united states district court district of ... - dms.ntsb.gov · brs parachute, operation of the auto...

Recvd07 OCT ’13 11:15 USDC-ORP

Plaintiffs Complaint for Damages Daniel A. Bernath, Esq.

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UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

Daniel A. Bernath, an individual, ) Case No. 3’13-cv-1778 and as assignee of Oregon Trail ) Trust, ) Complaint for Damages ) (1) negligence per se; (2) negligence; vs. ) (3) breach of contract; (4) products ) liability, (5) breach of express Flight Design USA, James Scheibner,) warranty; (6) breach of implied Flight Design GmbH, ) warranty of fitness for a particular Hillsdale Aero, Inc., ) purpose; (7) breach of implied and Does 1 through 10 ) warranty of merchantability; Defendants. ) (8) negligent misrepresentation ) (9) breach of express warranty ) under ORS Chapter 72; ) (10) fraud; (11) unfair business ) practices; Punitive damage and ) attorney fee request,

jury trial demanded

Comes now Plaintiff, Daniel A. Bernath, for himself and as assignee of the Oregon

Trail Trust and complaining against Defendants and all of them, states as follows:

1. This action seeks recovery for damages arising from personal injuries, and other

torts due to the crash of an aircraft in Sisters, Oregon on September 1, 2013.

2. Defendant Flight Design GmbH is a German corporation with a subsidiary or

wholly independent distributor Flight Design USA of the State of Connecticut.

Hillsdale Aero, Inc., is a Michigan corporation or a business entity form

unknown. James Scheibner is an individual. All Defendants are agents of each

other.

3. This judicial district is appropriate as a substantial part of the events and/or

omissions giving rise to the claim occurred in this district.



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4. On or about July 1, 2010, Plaintiff sought to become a Light Sport Pilot, to become

trained as a light sport pilot and to become licensed by the Federal Aviation

Administration as a Light Sport Pilot.

5. The training elements necessary to earn a Light Sport Pilot license to fly are located

at 14 CFR Part 61, Subpart J and require;

• Ground training from an instructor or home-study course.

• FAA knowledge test on applicable aeronautical knowledge areas.

• FAA practical test for the applicable light sport aircraft privilege.

• 14 § 61.309

• What aeronautical knowledge must I have to apply for a sport pilot certificate?

• To apply for a sport pilot certificate you must receive and log ground training

from an authorized instructor or complete a home-study course on the following

aeronautical knowledge areas:

• (a) Applicable regulations of this chapter that relate to sport pilot privileges,

limits, and flight operations.

• (i) Principles of aerodynamics, powerplants, and aircraft systems.

6. There is no requirement that a Light Sport Pilot know or be trained fuel starvation to

the pilot’s engine caused by a left wing fuel tank being empty and a right tank have 3

to 4 gallons.

7. As a seller of airplanes and as a CFI, Scheibner knew or should have known that

there was no requirement to instruct or warn regarding any physical limitation and

design defect caused by the condition described in paragraph 6 above.



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8. Flight Design USA, Flight Design GmbH and Hillsdale Aero, as manufacturers and

sellers of airplanes marketed to Light Sport Pilots knew or should have known that

pilots would not be aware of the physical limitation and design defect described in

paragraph 6 above.

9. Plaintiff sought out to purchase a light sport airplane to train in under the

supervision of an FAA authorized instructor.

10. Plaintiff, on or about July 1, 2010 found an advertisement by “Owner”, James C.

Scheibner, Certificated Flight Instructor (C.F.I.), authorized by the FAA to give

guidance to student pilots such as Plaintiff.

11. In said advertisement, Defendants and each of them represented;

“Attention CTSW / Light Sport buyers!!” “It doesn’t get any better than

this!” (Emphasis in original), thereby specifically targeting Light Sport pilots with

their training as required by the FAA and the CFR.

12. Scheibner personally instructed Plaintiff on the rotation of the power plant propeller

prior to flight so as to move oil to the top of the engine, proper deployment of the

BRS parachute, operation of the auto pilot and navigation Garmin 696. He did not

warn or instruct Plaintiff of the deadly design defect fuel starvation issues of the

CTSW N102HA.

13. Defendants drafted on 28 Feb 2005 and revised 29 Apr 2008 and posted upon the

internet the POH of the CTSW. As to fuel, the only relevant warning or instruction

that Defendants gave to Plaintiff was, “Fuel system Fuel is gravity fed to the engine

from two integral wing tanks” “The fuel valve in purely on/off… Each wing has an

integral fuel tank with a capacity of 65l/ 17 U.S. gallons of which 16.5 gallons are



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usable. Said another way, a gallon of fuel is unusable, represented Defendants.

The total fuel capacity is 130l/ 34 U.S. gallons of which 241l/ 33 gallons are usable.

14. Thereafter, Plaintiff purchased said CTSW N102HA based upon the

representations of the Defendants.

15. Prior to said purchase, the Flight Design Defendants knew that said CTSW model

contained a deadly design flaw regarding its fuel system and fuel starvation.

Defendants did not warn Plaintiff of said flaw nor did Defendants instruct Plaintiff

on any possible mitigation of said design flaw.

16. Flight Design knew of the deadly design defect but stated that the knowledge of this

defect must be learned from earlier crashes from hearing it from other pilots

loitering around the hangers or other unspecified methods. Flight Design also knew

of the deadly design defect and stated that it would publish a series of articles to

train CTSW pilots. Plaintiff is informed and believes that defendants did not do so

and warn CTSW pilots even though they represented that they would do so.

17. Flight Design knew of this deadly design defect since 2005 because of several

crashes or occasions whereby the CTSW aircraft had no fuel in one tank and more

than 5 litres (about 8/10 of a gallon) in the other but still suffered fuel starvation to

the engine. Even though repeatedly warned and informed by pilots and incidences,

the Defendants did not warn and/or instruct Plaintiff on how to mitigate this

danger:

. If you get really low in one wing and empty on another you could be in trouble

just like the other guys in SC. This discussion has been around since 2005


lainti s Complaint or Damages Daniel A. Bernath, Esq.

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with the CT's and comes up with new CT pilots all the time. {Flight Design} FD

addressed this on their website about 3 years ago.

Roger Lee May 21, 2011

Ryan Airfield (KRYN)

Tucson, AZ.

LSRM-A Specializing in LSA Maintenance

Authorized Rotax Repair Center - Heavy Maint Rated

“It has been removed off the old FD website.” 22 May 2011

18. Defendants falsely state that they warned of this deadly condition and defect but they

did not warn or instruct Plaintiff although Defendants were aware of this design

defect.

19. March 17, 2007

There have been several on-going discussions on the issue of un-even fuel tank

emptying with the CT fuel system. We at Flight Design USA are well aware of

this, and in an effort to make the fuel system of the CT better understood and to

promote safety, will publish a series of articles to illustrate the design

philosophy behind the fuel system and correct fuel management procedures.

(note; there is no evidence of any such published series warning CTSW pilots until

the British CAA ordered Flight Design to warn British CTSW pilots)

As a first step, below is an excerpt from a letter discussing this topic written by

Oliver Reinhardt, Technical Director Flight Design GmbH and addressed Tom

Peghiny, President of Flight Design USA.



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….The CT is a high wing aircraft with gravity feed fuel system. The fuel tanks are

in the wings. It is a commonly known fact that the fuel tanks of this type

of aircraft, due to their extremely flat shape, are subject to sloshing

effects and uneven emptying…In (uncoordinated) flight, unchecked fuel

siphoning overboard may occur when the vent is lower than the fuel level and

fuel starvation when the vent is higher than the fuel level and tank-to-

engine fuel line. Therefore, the current solution of limited fuel flow

through the Tee-fitting at the firewall has been determined as safe and

suitable compromise.

Oliver”

Jonathan N. Carter Director of Safety and Training Flight Design USA.

20. This fuel starvation problem continued unabated with CTSW aircraft crashing on

takeoff, while landing, after a so called “side slip” and even when a pilot pointed the

nose down slightly. And yet, well before the sale of the CTSW N102HA to Plaintiff

failed to warn and failed to instruct Plaintiff as to the dangerous design defect.

21. US Pilot’s CTSW engine suffers fuel starvation: NASA report Narrative: aircraft

CTSW NASA ASRS Report 739488, May 2007 I kept climbing until I knew I was power off

gliding distance from the runway. At that point I closed the throttle again and the engine not

only lost power but came to a complete stop. (Not wind-milling anymore.) Left tank of the

flight design was empty. Right tank had 8 gals. This is a 31.5 gal system so we are

saying that one quarter of the total fuel was still on board the aircraft. The ct flight design

burns 4-5 gph. So I should have been good for at least another hour and a half. Also there is

no option for switching tanks with a fuel selector and there is no auxiliary fuel pump like you



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have on most other GA aircraft. The only conclusion we could come up with logically was

fuel starvation in the left tank and no options to access the fuel in the right tank.

22. On 30 June 2009 and 28 May 2012 The British version of the FAA and/or the NTSB

investigated a fuel starvation of CTSWs and ordered Flight Design to warn its British

pilots (Flight Design did not warn Plaintiff or other United States pilots)

AAIB Bulletin: 6/2010 G-CERA EW/G2009/06/06

ACCIDENT

Aircraft Type and Registration: Flight Design CTSW, G-CERA

No & Type of Engines: 1 Rotax 912ULS piston engine

Year of Manufacture: 2007

Date & Time (UTC): 30 June 2009 at 1101 hrs

Previous power loss incidents on this aircraft type have been attributed by some

to the fuel outlets in the tanks becoming uncovered due to fuel sloshing during

uncoordinated turns with low fuel levels, resulting in fuel starvation.

(However) In this case the aircraft reportedly had significant fuel on board

and was not manoeuvring.

23. Another British fuel starvation of which defendants were aware:

TITLE Fuel System, …. A CTSW ran out of fuel when apparently 5 litres remained in one tank and no

fuel indicated in the other. The reported circumstances of the accident indicate that the

engine became starved of fuel. The nature of the tank design is not conducive to



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accurate gauging, with any sustained sideslip or nose-down attitude effectively

generating quantities of unusable fuel in excess of the 0.5 litres stated by the

aircraft manufacturer. In fact the manufacturer’s own tests, conducted with the aircraft

on the ground, indicated a significant increase in the unusable fuel quantity when the

aircraft attitude changed from the straight and level. The manufacturer additionally

noted that it was possible to restart the engine following temporary fuel starvation;

however, this might not be a practical procedure for pilots in the course of a normal

flight and, moreover, would not comply with BCARS959, which refers to the first 86 ©

Crown copyright 2010 AAIB Bulletin: 8/2010 G-VINH EW/C2009/08/02 evidence of

malfunctioning.

Safety Recommendation 2010-045

It is recommended that Flight Design GmbH, together with P&M Aviation, revise their

assessment of the unusable fuel in the CTSWaircraft.

Additional safety action

Following this accident, P&M Aviation declared their intention to publish a Service

Letter which will explain the effects of aircraft attitude and turbulence on fuel feed

at low fuel levels. In addition, it will point out that the minimum quantity that the

fuel sight gauge will indicate is 3 litres. (appx. 8/10 gallon) Finally, a placard will be

required to be fitted to the aircraft advising the pilot that he or she must ensure

that at least 1 cm of fuel is visible on both fuel contents sight gauges at all times.



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CLASSIFICATION The CAA have classified this bulletin as Mandatory COMPLIANCE Read and amend operations as directed, append to manual. APPLICABILITY All UK registered CT2K and CTSW aircraft.

7) A placard must be attached to the instrument panel as follows:

MONITOR FUEL SIGHT GAUGES REGULARLY.

BOTH GAUGES MUST SHOW SOME FUEL.

LAND IF NO FUEL IS SEEN IN EITHER SIGHT GAUGE.

24. Flight Design knew about this design flaw as it posted it on its German website but

did not warn Plaintiff of this potentially fatal flaw:

…. > On 20 August 2010 20:18, PETER < > wrote:

> > Hi Guys, > > Reading through your posts on Garage painting I see references to

your CT

> > regularly and have taken an interest in the remarks made within: > > > > The Fuel Tank differential is a problem with CT & CTSW types and

I have always thought that for such a fantastic aircraft the fuel system is

a 'mish mash' > > > > I have delivered 2 CTSW to Northern Ireland and have 'suffered' the

dry tank syndrome in both of them !!! now I really don't think the

situation of running a tank dry is caused by shoddy airmanship or any other factor than the Design is a flawed design (yeah)



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….

Comment by pilot on 2008 improvement: I guess they have been listening to the

market. Many of the changes they are making are an absolute necessity. The fuel

system, landing gear and flight characteristics are major problems necessitating

major improvements. I will be interested to see if they developed a better

airplane.

Comment from another pilot: The engine installation and fuel system have been

reworked according newest market experience and know how

Comment from a third pilot: Probably the fuel feed thing was fixed with the

addition of a header tank. you could not keep both tanks un ported for long enough

to drain a 1 or 2 gallon header.

25. Five years before the design defect caused Plaintiff’s CTSW to collide with terrain,

Flight Design took steps to correct the design flaw in the 2008 year model, which

Defendants renamed the CTLS. Prior to Plaintiff’s loss, the Defendants did in fact

warn other pilots of the CTSW on how to mitigate the unknown danger, and also

designed and manufactured an aircraft that did not suffer fuel starvation when it had

the posted required quantity of fuel. This, thus shows the feasibility of doing so prior

to Plaintiff’s collision with terrain. In the POH ( pilot's operating handbook,

an aircraft's 'owner's manual' )f or the CTLS Defendants warn pilots of the danger.



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However, a review of the CTSW POH, included with the delivery of the airplane

shows no such warning nor thereafter:

“CTLS

Light Sport version, announced in 2008. It improves on the CTSW in several areas,

including a revised fuel system (improved fuel venting and standard-type fuel caps), a

revised tailplane and upgraded landing gear as well as aerodynamic improvements.

(Says Flight Design about the 2008 (but not Plaintiff’s 2007) Flight Design:

“Numerous improvements

to the CTLS fuel system are incorporated to

give proper fuel flow even in extreme conditions” http://tinyurl.com/mg2h6dc

For the CTSW of 2007, Flight Design says merely, “Fuel is gravity fed to the

engine from two integral wing tanks. The total capacity is 103l /34 US

Gallons. The usable fuel quantity is 124l /33 gallons.”

But for the 2008 Flight Design CTLS, it boasts:

http://documents.flightdesignusa.com/SW-POH.pdf

A fuel tank with a capacity of 65 l (17 gal) is integrated into each wing. The fuel tanks

are each divided into two sections by an anti-sloshing rib. Fuel is filled into the outer

section via a fuel filler opening on the upper side of each wing.

….

Fuel flows via a flapper valve into the inner section of the fuel tank inboard of the

anti-sloshing rib. The flapper does not completely seal the inner tank. It does,

however, greatly restrict the return flow of fuel into the outer chamber when one wing



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is low (sideslip). A sideslip can thus be undertaken even when low on fuel without

risking fuel starvation to the engine.

The tanks are vented via coupled tubes in the outer tank sections, the air coming

from NACA inlets on the outer side of each of the upper winglets. The vent tube is led

through the tank in a loop along the upper wing skin along the main spar. In this way,

the risk of fuel escaping into the vent tubes should the aircraft be parked with a wing

low is minimised. As the vent tubes left and right are coupled, equal pressure prevails

in both tanks even when the winglets experience different flow conditions.

Each tank outlet has a coarse screen which can be removed via a maintenance plate

in the root rib for visual inspection and cleaning.

Fuel is fed by gravity via two fuel lines in the A columns. They have a large volume

so that even with virtually empty tanks, enough fuel is available in a sideslip to

ensure a engine power for landing. The two lines are connected to each other via a T-

fitting.

The fuel pump feeds fuel from the gascolator to the engine which then feeds the fuel

to the carburetors. Excess fuel is pumped back to the gascolator.

The fuel system is presented schematically in the following diagram.

Aircraft Operating Instructions (AOI)

Type: CT Series: CTLS LSA Page: 7-7

27. On September 1, 2013 Plaintiff, with the knowledge that the Defendants provided to

him and the negligent refusing to or failure to warn and/or instruct of the deadly

design defect, operated aircraft N 102 HA, manufactured by Flight Design. Said

aircraft and Plaintiff impacted with terrain at Sisters, Oregon.

28. The National Transportation Safety Board has published its findings:



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National Transportation Safety Board - Aircraft Accident/Incident Database

Accident Rpt# WPR13LA396 09/01/2013 1800 PDT Regis# N102HA

Sisters, OR

Acft Mk/Mdl FLIGHT DESIGN GMBH CTSW

Eng Mk/Mdl ROTAX 912ULS

Acft Dmg: SUBSTANTIAL Rpt Status: Prelim Prob Caus: Pending

Apt: Sisters Eagle Air 6K5

Acft SN 07-06-21

Flt Conducted Under: FAR 091

BERNATH DANIEL A

Aircraft Fire: NONE

Fatal 0 Ser Inj 0

Opr Name: Opr dba:

Narrative

On September 1, 2013, about 1800 Pacific daylight time, a Flight Design CTSW,

N102HA, lost engine power, and landed short of Sisters Eagle Air Airport,

Sisters, Oregon. The light sport airplane was registered to, and operated by, the pilot

under the provisions of 14 Code of Federal Regulations Part 91. The sport

pilot was not injured. (Pilot actually was injured physically and mentally)

The airplane sustained substantial damage to the firewall and lower right fuselage

during the accident sequence. The cross-country



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personal flight initially departed Coeur d'Alene Airport - Pappy Boyington Field, Coeur

d'Alene, Idaho, at an unknown time, with a planned destination of Sisters

Eagle Airport. Visual meteorological conditions prevailed, and no flight plan had been

filed.

The pilot provided a verbal statement to a deputy of the Deschutes County Sheriff's

Office following the accident. He reported departing Coeur d'Alene en route

to Sacramento, California, and that he encountered strong head winds and low clouds

during the flight. Subsequently, he landed at a private airstrip approximately 7

miles east of Sisters Airport to check the airplane's fuel levels. Estimating

that he had sufficient fuel for approximately 30 more minutes of flight, he

departed for Sisters. As he approached the airport (5 to 6 minutes later) the engine

"sputtered" and then stopped producing power, and he performed a forced landing into

a field.

29. The aircraft had abundantly more than Defendants stated was required for

successful power plant operation of the CTSW.

30. Photographs of the aircraft show that upon impact that this abundant level of fuel

splashed out of the right wing tank vent and that the dust and dirt that was kicked up



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then recorded the fuel that splashed out over the right wing.



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31. Punitive Damages prayed The deliberate, willful, wanton, and knowingly false

statements made by Defendants that the aircraft was safe for use by a Light Sport

Pilot, the intentional hiding from Plaintiff the dangerous design defect when it was

well known by Defendants well before his purchase and well before his hitting

terrain, the intentional hiding of the British CAA order that all CTSW pilots be

warned of the design defect and the instructions on how to minimize said deadly



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defect, was done in a deliberate disregard for the lives and health of CTSW aircraft

owners, operators, pilots and passengers including Plaintiff herein and this willful

and wanton conduct rises to the level of gross negligence and reckless disregard for

human safety which constitutes punitive damage conduct, giving rise to Defendants’

liability for punitive damages. Defendants and each of them has shown a reckless

and outrageous indifference to a highly unreasonable risk of harm and has acted

with a conscious indifference to the health, safety, and welfare of others.

32. Furthermore, when Defendants were informed by Plaintiff of its deadly design

defect, rather than warn CTSW pilots of the defect, Defendants did accuse Plaintiff of

being an unethical person and stated that the UK order to Defendants was merely

“interesting”.

33. Plaintiff has suffered embarrassment, attorney fees to protect himself against

governmental investigations regarding his piloting, freight and horror prior to

impact with the terrain and in facing the FAA and other federal agencies, personal

injury to his body and mind and property damage in an amount to be proved at trial.

First Cause of Action

Against all Defendants

Negligence per se

34. Plaintiff realleges paragraphs 1 through 33 as if fully set forth herein.

35. Defendants had a duty to warn Plaintiff and instruct Plaintiff of the design defect of

its manufactured aircraft.



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36. Said duty was placed upon Defendants by the CAA, a governmental body with

jurisdiction over defendant Flight Design GmbH and the FAA with jurisdiction over

all Defendants and Plaintiff was a member of the class meant to be protected,

37. Defendants breached said duty.

38. As a proximate cause of said breach of duty, Plaintiff suffered person and property

damage and the regulation, rule or order was enacted to prevent the harm that

Plaintiff suffered.

Second Cause of Action


Negligence


40. Defendants had a duty to warn Plaintiff and instruct Plaintiff of the design defect of

its manufactured aircraft.

41. Defendants breached said duty.

42. As a proximate cause of said breach of duty, Plaintiff suffered person and property

damage.

Third Cause of Action


Breach of Contract


44. Defendants and Plaintiffs entered into a contract whereby Defendants marketed an

airplane for Light Sport Pilots.



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45. Said aircraft was not suitable for Light Sport pilots or any pilot without instructions

on getting mitigating the dangers of operating a CTSW.

46. Because of Defendants breach of contract Plaintiff has been harmed.

Fourth Cause of Action


Products Liability


48. Said aircraft was manufactured by Defendants and/or sold by Defendants and said

design was defective.

49. Said aircraft was used without substantial change in its configuration and any

modification or addition was done by Defendants.

50. Defendants failed to warn Plaintiff of the deadly design defect.

51. Defendants failed to instruct Plaintiff in the use of the deadly design defect.

52. Plaintiff was damaged by the total loss of the aircraft, other property damage and

personal injury.

Fifth Cause of Action


Breach of Express Warranty


54. Defendants expressly stated that the aircraft was suitable for general aviation uses

and specificially for Light Sport Pilot use.



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55. Said aircraft was no suitable for any pilot and specifically not for Plaintiff, a Light

Sport Pilot.

Sixth Cause of Action


Breach of Implied Warranty of fitness

for a particular purpose


57. Defendants represented that said aircraft was fit for use by a Light Sport Pilot,

without warning said pilots, such as Plaintiff on one fuel tank going dry while

another tank would retain fuel, causing fuel starvation.

58. Said representations were false and Plaintiff suffered personal and property

damage as stated herein.

Sixth Seventh Cause of Action


Breach of Implied Warranty

of Merchantability


60. The aircraft was not the level of quality that would pass in the industry without

objection.

61. As such, the Implied Warranty of Merchanitability by Defendants was breached.



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Eighth Cause of Action


Negligent Misrepresentation


63. Defendants failed to inform Plaintiff of the design defect, failed to instruct Plaintiff

of the dangers faced, the many accidents caused by the design defect, etc.

64. Therefore, Defendants negligently misrepresented the product and the danger to

Plaintiff.

Ninth Cause of Action


Breach of Express Warranty

under ORS Chapter 72


66. Defendants did provide a defective and deadly product to Plaintiff and failed to warn

and failed to instruct.

Tenth Cause of Action


Fraud


68. (1) a representation; Defendants represented the airplane was suitable for Plaintiff

with a light sport pilot’s training and abilities and lack of knowledge of fuel flow,

mechanisms for fuel flow, fuel starvation, etc.



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69. (2) its falsity; the representation by Defendants that a light sport pilot’s training was

suitable for flight in an airplane with such a design was false

70. (3) its materiality; if Plaintiff knew that the aircraft was defective he would have

purchased another aircraft instead of the Flight Design CTSW with its design defect

and deadly fuel starvation flaw

71. (4) the speakers’ had knowledge of its falsity or ignorance of its truth;

72. (5) Defendants intended that it should be acted on by the Plaintiff and in the manner

reasonably contemplated;

73. (6) the hearer's/Plaintiff was ignorant of its falsity;

74. (7) Plaintiff relied on Defendants statement on its truth;

75. (8) Plaintiff had the right to rely thereon;

76. (9) Plaintiff suffered consequent and proximate injury

Eleventh Cause of Action


Unfair Business Practices


78. Said conduct by Defendants is a violation of the Oregon Unfair Business Practices

Act.

79. Defendants employed these and other unconscionable tactics in connection with the

sale or goods or services.



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WHEREFORE, Plaintiffs prays judgment, after jury trial of:

1. Special damages of

2. General Damages of

3. Punitive damages of

4. Triple damages of for unfair business practices,

5. Attorney fees,

6. Prejudgment interest,

6. Costs of suit,

Daniel A. Bernath October 6, 2013

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