Duty and Degree of Care

The code of federal regulation provides that a person may not operate an aircraft in a careless or reckless manner so as to endanger the life or property of another[i].  A pilot has a duty to remain vigilant throughout the flight.  Also, a pilot has a duty to observe, recognize, and avoid dangerous conditions which confront him/her[ii].

However, in the absence of a statute providing otherwise, a pilot in the operation of an airplane is not required by law to exercise extreme care and caution[iii].  S/he is only required to exercise ordinary care in the circumstance.  Ordinary care is the care which the danger of the situation and the consequences that may follow an accident reasonably demand.

The law holds air traffic controllers to the standard of ordinary care with respect to their duties, which duties are concurrent with those of the pilots[iv].  Air traffic controllers have a general duty to promote the safe, orderly, and expeditious flow of air traffic[v].

Pursuant to statutory duties, the Administrator of the Federal Aviation Administration (FAA) has promulgated the Air Traffic Control Manual[vi].  The Air Traffic Control Manual provides that controllers are required to be familiar with the provisions that pertain to their operational responsibilities and to exercise their best judgment if they encounter situations that are not covered by it[vii].

However, air traffic controllers have no duty to warn a pilot of a condition of which s/he should already be aware based on his/her training, experience, and personal observations[viii].

Similarly, if air traffic control issues a direction or clearance that would, in the pilot’s judgment, jeopardize the safety of the aircraft and its occupants, the pilot must reject the direction and so inform air traffic control[ix].  A pilot has final authority, even over air traffic controllers[x].  If a pilot does not fully understand a clearance, or considers it unacceptable from a safety standpoint, s/he must request clarification or amendment of that clearance[xi].

Part 91 of the Federal Aviation Regulations, entitled General Operating and Flight Rules, contain several regulations dealing directly or indirectly with emergencies, such as:

  • The pilot in command of an aircraft is directly responsible for, and is the final authority as to the operation of that aircraft[xii].
  • In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule to the extent required to meet that emergency[xiii].
  • When an air traffic control clearance has been obtained, no pilot in command may deviate from that clearance, except in an emergency, unless an amended clearance is obtained.
  • The pilot in command should, before beginning a flight, become familiar with all available information concerning that flight[xiv].


The Federal Aviation Administration regulations require that the owner or operator of an aircraft be held primarily responsible for maintaining that aircraft in an airworthy condition[xv].

A common carrier by air must exercise the highest degree of care consistent with the practical operation of its plane for the safety of the passengers[xvi].

However, a common carrier by air is not an insurer of the safety of its passengers[xvii].  Liability is based upon negligence[xviii].  A common carrier is not liable for personal injuries suffered by a passenger where they result solely from an accident without any fault on the part of the carrier.

Similarly, a carrier’s failure to discover a latent defect is not negligence if it exercised the highest degree of care reasonably consistent with the practical operation of its business and used the best precautions that were in common, practical use in the same business and had proved to be effective in discovering defects[xix].

In Gravois v. Delta Airlines, Inc., 797 So. 2d 686 (La.App. 1 Cir. May 12, 2000), the court held that there is no duty on the part of the airline or the airport to determine that those who work near the jets are adequately protected from the noise before the jet begins its journey.

[i] 14 CFR 91.9.

[ii] Scruggs v. United States, 959 F. Supp. 1537 (S.D. Fla. 1997).

[iii] Long v. Clinton Aviation Co., 180 F.2d 665, 667 (10th Cir. Colo. 1950).

[iv] Hensley v. United States, 728 F. Supp. 716 (S.D. Fla. 1989).

[v] Sexton v. United States, 132 F. Supp. 2d 967 (M.D. Fla. 2000).

[vi] Id.

[vii] Airplanes of Boca, Inc. v. United States, 254 F. Supp. 2d 1304 (S.D. Fla. 2003).

[viii] Sexton v. United States, 132 F. Supp. 2d 967 (M.D. Fla. 2000).

[ix] Id.

[x] Airplanes of Boca, Inc. v. United States, 254 F. Supp. 2d 1304 (S.D. Fla. 2003).

[xi] Sexton v. United States, 132 F. Supp. 2d 967 (M.D. Fla. 2000).

[xii] 14 CFR 91.3 (a).

[xiii] 14 CFR 91.3 (b).

[xiv] 14 CFR 91.103.

[xv] 14 CFR 91.403.

[xvi] Andrews v. United Airlines, 24 F.3d 39 (9th Cir. Cal. 1994).

[xvii] Haley v. United Airlines, Inc., 728 F. Supp. 374 (D. Md. 1989).

[xviii] Arrow Aviation, Inc. v. Moore, 266 F.2d 488 (8th Cir. Neb. 1959).

[xix] Rathvon v. Columbia Pac. Airlines, 30 Wn. App. 193 (Wash. Ct. App. 1981).

Inside Duty and Degree of Care