County of Erie v. Colgan Air, Inc.

12-1600-cv
County of Erie v. Colgan Air, Inc.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
4
August Term, 2012 5
6
(Argued: February 1, 2013 Decided: March 4, 2013) 7
8
Docket No. 12-1600-cv 9
10
11
COUNTY OF ERIE, NEW YORK, 12
13
Plaintiff-Appellant, 14
15
-v.- 16
17
COLGAN AIR, INC., PINNACLE AIRLINES CORP., CONTINENTAL 18
AIRLINES, INC., 19
20
Defendants-Appellees. 21
22
23
24
25
Before: 26
W ALKER , C ABRANES , AND W ESLEY , Circuit Judges 27
28
29
30
Plaintiff-Appellant County of Erie, New York seeks to 31
recover the costs of emergency and clean-up services it 32
incurred when responding to the crash of Continental 33
Connection Flight 3407 within its borders. The United 34
States District Court for the Western District of New York 35
(Skretny, C.J.) dismissed the complaint under Federal Rule 36
of Civil Procedure 12(b)(6), holding that the action was 37
barred under New York law by the state’s “free public 38
services” doctrine. We AFFIRM. 39
40
41
42
43

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JAMES J. DUGGAN, Duggan & Bentivogli LLP, 1
Williamsville, NY (Michelle Parker, Erie 2
County Attorney’s Office, Buffalo, NY, on the 3
brief), for Appellant. 4
5
DAVID J. HARRINGTON, Condon & Forsyth LLP, New 6
York, NY (Neil A. Goldberg, Goldberg Segalla 7
LLP, Buffalo, NY; Oliver K. Beiersdorf, Reed 8
Smith LLP, New York, NY; Patrick E. Bradley, 9
Reed Smith LLP, Princeton, NJ, on the brief), 10
for Appellees. 11
12
David A. Berg, Senior Vice President and General 13
Counsel, Douglas Mullen, Assistant General 14
Counsel, Airlines for America, Washington, 15
D.C.; Mark E. McGrath, M. Roy Goldberg, 16
Sheppard Mullin Richter & Hampton LLP, New 17
York, NY, for Amicus Curiae Airlines for 18
America in support of Appellees. 19
20
21
22
W ESLEY , Circuit Judge: 23
24
After the February 12, 2009 crash of Continental 25
Connection Flight 3407 on approach to Buffalo-Niagara 26
International Airport, plaintiff-appellant County of Erie, 27
New York (“the County”) sued defendants-appellees Colgan 28
Air, Inc., Pinnacle Airlines Corp., and Continental 29
Airlines, Inc. (collectively “defendants”) to recover its 30
expenditures in responding to, and cleaning up after, the 31
accident. The United States District Court for the Western 32
District of New York (Skretny, C.J.) granted defendants’ 33
motion to dismiss the complaint under Federal Rule of Civil 34
2

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Procedure 12(b)(6). County of Erie v. Colgan Air, Inc., No. 1
10-CV-157S, 2012 WL 1029542, at *2 (W.D.N.Y. Mar. 26, 2012). 2
The court found the County’s claims barred by New York law 3
on the ground that “‘public expenditures made in the 4
performance of governmental functions are not recoverable.’” 5
Id. (quoting Koch v. Consolidated Edison Co. of N.Y., 62 6
N.Y.2d 548, 560 (1984)). The County appeals, and we affirm. 7
Background 8
According to the amended complaint, Flight 3407 9
departed from Newark en route to Buffalo on February 12, 10
2009. On descent, the flight crashed into a private 11
residence in Clarence Center, Erie County, approximately 12
five miles from the airport, killing all passengers and crew 13
as well as one person in the house. The crash “caus[ed] 14
substantial damage to the neighboring properties, including 15
serious environmental clean-up expenses and damages.” Joint 16
App’x 67. 17
The County filed suit on March 1, 2010. It later filed 18
an amended complaint asserting five causes of action: 19
negligence, res ipsa loquitur negligence, 1 public nuisance, 20
1Although the County in its complaint asserted
negligence on the theory of res ipsa loquitur as an
additional count, res ipsa loquitur is not a cause of action
3

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liability under New York Public Health Law § 1306, and 1
liability under New York General Business Law § 251. The 2
County asserted in the amended complaint that it 3
has sustained unnecessary and unprecedented property 4
and financial damage as a direct and proximate result 5
of Defendants’ wanton, reckless, negligent, and willful 6
conduct to the extent Erie County was required to 7
expend resources in excess of the normal provisions of 8
police, fire, and emergency services as a result of the 9
crash of Flight 3407. Specifically, [the County] was 10
forced to expend unprecedented monetary resources in 11
order to provide public services including: Overtime 12
pay for police and emergency personnel; the clean-up 13
and removal of human remains; the clean-up and removal 14
of chemical substances originating from the Aircraft[;] 15
the clean-up and removal of the Aircraft itself; the 16
provision of emergency and counseling services to the 17
surviving members of the decedents’ families; and the 18
purchase, lease, or rent of equipment necessary to 19
respond to the crash of Flight 3407. 20
21
Joint App’x 71. 22
Discussion 23
We review de novo a district court’s dismissal under 24
Rule 12(b)(6), “construing the complaint liberally, 25
accepting all factual allegations in the complaint as true, 26
but rather an evidentiary doctrine that allows “an inference
of negligence [to] be drawn solely from the happening of the
accident upon the theory that certain occurrences contain
within themselves a sufficient basis for an inference of
negligence.” Dermatossian v. N.Y.C. Transit Auth., 67
N.Y.2d 219, 226 (1986) (internal quotations omitted). “The
rule has the effect of creating a prima facie case of
negligence sufficient for submission to the jury . . . .”
Id.
4

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and drawing all reasonable inferences in the plaintiff’s 1
favor.” Chase Grp. Alliance LLC v. City of N.Y. Dep’t of 2
Fin., 620 F.3d 146, 150 (2d Cir. 2010) (internal quotation 3
marks omitted). “To survive a motion to dismiss, a 4
complaint must contain sufficient factual matter, accepted 5
as true, to state a claim to relief that is plausible on its 6
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 7
(internal quotation marks omitted). “A claim has facial 8
plausibility when the plaintiff pleads factual content that 9
allows the court to draw the reasonable inference that the 10
defendant is liable for the misconduct alleged.” Id. 11
Additionally, “[a]n affirmative defense may be raised by a 12
pre-answer motion to dismiss under Rule 12(b)(6) if the 13
defense appears on the face of the complaint.” 2 Iowa Pub. 14
Employees’ Ret. Sys. v. MF Global, Ltd., 620 F.3d 137, 145 15
(2d Cir. 2010) (alteration and quotation marks omitted). 16
Having considered the arguments de novo, we affirm the 17
judgment of the district court for substantially the reasons 18
stated in its well-reasoned decision and order. The 19
County’s claims arise under New York law, and New York law 20
2For this reason, we need not consider whether the
public-expenditure rule at issue here is an affirmative
defense or a factor that must be defeated as part of the
County’s prima facie case on its various claims.
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therefore provides the elements of, and defenses to, those 1
causes of action. See Ferri v. Ackerman, 444 U.S. 193, 198 2
(1979) (“[W]hen state law creates a cause of action, the 3
State is free to define the defenses to that claim, 4
including the defense of immunity, unless, of course, the 5
state rule is in conflict with federal law.”). 6
As the district court explained, New York’s “‘general 7
rule is that public expenditures made in the performance of 8
governmental functions are not recoverable.’” County of 9
Erie, 2012 WL 1029542, at *2 (quoting Koch, 62 N.Y.2d at 10
560). In Koch, New York City, after a 25-hour citywide 11
blackout caused by Con Edison’s negligence, attempted to 12
recover from the company “costs incurred for wages, 13
salaries, overtime and other benefits of police, fire, 14
sanitation and hospital personnel from whom services (in 15
addition to those which would normally have been rendered) 16
were required in consequence of the blackout.” Koch, 62 17
N.Y.2d at 560. The Court of Appeals rejected the city’s 18
claim as contrary to the “general rule” regarding non- 19
recoverable public expenditures, citing cases holding 20
similarly in the context of a nuclear accident, an oil 21
spill, and the dumping of a large quantity of tires. Id. 22
6

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“The general rule is grounded in considerations of public 1
policy, and we perceive nothing in the different and 2
somewhat closer relationship between Con Edison and 3
plaintiffs in this case which would warrant departure from 4
that rule.” Id. at 560-61. 5
Other courts have found that the doctrine is rooted in 6
a recognition that “‘the cost of public services for 7
protection from fire or safety hazards is to be borne by the 8
public as a whole, not assessed against the tortfeasor whose 9
negligence creates the need for the service.’” See County 10
of Erie, 2012 WL 1029542, at *2 (quoting City of Flagstaff 11
v. Atchison, Topeka and Santa Fe Ry. Co., 719 F.2d 322, 323 12
(9th Cir. 1983)). For example, in District of Columbia v. 13
Air Florida, Inc., 750 F.2d 1077 (D.C. Cir. 1984), the 14
municipal authorities for the District of Columbia sued Air 15
Florida airlines for the cost of responding to a plane that 16
crashed into a bridge over the Potomac River. Citing Koch 17
and related cases, the Air Florida court rejected the city’s 18
claim for reimbursement for emergency services, noting: 19
Where emergency services are provided by the government 20
and the costs are spread by taxes, the tortfeasor does 21
not anticipate a demand for reimbursement. Although 22
settled expectations must sometimes be disregarded when 23
new tort doctrines are needed to remedy an inequitable 24
allocation of risks and costs, where a generally fair 25
7

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system for spreading the costs of accidents is already 1
in effect – as it is here through assessing taxpayers 2
the expense of emergency services – we do not find the 3
argument for judicial adjustment of liabilities to be 4
compelling. 5
6
We are especially reluctant to reallocate risks where a 7
governmental entity is the injured party. It is 8
critically important to recognize that the government’s 9
decision to provide tax-supported services is a 10
legislative policy determination. It is not the place 11
of the courts to modify such decisions. Furthermore, 12
it is within the power of the government to protect 13
itself from extraordinary emergency expenses by passing 14
statutes or regulations that permit recovery from 15
negligent parties. 16
17
Id. at 1080. 18
Like the district court, we conclude that, absent an 19
exception, the free public services doctrine plainly bars 20
the County’s claims to recover public expenditures. Some of 21
the County’s arguments amount to an assertion that the 22
doctrine lacks strong support in New York law and has been 23
weakened by subsequent related developments, but these 24
arguments are unavailing – most notably because the New York 25
Court of Appeals has not suggested that the doctrine no 26
longer applies. See Bank of N.Y. v. Amoco Oil Co., 35 F.3d 27
643, 650 (2d Cir. 1994) (“In making [the] determination [of 28
what New York law provides, we] of course will afford the 29
greatest weight to the decisions of the New York Court of 30
Appeals.”). 31
8

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Moreover, neither of the County’s arguments on this 1
point is persuasive. First, the County contends that 2
various cases arising from the terrorist attacks on 3
September 11, 2001, have “expanded the duty of an airline to 4
pay for consequences of a crash far greater in scope than 5
the lives of the passengers and crew killed in a crash or 6
the value of the airplane.” Appellants’ Reply at 8; see 7
also, e.g., In re Sept. 11 Litig., 594 F. Supp. 2d 374, 380 8
(S.D.N.Y. 2009). These cases are irrelevant. The scope of 9
the defendants’ duties is not at issue. The only question 10
presented is whether the free public services doctrine bars 11
the County’s recovery, and the County has not pointed to any 12
aspect of the September 11 decisions that bears on that 13
issue. 14
Second, we disagree with the County’s assertion that 15
New York has implicitly abandoned the free public services 16
doctrine by allowing individual officers to recover for 17
personal injuries sustained in the line of duty – contrary 18
to the common-law “fireman’s rule,” which previously barred 19
that type of suit. 3 Though the free public services 20
3“The ‘firefighter’s rule,’ a product of [New York’s]
long-standing common law, precludes firefighters and police
officers from recovering damages for injuries caused by
negligence in the very situations that create the occasion
9

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doctrine and fireman’s rule are similar in some respects, 1
the cases cited by the County do not suggest that the free 2
public services doctrine cannot stand on its own without the 3
fireman’s rule. See Koch, 62 N.Y.2d at 560-61; Austin v. 4
City of Buffalo, 182 A.D.2d 1143, 1144 (4th Dep’t 1992). 5
Moreover, to the extent that New York has abandoned the 6
fireman’s rule, it has done so through statutes that provide 7
for individual rights of action for injuries sustained by 8
public officials. 9
New York’s legislature, through enactments in 1935, 10
1989, 1992, and 1996, successively loosened the restrictions 11
on the ability of firefighters and police officers to seek 12
redress for their injuries from tortfeasors. See, e.g., 13
Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 77-79 (2003) 14
(discussing legislative reforms). General Obligations Law § 15
11-106 (L. 1996, ch. 703, § 5), to which the County points 16
in support of its argument here, permits police officers or 17
firefighters injured in the line of duty to recover damages 18
from the person or entity whose negligence caused the 19
for their services. . . . where the injury sustained is
related to the particular dangers which [they] are expected
to assume as part of their duties.” Zanghi v. Niagara
Frontier Transp. Comm’n, 85 N.Y.2d 423, 438-39 (1995)
(internal quotation marks and citations omitted).
10

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injury. However, this law does not enable a local 1
government entity to, for example, recover police or 2
firefighters’ overtime costs. Nor does it alter the free 3
public services doctrine. If anything, the statute 4
militates against the County’s argument, since it does not 5
provide for a governmental right of action to recover public 6
expenses. See generally N.Y. Stat. Law, § 240 (“The maxim 7
expressio unius est exclusio alterius is applied in the 8
construction of the statutes . . . .”). 9
The heart of the County’s theory on appeal is that its 10
response to Flight 3407 falls within an exception to the 11
free public services doctrine. The Court of Appeals noted 12
in Koch that “certain exceptions to the general rule have 13
been created by statutory enactment to give a municipality a 14
claim for expenditures for fire fighting and other police 15
powers,” such as claims for injuries to first responders or 16
against municipalities that called for outside assistance. 17
Koch, 62 N.Y.2d at 561. In Koch, however, “[n]o statute 18
[was] called [to the court’s] attention which would accord a 19
comparable benefit to plaintiffs in the circumstances of 20
this case.” Id. The County asserted below that either of 21
two exceptions to the doctrine should apply in this case: a 22
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general exception for public nuisances, or a statutory 1
exception under New York Public Health Law § 1306. 2
The district court rejected both of these contentions. 3
First, it noted that there could not, strictly speaking, be 4
a general “public nuisance exception” because “‘it would be 5
the exception that swallows the rule, since many 6
expenditures for public services could be re-characterized 7
by skillful litigants as expenses incurred in abating a 8
public nuisance.’” County of Erie, 2012 WL 1029542, at *4 9
(quoting Walker County v. Tri-State Crematory, 643 S.E.2d 10
324, 328 (Ga. App. 2007)). Thus, “recovery for a public 11
nuisance is a separate cause of action . . . ‘unrelated to 12
the normal provision of police, fire, and emergency 13
services.’” Id. (quoting City of Flagstaff, 719 F.2d at 14
324). We agree with the district court, and the County does 15
not appear to pursue this argument on appeal. 16
The County does contend, however, that § 1306 provides 17
a statutory exception. The relevant section of that statute 18
states: 19
The expense of suppression or removal of a nuisance or 20
conditions detrimental to health shall be paid by the 21
owner or occupant of the premises, or by the person who 22
caused or maintained such nuisance or other matters, 23
and the board of health of the municipality or county 24
wherein the premises are located may maintain an action 25
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in the name of the municipality or county to recover 1
such expense, and the same when recovered shall be paid 2
to the treasurer of the municipality or county . . . . 3
4
N.Y. Pub. Health § 1306(1). The district court “decline[d] 5
Plaintiff’s invitation to treat the crash itself and the 6
immediate aftermath as a public nuisance within the meaning 7
of New York law [because the County had] alleged neither a 8
continuing nor recurrent problem, or that permanent damage 9
from the crash required remediation beyond the clean up 10
itself.” County of Erie, 2012 WL 1029542, at *4. 11
We agree that this was the correct approach. “Nuisance 12
is a conscious and deliberate act involving the idea of 13
continuity or recurrence.” State v. Long Island Lighting 14
Co., 493 N.Y.S.2d 255, 258 (Nassau County Ct. 1985). 15
“Doubtless some degree of permanence is an essential element 16
of the conception of nuisance.” Ford v. Grand Union Co., 17
240 App. Div. 294, 296 (3d Dep’t 1934). Defendants’ brief 18
persuasively catalogs nuisance cases supporting this 19
concept; the cases refer to such conditions as the leaking 20
of various kinds of waste or other encroachments on 21
property. See Appellees’ Br. at 12-17. It is clear, 22
especially in the absence of any effective response from the 23
County, that an accidental airplane crash is entirely 24
13

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different from the conscious creation of a continuous or 1
recurring condition. 2
This is not to say that the conditions at the crash 3
site do not resemble the conditions that are subject to 4
public recovery under § 1306, or that those conditions could 5
not have become a nuisance. Rather, as the district court 6
correctly explained, recovery under § 1306 is limited to 7
recovering expenditures relating to continuing public 8
nuisances, where “the duty to prevent or abate a nuisance on 9
the property rests with the owner or the party that caused 10
the nuisance.” County of Erie, 2012 WL 1029542, at *4 11
(citing Broxmeyer v. United Capital Corp., 79 A.D.3d 780, 12
782 (2d Dep’t 2010)). In such cases, “[r]eimbursement is 13
not precluded because, in the interest of public health and 14
safety, the local government is performing not its own duty, 15
but the duty of another.” Id. When the government responds 16
to a catastrophic accident, however, it performs its own 17
duty of responding to a discrete public emergency – not a 18
duty on behalf of or in place of a third party. See Laratro 19
v. City of New York, 8 N.Y.3d 79, 81 (2006) (“Protecting 20
health and safety is one of municipal government’s most 21
important duties.”); id. at 82-83 (mentioning “the duty to 22
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provide police protection, fire protection or ambulance 1
service . . . that the municipality owes to the general 2
public”). 3
The County’s briefs on appeal do not seek to establish 4
that the crash was a “nuisance” within the meaning of the 5
statute. Instead, they attempt to distinguish “nuisance” 6
from “conditions detrimental to health” and argue that the 7
latter clause creates a separate basis for recovery. 8
Essentially, according to the County, because the response 9
to the plane crash included the removal of human remains and 10
other actions which, if left uncompleted, might cause health 11
concerns, its costs are recoverable. Nothing in the statute 12
or its context supports this reading. Article 13 of the New 13
York Health Law is entitled “Nuisances and Sanitation,” and 14
the various titles thereunder deal with such subjects as 15
“noxious weeds and growths,” “tenement house sanitation,” 16
“food handling,” “inactive hazardous waste disposal sites,” 17
and “control of lead poisoning.” See N.Y. Pub. Health Law 18
tit. II, III, VIII, X, & XII-A. Under New York law, “words 19
employed in a statute are construed in connection with, and 20
their meaning is ascertained by reference to[,] the words 21
and phrases with which they are associated.” N.Y. Stat. Law 22
15

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§ 239. Thus, although it may be possible for “conditions 1
detrimental to health” to exist absent a “nuisance,” 4 both 2
terms refer to the same types of conditions and 3
circumstances that are addressed by the concept of a 4
“nuisance” under Article 13 of the New York Health Law. The 5
County’s attempt to shoehorn the immediate results of a 6
catastrophic accident into this limited category on the 7
grounds that the bodies of those killed have become 8
“detrimental to health” is unpersuasive. 9
Also unpersuasive is the one case the County cites in 10
support of its preferred construction. The County argues 11
that the case of Town of Cheektowaga v. Saints Peter & Paul 12
Greek Russian Orthodox Church, 205 N.Y.S. 334 (N.Y. Sup. Ct. 13
1924), establishes that “New York decisional law has already 14
set forth that the obvious health hazards associated with 15
human remains are a matter of health safety.” Appellants’ 16
Br. at 21. Town of Cheektowaga concerned the defendant 17
church’s attempt to create a cemetery on land to which it 18
4For instance, public officials might abate certain
conditions that endanger the health of the occupants but
that do not interfere with the rights of the public or
adjacent property owners. This example illustrates that
although applications of § 1306 are at least limited to the
same types of conditions addressed by nuisance law, the
provision is not necessarily confined to the abatement of
conditions that meet the legal definition of a “nuisance.”
16

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had recently acquired title. The town brought an action to 1
restrain the church from doing so because of the land’s 2
proximity to drinking-water wells. The court granted the 3
request, noting that burial so close to the wells, given the 4
soil conditions of the area, “would certainly annoy, injure, 5
or endanger the comfort, repose, health, or safety of a 6
considerable number of persons.” Town of Cheektowaga, 205 7
N.Y.S. at 335. “Such act would be a nuisance.” Id. 8
In designating the proposed cemetery a “nuisance,” Town 9
of Cheektowaga directly contradicts the County’s contention 10
that the presence of human remains necessarily causes the 11
separate problem of “conditions detrimental to health” under 12
§ 1306. The cemetery was deemed a nuisance because it 13
threatened the water supply and in turn public health; the 14
recovery and cataloguing of human remains from an accident 15
site that are performed as part of the post-accident 16
investigation and clean up are not related to concerns of 17
groundwater pollution. We perceive no administrable 18
distinction, or one recognized under New York law, to treat 19
certain clean-up expenses (such as those relating to human 20
remains) differently from other public expenses (such as 21
overtime pay for police) where all of these expenses were 22
17

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incurred as part of a continuous response to the same public 1
emergency. 2
“Thus, the existence and remediation of public 3
nuisances ‘fall into [a] distinct, well-defined categor[y] 4
unrelated to the normal provision of police, fire, and 5
emergency services.’” County of Erie, 2012 WL 1029542, at 6
*4 (quoting City of Flagstaff, 719 F.2d at 324). To hold 7
otherwise would, as the district court noted, create an 8
exception that would swallow the rule of the free public 9
services doctrine. So too would permitting the County to 10
treat any emergency that creates any condition deemed 11
detrimental to health in some way as a basis to claim 12
reimbursement under § 1306. In other words, public services 13
provided in response to an emergency are just that – public 14
services – and therefore are not subject to reimbursement. 15
See Koch, 62 N.Y.2d at 560-61. 16
Conclusion 17
We have examined all of the County’s arguments on 18
appeal and find them to be without merit. For the foregoing 19
reasons, the judgment of the district court dismissing the 20
County’s complaint is AFFIRMED. 21
18

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