In North Carolina, my state of residence, the second degree murder would only stick if the State could show the requisite "malice." In this instance that would require the State to prove the "commission of an inherently dangerous act in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and bent on mischief." A fairly high standard to meet, although the FAR regs provide some insight into what might be considered the "standard" for determining reckless and wanton behavior. Involuntary manslaughter would appear to be a more proper charge, in this State. The elements of involuntary manslaughter are: "1) killing; 2) another living human being; 3) ...by engaging in any conduct in such a reckless and careless manner as to show a thoughtless disregard for consequences or a heedless indifference for the safety of others." Having a blood alcohol content in excess of the legally recognized impairment level (.08 here too) AND jumping in direct violation of FAR 105 seem to satisfy the "thoughtless disregard....careless and reckless manner" element of involuntary manslaughter. The same may well be true of Kutz' initiation of his hook turn without first checking for traffic below. In any event, it seems very clear to me that he would be deemed negligent, in a civil context.
While the FAA may have the ability to pull the pilot's ticket, I think any further action against the pilot will be difficult since there is nothing in the fact pattern to suggest that the pilot knew, or had reason to know, of Kutz' intoxication. In the civil context I think the pilot has a reasonably good defense due to the intervening act of negligence by Kutz (ie. the hook turn without first checking for traffic) and the fact that the pilot's negligence, if any, was passive while that of Kutz was active.
Mccordia, to respond to your question about the reversed roles. Although it is possible that the intoxicated, but otherwise innocent, victim might recover, in this State it's highly unlikely. North Carolina is a contributory negligence state, meaning that if the "victim" was even a fraction of a percent at fault, there is no recovery at all. Any defense lawyer should be able to make a straight faced argument that jumping while legally intoxicated is, to some degree, contributorily negligent, even if by only slowing the "victim's" response time to an emergency situation. I suspect the result could be different in a comparative negligence state. "Not all who wander are lost." JRR Tolkien
