COUNTY OF ERIE, NEW YORK, Plaintiff-Appellant, v. COLGAN AIR, INC., Pinnacle Airlines Corp., Continental Airlines, Inc., Defendants-Appellees.
Docket No. 12-1600-cv.
United States Court of Appeals, Second Circuit.
Argued: Feb. 1, 2013. Decided: March 4, 2013.
711 F.3d 147
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.
Before: JOHN M. WALKER, JR., CABRANES, AND WESLEY, Circuit Judges.
WESLEY, Circuit Judge:
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
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 Coun
The County filed suit on March 1, 2010. It later filed an amended complaint asserting five causes of action: negligence, res ipsa loquitur negligence,1 public nuisance, liability under
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
Having considered the arguments de novo, we affirm the judgment of the district court for substantially the reasons
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.
Like the district court, we conclude that, absent an exception, the free public
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.
Second, we disagree with the County‘s assertion that New York has implicitly abandoned the free public services doctrine by allowing individual officers to recover for personal injuries sustained in the line of duty—contrary to the common-law “fireman‘s rule,” which previously barred that type of suit.3 Though the free public services doctrine and fireman‘s rule are similar in some respects, the cases cited by the County do not suggest that the free public services doctrine cannot stand on its own without the fireman‘s rule. See Koch, 62 N.Y.2d at 560-61; Austin v. City of Buffalo, 182 A.D.2d 1143, 1144, 586 N.Y.S.2d 841 (4th Dep‘t 1992). Moreover, to the extent that New York has abandoned the fireman‘s rule, it has done so through statutes that provide for individual rights of action for injuries sustained by public officials.
New York‘s legislature, through enactments in 1935, 1989, 1992, and 1996, successively loosened the restrictions on the ability of firefighters and police officers to seek redress for their injuries from tortfeasors. See, e.g., Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 77-79, 760 N.Y.S.2d 397, 790 N.E.2d 772 (2003) (discussing legislative reforms).
The heart of the County‘s theory on appeal is that its response to Flight 3407 falls within an exception to the free public services doctrine. The Court of Appeals noted in Koch that “certain exceptions to the general rule have been created by statutory enactment to give a municipality a claim for expenditures for fire fighting and other police powers,” such as claims for injuries to first responders or against municipalities that called for outside assistance. Koch, 62 N.Y.2d at 561. In Koch, however, “[n]o statute [was] called [to the court‘s] attention which would accord a comparable benefit to plaintiffs in the circumstances of this case.” Id. The County asserted below that either of two exceptions to the doctrine should apply in this case: a general exception for public nuisances, or a statutory exception under
The district court rejected both of these contentions. First, it noted that there could not, strictly speaking, be a general “public nuisance exception” because “it would be the exception that swallows the rule, since many expenditures for public services could be re-characterized by skillful litigants as expenses incurred in abating a public nuisance.” County of Erie, 2012 WL 1029542, at *4 (quoting Walker County v. Tri-State Crematory, 284 Ga.App. 34, 643 S.E.2d 324, 328 (2007)). Thus, “recovery for a public nuisance is a separate cause of action ‘unrelated to the normal provision of police, fire, and emergency services.‘” Id. (quoting City of Flagstaff, 719 F.2d at 324). We agree with the district court, and the County does not appear to pursue this argument on appeal.
The County does contend, however, that
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 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....
N.Y. Pub. Health § 1306(1) .
The district court “decline[d] Plaintiff‘s invitation to treat the crash itself and the immediate aftermath as a public nuisance within the meaning of New York law [because the County had] alleged neither a continuing nor recurrent problem, or that permanent damage from the crash required remediation beyond the clean up itself.” County of Erie, 2012 WL 1029542, at *4.
We agree that this was the correct approach. “Nuisance is a conscious and deliberate act involving the idea of continuity or recurrence.” State v. Long Island Lighting Co., 129 Misc. 2d 371, 493 N.Y.S.2d 255, 258 (Nassau County Ct. 1985). “Doubtless some degree of permanence is an essential element of the conception of nuisance.” Ford v. Grand Union Co., 240 App.Div. 294, 296, 270 N.Y.S. 162 (3d Dep‘t 1934). Defendants’ brief persuasively catalogs nuisance cases supporting this concept; the cases refer to such conditions as the leaking of various kinds of waste or other encroachments on property. See Appellees’ Br. at 12-17. It is clear, especially in the absence of any effective response from the County, that an accidental airplane crash is entirely dif
This is not to say that the conditions at the crash site do not resemble the conditions that are subject to public recovery under
The County‘s briefs on appeal do not seek to establish that the crash was a “nuisance” within the meaning of the statute. Instead, they attempt to distinguish “nuisance” from “conditions detrimental to health” and argue that the latter clause creates a separate basis for recovery. Essentially, according to the County, because the response to the plane crash included the removal of human remains and other actions which, if left uncompleted, might cause health concerns, its costs are recoverable. Nothing in the statute or its context supports this reading. Article 13 of the New York Health Law is entitled “Nuisances and Sanitation,” and the various titles thereunder deal with such subjects as “noxious weeds and growths,” “tenement house sanitation,” “food handling,” “inactive hazardous waste disposal sites,” and “control of lead poisoning.” See
Also unpersuasive is the one case the County cites in support of its preferred construction. The County argues that the case of Town of Cheektowaga v. Saints Peter & Paul Greek Russian Orthodox Church, 123 Misc. 458, 205 N.Y.S. 334 (N.Y. Sup. Ct. 1924), establishes that “New
In designating the proposed cemetery a “nuisance,” Town of Cheektowaga directly contradicts the County‘s contention that the presence of human remains necessarily causes the separate problem of “conditions detrimental to health” under
“Thus, the existence and remediation of public nuisances ‘fall into [a] distinct, well-defined categor[y] unrelated to the normal provision of police, fire, and emergency services.‘” County of Erie, 2012 WL 1029542, at *4 (quoting City of Flagstaff, 719 F.2d at 324). To hold otherwise would, as the district court noted, create an exception that would swallow the rule of the free public services doctrine. So too would permitting the County to treat any emergency that creates any condition deemed detrimental to health in some way as a basis to claim reimbursement under
Conclusion
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.
RICHARD C. WESLEY
UNITED STATES CIRCUIT JUDGE