     12-1600-cv
     County of Erie v. Colgan Air, Inc.

 1                  UNITED STATES COURT OF APPEALS
 2                      FOR THE SECOND CIRCUIT
 3
 4
 5                         August Term, 2012
 6
 7    (Argued: February 1, 2013            Decided: March 4, 2013)
 8
 9                       Docket No. 12-1600-cv
10
11
12                   COUNTY OF ERIE, NEW YORK,
13
14                                           Plaintiff-Appellant,
15
16                                -v.-
17
18      COLGAN AIR, INC., PINNACLE AIRLINES CORP., CONTINENTAL
19                          AIRLINES, INC.,
20
21                                          Defendants-Appellees.
22
23
24
25
26   Before:
27             WALKER, CABRANES, AND WESLEY, Circuit Judges
28
29
30
31        Plaintiff-Appellant County of Erie, New York seeks to
32   recover the costs of emergency and clean-up services it
33   incurred when responding to the crash of Continental
34   Connection Flight 3407 within its borders. The United
35   States District Court for the Western District of New York
36   (Skretny, C.J.) dismissed the complaint under Federal Rule
37   of Civil Procedure 12(b)(6), holding that the action was
38   barred under New York law by the state’s “free public
39   services” doctrine. We AFFIRM.
40
41
42
43
 1               JAMES J. DUGGAN, Duggan & Bentivogli LLP,
 2                    Williamsville, NY (Michelle Parker, Erie
 3                    County Attorney’s Office, Buffalo, NY, on the
 4                    brief), for Appellant.
 5
 6               DAVID J. HARRINGTON, Condon & Forsyth LLP, New
 7                    York, NY (Neil A. Goldberg, Goldberg Segalla
 8                    LLP, Buffalo, NY; Oliver K. Beiersdorf, Reed
 9                    Smith LLP, New York, NY; Patrick E. Bradley,
10                    Reed Smith LLP, Princeton, NJ, on the brief),
11                    for Appellees.
12
13               David A. Berg, Senior Vice President and General
14                    Counsel, Douglas Mullen, Assistant General
15                    Counsel, Airlines for America, Washington,
16                    D.C.; Mark E. McGrath, M. Roy Goldberg,
17                    Sheppard Mullin Richter & Hampton LLP, New
18                    York, NY, for Amicus Curiae Airlines for
19                    America in support of Appellees.
20
21
22
23   WESLEY, Circuit Judge:
24
25       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.    The United States District Court for the Western

33   District of New York (Skretny, C.J.) granted defendants’

34   motion to dismiss the complaint under Federal Rule of Civil



                                     2
 1   Procedure 12(b)(6).   County of Erie v. Colgan Air, Inc., No.

 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)).   The County appeals, and we affirm.

 8                              Background

 9       According to the amended complaint, Flight 3407

10   departed from Newark en route to Buffalo on February 12,

11   2009.   On descent, the flight crashed into a private

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.     The crash “caus[ed]

15   substantial damage to the neighboring properties, including

16   serious environmental clean-up expenses and damages.”     Joint

17   App’x 67.

18       The County filed suit on March 1, 2010.     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.     The

 3   County asserted in the amended complaint that it

 4       has sustained unnecessary and unprecedented property
 5       and financial damage as a direct and proximate result
 6       of Defendants’ wanton, reckless, negligent, and willful
 7       conduct to the extent Erie County was required to
 8       expend resources in excess of the normal provisions of
 9       police, fire, and emergency services as a result of the
10       crash of Flight 3407. Specifically, [the County] was
11       forced to expend unprecedented monetary resources in
12       order to provide public services including: Overtime
13       pay for police and emergency personnel; the clean-up
14       and removal of human remains; the clean-up and removal
15       of chemical substances originating from the Aircraft[;]
16       the clean-up and removal of the Aircraft itself; the
17       provision of emergency and counseling services to the
18       surviving members of the decedents’ families; and the
19       purchase, lease, or rent of equipment necessary to
20       respond to the crash of Flight 3407.
21
22   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.”    Chase Grp. Alliance LLC v. City of N.Y. Dep’t of

 3   Fin., 620 F.3d 146, 150 (2d Cir. 2010) (internal quotation

 4   marks omitted).   “To survive a motion to dismiss, a

 5   complaint must contain sufficient factual matter, accepted

 6   as true, to state a claim to relief that is plausible on its

 7   face.”    Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

 8   (internal quotation marks omitted).    “A claim has facial

 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.”    Id.

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    Iowa Pub.

15   Employees’ Ret. Sys. v. MF Global, Ltd., 620 F.3d 137, 145

16   (2d Cir. 2010) (alteration and quotation marks omitted).

17       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.    The

20   County’s claims arise under New York law, and New York law

         2
          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.   See Ferri v. Ackerman, 444 U.S. 193, 198

 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       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).   In Koch, New York City, after a 25-hour citywide

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.”    Koch, 62

18   N.Y.2d at 560.   The Court of Appeals rejected the city’s

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.     Id.


                                   6
 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.”   Id. at 560-61.

 6       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.’”    See County

11   of Erie, 2012 WL 1029542, at *2    (quoting City of Flagstaff

12   v. Atchison, Topeka and Santa Fe Ry. Co., 719 F.2d 322, 323

13   (9th Cir. 1983)).   For example, in District of Columbia v.

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.    Citing Koch

18   and related cases, the Air Florida court rejected the city’s

19   claim for reimbursement for emergency services, noting:

20       Where emergency services are provided by the government
21       and the costs are spread by taxes, the tortfeasor does
22       not anticipate a demand for reimbursement. Although
23       settled expectations must sometimes be disregarded when
24       new tort doctrines are needed to remedy an inequitable
25       allocation of risks and costs, where a generally fair

                                    7
 1       system for spreading the costs of accidents is already
 2       in effect – as it is here through assessing taxpayers
 3       the expense of emergency services – we do not find the
 4       argument for judicial adjustment of liabilities to be
 5       compelling.
 6
 7       We are especially reluctant to reallocate risks where a
 8       governmental entity is the injured party. It is
 9       critically important to recognize that the government’s
10       decision to provide tax-supported services is a
11       legislative policy determination. It is not the place
12       of the courts to modify such decisions. Furthermore,
13       it is within the power of the government to protect
14       itself from extraordinary emergency expenses by passing
15       statutes or regulations that permit recovery from
16       negligent parties.
17
18   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.   Some of

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.   See Bank of N.Y. v. Amoco Oil Co., 35 F.3d

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.”).

                                   8
 1       Moreover, neither of the County’s arguments on this

 2   point is persuasive.    First, the County contends that

 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.”    Appellants’ Reply at 8; see

 8   also, e.g., In re Sept. 11 Litig., 594 F. Supp. 2d 374, 380

 9   (S.D.N.Y. 2009).   These cases are irrelevant.   The scope of

10   the defendants’ duties is not at issue.    The only question

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       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.     See Koch, 62 N.Y.2d at 560-61; Austin v.

 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.

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.     See, e.g.,

14   Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 77-79 (2003)

15   (discussing legislative reforms).    General Obligations Law §

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



     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.     However, this law does not enable a local

 2   government entity to, for example, recover police or

 3   firefighters’ overtime costs.     Nor does it alter the free

 4   public services doctrine.     If anything, the statute

 5   militates against the County’s argument, since it does not

 6   provide for a governmental right of action to recover public

 7   expenses.     See generally N.Y. Stat. Law, § 240 (“The maxim

 8   expressio unius est exclusio alterius is applied in the

 9   construction of the statutes . . . .”).

10       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.        The Court of Appeals noted

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.     In Koch, however, “[n]o statute

19   [was] called [to the court’s] attention which would accord a

20   comparable benefit to plaintiffs in the circumstances of

21   this case.”     Id.   The County asserted below that either of

22   two exceptions to the doctrine should apply in this case: a


                                      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)).     Thus, “recovery for a public

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).     We agree with the district court, and the County does

16   not appear to pursue this argument on appeal.

17       The County does contend, however, that § 1306 provides

18   a statutory exception.     The relevant section of that statute

19   states:

20       The expense of suppression or removal of a nuisance or
21       conditions detrimental to health shall be paid by the
22       owner or occupant of the premises, or by the person who
23       caused or maintained such nuisance or other matters,
24       and the board of health of the municipality or county
25       wherein the premises are located may maintain an action

                                     12
 1       in the name of the municipality or county to recover
 2       such expense, and the same when recovered shall be paid
 3       to the treasurer of the municipality or county . . . .
 4
 5   N.Y. Pub. Health § 1306(1).    The district court “decline[d]

 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

10   from the crash required remediation beyond the clean up

11   itself.”    County of Erie, 2012 WL 1029542, at *4.

12       We agree that this was the correct approach.      “Nuisance

13   is a conscious and deliberate act involving the idea of

14   continuity or recurrence.”    State v. Long Island Lighting

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.”     Ford v. Grand Union Co.,

18   240 App. Div. 294, 296 (3d Dep’t 1934).     Defendants’ brief

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.    See Appellees’ Br. at 12-17.   It is clear,

23   especially in the absence of any effective response from the

24   County, that an accidental airplane crash is entirely


                                    13
 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.     Rather, as the district court

 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

10   the property rests with the owner or the party that caused

11   the nuisance.”   County of Erie, 2012 WL 1029542, at *4

12   (citing Broxmeyer v. United Capital Corp., 79 A.D.3d 780,

13   782 (2d Dep’t 2010)).   In such cases, “[r]eimbursement is

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.”     Id.    When the government responds

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.       See Laratro

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


                                     14
 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.    Instead, they attempt to distinguish “nuisance”

 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

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.”     N.Y. Stat. Law



                                    15
 1   § 239.   Thus, although it may be possible for “conditions

 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.        The

 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       Also unpersuasive is the one case the County cites in

11   support of its preferred construction.     The County argues

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.”     Appellants’

17   Br. at 21.   Town of Cheektowaga concerned the defendant

18   church’s attempt to create a cemetery on land to which it

         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.   The town brought an action to

 2   restrain the church from doing so because of the land’s

 3   proximity to drinking-water wells.    The court granted the

 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.”     Town of Cheektowaga, 205

 8   N.Y.S. at 335.   “Such act would be a nuisance.”    Id.

 9       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.   The cemetery was deemed a nuisance because it

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.   We perceive no administrable

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


                                    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.’”   County of Erie, 2012 WL 1029542, at

 7   *4   (quoting City of Flagstaff, 719 F.2d at 324).    To hold

 8   otherwise would, as the district court noted, create an

 9   exception that would swallow the rule of the free public

10   services doctrine.   So too would permitting the County to

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.   In other words, public services

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                             Conclusion

18        We have examined all of the County’s arguments on

19   appeal and find them to be without merit.   For the foregoing

20   reasons, the judgment of the district court dismissing the

21   County’s complaint is AFFIRMED.




                                   18
