Aviation Accident Lawyer Explains the Serious Legal Liability Boeing May Face After Deadly Crash in Ethiopia

All 149 passengers and eight crew members onboard Ethiopian Airlines Flight 302 were killed just minutes after the plane took off from Addis Ababa early Sunday morning. The monumental loss of life from the crash has raised a bevy of new questions about the safety of Boeing 737 Max 8 aircraft–the second such crash involving the 737 variant in a matter of months.

In the honor and names of those people gone forever, there are likely to be a series of lawsuits. An attorney who specializes in this area of law explained some of the issues at play here during a phone call.

Justin T. Green is a partner at Kreindler & Kreindler, a law firm that focuses on aviation accidents, personal injury claims and complex civil litigation. In an interview, he told Law&Crime that while it’s too soon to say for sure what caused the crash itself, Boeing very likely could be on the hook here.

Green referenced last October’s crash of Lion Air Flight 610–wherein all 189 occupants were killed due to problems with Flight 610’s angle of attack sensors and the automatic system the plane used to correct what those incorrect readings suggested.

“Boeing manufactured these airplanes and designed the system,” Green told Law&Crime. “The airplane takes over for the pilots because it thinks it knows better. It thinks the pilots are doing something that’s going to stall the airplane. But that information was incorrect. So, [the automatic system] pushed the nose down and the pilots fought it and that’s what caused the crash.”

After that grisly incident, Boeing offered additional guidance to pilots and airlines “about how the systems work and how to avoid such incidents,” Green noted. But it may not have been enough.

Several lawsuits have already been filed against Boeing over the Addis Ababa crash. And if Flight 302 was more or less a repeat of Flight 610, then Boeing would have a lot to answer for, according to Green:

Now, not much later, we have another crash. It seems to be a very similar incident. If you have two major incidents you’re going to have to see whether the actions that Boeing and the Federal Aviation Administration–and other safety bodies and agencies–took after the Lion Air case were sufficient. It’s a bad situation for Boeing. It’s bad for the airlines. It’s too soon to say what caused the latest incident. But there’s enough to say that there’s a severe safety problem with this airplane. If this is the same cause–and there’s enough information out right now to make that the leading suspect, then Boeing will have a lot to account for.

“If the facts of this accident are essentially that the same thing happened and better information or more information could have prevented it then that’s another reason that Boeing might be held accountable to the families and to their customers,” Green added, “A lot of customers are not flying them because of these safety concerns.”

Boeing was quick to issue a statement noting that the company will be offering their technical help to Ethiopian authorities. In another statement provided to CNN, however, Boeing noted that they did not see any evidence suggesting they should release additional safety guidance regarding the troubled 737 aircraft.

“The investigation is at its early stages, but at this point, based on the information available, we do not have any basis to issue new guidance to operators,” Boeing said.

Green also previewed some of the likely discussion on offer going forward.

“One of the things you’re going to hear about is this issue of automation,” Green continued, “There’s a number of incidents where the pilots don’t understand what the airplane is doing or when the airplane does something the pilot doesn’t expect. But in Lion Air, the airplane thought it was doing something it wasn’t doing.”

And this engineering discrepancy caused wholesale fatalities, Green said.

“When they put in the control inputs at Boeing, they put in a safety feature, when the airplane senses it is close to stalling, it will push the nose down. But in the case of Lion Air, it was not stalling. The airplane was pushing the nose down. The pilots didn’t appreciate what was happening and tried to pull the plane back up. So, they ended up wrestling with the plane and causing an accident,” he said. “The man-machine connection between pilots and these very sophisticated airplanes that largely fly themselves and what happens when the airplane hands itself back to the pilot or gets an erroneous reading from the system and puts the airplane into a bad situation. This is a system designed to save lives and it took lives.”

Green also explained how airline crashes are supposed to be heeded.

“The bottom line is airplane crashes are learning events–whether it’s for manufacturers or airlines or aviation agencies–that create safety rules. The first thing they teach you is ‘the rules are written in blood,'” he said. “The idea is to learn from mistakes and close calls rather than learning from an accident.”

“You try to learn about potential risks before the risks cause the accident. Any time there’s an accident and people die there’s this huge learning [process] that manufacturers and regulators go through so that it doesn’t happen again. And what would be really tragic is if–after Lion Air–the lesson was not learned,” he said, in conclusion. “They’re all tragedies but when things can be avoided, it makes you shake your head–and would also increase the potential liability of whoever is responsible.”

Update: According to the Associated Press, a “witness to the Ethiopian Airlines crash says smoke was coming from the rear of the plane before it hit the ground, killing 157 people on board.” If true, this would seem to change the calculus of what might have caused the crash.

Expert aviation attorney Marc S. Moller offered his thoughts on potential liability surrounding the tragedy via email:

It’s too early to jump to conclusions, but the LionAir and Ethiopian crashes appear to have some striking similarities. Boeing liability, if it turns out that the 737 MAX in either or both cases experienced a system malfunction attributable to design or that its instructions to pilots and operators was unclear, makes design defect liability follow against Boeing a strong possibility in both cases.

“With hundreds of orders for the 737MAX on Boeing’s books it has a serious commercial problem which is why it’s stock is being pummeled,” Moller added. “I expect that the FAA will join other nations and ground the plane until things are clarified.”

[image via JIM WATSON/AFP/Getty Images]

Editor’s note: this article has been amended post-publication to include additional details and quotations.

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