by Douglas R. Herlihy
This article is abstracted from a paper presented at the NIOSH - sponsored, 2nd Annual Helicopter Aerologging Safety Workshop, Ketchikan, Alaska February 27, 1996
Most companies that use aircraft or make their money with them, have some type of pre-accident plan drawn up, listing who-to-call when the bad news comes in following the loss of one of their aircraft. Unfortunately, the plans rarely match the events, and often, in mid-sized and small companies, the managers are unavailable or worse, in the aircraft that went down. There are a number of planning details that should be carefully examined by counsel prior to an unfortunate event. These must deal with four principal vulnerabilities: Information to the media; decision-making by task-saturated managers; assuring party status on NTSB investigations and controlling proprietary information; and dealing with potential claimants early in the accident aftermath.
The media will likely be the first, and potentially, the most damaging, contacts you may face following an accident. Measured and controlled responses are essential. What is released can never be called back. A single spokesperson is a must.
Even with effective pre-planning, some managers insist on being on-scene in a decision-making role, hour after hour, even day after day, following an accident. Task saturation leads to faulty decisions and unwarranted statements to the press, investigators or potential claimants.
Insist on "party status" for key employees who, if technically qualified, may participate in the NTSB investigation. When the investigation turns to a review of your records, you can request the General Counsel of the Safety Board to keep company proprietary and financial information private, but it's much better to safeguard it during the investigation. Likewise, a company generally has a right to submit an independent review for record, within prescribed time limits. These submissions can play an important role in Safety Board deliberations. Whatever can be found, usually will be found, so it is wise to support the investigation, but don't stand for a "fishing expedition." If you believe the information sought is not relevant to the inquiry, object to it. And remember, there is no such thing as a statement "off the record."
Lastly, and often overlooked, insist on continuous and caring contact with family members, those of employees or passengers involved in the crash, as well as persons injured on the ground. Address damage to private property promptly, even if you don't believe your company is at fault. It's a low-cost and effective damage control policy. Try to obtain a release when you fix their roof, windows and vehicles, but not as a condition of those repairs or payment in lieu of repairs.
Attorneys for companies involved in accident litigation too often find themselves deeply involved in limiting the damage done after the accident rather than damage caused by the accident. Plan for media contact, NTSB and FAA interaction, information control and third-party relations. A thorough review of your client's pre-accident plan is time very well spent.
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