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Grad School > AVIA 5203 Aviation Law > Flashcards

AVIA 5203 Aviation Law Flashcards

0
Q

Nolo contendre

A

I do not wish to contend

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1
Q

Writ of Certiorari

A

Is an order in writing from superior to inferior Court, directing proceedings of a specified case to be set up for review.

Is a written request explaining why the higher court should review your case.

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2
Q

Malum in se

A

Conduct that is wrong in and among itself (murder)

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3
Q

Malum prohibitum

A

Conduct that is wrong because it is prohibited (speeding)

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4
Q

Writ of habeas corpus

A

Which a person can be released from unlawful detention. Latin means “you have the body”

The name of a writ having for its object to bring a person before a court.

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5
Q

Amici curiae

A

Friend of the court

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6
Q

De novo

A

A new, a fresh, second time

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7
Q

Actus reus

A

Is a connection between an action and a crime. “Guilty act”

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8
Q

Mens rea

A

To be guilty, the accused must have wrongful purpose in mind, a criminal intent or a “guilty mind”

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9
Q

Causation

A

(proximate/direct cause) direct and natural continuous

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10
Q

Per se

A

In itself

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11
Q

Appellant

A

Is one who appeals the decision of a lower court to higher court for review.

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12
Q

Appellee

A

Is the other party in litigation against whom an appeal is taken (also known as a respondent)

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13
Q

Caveat emptor

A

Let the buyer beware

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14
Q

Declaratory Judgement

A

Is one which declares the status, rights, or duties of the parties involved, but does not order any action to be taken.

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15
Q

Eminent domain

A

Is the inherent power of a sovereign government to take private property for public use

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16
Q

Condemnation

A

Is the act of judicially converting private property to public use under eminent domain. Property is taken without consent of the owner, but with just compensation.

The process for the government to take property.

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17
Q

Inverse condemnation

A

Occurs when a public entity takes or damages property without going through the legal procedure of condemnation, and does so without compensation to the owner.

You suing the government to take your property

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18
Q

Deposition

A

Is the testimony of the witness, conducted under oath outside of the courtroom

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19
Q

Discovery

A

Is the disclosure of facts, documents and evidence to the opposing party upon request

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20
Q

Easement

A

Is a liberty, privilege, or advantage that entitles its holder to some limited use or enjoyment in the land of another.

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21
Q

Injunction

A

Is a court order to stop

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22
Q

Jurisdiction

A

(personal or in rem) - is the power, authority, capacity, or right to act of a court within a given legal or geographic area.

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23
Q

Venue

A

Is the place where injury happened, crime was committed, or where the accused is brought to trial.

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24
Q

Writ of mandamus

A

Literally interpreted means “we command”. It is an order by the court to public officials, or to an inferior Court, directing them to do or not to do something within the scope of their duties.

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25
Q

Ad Volorem

A

Latin for according to value. Is a tax based on the value of real estate or personal property

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26
Q

Fiduciary Duty

A

Highest duty

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27
Q

Res Ipsa Loquitur

A

Not because of action (rule of evidence). Latin, the thing speaks for itself.

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28
Q

Quid Pro Quo

A

(This for That) something for something

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29
Q

Remittitur

A

the reduction by a judge of the damages awarded by the jury.

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30
Q

Additur

A

An increase by a judge in the amount of damages awarded by a jury.

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31
Q

Due Deference

A

opinion based on judgment on the rules of the law.

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32
Q

Sovereign immunity

A

Comes from the old English idea that Kings may do no wrong. You have to get permission from the state to sue the state.

Does not protect you in a criminal act.

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33
Q

Code of Hammurabi

A

First recorded law
18th century BC, code was carved on stone

The process of organizing and arranging law by subject into systematic form is codification. Did not apply to all people equally

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34
Q

Due Process of Law

A

The right of all persons to receive the guarantees and safeguards of the law judicial process. Include such constitutional requirements as adequate notice, assistance of counsel, and the Rights to remain silent, to a speedy and public trial, to impartial jury, and to confront and secure witnesses.

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35
Q

Torts

A

A civil wrong. From the Latin tortious or twisted.

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36
Q

Stare decisis

A

Precedents from earlier decisions are followed.

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37
Q

Interstate commerce

A

To regulate commerce with foreign nations and among several states, and with the Indian tribes.

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38
Q

Res Ispa loquito

A

rule of evidence

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39
Q

Respondent superior

A

Responsible for those who work for you

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40
Q

In Rem

A

from the Latin “against or about a thing,” referring to a lawsuit or other legal action directed toward property, rather than toward a particular person.

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41
Q

Jury

A

Finder of fact

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42
Q

And what amendments is the due process of law found?

A

5th Amendment and 14th amendment

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43
Q

What are the three types of torts?

A

Intentional, negligence, strict liability

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44
Q

What four requirements must be met to be a tort?

A

Duty - not under any duty to come to the aid of another person. You have a duty to help if you are related by blood or by marriage.

Breach - unreasonable conduct

Direct cause

Damages - general damages and punitive damages

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45
Q

What is the sovereign immunity limit in Oklahoma?

A

$175,000

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46
Q

Strict liability

A

Responsible for damages in a tort

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47
Q

Assault

A

Is the apprehension of a battery.

A crime that occurs when one person tries to physically harm another in a way that makes the person under attack feel immediately threatened. Actual physical contact is not necessary; threatening gestures that would alarm any reasonable person can constitute an assault

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48
Q

Battery

A

A crime consisting of physical contact that is intended to harm someone.

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49
Q

Assumption of the risk

A

Consent to harm (in the ring to box Foreman)

When you agree to the risk you cannot sue

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50
Q

Duty of Landowner?

A

Invitee - (business visitor) duty to inspect and make safe the land

Licensee - (social visitor) duty to warn of known hidden dangers

Trespasser - duty not to intentionally harm

Attractive Nuisance - Trespasser to licensee (children) and (mentally unstable)

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51
Q

Libel Per Quod

A

Know the facts; extrinsic facts are needed. Have to know additional facts.

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52
Q

Defamation

A

Statements that affects a persons status

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53
Q

Types of defamation?

A

Libel - written Defamation

Slander - spoken Defamation

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54
Q

What is the blue book?

A

That NTSB crash findings, not admissible in court, but facts from it can be used.

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55
Q

Types of slander?

A

Loathsome disease - AIDS, Herpes

Sexual misconduct

False accusation of a crime

Affects trade or profession

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56
Q

Puffery

A

Exaggerated opinion

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57
Q

When was the Constitution adopted?

A

June 21, 1788

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58
Q

When did the Bill of Rights become effective and become part of the constitution?

A

December 15, 1791

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59
Q

First Amendment

A

Establishment clause, freedom of assembly, free-speech

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60
Q

Second Amendment

A

Citizens have the right to keep and bear arms.

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61
Q

Fourth amendment

A

Protection against search and seizure.

Search and seizure not allowed without probable cause. The right of the people to be free from unreasonable searches and homes, persons, and effects

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62
Q

Terry v Ohio

A

Extends the right to search without a warrant.

Stop and frisk search

Search for weapons only; officer safety and your safety

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63
Q

Fifth Amendment

A

No person shall be deprived of life liberty or property without due process of law.

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64
Q

Sixth amendment

A

Applies to criminal cases

The accused shall enjoy the right to a speedy and public trial by an impartial jury.

The right to summon confront witnesses.

Counsel for defense

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65
Q

Seventh amendment

A

Trial by jury in civil cases of law.

Amount has to be $75,000 or more

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66
Q

Eighth amendment

A

no cruel and unusual punishment

Excessive bail shall not be required nor excessive fines imposed

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67
Q

10th amendment

A

States have authority to guard the public morals, the public safety, the public health and to promote the public convenience and the public good.

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68
Q

14th amendment

A

No state shall make or enforce any law which shall abridge privileges or immunities of citizens of United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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69
Q

Article 1 the Constitution

A

Established Vice President and creates the legislative branch covers

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70
Q

Article 1 section 8

A

Gives Congress the exclusive right to regulate commerce among the several states. All powers given to Congress are in section 8. Fed’s control interstate commerce.

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71
Q

Article 2 of the Constitution

A

Establishes the executive branch

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72
Q

Article 3 of the Constitution

A

Establishes the judicial powers

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73
Q

Article 4 sections 1 & 2

A

Section 1 - full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state; and the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.

Section 2 - the citizens of each State shall be entitled to all privileges and immunities of citizens in several states

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74
Q

Article 6 of the Constitution

A

Supremacy clause that gives the government rule over the states

Preemption- federal jurisdiction preempts state jurisdiction

75
Q

Preemption

A

Overrides any conflicting state law

76
Q

Whether federal or state court all cases are first tried where?

A

District Court

77
Q

Where are Oklahoma’s district courts?

A

Oklahoma City
Tulsa
Muskogee

78
Q

What is the Appellate Process?

A

Civil cases is to the Supreme Court

Criminal Cases is to the Court of Appeals then the Supreme Court

79
Q

Thomas Hobbes

A

The nature of law and humanity
The natural state of human species are but savages.
Immoral implies a violation of the norms of society.

A balance exist between nature and there is a social contract with the government

80
Q

Hobbs: Law and violence

A

Punishment arises from the states monopoly on force.
The purpose of punishment is not retribution; rather it is to restore law and order.
Punishment restores obedience to society

81
Q

Emile Durkheim

A

Wrote division of labor

Structure requires functionalism crime is required so we can have cops

Things exist in a society to fulfill purpose

1) Crime is normal
2) why is it normal
82
Q

Karl Marx

A

Communism evolves from capitalism

The proletariat must achieve self-activity.

Value is based on a unlimited lifespan versus the time to create

83
Q

Sir Thomas More

A

Wrote Utopia and questioned the power of the King

In Utopia he describes society which builds on the interest of the consumer

Blueprint for a government

84
Q

Jean Jacques Rousseau

A

Social contract

The state was created to maintain the rights of the individual, not majority. Individual sovereignty is given up in order to achieve freedom, equality and justice.

85
Q

Adam Smith

A

Invisible hand competition will guide the marketplace

86
Q

Code of Hammurabi

A

First recorded law

The process of organizing and arranging law by subject into a systematic form is “codification”. Did not apply to all people equally

87
Q

Mosaic law

A

Require two witnesses for treason; death penalty

88
Q

Roman law

A

Was based on a combination of statutory and case law

89
Q

Corpus Juris Civilis

A

Body of civil laws under Emperor Justinian

Roman Law

90
Q

Cannon Law

A

Church made law

First Amendment separation of church and state

91
Q

Magna Carta

A

Lead to the English Bill of Rights

92
Q

English common law

A

Law of England before the US became a separate nation. 49 states follow English common law. Louisiana follows Napoleonic Code

93
Q

Napoleonic code

A

Codified individual liberties, freedom of work

Gave equality before law

Protective property rights

Addressed family issues only limited rights to women and was adopted by the state of Louisiana

94
Q

Define State

A

Sovereign national body; independent nations. England surrendered to each individual state

95
Q

Themis

A

Lady of Justice power of the law, order of the natural world

96
Q

Map v Ohio

A

It cited the exclusionary rule, which forbids evidence gathered illegally to be admissible in court.

97
Q

Types of searches

A

Warrant - specific on what you are searching for and where you are searching. If the warrant does not have this information it is a crime cops act on it.

Incident to lawful arrest - once under arrest you can be searched

Stop and frisk (Terry v Ohio)- extend the right to search without a warrant. search for weapons only officer safety and your safety

Administrative searches - airport scanners, police roadblocks.

Consent

Probable cause

98
Q

Cardozo

A

Creates a zone of danger

99
Q

Tarasoft

A

Duty to warn; as in a therapist knows imminent victim they must warn them

100
Q

McPherson v Buick

A

Privity, this was the precursor of product liability where you can follow the tort to the manufacturer

101
Q

The original Warsaw convention

A

Damages limited $8300

102
Q

Montreal convention

A

Damages limited to 100,000 special drawing rights (SDR’s)

103
Q

What is air rage?

A

Assaulting or intimidating a flight crew member or attendant carries a fine and/or imprisonment for not more than 20 years.

104
Q

What is the punishment for a pilot operating without a certificate?

A

They can get five years.

105
Q

What is the punishment for fraud involving aircraft parts?

A

15 years and/or $500,000 if the part is installed on an aircraft

$1 million and/or 20 years at the part is the proximate cause of a malfunction or failure that causes serious bodily harm.

$1 million and/or life if the part results in death of any person.

Organizations $10 million if part is installed and $20 million if causes serious bodily harm or death

106
Q

what is CAPPS?

A

Computer assisted passenger prescreening system

Analyzes more than 40 pieces of secret information collected by the airlines, the selectees are subject to heightened security procedures

Signed in by President Clinton

107
Q

Aviation and transportation act 2001?

A

Established the TSA under Department of Transportation

Federalize airport screening

108
Q

Aviation transportation act 1974

A

Screening of all passengers

109
Q

Federal aviation act 1958

A

“in-flight” external doors closed after embarkation

110
Q

Homeland security act 2002

A

Transfers TSA under Department of Homeland Security.

111
Q

Hull insurance

A

Names a lien holder

112
Q

What is a possessory lien?

A

Is one who has the possession of the aircraft.

If a debt is not timely paid, the holder of the security interest has a right to take possession or maintain possession without restoring to judicial process as long as a breach of the peace may be avoided.

113
Q

What is title 49 air piracy?

A

Hijacking

114
Q

What is hijacking?

A

Accounts for the largest percentage of attacks against civil aviation.

Punishment is at least 20 year minimum, death of anyone is life in prison.

115
Q

Registration is some evidence of ownership of an aircraft? True or false

A

True

116
Q

Different types of bankruptcy?

A

Chapter 7: liquidation lose everything but you can keep secured debt.

Chapter 9: debts of a municipality may be adjusted

Chapter 11: reorganization (business) that leaves the debtor in possession.

Chapter 13: reorganization (personal) that leaves the debtor in possession.

117
Q

What is wingtipping?

A

Occurs where one carrier will match another with a departing flight within 5 or 10 minutes of the other, on the same route, and significantly reduced fare.

118
Q

What are the functions of government?

A

Protective services: to defend the civil and property rights of individuals.

Proprietary services: to manage public properties and then a productivity

119
Q

What is criminal law?

A

Is nothing but memorization of the law of what the crime is. Is statutory.

120
Q

What are the forms of ownership?

A

Single or individual ownership: sole liability

Partnership: joint liability

121
Q

Type of Corporations?

A

C corporation - it’s unlimited number but taxed on profit and again when the draw is applied

S Corporation - is limited to 100 people the only taxed once

LLC - is best for both

122
Q

What does the US claim jurisdiction over?

A

1) any civil aircraft of US registry
2) aircraft of the national Defense forces of the U.S.
3) any aircraft within the U.S.
4) any aircraft outside the U.S. that has its next scheduled destination or last departure in the U.S.

123
Q

Plastic explosives

A

We have no reliable method to detect plastic explosives. Problems with wool…Contains high levels of nitrogen.

124
Q

What are the certificate actions?

A 
Notice 10 days to respond
Informal conference
Settlement conference
Order of suspension
Assigned to administrative law judge
Discovery
Trial before the administrative law judge
Paper appeal to the NTSB
US Court of Appeals
Supreme Court of Appeals
125
Q

What is emergency action?

A

Is immediate order of suspension you lose your certificate (review must be complete in 60 days)

126
Q

What are to steps ownership?

A

Title search and title insurance.
Must carry Hull insurance same as full coverage on a car.
Liability and hull insurance which also names the lien holder as a loss payee on the hull insurance.

127
Q

Where are aircraft registered?

A

FAA Center in Oklahoma City Mike Moroney

128
Q

Preventative maintenance includes?

A

Changing and repair landing gear tires, lubrication not require disassembly, cleaning and replacing fuel and all filters, replacing your clean spark plug, replacing servicing batteries, repaying landing light wiring circuits, bulbs, reflectors and lenses, replacing hose connections except hydraulic connections, refinishing, repairing upholstery and interior furnishings.

129
Q

What is FAR part 43?

A

Maintenance, preventative maintenance, rebuilding and alteration

130
Q

Can an owner preformed maintenance other than preventative maintenance on the aircraft?

A

Only if he is certified A&P mechanic

131
Q

What is the administrative procedure act?

A

The FAA administer is governed by the APA, as is the NTSB.

The APA provides for adjudication procedures outside the normal judicial process

132
Q

What is SODA?

A

Statement of demonstrated ability - pilots who have a static disability that is not expected to worsen may be certified through this process.

133
Q

Changes in health?

A

You are not required to report a changing your help to the FAA before your next application for medical certificate.

You must report any conviction for a drug or alcohol related traffic offense, or the denial or suspension of your drivers license to the FAA and Oklahoma City no later than 60 days after conviction or action (FAR 61.15)

134
Q

What is consumerism?

A

Is a challenge to business to provide what is promised, to be honest, to inform the consuming public, provide safe product with quality assurance, and to respond fairly to legitimate complaints.

135
Q

What is preemption?

A

A state may not enact or enforce the law, regulation or other provision having to force and effect of law related to a price, route or service of an air carrier

136
Q

Sherman antitrust act of 1890

A

Designed to break up monopolies. Prevent any big business from monopolizing.

137
Q

Railway labor act?

A

The Railway labor act of 1926 was the first comprehensive body of labor law passed by Congress. If force management to recognize and bargain with labor representatives. It was extended to airline’s in 1936.

138
Q

How must discrimination be processed?

A

Must be processed through the EEOC and exhaust all claims before it can go to litigation.

139
Q

Taft Hartley Act?

A

Protected the workers right not to join a union. The closed shop, where the employer hired only union workers, was outlawed.

140
Q

What are the protected classes?

A

Race, color, religion, sex, or national origin.

141
Q

At what age can age discrimination happened?

A

Age 40

142
Q

Americans With Disabilities Act (ADA)

A

Must limit one or more of life’s activities.

Two questions have to be answered: can he perform the job? Can he perform it without a direct threat to safety?

143
Q

Employment at will?

A

Employers have the right to fire employees for any reason (or no apparent reason). Employees have the right to quit their job for any reason.

144
Q

Sexual harassment

A

Quid pro quo - this for that. Involves demand or suggestion of sexual favors in exchange for job benefits such as a promotion or job or to avoid being fired or laid off.

Hostile work environment may be created by verbal abuse, sexist remarks, touching, leering or ogling.

145
Q

Sexual-harassment must be?

A

Both unwelcome and of a sexual nature.

146
Q

Predation

A

When you are trying to run someone else out the business

147
Q

The Clayton act of 1914?

A

Made illegal price discrimination along with exclusive selling and tying contracts

148
Q

Bailor

A

Owns the property

149
Q

Bailee

A

Takes possession of the property

150
Q

Bailment of the Bailee

A

Does not own the property, and possession the reverts to the owner.

May not dispose of the property

Must be warned of hidden defects

Must take reasonable care of the property

Maybe liable for loss or damage caused by the bailee’s negligence

Is generally not liable for loss or damage beyond the bailee’s control

Must return the exact property received

May not use the property without permission and if the bailee does, he or she is almost always liable for loss or damage. The wrongful use or wrongful taking of personal property is known as conversion.

151
Q

Conversion

A

You get to choose your damages, want it fixed or replaced.

152
Q

What is Bailment?

A

Describes the physical relationship of possession within the law.

153
Q

Airports must have a wildlife control plan? True or false?

A

True

154
Q

Intermodal Funds?

A

Airport regulations must follow the rules if you take their money.

155
Q

Marketshare liability

A

You sold 50% of the tires so you have to pay 50% of the damages

Establishes liability by the percentage of product a company placed in the stream of commerce.

156
Q

If a local government operates in a purely proprietary capacity, meaning acting as a private enterprise, can it be sued like any other private enterprise?

A

Yes it can

157
Q

What is the commerce clause?

A

Gives the federal government exclusive right to regulate interstate commerce and foreign commerce

158
Q

True or false states cannot regulate the flights that are flying over them?

A

True

159
Q

Publicly owned airports

A

The airport proprietor has no control over flights by aircraft not using the airport

160
Q

Invitee

A

Business visitor - Duty is to inspect and make safe

161
Q

Licensee

A

Social Visitor - duty is to warn of known hidden dangers

162
Q

Trespasser

A

Duty is to not intentionally harm

163
Q

Attractive Nuisance

A

Converts trespasser to licensee

164
Q

Warranty actions?

A

Express warranty: applies to goods and services. Spelled out you get this

Implied warranty of fitness for particular purpose. Unless it is excluded it is implied you get this

Implied warranty of merchant ability

165
Q

Liability

A

Is bound in law to make good on something enforced by legal action

166
Q

Manufactures products liability

A

During the early industrial revolution, products liability was characterized by emphasis on privity.

167
Q

Privity

A

Direct contractual relationship

168
Q

When was products liability introduced in Oklahoma?

A

1974

169
Q

Define defect?

A

A product is defective when it is not reasonably fit for the ordinary purpose for which such products or intended or may reasonably be expected to be used. A defect may arise out of the [design/manufacture/packaging/labeling/or insert description of any other appropriate basis of liability] occring while the product was in the control of the defendant

170
Q

Types of defects?

A

Manufacturing defect
Design defect
Warning/labeling defect
Every product has to come with instructions for safe use and warnings

171
Q

What is GARA?

A

General aviation revitalization

August 17, 1994 President Clinton signed into law the general aviation revitalization act of 1994

The act establishes an 18 year statute of repose

The statute of repose is triggered by the date the product is manufactured regardless of when the plaintiff discovered the defect.

GARA does not apply to planes that hold more than 20 passengers and serve commercial carrier services

172
Q

Statute of limitations

A

Time you have to file a lawsuit

173
Q

Statute of repose

A

Cuts off your right to file a lawsuit before accident ever occurs.

174
Q

Ultrahazardous activity

A

The condition must be nonnatural to the area.
Sovereign immunity is a defense.
Samples: fireworks, fire, explosives, storing water, and use of pesticides.

175
Q

Unreasonably dangerous

A

Means that the article must be dangerous to an extent beyond that which would be contemplated by the ordinary user consumer who purchased it with the ordinary knowledge common to the community as a product characteristics.

The warning must reasonably communicate the extent or seriousness of the harm that could result from the danger.

176
Q

Unforeseeable misuse

A

Misuse of a product is a use that could not reasonably be anticipated by its maker

177
Q

Compensatory Damages

A

Designed to compensate for the actual loss

178
Q

Punitive damages

A

If you find that defendant showed a reckless disregard for the Public Safety, then you may also grant plaintiff punitive damages in such sum as you reasonably believe will punish the defendant, and be an example to others.

179
Q

NTSB Appeal

A

Appeal to the NTSB board is a paper pill. Both sides file written legal briefs. The only basic issue the board considers are: did the ALJ afford both sides a fair hearing, did the ALJ applied the correct law to the facts proven at trial. The board will not consider the credibility of witnesses. The trial ALJs determination of who to believe is final

180
Q

PATCO

A

In 1981, after protracted dispute with the FAA over wages and working conditions, the professional air-traffic controller organization union declared a strike. Pres. Ronald Reagan responded by firing all 11,500 striking air-traffic controllers and closing 80 towers.

181
Q

Title VII claim involves three-step process?

A

Plaintiff must establish prima facie case of discrimination

If so, defendant must show a legitimate, nondiscriminatory justification for the employment action.

If so, plaintiff must prove that the defendants proffered reasons were a pretext for discrimination. This is called burden shifting.

182
Q

Wright and Shelby amendment

A

The Wright amendment of 1979 established a perimeter rule restricting air service at Dallas love Field, limiting service to Texas and it’s adjacent states. In 1997, Congress passed the Shelby amendment, which allowed service to be extended to three additional states, and made it clear service beyond this area provided aircraft had 56 seats.

183
Q

Antitrust immunity

A

Airline deregulation act of 1978 discontinued antitrust immunity for the airlines and the courts began strictly enforcing antitrust violations at the local government level. Hundreds of antitrust suits were filed.

In 1984, Congress passed local government antitrust act to limit the liability of local governments, including airport authorities to injunctive relief only.

184
Q

Tort immunity

A

Airport sponsors generally have tort liability, particularly with proprietary operations. Most tort actions are the result of hazardous condition, which contribute to accidents and personal injury or property loss.

Airport management, as a proprietor, has a legal duty to prevent any conditions or action, which in themselves create a dangerous or hazardous situation.

The courts have held the airports must be kept safe for invitees and other users. Although, precise contours of immunity different under each states common law.

185
Q

Lessor

A

a person who grants a lease of property

186
Q

Lessee

A

a person to whom a lease is granted; a tenant under a lease

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