Criminal Liability for Skydiving Accident (Hypothetical Situation)

[lawrocket 3]

A week ago, a jumper in this forum asked me to start a thread with a hypothetical situation on a legal setting. I'm not trolling here, but hopefully open some eyes with legal ramifications.

Before I post it, I want you all to read this. If you respond, try to make it as non-emotional as possible. Put some serious thought into it and post your views.

Disclaimer: This is not based on any incident.

Here's the hypothetical:

Cole Kutz has 600 jumps in 4 years, 200 of which were in the last 12 months. He recently started learning to swoop, having about 50 practice jumps with it, and has not had any past problems with safety or injury while attempting it.

Bill Loney is an intermediate jumper and RW lover. With 300 jumps to his credit, 100 in the last 12 months, he recently earned his D.

On the first load of the morning, Cole does a tracking dive with two buddies. Bill does a two way with a friend. After normal freefall and deployment, both are under good canopy at 2,500. Entering a normal pattern, Bill sets up. At 250 feet, he enters final.

Cole has a good canopy, and after stowing slider, sets his sites immediately on his swoop. After circling above his spot, and without checking around and below, he enters an extreme front riser turn to build velocity.

At 150 feet, Cole hit's Bill's canopy, causing a collapse. Bill pulls reserve without cutting away, but it's too late. Bill dies on impact. Cole is knocked out by the impact and does not flare. He breaks his back on landing, and is paraplegic.

Investigation reveals that Cole partied all night the night before. His blood alcohol level was at .09 at 9:00 in the morning at the hospital. Still mighty buzzed, he brushed his teeth just before the jump to hide the smell, as he knew that he would not be allowed to board the Otter prior to the jump due to a strict policy of the DZ forbidding any person suspected of any alcohol still in the system from manifesting.

Within two weeks, he is arrested and charged with murder 2. The DA's theory is that it was reckless of him to jump, knowing he still had detectable alcohol and brushing his teeth to hide it. "In effect, he showed a conscious disregard of the possible or probable effects of his actions, which killed a man."

At a press conference the DA said, "I see no difference between killing a person while jumping while drunk and killing a person while driving drunk." The DA continued, "Kutz has also been charged with voluntary and involuntary manslaughter. At the very least, this is a negligent homicide."

Bill had no family, and no civil action will be taken.

Questions: Was Cole Kutz reckless? Was he negligent? Should he face a murder charge? Should he face a manslaughter charge?

Should he go free?

My wife is hotter than your wife.

[Blahr 0]

If Cole, knowing that he was still intoxicated and that the DZ rules would not permit him to jump in that condition, intentionally decieved them in order to jump, AND knowing the potential dangers of executing swoop landings proceeded with a dangerous high speed maneuver without checking to make sure the area was clear and all this resulted in Bills untimely death through no fault of his own, then Cole is guilty of a crime and should do appropriate time.
I wont speculate on wether or not this is murder or manslaughter or negligent homocide. I am not qualified to make this judgement.

I do know that (in this hypothetical scenario) Cole was decietful, reckless, and negligent and that resulted in the death of another person.

I'd call that a crime.

[bbarnhouse 0]

It is my understanding that in this scenario, it would have been the pilot's responsibility, since a person was allowed on his aircraft that was legally intoxicated.

[quade 4]

Actually, both pilot and skydiver.

Quote

FAR 105.7  Use of alcohol and drugs.

No person may conduct a parachute operation, and no pilot in command of an aircraft may allow a person to conduct a parachute operation from that aircraft, if that person is or appears to be under the influence of --

(a) Alcohol, or

(b) Any drug that affects that person's faculties in any way contrary to safety.

quade -
The World's Most Boring Skydiver

[lawrocket 3]

So does this mean that the deliberate cover-up of his intoxicated condition does not absolve the pilot of any blame whatsoever?

My wife is hotter than your wife.

[Michele 1]

Quote

Was Cole Kutz reckless? Was he negligent? Should he face a murder charge? Should he face a manslaughter charge?

What defines reckless? A conscious disregard for another's life? Then yes, under that definition. Blowing a .09 at the hospital, given 2 hours to board the plane, have the accident, and be transported, stabilized and so forth, would indicate a higher level of intoxication at the time of the accident (there are charts available to determine forensic intoxication, I believe, aren't there? That doesn't take into account a BMR, but it's general).

Under the theory in the law about drunk driving, blowing a .08 is considered drunk (here in CA). Therefore, at the time of the incident, there was a higher level of alcohol present in Cole's system...and he was indeed flying under the influence of alcohol.

If he was aware he would be checked somehow, and feared getting taken off the load, and brushed his teeth (or chewed gum or used a mouthwash) with the intent to conceal evidence, that would show a conscious disregard for his and others' safety.

California Penal Code

CPC 192 lays out the parameters for manslaughter, which states:

192. Manslaughter is the unlawful killing of a human being without
malice.
(a) Voluntary--upon a sudden quarrel or heat of passion.

(b) Involuntary--in the commission of an unlawful act, not
amounting to felony; or in the commission of a lawful act which might
produce death, in an unlawful manner, or without due caution and
circumspection"...

So then the question would revert to is "does the alcohol content constitute a felonious level?"

I cannot find any specific parameters to use, but anecdotal evidence would lead me to think that a felony would be based on the alcohol content and either a) bodily injury or death, or b) property damage exceeding $500. If I am right in that, the finding of a felony level charge would be accurate. If that is the case, involuntary manslaughter is not the correct charge.

As there is no evidence of a sudden quarrel or heat of passion, I don't think this would be a valid charge, either.

However, in looking at the parameters of murder, one of the requirements must be malice. CPC 188 states

"188. Such malice may be express or implied. It is express when
there is manifested a deliberate intention unlawfully to take away
the life of a fellow creature. It is implied, when no considerable
provocation appears, or when the circumstances attending the killing
show an abandoned and malignant heart.
When it is shown that the killing resulted from the intentional
doing of an act with express or implied malice as defined above, no
other mental state need be shown to establish the mental state of
malice aforethought. Neither an awareness of the obligation to act
within the general body of laws regulating society nor acting despite
such awareness is included within the definition of malice."

If the killing can be shown as a direct result of jumping with an abandoned and malignant heart, because Cole took steps to conceal his intoxication level knowing that his actions would a)ground him and b) were illegal, one can then argue that there is indeed implied malice present.

As I see it, the incident could be shown as a direct result of his intoxication, because the parameters given are such that there was no previous injury.

I couldn't find anything about murder 2, which is what I think this would likely fall under.

Keep in mind I am not a lawyer, and could be full of beans...and may have missed something vital in either the original question or in the CPC.

Ciels-
Michele

~Do Angels keep the dreams we seek
While our hearts lie bleeding?~

[quade 4]

I think the phase " . . . if that person is or appears to be . . . " is pretty clear. I don't see how the FAA could possibly not take action against the pilot and if they were successful, which they probably would be, then perhaps criminal negligence would also follow him as well. I seriously doubt manslaughter or anything greater would follow the pilot, but I don't see how anything less than manslaughter is appropriate for the drunken skydiver.

quade -
The World's Most Boring Skydiver

[mccordia 74]

I'm quite interested in how it would be if this was the other way around.

If a 'drunk' person, setting up for a normal landing gets hooked from the sky by some hotshot (who's without any alcohol), and they both survive with masive injuries.

Would do the 'drunk' person (who didn't do anything wrong in terms of flying a normal patern) have any case against the guy hooking it in (and causing the accident), or the other way around, could the guy hooking it in, sue the other guy for being 'drunk'?

How's that for hypothetical

JC
FlyLikeBrick
I'm an Athlete?

[Tonto 1]

Well... I brush my teeth in the morning to remove plaque and help prevent tooth decay. Only got one set of teeth. I'd like to see a lawyer proove I do it for any other reason.

I love to skydive, and if it, or one of my peers kill me while doing it one day, so be it. That's karma. Maybe I'll come back as a dolphin, or a better skydiver than I am now.

t

It's the year of the Pig.

[Samurai136 0]

Is that why we all pass out breath mints in the plane? To hide the alcohol on our breath?

Ken

"Buttons aren't toys." - Trillian
Ken

[Blahr 0]

Quote

Well... I brush my teeth in the morning to remove plaque and help prevent tooth decay. Only got one set of teeth. I'd like to see a lawyer proove I do it for any other reason.

t

Your right in that it would be damn near impossible to prove the guys motive for brushing his teeth unless this was a guy that was famous for never brushing his teeth in the AM and he strangely chose to do so on this day. Even then it wouldnt be proof positive.

However, for the purposes of the hypothetical situation, it was stated as a given fact that he did so to conceal his alcohol breath so that he could get on the load.
We are privy to his hidden agenda.

I assume this means we are making a moral or ethical decision about his culpability rather than just legal.

[lawdog 0]

In North Carolina, my state of residence, the second degree murder would only stick if the State could show the requisite "malice." In this instance that would require the State to prove the "commission of an inherently dangerous act in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and bent on mischief." A fairly high standard to meet, although the FAR regs provide some insight into what might be considered the "standard" for determining reckless and wanton behavior. Involuntary manslaughter would appear to be a more proper charge, in this State. The elements of involuntary manslaughter are: "1) killing; 2) another living human being; 3) ...by engaging in any conduct in such a reckless and careless manner as to show a thoughtless disregard for consequences or a heedless indifference for the safety of others." Having a blood alcohol content in excess of the legally recognized impairment level (.08 here too) AND jumping in direct violation of FAR 105 seem to satisfy the "thoughtless disregard....careless and reckless manner" element of involuntary manslaughter. The same may well be true of Kutz' initiation of his hook turn without first checking for traffic below. In any event, it seems very clear to me that he would be deemed negligent, in a civil context.

While the FAA may have the ability to pull the pilot's ticket, I think any further action against the pilot will be difficult since there is nothing in the fact pattern to suggest that the pilot knew, or had reason to know, of Kutz' intoxication. In the civil context I think the pilot has a reasonably good defense due to the intervening act of negligence by Kutz (ie. the hook turn without first checking for traffic) and the fact that the pilot's negligence, if any, was passive while that of Kutz was active.

Mccordia, to respond to your question about the reversed roles. Although it is possible that the intoxicated, but otherwise innocent, victim might recover, in this State it's highly unlikely. North Carolina is a contributory negligence state, meaning that if the "victim" was even a fraction of a percent at fault, there is no recovery at all. Any defense lawyer should be able to make a straight faced argument that jumping while legally intoxicated is, to some degree, contributorily negligent, even if by only slowing the "victim's" response time to an emergency situation. I suspect the result could be different in a comparative negligence state.

"Not all who wander are lost." JRR Tolkien

[andy2 0]

anybody that jumps with others while intoxicated deserves what he/she has thrown at them. That's just plain wrong in my book. Drinking is fine, AFTER the day of jumping. Oh, and you might have to buck up on the responsibility factor here and decide to take a half day/full day off if youre still wasted from partying too hard the night before. Its pretty simple, he should pay for being a dumbass.

---------------------------------------------
let my inspiration flow,
in token rhyme suggesting rhythm...

[lawrocket 3]

Quade:

It also appears to me that the pilot would be held somewhat responsible by the FAA. Nevertheless, the FAA would probably not have the power to arrest him and charge him with any form of homicide. It ain't their jurisdiction.

My personal opinion is that there is a chance that Cole could get a murder charge. There is an implied malice associated with it, given his hiding of the alcohol, and the fact that his judgment was impaired in our deadly sport.

Juries could be swayed by what he did. Who in the general public really understands the sport? Even skydivers are getting pretty bitter about irresponsible hook turns.

My wife is hotter than your wife.

[EricTheRed 0]

Quote

It also appears to me that the pilot would be held somewhat responsible by the FAA.

Based on the information given in the example, I would doubt it. While it is clearly the pilot's responsibility to not allow a drunk to jump, there is no way the pilot could have known this jumpers condition.

illegible usually

[quade 4]

Quote

It also appears to me that the pilot would be held somewhat responsible by the FAA. Nevertheless, the FAA would probably not have the power to arrest him and charge him with any form of homicide. It ain't their jurisdiction.

Sorry for the confusion over this. I thought that would be completely understood. Let me try again.

You're right the FAA wouldn't charge the pilot with anything but a violation of FAR 105.7, but the DA in seeing a successful action there would more than likely then decide that criminal negligence charges would also be appropriate against the pilot -- afterall, the FAA just held him "responsible". Without a successful action against the pilot by the FAA, the DA probably wouldn't be able to do anything against the pilot.

No matter what the outcome of the criminal cases, I think pilot, allegedly drunken skydiver, dropzone and DZO are probably going to be named in civil matters as well.

quade -
The World's Most Boring Skydiver

[quade 4]

Quote

. . . there is no way the pilot could have known this jumpers condition.

Doesn't matter.

FAR 105.7 doesn't leave a lot of leeway in this. If the skydiver is found to have been under the influence of alcohol, then it's a clear violation of FAR 105.7. Doesn't matter if the skydiver entered last on the Twin Otter and there was no way the pilot could have even seen the skydiver.

Same sort of deal with any one of a number of FARs that hold the pilot responsible for things that he really has no way of checking such as your reserve being in date or everyone wearing seatbelts for taxi, takeoff and landing.

quade -
The World's Most Boring Skydiver

[JYorkster 0]

Lock him up! Of course, I may not be the middle of the road answer on this. I am pretty critical of those who knowingly, recklessly endanger others. If we had harsher punishments, we'd see less foolishness that results in the innocent being maimed/paralyzed/killed. I'm pretty harsh on this kind of thing. I think driving while intoxicated should be charged as attempted murder.

Rock

[Deleted 0]

If Cole is legally intoxicated, he should be arrested and charged. I disagree that there is anything that the pilot of a turbine can do, unless he shuts down and loads every plane, but under current regulations, I do understand that he would be held accountable by the FAA.
I don't want you on my highways intoxicated, and I don't want you in my airspace in that condition, either.

[poohbeer 0]

Quote

Quote

. . . there is no way the pilot could have known this jumpers condition.

Doesn't matter.

FAR 105.7 doesn't leave a lot of leeway in this. If the skydiver is found to have been under the influence of alcohol, then it's a clear violation of FAR 105.7. Doesn't matter if the skydiver entered last on the Twin Otter and there was no way the pilot could have even seen the skydiver.

Same sort of deal with any one of a number of FARs that hold the pilot responsible for things that he really has no way of checking such as your reserve being in date or everyone wearing seatbelts for taxi, takeoff and landing.

Well, in those cases he is able to check it. It's not practicle or such but he is able to check it (get out his cockpit ask and look.
With a bloodalcohol level that is just too high (.01) there is no way he can verify that. Well, he could get a doctors license and bloodtest everyone before they board his plane but thats rather ubnlickely

So, will the pilot be held responsible for something he can not check in any logical way? Think not. Most likely those rules are there for stopping an obvious drunk from boarding, no?

(no legal or skydiving expertise here so this is just a thought)

------- SIGNATURE BELOW -------
Complete newbie at skydiving, so be critical about what I say!!
"The only thing necessary for the triumph of evil is for good men to do nothing."

[quade 4]

Quote

Think not. Most likely those rules are there for stopping an obvious drunk from boarding, no?

No. FAR 105.7 is there to establish who is responsible -- in that case, both the skydiver AND pilot.

BTW, in U.S. aviation the magic number is .04. There are also time limits for pilots (8 hours from bottle to throttle) and I assume any FAA inspector worth his salt would also use time in his determination if someone was under the influence for the purposes boarding an aircraft with the intention of making a parachute jump. Just something to think about. See FAR 91.17

Rules may be slightly different in places other than the U.S..

quade -
The World's Most Boring Skydiver

[tombuch 0]

Quote

No. FAR 105.7 is there to establish who is responsible -- in that case, both the skydiver AND pilot.

BTW, in U.S. aviation the magic number is .04.

Two things:

First, the .04 only applies to pilots and flight crewmembers. The standard for skydivers is "under the influence," (see 105.7) and that is not defined by any specific number. This issue was addressed as a part of the comments to the new part 105, but FAA took no action to clarify "under the influence." We can also look at 91.17, and if we consider parachutists to be passengers for the time they spend in the airplane, then 91.17(b) applies...that's "appears to be intoxicated or who demonstrates by manner or physical indications that the individual is under the influence of drugs..."

Second: Under the new part 105 the language of responsibility has changed significantly. The two key terms are "person" and "parachute operation." Person can mean any person, or organization, or legal entity (see FAR 1.1). Parachute Operation specifically includes (but is not limited to) the drop zone, or owner, or operator (see 105.3). The objective of this change was to spread the responsibility around. So, in this case the FAA could attach legal fault to people and organizations beyond just the pilot and jumper. See my article about this issue on The Ranch web site at http://ranchskydive.com/safety/tb_article13.htm

Tom Buchanan
Author JUMP! Skydiving Made Fun and Easy

Tom Buchanan
Instructor Emeritus
Comm Pilot MSEL,G
Author: JUMP! Skydiving Made Fun and Easy

[quade 4]

Understood.

My only reason for bringing up numbers and times had to do with what a reasonable FAA Inspector would likely begin his actions on. The Office of Legal Council for the FAA has time and time again used similar parts of the FAR to help them make interps for things not specifically spelled out. It is not unreasonable to assume that any action involving a skydiver thought to be under the influence would be looked at with an eye similar to that used to determine a pilot's fitness for flight.

quade -
The World's Most Boring Skydiver