AVIA 5203 Aviation Law Flashcards
Nolo contendre
I do not wish to contend
Writ of Certiorari
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.
Malum in se
Conduct that is wrong in and among itself (murder)
Malum prohibitum
Conduct that is wrong because it is prohibited (speeding)
Writ of habeas corpus
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.
Amici curiae
Friend of the court
De novo
A new, a fresh, second time
Actus reus
Is a connection between an action and a crime. “Guilty act”
Mens rea
To be guilty, the accused must have wrongful purpose in mind, a criminal intent or a “guilty mind”
Causation
(proximate/direct cause) direct and natural continuous
Per se
In itself
Appellant
Is one who appeals the decision of a lower court to higher court for review.
Appellee
Is the other party in litigation against whom an appeal is taken (also known as a respondent)
Caveat emptor
Let the buyer beware
Declaratory Judgement
Is one which declares the status, rights, or duties of the parties involved, but does not order any action to be taken.
Eminent domain
Is the inherent power of a sovereign government to take private property for public use
Condemnation
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.
Inverse condemnation
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
Deposition
Is the testimony of the witness, conducted under oath outside of the courtroom
Discovery
Is the disclosure of facts, documents and evidence to the opposing party upon request
Easement
Is a liberty, privilege, or advantage that entitles its holder to some limited use or enjoyment in the land of another.
Injunction
Is a court order to stop
Jurisdiction
(personal or in rem) - is the power, authority, capacity, or right to act of a court within a given legal or geographic area.
Venue
Is the place where injury happened, crime was committed, or where the accused is brought to trial.
Writ of mandamus
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.
Ad Volorem
Latin for according to value. Is a tax based on the value of real estate or personal property
Fiduciary Duty
Highest duty
Res Ipsa Loquitur
Not because of action (rule of evidence). Latin, the thing speaks for itself.
Quid Pro Quo
(This for That) something for something
Remittitur
the reduction by a judge of the damages awarded by the jury.
Additur
An increase by a judge in the amount of damages awarded by a jury.
Due Deference
opinion based on judgment on the rules of the law.
Sovereign immunity
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.
Code of Hammurabi
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
Due Process of Law
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.
Torts
A civil wrong. From the Latin tortious or twisted.
Stare decisis
Precedents from earlier decisions are followed.
Interstate commerce
To regulate commerce with foreign nations and among several states, and with the Indian tribes.
Res Ispa loquito
rule of evidence
Respondent superior
Responsible for those who work for you
In Rem
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.
Jury
Finder of fact
And what amendments is the due process of law found?
5th Amendment and 14th amendment
What are the three types of torts?
Intentional, negligence, strict liability
What four requirements must be met to be a tort?
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
What is the sovereign immunity limit in Oklahoma?
$175,000
Strict liability
Responsible for damages in a tort
Assault
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
Battery
A crime consisting of physical contact that is intended to harm someone.
Assumption of the risk
Consent to harm (in the ring to box Foreman)
When you agree to the risk you cannot sue
Duty of Landowner?
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)
Libel Per Quod
Know the facts; extrinsic facts are needed. Have to know additional facts.
Defamation
Statements that affects a persons status
Types of defamation?
Libel - written Defamation
Slander - spoken Defamation
What is the blue book?
That NTSB crash findings, not admissible in court, but facts from it can be used.
Types of slander?
Loathsome disease - AIDS, Herpes
Sexual misconduct
False accusation of a crime
Affects trade or profession
Puffery
Exaggerated opinion
When was the Constitution adopted?
June 21, 1788
When did the Bill of Rights become effective and become part of the constitution?
December 15, 1791
First Amendment
Establishment clause, freedom of assembly, free-speech
Second Amendment
Citizens have the right to keep and bear arms.
Fourth amendment
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
Terry v Ohio
Extends the right to search without a warrant.
Stop and frisk search
Search for weapons only; officer safety and your safety
Fifth Amendment
No person shall be deprived of life liberty or property without due process of law.
Sixth amendment
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
Seventh amendment
Trial by jury in civil cases of law.
Amount has to be $75,000 or more
Eighth amendment
no cruel and unusual punishment
Excessive bail shall not be required nor excessive fines imposed
10th amendment
States have authority to guard the public morals, the public safety, the public health and to promote the public convenience and the public good.
14th amendment
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.
Article 1 the Constitution
Established Vice President and creates the legislative branch covers
Article 1 section 8
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.
Article 2 of the Constitution
Establishes the executive branch
Article 3 of the Constitution
Establishes the judicial powers
Article 4 sections 1 & 2
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
Article 6 of the Constitution
Supremacy clause that gives the government rule over the states
Preemption- federal jurisdiction preempts state jurisdiction
Preemption
Overrides any conflicting state law
Whether federal or state court all cases are first tried where?
District Court
Where are Oklahoma’s district courts?
Oklahoma City
Tulsa
Muskogee
What is the Appellate Process?
Civil cases is to the Supreme Court
Criminal Cases is to the Court of Appeals then the Supreme Court
Thomas Hobbes
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
Hobbs: Law and violence
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
Emile Durkheim
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
Karl Marx
Communism evolves from capitalism
The proletariat must achieve self-activity.
Value is based on a unlimited lifespan versus the time to create
Sir Thomas More
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
Jean Jacques Rousseau
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.
Adam Smith
Invisible hand competition will guide the marketplace
Code of Hammurabi
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
Mosaic law
Require two witnesses for treason; death penalty
Roman law
Was based on a combination of statutory and case law
Corpus Juris Civilis
Body of civil laws under Emperor Justinian
Roman Law
Cannon Law
Church made law
First Amendment separation of church and state
Magna Carta
Lead to the English Bill of Rights
English common law
Law of England before the US became a separate nation. 49 states follow English common law. Louisiana follows Napoleonic Code
Napoleonic code
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
Define State
Sovereign national body; independent nations. England surrendered to each individual state
Themis
Lady of Justice power of the law, order of the natural world
Map v Ohio
It cited the exclusionary rule, which forbids evidence gathered illegally to be admissible in court.
Types of searches
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
Cardozo
Creates a zone of danger
Tarasoft
Duty to warn; as in a therapist knows imminent victim they must warn them
McPherson v Buick
Privity, this was the precursor of product liability where you can follow the tort to the manufacturer
The original Warsaw convention
Damages limited $8300
Montreal convention
Damages limited to 100,000 special drawing rights (SDR’s)
What is air rage?
Assaulting or intimidating a flight crew member or attendant carries a fine and/or imprisonment for not more than 20 years.
What is the punishment for a pilot operating without a certificate?
They can get five years.
What is the punishment for fraud involving aircraft parts?
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
what is CAPPS?
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
Aviation and transportation act 2001?
Established the TSA under Department of Transportation
Federalize airport screening
Aviation transportation act 1974
Screening of all passengers
Federal aviation act 1958
“in-flight” external doors closed after embarkation
Homeland security act 2002
Transfers TSA under Department of Homeland Security.
Hull insurance
Names a lien holder
What is a possessory lien?
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.
What is title 49 air piracy?
Hijacking
What is hijacking?
Accounts for the largest percentage of attacks against civil aviation.
Punishment is at least 20 year minimum, death of anyone is life in prison.
Registration is some evidence of ownership of an aircraft? True or false
True
Different types of bankruptcy?
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.
What is wingtipping?
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.
What are the functions of government?
Protective services: to defend the civil and property rights of individuals.
Proprietary services: to manage public properties and then a productivity
What is criminal law?
Is nothing but memorization of the law of what the crime is. Is statutory.
What are the forms of ownership?
Single or individual ownership: sole liability
Partnership: joint liability
Type of Corporations?
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
What does the US claim jurisdiction over?
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.
Plastic explosives
We have no reliable method to detect plastic explosives. Problems with wool…Contains high levels of nitrogen.
What are the certificate actions?
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
What is emergency action?
Is immediate order of suspension you lose your certificate (review must be complete in 60 days)
What are to steps ownership?
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.
Where are aircraft registered?
FAA Center in Oklahoma City Mike Moroney
Preventative maintenance includes?
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.
What is FAR part 43?
Maintenance, preventative maintenance, rebuilding and alteration
Can an owner preformed maintenance other than preventative maintenance on the aircraft?
Only if he is certified A&P mechanic
What is the administrative procedure act?
The FAA administer is governed by the APA, as is the NTSB.
The APA provides for adjudication procedures outside the normal judicial process
What is SODA?
Statement of demonstrated ability - pilots who have a static disability that is not expected to worsen may be certified through this process.
Changes in health?
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)
What is consumerism?
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.
What is preemption?
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
Sherman antitrust act of 1890
Designed to break up monopolies. Prevent any big business from monopolizing.
Railway labor act?
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.
How must discrimination be processed?
Must be processed through the EEOC and exhaust all claims before it can go to litigation.
Taft Hartley Act?
Protected the workers right not to join a union. The closed shop, where the employer hired only union workers, was outlawed.
What are the protected classes?
Race, color, religion, sex, or national origin.
At what age can age discrimination happened?
Age 40
Americans With Disabilities Act (ADA)
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?
Employment at will?
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.
Sexual harassment
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.
Sexual-harassment must be?
Both unwelcome and of a sexual nature.
Predation
When you are trying to run someone else out the business
The Clayton act of 1914?
Made illegal price discrimination along with exclusive selling and tying contracts
Bailor
Owns the property
Bailee
Takes possession of the property
Bailment of the Bailee
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.
Conversion
You get to choose your damages, want it fixed or replaced.
What is Bailment?
Describes the physical relationship of possession within the law.
Airports must have a wildlife control plan? True or false?
True
Intermodal Funds?
Airport regulations must follow the rules if you take their money.
Marketshare liability
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.
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?
Yes it can
What is the commerce clause?
Gives the federal government exclusive right to regulate interstate commerce and foreign commerce
True or false states cannot regulate the flights that are flying over them?
True
Publicly owned airports
The airport proprietor has no control over flights by aircraft not using the airport
Invitee
Business visitor - Duty is to inspect and make safe
Licensee
Social Visitor - duty is to warn of known hidden dangers
Trespasser
Duty is to not intentionally harm
Attractive Nuisance
Converts trespasser to licensee
Warranty actions?
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
Liability
Is bound in law to make good on something enforced by legal action
Manufactures products liability
During the early industrial revolution, products liability was characterized by emphasis on privity.
Privity
Direct contractual relationship
When was products liability introduced in Oklahoma?
1974
Define defect?
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
Types of defects?
Manufacturing defect
Design defect
Warning/labeling defect
Every product has to come with instructions for safe use and warnings
What is GARA?
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
Statute of limitations
Time you have to file a lawsuit
Statute of repose
Cuts off your right to file a lawsuit before accident ever occurs.
Ultrahazardous activity
The condition must be nonnatural to the area.
Sovereign immunity is a defense.
Samples: fireworks, fire, explosives, storing water, and use of pesticides.
Unreasonably dangerous
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.
Unforeseeable misuse
Misuse of a product is a use that could not reasonably be anticipated by its maker
Compensatory Damages
Designed to compensate for the actual loss
Punitive damages
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.
NTSB Appeal
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
PATCO
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.
Title VII claim involves three-step process?
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.
Wright and Shelby amendment
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.
Antitrust immunity
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.
Tort immunity
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.
Lessor
a person who grants a lease of property
Lessee
a person to whom a lease is granted; a tenant under a lease
