The Eighth Circuit Court of Appeals has overturned a lower court’s decision, ruling that a liability waiver signed by a deceased Federal Aviation Administration (FAA) Designated Pilot Examiner (DPE) was likely *not* void as against public policy under Nebraska law. The ruling reverses a denial of summary judgment for the government and sends the case back to the district court for further consideration, specifically regarding the scope of the waiver.
The tragic events leading to this appeal occurred on July 24, 2016, when Ronald B. Panting, an independent contractor working as an FAA DPE, was conducting a required pilot “Checkride” for applicant Michael Trubilla. The aircraft crashed during the examination, resulting in the deaths of both men.
Lynne D. Panting, Ronald’s surviving spouse, subsequently sued the United States under the Federal Tort Claims Act (FTCA), alleging the government was negligent in maintaining the plane. The government moved for summary judgment, relying on a covenant not to sue Ronald had signed just five days before the crash in exchange for using planes owned by the LeMay Aero Club, located at Offutt Air Force Base.
The Covenant and the District Court’s Ruling
Ronald Panting was an independent contractor, not a government employee, who earned money by charging applicants for these mandatory certification exams. He also had a prior relationship with the Aero Club, having served as its chief flight instructor before becoming a DPE.
The covenant Ronald signed was broad, stating he would never sue the U.S. Government for any injury or death resulting from his participation in Aero Club activities, even if caused by the government’s negligence. Crucially, the agreement explicitly stated Ronald assumed the risk of injury or death, “including such injuries, death, damage, loss or destruction as may be caused by the negligence of the US Government.” Air Force policy required all participants in Aero Club activities, including DPEs, to sign this waiver annually.
The district court sided with Lynne Panting, invalidating the covenant as contrary to public policy, thereby denying the government’s request for summary judgment. Following this denial, the case proceeded to a bench trial where the court ultimately found the government liable for negligent maintenance, awarding the estate over $5.8 million. The government, however, appealed only the initial denial of summary judgment based on the covenant.
Jurisdiction Confirmed for Purely Legal Questions
Lynne Panting argued that the Eighth Circuit lacked jurisdiction to hear the appeal because the government hadn’t renewed its covenant argument after the trial. The appellate court quickly dismissed this concern. Citing recent Supreme Court precedent, the court confirmed that if a motion for summary judgment hinges on “purely legal issues,” it remains reviewable on appeal even if not revisited during the subsequent trial. Because the district court’s decision rested entirely on whether the covenant offended Nebraska public policy—a question of law—the Eighth Circuit asserted its jurisdiction.
Analyzing Nebraska Public Policy Precedent
Under the FTCA, the substantive law of the state where the incident occurred (Nebraska, in this case) must be applied. The Eighth Circuit had to determine how the Nebraska Supreme Court would rule on voiding such a contract.
Nebraska courts approach striking down contracts on public policy grounds with caution, requiring the contract to be “clearly and unmistakably repugnant to the public interest.” The district court had applied a two-part test common in other jurisdictions: checking for (1) a disparity in bargaining power and (2) whether the service provided was “public or essential.”
No Disparity in Bargaining Power Found
Regarding bargaining power, the appellate court found no evidence that Ronald was coerced. Ronald was an independent contractor, free to set his own rates and conduct business at any airport. He was not obligated to use the Aero Club’s planes. Given his experience as a chief flight instructor and his ability to “shop around” for other venues or clients, the court concluded he was not a victim of disparate bargaining power.
The district court had tried to draw an analogy to employer-employee liability waivers, suggesting similar public policy concerns existed when the government delegates vital functions. The Eighth Circuit rejected this extension, noting that Ronald’s working conditions as a DPE were largely outside the government’s control.
Aero Club Activities Not Deemed “Essential Public Service”
The second prong concerned whether the Aero Club provided a public or essential service. The court defined a “public service” as one provided for the general public’s convenience, and an “essential service” as “basic and necessary.”
The court found the Aero Club’s rental service to be neither. It is an instrumentality on a military base, accessible only to authorized members for activities that include recreational flying and career advancement—not basic public necessity. The court emphasized that the Aero Club *facilitated* Ronald’s work but did not *provide* the essential government function (the Checkride itself). Citing historical Supreme Court cases upholding waivers even when related to essential services (like railroad express messengers), the Eighth Circuit concluded that Nebraska law would not void the covenant on this basis.
Therefore, the appellate court determined that the covenant was *not* clearly repugnant to Nebraska’s public interest and reversed the district court’s finding on public policy grounds.
Remand for Scope of Coverage
Despite overturning the public policy ruling, the Eighth Circuit noted that the district court had declined to address Lynne Panting’s alternative argument: that the covenant’s language did not apply to Ronald in his specific capacity as a DPE on the day of the crash.
Because the district court failed to rule on this alternative, purely legal question, the Eighth Circuit reversed the judgment and remanded the case back to the district court. The lower court must now decide whether the terms of the covenant—which Ronald signed annually—actually covered his activities while conducting an official FAA Checkride as a DPE.