The National Transportation Safety Board‘s recent determination that pilot error likely caused the helicopter crash that killed basketball legend Kobe Bryant and eight others won’t necessarily spawn a quick settlement, experts say, as other theories of liability could materialize and additional parties could be roped into the litigation.
The NTSB released its “probable cause” determination on Feb. 9 and found the pilot had made a bad decision to fly into clouds, which caused him to become disoriented and led to the crash that resulted in the deaths of Bryant, his 13-year-old daughter Gianna, and her two youth basketball teammates and their parents on the way to a game in Thousand Oaks, California, on Jan. 26, 2020.
The agency said the pilot, Ara Zobayan, consciously flew into zero-visibility weather despite not being cleared to operate the helicopter using only flight instruments, which resulted in the pilot’s “spatial disorientation and loss of control.” The NTSB also laid some of the blame on the charter company, Island Express Helicopters, saying it had inadequate safety oversight.
While the facts gleaned by the NTSB’s investigation will serve as key pieces of evidence in a pending suit filed by Kobe Bryant’s widow, Vanessa Bryant, accusing Island Express and Zobayan of causing the wrongful deaths of her husband and daughter, experts said the agency’s probable cause conclusions are inadmissible in court pursuant to the Federal Aviation Act.
“The courts and the parties are entitled to the benefits of the NTSB’s expert investigations but are not entitled to the conclusion or cause — that’s ultimately for the jury or court to determine,” said Alan Hoffman, a private pilot and retired attorney with Husch Blackwell LLP.
Despite the inadmissibility of probable cause determinations, Hoffman said the NTSB report is important for Vanessa Bryant and the other plaintiffs, which include relatives of the other passengers, because it’s an investigation conducted by experts who have access to resources largely unavailable to the public, and the NTSB investigators can be deposed by the parties.
“The factual findings are always important, and they routinely become part of the fact record of the case,” he said, noting the NTSB’s actual determination cannot be part of the same record.
Ladd Sanger, a licensed airline transport pilot and Slack Davis Sanger LLP’s Dallas managing partner, said now that the NTSB investigation has concluded, the parties are free to examine the wreckage and other evidence and launch their own investigations, which could prompt other theories of liability to emerge.
Sanger said while the evidence demonstrates that the pilot erred by flying into the clouds, there is a question of whether his flight instruments, known as avionics, were properly set up and functioning.
“If the pilot was relying on his avionics in the clouds and for whatever reason they were not working and exacerbated his spatial disorientation, that is something to look at,” he said. “It’s easy to lay blame at the feet of a pilot. In some cases it’s warranted, but in some cases there are other factors that could’ve prevented the bad outcome or reduced the likelihood of pilot error from an aviation standpoint.”
Sanger said it’s an “open question” as to whether other parties will be added to the case, such as the helicopter’s manufacturer, Sikorsky.
“I’ve been involved in a lot of cases where additional theories of liability against other defendants have been developed, so that’s yet to come,” he said. “I wouldn’t say that now that the NTSB report is out that the case is over. One thing I tell my clients is that the NTSB report is just one data point. In many instances, we do our own investigation and find and develop our own theories of liability that may not be obvious from the NTSB report.”
In addition, the attorneys representing all the parties in the case are “very skilled aviation litigators,” Sanger said, so it’s possible other theories of liability could take shape out of their due diligence processes.
One additional party ensnared in the litigation is the federal government, which Island Express lodged cross-claims against in August, alleging two Federal Aviation Administration air traffic controllers negligently handled a shift change that occurred during the flight.
Hoffman, the retired Husch Blackwell LLP attorney, said the first order of business in the case is to see whether claims can proceed against the federal government and their vast monetary reserves.
“If the defendants are able to hold the United States in the case, that of course would considerably up the ante because the U.S. Treasury would be good for a substantial settlement,” he said. “So I would not expect any serious settlement negotiations to go forward until [pending motions to dismiss] are determined.”
Attorneys for Bryant, Zobayan’s estate and Island Express all declined to comment on the NTSB’s findings.
Vanessa Bryant is represented by Brad D. Brian and Luis Li of Munger Tolles & Olson LLP and Gary C. Robb and Anita Porte Robb of Robb & Robb LLC.
The federal government is represented by Nicola T. Hanna of the U.S. Attorney’s Office for the Central District of California and Debra D. Fowler and Alan D. Mattioni of the U.S. Department of Justice‘s Civil Division.
Island Express is represented by Ross Cunningham, Don Swaim, D. Todd Parrish and Michael J. Terhar of Cunningham Swaim LLP and Todd Worthe of Worthe Hanson & Worthe.
Zobayan’s estate is represented by Arthur I. Willner and Raymond L. Mariani of Leader Berkon Colao & Silverstein LLP.
The case is Vanessa Bryant et al. v. Island Express Helicopters Inc. et al., case number 2:20-cv-08953, in the U.S. District Court for the Central District of California.