| by Ruwantissa Abeyratne, FRAeS

( July 12, 2013, Montreal, Sri Lanka Guardian) The past weekend was black for those of us living in North America. On 5 July, a runaway train coupled to gas tanks containing hundreds of thousands of gallons of oil derailed in the small town of Lac Megantic, 216 miles east of Montreal, resulting in a series of horrific explosions and devastating fire which killed at least 20 persons (the death toll was rising as this piece was being written). Many are still missing, presumed dead.

Just a day later, a Boeing 777 ploughed into a runway on its attempt to land at San Francisco International Airport, totally destroying the hull of the aircraft in a ball of flame and ash. Two passengers died and over 150 were injured, some critically. The aircraft had successfully completed its 10 hour flight from Seoul when it crash landed.

A statement issued on behalf of Montreal, Maine and Atlantic Railway which owned the train that ploughed into the tiny town of Lac Megantic with its 6000 inhabitants claimed that the accident was due to the engineer's not applying sufficient brakes after it had stopped earlier for a crew change.

A statement issued by Asiana Airlines claimed the engines of the ill fated 777 were functioning normally. The weather was fine. It was revealed that the pilot was inexperienced with the 777 and had not landed at San Francisco before. The National Transportation and Safety Board of The United States, which is in charge of the accident investigation stated that, whereas a fully loaded wide body aircraft such as the 777 could be evacuated in 90 seconds flat, it had taken the crew 90 seconds just to open the cabin doors to let the passengers down the emergency chutes.

Therefore both these horrific accidents point to questionable crew conduct within the scope of their employment. In the Asiana case, one could question whether the responsibility, and indeed accountability, lay with the airline for negligently entrusting the aircraft and its 300 or more passengers to an inexperienced pilot. In the instance of the runaway train, the same question may asked of the senior management, in a different way, as to its legal liability for an act of its employee whether negligent or not.

Negligent entrustment is a civil wrong at common law grounding an action in tort which arises when one party is held liable for negligence because he negligently provided another party with an object that could cause harm to another and the latter caused injury to a third party with that object. The cause of action most frequently arises where one person allows another to drive his vehicle.

Negligent entrustment – a theory that dates back to the early 19th Century - can, in its simplest form, be exemplified by the case of an owner of a pizza parlour who entrusts a vehicle for the purpose of delivery of his product to a person who does not possess a licence of competence to drive, whether or not the owner has knowledge of the absence of licence. Liability ensues when the person entrusted with the vehicle causes injury to a third party. One commentator identifies negligent entrustment as a general theory of recovery under which the plaintiff alleges that the defendant was negligent in entrusting a dangerous instrumentality to one incompetent to use it safely, when he know or should have known that the incompetent would injure a third party.

The American Second Restatement of Torts provides that one who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them. In the 2007 case of Watrous v. Johnson et.al involving a wrongful death action against the defendant who struck and killed the plaintiff’s wife while she was walking on the street, the Court of Appeal of Tennessee held that the parents of the defendant could be held guilty of negligent entrustment if they knew or ought to have known that the defendant’s use of a car was likely to injure a third party. The court held that even though the parents of the defendant had only purchased gasoline for the car and provided insurance and maintenance, there was a prima facie cause of action for the plaintiff on negligent entrustment. The Court therefore remanded the case to the trail court (which had earlier held that there was no case against the defendant’s parents) for further hearing.

Foreseeability is a key issue in the determination of negligent entrustment as a separate head of liability. In the 1931 Minnesota case of Clarine v. Addison which involved liability of a parent who entrusted a firearm to his nineteen year old son who then accidentally shot and fatally injured a minor, the plaintiff failed to prove that the defendant could have foreseen that his son would kill another person with his firearm, given that the son had not earlier conducted himself with recklessness or irresponsibility.

Contributory negligence is not a defence against acclaim in negligent entrustment in the event an entrusteee who is given in charge of a res (or thing) where the entrustor has violated a statute in so entrusting. Furthermore, an owner of a vehicle who knowingly entrusts that vehicle to an incompetent driver is liable for the consequences of damage in the drivers hands even if there is no statutory provision to that effect.

Common law countries apply the The Corporate Manslaughter and Corporate Homicide Act of 2007, which provides that an organization is guilty of an offence if the way in which its activities are managed or organized causes a person’s death, and amounts to a gross breach of a relevant duty of care owed by the organization to the deceased. The Act applies inter alia to a corporation. The offence is termed “corporate manslaughter”, in so far as it is an offence under the law of England and Wales or Northern Ireland; and “corporate homicide”, in so far as it is an offence under the law of Scotland. An organization that is guilty of corporate manslaughter or corporate homicide is liable on conviction to a fine and the offence of corporate homicide is indictable only in the High Court of Justiciary.

The Act provides, inter alia, that the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the Organization that were likely to have caused failures in the provision of services by the corporation could be taken into account in determining the culpability of that entity. The possible application of this legislation to air transport is a reality, as exemplified in the Helios trial which opened on 26 February 2009 in Cyprus. The trial pertained to the island’s worst air tragedy, when 121 people perished on a charter plane that slammed into a Greek hillside nearly four years ago. According to reports, Helios Airways and four airline officials faced charges of manslaughter and reckless endangerment in one of the most complex and high-profile cases in the eastern Mediterranean island’s legal history. Plaintiffs, who weree relatives of the dead, called for criminal action against those deemed responsible when the Helios Airways Boeing 737-300 ran out of oxygen and crashed outside Athens in August 2005. It was also reported that, although the authorities did not initially name d those to be charged, the accused were known to be officials who held top management positions in the airline at the time of the crash.

The instances of corporate entities being found liable for injuring or causing death to persons on the increase For example, in the field of environmental law, concerning a $ 333 million class action in 1999 which was successfully argued in court against a California utility for polluting the water supply of a local community, is a good indicator of corporate liability. In the area of hospitality there is the “hot coffee” paradigm of Macdonald’s fame where two States in the United States went on for law reform after learning of the true facts of the case.

In so far as criminalizing corporate activity is concerned, this could set a dangerous trend against efforts by the air transport industries which are calculated to ensure safety. Negligent entrustment, unless in extreme cases of criminal negligence, in its classical sense is a tort and must be treated as such, with the damage being calculated in terms of monetary compensation. Any extension of the principles under this head of liability to criminal law would cast an undue burden on those involved in providing services that are usually given out by experts such as pilots and surgeons and their employers. They would be forced to concentrate on covering their tracks rather than ensuring the protection of those under their charge.