Airlines Duck Suit Over Cleanup of Buffalo Crash

MANHATTAN (CN) - The airlines behind a fatal 2009 plane crash outside Buffalo, N.Y., are not liable to Erie County for cleanup costs, the 2nd Circuit ruled.

Continental Connection Flight 3407, a commuter jet, began to stall on approach to Buffalo-Niagara International Airport and crashed into a home about 5 miles away in Clarence Center.

The National Transportation Safety Board would later blame pilot error for the Feb. 12, 2009, crash, which took the lives of all 49 passengers and crew, as well as one person in the house.

An ensuing explosion and fireball meanwhile damaged neighboring properties. Erie officials reportedly pegged the clean-up and personnel costs at $800,000.

The county sued in 2010 to recover those costs from Continental Airlines Inc., Colgan Air Inc. and Pinnacle Airlines Corp. Colgan operated Flight 3407 for Continental; Pinnacle is Colgan's parent company.

A Buffalo federal judge dismissed the complaint in March 2012, saying New York's so-called free public services doctrine barred any reimbursement.

Citing the same doctrine, a three-judge panel of the 2nd Circuit affirmed last week.

New York's highest court, the Court of Appeals, made the rule in 1984 while sorting out New York City's claims related to the 25-hour citywide blackout of 1977. It says "public expenditures made in the performance of governmental functions are not recoverable."

Other courts have found likewise as governments responded to train derailments and oil spills, the 2nd Circuit noted.

"Other courts have found that the doctrine is rooted in a recognition that 'the cost of public services for protection from fire or safety hazards is to be borne by the public as a whole, not assessed against the tortfeasor whose negligence creates the need for the service,'" Judge Richard Wesley wrote for the panel.

"Like the District Court, we conclude that, absent an exception, the free public services doctrine plainly bars the county's claim to recover public expenditures," he added.

Erie also cannot rely on an exception to the doctrine under Section 1306 of New York public health law, the ruling states.

This law makes it possible for a county or municipal board of health to recover the costs of cleaning up a public health nuisance from the owner or occupant of the premises involved, or from the person who caused the nuisance.

Both the lower court and the 2nd Circuit concluded, however, that this does not apply since Erie did not allege a continuing problem that required remediation beyond the clean-up itself.

"Nuisance is a conscious and deliberate act involving the idea of continuity or recurrence," Wesley wrote, adding that "an accidental airplane crash is entirely different from the conscious creation of a continuous or recurring condition."

While conditions at a crash site may resemble those of a public nuisance, the latter case involves local government acting on behalf of the responsible party during cleanup.

"When the government responds to a catastrophic accident ... it performs its own duty of responding to a discrete public emergency - not a duty on behalf of or in place of a third party," Wesley wrote.

Erie's appellate briefs also failed to present a difference between "nuisance" and "conditions detrimental to health," according to the ruling.

"Essentially, according to the county, because the response to the plane crash included the removal of human remains and other actions which, if left uncompleted, might cause health concerns, its costs are recoverable," Wesley wrote. "Nothing in the statute or its context supports this reading."

"We perceive no administrable distinction, or one recognized under New York law, to treat certain clean-up expenses (such as those relating to human remains) differently from other public expenses (such as overtime pay for police) where all of these expenses were incurred as part of a continuous response to the same public emergency," he added (parentheses in original).

"In other words, public services provided in response to an emergency are just that - public services - and therefore are not subject to reimbursement," the ruling concludes.

Judges John Walker and Guido Cabranes concurred in the opinion.

James Duggan of Duggan & Bentivogli in Williamsville represented the county. David Harrington of Condon & Forsyth in New York City represented the airlines.

Airlines for America, formerly the Air Transport Association of America, a Washington, D.C.-based trade group, submitted a brief in support of the airlines.

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