mossop et al v. colgan air, inc. et al complaint

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

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Case 1:11-cv-00116-WMS Document 1 Filed 02/08/11 Page 1 of 7

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF NEW YORKMICHAEL MONACHINO, Individually and asAdministrator of the Estate ofDAWN M.MONACHINO, deceased, and on behalf of all heirsand next-of-kin ofDAWN M. MONACHINO,deceased,

Plaintiff,v.

BOMBARDIER, INC., a/kIaBOMBARDIER AERSOSP ACE,

Defendant.

Civil Action No.:---- - -COMPLAINTJURY TRIAL DEMANDED

Plaintiff Michael Monachino, individually and as Administrator of the Estate of Dawn M.Monachino, and on behalfof all heirs and next-of-kin of Dawn M. Monachino, by and throughhis attorneys Kreindler & Kreindler LLP, states as follows :

PARTIESI. Plaintiff Michael Monachino has been appointed the Administrator of the Estate

of Dawn M. Monachino by order of the Erie County, New York Surrogate's Court. He bringsthis action on behalfof all heirs and next-of-kin ofDawn M. Monachino, the Estate ofDawn M.Monachino, and all persons who have cognizable claims on account of her wrongful death.

2. At the time of her death, Dawn M. Monachino was a New York resident.

3. Defendant Bombardier is the aircraft manufacturer that designed andmanufactured the airplane that is a subject of this complaint.

4. Defendant Bombardier is an alien corporation organized and existing under andby virtue of the laws of Canada, having its principal place of business in Canada; Bombardier


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does business on a continuous and systematic basis in New York and elsewhere in the UnitedStates and has offices in the United States.

JURISDICTION AND VENUE5. 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 Dawn M. Monachinowas a resident of New York and defendant Bombardier was and is a Canadian Corporation withits principal place of business in Canada.

6. This Court has in personam jurisdiction over defendant Bombardier because at all

relevant times Bombardier was and is a for-profit corporation organized and existing under thelaws of a foreign state, Canada, but conducted continuous and systematic business in the State ofNew York and has sufficient contacts with the State of New York, both generally and withregard to this specific action, so that the exercise of personal jurisdiction over Bombardier doesnot offend the traditional notions of fair play and substantial justice and is proper.

7. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391 because asubstantial part of the events giving rise to plaintiff's claims occurred within this judicial district.

8. Specifically, the crash of Flight 3407 and Dawn M. Monachino ' s death occurredwithin the geographical confines of the Western District of New York.

BACKGROUND9. On February 12,2009, decedent Dawn M. Monachino was a fare-paying

passenger on Continental Connection Flight 3407, which departed Newark Liberty InternationalAirport with a final destination of Buffalo Niagara International Airport.

10. Defendants Colgan, Continental and Pinnacle jointly scheduled, managed,supervised and/or operated Continental Connection Flight 3407 and the associated aircraft by

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providing regularly scheduled common carriage air transportation for paying passengers to andfrom Buffalo, New York.

II. The aircraft used for Flight 3407 on February 12,2009 was a 74-seat BombardierDash 8-Q400 model aircraft, registration number N200WQ ("subject aircraft").

12. Defendant Bombardier sold, assigned, and transferred all rights, title, and interestto the subject aircraft to Colgan Air, Inc. in April 2008.

13. On February 12 ,2009, the Continental Connection aircraft crashed five milesfrom the Buffalo Niagara International Airport during the approach to landing, causing severe

injuries to and the death of Dawn M. Monachino.14 . Bombardier is liable to the plaintiff for the crash of Flight 3407 and the

resulting injuries and death of Dawn M. Monachino.COUNT ONE

AGAINST BOMBARDIER(NEGLIGENCE)

15. Plaintiff hereby incorporates each and every allegation contained in paragraphs Ithrough 14 as though set forth herein.

16. Defendant Bombardier had a duty to use reasonable care in the planning, design,construction, assembly, inspection, testing, marketing, sale, delivery, monitoring andintroduction into air commerce of the subject aircraft and attendant manuals and otherpublications.

17. The subject aircraft' s crash and the resulting injuries and death of Dawn M.Monachino were caused by the negligent and careless acts and omissions and wrongdoing ofdefendant Bombardier, acting by and through its authorized agents, officers, servants andemployees, in that it breached its duty to use reasonable care in the planning, design,

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construction, assembly, testing, inspection, manufacture, marketing, sale, servicing, monitoring,field support, choice of various aircraft system designs including, but not limited to, ref speedincrease and airspeed warning systems, and components ofthe subject aircraft and byBombardier's failure to warn and to take necessary corrective action in response to tests,incidents and field reports and/or other events that gave Bombardier notice of the unreasonablydangerous condition of the subject aircraft.

18. By reason of the foregoing, defendant Bombardier is liable to plaintiff forcompensatory damages as determined by the jury and approved by the court.

COUNT TWOAGAINST BOMBARDIER(STRICT PRODUCTS LIABILITY)


20. On February 12 , 2009, the subject aircraft and its manuals and other publicationswere being operated and used for the purposes and in the manner for which it was designed,constructed, manufactured, assembled, inspected, tested, marketed, sold and intended to be used,as well as in a manner reasonably foreseeable to defendant Bombardier, and in a conditionwithout substantial change from its original condition when sold by Bombardier.

21. The subject aircraft's crash and the resulting fatal injuries to Dawn M. Monachinowere proximately caused by defects in the design, construction, manufacture, choice ofmaterials,

assembly, inspection, testing, warnings, instructions, marketing, sale, service, repair andmaintenance of the subject aircraft, including but not limited to design and manufacturing defectsassociated with, among other things, the subject aircraft's ref speed increase system and lack ofadequate low-speed warning systems and the subject aircraft's manuals and other publications.

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22. As a direct consequence of the above, defendant Bombardier is liable to plaintiffin strict products liability.

23. By reason of the foregoing, defendant Bombardier is liable to plaintiff on behalfofDawn M. Monachino's Estate and to her survivors and beneficiaries for compensatorydamages as determined by the jury and approved by the court.

COUNT THREEAGAINST BOMBARDIER

(BREACH OF AN IMPLIED WARRANTYOF FITNESS FOR INTENDED USE)


25. Prior to February 12 , 2009, defendant Bombardier caused the subject aircraft to beintroduced into the stream of air commerce and to be used in air transportation by air carrierssuch as Pinnacle Airlines Corp. and Colgan Air, Inc. and, in so doing, Bombardier represented tothe aviation industry and community, Bombardier 's customers, the public at large, and the usersof its product that said model aircraft, including its attendant manuals and publications, wasairworthy, safe, free of latently dangerous defects and fit for its intended use as a vehicle in airtransportation.

26. Defendant Bombardier breached its implied warranty of the aircraft's, and itsmanuals and publications' fitness for their intended use in that the crash of the subject aircraftand the resulting fatal injuries to plaintiffs decedent were caused by a defective condition in thedesign, construction, manufacture, choice ofmaterials, assembly, testing, marketing and sale ofsaid aircraft and its manuals and publications, which rendered the aircraft and its manuals andpublications unfit for their intended use in air transportation.

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27. As a consequence ofthe above, defendant Bombardier is liable to plaintiff forbreach of the aircraft ' s implied warranty.

28. By reason of the foregoing , defendant Bombardier is liable to plaintiff on behalfof Dawn M. Monachino's Estate and her survivors and beneficiaries for compensatory damagesas determined by the jury and approved by the court.

CONCLUSION

WHEREFORE, plaintiff expressly reserves his right to amend this complaint up to andincluding at the time of trial to include all theories of recovery and items of damages not yet

ascertained, and demands judgment against defendant Bombardier on Counts One, Two, andThree in an amount to be determined by a jury; and for costs and interest and all other relief towhich he may be entitled.

JURY DEMAND

Plaintiff demands a trial by jury.Dated: February 7, 20 II

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Respectfully submitted,LER LLP

~ : / q - -By: - - - 4 ~ _ _ _ _ C " - - - - - ( . Y # -____ _ames P. KreindlerDaniel O. Rose

750 Third AvenueNew York, NY 10017Phone: (212) 687-8181Fax: (2 12) 972-9432

~ f i { ~ Christopher M. MurphyDoran & Murphy LLP1234 Delaware Avenue


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Buffalo, New York 14209Phone: (716) 884- 2000Fax (716) 884-2146Attorneys for Plaintiffs

mossop et al v. colgan air, inc. et al complaint

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