Tonawanda News

March 13, 2013

Court: Flight 3407 crash cleanup is county's expense

The Associated Press
The Tonawanda News

Tonawanda News — BUFFALO — Erie County has lost its bid to recover the nearly $800,000 it spent in the aftermath of the crash of Continental Connection Flight 3407, which killed 50 people when it slammed in a home outside Buffalo in 2009.

A federal appeals court last week upheld a ruling clearing flight operator Colgan Air Inc.; its parent company, Pinnacle Airlines Corp;, and Continental Airlines Inc. of responsibility for the cost of the emergency response and cleanup. The ruling cited a provision of New York law barring recovery of public money spent doing government work.

“Absent an exception, the free public services doctrine plainly bars the county’s claims to recover public expenditures,” the March 4 ruling by the U.S. Court of Appeals for the Second Circuit said.

The ruling affirmed U.S. District Judge William Skretny’s March 2012 decision dismissing Erie County’s complaint.

Flight 3407 crashed into a house in the suburb of Clarence on approach to Buffalo Niagara International Airport on Feb. 12, 2009. All 49 people on board the two-engine turboprop and a man in the house were killed.

Federal investigators attributed the crash to pilot error, finding that the captain, possibly because of insufficient training, took the wrong corrective action when the plane lost speed and stalled during the Newark, N.J.-to-Buffalo flight.

The county “sustained unnecessary and unprecedented property and financial damage,” the complaint said, “as a direct and proximate result of defendants’ wanton, reckless, negligent and willful conduct.”

The airlines countered that past court rulings made clear that costs incurred by government entities in providing taxpayers with things like fire protection are to be borne by the public as a whole, “not assessed against the entity whose alleged negligence or fault creates the need for the services.”

A county spokesman said the “clear culpability” of the flight’s operator in this case had led the county to try to recover costs.

“While we are disappointed by the ruling, we are not surprised that the court did not see fit to change New York State law,” said Peter Anderson, spokesman for Erie County Executive Mark Poloncarz.

Expenses included “overtime pay for police and emergency personnel, the cleanup and removal of human remains, the cleanup and removal of chemical substances originating from the aircraft, the cleanup and removal of the aircraft itself,” as well as the cost of equipment and counseling for victims’ families, the complaint said.

Pinnacle has been reorganizing under bankruptcy protection since last year. Colgan Air ended flying in Sept. 2012 as part of Pinnacle’s restructuring plan.