County of Erie, New York v. Colgan Air, Inc., No. 12-1600 (2d Cir. 2013)
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The County sued defendants to recover its expenditures in responding to, and cleaning up after, the 2009 crash of Continental Connection Flight 3407. The district court granted defendants' motion to dismiss the complaint under Rule 12(b)(6), finding that the County's claims were barred by New York law. The court affirmed the district court's judgment, concluding that public services provided in response to an emergency were not subject to reimbursement.
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12-1600-cv County of Erie v. Colgan Air, Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: February 1, 2013 Decided: March 4, 2013) Docket No. 12-1600-cv COUNTY OF ERIE, NEW YORK, Plaintiff-Appellant, -v.COLGAN AIR, INC., PINNACLE AIRLINES CORP., CONTINENTAL AIRLINES, INC., Defendants-Appellees. Before: WALKER, CABRANES, AND WESLEY, Circuit Judges Plaintiff-Appellant County of Erie, New York seeks to recover the costs of emergency and clean-up services it incurred when responding to the crash of Continental Connection Flight 3407 within its borders. The United States District Court for the Western District of New York (Skretny, C.J.) dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6), holding that the action was barred under New York law by the state s free public services doctrine. We AFFIRM. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JAMES J. DUGGAN, Duggan & Bentivogli LLP, Williamsville, NY (Michelle Parker, Erie County Attorney s Office, Buffalo, NY, on the brief), for Appellant. DAVID J. HARRINGTON, Condon & Forsyth LLP, New York, NY (Neil A. Goldberg, Goldberg Segalla LLP, Buffalo, NY; Oliver K. Beiersdorf, Reed Smith LLP, New York, NY; Patrick E. Bradley, Reed Smith LLP, Princeton, NJ, on the brief), for Appellees. David A. Berg, Senior Vice President and General Counsel, Douglas Mullen, Assistant General Counsel, Airlines for America, Washington, D.C.; Mark E. McGrath, M. Roy Goldberg, Sheppard Mullin Richter & Hampton LLP, New York, NY, for Amicus Curiae Airlines for America in support of Appellees. WESLEY, Circuit Judge: After the February 12, 2009 crash of Continental 26 Connection Flight 3407 on approach to Buffalo-Niagara 27 International Airport, plaintiff-appellant County of Erie, 28 New York ( the County ) sued defendants-appellees Colgan 29 Air, Inc., Pinnacle Airlines Corp., and Continental 30 Airlines, Inc. (collectively defendants ) to recover its 31 expenditures in responding to, and cleaning up after, the 32 accident. 33 District of New York (Skretny, C.J.) granted defendants 34 motion to dismiss the complaint under Federal Rule of Civil The United States District Court for the Western 2 1 Procedure 12(b)(6). 2 10-CV-157S, 2012 WL 1029542, at *2 (W.D.N.Y. Mar. 26, 2012). 3 The court found the County s claims barred by New York law 4 on the ground that public expenditures made in the 5 performance of governmental functions are not recoverable. 6 Id. (quoting Koch v. Consolidated Edison Co. of N.Y., 62 7 N.Y.2d 548, 560 (1984)). 8 County of Erie v. Colgan Air, Inc., No. The County appeals, and we affirm. Background 9 According to the amended complaint, Flight 3407 10 departed from Newark en route to Buffalo on February 12, 11 2009. 12 residence in Clarence Center, Erie County, approximately 13 five miles from the airport, killing all passengers and crew 14 as well as one person in the house. 15 substantial damage to the neighboring properties, including 16 serious environmental clean-up expenses and damages. 17 App x 67. 18 On descent, the flight crashed into a private The crash caus[ed] The County filed suit on March 1, 2010. Joint It later filed 19 an amended complaint asserting five causes of action: 20 negligence, res ipsa loquitur negligence,1 public nuisance, 1 Although 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 1 liability under New York Public Health Law § 1306, and 2 liability under New York General Business Law § 251. 3 County asserted in the amended complaint that it 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 The has sustained unnecessary and unprecedented property and financial damage as a direct and proximate result of Defendants wanton, reckless, negligent, and willful conduct to the extent Erie County was required to expend resources in excess of the normal provisions of police, fire, and emergency services as a result of the crash of Flight 3407. Specifically, [the County] was forced to expend unprecedented monetary resources in order to provide public services including: Overtime pay for police and emergency personnel; the clean-up and removal of human remains; the clean-up and removal of chemical substances originating from the Aircraft[;] the clean-up and removal of the Aircraft itself; the provision of emergency and counseling services to the surviving members of the decedents families; and the purchase, lease, or rent of equipment necessary to respond to the crash of Flight 3407. Joint App x 71. 23 Discussion 24 We review de novo a district court s dismissal under 25 Rule 12(b)(6), construing the complaint liberally, 26 accepting all factual allegations in the complaint as true, 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 1 and drawing all reasonable inferences in the plaintiff s 2 favor. 3 Fin., 620 F.3d 146, 150 (2d Cir. 2010) (internal quotation 4 marks omitted). 5 complaint must contain sufficient factual matter, accepted 6 as true, to state a claim to relief that is plausible on its 7 face. 8 (internal quotation marks omitted). 9 plausibility when the plaintiff pleads factual content that 10 allows the court to draw the reasonable inference that the 11 defendant is liable for the misconduct alleged. 12 Additionally, [a]n affirmative defense may be raised by a 13 pre-answer motion to dismiss under Rule 12(b)(6) if the 14 defense appears on the face of the complaint. 2 15 Employees Ret. Sys. v. MF Global, Ltd., 620 F.3d 137, 145 16 (2d Cir. 2010) (alteration and quotation marks omitted). 17 Chase Grp. Alliance LLC v. City of N.Y. Dep t of To survive a motion to dismiss, a Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) A claim has facial Id. Iowa Pub. Having considered the arguments de novo, we affirm the 18 judgment of the district court for substantially the reasons 19 stated in its well-reasoned decision and order. 20 County s claims arise under New York law, and New York law 2 The For 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. 5 1 therefore provides the elements of, and defenses to, those 2 causes of action. 3 (1979) ( [W]hen state law creates a cause of action, the 4 State is free to define the defenses to that claim, 5 including the defense of immunity, unless, of course, the 6 state rule is in conflict with federal law. ). 7 See Ferri v. Ackerman, 444 U.S. 193, 198 As the district court explained, New York s general 8 rule is that public expenditures made in the performance of 9 governmental functions are not recoverable. County of 10 Erie, 2012 WL 1029542, at *2 (quoting Koch, 62 N.Y.2d at 11 560). 12 blackout caused by Con Edison s negligence, attempted to 13 recover from the company costs incurred for wages, 14 salaries, overtime and other benefits of police, fire, 15 sanitation and hospital personnel from whom services (in 16 addition to those which would normally have been rendered) 17 were required in consequence of the blackout. 18 N.Y.2d at 560. 19 claim as contrary to the general rule regarding non- 20 recoverable public expenditures, citing cases holding 21 similarly in the context of a nuclear accident, an oil 22 spill, and the dumping of a large quantity of tires. In Koch, New York City, after a 25-hour citywide Koch, 62 The Court of Appeals rejected the city s 6 Id. 1 The general rule is grounded in considerations of public 2 policy, and we perceive nothing in the different and 3 somewhat closer relationship between Con Edison and 4 plaintiffs in this case which would warrant departure from 5 that rule. 6 Id. at 560-61. Other courts have found that the doctrine is rooted in 7 a recognition that the cost of public services for 8 protection from fire or safety hazards is to be borne by the 9 public as a whole, not assessed against the tortfeasor whose 10 negligence creates the need for the service. 11 of Erie, 2012 WL 1029542, at *2 12 v. Atchison, Topeka and Santa Fe Ry. Co., 719 F.2d 322, 323 13 (9th Cir. 1983)). 14 Air Florida, Inc., 750 F.2d 1077 (D.C. Cir. 1984), the 15 municipal authorities for the District of Columbia sued Air 16 Florida airlines for the cost of responding to a plane that 17 crashed into a bridge over the Potomac River. 18 and related cases, the Air Florida court rejected the city s 19 claim for reimbursement for emergency services, noting: 20 21 22 23 24 25 See County (quoting City of Flagstaff For example, in District of Columbia v. Citing Koch Where emergency services are provided by the government and the costs are spread by taxes, the tortfeasor does not anticipate a demand for reimbursement. Although settled expectations must sometimes be disregarded when new tort doctrines are needed to remedy an inequitable allocation of risks and costs, where a generally fair 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 system for spreading the costs of accidents is already in effect as it is here through assessing taxpayers the expense of emergency services we do not find the argument for judicial adjustment of liabilities to be compelling. We are especially reluctant to reallocate risks where a governmental entity is the injured party. It is critically important to recognize that the government s decision to provide tax-supported services is a legislative policy determination. It is not the place of the courts to modify such decisions. Furthermore, it is within the power of the government to protect itself from extraordinary emergency expenses by passing statutes or regulations that permit recovery from negligent parties. Id. at 1080. 19 Like the district court, we conclude that, absent an 20 exception, the free public services doctrine plainly bars 21 the County s claims to recover public expenditures. 22 the County s arguments amount to an assertion that the 23 doctrine lacks strong support in New York law and has been 24 weakened by subsequent related developments, but these 25 arguments are unavailing most notably because the New York 26 Court of Appeals has not suggested that the doctrine no 27 longer applies. 28 643, 650 (2d Cir. 1994) ( In making [the] determination [of 29 what New York law provides, we] of course will afford the 30 greatest weight to the decisions of the New York Court of 31 Appeals. ). Some of See Bank of N.Y. v. Amoco Oil Co., 35 F.3d 8 1 Moreover, neither of the County s arguments on this 2 point is persuasive. 3 various cases arising from the terrorist attacks on 4 September 11, 2001, have expanded the duty of an airline to 5 pay for consequences of a crash far greater in scope than 6 the lives of the passengers and crew killed in a crash or 7 the value of the airplane. 8 also, e.g., In re Sept. 11 Litig., 594 F. Supp. 2d 374, 380 9 (S.D.N.Y. 2009). First, the County contends that Appellants Reply at 8; see These cases are irrelevant. The scope of 10 the defendants duties is not at issue. 11 presented is whether the free public services doctrine bars 12 the County s recovery, and the County has not pointed to any 13 aspect of the September 11 decisions that bears on that 14 issue. 15 The only question Second, we disagree with the County s assertion that 16 New York has implicitly abandoned the free public services 17 doctrine by allowing individual officers to recover for 18 personal injuries sustained in the line of duty contrary 19 to the common-law fireman s rule, which previously barred 20 that type of suit.3 Though the free public services 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 1 doctrine and fireman s rule are similar in some respects, 2 the cases cited by the County do not suggest that the free 3 public services doctrine cannot stand on its own without the 4 fireman s rule. 5 City of Buffalo, 182 A.D.2d 1143, 1144 (4th Dep t 1992). 6 Moreover, to the extent that New York has abandoned the 7 fireman s rule, it has done so through statutes that provide 8 for individual rights of action for injuries sustained by 9 public officials. See Koch, 62 N.Y.2d at 560-61; Austin v. 10 New York s legislature, through enactments in 1935, 11 1989, 1992, and 1996, successively loosened the restrictions 12 on the ability of firefighters and police officers to seek 13 redress for their injuries from tortfeasors. 14 Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 77-79 (2003) 15 (discussing legislative reforms). 16 11-106 (L. 1996, ch. 703, § 5), to which the County points 17 in support of its argument here, permits police officers or 18 firefighters injured in the line of duty to recover damages 19 from the person or entity whose negligence caused the See, e.g., General Obligations Law § 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 1 injury. 2 government entity to, for example, recover police or 3 firefighters overtime costs. 4 public services doctrine. 5 militates against the County s argument, since it does not 6 provide for a governmental right of action to recover public 7 expenses. 8 expressio unius est exclusio alterius is applied in the 9 construction of the statutes . . . . ). 10 However, this law does not enable a local Nor does it alter the free If anything, the statute See generally N.Y. Stat. Law, § 240 ( The maxim The heart of the County s theory on appeal is that its 11 response to Flight 3407 falls within an exception to the 12 free public services doctrine. 13 in Koch that certain exceptions to the general rule have 14 been created by statutory enactment to give a municipality a 15 claim for expenditures for fire fighting and other police 16 powers, such as claims for injuries to first responders or 17 against municipalities that called for outside assistance. 18 Koch, 62 N.Y.2d at 561. 19 [was] called [to the court s] attention which would accord a 20 comparable benefit to plaintiffs in the circumstances of 21 this case. 22 two exceptions to the doctrine should apply in this case: a Id. The Court of Appeals noted In Koch, however, [n]o statute The County asserted below that either of 11 1 general exception for public nuisances, or a statutory 2 exception under New York Public Health Law § 1306. 3 The district court rejected both of these contentions. 4 First, it noted that there could not, strictly speaking, be 5 a general public nuisance exception because it would be 6 the exception that swallows the rule, since many 7 expenditures for public services could be re-characterized 8 by skillful litigants as expenses incurred in abating a 9 public nuisance. County of Erie, 2012 WL 1029542, at *4 10 (quoting Walker County v. Tri-State Crematory, 643 S.E.2d 11 324, 328 (Ga. App. 2007)). 12 nuisance is a separate cause of action . . . unrelated to 13 the normal provision of police, fire, and emergency 14 services. Id. (quoting City of Flagstaff, 719 F.2d at 15 324). 16 not appear to pursue this argument on appeal. 17 Thus, recovery for a public We agree with the district court, and the County does The County does contend, however, that § 1306 provides 18 a statutory exception. 19 states: 20 21 22 23 24 25 The relevant section of that statute The expense of suppression or removal of a nuisance or conditions detrimental to health shall be paid by the owner or occupant of the premises, or by the person who caused or maintained such nuisance or other matters, and the board of health of the municipality or county wherein the premises are located may maintain an action 12 1 2 3 4 5 N.Y. Pub. Health § 1306(1). 6 Plaintiff s invitation to treat the crash itself and the 7 immediate aftermath as a public nuisance within the meaning 8 of New York law [because the County had] alleged neither a 9 continuing nor recurrent problem, or that permanent damage in the name of the municipality or county to recover such expense, and the same when recovered shall be paid to the treasurer of the municipality or county . . . . The district court decline[d] 10 from the crash required remediation beyond the clean up 11 itself. 12 County of Erie, 2012 WL 1029542, at *4. We agree that this was the correct approach. Nuisance 13 is a conscious and deliberate act involving the idea of 14 continuity or recurrence. 15 Co., 493 N.Y.S.2d 255, 258 (Nassau County Ct. 1985). 16 Doubtless some degree of permanence is an essential element 17 of the conception of nuisance. 18 240 App. Div. 294, 296 (3d Dep t 1934). 19 persuasively catalogs nuisance cases supporting this 20 concept; the cases refer to such conditions as the leaking 21 of various kinds of waste or other encroachments on 22 property. 23 especially in the absence of any effective response from the 24 County, that an accidental airplane crash is entirely State v. Long Island Lighting Ford v. Grand Union Co., See Appellees Br. at 12-17. 13 Defendants brief It is clear, 1 different from the conscious creation of a continuous or 2 recurring condition. 3 This is not to say that the conditions at the crash 4 site do not resemble the conditions that are subject to 5 public recovery under § 1306, or that those conditions could 6 not have become a nuisance. 7 correctly explained, recovery under § 1306 is limited to 8 recovering expenditures relating to continuing public 9 nuisances, where the duty to prevent or abate a nuisance on Rather, as the district court 10 the property rests with the owner or the party that caused 11 the nuisance. 12 (citing Broxmeyer v. United Capital Corp., 79 A.D.3d 780, 13 782 (2d Dep t 2010)). 14 not precluded because, in the interest of public health and 15 safety, the local government is performing not its own duty, 16 but the duty of another. 17 to a catastrophic accident, however, it performs its own 18 duty of responding to a discrete public emergency not a 19 duty on behalf of or in place of a third party. 20 v. City of New York, 8 N.Y.3d 79, 81 (2006) ( Protecting 21 health and safety is one of municipal government s most 22 important duties. ); id. at 82-83 (mentioning the duty to County of Erie, 2012 WL 1029542, at *4 In such cases, [r]eimbursement is Id. 14 When the government responds See Laratro 1 provide police protection, fire protection or ambulance 2 service . . . that the municipality owes to the general 3 public ). 4 The County s briefs on appeal do not seek to establish 5 that the crash was a nuisance within the meaning of the 6 statute. 7 from conditions detrimental to health and argue that the 8 latter clause creates a separate basis for recovery. 9 Essentially, according to the County, because the response Instead, they attempt to distinguish nuisance 10 to the plane crash included the removal of human remains and 11 other actions which, if left uncompleted, might cause health 12 concerns, its costs are recoverable. Nothing in the statute 13 or its context supports this reading. Article 13 of the New 14 York Health Law is entitled Nuisances and Sanitation, and 15 the various titles thereunder deal with such subjects as 16 noxious weeds and growths, tenement house sanitation, 17 food handling, inactive hazardous waste disposal sites, 18 and control of lead poisoning. See N.Y. Pub. Health Law 19 tit. II, III, VIII, X, & XII-A. Under New York law, words 20 employed in a statute are construed in connection with, and 21 their meaning is ascertained by reference to[,] the words 22 and phrases with which they are associated. 15 N.Y. Stat. Law 1 § 239. 2 detrimental to health to exist absent a nuisance, 4 both 3 terms refer to the same types of conditions and 4 circumstances that are addressed by the concept of a 5 nuisance under Article 13 of the New York Health Law. 6 County s attempt to shoehorn the immediate results of a 7 catastrophic accident into this limited category on the 8 grounds that the bodies of those killed have become 9 detrimental to health is unpersuasive. 10 Thus, although it may be possible for conditions The Also unpersuasive is the one case the County cites in 11 support of its preferred construction. 12 that the case of Town of Cheektowaga v. Saints Peter & Paul 13 Greek Russian Orthodox Church, 205 N.Y.S. 334 (N.Y. Sup. Ct. 14 1924), establishes that New York decisional law has already 15 set forth that the obvious health hazards associated with 16 human remains are a matter of health safety. 17 Br. at 21. 18 church s attempt to create a cemetery on land to which it The County argues Appellants Town of Cheektowaga concerned the defendant 4 For 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 1 had recently acquired title. 2 restrain the church from doing so because of the land s 3 proximity to drinking-water wells. 4 request, noting that burial so close to the wells, given the 5 soil conditions of the area, would certainly annoy, injure, 6 or endanger the comfort, repose, health, or safety of a 7 considerable number of persons. 8 N.Y.S. at 335. 9 The town brought an action to The court granted the Town of Cheektowaga, 205 Such act would be a nuisance. Id. In designating the proposed cemetery a nuisance, Town 10 of Cheektowaga directly contradicts the County s contention 11 that the presence of human remains necessarily causes the 12 separate problem of conditions detrimental to health under 13 § 1306. 14 threatened the water supply and in turn public health; the 15 recovery and cataloguing of human remains from an accident 16 site that are performed as part of the post-accident 17 investigation and clean up are not related to concerns of 18 groundwater pollution. 19 distinction, or one recognized under New York law, to treat 20 certain clean-up expenses (such as those relating to human 21 remains) differently from other public expenses (such as 22 overtime pay for police) where all of these expenses were The cemetery was deemed a nuisance because it We perceive no administrable 17 1 incurred as part of a continuous response to the same public 2 emergency. 3 Thus, the existence and remediation of public 4 nuisances fall into [a] distinct, well-defined categor[y] 5 unrelated to the normal provision of police, fire, and 6 emergency services. 7 *4 8 otherwise would, as the district court noted, create an 9 exception that would swallow the rule of the free public County of Erie, 2012 WL 1029542, at (quoting City of Flagstaff, 719 F.2d at 324). To hold 10 services doctrine. 11 treat any emergency that creates any condition deemed 12 detrimental to health in some way as a basis to claim 13 reimbursement under § 1306. 14 provided in response to an emergency are just that public 15 services and therefore are not subject to reimbursement. 16 See Koch, 62 N.Y.2d at 560-61. 17 18 So too would permitting the County to In other words, public services Conclusion We have examined all of the County s arguments on 19 appeal and find them to be without merit. 20 reasons, the judgment of the district court dismissing the 21 County s complaint is AFFIRMED. 18 For the foregoing
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