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 LLP
100 Park Avenue, 18th Floor
New York, New York 10017
(212) 687-8181
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ANNA MARIE RUSSO and JOHN M. LOFTUS,

Individually and as Co-Administrators of the Estate
of Madeline 1. Loftus, Deceased and on behalf of
all heirs and next of kin of Madeline 1. Loftus,
Deceased
Plaintiffs, Civil Action No.:_ _ __ __

v. COMPLAINT

COLGAN AIR, fNC., PINNACLE AIRLfNES JURY TRIAL DEMANDED

CORP., and CONTfNENTAL AIRLfNES, fNC.,

Defendants.

Plaintiffs Anna Marie Russo and John M. Loftus, Individually and as Co-Administrators

of 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:

PARTIES

1. 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. They

bring this action as the Co-Administrators of the Estate of Madeline 1. Loftus on behalf of all

heirs and next-of-kin of Madeline 1. Loftus; the Estate of Madeline 1. Loftus, and all persons

who 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 and

John 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 New

Jersey.

4. Defendant Colgan Air, Inc. ("Colgan") is a corporation organized and existing

under the laws ofthe State of Virginia with its principal place of business in the State of

Tennessee and operates as a Continental Connection regional carrier. Colgan is registered to do

business in New Jersey.

5. At all times alleged herein, Colgan transacted and conducted business in the State

of New Jersey by operating an airline company conducting business as a common carrier and by

engaging in the transportation of individuals by aircraft arriving at and departing from Newark

Liberty International Airport and has thus subjected itself to the personal jurisdiction of this

state.

6. Defendant Pinnacle Airlines Corp. ("Pinnacle") is the parent company of Colgan

and is a corporation organized and existing under the laws of the State of Delaware with its

principal place of business in the State of Tennessee.

7. At all times alleged herein, Pinnacle transacted and conducted business in the

State of New Jersey by operating an airline company conducting business as a common carrier

and by engaging in the transportation of individuals by aircraft arriving at and departing from

Newark Liberty International Airport and has thus subjected itself to the personal jurisdiction of

this state.

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8. Defendant Continental Airlines, Inc. ("Continental") is a corporation organized

and existing under the laws of the State of Delaware with its principal place of business in the

State of Texas.

9. At all times herein, Continental transacted business in the State of New Jersey on

its own, and by operating an airline company conducting business as a common carrier in

cooperation, agency and through derivative ownership and contract with, defendants Colgan

and/or Pinnacle.

10. At all times alleged herein, Continental transacted and conducted business in the

State of New Jersey by operating an airline company conducting business as a common carrier

and by engaging in the transportation of individuals by aircraft arriving at and departing from

Newark Liberty International Airport and has thus subjected itself to the personal jurisdiction of

this state.

JURISDICTION AND VENUE

II. 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. Loftus

was a citizen and resident of the State of New Jersey and her estate is pending in New Jersey,

and defendants were and are corporations existing under the laws of the States of Virginia and

Delaware 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 and

existing under the laws of a state other than New Jersey, but regularly and continually

conducting business in the State of New Jersey, having sufficient contacts with the State of New

Jersey, 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 justice

and is proper.

13. Venue is proper in this judicial district pursuant to 28 U.S.c. § 1391 because a

substantial 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 of

Buffalo Niagara International Airport.

15. Defendants Colgan, Pinnacle and Continental jointly owned, maintained,

scheduled, managed, supervised and/or operated Flight 3407 and the associated aircraft by

providing regularly scheduled common carriage air transportation for paying passengers to and

from Newark, New Jersey and Buffalo, New York.

16. The aircraft used for Flight 3407 on February 12,2009 was a 74-seat Bombardier

Dash 8-Q400 model aircraft, registration number N200WQ ("the aircraft") which is, upon

information and belief, jointly owned, maintained, scheduled, managed , supervised and/or

operated 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 the

Buffalo Niagara International Airport during the approach to landing, causing severe injuries to

and the death of Madeline L. Loftus.

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18. During the relevant period of thi s action, defendants Colgan, Pinnacle and

Continental had, and continue to have, a parent/subsidiary and/or principal/agent and/or alter ego

relationship 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 of New York and New Jersey and

throughout the northeastern United States. As a result of the relationship between Pinnacle and

Colgan, both are liable to the plaintiffs for the crash of Flight 3407 and the resulting injuries and

death of Madeline L. Loftus.

20. Defendant Continental is the parent, principal or alter ego of defendant Pinnacle

and/or Colgan. Continental uses Pinnacle and/or Colgan to conduct business in the States of

New York and New Jersey and throughout the northeastern United States. As a result of the

relationship between Continental and Pinnacle and/or Colgan, including Capacity Purchase

Agreements and Revenue Pro-Rate Agreements, the defendants, and each of them, are liable to

the 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 were

employees and agents of defendants Colgan, Pinnacle and/or Continental and were acting within

the scope of their employment with those defendants, and each of them.

FIRST COUNT AGAINST

COLGAN, PINNACLE AND CONTINENTAL
(NEGLIGENCE)

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

through 2 I, as though fully set forth herein.

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23. Defendants Colgan, Pinnacle and Continental were and are the owners and

operators of an airline company conducting business as a common carrier and were the owners

and operators of the aircraft that was operated as Flight 3407.

24. Defendants Colgan, Pinnacle and Continental employed the Captain and First

Officer of Flight 3407, who were acting within the scope oftheir employment and agency on

February 12,2009.

25. As common carriers, defendants Colgan, Pinnacle and Continental had a duty to

exercise 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 3407

on February 12,2009, causing it to crash, and by negligently hiring, selecting, pairing,

supervising, training, communicating with and educating their employees, representatives and

agents who operated the aircraft used for Flight 3407.

27. The crash of Flight 3407 and the resulting death of Madeline 1. Loftus were

proximately caused by the negligence of defendants Colgan, Pinnacle and Continental, by and

through their officers, agents, employees and representatives, in that defendants Colgan, Pinnacle

and Continental breached their duties and failed to use appropriate care and caution in operating

Flight 3407, failed to maintain the minimum required safe flying speed of the aircraft during the

approach to landing, failed to recognize an imminent and dangerous aircraft stall, failed to apply

the correct aircraft stall recovery procedures, failed to follow mandatory "sterile cockpit"

discipline 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 the

aircraft, 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 also

proximately caused by the negligence of defendants Colgan, Pinnacle and Continental, by and

through their officers, agents, employees and representatives, in that defendants Colgan,

Pinnacle and Continental breached their duties and failed to train their flight crews to ensure

that a safe flying speed is maintained in all phases of flight, particularly at lower altitudes

during an approach to landing, failed to train their flight crews to properly recognize an

imminent and dangerous aircraft stall , failed to train their flight crews to apply the current

aircraft 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" discipline

proceedings during the critical phases of flight such as the approach to landing, failed to train

their flight crews to properly maintain situational awareness during all phases of flight including

particularly the approach to landing, failed to train their flight crews to adhere to appropriate

autopilot use procedures particularly in icing conditions and during the approach to landing

phase of flight, failed to train their flight crews to properly use anti-icing and/or de-icing

equipment on the aircraft, failed to properly pair their flight crews so that there was a sufficient

level of combined experience to safely operate the aircraft and its systems thereby maximizing

the safety of the passengers, failed to ensure that their pilots had adequate rest before

undertaking the transportation of passengers, and otherwise committed negligent, reckless

and/or other wrongful acts or omissions.

29. As a proximate cause of defendants' negligence and breaches of their duties of

care, 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 acts

including, but not limited to, loss of support, services, parental training, education, care and

guidance, companionship, inheritance, property, burial expenses and all other economic 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.

SECOND COUNT AGAINST

COLGAN, PINNACLE AND CONTINENTAL
(BREACH OF WARRANTIES)

30. Plaintiff hereby incorporate each and every allegation contained in paragraphs I

through 29, as though fully set forth herein.

31. Defendants Colgan, Pinnacle and Continental expressly and impliedly warranted

that they would provide safe, reliable and appropriate common carriage air transportation for

their fare-paying passengers, using piloting techniques that would assure the reasonable and safe

transport of all Flight 3407 passengers, including Madeline 1. Loftus, from Newark Liberty

International Airport to the Buffalo Niagara International Airport and that their pilots and aircraft

were reasonably fit for their intended and foreseeable uses and purposes.

32. Defendants Colgan, Pinnacle and Continental breached their express and implied

warranties by failing to provide safe, reliable and appropriate common carriage air transportation

for their fare-paying passengers when the aircraft crashed during its approach to landing at

Buffalo Niagara International Airport.

33. As a substantial factor and proximate cause of defendants' breach of their express

and implied warranties, Madeline 1. Loftus suffered severe injuries, emotional and physical pain

and 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 death

and survival acts including, but not limited to, loss of support, services, parental training,

education, care and guidance, companionship, inheritance, property, burial expenses and all other

economic 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 AGAINST

COLGAN, 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 misconduct of defendants Colgan, Pinnacle and

Continental, including their employees, and their wanton and willful disregard for the safety of

their passengers, including the lack oftraining that defendants provided to their pilots and the

grossly deficient cockpit management that occurred during Flight 3407, were a proximate cause

of Flight 3407's crash and the resultant injuries and death of Madeline L. Loftus.

36. As a result of the foregoing, defendants Colgan, Pinnacle and Continental are

liable to the plaintiffs for punitive damages in an amount to be determined by a jury.

CONCLUSION

WHEREFORE, 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 yet

ascertained, and demand judgment against defendants Colgan, Pinnacle and Continental in an

amount to be determined by a jury; for a jury trial; for their costs and interest and all other relief

to which they may be entitled.

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JURY DEMAND

Plaintiffs demand a trial by jury.

Dated: August 16, 20 I 0

Respectfully submitted,

'KRJm}JDLER LLP

James P. Kreindler
Justin T. Green
Attorneys for Plaintiffs
KREINDLER & KREINDLER LLP
100 Park Avenue, 18th Floor
New York, New York 10017
(212) 687-8181

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