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Posted on Tuesday, December 09, 2008

If you are one of the civilian families injured in the December 8, 2008 F-18 airplane crash in San Diego, in addition to locating an airplane accident lawyer near University City, you will likely be asking can I sue the Marines for the December 8, 2008 airplane crash in San Diego? Who else could I sue?

As you will recall, an F-18 (d) flown by a Marine pilot during Top Gun School, crashed Monday into a San Diego neighborhood. The U.S. Marines have released a statement that the pilot had ejected safely from the F-18 prior to the crash in which three people were killed and three homes set on fire. While the three victims have been identified by Reverend Kevin Lee of the Korean United Methodist Church there are cadaver dogs searching for a forth body in the aftermath. The victims have been identified as Young Mi Yoon, her mother Suk Im Kim, who was visiting from Korea and her 2-month-old daughter Rachel. The cadaver dogs are still searching for Yoon’s 15-month-old daughter Grace in the rubble as of the writing of this article.

The F-18 crashed when both engines failed during its decent to land at Miramar’s Camp Kerney, which is where the Navy’s Top Gun fighter pilot school is conducted, causing the jet to crash in the neighborhood of University City.

The U.S. Navy has stated that it is too early in the investigation to determine what caused the crash. According to Marine Corporal Francis Goch the F/A-18 D Hornet was returning after training and the pilot radioed the air traffic control to report a problem. The pilot then ejected from the plane. Goch also stated that it is to early for the cause to be known for the crash and it is possible the answer will be found in the wreckage.

Can I Sue the U.S. Marine Corps.?

So the question rears its head, can I sue the U.S. Marines for the December 8, 2008 airplane crash in San Diego? Even if you did have a case against the U.S. Marines for the F-18 crash, you would likely have to file a lawsuit in the United States Court of Claims in Washington. You likely would need to have to send a demand letter first to the Department of Defense (“DOD”) and the Corps. You would likely be required to wait 6 months to sue as well.

So Who Can Sue to Begin With?

Potential Classes of Plaintiffs In the San Diego, Miramar Airplane Crash

1. Private Citizens (U.S. Citizens, foreigners hurt on the earth, in crashes involving both civilian and a military jet, or while a guest aboard a military aircraft.)

Sovereign Immunity

The state is the “King” and immune for hurting you unless it agrees to let you. This is call sovereign immunity. Since the Federal Tort Claims Act was passed the United States allowed itself to be sued “as if it were a private person”, for the negligent acts or omissions of its employees, but not the U.S. directly. The Federal Tort Claims Act mandates that you abide by an administrative process before you can file an actual lawsuit. First, the airplane accident victims must file a government claim with the potentially liable government agencies within two (2) years of the tort. The liable government agency is then required to dispose of the tort claim within a six (6) month period, or it is considered denied and then you can sue in court.

Trial By Judge

Unfortunately, you only get a trial by judge. This means NO jury. This is because lawsuits against the U.S. government agencies under the Federal Tort Claims Act are not entitled to a jury trial. If there are other non government parties involved, such as in a cross claim, a jury is utilized, but it is merely in an advisory capacity as to the government agency. The six (6) month administrative claim rules do not apply to the private defendants. State substantive law typically is used to decide the case. Attorney’s fees are by statute and cannot exceed to 25 percent in most cases. Prejudgment interest and punitive damages are not authorized against the federal government.

Although it appears in many ways the government is exposed as a “private person” under the Federal Tort Claims Act, as shown, this is riddled with many exceptions.

What is the “Discretionary Function Exception” In Military Aircraft Lawsuits By Civilians?

This is the most typical exception in airplane crash cases by civilians on the ground. Under the “Discretionary Function Exception, “If the nature of the negligent conduct by government employees involved the kind of decision making and policy judgment, which weighed social, economic or political considerations, the government may be immunized against liability for such negligence.

Discretionary functions typically enveloped are different acts and/or omissions by government officials. Here, the immune conduct could include negligent inspection of the F-18 D design, misfeasance, non feasance or malfeasance relating to unsafe maintenance or other procedures. It could also envelope refusal to use newer, safer, more modern aviation equipment. This could be exempt from judicial review.

The government frequently files and prevails in Motions to Dismiss or for “Summary Judgment” using this defense, it is not ironclad and can be overcome by the right airplane accident law firm. You can argue “operational level negligence” by the government employees. You can cite that it was a violation of their own government directives where there was little, if any, room for discretion to begin with. You can argue that there was no room for discretion involving the “creation of hazards” unless the employees of the government took corrective actions in warning civilians and others to prevent foreseeable injuries to victims.

Can I Sue the Marine F-18 Pilot for Killing My Family Members & Injuring Me?

Most military personnel have immunity so long as they were acting within the Military Code and were under orders. There are two kinds of orders, general orders and specific orders. Without knowing more about the lieutenant and what type of order he was under, if any, it is too early to tell.

If he was executing a legal order from his commanding officer, he is probably immune. The Judge Advocate General may get involved. JAGs do not litigate handle civil cases, but since it pertains to the military, the JAG office may as a liaison to any civilian court system on behalf of the Marine.

Can I Sue the Airplane Supplier or Manufacturer for the San Diego Airplane Accident?

Unfortunately, the product manufacturer, here McDonnell Douglas Aerospace, as well as the manufacturer of the jet engines, General Electric, there is a hoop called the special defense, or the “Government Contractor’s Defense” You heard right, years ago, the U.S. Supreme Court set for a rule that military equipment manufacturers are not liable for design defects in military equipment under the following circumstances:

1. The United States government approved reasonably precise specifications for the design of the equipment;
2. The equipment conformed to those specifications; or
3. The supplier warned the government about the dangers in the use of the equipment which were known to the supplier, but not to the government.

This is why it is so important to get an experienced aircraft accident lawyer. If you want to sue a government contractor, your attorney needs to know military procurement regulations. He will need to be able to identify and discover the evidence that explain the product development process for military aviation products such as jet engines. You need to discover if a design or manufacturing defect existed and whether or not the General Electric failed to warn of a known hazard not unknown known to the Marines. If, as here, the jet is a state-of-the-art jet fighter/attack aircraft, or due to anti terror regulations, the jet was built with classified or secret technology or was on a secret mission, not the case here, you can run into serious problems.

Fortunately for Californians, the Ninth Circuit Court of Appeals has allowed citizens the right to overcome the Government Contractor’s Defense. They have approved a theory of “failure to warn” as a viable claim. So long as the state law duty to warn does not conflict with federal procurement requirements, you have a fighting chance.

A highly trained attorney can also try and find ways to pierce the defense by proving the DOD “rubber-stamped” a faulty or dangerous design with no real supervisory role in developing the engines. You airplane accident attorney can also argue that the jet engines were bad under typical product liability standards used in the manufacture of civilian aircraft, and that the military merely bought the engines or changed a civilian model “off-the-shelf,” without prescribing new military specifications – not present here.

Conclusion

In sum, can I sue the Marines for the December 8, 2008 airplane crash in San Diego depends upon the law, the facts and the right attorney. I wrote this article because I am an airplane accident attorney, and also because I am a former U.S. Marine myself. I love the Corps. I also know the Corps., if it has its way, will try to pay the families right away. Unfortunately, the DOD will probably want to fight it. If you or your loved ones were injured as a result of the recent San Diego aircraft crash involving the F-18 D multi role aircraft, feel free to contact me toll free at 888-400-9721. Michael Ehline is an injury lawyer and a former U.S. Marine and the “military aircraft accident victim’s friend.” Ehline is also a highly recognized California accident attorney.