney or law firms you might hire. Interview them and go with your gut. If you commit the time to learn or to find the right team to work with you, you can investigate and handle a military aviation claim. Galen Bauer 

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