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There does not have to have been an aircraft crash in order to recover damages. Aviation accidents can involve injuries incurred in-flight. In cases where an aviation accident resulted in death, the next-of-kin may be awarded wrongful death damages, and possibly pre- and post-impact pain and suffering damages. Generally, recoverable damages are compensatory damages. In some states, punitive damages may also be awarded.
Compensatory damages are the monetary compensation awarded in court, for a legally recognizable harm, to replace what was lost. Physical injuries caused from an aviation accident are recoverable. If mental and emotional injuries result from physical injuries, it is likely those injuries are recoverable. However, if only mental and emotional injuries resulted from an aviation accident, the injuries may not be recoverable.
Jurisdictions differ on what damages may be awarded, what level of proof is required, and what (if any) award caps exist. Some examples of Arizona’s recoverable compensatory damages for personal injuries are for: reasonable past and future medical expenses; lost earnings; decreased earning capacity; pain and suffering; loss of support; loss of love, companionship and marital pleasures; loss of child care and household help, and funeral expenses if applicable.
Punitive damages are the monetary awards above and beyond the amount required to replace what was lost. Punitive damages are meant to punish the wrongdoer and deter more people from following the wrongdoer’s example. Punitive damages are not allowed in every state. Some states allow punitive damages only in certain cases, or they allow punitive damages with caps on award amounts. Arizona does allow punitive damages.
Recovery of damages may be limited for a variety of reasons. For instance, if the passenger injured or killed is partially responsible for the aviation accident, recovery may be limited. Although a passenger’s partial responsibility to an airplane accident is very unlikely, it is not uncommon for a pilot to be partially responsible. States differ about what damages are recoverable when the plaintiff is partially responsible.
In Arizona, a pure comparative negligence system is followed. Under this system, a percentage of fault is assigned to all responsible parties. That percentage equates to the amount of recovery the plaintiff may receive. So, if the plaintiff is 70% at fault, they could only receive 30% of damages awarded for his or her injuries. Some states follow a rule that damages may only be recovered if the plaintiff was 49% or less, or 50% or less at fault. Thus, in those states, if the plaintiff was 51% at fault they could not recover damages at all. A few states prohibit any recovery if even 1% of fault is found on behalf of the plaintiff.
Damages may also be further limited in international aviation accidents; this is because liability is regulated by international treaties. In international travel, there are more laws to comply with and the applicable laws are less friendly to the consumer than in domestic travel. International flights are deemed flights with any planned stop outside the United States, regardless of whether the passenger is on that leg of the flight.
Damages may also be limited when an aircraft crashes in the sea versus on land because of the Death on High Seas Act. If the aviation accident was caused by a government design defect, the Government Contract Defense may preclude or limit recovery. Sudden emergencies and Exculpatory Contracts may also create defenses, limiting liability and damages recoverable. Your aviation attorney will give you a better idea of what type of compensation is appropriate under the facts of your case.