ROBERTS et al v. CONTINENTAL AIRLINES, INC. et al Complaint

8/7/2019 ROBERTS et al v. CONTINENTAL AIRLINES, INC. et al Complaint

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Case 1:09-cv-00825-WMS Document 1 Filed 09/18/09 Page 1 of 15

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF NEW YORK

JOHN G. ROBERTS, JR , andCAROLE ANN ROBERTS, as AdministratOls oftheEstate of JOHN G. ROBERTS, III, Deceased

Plaintiffs,

Y..

CONTINENTAL AIRLINES, INC.;PINNACLE AIRLINES CORP ..;COLGAN AIR, INc..; BOMBARDIERAEROSPACE CORPORATION,Defimdants.

COMPLAINT

) CASE NO)) COMPLAINT)) JURY TRIAL) DEMANDED)))))))))))

The Plaintiffs, John G. Roberts, JI. and Carole Ann Roberts, as Administrators of theEstate of John G. Roberts, III, Deceased, by their attorneys, Lewis & Lewis, P .c.., for theircomplaint against the defendants herein, allege as follows:

PARTIESL Plaintiff, John G. Roberts, Jr, is a resident and a citizen of New YOlk State and

was duly appointed Co-AdministratOl of the Estate of John G. Roberts, III, Deceased, by theNiagara County Surrogate's Court on the 30th day ofJuly, 2009 ..


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2 Plaintiff Carole Ann Roberts, is a resident and a citizen of New York State andwas duly appointed Co-Administrator of the Estate of John G. Roberts, III, Deceased, by theNiagara County Surrogate's Court on the 30th day ofJuly, 2009.

3.. The decedent, John G. Roberts, III, died in an airplane crash on February 12, 2009in Clarence, New York.

4. The Plaintiffs, Co-Administrators of the Estate ofJohn G. Roberts, III, bring thisaction as Co-Administrators and personal representatives of the Estate of John G. Roberts, III,Deceased, and on behalf of each and every beneficiary, survivor and heir of John G. Roberts, III,Deceased.

5.. Defendant, Continental Airlines, Inc .. (hereinafter "Continental"), is a corporationorganized under the laws of the State ofDelaware, with its principal place of business located inHouston, TX. Continental is licensed to conduct business and does conduct business in the StateofNew York The agent for service ofprocess on Continental is CT Corporation Systems, 111Eighth Avenue, New York, NY 1001 L

6. The Defendant, Pinnacle Airlines Corp. (hereinafter "Pinnacle"), is a corporationorganized under the laws of the State ofDelaware with its principal place of business located inMemphis, TN. Pinnacle is licensed to conduct business in the State of New York and doesconduct business in the State ofNew York The agent for service of process on Pinnacle is CTCorporation Systems, 800 S .. Gay Street, Suite 2021, Knoxville, TN 37929-9710

7. The Defendant, Colgan Air, Inc., (hereinafter "Colgan"), is a corporationorganized under the laws of the State of Virginia, with its principal place of business located inManassas, VA Colgan is licensed to conduct business in the State of New York and does


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conduct business in the State of New York The agent for seIvice of process on Colgan is CTCorporation Systems, 111 Eighth Avenue, New York, NY 10011

8. The defendant, Bombardier Aerospace Corporation, (hereinafter "Bombardier"),is a corporation organized under the laws of the State of Texas and maintains its principal placeof business in Quebec, Canada. Bombardier is licensed to conduct business in the State of NewYork and does conduct business in the State ofNew York The agent for service of process onBombardier is CT Corporation Systems, 350 N .. S1. Paul Street, Dallas, TX 75201

JURISDICTION AND VENUE9.. This Court has jurisdiction over this action pursuant to 28 U.SC 1332(a)(l)..

The matter in controversy exceeds the sum of$75,000 .. 00, exclusive of interest and costs ..10.. Venue is proper based on 28 USc. 1391(a) because a substantial part of the

events or omissions giving rise to the claim occurred in this Judicial District. The plaintiffs andthe decedent were and are residents of this Judicial District. All defendants conduct business inthis Judicial District

COMMON ALLEGATIONS OF FACT11 . At all times relevant hereto, Defendants Continental, Pimrac1e, and Colgan were

common carriers for hire12.. On or before February 12, 2009, Defendants, Colgan andlor Pinnacle andlor

Continental owned, managed, maintained, scheduled, supervised and operated a BombardierDash 8-Q400 twin-engine turboprop airplane bearing a registration number of N200WQ.(Hereinafter refeued to as "aircraft").

13 On February 12, 2009 the Defendant Colgan andlor the Defendant Continentaloperated the above-referenced aircraft, as Colgan Air Flight 3407 d/b/a Continental Flight 3407,


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as a scheduled flight flam Newark Liberty International Airport, located at Newark, New Jersey,to Buffalo Niagara International Airport located in Buffa!o, New York.

14. Flight 3407 was marketed as Continental Flight 3407 under the Continental brarrdarrd Defendarrt, Colgarr, operated said aircraft under the name "Continental Connection" ..

15.. At all times mentioned hereafter, Defendarrt Colgarr, operated under the name"Continental Connection" under a contractual agreement with Defendarrt, Continental.

16 On February 12, 2009, Plaintiffs decedent, John G. Roberts, III, was a fiue-paying passenger onboard Flight 3407.

17.. Upon information arrd belief, at all times hereinafter mentioned, Defendarrts,Pinnacle arrd Colgarr had a parent/subsidiary and/or principal/agent relationship.. Defendarrt,Pinnacle is a parent and/or principal arrd/or alter ego of Colgarr Pinnacle utilizes Colgan toconduct business in certain areas of the United States, including the State of New York. As aresult of the above, both Pinnacle arrd Colgarr are liable to the Plaintiffs for the crash of Flight3407 on February 12, 2009 resulting in injury arrd death to the Plaintiffs decedent, John G

Roberts, IlL18. Upon information arrd belief, the aircraft was purchased by Defendarrt, Pinnacle

flam Defimdarrt, Bombardier arrd was thereafter trarrsferred to Defendarrt, Colgan ..19.. Upon information and belief; on February 12, 2009, Marvin Renslow (hereinafter

"Renslow"), was a resident of the State of Florida, Captain of Flight 3407, arrd arr employee ofthe Defendarrt, Colgarr.

20. Upon information arrd belief; on February 12, 2009, Rebecca Shaw (hereinafter"Shaw"), was a resident of the State of Washington, First Officer of Flight 3407, arrd arremployee ofthe Defendant, Colgan.


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2L On Febrmny 12,2009 at approximately 10:17 p.m., the subject aircraft was flyingon auto-pilot in known icing conditions on its instrument approach to Runway 23 at the BuffhloNiagara International Airport when the flight crew lost control of the aircraft

22. At said time and place the flight crew allowed the aircraft to fly too slow whichcaused the aircraft's Stall Warning and Protection System to activate ..

21 After the flight crew lost control of the aircraft, and in the period of time leadingto the crash, the aircraft flew out of control, rolled, dived and ultimately crashed into a house onLong Road in Clarence Center, New York. The sudden, violent and unexpected movements ofthe aircraft resulted in the passengers onboard the aircraft, including the Plaintiffs' Decedent,John G., Roberts, III, being sUJ:>iected to forces which caused bodily injmy, pain and suffering,pre-impact terror, mental anguish, emotional distress and other damages,

24, On and before February 12, 2009, the Defendants, Colgan, Pinnacle andContinental, owned, controlled, inspected, serviced, maintained, repaired, trained the Pilot andFlight Crew, monitored, loaded and operated Flight 3407, its aircraft and its component parts,

including but not limited to the de-icing systems, flight control systems, electrical systems andwith the Defendant, Bombardier, wrote and/or approved instructions and warnings for theaircraft and for the crew ofFlight 3407,

25 Defendant Bombardier designed, manufactmed, assembled, inspected, tested,serviced, maintained, monitored, the subject aircraft and its component parts.,

26 The Defendants actions as described in this complaint were wanton and recklessand demonstrated a conscious indifference and utter disregard of their effects upon the health andsafety of the passengers on Flight 3407, including the Plaintiffs' Decedent, John G.. Roberts, III,


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27, As a direct and proximate result of the acts of the Defendants, the Plaintiffs'Decedent, John G, Roberts, III, sustained serious injUlies which resulted in his death, and hisbeneficiaries, heirs and sUlvivors have incmred funeral, bmial and related expenditmes"

28, As a direct and proximate result ofthe acts of the Defendants, his parents and hisadult siblings, have been damaged and will continue to be damaged and deprived of theDecedent's services, companionship, guidance, increased inheritance and support in the futmeand have sustained and will continue to sustain other pecuniary loss, as well as othercompensable damages UIIder the applicable Law

29 The Plaintiffs' Decedent, JOM G Roberts, III, was at all times in the exercise ofdue care and in no way contributed to or caused his injUlies or death,

COUNT INEGLIGENCE - DEFENDANTS CONTINENTAL,

PINNACLE AND COLGAN30., Plaintiffs repeat and reallege all of the allegations contained above with the same

force and effect as ifmore fully setforth herein,31., On or before Febmary 12, 2009, Defendants, Continental, Pinnacle and Colgan by

and through their agents, servants and employees, as cornmon carriers for hire, were obligated toexercise the highest degree of care and to provide safe transportation to all passengers on Flight3407,

32., On or before Febmary 12, 2009 notwithstanding their legal duty, the Defendants,Continental, Pinnacle and Colgan by and through their employees, servants and/or agents,including but not limited to Renslow and Shaw, breached their legal duty of car'e and acted in anegligent, reckless and car'eless manner in the following respects:


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a. Improperly flew the approach to Runway 23 at the Buffalo-NiagaraInternational Airport;b Allowed and caused the aircraft to fly at an inadequate speed andimproperly reacted to the activation of the subject aircraft's Stall Warning and ProtectionSystems;c Failed to propeJly use and operate all available de-icing andlor anti-icingequipment;d. F ailed to properly monitor ice accumulation during flight;e Failed to properly and safely operate and control the subject aircraft;f Negligently caused the subject aircraft to enter an aerodynamic stall;g F ailed to perform all appropriate procedures to accomplish a safe landing;h. Failed to avoid andlor exit atmospheric icing conditions;L Allowed an unsafe ice accumulation to develop on the subject aircraft;J. F ailed to properly train its pilots and flight crew;k. Failed to maintain a sterile cockpit;L F ailed to properly train its pilot and flight crew in low-airspeed awareness;

m. Failed to properly note readings on instrument panel;n. Negligently hired, supervised, and trained the flight crew of Flight 3407;o Failed to provide the pilot and flight crew of Flight 3407 with thenecessary information ofmeteorological conditions;p Dispatched the subject aircraft into known areas of atmospheric icingconditions;q. F ailed to provide the pilot and flight crew of Flight 3407 with propelandlor adequate training as to the proper control, management and response to adverse weatherandlor atmospheric icing conditions;Lroll anomalies; Failed to properly train the pilot and flight crew of Flight 3407 regarding


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s. F ailed to avoid atmospheric icing conditions when it was known or shouldhave been known that the subject aircraft was unsuited for flight in such atmospheric icingconditions;t Was otherwise careless, reckless, and negligent

COUNTnSTRICT LIABILITY - DEFENDANT BOMBARDIER

33. Plaintiffs repeat and reallege all of the allegations contained above with the sameforce and effect as ifmore fully setforth herein.

34 At all times hereinafter mentioned, the subject aircraft as Flight 3407 was beingused for its intended and/or reasonably foreseeable purpose.

35 Bombardier manufactured the subject aircraft designated as Flight 3407 and itscomponent parts, systems, manuals, instructions and warnings were defective and unreasonablydangerous by reason of defective design and manufacture, and the failure of Defendant,Bombardier to give adequate and proper warnings of the dangers existing and adequateinstructions regarding the avoidance of such dangers.. The defective and dangerous condition of

the subject aircraft exposed the Plaintiffs' Decedent, John G Roberts, III, and others similarlysituated on Flight 3407 as well as the general public to unreasonable risk of harm and was aproximate and producing cause of the Plaintiffs' Decedent's injuries, death and damages ..

36. The unreasonably dangerous conditions and/or defects include, but are not limitedto, the de-icing system, the pilot's operation manual, the flight control systems, maintenancemanuals and procedures, and the absence of adequate warnings and instructions regarding thedanger. At the time the subject aircraft and its components, maintenance procedures were soldandlor marketed and/or placed into the stream of commerce by the Defendant, Bombardier, suchproduct was defective and unreasonably dangerous to persons including the Plaintiffs' Decedent,


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John G. Roberts, III, who could reasonably be expected to use or benefit fiom them, and whichdefective and unreasonably dangerous conditions were, a direct and proximate cause of thePlaintiffs' Decedent's injuries, death and damages ..

37.. The subject aircraft was also defective by reason of the Defendant, Bombardier'sfailure to include or place within the subject aircraft adequate or proper warnings andlorinstIUctions as to the dangers associated with the design and foreseeable maintenance and use ofthe subject aircraft and how to avoid such dangers, and which defects rendered the subjectaircraft dangerous and a direct and proximate cause of the Plaintiffs' Decedent's injuries, deathand damages.

38.. The defective subject aircraft and inadequate warnings provided by the DefendantBombardier was a substantial factor in causing the Plaintiffs' Decedent's injuries, death anddamages.. Therefore, Defendant, Bombardier is strictly liable for Plaintiffs' damages and for theDecedent's injuries and death.

39 As a direct and proximate result of the Defendant, Bombardier's actions, Flight

3407 crashed causing the death of John G. Roberts, III and resulted in damages to the Plaintiffs,to the Estate oDohn G. Roberts, III, and to the Decedent's beneficiaries, Mother, Father, siblingsand all other beneficiaries, survivors and heirs under applicable law, as well as causing pre-impact tenor, pain, suffering, injuries and death to John G Roberts, III. As a result, thedistributees and survivors of John G. Roberts, III, have suffered pecuniary loss, have incurredfuneral expenses and have suffered the loss of pecuniary benefits they had a reasonable right toexpect had John G. Roberts, III, lived, including but not limited to loss of support, guidance, andassistance, as well as inheritance


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COUNT II IRES IPSA LOOUITUR - DEFENDANTS.

CONTINENTAL. PINNCALE AND COLGAN

40.. Plaintiffs repeat and reallege all of the allegations contained above with the sameforce and effect as ifmore fully setforth herein.

41.. The Plaintiffs plead the Doctrine of "Res Ipsa Loquitur". The occunence speaksfor itself; that is an event such as the crash of Flight 3407 would not usually occur absentnegligence; the instrumentality being the subject aircraft was within the Defendant's Continental,Pinnacle and Colgan's exclusive control; and the Plaintiffs' Decedent, John G Roberts, III, didnot contribute to the cause of the crash ofFlight 3407 ..

42, As a direct and proximate result of the negligence of the Defendants, Continental,Pinnacle and Colgan, Flight 3407, crashed causing injuries and then death to John G, Roberts, IIIand resulted in damages to the PlaintifIs, to the Estate of John G Roberts, III, and to theDecedent's Mother, Father, siblings and all other beneficiaries, survivors and heirs underapplicable law, as well as causing pre-impact terror, pain, suffering, injuries and death to John GRoberts, III As a result, the distributees and survivors of John G, Roberts, III, have sufferedpecuniary loss, have incurred funeral expenses and have suffered a loss of pecuniary benefitsthey had a reasonable right to expect had John G, Roberts III lived, including but not limited tothe loss of support, guidance, and assistance as well as possible inheritance,

COUNT IVNEGLIGENCE - DEFENDANT BOMBARDIER

43" Plaintiffs repeat and reallege all of the allegations contained above with the sameforce and effect as ifmore fully setforth herein,


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44. Defendant Bombardier negligently designed, marrufactured, tested, the subjectaircraft and its component parts, systems, marruals, instIUctions arrd warnings ..

45. Defendarrt Bombardier's negligence was a proximate cause of the crash of Flight3407 ..

46.. Defendarrt Bombardier knew, or in the exercise of reasonable care should haveknown, tlrat the subject aircraft arrd its components parts, systems, marruals, instructions arrdwarnings were defective arrd unreasonably darrgerous to tlrose persons likely to use tire subjectaircraft arrd its component parts for tire plUposes arrd for tire marrner in which tlrey were intendedto be used arrd for plUposes reasonably foreseeable to the Defendant Bombardier including theplUpose for which tire subject aircraft was designated as Flight 3407 on FebIUary 12,2009

47.. Defendarrt Bombardier's negligence was the proximate cause of the Plaintiffsdamages arrd the Decedent's injlUies arrd deatlr ..

48.. Defendarrt Bombardier was negligent in tlrat it failed to give adequate arrd properwarnings arrd instIUctions to ordinary arrd foreseeable users of tire subject aircraft, including

Defendarrts, Continental, Pinnacle arrd Colgarr, as well as the Plaintiffs Decedent, John G.Ro belts, IlL

49.. Defendarrt Bombardier owed tire Plaintiffs' Decedent, John G Roberts, III, a dutyof reasonable care in the design, marrufacture and testing of tire subject aircraft arrd itscomponent parts.

50.. Defendarrt Bombardier breached their legal duty arrd were negligent in one ormore of tire following respects:

a. Failed to design, marrufactlUe arrd assemble tire subject aircraft free of alldefects;


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h. Failed to design, manufactme and assemble the subject aircraft in such away as to assme that it was safe and appropriate for its intended use;c.. F ailed to properly and adequately test and monitor the subject aircraft soas to learn of its inherent inability to perform safely in atmospheric icing conditions;d.. Failed to design, manufactme and assemble the subject aircraft with anadequate Low-Airspeed Alert System;e.. Failed to design, manufactme and assemble the subject aircraft with anadequate Auto-Throttle System in order to assure appropriate airspeed was maintained in icingconditions;f Failed to correct known wing structure icing problems;g. Failed to provide adequate instructions and warning to the flight crews ofthe s u ~ j e c t aircraft and the flying public, including Plaintiffs' Decedent, John G. Roberts, III, of

the potential hazards associated with the operation of the subject aircraft in atmospheric icingconditions, and how to avoid or preclude those hazards in the operation of the subject aircraft;h. Designed, manufactmed, distributed and sold the subject aircraft with awing structme that resulted in an unsafe accumulation of ice;1. Was otherwise cardess, reckless and negligent

51 . Defendant Bombardier's negligent acts were a proximate cause of the crash, thePlaintiffs' damages and the injury and death ofthe Plaintiffs' Decedent, John G. Roberts, III.

COUNT VBREACH OF EXPRESS AND IMPLIED WARRANTY- DEFENDANT BOMBARDIER

52. PlaintifIs repeat and reallege all of the allegations contained above with the sameforce and effect as ifmore fully setforth herein.

53. Defendant Bombardier is an aerospace manufacturer that holds itself out to thepublic as having exceptional knowledge, skill and experience in the design, construction,assembly, manufacturing, testing and maintenance of aircraft and in the preparation of flight andmaintenance manuals, and inspection of transport category aircraft and their components.


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54. In the course of its business, Defendant Bombardier designed, constIUcted,assembled, manufactured, inspected, tested and published flight opemtions and maintenancemanuals, and caused the subject aircraft to be certified, including the subject aircmft that wasdesignated as Flight 3407 on FebIUary 12, 2009, which Defendant Bombardier expressly andimpliedly warranted was fit for its intended purposes and use as an aircraft in commercial airtransportation, being airworthy and free ofunreasonably dangerous defects.

55 Defendant Bombardier marketed, sold, distributed and caused the subject aircraftdesignated as Flight 3407 on February 12, 2009, to be introduced into the stream of commerceby sale or lease to the Defendants, Continental, Pinnacle and Colgan

56. Defendant Bombardier expressly and impliedly warmnted to the geneml public,including the Plaintiffs' Decedent, John G Roberts, III, that the subject aircraft was fit for thepurpose for which it was intended.

57. As a fare-paying passenger, the PlaintifIs' Decedent, John G. Roberts, III, madeuse ofthe subject aircraft designated as Flight 3407 in an intended and foreseeable manner, and

he relied upon the express and implied warranties made by the Defendant Bombardier..58.. In direct contradiction to the warranties, the subject aircraft was not fit for its

intended and foreseeable use, thereby rendering the aircraft unreasonably dangerous.59.. Defendant Bombardier breached the aforementioned express and implied

warranties because of the aircmft's inadequate and defective components which included but wasnot limited to, Defendant Bombardier's failure to provide warning of the aircraft's inadequaciesand defects and the failure to provide proper and adequate instruction in the safe opemtion andmaintenance of the subject aircraft ..


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60. Defendant Bombardier's breach of wauanties and the defects refened to aboverendered the subject aircraft umeasonably dangerous and was a proximate and producing causeof the crash of Flight 3407, the damages sustained by the Plaintiffs, and the injUly and death ofthe Plaintiffs' Decedent, John G.. Roberts, IlL

61. As a member of the traveling public, the Plaintiffs' Decedent, John G. Roberts,III, relied to his detriment upon Defendant, Bombardier's express and implied representations ofsafety and fitness fOl the use which the subject aircraft designated as Flight 3407 was put to onFeblUary 12,2009 ..

COUNT VIPUNITIVE DAMAGES ALL OF THE DEFENDANTS

62. Plaintiffs repeat and reallege all of the allegations contained above with the sameforce and effect as ifmore fully setfOlth herein

63 . The actions and admissions of the Defendants named herein, including their ownconduct as well as the actions and omissions of their officers, agents, servants and/or employees

as setfOlth above was grossly negligent and said Defendants acted with wanton and/or recklessdisregard for the safety of others including the Plaintiffs' Decedent, John G.. Roberts, III, and assuch said conduct wanants the imposition of punitive damages ..

64.. One or more of the allegations of gross negligence and/or reckless conduct on thepart of the Defendants was a substantial factor in causing the Plaintiffs' damages and the injUlesand death of the Plaintiffs' Decedent, John G. Roberts, IlL

65.. Based upon the foregoing, the Plaintiffs are entitled to punitive damages pUlsuantto applicable Law.


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Dated:

WHEREFORE, the Plaintiffs demand judgment, jointly and sevelally as follows:1. CompensatOlY damages for the wrongful death suffered and to be sufferedby the Plaintiffs, the Decedent's sUlviving adult siblings and all otheJbeneficiaJies, sUlvivors and heiIs UIIdel applicable Law in an amoUlltwhich exceeds the jUlisdictionai amoUllt of $75,000 ..00, exclusive of

interest and costs .. (NY EPLL 5-4.3);2. CompensatOlY damages for the injUlies and losses sustained by thePlaintifIs' Decedent, John G. Robelts, III, befOle he died. (NY EPLL

1133);3.. FUllerai expenses (NY EPTL 5-4.3);4. Damages aJising from the pre-impact physical pain and suffering, mentaltellO!, and mental anguish ofthe Plaintiffs' Decedent, John G. Robelts, III,

(N.YEP.TL 11-33);5.. Punitive damages in an amoUllt to be fixed by the JUly;6.. Interest from the date ofthe OCCUlTence, FeblUaJy 12, 2009, upon thePlincipal SUlll recovered by the Plaintiffs .. (N.Y EPTL 5-4.J);7 The costs and disbUlsements incUlred in the prosecution of this action;8.. That all issues offact in this action be detelmined by a jUly;9.. Any other and further reliefwhich the COUlt deems just and propel

September 17, 2009Buffalo, New York

B Y ' ~ ~ ~ ~ ~ - + = 7 ~ ~ -S, ESQ ..Attorneys for PlaintiffiLEWIS & LEWIS, PC800 Cathedral PaJk Tower37 Franklin StreetBuffalo, NY 14202(716) 854-2100alewis@lewislawcom

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ROBERTS et al v. CONTINENTAL AIRLINES, INC. et al Complaint

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