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In re Air Crash Near Clarence Center

Supreme Court, Erie County

September 21, 2012

In the Matter of the Air Crash Near Clarence Center, New York On February 12, 2009

R. CHARLES MINER, ESQ., Smith Miner & O'Shea, LLP, KENNETH P. NOLAN, ESQ. Speiser, Krause, Nolan & Granito, TERRENCE M. CONNORS, ESQ. Connors & Vilardo, LLP, PHILIP L. RIMMLER, ESQ. Paul William Beltz, PC, KENNETH A. MANNING, ESQ. Phillips Lytle, LLP, HUGH M. RUSS, ESQ. Hodgson Russ, LLP, JUSTIN T. GREEN, ESQ. Kreindler & Kreindler, LLP, JAMES T. SCIME, ESQ. Lipsitz Green Scime Cambria, LLP, OLIVER K. BEIERSDORF, ESQ. Reed Smith, LLP, TERRANCE P. FLYNN, ESQ. Harris Beach, LLP, CHARLES H. SMITH, ESQ., Smith & Moore, PLLC, THOMAS J. DRURY, ESQ., Damon & Morey, LLP, Attorneys for Plaintiffs.

NEIL A. GOLDBERG, ESQ., Goldberg Segalla, LLP, DAVID J. HARRINGTON, ESQ., Condon & Forsyth, LLP, Attorneys for Defendants.

Hon. FREDERICK J. MARSHALL, Justice, Supreme Court

Defendants, Colgan Air, Inc. (hereinafter "Colgan") and Pinnacle Airlines Corp. (hereinafter "Pinnacle") have moved this Court for an order directing that plaintiffs' claims be subject to a federal standard of care. Colgan and Pinnacle take the position that the Federal Aviation Act of 1958 ("FAACT") and Federal Aviation Regulations ("FARS") promulgated thereto, preempt all state law negligence standards of care. On the other hand, plaintiffs argue that New York State's negligence standard of care should govern these cases. They say that if federal law preempts an ordinary negligence standard of care, their clients' claims of negligent training, hiring and retention would be effectively barred.

Plaintiffs' decedents were among fifty individuals who were tragically killed when Continental Connection Flight 3407 crashed in Clarence Center, New York. Plaintiffs' claims venture far beyond alleging that the pilot of the airplane, Captain Marvin Renslow, was negligent in his operation of the aircraft. Plaintiffs say that Colgan and Pinnacle were directly negligent in hiring, training and retaining Renslow, who they claim, had a history of failed flight tests and exhibited other unsafe tendencies as a pilot.

By applying the doctrine of implied preemption, plaintiffs say the Court will restrict plaintiffs to examining whether Renslow took and passed various flight tests, thereby satisfying certain discreet federal regulations. Escaping scrutiny would be the subjective conduct of Colgan and Pinnacle, to wit: allegedly ignoring the professional shortcomings of Renslow and thereafter negligently hiring and retaining him as a pilot - conduct which, they say, is not the subject of the FAACT or any of it's associated regulations.

The defendants counter that the law is clear. The FAACT and FARS impliedly preempt all state standards of care. In order to prevail, the plaintiffs, whose state remedies are expressly preserved under the FAACT, must still prove that defendants violated a federal standard of care as established by the FAACT and FARS.


The genesis of Congress' power to preempt state law lies in the United States Constitution which provides that the laws of the United States "shall be the supreme Law of the Land;... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." U.S. Const., Art. VI, cl. 2.

Federal preemption may be express or implied. Express preemption is not claimed in this case, but implied preemption is. Preemption of a state law may be implied "if that law actually conflicts with federal law", see Pacific Gas & Elec. Co. v State Energy Resources Conservation and Dev. Comm'n, 461 U.S. 190, 204, 2');">75 L.Ed. 2nd 752, 103 S.Ct. 1713 [1983], or if federal law so thoroughly occupies a legislative field "as to make reasonable the inference that Congress left no room for the States to supplement it." Fidelity Fed. Sav. & Loan Assn. v Dela Cuesta, 458 U.S. 141, 153, 73 L.Ed, 2nd 664, 103 S.Ct. 3014 [1982] (quoting Rice v Santa Fe Elevator Corp., 331 U.S. at 230); Cipollone v Liggett Group, Inc., 505 U.S. 504, 516, 120 L.Ed. 2nd 407, 112 S.Ct. 2608 [1992]. (Internal quotations omitted).

Any analysis of preemption issues must begin by acknowledging that there exists "a rebuttable presumption against the preemption of the states' exercise of their historic police power to regulate safety matters." Goodspeed Airport, LLC. v East Haddam Inland Wetlands & Watercourses Comm'n, 634 F 3rd 206 [2nd Cir. 2011]. Thus, the question before this Court is whether defendants have overcome that presumption by showing that Congress intended "to occupy the entire field of air safety, thereby preempting state regulation of that field." Goodspeed, id at 208.

Defendants point to a litany of Federal cases to support their claim of field preemption. See Goodspeed, id; US Airways, Inc. v O'Donnell, 627 F 3rd 1318 [10th Cir. 2010]; Montalvo v Spirit Airlines, 508 F 3rd 464 [9th Cir. 2007]; Greene v Goodrich Avianics Sys., Inc., 409 F 3rd 784 [6th Cir. 2005]; Abdullah v American Airlines, Inc., 181 F 3rd 363 [3rd Cir. 1999]; French v PanAm Express, Inc., 869 F 2nd 1 [1st Cir. 1989]. Moreover, defendants point to the decision of Judge Skretny in the parallel actions involving Flight 3407, which are pending in the District Court, Western District of New York. There, the Court found in favor of Federal preemption of state standards of care, while preserving plaintiffs' state remedies under New York law. In Re: Air Crash Near Clarence Ctr., 798 F.Supp. 2nd 481 [W.D.NY 2011].

All of these decisions are founded on the premise that the FAACT and FARS "thoroughly occupy" the field of aviation safety by establishing "complete and thorough safety standards for interstate and international air transportation that are not subject to supplementation by, or variation among, jurisdictions." See Abdullah, supra at 367.

However, the decisions submitted by the defendants do not create an absolute case for Federal implied preemption. In Goodspeed, supra, the Second Circuit found a "Congressional intent to preempt, " yet found that the requirements of a Connecticut wetlands permitting statute did not create a sufficient interference with federal regulation, so as to fall within the scope of the field of aviation regulation. Goodspeed, supra at 211. Here, defendants stress that not only would the application of state standards of care interfere ...

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