The FAA was supposed to protect the Reno Air Race spectators by, among other things, assuring that the race course design was safe. It failed to do so. Do the victims have a right to bring a lawsuit against the FAA? Sovereign Immunity. The FAA or, more accurately, the United States government can be sued just like any other individual, when it's negligence contributes to a citizen's injury or death. There are some important limitations, however. For example, the FAA cannot be sued if it's employee — in committing the negligent act — was acting within his discretion. Rather, the "Discretionary Function Exception" protects the government from liability in those circumstances. The government can, however, be sued when someone is injured or killed as a result of an FAA employee's failure to follow the FAA's own rules. The theory is that, when in that circumstance, the employee had no "discretion." If he was supposed to follow rules, and didn't, and as a result someone is killed or injured, the government is liable. FAA's Involvement in the Reno Air Races. The FAA approved the pilots, the planes, and the design of the course. For purposes of illustration, let's discuss only the design of the course. For an FAA employee to approve a race course, the course design must meet certain requirements. FAA Order 8900.1 spells those out in detail. Some of the math involved is set forth on the right. The math is a bit complicated. But in short, the requirements are supposed to ensure that a plane is never pointed at the crowd, and to otherwise keep the spectators safe if something goes wrong with a plane or a pilot. If a proposed course design didn't comply with the requirements set forth in Order 8900.1, and an FAA employee approved it nonetheless, the FAA is potentially liable. That's because the employee has no discretion to approve a course that doesn't comply with the rules. If a course doesn't comply with the rules, the FAA employee is supposed to reject it. What if the course design complied with the requirements of Order 8900.1, but the victims prove that the Order's requirements were too lax to protect the public from harm, and that they should have been more stringent? Then the victims will have a much harder time suing the government. Deciding what the rules should be is a task likely within the FAA's discretion. Thus, the government would assert the "discretionary function" defense to the victims' lawsuit. Related content on this blog: Reno Air Race Lawsuits and the Assumption of Risk Defense Reno Air Race Disaster No Freak Accident Leeward a Hero? Leeward's Aircraft Lost Trim Tab
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