The Second Circuit Holds That County’s Emergency Response to Airplane Crash Is Not Subject to Reimbursement

The U.S. Court of Appeals for the Second Circuit recently affirmed the district court’s dismissal of the claims of Erie County, New York against Colgan Air, Pinnacle Airlines, and Continental Airlines, seeking to recover costs the County incurred responding to and cleaning up the February 12, 2009 crash of Continental Connection Flight 3407, operated by Colgan Air.¹

The County originally commenced its action against the airlines in the U.S. District Court for the Western District of New York, asserting liability based in negligence and public nuisance. The airlines moved to dismiss the County’s action in its entirety based on New York’s general rule barring recovery by a municipality for costs incurred in the performance of governmental functions, also known as the Free Public Services Doctrine. In response, the County argued that New York Public Health Law provides a statutory exception to the Doctrine. Specifically, §1306 of Public Health Law requires a landowner to reimburse a municipality for recovery of costs associated with abating “a nuisance or conditions detrimental to health.”

Judge Skretny of the Western District of New York issued a thorough and well-reasoned decision holding that the County failed to state a claim for which recovery of costs for police, fire, and emergency services could be granted; and further, that the County failed to plead sufficient factual allegations to sustain a cause of action for recovery of expenses incurred to abate a so-called nuisance. Accordingly, Judge Skretny granted the airlines’ motion to dismiss. The County appealed the dismissal.

On appeal, the Second Circuit noted that the Free Public Services Doctrine is a matter of local law and New York precedent has upheld the Doctrine as barring recovery by a municipality for costs associated with such events as a city-wide blackout, a nuclear accident, an oil spill, and the dumping of a large quantity of tires. Courts recognize that the public policy behind the Doctrine is that the cost of public services in responding to fire or safety hazards should be borne by the public as a whole, not the tortfeasor who may have created the hazard.

The Second Circuit then addressed “[t]he heart of the County’s theory on appeal,” i.e., that an exception to the Free Public Services Doctrine resides in either a general exception for public nuisance or a statutory exception under New York Public Health Law §1306. The Second Circuit, agreeing with Judge Skretny, declined to recognize a general exception to the Doctrine for public nuisance because the exception would swallow the rule.

As to Public Health Law §1306, the Second Circuit also agreed with Judge Skretny in declining to find the crash or its immediate aftermath to be a public nuisance within the meaning of New York law: a nuisance is a conscious and deliberate act involving continuity or recurrence and some degree of permanent harm.

The Second Circuit made clear that “an accidental airplane crash is entirely different” from the concept of nuisance. Unlike abating a nuisance, where a municipality performs the duty of the landowner in the interest of public safety and thus is entitled to reimbursement by that landowner, when responding to an emergency, a municipality performs its own duty and thus is not entitled to reimbursement.

Finally, the Second Circuit rejected the County’s argument seeking recovery of costs incurred abating “conditions detrimental to health.” The court interpreted the phrase “conditions detrimental to health” within the context of Article 13 of the New York Public Health Law, which deals with nuisances and sanitation, and found that “conditions detrimental to health” deals with the same kinds of circumstances addressed by nuisance. Ultimately, the Second Circuit was not persuaded by the County’s attempt “to shoehorn the immediate results of a catastrophic accident into this limited category.”

In affirming Judge Skretny’s dismissal of the action, the court concluded, “public services in response to an emergency are just that – public services – and therefore are not subject to reimbursement.”


¹ County of Erie, New York v. Colgan Air, Inc., Docket No. 12-1600-cv, slip op. at 1 (2d Cir. March 4, 2013) (Wesley, C.J.).