In dealing with the subject matter of this article, many writers have approached the question of an aviator's liability as though there were but two possible solutions,-that is, the imposition of absolute liability for all injuries to persons and property on the ground, or to hold the aviator only for injuries due to his negligence. Statutes of many states have adopted the first proposed solution, several states have enacted laws prescribing the second, while other commonwealths have merged the two, sometimes adding or subtracting various features. Therefore, the sum total of all the legislation on the subject presents a picture as colorful as the rainbow, and as far reaching in its extremes, notwithstanding the fact that the purpose of each enactment is the same,- that is, to establish a just rule of tort liability for airplane cases. It is the purpose of this article to approach the question from a different angle, by suggesting that liability should depend on the cause of the fall of the airplane (or whatever it is that inflicts the injury), and then to suggest how common law rules should be applied to the various classifications of causes. Just results may be reached without a liability statute, and West Virginia, along with such outstanding states as Massachusetts, New York, Ohio, Virginia and others, has wisely refrained from any such enactment. Our discussion will be devoted chiefly to cases in which the damage occurs while the pilot is lawfully avigating his airplane in the exercise of due care, after proper inspection beforehand, for these will all be cases of first impression when they arise. Cases in which the aviator's negligence is the proximate cause of the injury present no new questions, for in most cases where negligence, -including the violation of a statute,-can be shown on the part of the aviator the present rules of tort law are sufficiently broad to be justly applicable.
Julian G. Hearne Jr.,
The Liability of an Aviator for Damage to Persons and Property on the Ground,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol37/iss3/4