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In Re: Air Crash Near Clarence Center, New York, On February 12, 2009 v. Colgan Air

March 25, 2012

IN RE: AIR CRASH NEAR CLARENCE CENTER, NEW YORK, ON FEBRUARY 12, 2009,
PAUL BEITER AND MICHELE BEITER, IN THEIR INDIVIDUAL CAPACITIES, AND AS PARENTS AND NATURAL GUARDIANS OF ERIN BEITER, TESSA BEITER, AND ELLA BEITER, PLAINTIFFS,
v.
COLGAN AIR, INC., BOMBARDIER, INC.,
PINNACLE AIRLINES CORP., AND CONTINENTAL AIRLINES, INC., DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

This document relates to:

DECISION AND ORDER

I. INTRODUCTION

Presently before this Court is Defendants' Motion for Partial Summary Judgment relating to Plaintiffs' claims for infliction of emotional distress. (Docket No. 112.*fn1 ) 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.

II. BACKGROUND

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 emotional distress.

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.*fn2 ) 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; 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

A. 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). ...


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