Ky. Plane Crash Details Could Boost Case for Punitive Damages

January 23, 2007

When Comair Flight 5191 crashed shortly on takeoff in August at Kentucky’s Blue Grass Airport , the parents of 16-year-old Paige Winters thought she died instantly.

Documents released this week show a contributing factor in Winters’ death was smoke inhalation — proof that she was alive when the plane caught fire after crashing, said Brad Manson, an Overland Park, Kan., attorney representing the Winters family.

“The only consolation the Winters’ had was the thought that their daughter died on the impact and didn’t suffer in this horrific fire,” Manson said. “That just conjures up an enormous amount of pain and agony.”

That pain and agony could cost Comair, based outside Cincinnati in Erlanger, Ky., as well as others involved in the crash, according to attorneys representing victims’ families in lawsuits.

Autopsy summaries released with other documents related to the crash show that 16 people survived the initial impact. That revelation, along with possible violations of Comair and Federal Aviation Administration policies, could leave the airline, the airplane’s builder and the Lexington airport open to punitive damages in lawsuits stemming from the crash, attorneys involved in the cases say.

“Comair is clearly liable,” Manson said. “I think there’s punitive exposure here.”

The aircraft, a Bombardier CL-600-2B19 (CRJ-100), crashed on takeoff from Lexington’s Blue Grass Airport after the pilots taxied on to the wrong runway — one that was too short for a passenger jet.

National Transportation Safety Board documents outlining the initial investigation into the crash that killed 49 of the 50 people on board revealed that co-pilot James Polehinke and pilot Jeffrey Clay partook in casual conversation about their families, pets and job prospects before takeoff. Comair has acknowledged the pilots violated the FAA’s “sterile cockpit” rule, which bans nonessential conversation during critical times.

The documents also point to a systemwide failure that morning — from a undermanned control tower to a lack of lights on the runway to the pilots themselves — that led to the crash, attorneys said.

The issue of the plane’s crash worthiness and construction need to be analyzed before any definitive conclusions about Bombardier’s liability could be drawn, said Robert Clifford, a Chicago-based aviation law specialist representing several of the families.

“It’s all about money. At the end of the day, these families are going to be compensated for their losses,” Clifford said. “Only time will tell by whom and how much.”

David Fiol, a San Francisco-based attorney representing four families, said the documents confirm the negligence of the Comair pilots. But, Fiol said, the documents also show that the FAA and the airport might have done things differently.

Polehinke’s attorney, Bruce Brandon of North Carolina, said a systemwide failure of airport safeguards such as no runway lights and bad maps of the airport led to the crash, not simply the pilots chatting in the cockpit before takeoff.

“When the system fails, horrible things happen,” Brandon said.

Kate Marx, a spokeswoman for Comair, said she couldn’t address the specifics of the litigation, but the investigation into the crash has found multiple factors that contributed to the tragedy. Comair is working on improving its faults, something all airlines should look to do, Marx said.

“Comair, like all air carriers, has a responsibility to safely transport our passengers, but safety is just as much the responsibility of the other organizations involved in commercial aviation,” Marx said. “In our case, we’ve pinpointed those organizations to include the airport and FAA.”

Manson said the crash and revelations about it are still affecting his clients in Leawood, Kan.

He said the Winters family is still grieving the loss of their daughter.

“They have good days and bad days,” Manson said. “This did not make for a good day for them.”

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