RUSSO v. COLGAN AIR, INC. et al Complaint

8/7/2019 RUSSO v. COLGAN AIR, INC. et al Complaint

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Case 1:10-cv-00984-WMS Document 1 Filed 08/17/10 Page 1 of 10

Daniel O. Rose, Esq.James P. Kreindler, Esq.Justin T. Green, Esq.KREfNDLER & KREfNDLER LLP100 Park Avenue, 18th FloorNew York, New York 10017(212) 687-8181Attorneys for Plaintiff UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEYANNA MARIE RUSSO and JOHN M. LOFTUS,Individually and as Co-Administrators of the Es tateof Madeline 1. Loftus, Deceased and on behalf ofall heirs and next of kin of Madeline 1. Loftus,Deceased

Plaintiffs,v.

COLGAN AIR, fNC., PINNACLE AIRLfNESCORP., and CONTfNENTAL AIRLfNES, fNC.,Defendants.

Civil Action No .:_ _____COMPLAINTJURY TRIAL DEMANDED

Plaintiffs Anna Marie Russo and John M. Loftus, Individually and as Co-Administratorsof the Estate of Madeline 1. Loftus, on behalf of all heirs and next-of-kin of Madeline 1. Loftus,by and through their attorneys Kreindler & Kreindler LLP states as follows:

PARTIES1. Plaintiffs Anna Marie Russo and John M. Loftus are Co-Administrators of the

Estate of Madeline 1. Loftus and are citizens and residents of the State of New Jersey. Theybring this action as the Co-Administrators of the Estate of Madeline 1. Loftus on behalf of allheirs and next-of-kin of Madeline 1. Loftus; the Estate of Madeline 1. Loftus, and all personswho have cognizable claims on account of his wrongful death.


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2. Decedent Madeline L. Loftus is survived by her parents Anna Marie Russo andJohn M. Loftus and her siblings John Francis Loftus and Anna Marie Loftus.

3. At the time of her death, Madeline L. Loftus was a citizen and resident of NewJersey.

4. Defendant Colgan Air, Inc. ("Colgan") is a corporation organized and existingunder the laws ofthe State of Virginia with its principal place of business in the State ofTennessee and operates as a Continental Connection regional carrier. Colgan is registered to dobusiness in New Jersey.

5. At all times alleged herein, Colgan transacted and conducted business in the StateofNew Jersey by operating an airline company conducting business as a common carrier and byengaging in the transportation of individuals by aircraft arriving at and departing from NewarkLiberty International Airport and has thus subjected itself to the personal jurisdiction of thisstate.

6. Defendant Pinnacle Airlines Corp. ("Pinnacle") is the parent company of Colganand is a corporation organized and existing under the laws of the State of Delaware with itsprincipal place of business in the State of Tennessee.

7. At all times alleged herein, Pinnacle transacted and conducted business in theState ofNew Jersey by operating an airline company conducting business as a common carrierand by engaging in the transportation of individuals by aircraft arriving at and departing fromNewark Liberty International Airport and has thus subjected itself to the personal jurisdiction ofthis state.

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8. Defendant Continental Airlines, Inc. ("Continental") is a corporation organizedand existing under the laws of the State of Delaware with its principal place of business in theState ofTexas.

9. At all times herein, Continental transacted business in the State of New Jersey onits own, and by operating an airline company conducting business as a common carrier incooperation, agency and through derivative ownership and contract with, defendants Colganand/or Pinnacle.

10. At all times alleged herein, Continental transacted and conducted business in theState ofNew Jersey by operating an airline company conducting business as a common carrierand by engaging in the transportation of individuals by aircraft arriving at and departing fromNewark Liberty International Airport and has thus subjected itself to the personal jurisdiction ofthis state.

JURISDICTION AND VENUEII . This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

1332 in that the amount in controversy exceeds $75,000 and the decedent Madeline 1. Loftuswas a citizen and resident of the State ofNew Jersey and her estate is pending in New Jersey,and defendants were and are corporations existing under the laws of the States of Virginia andDelaware with their principal places of business in the States of Virginia, Tennessee and Texas.

12. This Court has in personam jurisdiction over defendants because at all times

material to this cause of action, they were and are foreign corporations for profit organized andexisting under the laws of a state other than New Jersey, but regularly and continuallyconducting business in the State of New Jersey, having sufficient contacts with the State of NewJersey, both generally and with regard to this specific action, so that the exercise of personal

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jurisdiction over them does not offend the traditional notions offair play and substantial justiceand is proper.

13. Venue is proper in this judicial district pursuant to 28 U.S.c. 1391 because asubstantial part of the events giving rise to plaintiffs' claims occurred within this judicial district.Specifically, this action concerns the crash of Continental Connection Flight 3407, also known

as Colgan Flight 3407 ("Flight 3407"), which originated from within this District.BACKGROUND

14 . On February 12,2009, decedent Madeline L. Loftus was a fare-paying passenger

on Flight 3407, which departed Newark Liberty International Airport with a final destination ofBuffalo Niagara International Airport.

15. Defendants Colgan, Pinnacle and Continental jointly owned, maintained,scheduled, managed, supervised and/or operated Flight 3407 and the associated aircraft byproviding regularly scheduled common carriage air transportation for paying passengers to andfrom Newark, New Jersey and Buffalo, New York.

16. The aircraft used for Flight 3407 on February 12,2009 was a 74-seat BombardierDash 8-Q400 model aircraft, registration number N200WQ ("the aircraft") which is , uponinformation and belief, jointly owned, maintained , scheduled, managed, supervised and/oroperated by defendants Colgan, Pinnacle and Continental, and each of them.

17 . The aircraft used for Flight 3407 on February 12, 2009 crashed 5 miles from theBuffalo Niagara International Airport during the approach to landing, causing severe injuries toand the death of Madeline L. Loftus.

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18. During the relevant period of this action, defendants Colgan, Pinnacle andContinental had, and continue to have, a parent/subsidiary and/or principal/agent and/or alter egorelationship between each of them.

19 . Defendant Pinnacle is the parent, principal or alter ego of defendant Colgan.Pinnacle uses Colgan to conduct business in the States ofNew York and New Jersey andthroughout the northeastern United States. As a result of the relationship between Pinnacle andColgan, both are liable to the plaintiffs for the crash of Flight 3407 and the resulting injuries anddeath of Madeline L. Loftus.

20. Defendant Continental is the parent, principal or alter ego of defendant Pinnacleand/or Colgan. Continental uses Pinnacle and/or Colgan to conduct business in the States ofNew York and New Jersey and throughout the northeastern United States. As a result of therelationship between Continental and Pinnacle and/or Colgan, including Capacity PurchaseAgreements and Revenue Pro-Rate Agreements, the defendants, and each of them, are liable tothe plaintiffs for the crash of Flight 3407 and the resulting injuries to and death of Madeline L.Loftus.

2 I. At all times alleged herein, the Captain and First Officer of Flight 3407 wereemployees and agents of defendants Colgan, Pinnacle and/or Continental and were acting withinthe scope of their employment with those defendants, and each of them.

FIRST COUNT AGAINSTCOLGAN, PINNACLE AND CONTINENTAL

(NEGLIGENCE)22 . Plaintiffs hereby incorporate each and every allegation contained in paragraphs I

through 2I, as though fully set forth herein.

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23. Defendants Colgan, Pinnacle and Continental were and are the owners andoperators of an airline company conducting business as a common carrier and were the ownersand operators of the aircraft that was operated as Flight 3407.

24. Defendants Colgan, Pinnacle and Continental employed the Captain and FirstOfficer of Flight 3407, who were acting within the scope oftheir employment and agency onFebruary 12,2009.

25. As common carriers, defendants Colgan, Pinnacle and Continental had a duty toexercise the highest standard of care and to provide safe transport to all passengers on board

Flight 3407, including plaintiffs' decedent Madeline 1. Loftus.26. Defendants Colgan, Pinnacle and Continental breached the duties of care they

owed to decedent Madeline 1. Loftus by negligently operating the aircraft used for Flight 3407on February 12,2009, causing it to crash, and by negligently hiring, selecting, pairing,supervising, training, communicating with and educating their employees, representatives andagents who operated the aircraft used for Flight 3407.

27. The crash ofFlight 3407 and the resulting death of Madeline 1. Loftus wereproximately caused by the negligence of defendants Colgan, Pinnacle and Continental, by andthrough their officers, agents, employees and representatives, in that defendants Colgan, Pinnacleand Continental breached their duties and failed to use appropriate care and caution in operatingFlight 3407, failed to maintain the minimum required safe flying speed of the aircraft during theapproach to landing, failed to recognize an imminent and dangerous aircraft stall, failed to applythe correct aircraft stall recovery procedures, failed to follow mandatory "sterile cockpit"di scipline procedures, failed to maintain situational awareness, failed to adhere to appropriate

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autopilot use procedures, failed to properly use anti-icing and/or de-icing equipment on theaircraft, and otherwise committed negligent, reckless and/or other wrongful acts or omissions.

28. The crash of Flight 3407 and the resulting death of Madeline L. Loftus were alsoproximately caused by the negligence of defendants Colgan, Pinnacle and Continental, by andthrough their officers, agents, employees and representatives, in that defendants Colgan,Pinnacle and Continental breached their duties and failed to train their flight crews to ensurethat a safe flying speed is maintained in all phases of flight, particularly at lower altitudesduring an approach to landing, failed to train their flight crews to properly recogni ze an

imminent and dangerous aircraft sta ll , failed to train their flight crews to apply the currentaircraft stall recovery procedures and not to apply incorrect and reflexive flight control inputs ,failed to train and ensure that their flight crews adhere to "sterile cockpit" disciplineproceedings during the critical phases of flight such as the approach to landing, failed to traintheir flight crews to properly maintain situational awareness during all phases of flight includingparticularly the approach to landing, failed to train their flight crews to adhere to appropriateautopilot use procedures particularly in icing conditions and during the approach to landingphase of flight, failed to train their flight crews to properly use anti-icing and/or de-icingequipment on the aircraft, failed to properly pair their flight crews so that there was a sufficientlevel of combined experience to safely operate the aircraft and its systems thereby maximizingthe safety of the passengers, failed to ensure that their pilots had adequate rest beforeundertaking the transportation of passengers, and otherwise committed negligent, recklessand/or other wrongful acts or omissions.

29. As a proximate cause of defendants' negligence and breaches of their duties ofcare, Madeline L. Loftus suffered severe injuries, emotional and physical pain and suffering, pre-

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death fright and terror, fear of imminent death, pre-impact and post-impact pain and suffering,death and all other damages allowable under the applicable wrongful death and survival ac tsincluding, but not limited to, loss of support, services, parental training, education, care andguidance, companionship, inheritance, property, burial expenses and all other economic andpecuniary losses incurred as a result of the crash, all of which exceeded the sum of$75,000 ,exclusive of interest and costs, such amounts to be proven at trial.

SECOND COUNT AGAINSTCOLGAN, PINNACLE AND CONTINENTAL

(BREACH OF WARRANTIES)

30. Plaintiff hereby incorporate each and every allegation contained in paragraphs Ithrough 29, as though fully set forth herein.

31. Defendants Colgan, Pinnacle and Continental expressly and impliedly warrantedthat they would provide safe, reliable and appropriate common carriage air transportation fortheir fare-paying passengers, using piloting techniques that would assure the reasonable and safetransport of all Flight 3407 passengers, including Madeline 1. Loftus, from Newark LibertyInternational Airport to the Buffalo Niagara International Airport and that their pilots and aircraftwere reasonably fit for their intended and foreseeable uses and purposes.

32. Defendants Colgan, Pinnacle and Continental breached their express and impliedwarranties by failing to provide safe, reliable and appropriate common carriage air transportationfor their fare-paying passengers when the aircraft crashed during its approach to landing atBuffalo Niagara International Airport.

33. As a substantial factor and proximate cause of defendants' breach of their expressand implied warranties, Madeline 1. Loftus suffered severe injuries, emotional and physical painand suffering, pre-death fright and terror, fear of imminent death, pre-impact and post-impact

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pain and suffering, death and all other damages allowable under the applicable wrongful deathand survival acts including, but not limited to, loss of support, services, parental training,education, care and guidance, companionship, inheritance, property, burial expenses and all othereconomic and pecuniary losses incurred as a result of the crash, all of which exceeded the sum of$75,000, exclusive of interest and costs, such amounts to be proven at trial.

THIRD COUNT AGAINSTCOLGAN, PINNACLE AND CONTINENTAL

(PUNITIVE DAMAGES)34. Plaintiff hereby incorporates each and every allegation contained in paragraphs I

through 33, as though fully set forth herein.35. The reckless, wanton and willful mi sconduct of defendants Colgan, Pinnacle and

Continental, including their employees, and their wanton and willful disregard for the safety oftheir passengers, including the lack oftraining that defendants provided to their pilots and thegrossly deficient cockpit management that occurred during Flight 3407, were a proximate causeof Flight 3407's crash and the resultant injuries and death ofMadeline L. Loftus.

36. As a result of the foregoing, defendants Colgan, Pinnacle and Continental areliable to the plaintiffs for punitive damages in an amount to be determined by a jury.

CONCLUSIONWHEREFORE, plaintiff expressly reserve their right to amend the complaint up to and

including at the time of trial to include all theories of recovery and items of damages not yetascertained, and demand judgment against defendants Colgan, Pinnacle and Continental in anamount to be determined by a jury; for a jury trial; for their costs and interest and all other reliefto which they may be entitled.

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Plaintiffs demand a trial by jury.

Dated: August 16, 20 I 0

JURY DEMAND

Respectfully submitted,

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'KRJm}JDLER LLP

James P. KreindlerJustin T. GreenAttorneys for PlaintiffsKREINDLER & KREINDLER LLP100 Park Avenue, 18th FloorNew York, New York 10017(212) 687-8181

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RUSSO v. COLGAN AIR, INC. et al Complaint