The County of Erie, New York spent nearly $800,000 in emergency response costs related to the February 12, 2009 Colgan Air crash. This includes costs for overtime, removal of human remains, clean-up of the aircraft and chemical substances, counseling for the surviving family members, and acquiring special equipment. Erie County demanded reimbursement from Colgan Air, Continental Airlines, Pinnacle Airlines, and their insurers, and ultimately filed a federal lawsuit when its demand was not met.
In County of Erie, New York v. Colgan Air, Inc., the Second Circuit Court of Appeals affirmed the trial court’s dismissal of Erie County’s suit pursuant to the “free public services” doctrine, which provides that a government is not entitled to recover for public expenditures made in the performance of governmental functions. The policy behind the free public services doctrine is that the cost of public services for safety ought to be borne by the public at large, not negligent individuals.
Erie County argued that recent law—specifically September 11 cases and New York’s retreat from the “fireman’s rule”—had diluted the effect of the free public services doctrine. The Court found these developments irrelevant because they did not address the free public services doctrine. The County also tried to avoid dismissal by arguing that the plane crash presented a nuisance under New York’s Public Health Law, which allows a government to recover the cost of removing a nuisance. But an accidental plane crash simply does not qualify as nuisance, which is a permanent condition caused by a deliberate act. Moreover, Public Health Law applies only where a government has undertaken to perform another’s duty, such as when it performs a clean-up that a landowner should have performed; Erie County only undertook to perform its own duty, i.e., responding to an emergency.
Most states have recognized some form of the free public service doctrine, though statutory exceptions vary. Nevertheless, local governments are obligated to manage their tax resources responsibly, and will continue to be tempted to sue for money spent responding to large-scale emergencies like an airline crash. The Second Circuit’s opinion, recognizing the continued viability of the free public service doctrine, will provide strong support for defendants facing such lawsuits.