lisadoc
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What you're really talking about here is two different versions of "risk". One version, that all airlines, airports, etc. must operate under, is "operational risk". That calculation of risk (probability x severity) of any particular hazard is counterbalanced by "operational need" - or in other words, the need to conduct business. These entities must always weigh the risk of occurence with the cost of prevention. Another way to think about it is this - you can avoid all aviation-related accidents by stopping your operations. No risk of a crash, mid-air collision, bird strike, mechanical failure, etc. if your plane never takes off. But that's not really a very good business model for business entities such as airlines and airports. Additionally, each of these entities has a limited budget to conduct operations and those funds can either go toward reducing risks or increasing production. Spend too little on reducing risk (or too much in increasing production if you wish to look at it that way) and you'll end up with very expensive accidents and eventually go broke. Spend too much on reducing risk and your production falters and you eventually go broke.
So business entities like airlines and airports spend a great deal of their time figuring out business plans that delicately balance these two needs and walk the line as they best see fit. I've written about this concept before - as it's known in our field: ALARP ("As Low As Reasonably Possible" - or "SFAIRP"). More here:
Can a UAV bring down a plane?
What the court you cited above is speaking about (and what lawyers and legal scholars consider) in terms of risk is something entirely different - it has to do with negligence and the elements necessary to legally prove negligence of a party in its conduct (or lack thereof). Depending on your state (and tort law there), there are typically five or so elements that you must prove to demonstrate negligence:
- Duty
- Breach of Duty
- Cause in Fact
- Proximate Cause
- Damages
Legalistically, risk is looked at with respect to an entity's duty - in this case, an airline or airport's duty to prevent an accident. Who do they owe a duty to? The public, a passenger, their employees, etc. All of these must be balanced. Criminal behavior, in most cases, relieves or at least mitigates an actor of that duty to prevent an accident. If someone trespasses on my property, for example, and injures themselves, I am far less likely to be held to have a duty to avoid that "risk", than if if someone is an invitee of mine. This is not something that comes into play in calculations of operational risk.
Secondly, the risk of this is typically calculated with respect to the likelihood of it happening and the capability of a party to mitigate such a risk. Severity does come in to the calculation to a small degree, but only insofar as it relates to what is "reasonable care". For legal risk, a party doesn't have to consider all risks and even those risks that are readily apparent, it may not be breaching a duty if it fails to take action, as that action may not be "reasonable", no matter the severity.
Finally, though both calculations are subjective to some degree, operational risk should be as minimally subjective as possible and should be analyzed based on data (and re-analyzed as more data comes in), while legal risk is almost entirely subjective, as it relates to what a judge or jury deems "reasonable". Those dealing with operational risk attempt to take as much of the "feelings" and sentiment out of the equation as possible. Typically, legal risk is determined entirely or principally by sentiment, despite its objective visage.
In this specific case, for operational risk, the airline is looking to their mitgation factors and (hopefully) basing it on quantifiable data and relevant risk calculations - what is the severity of someone "stealing" an airplane? (potentially very severe) times the probability of someone actually doing that (generally very low - i.e. how many times has this happened over the years?). And what actions did they take to mitigate that risk? Background checks, security perimeters, etc. Someone on the inside stealing a plane has very different probability than an "intruder". Most mitigation steps are taken to address those issues (of intruders, not insiders). Could they install "keys" or "randomized security codes" for the start-up of aircraft? Sure. Is it operationally worth it considering the risk? And what did the data say (prior to this incident)? Probably not. The same calculation was in effect for cockpit doors prior to 9/11. That data point changed the equation.
For legal risk, did the airline owe a duty of care to the general public that its planes wouldn't be stolen? Probably yes. I would suspect that this factor wouldn't be a hurdle. But the breach of duty is a barrier to pretty much any claim in this case. As I noted, criminal behavior mitigates that breach of duty. Reasonable care is also a subjective determination, even taking that part out of the determination. Were the airline's actions "reasonable"? If so, there was no breach of duty, even if it was a "risk". Though you can never predict the outcome of a jury determination with certainty, the burden of proof in this case to prove a breach of duty is likely insurmountable, to say nothing about the fact that there were basically no damages (to outside parties).
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