by David Jon Fischer
In a recent court case involving a balloonist the plaintiff’s attorney attempted to demonstrate that the defendant did not follow accepted practices in the balloon community. The attorney asked the balloonist if he was familiar with the Balloon Federation of America’s Crew Manual and did he use it as his standard of operation. The attorney offered this publication up as an example of proper conduct.
Courts consider the liability of balloon pilots using different rules, such as negligence. In case of a lawsuit after a balloon accident, the courts may use the accepted conventions and practices of the ballooning community as a standard to evaluate negligence claims.
The courts use these accepted conventions and practices (called "customs and usages") of the ballooning community to find the appropriate conduct that a pilot should have used when people are injured or property is damaged.
"Customs and usages" then, help show what the ballooning community considers as proper conduct. The court treats "customs and usages" as the composite judgment of the ballooning community as to the risks of a particular situation and the reasonable precautions required to meet those risks. Courts accept such evidence of the customary and usual conduct of other aeronauts under similar circumstances to show the appropriate standard of care that a pilot should have exercised.
While a custom is not proof of reasonable behavior and caution, the law presumes that there is a reasonable basis to contend that what people ordinarily do, engaged in a similar activity, is helpful to decide what an ordinary, prudent person would do in similar circumstances.
Thus, if the aeronaut did only what other skilled pilots would have done in the same circumstances, the courts can imply that the pilot is conforming to the ballooning community’s idea of reasonable behavior. However, conformity to a particular custom or practice is not, by itself, the exercise of due care.
In other words, custom and usage alone do not justify negligence, no matter how general the custom or usage is. A method employed in any trade, business or profession cannot, by its mere existence, establish that he method is safe. However, failure to follow generally accepted conduct in a community is considered evidence of a failure to act reasonable, unless the actor can show that his conduct reflects a better or safer course of action.
Thus, a pilot who fails to use generally accepted methods within the ballooning community can expect that the courts will require that he prove that the methods he did use are better than those that are generally accepted. When there is undisputed evidence that a pilot followed the generally accepted standards of the ballooning community and there is no evidence that these standards are negligent, a court would normally conclude that the pilot was not negligent.
There are two primary ways that a party can show custom and usages in a
community such as ballooning:
(1) The party can present testimony of "expert" witnesses (i.e., other balloonists with
the appropriate training, knowledge and experience) as to the customary and usual
practices followed by balloonists.
(2) The party can rely on publications, books and technical writings containing materials written by persons recognized within the "community" as having expertise in the subject matter involved. Thus in ballooning, these written materials include manual and handbooks on ballooning topics; articles in various publications, such as Balloon Life and local ballooning newsletters; and written presentations within seminar workbooks.
Written materials can be used in testimony by having excerpts from a publication read out to the expert witness who then acknowledges that the status of the work is that of a recognized authority. Either the expert’s own testimony, the testimony of another expert witness, an admission by the pilot as a party to the lawsuit, or a judicial notice by the court may establish that the writing is a recognized authority.
Seminar materials and published articles and books depict a norm of behavior which balloonists expect each other to follow in fulfilling their responsibilities as pilots or crew members. In addition, this use of "custom and usage" by the courts imposes an unmistakable responsibility upon publishers, editors, and seminar organizers and instructors, to encourage prudent, responsible conduct between their readers and participants, and to take steps to insure that the information is accurate, timely and complete.
Because it is the opinion of experts about whether a particular book or article is written by an expert and states an accepted "custom or usage", disclaimers of such intention are usually not effective in a court. The educational or other intent of the author or publisher rarely influences the court more than the testimony of a qualified expert as to the value of a writing in showing the general acceptance of the ideas including in that article or book.
As one who has been an author and a safety seminar instructor and a seminar chair over the past fifteen years, the obligation to be accurate and complete weighs heavily in planning a publication, or preparing a topic presentation or organizing a safety seminar. It also imposes an obligation on readers and seminar participants to fully appreciate the information transmitted to them, whether in writing or verbally, and to evaluate that information considering their own experience and knowledge.