Although He Makes a Living Suing Airlines, a Lawyer Says the Skies Are Safer Than Ever

UPDATED 07/21/1980 at 01:00 AM EDT Originally published 07/21/1980 at 01:00 AM EDT

All 271 passengers and crew were killed when an engine fell off an American Airlines DC-10 in Chicago in May 1979, a tragedy that shook this country's confidence in its commercial aviation. Then last month, after a six-month study, a panel of experts issued a report questioning the Federal Aviation Administration's ability to insure air safety. A dissent to that conclusion comes, paradoxically, from a lawyer who has made a career out of suing the airlines. John J. Kennelly, who has filed claims on behalf of the heirs of 30 victims of the Chicago crash, says, "Aviation safety is not a myth. It is very real. The cold statistics are unassailable. "A former Navy pilot, graduate of Chicago's Loyola University Law School and onetime chairman of the aviation section of the International Academy of Trial Lawyers, Kennelly, 63, has been practicing in Chicago since 1941. He is the author of the two-volume Litigation and Trial of Air Crash Cases, considered the basic text on the subject. He explained his point of view to Barbara Kleban Mills of PEOPLE.

How safe are the skies today?

Despite unduly alarmist criticism by some authors about airlines, aircraft manufacturers and even air traffic controllers, amazing gains in safety have been made in the last decades. According to the National Transportation Safety Board, in 1950 there were .234 fatal accidents per 100,000 flight hours for scheduled, certificated airlines. In 1960 the number was .220. In 1969 it was .136. Last year it was down to .078.

How are we doing this year?

The first half of 1980 is now over, and there has not been a single passenger fatality in any of the major airline operations out of the hundreds of millions of passenger miles flown.

What accounts for the improvement?

Mostly the switch from piston engines to jets, which, because they have fewer moving parts, are mechanically more reliable and allow planes to fly at higher altitudes, avoiding turbulence. Also, navigation and guidance technology are steadily improving.

So you're satisfied with the record of the major scheduled carriers?

Fundamentally, yes. In the last decade 2 billion 188 million passengers flew, yet the average number of fatalities per year was only 166. Statistics show that flying is 115 times safer than driving, 28 times safer than walking and three times safer than riding a bicycle. Driving to O'Hare Airport is far more dangerous than flying from Chicago to Los Angeles.

Do you consider the DC-10 a safe plane?

As far as the Chicago crash is concerned, American Airlines admittedly violated maintenance requirements, and there were design deficiencies that led to the engine loss. But concerted action was taken to correct those problems; now I think the DC-10 is one of the safest planes flying.

Are pilots up to snuff?

The ones that fly the certificated routes are the best in the world.

What about commuter lines and private planes?

The scheduled trunk lines are safer. The sheer number of private planes—more than 200,000 and growing rapidly—is threatening to saturate the sky. It puts a tremendous burden on air traffic controllers. As for the commuter airlines, Langhorne Bond, head of the FAA, recently pointed out that in 1978 they had eight times the accident rate of certificated local carriers.

Why so many mishaps?

Part of the reason is growth; there are simply more commuter planes flying. In 1975, 165 commuter airlines flew 6.6 million passengers. Today there are 208 carriers flying an estimated 12 million passengers.

Do we need more airports?

We certainly need more satellite airports to handle the traffic that can't be accommodated at places like La Guardia in New York, National in Washington, D.C., and O'Hare in Chicago. The Commuter Airline Association, by the way, makes the point that the small airports they serve lack the sophisticated control and navigational facilities of the major airports, and that's true. It's a question of money—there's only so much to go around.

In your opinion, have the media overdramatized safety hazards?

I think that articles like those recently in Playboy and the New York Times, which focus on spectacular air crashes—while being accurate within themselves—fail to portray the total picture. By exaggerating, if not misrepresenting, the state of aviation safety, the media are harming not only the aircraft industry and the airlines but the entire nation's economy.

How?

We've lost our leadership in shipbuilding and electronics, and our auto and truck industries are seriously threatened. We are still the foremost producer of aircraft in the world. But if these intemperate attacks cause us to lose our lead in that industry too, we're talking about affecting one-sixth of the gross national product. It could add impetus to the decline and fall of North America.

Do you agree with the National Research Council's panel of aviation experts, which has just criticized the FAA for relying on outside industry experts to review designs of new planes?

The council is living in a dream world. The FAA cannot obtain enough funds to compete with industry, and so it has a shortage of qualified aerodynamicists to pass on the design and quality control of jetliners. The FAA simply has to rely upon the proficiency of aircraft manufacturers.

Has litigation led to safety improvements?

Only rarely. However, the 1960 investigations into why wings were falling off Lockheed Electras did result in improved structure mounts. Before that, wing failures had usually been attributed to air turbulence.

What legitimate criticisms can be made of the big airlines and plane builders?

As long as human beings are involved, there will be errors. A chief problem is what I call the pride-of-product syndrome. Companies have incestuous relationships within their organizations. Engineers, attorneys, executives and insurance representatives engage in backslapping, telling one another how great the product is. They're very reluctant to admit an error, that something may not be working as well as it should. At root, it's a human and an economic thing: People want to keep their jobs.

Is that what makes litigating air-crash cases so time-consuming?

Partially. The biggest problem is that as many as 50 to 100 different damage laws can apply to a single disaster, and every state has a different set of laws. The result is an outmoded patchwork that certainly has no place in the jet age. On an international level, there's no world court in which to seek redress, so resolving the jurisdictional complexities among nations is like trying to tattoo soap bubbles.

What reforms would you propose?

I want to see uniform criteria adopted. Payments would be standardized on the basis of the victim's age, income, health prior to the crash, how the survivors are related to the victim, and so on. Ten years ago I proposed such a treaty to replace the present one, which was originally drafted in 1925. It would apply to all 50 states as well as 200 countries, and it would speed up the whole process so much that we wouldn't even need lawyers. I'd be out of business.

What has been the largest single award you've won for a client?

It was $5.75 million, in an out-of-court settlement last month. My client, ironically, was not a passenger's heir but Capitol International Airways Inc., a charter outfit in Smyrna, Tenn. It will be paid by the insurers of McDonnell-Douglas, Bendix and other DC-8 parts manufacturers as the result of a 1970 crash in Anchorage. Forty-five lives were lost when the wheels locked on an icy runway. The highest award I've won for an individual was $5 million for the widow of a Chicago businessman killed in an Air Iowa crash.

How do airlines and insurance companies benefit from the present system?

Take last year's American Airlines crash in Chicago. The families of the victims will no doubt ultimately recover from American or McDonnell-Douglas, or both. But meanwhile the defendants' insurers were procrastinating, pointing a finger at each other and earning millions of dollars in interest by holding onto the money they will ultimately have to pay out. For a long time the courts have been reluctant to make insurers pay interest on settlements from the date of death. It's a cruel charade. Fortunately, in the American Airlines case, my motion for interest payments has been upheld.

Has any interest been a warded yet?

Yes. Another lawyer's client in the case won a $250,000 settlement, plus 12 percent interest retroactive to the date of the crash, which came to an additional $27,500. The settlements in the Chicago crash are expected to be the biggest by far in commercial aviation history, foreign or domestic—$200 million is not an unreasonable estimate. In fact, the magnitude of it may provide the impetus to establish a system of uniform awards.

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