Panting v. The United States of America, 652 F.Supp.3d 1064

LeMay Aero Club (Offutt AFB) is an Air Force instrumentality that provides aircraft and permits FAA Designated Pilot Examiners (DPEs) to conduct practical tests.
On July 24, 2016, DPE Ronald Panting was administering a checkride in a LeMay Aero Club Beechcraft Baron; the aircraft stalled and crashed, killing Panting and the applicant.
Panting had signed a July 19, 2016 covenant not to sue the United States for injuries or death arising from Aero Club activities, expressly covering claims caused by government negligence.
Plaintiff (personal representative) sued under the FTCA alleging negligent maintenance; the government moved for summary judgment, arguing the covenant bars the suit.
Plaintiff alternatively argued the covenant either did not cover Panting’s DPE role (signed only as an instructor) or is void as against Nebraska public policy given the DPE’s role in carrying out an essential government function and attendant bargaining-power concerns.
The court applied Nebraska law and held the covenant, insofar as signed by Panting in his capacity as a DPE, is void as against public policy; summary judgment on the covenant issue was denied and the government’s motion was denied without prejudice as to remaining issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the covenant not to sue bar the FTCA action?	Covenant is inapplicable to DPE activities or, alternatively, is void as against public policy.	Covenant unambiguously releases the U.S. from claims arising from Aero Club activities, including negligence.	Court denied summary judgment: covenant unenforceable as to Panting acting as a DPE because it is contrary to public policy.
Was the covenant signed only in Panting’s capacity as a flight instructor (so it does not cover DPE checkride)?	Panting signed as an instructor, not as a DPE, so covenant shouldn’t bar DPE claims.	Covenant covers Aero Club activities broadly, including checkrides.	Court did not decide this capacity issue as resolution on public‑policy grounds made it unnecessary.
Are exculpatory clauses enforceable where the activity implicates essential government functions and disparate bargaining power?	Void: DPEs perform an essential government function, are in a symbiotic relationship with the FAA, and face coercive pressure to sign, creating a public‑policy bar.	Enforceable: courts regularly uphold exculpatory agreements for recreational activities and ordinary negligence.	Court predicted Nebraska Supreme Court would find the covenant repugnant to the public conscience and void when signed by a DPE performing an essential FAA function.

McCurry v. Sch. Dist. of Valley, 496 N.W.2d 433 (Neb. 1993) (defining covenant not to sue).
New Light Co. v. Wells Fargo Alarm Servs., 525 N.W.2d 25 (Neb. 1994) (courts may restrict exculpatory clauses for public good).
Bedrosky v. Hiner, 430 N.W.2d 535 (Neb. 1988) (exculpatory clause void if repugnant to public conscience).
Mayer v. Howard, 370 N.W.2d 93 (Neb. 1985) (upheld waiver where plaintiff was informed and could inspect risky conditions).
Sinu v. Concordia Univ., 313 Neb. 218 (Neb. 2023) (analysis of exculpatory agreements in recreational/educational context).
Maucher v. Chicago, R.I. & P.R. Co., 159 N.W. 422 (Neb. 1916) (employer escape-from-liability clauses for employees against public policy).
Newcombe v. United States, 933 F.3d 915 (8th Cir. 2019) (FTCA waives sovereign immunity for negligent acts of federal employees).
King v. United States, 3 F.4th 996 (8th Cir. 2021) (federal courts apply state law to FTCA claims).
Air Transp. Assocs. v. United States, 221 F.2d 467 (9th Cir. 1955) (state law governs releases and liability limitation).
Graham v. CIOX Health, LLC, 952 F.3d 972 (8th Cir. 2020) (federal courts predict how a state’s highest court would rule when controlling authority is absent).