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Airline affirmed as Flight 3407 defendant

Continental Airlines is still a defendant in the last of the lawsuits stemming from the fatal crash of Continental Connection Flight 3407 more than five years ago in Clarence Center.

State Supreme Court Justice Frederick J. Marshall on Monday denied Continental’s motion to be removed as a defendant in the suits filed by the family of Douglas C. Wielinski.

Wielinski, 61, died when the plane crashed into his home Feb. 12, 2009, also killing all 49 people on board. More than 40 lawsuits were filed after the crash; all except the Wielinski suits have been settled.

Marshall held a settlement conference with attorneys in the case Monday behind closed doors. After more than four hours, the judge said the parties are still in settlement discussions. He declined to comment further.

The judge will hold a pretrial hearing Thursday on evidence issues involving an expert witness for the defense, in the event of a trial.

The Wielinskis have sued Colgan Air, which owned and operated the plane, as well as its parent, Pinnacle Airlines, and Continental Airlines, which contracted with Colgan.

The trial had been scheduled to begin with jury selection Monday but was postponed for the settlement conference, which followed Marshall’s decision last week granting a defense motion to dismiss the Wielinskis’ claims for punitive damages.

Marshall found that the conduct of the pilot, Marvin D. Renslow, and co-pilot, Rebecca L. Shaw, did not meet the requirements for punitive damages.

He said the crash was the result of pilot error and not “the result of any conduct by the defendants that manifested spite or malice, fraudulent or evil motive or a conscious and deliberate disregard of the interests of others, that such conduct may be deemed willful or wanton.”

The trial will focus on the remaining claims for compensatory damages for Wielinski’s wrongful death, his pain and suffering, his family’s injuries and their pain and suffering. A second trial, to be held right after the first before the same jury, will focus on liability.

Karen F. Wielinski, the victim’s wife, and Jill M. Hohl, their daughter, were in the home at the time of the crash and were injured.

In dismissing Continental’s motion to be removed from the legal action, Marshall noted its claim that it bears no legal responsibility for the crash.

Continental contends that Colgan was an independent contractor and that Continental is not responsible for the independent contractor’s actions. It also contends that Colgan had absolute control over the aircraft and crew and that Colgan was responsible for all pilot hiring, training, aircraft maintenance and in-flight operation.

While the judge found preliminarily that Colgan was an independent contractor, he noted some exceptions to the general rule that a party who retains an independent contractor is not liable for the contractor’s negligent acts.

One exception involves the employer’s negligence in selecting, instructing or supervising the contractor.

The judge noted an expert affidavit for the plaintiffs from Gregory A. Feith, a former field investigator at the National Transportation Safety Board, who said that in selecting Colgan to operate flights, Continental failed to ensure that its standard of care for training flight crews and conducting flights was met.

Feith said Colgan pilots never received training on how to respond to the activation of the stall warning on a Bombardier Dash 8 Q400 aircraft like the one that crashed when the pilot failed to respond correctly. That incorrect response has been blamed for the crash.

The judge also cited the deposition testimony of Donald L. Gunther, Continental’s former vice president of safety, that Continental did not take any steps to ensure that Colgan’s operations were maintained in continuous compliance with FAA-mandated standards of care and that Colgan did not provide additional programs, not mandated by the FAA but required for safe operation, such as threat and error management training and fatigue management.

Marshall also noted Continental’s claims that it relied on the FAA to determine whether Colgan’s pilots were capable and qualified to fly the Q400 and that Colgan had a current operating certificate from the FAA and was approved by the Defense Department to carry military personnel.

“Clearly there is evidence on both sides of the question that require a jury determination as to whether Continental negligently selected and/or supervised Colgan,” Marshall said.

Another exception involves instances in which an employer is under a specific duty that cannot be delegated to the independent contractor.

The plaintiffs claim that Continental is under a non-delegable duty to not operate any aircraft carelessly or recklessly.

While Colgan operated the flight, the judge said, Continental played a critical role, buying and selling tickets, establishing and scheduling the routes and fares, providing ground services and requiring that the Continental mark be placed on the exterior and interior of each plane.

“The undisputed facts here show that the airplane, which impacted the Wielinskis’ home, burning it to the ground and killing Douglas Wielinski, was operated by both Continental and Colgan,” Marshall said.

“Continental owed a non-delegable statutory duty to the Wielinskis and the passengers … to not operate Flight 3407 in a careless or reckless manner and thus, Continental, despite having subcontracted with Colgan, is vicariously liable for Colgan’s negligence and for causing the crash on Feb. 12, 2009.”