Beiter et al v. Colgan Air, Inc. et al - Document 246
DECISION AND ORDER - RELATES TO: 09-CV-4888S GRANTING Defendants' 112 Motion for Summary Judgment on Plaintiffs' Infliction of Emotional Distress claims in case 1:09-cv-00488-WMS; ( 528 in case 1:09-md-02085-WMS) Signed by William M. Skretny, Chief Judge on 3/25/2012. Associated Cases: 1:09-md-02085-WMS, 1:09-cv-00488-WMS(MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
IN RE: AIR CRASH NEAR CLARENCE CENTER,
NEW YORK, ON FEBRUARY 12, 2009,
DECISION AND ORDER
This document relates to:
PAUL BEITER and MICHELE BEITER, in their
individual capacities, and as Parents and Natural
Guardians of Erin Beiter, Tessa Beiter, and Ella
COLGAN AIR, INC., BOMBARDIER, INC.,
PINNACLE AIRLINES CORP., and CONTINENTAL
Presently before this Court is Defendants’ Motion for Partial Summary Judgment
relating to Plaintiffs’ claims for infliction of emotional distress. (Docket No. 112.1) Plaintiffs
owned and occupied the house directly across the street from where Continental
Connection Flight 3407 crashed on February 19, 2009, in Clarence Center, N.Y. The crash
killed all 49 people on board the aircraft and one person in the house and damaged
neighboring property. For the reasons explained below, Defendants’ motion is granted.
All docket num bers refer to 09-CV-488S.
By order entered October 6, 2009, the United States Judicial Panel on Multidistrict
Litigation transferred all then-pending actions concerning the crash of Flight 3407 to this
Court for coordinated or consolidated pretrial proceedings, pursuant to 28 U.S.C. § 1407.
In Re Air Crash Near Clarence Ctr., N.Y., on Feb. 12, 2009, 655 F. Supp. 2d 1355, 1356
(J.P.M.L. 2009). Subsequently-filed actions have also been transferred here.
Plaintiffs in this individual action bring suit on behalf of themselves and their minor
children, asserting claims for negligence, res ipsa loquitur, strict liability, injury to property,
trespass, nuisance, and infliction of emotional distress, based on the crash of Flight 3407.
(Amended Complaint, Docket No. 20.) At issue here are Plaintiffs’ claims for infliction of
Plaintiffs lived directly across the street from the site of the aircrash, which
destroyed the Wielinski family home at 6038 Long Street, in Clarence Center, N.Y.
(Defendants’ Rule 56.1 Statement of Undisputed Facts (“Defendants’ Statement”), Docket
No. 112-6, ¶ 3.2) At the time of the crash, Paul Beiter was in the kitchen of his home,
Michelle Beiter was in the living room, and the three children were in their beds on the
second floor. (Defendants’ Statement, ¶ 4.) Paul Beiter maintains that he saw Flight 3407
crash into the Wielinski home, and both Paul and Michelle heard and felt the impact of the
crash. (Plaintiffs’ Rule 56.1 Statement (“Plaintiffs’ Statement”), Docket No. 123-13, ¶ 5;
The parties’ Rule 56.1 Statem ents contain citations to the record evidence in this case. This
Court has confirm ed and is satisfied that the evidence cited supports the assertions therein. Cf. Holtz v.
Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001) (holding that factual allegations contained in a Rule
56.1 Statem ent that find no support in the record evidence m ust be disregarded and the record reviewed
independently). Consequently, this Court cites to the parties’ Rule 56.1 Statem ents.
Defendants’ Statement, ¶ 5.)
Plaintiffs maintain that they “feared for their lives and the lives of their [children].”
(Plaintiffs’ Statement, ¶ 6.) Along with alleging that their property was damaged and their
house was in need of repair, they also maintain that toxic fumes from the crash and
resulting fires filled the air and penetrated their home. (Plaintiffs’ Statement, ¶¶ 6, 7.)
Their property and home required professional remediation and cleaning. (Plaintiffs’
Statement, ¶¶ 7, 8.) Plaintiffs vacated their home for three weeks following the crash, but
they returned and continue to live there today. (Defendants’ Statement, ¶ 8.)
III. DISCUSSION AND ANALYSIS
Summary Judgment Standard
Summary judgment is appropriate if “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)(2). A fact is “material” if it “might affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). An issue of material fact is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.
In deciding a motion for summary judgment, the evidence and the inferences drawn
from the evidence must be "viewed in the light most favorable to the party opposing the
motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S. Ct.1598, 1609, 26
L. Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import of
evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.
1991). The function of the court is not “to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S.
at 249. “Assessments of credibility and choices between conflicting versions of the events
are matters for the jury, not for the court on summary judgment.” Rule v. Brine, Inc., 85
F.3d 1002, 1011 (2d Cir. 1996).
But a “mere scintilla of evidence” in favor of the nonmoving party will not defeat
summary judgment. Anderson, 477 U.S. at 252. A nonmoving party must do more than
cast a “metaphysical doubt” as to the material facts; it must “offer some hard evidence
showing that its version of the events is not wholly fanciful.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); D’Amico
v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998). That is, there must be evidence from
which the jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 252.
Defendants’ Motion for Partial Summary Judgment
Defendants seek summary judgment on Plaintiffs’ claims for infliction of emotional
distress, because under New York law, recovery of damages for purely emotional injuries
is prohibited, except for in limited circumstances. Plaintiffs maintain that Defendants’
motion is misplaced because Plaintiffs suffered physical as well as emotional injuries.
Alternatively, they argue that they are entitled to recover damages even in the absence of
physical injury because the facts here fall within the circumstances for which recovery for
purely emotional injuries is permitted.
Defendants’ motion is premised on there being no claim or evidence that Plaintiffs
suffered physical injury. Plaintiffs’ amended complaint does not allege any specific
physical injuries sustained as a result of crash Flight 3407. Instead, it includes general
references to Defendants causing Plaintiffs “physical, emotional, and property injuries.”
(See, e.g., Amended Complaint, ¶¶ 24, 25, 26, 34, 115.)
Plaintiffs did not disclose any specific physical injuries in their discovery responses
either. In response to Defendants’ request for all documents evidencing damages of
“medical and hospital costs and expenses” or “personal injuries (physical or mental),”
Plaintiffs responded only that they “continue to seek medical treatment for psychological
injuries.” (Harrington Affidavit, Exhibit D, Docket No. 112-5, p. 7.) Similarly, in response
to Defendants’ interrogatory requesting that each plaintiff describe their physical and
mental/emotional condition, Plaintiffs disclosed their primary doctors and post-accident
psychological treatment. (Harrington Affidavit, Exhibit C, Docket No. 112-4, p. 8.) The only
reference to possible physical injuries is Plaintiffs’ general statement that they “sustained
severe physical, mental and emotional damage.” (Id. p. 16.)
It was not until their response to Defendants’ instant motion that Plaintiffs submitted
affidavits from the adult plaintiffs indicating that they suffered “physical complaints” or
“physical symptoms.” (Affidavit of Paul Beiter, Docket No. 123-10, ¶¶ 34, 37; Affidavit of
Michele Beiter, Docket No. 123-7, ¶¶ 29, 31.) Both Paul and Michele Beiter claim that they
suffered headaches, eye irritation, sore throat, tiredness, sleeplessness, decreased
appetite, and overall nausea. (Id.)
Defendants urge this Court to disregard Plaintiffs’ affidavits under the principles
annunciated in Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.
1969). In Perma Research, the Second Circuit held that a party cannot create an issue of
fact sufficient to defeat summary judgment by submitting an affidavit that contradicts his
previous deposition testimony. Id.; see also Brown v. Henderson, 257 F.3d 246, 252 (2d
Cir. 2001) (“factual allegations that might otherwise defeat a motion for summary judgment
will not be permitted to do so when they are made for the first time in the plaintiff’s affidavit
opposing summary judgment and that affidavit contradicts her own prior deposition
testimony”); L.W. Matteson, Inc. v. Sevenson Envtl. Svcs., Inc., No. 10-CV-168S, 2011 WL
5597353, at *5 (W.D.N.Y. Nov. 17, 2011).
Here, however, Plaintiffs have not been deposed, and thus there is no deposition
testimony that their affidavits could contradict. Moreover, the affidavits do not actually
contradict Plaintiffs’ previous interrogatory responses. Although the affidavits contain
details that are lacking in the general references to physical injury included in Plaintiffs’
discovery responses, they are not contradictory or inconsistent, such that application of the
Perma Research principle is warranted: the discovery responses reference physical injuries
and the affidavits expound on them. Although Plaintiffs could better have responded to
Defendants’ discovery requests, this Court finds that application of the Perma Research
principles is unwarranted.
Even with the affidavits, however, this Court finds that Plaintiffs have failed to
present evidence from which a reasonable jury could find that they were physically injured
by the crash of Flight 3407.3
First, the ailments Plaintiffs complain of — headaches, eye irritation, sore throat,
tiredness, sleeplessness, decreased appetite, and overall nausea — are not “physical
No evidence has been subm itted that any of the infant plaintiffs suffered physical injuries.
injuries” as that term is commonly understood. An “injury” is “the damage or wound of
trauma.”4 Stedman’s Medical Dictionary 979 (Julie K. Stegman, publ., Lippincott Williams
& Wilkins 28th ed. 2006) (1911). There is no contention or evidence that Plaintiffs suffered
any trauma or wounds from the aircrash that could constitute a physical injury. In fact,
Plaintiffs themselves describe their conditions as “physical complaints,” “ailments,” and
“physical symptoms,” and “problems,” which fall short of physical injury.5 (Affidavit of Paul
Beiter, ¶¶ 34-38, 44, 50, 52; Affidavit of Michele Beiter, ¶¶ 29-32, 38, 39, 41.)
Second, there is insufficient objective evidence supporting Plaintiffs’ assertions that
they suffered from these “physical complaints.” The only document relied upon is a single
medical record from Paul Beiter’s primary care physician indicating that he complained of
sinus and throat issues eight days after the aircrash; there is no objective evidence
submitted in support of Michele Beiter’s claims. (Affidavit of Paul Beiter, Exhibit B.) No
other medical records support Plaintiffs’ claims that they were physically injured, and it
appears that Plaintiffs did not seek any medical attention for their physical complaints,
aside from Paul Beiter’s visit to his doctor, as described above.
Third, even assuming that Plaintiffs presented sufficient evidence of physical injury,
they have not presented any evidence of causation. Other than Plaintiffs’ subjective
“belief” that their complaints were either “associated,” “attributed to” or “caused by” the
The m edical dictionary Defendants rely on sim ilarly defines “injury” as “traum a or dam age to
som e part of the body.” Taber’s Cyclopedic Medical Dictionary 998 (Clayton L. Thom as, M.D., M.P.H.,
ed., F.A. Davis Com pany 18th ed. 1997) (1940).
Although Plaintiffs rely on Battalla v. New York for the proposition that residual physical
com plaints attendant to em otional traum a constitute physical injury, 176 N.E.2d 729, 729 (N.Y. 1961)
(referencing “residual physical m anifestations” without description), that was not the holding in that case,
which, in any event, involved recovery for em otional injury resulting from defendant’s breach of a direct
duty owed to the plaintiff, a circum stance not presented here. See Kennedy v. McKesson Co., 448 N.E.2d
1332, 1334 (N.Y. 1983) (describing Battalla).
aircrash, there is no evidence of causation. (Affidavit of Paul Beiter, ¶¶ 51, 52; Affidavit
of Michele Beiter, ¶¶ 38, 39, 41.) No objective evidence has been presented that the
common, temporary physical complaints alleged by Plaintiffs were caused by the aircrash.
Accordingly, there is insufficient evidence from which a reasonable finder of fact could find
in Plaintiffs’ favor on causation.
Consequently, Plaintiffs have failed to present sufficient evidence from which a
reasonable jury could find that they were physically injured by the crash of Flight 3407.
Their infliction of emotional distress claims must therefore be analyzed as seeking recovery
for purely emotional injury.
Recovery for Pure Emotional Injury Under New York Law
Recovery of damages for infliction of emotional injury is limited in New York to
circumstances where (1) a bystander in the “zone of danger” suffers emotional trauma as
a result of his observations, or (2) a defendant breaches a direct duty to a plaintiff, which
results in emotional injury to the plaintiff. See Tissenbaum v. Aerovias Nacionales De
Colombia, S.A., 885 F. Supp. 434, 438 (E.D.N.Y. 1995).
Under the “bystander rule,” damages are recoverable “when the plaintiff is
threatened with bodily harm as a result of defendant’s negligence and the plaintiff suffers
emotional injury ‘from viewing the death or serious physical injury of a member of his or her
immediate family.” Id. (citing Bovsun v. Sanperi, 461 N.E.2d 843, 847 (N.Y. 1984)).
In cases involving a direct duty, a plaintiff may recover if he can prove that the
defendant breached a specific duty it owed to him, which unreasonably endangered the
plaintiff’s own physical safety. Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996);
id. at 439 (citing Johnson v. Jamaica Hosp., 467 N.E.2d 502, 503 (N.Y. 1984)). “The duty
. . . must be specific to the plaintiff, and not some amorphous, free-floating duty to society.”
Mortise, 102 F.3d at 696.
Plaintiffs cannot recover for their purely emotional injuries under the “bystander rule”
because the undisputed evidence demonstrates that they cannot prove the required
elements of such a claim.
First, the undisputed evidence demonstrates that Plaintiffs were not threatened with
bodily injury or in the “zone of danger” during the aircrash. Rather, they were safely in their
home when Flight 3407 crashed. (Affidavit of Paul Beiter, ¶¶ 4-7, 11, 16; Affidavit of
Michele Beiter, ¶¶ 4-6, 11-12, 15.) Plaintiffs suffered no injuries in their house, and aside
from being able to smell fumes and feel heat from the explosion from inside their house,
Plaintiffs were safe. (Affidavit of Paul Beiter, ¶¶ 12, 13; Michele Beiter, ¶ 14.) Scared, but
safe. (Affidavit of Paul Beiter, ¶ 10; Affidavit of Michele Beiter, ¶ 11.) Only the exterior of
Plaintiffs’ house was damaged. That the Plaintiffs were not in the “zone of danger” is
further evidenced by the fact that Karen and Jill Wielinski fled to Plaintiffs home after Flight
3407 crashed into their house, neighbors congregated there, and emergency personnel
used it as a “command center.” (Affidavit of Paul Beiter, ¶¶ 17-18, 20; Affidavit of Michele
Beiter, ¶¶ 15-16.) Accordingly, Plaintiffs were not threatened with bodily harm and were
not bystanders in the “zone of danger.” See Morley v. Am. Airlines, Inc., 508 F. Supp. 2d
244, 247 (S.D.N.Y. 2007) (noting that under “bystander” theory, a plaintiff must
demonstrate that he was threatened with physical harm); Tissenbaum, 885 F. Supp. at 438
(similar); Zea v. Kolb, 204 A.D.2d 1019, 1019 (4th Dept. 1994) (mother not in “zone of
danger” when she was 12 to 15 feet away from where her daughter was struck by a car but
never threatened with bodily harm due to defendant’s negligence).
Second, as noted above, there is insufficient evidence from which a jury could find
that any of the plaintiffs suffered a physical injury, let alone a serious physical injury, from
the crash of Flight 3407. Thus, Plaintiffs cannot prove that any of them viewed “the death
or serious physical injury of a member of his or her immediate family.” Bovsun, 461 N.E.2d
Accordingly, Plaintiffs cannot recover for their emotional distress under the
“bystander” theory. See Mortise, 102 F.3d at 696 (rejecting plaintiff’s “bystander” claim as
“fatally deficient” because plaintiff’s “own physical safety was never threatened and she did
not see Mr. Mortise suffer a serious physical injury.”); Tissenbaum, 885 F. Supp. at 438 (no
recovery under “bystander” rule where no member of the plaintiff’s immediate family was
injured in the accident at issue).
Plaintiffs are also barred from recovering for their emotional injuries under a direct
duty theory because Defendants did not owe them a direct duty of care. “New York
recognizes claims for negligent infliction of emotional distress in instances in which the
plaintiff’s emotional injury results from ‘a breach of duty which ‘unreasonably (endangers)
the plaintiff’s physical safety.’‘” Tissenbaum, 885 F. Supp. at 438-39 (quoting Wilson v.
Consol. Rail Corp., 810 F Supp. 411, 416 (N.D.N.Y. 1993), in turn quoting Green v.
Leibowitz, 118 A.D.2d 756 (2d Dept 1986)). As a prerequisite to recovery, Plaintiffs must
prove that Defendants owed them a specific duty of care. Id. at 439. This they cannot do.
Three aircrash cases demonstrate that Defendants did not owe Plaintiffs a special
duty. Tissenbaum v. Aerovias Nacionales de Columbia involved plaintiffs who were
similarly situated to Plaintiffs here. The Tissenbaums were home the night that Avianca
Flight 52 crashed into their deck and backyard. Neither of them suffered any direct
physical injuries from the crash, but their home was used as a command center and their
lives were similarly disrupted. In rejecting the Tissenbaums’ claim that passenger airlines
owe a direct duty to non-passengers on the ground below an airplane’s flight path, the
court found that non-passengers “are not in the kind of implied contractual relationship
required to recover for negligently inflicted emotional distress . . . . [i]t is the passengers on
the airplane who share the type of relationship necessary to recover emotional damages,
not the people on the ground who had the unfortunate experience of being in the wrong
place at the wrong time.” Tissenbaum, 885 F. Supp. at 439.
In Hassanein v Avianca Airlines, another case arising out of the crash of Avianca
Flight 52, the plaintiff sought recovery for emotional damages that she incurred as a result
of participating in the rescue efforts after the crash. 872 F. Supp. 1183, 1185 (E.D.N.Y.
1995). The plaintiff lived 50 to 100 yards from the crash site and left her home to go to the
scene after hearing screams and babies crying. The plaintiff was not physically injured but
she suffered emotional injuries.
Noting that New York courts “have held strong
reservations against compensating plaintiffs who claim purely emotional injuries as a result
of witnessing injuries to others,” the court found that in the absence of physical injuries
caused by the aircrash, the plaintiff could not recover for her emotional injuries.
Hassanein, 872 F. Supp. at 1188 (citing Tobin v. Grossman, 249 N.E.2d 419 (N.Y. 1969)).
More recently, in Morley v. Am. Airlines, Inc., the court relied on Tissenbaum and
Hassanein in rejecting the plaintiff’s claim for emotional damages. Morley involved the
crash of American Airlines Flight 587 in Belle Harbor, N.Y., in which 265 people were killed.
The 3-year-old plaintiff, Michael Morley, Jr., was at home with his grandmother when they
heard a loud explosion and their house caught fire. Morley and his grandmother fled to the
street, where they watched the house burn down. Morley was not physically injured, but
he suffered post-traumatic nightmares and fears related to the fire and underwent 14
months of psychotherapy. Relying on Tissenbaum and Hassanein, the Morley court
rejected the plaintiff’s contention that the airline owed him a direct duty. 508 F. Supp. 2d
Morley also rejected one of the arguments that Plaintiffs advance here — that the
decision in In re: September 11 Litigation provides a basis for finding that airlines owe nonpassengers a specific duty. 280 F. Supp. 2d 279 (S.D.N.Y. 2003). In that case, the court
found that the airline and security screening company defendants owed a duty to those
plaintiffs who were physically injured on the ground. See In Re: Sept. 11 Litig, 280 F.
Supp. 2d at 295. The Morley court specifically noted that In Re: September 11 Litigation
did not address whether airlines owe a duty to non-passengers who are not physically
injured but who suffer emotional distress. The existence of that duty is addressed — and
rejected — in Tissenbaum and Hassanein. The court therefore dismissed the plaintiff’s
claim for negligent infliction of emotional distress for lack of direct duty. Morley, 508 F.
Supp. at 249. And further, even assuming the validity of the duty described in In re:
September 11 Litigation, it is triggered only when the non-passenger suffers a physical
injury, which, as described above, there is insufficient evidence of in this case. Id. at 248
(“That Judge Hellerstein cited both Tissenbaum and Hassanein with approval in the
September 11 case further supports the notion that he did not intend to extend air carriers’
duties to even those non-passengers who suffered no physical injuries.”).
Plaintiffs also argue that New York General Business Law (“NY GBL”) §§ 245 and
251 establish that Defendants owed them a duty. NY GBL § 245 sets air traffic rules that
govern the operation and use of aircraft in New York. Section 245 (1) prohibits the
operation of aircraft “in a careless or reckless manner so as to endanger the life or property
of others.” Other provisions govern minimum safe altitudes, acrobatic flying, dropping
objects, water operations, and the like. See NY GBL § 245 (2)-(11). Section 251 governs
the liability of aircraft owners and makes them liable and responsible for death or injuries
to person or property sustained in or above New York due to the use or operation of the
aircraft in any case where the user or operator of the aircraft would be liable for such death
or injuries. This provision is “intended to ensure that victims of private, general aviation
aircraft accidents have recourse to a financially responsible defendant — the owner of the
aircraft — when a non-owner pilot crashes the aircraft.” See N. Am. Airlines, Inc. v. Virgin
Atl. Airways, Ltd., No. 05-CV-150(JG), 2006 WL 3782862, at *6 (E.D.N.Y. Dec. 22, 2006).
Contrary to Plaintiffs’ argument, neither of these statutes impose a direct duty owed
by Defendants to Plaintiffs. The law is clear that to recover for purely emotional injuries,
Plaintiffs must prove that the Defendants breached a specific duty owed to them: “[t]he
duty . . . must be specific to the plaintiff, and not some amorphous, free-floating duty to
society.” Mortise, 102 F.3d at 696. NY GBL §§ 245 and 251 do not impose duties specific
For the reasons stated above, this Court finds that Defendants are entitled to
summary judgment on Plaintiffs’ infliction of emotional distress claims because Plaintiffs
have not come forward with sufficient evidence of physical injury and because the
circumstances of this case do not fall into either of the two categories under New York law
that would permit recovery for purely emotional injuries. Defendants’ motion will therefore
IT HEREBY IS ORDERED, that Defendants’ Motion for Partial Summary Judgment
on Plaintiffs’ Infliction of Emotional Distress claims (Docket No. 112) is GRANTED.
Dated: March 25, 2012
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Court