It’s been less than a month since the tragic helicopter accident in the Santa Monica Mountains that killed NBA legend Kobe Bryant, his 13-year-old daughter Gianna and 7 other people. Kobe’s widow, Vanessa Bryant, has already sued the helicopter operating company and the pilot.
Vanessa Bryant is the named plaintiff in a wrongful death lawsuit filed in Los Angles County Superior Court against Island Express Helicopters and the estate of Ara Zobayan, the pilot who died in the crash.
Because the issues in this wrongful death case are so well-known to so many of us, I thought there might be some wisdom in breaking down the claim, how this case will play out, and why I would have waited to file suit. I also talk about the differences if Maryland law applied to this case.
Allegations in the Wrongful Death Complaint
Vanessa Bryant’s wrongful death complaint is based on allegations that the accident directly resulted from negligent and reckless operation by the helicopter pilot Zobayan. He had years of experience as a helicopter pilot and had flown for Kobe numerous times before the accident. However, the lawsuit claims that on the day of the ill-fated flight (January 26) Zobayan negligently failed to “monitor and assess the weather” and that this negligence ultimately resulted in the helicopter plunging 1,200 feet into the hills outside Los Angeles.
Why the Timing of This Lawsuit Is Not Productive
Let’s take an intermission to talk about what I don’t like about this lawsuit. Kobe and Gianna died less than a month ago. The jury is likely to know or find out that a lawsuit was filed in less than a month before all facts about what happened are known. What does that tell them? It tells them that the plaintiff did not wait for all the facts. Juries really demand this of experts. Maybe the best way to beat an opposing expert on the stand is to point out something that he should have done before she reached her conclusion. Victims — and Ms. Bryant is a victim under any definition — are held to a similar standard. A premature lawsuit makes the jury wonder whether the facts drove the lawsuit or if whether it was the awful outcome. The optics of blaming a dead man whose family has also suffered greatly without all relevant facts are also not good.
Could the plaintiff and her lawyers know things not known by the public? Of course. But that has nothing to with the perception. Why not let all the facts, most notably the NTSB final report, come out first and then bring your lawsuit?
Sometimes, lawyers race to file premature lawsuits because there are many possible victims, and filing suit first is a path to both attention and getting other clients. Obviously, this was not an issue in this case.
Key Issues in the Lawsuit
Okay, let’s get back to the claim itself. There will be two critical legal issues in Vanessa Bryant’s wrongful death lawsuit. The first will the question of the pilot’s negligence. There has been widespread speculation that the pilot was somehow negligent that day. However, the precise cause of the fatal accident is still formally under investigation by the NTSB. There is a possibility that the accident may have been because of some mechanical failure on the Sikorsky-76 helicopter.
The NTSB recently issued a preliminary report stating that both the helicopter’s twin engines were recovered from the sight. According to the NTSB report, neither of the engines displayed evidence of mechanical failure. Although this does not necessarily rule out mechanical failure as a cause of the accident, it makes it less likely.
Probably Not Res Ipsa
In the absence of any direct evidence of mechanical failure, there may be a rebuttable presumption of pilot negligence under the doctrine of res ipsa loquitor. Under the common law tort doctrine of res ipsa, negligence can be presumed (even without clear evidence) if the accident is something that would not ordinarily occur in the absence of negligence. Helicopters normally don’t crash into hilltops on their own without some type of mechanical problem or pilot error. So if mechanical failure is ruled out, there will most likely be a presumption of negligence by the pilot.
This would be a tough argument, however. There is no way to rule out mechanical failure entirely. And who knows who else worked on that helicopter before it took off. There is just too much could never rule out to meet res ipsa stringent requirements.
Island Express – The Deeper Pockets
We will talk later about the size of this claim and how it will probably outsize any insurance coverage or assets available. But assuming operator negligence is established, the second key issue in Vanessa Bryant’s wrongful death suit will be the liability of helicopter company, Island Express. The pilot was not independently wealthy, so any monetary judgment against his estate would likely be worthless. So if Vanessa Bryant wants to recover any money from the lawsuit beyond the insurance coverage, she will need to win her case against Island Express.
Island Express can be held directly liable in one of two ways: vicarious liability and negligent hiring/supervision. Employers are legally responsible to the actions of employees within the scope of their employment. This is often referred to as “vicarious liability.” To establish that Island Express is vicariously liable in this case, Vanessa Bryant will simply need to prove that Zobayan was an actual employee of Island Express as opposed to being an independent contractor. Assuming an employment relationship existed, Island Express will be legally liable for the damages caused by Zobayan’s negligent flying.
Another way to hold Island Express directly liable in this case would be under a negligent hiring/supervision theory. This is a theory that comes up a lot in truck accident cases where the driver is a contractor as opposed to a traditional employee. To establish this claim Vanessa Bryant would need to prove that Island Express should not have hired Zobayan, failed to ensure that he was properly trained and certified, or failed to properly supervise him. Zobayan was previously reprimanded by the FAA, but there is no other indication that he was somehow unqualified or incompetent so it will probably be difficult to establish negligent hiring.
What Is the Size of This Wrongful Death Case?
Let’s assume for a second there is a viable negligence claim against the pilot and there is enough money behind this claim. How big is this case? Huge.
There are seven wrongful death victims. Four adults and three minors. There is no cap on noneconomic damages in California. Would $20 million for each victim be excessive for the deaths of these four relatively young adults and three children? I don’t think so. That is $140 million.
The trickier question is how much in future lost wages in the wrongful cases. There are no future lost wages for the children. I can’t guess for the non-Kobe adults. But they were relatively young. So it will be a nontrivial amount, likely millions for each adult.
Kobe’s future lost wages would invariably be the subject of legions of experts. His earning skill set is relatively unique and any projection will be speculative. But “reasonable speculation” is really what it requires with future lost wages. There are two parallel universes: how much money Kobe would have made (and consumed in many jurisdictions) versus zero consumption and earnings in death.
The big difference is the cap on pain and suffering in Maryland. Assuming there is a survival action for pre-impact fright (there is no public evidence available) and two wrongful death beneficiaries, the cap would be $2,187,500.00 per victim. That totals $15,312,500 which is a far cry from the $140 million I suggested could easily be the value in California.
No matter what the outcome, this is an awful tragedy that has resonated more with a lot of us than we might have expected.