Factors in pilot choices are often subject to political spins, as few people are able to objectively evaluate the information available to the pilot, the bandwidth to manage the events, and the conditions which may have added complexity as well as the experience level of the pilot. A student pilot logically is held to a different competency expectation than a commercial/ATP with 15,000 hours in type, intimately familiar with the conditions, etc.
In common law, the pilot is supposed to protect in order, innocent third parties, the passengers, the crew, and property of others.
Where there were people impacted (no pun intended) who were not seen or known to the pilot/crew, that becomes a mitigating factor.
The bulk of civil liabilities on flight crews is established in case law, as there are few statutes which address that, at least in the US and Canada.
Addendum #1 Protection of innocent third parties, is first order as they have not elected to become part of an aviation event. Passengers need protection because it is the duty of the crew to protect passengers, even if non-paying. Of course passengers assumed some risk by electing to fly. Crew need protection because they are humans. Property is last.
Addendum #2, incorporation of comments, per requests. Comments are largely unedited, simply included to preserve the record. The comments were in response to a challenge for authorities on the common law obligations of pilots.
HLS Torts 2, Aviation under the Common Law, Francis H. Bohlen , and for contributory relation: Recreational boating accidents: Which law applies? Kevin Donius, for duties: TRITCH, ALLAN M. University of St. Thomas Law Journal: Fides et lustitia 2014/04/01, Vol: 11, p331, for practicality, and legislative mix: Fifty Years of Torts Harvard Law Review, Vol. 50, No. 5, Kohr, 504 F.2d 400 (creating federal common law of contribution in aviation accident). Kohr figures prominently in Professor Field's theory of federal common law, see Field, supra note 14, at 913-15, but almost certainly does not survive the refusal to create a federal common law right of contribution in antitrust cases. Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630 (1981)
But see Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 292 (1993) (creating "ancillary" common law right of contribution in implied Rule 10b-5 right of action). Indeed, within seven years of Kohr, even the Seventh Circuit did not think to use federal common law to deal with the complex conundrums of choice of law analysis in an aviation accident. In re Air Crash Disaster Near Chicago, Ill. on May 25, 1979, 644 F.2d 594 (7th Cir. 1981).
The Bohlen one, while dated (~1937) hits many of the foundations. But the boating one points out that by being a passenger you accept a greater risk than an independent third party. In the Torts class, I did a couple of papers on aviation torts. The rest of the cites become rather obtuse, because the focus in most litigation is not on common law, but on statutes. Yet, in NY, the bar exam covers common law. Go figure.
I cannot comment of EASA regulations, but generally the FAA regulations do not cover tort liabilities. Tort law and common law, where applicable, would appropriate references. This may be more relevant for SE Law. FAA regulations cover operational matters, certification, registration and administrative aspects of aviation.
Also the liabilities can be quite complex, for example in the Chicago crash, state Public Utilities Act was invoked, which added one of many local complexities to the litigation. That kind is stuff is, I believe, beyond the scope of SE Aviation.
This congressional intent not to exclude state statutory and common law from the field of aircraft safety is further illustrated by the existence within the Federal Aviation Act of a savings clause. 49 U.S.C. app. 1506 (1988)
