Assessing liability in the Phoenix news-chopper crash

When I heard about Friday’s fatal news-helicopter collision in Phoenix, one of the first things I thought — perhaps unsurprisingly, since I was just coming off the bar exam — was whether wrongful-death liability could attach to the carjacker who initiated the police chase that the news choppers were covering when they crashed. Is it sufficiently foreseeable that a car chase in a major city could lead to a news-helicopter crash? Is it the type of harm that a reasonable person should anticipate? (There’s a joke in here somewhere, in very poor taste of course, about “negligence in the air.”) What about contributory negligence? Assumption of risk? Etc., etc. I babbled a bit about these things to Becky, Kristy, V and Shannon (who were, by this point, accustomed to being subject to my pre- and post-exam law nerdery), without coming to any definitive conclusions; it’s not like I was going to write an essay about it. But I did think it was kind of an interesting question.

Well, it turns out I wasn’t the only one. V sent me this Slate article about essentially the same topic — though the authors focused on criminal, not civil, penalties. I hadn’t even thought about the potential applicability of felony-murder statutes, but yeah. The article notes:

The county attorney technically can charge the fleeing suspect with four counts of murder, but it’s unclear how strong the argument would be in practice. A judge might decide not to apply felony murder because the cause of the crash was only loosely related to the chase. Or a jury might acquit the driver because he couldn’t possibly have foreseen these outcomes. In other words, a reasonable person could expect traffic deaths to result from a car chase. But it might be unreasonable to expect a car chase to cause a collision between choppers pursuing a breaking news story.

It might. Or it might not. I mean, if you live in L.A., Phoenix, or some other major western city, shouldn’t you be aware that car chases are pretty much always televised? Anyway, interesting stuff, at least for those who haven’t sworn off all discussion of law-related topics for the next month of their lives. :)

16 Responses to “Assessing liability in the Phoenix news-chopper crash”

  1. Joe Mama says:

    If I were the suspect’s attorney, I might read up on the doctrine of intervening negligence.

  2. David K. says:

    Seriously as dumb as he was to try and evade the police in a car chase, the idea that he is responsible in any way for the helicopter crash is pretty absurd. A car crash sure, but helicopters?

    On the other hand I wouldn’t be surprised to see one or both of the pilots, their newstations, etc sued for wrongful death by the passangers and/or other pilots families.

  3. Brendan Loy says:

    Ah, but is it mere intervening negligence, or is it supervening negligence?

  4. Soren says:

    As I gathered from a recent CNN article, the prosecutor is in fact considering adding charges related to the crash to those stemming from the car-jacking etc. that the suspect in the chase is accused of.

    Isn’t charging him with causing or encouraging the crash something like saying: “The car chase drew a crowd of bystanders, and two of them got into a fight, and the guy evading police should have known something like this could possibly happen, and is therefore responsible”? Yes, the choppers were there because of the chase, but they did not crash because of the chase; somewhere along the line, you have establish some common sense definition of agency and causation.
    I understand the grief of families and friends of the people who died in the helicopters, but this seems too much like trying to find somebody to punish for a horrible accident.

  5. USC1L+ says:

    This was a hypo on my torts exam, except it was two police helicopters. Freaky.

  6. Brendan Loy says:

    On the one hand, I agree with those who say that this would seem to be a case where the logical link between cause and effect is too tenuous to justify holding the perp liable.

    On the other hand, the principled distinction is much harder to draw than one might think, which is why this sort of thing comes up on law exams. Certainly, it isn’t as simple as “A car crash sure, but helicopters?” The distinction cannot be so categorical. I mean, yeah, obviously everyone can agree that if a police officer in pursuit of a fleeing suspect hits an innocent bystander, the fleeing suspect should be held liable. But what if two innocent bystanders in the vicinity of the pursuit somehow hit each other in their attempt to avoid the pursuit? Is that so obviously less foreseeable than a helicopter crash, given that car chases in places like Phoenix always cause heavy helicopter traffic overhead? What if the two innocent bystanders were independently negligent — i.e., they attempted to avoid the pursuit is a dumb way, and thus caused the accident? (But the accident still wouldn’t have happened but for the pursuit.) What if one of the bystanders was driving a truck with flammable materials inside, and the crash caused an explosion? Is that more or less foreseeable than a helicopter crash? I’d say less. In any event, there can’t be a simple bright-line distinction between “car” and “helicopter.” The question is where exactly you draw the line in terms of foreseeability … and it won’t do to say “any intervening negligence cuts off liability” because that would result in situations where the perp gets off when he clearly shouldn’t (e.g., if the innocent bystander killed by the police in pursuit should have been able to get out of the way, but didn’t because he was slightly negligent).

  7. Angrier and Angrier says:

    I think the county attorney is going with murder charges with the goal of pleading down to involuntary manslaughter. I think the manslaughter charge would be much more applicable in this instance than murder.

  8. Joe Mama says:

    Ah, but is it mere intervening negligence, or is it supervening negligence?

    If memory serves, it would have to be the latter in order to absolve the fleeing suspect from liability (intervening negligence being negligence that occurred between the initial event and the end result that may or may not rise to the level of supervening negligence).

    But I defer to the tort lawyers and recent bar takers in here :-)

  9. dcl says:

    Clearly the car chase is an attractive nuisance and therefore it would be incumbent on the car jacker and the police to put up a fence to keep people from falling in before beginning the chase…

    Okay, okay, well, to my thinking the choppers would not have been there but for the chase. It is foreseeable that choppers will endeavor to cover the chase because news directors out west don’t know what news is. It is also foreseeable that there would be an optimal vantage point from which to film the chase from the air. It is also known that there are multiple networks in the greater Arizona area that would be interested in covering the event. With multiple choppers and few optimal vantage points it is foreseeable that two or more choppers might attempt to occupy the same space simultaneously.

  10. Joe Mama says:

    The choppers would not have been there but for the chase, but they also wouldn’t have been there but for Igor Sikorsky inventing the helicopter. But-for causation doesn’t necessarily mean legal (“proximate”) causation sufficient to result in liability, right?

  11. dcl says:

    I much prefer my attractive nuisance argument anyway.

  12. Wobbly H says:

    There’s a criminal case on point: Two police helicopters collided while chasing a fleeing suspect on the ground (the pilot of one or both helicopters was negligent). The court found that proximate causation could be met as a matter of law, but that the suspect didn’t have the intent to commit murder. It seems, then, that a felony murder charge might be able to overcome the causation hurdle.

  13. Sandy Underpants says:

    I’m with blaming it on Igor before the car-jacker. But what happened to individual responsibility? These pilots are trained and licensed, and they should be aware of all hazards, especially other air-traffic. The criminal is an easy guy to blame, but the responsible party is in fact the negligent pilot(s).

  14. Angrier and Angrier says:

    The whole point of these helicopters being in the air in the first place is to cover breaking news. How the hell do you blame the driver for that?

    As for negligence, one pilot flew his helicopter into the other one. The pilot’s first responsibility was situational awareness in the air, not paying attention to what was happening on the ground.

    I’m no lawyer, but I think there is ZERO chance the driver gets convicted on this.

  15. Andrew says:

    Dude, Brendan, where ya been? Rocky Mountain National Park doesn’t count….