Date: 03-04-2013

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Description: After the February 12, 2009 crash of Continental Connection Flight 3407 on approach to Buffalo-Niagara International Airport, plaintiff-appellant County of Erie, New York (“the County”) sued defendants-appellees Colgan Air, Inc., Pinnacle Airlines Corp., and Continental Airlines, Inc. (collectively “defendants”) to recover its expenditures in responding to, and cleaning up after, the accident. The United States District Court for the Western District of New York (Skretny, C.J.) granted defendants’ motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6).

The court found the County’s claims barred by New York law on the ground that “‘public expenditures made in the performance of governmental functions are not recoverable.’” Id. (quoting Koch v. Consolidated Edison Co. of N.Y. , 62 N.Y.2d 548, 560 (1984)). The County appeals, and we affirm.

Background

According to the amended complaint, Flight 3407 departed from Newark en route to Buffalo on February 12, 2009.

On descent, the flight crashed into a private residence in Clarence Center, Erie County, approximately five miles from the airport, killing all passengers and crew as well as one person in the house. The crash “caus[ed] substantial damage to the neighboring properties, including serious environmental clean-up expenses and damages.” Joint App’x 67.

The County filed suit on March 1, 2010. It later filed an amended complaint asserting five causes of action: negligence, res ipsa loquitur negligence, public nuisance, liability under New York Public Health Law § 1306, and liability under New York General Business Law § 251. The County asserted in the amended complaint that it 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.

Discussion

We review de novo a district court’s dismissal under Rule 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chase Grp. Alliance LLC v. City of N.Y. Dep’t of

Fin. , 620 F.3d 146, 150 (2d Cir. 2010) (internal quotation marks omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id.

Additionally, “[a]n affirmative defense may be raised by a pre-answer motion to dismiss under Rule 12(b)(6) if the defense appears on the face of the complaint.” Iowa Pub. Employees’ Ret. Sys. v. MF Global, Ltd. , 620 F.3d 137, 145 (2d Cir. 2010) (alteration and quotation marks omitted).

Having considered the arguments de novo , we affirm the judgment of the district court for substantially the reasons stated in its well-reasoned decision and order. The County’s claims arise under New York law, and New York law therefore provides the elements of, and defenses to, those causes of action.

See Ferri v. Ackerman , 444 U.S. 193, 198 (1979) (“[W]hen state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless, of course, the state rule is in conflict with federal law.”).

As the district court explained, New York’s “‘general rule is that public expenditures made in the performance of governmental functions are not recoverable.’” County of Erie, 2012 WL 1029542, at *2 (quoting Koch, 62 N.Y.2d at 560). In Koch, New York City, after a 25-hour citywide blackout caused by Con Edison’s negligence, attempted to recover from the company “costs incurred for wages, salaries, overtime and other benefits of police, fire, sanitation and hospital personnel from whom services (in addition to those which would normally have been rendered) were required in consequence of the blackout.” Koch, 62 N.Y.2d at 560. The Court of Appeals rejected the city’s claim as contrary to the “general rule” regarding non-recoverable public expenditures, citing cases holding similarly in the context of a nuclear accident, an oil spill, and the dumping of a large quantity of tires.

Id.

“The general rule is grounded in considerations of public policy, and we perceive nothing in the different and somewhat closer relationship between Con Edison and plaintiffs in this case which would warrant departure from that rule.”

Id. at 560-61.

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.’” See County of Erie, 2012 WL 1029542, at *2 (quoting City of Flagstaff v. Atchison, Topeka and Santa Fe Ry. Co. , 719 F.2d 322, 323 (9th Cir. 1983)). For example, in District of Columbia v. Air Florida, Inc. , 750 F.2d 1077 (D.C. Cir. 1984), the municipal authorities for the District of Columbia sued Air Florida airlines for the cost of responding to a plane that crashed into a bridge over the Potomac River. Citing Koch and related cases, the Air Florida court rejected the city’s claim for reimbursement for emergency services, noting:

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 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.

Like the district court, we conclude that, absent an exception, the free public services doctrine plainly bars the County’s claims to recover public expenditures. Some of the County’s arguments amount to an assertion that the doctrine lacks strong support in New York law and has been weakened by subsequent related developments, but these arguments are unavailing – most notably because the New York Court of Appeals has not suggested that the doctrine no longer applies. See Bank of N.Y. v. Amoco Oil Co. , 35 F.3d 643, 650 (2d Cir. 1994) (“In making [the] determination [of what New York law provides, we] of course will afford the greatest weight to the decisions of the New York Court of Appeals.”).

Moreover, neither of the County's arguments on this point is persuasive. First, the County contends that various cases arising from the terrorist attacks on September 11, 2001, have “expanded the duty of an airline to pay for consequences of a crash far greater in scope than the lives of the passengers and crew killed in a crash or the value of the airplane.” Appellants’ Reply at 8; see also, e.g., In re Sept. 11 Litig. , 594 F. Supp. 2d 374, 380 (S.D.N.Y. 2009). These cases are irrelevant. The scope of the defendants’ duties is not at issue. The only question presented is whether the free public services doctrine bars the County’s recovery, and the County has not pointed to any aspect of the September 11 decisions that bears on that issue.

Outcome: We have examined all of the County’s arguments on appeal and find them to be without merit. For the foregoing reasons, the judgment of the district court dismissing the County’s complaint is

AFFIRMED.

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