Legal Issues Related to Implementation and Operation of SMS for Airports (2018) / Chapter Skim
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Pages 10-18
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From page 10... ...
10 upon the relationship between labor and management at tenant organizations.78 It is difficult to determine the exact form these various requirements will take in any final rule. Nevertheless, because all of these requirements are, at least in part, integral to the overall implementation of SMS, it is likely that these requirements will all appear in some fashion in a final rule.
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11 unreasonably great risk of causing damage or injury, and the identified risk is not mitigated. In such cases, the general legal standard is whether a reasonable person would have mitigated the identified risk.
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12 practice, potential plaintiffs could seek to hold the sponsor liable for any safety-related accidents in areas that they do not directly control.89 Notwithstanding such potential liability, the terms of any specific lease may limit the sponsor's authority to enter the premises, control the tenant's behavior, or otherwise mitigate hazards.90 Revisions to lease terms may be necessary to fully implement SMS within tenant leaseholds.91 Second, under common law in some jurisdictions, "the lack of knowledge of a risk, and thus failure to mitigate it, could be a defense" to claims of negligence in the absence of SMS.92 The proposed SMS rule would mandate that sponsors undertake an SRM process (including for the non-movement area as discussed above) that "is intended to identify otherwise unknown risks, quantify the potential impact of such risks, and seek to mitigate otherwise unacceptable risks."93 The concern, then, is that "[b]
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13 whether the airport has an SMS." It also carefully explained that "[t] he FAA intends an SMS would assist in uncovering and mitigating these unsafe conditions or actions" and that it "does not intend the proposed airport SMS rule to create or change state tort liability law."97 Regardless of the agency's intentions, the proposed rule does carry the potential to shape elements of tort liability for airport sponsors.
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14 their employment.105 Accordingly, although SMS theoretically has the potential to increase both an airport sponsor's and an accountable executive's liability, practically they may be shielded from most or all liability by applicable state law. These statutes vary widely in their scope and applicability, but can be effective tools for an airport sponsor to avoid or limit liability.106 A complete analysis of state governmental immunity statutes as they apply to airport sponsors generally is beyond the scope of this Legal Research Digest, but has been thoroughly catalogued in Legal Research Digest 24.107 However, it is important to note that despite their usually broad facial language, the potential application of governmental immunity statutes in the SMS context is unclear because of the unique regulatory posture and new sponsor role as the entity primarily responsible for safety on the airfield.
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15 information has a wide variety of potential legal consequences for airport sponsors. First, the availability of hazard and incident reports could be a valuable source of information for potential plaintiffs (or aggressive counsel seeking clients)
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16 to be confidential, airport sponsors have to be extremely careful about making unsupportable commitments of confidentiality. Of course, if airport sponsors cannot make commitments of confidentiality, it is likely that the FAA will find that the SMS program does not comply with this fundamental principle of an effective SMS program.118 In addition to the confidentiality concerns with a hazard reporting system, the applicability of state freedom of information laws to the SMS Manual or the sponsor's SMS implementation plan could present a security risk to the airport.
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17 While there is a colorable argument for confidentiality under federal law of voluntarily submitted safety data, protections from disclosure for the SMS Manual and/or SMS implementation plan are even less clear. Because the proposed rule would mandate submission of at least some SMS documents to FAA, the exception for voluntarily submitted data would not appear to apply, and those documents would most likely be subject to disclosure under the federal FOIA.
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18 the agreements in order to facilitate implementation. Whether airport sponsors can make such changes will depend in large part upon whether leases and other contracts have reopener clauses or subordination clauses that allow the sponsor to make changes unilaterally to comply with federal regulatory obligations.
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