No more easy answers

When adding general aviation safety to its list of top priorities for 2011 the National Transportation Safety Board (NTSB) noted that accidents involving general aviation, or private planes, “are almost always a repeat of the circumstances of previous accidents.”   In the five decades since Congress created the NTSB to investigate accidents and make recommendations to prevent their recurrence, general aviation accidents have resulted in the deaths of more than 50,000 Americans — nine times more than airline crashes.  Despite this toll, NTSB’s last chairperson said that general aviation deaths are not numerous enough to warrant NTSB’s attention.  NTSB currently contends that it is not answerable in any court for its failure to investigate and make safety recommendations to prevent the same accident from happening time and again.

As reported in these pages, the system governing general aviation safety is broken. It lacks oversight, accountability and resources, resulting in thousands of unnecessary deaths and subjecting private pilots, their passengers – and everyone in their flight paths to undue risk.

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General aviation should be as safe as commercial airline travel. It could be if the agency charged with investigating, assessing and reporting on general aviation crashes, the NTSB, applied the same diligence and resources to general aviation accident investigations as it does to commercial aviation accidents. Instead, in 86 percent of private plane crashes, the NTSB attributes the accident to pilot error. End of investigation.  Researchers note that blaming the pilot relieves the NTSB as well as the FAA, aircraft and engine manufacturers and airport operators from the time and expense of a thorough accident investigation that could reveal the need for systemic reform or the actual cause of the accident. Worse yet, NTSB claims its findings are not subject to review by any other authorities or by the courts.

This could all change if the U.S. Supreme Court agrees to hear a case we filed on behalf of an Indiana man named Yatish Joshi. Joshi’s daughter, Georgina, died in 2006 when the plane she was piloting crashed outside Bloomington, Indiana. As it almost always does, the NTSB determined that the accident, which also killed the four passengers aboard, was Georgina’s fault.

It’s an easy answer. Blaming pilots, who often aren’t alive to defend themselves, absolves everyone else – air-traffic controllers, regulators, plane and parts manufacturers – and allows the system to carry on without identifying or solving the underlying problems. Critical deficiencies are thus perpetuated – and accidents continue to happen for the same reasons.  Pilots are people, and can make mistakes. But air traffic controllers are people, airplane designers and manufacturers are people and airplane maintenance workers are people, too.  Yet pilots are disproportionately blamed for airplane accidents.  Making matters worse, if not subject to review, the NTSB’s determinations serve as the final word on the subject – even if they’re wrong. And the truth is never known.

Unsatisfied with the NTSB’s findings about his daughter’s plane crash, Joshi conducted an independent investigation, hiring experts who pored over flight records, examined conditions and interviewed witnesses. They even recreated the flight. The experts found disturbing holes in the NTSB’s report. The agency’s investigators didn’t learn, for example, that the FAA had only one air traffic controller on duty the night of the crash even though FAA regulations required two, or that the controller had received only 10 minutes of final approach control training, or that the radar and weather reporting equipment used by the controller were not appropriate for the services being provided to Georgina. Further, the NTSB never discovered reports of another plane in the area. That plane, which was heard and seen by witnesses immediately prior to the accident, may have flown into Georgina’s path, forcing her to take evasive action – the likely cause of her crash. The NTSB also failed to discover the aircraft damage report prepared by its own investigator.  This report directly contradicts the NTSB’s Probable Cause finding in Georgina’s accident.  Yet, the NTSB continues to say its investigation and findings are complete, accurate and not subject to review.

This isn’t an isolated incident. Similar horrors happen routinely in a system that fails to hold anyone but pilots accountable, leaving safety mechanisms unregulated and often badly outdated. Deployment of the NEXT Gen air traffic control system is more than ten years behind schedule.  That system, which should have been in place by the time of Georgina’s accident, is able to track planes all the way down to the ground, unlike the current radar based system.  When Georgina crashed, the radar covering the Bloomington area could not see planes flying below 1,000 feet; the NEXT Gen technology would have answered many questions about Georgina’s accident, and might have prevented the crash. As a sad testament to the truth of NTSB’s statement that these accidents continue to happen for the same reasons, on April 7, 2015, a near-identical crash occurred in Bloomington, Illinois, killing 7 people.

The NTSB knows it has problems — 15 years ago it commissioned a report by the RAND Corporation that found NTSB lacked the funding, training and investigative prowess it needed to do its job effectively. And yet the agency, operating largely without oversight, has failed to address those shortcomings.

It’s time for the NTSB to be subject to the checks and balances that are faced by other government agencies – that are fundamental to American democracy. That’s why Joshi has taken his case all the way to the Supreme Court. If he’s heard there, it could go a long way toward making the NTSB more effective – and making the skies safer for us all.

Maher and Casey are lawyers with the firm of Barnes & Thornburg.