District of Columbia v. Air Florida, Inc.

• Decision Date: 28 December 1984
• Docket Number: No. 84-5041,84-5041
• Citation: 750 F.2d 1077,243 U.S.App.D.C. 1
• Parties: DISTRICT OF COLUMBIA, a Municipal Corporation, Appellant, v. AIR FLORIDA, INC., et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1077

750 F.2d 1077

243 U.S.App.D.C. 1

DISTRICT OF COLUMBIA, a Municipal Corporation, Appellant, v. AIR FLORIDA, INC., et al.

No. 84-5041.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 15, 1984.

Decided Dec. 28, 1984.

Edward E. Schwab, Asst. Corp. Counsel for the District of Columbia, Washington, D.C., with whom John H. Suda, Principal Deputy Corp. Counsel and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., for the District of Columbia were on the brief, for appellant.

George N. Tompkins, Jr., with whom Cynthia J. Larsen was on the brief, New York City, for appellee.

Before TAMM and EDWARDS, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This case involves a claim by the District of Columbia (the "District" or the "city") against Air Florida in connection with the tragic 1982 crash of an Air Florida plane. As a result of the accident, a commercial airline destroyed portions of the 14th Street/Rochambeau Memorial Bridge, and then crash-landed in the Potomac River. The District now seeks to recover from Air Florida the costs of emergency services and cleanup required in the aftermath of the tragedy.

The District Court dismissed the city's suit as failing to state a claim upon which relief could be granted. In this appeal, the District contends that its complaint alleged facts sufficient to support recovery on two separate legal theories. First, the city maintains here, as it did below, that a municipality may recover the costs of "extraordinary" emergency services from negligent tortfeasors. Second, the District presents for the first time on appeal the novel theory that Congress has implicitly delegated the United States' alleged public trust responsibilities for the Potomac River to the District and that, consequently, under the common-law public trust doctrine, Air Florida owed the city a duty of care regarding the river which was breached by the crash.

We affirm the judgment of the District Court. The question whether a governmental entity may recover the costs of tax-supported emergency services from negligent tortfeasors appears to be one of first impression in the District of Columbia. Precedent from other jurisdictions, however, persuades us that, in the absence of authorizing legislation or a governmental proprietary interest protected by the services, these expenses may not be recovered from tortfeasors.

We decline to consider in this case whether the public trust doctrine provides a basis for Air Florida's liability. The District neither made any allegations in its complaint that it was surrogate trustee for the Potomac or that the public trust doctrine was in any way implicated in this case, nor did it raise this theory in its memoranda or arguments before the District Court. While a complaint should not be dismissed unless the court determines that the allegations do not support relief on any legal theory, the complaint nonetheless must set forth sufficient information to suggest that there is some recognized legal theory upon which relief may be granted. The appellant's public trust theory is a novel one. It was not presented to the District Court and the trial judge surely had no obligation to create, unaided by the plaintiff, a new legal theory in order to support the city's complaint.

We believe that dismissal for failure to state a claim was appropriate and regard the District's public trust argument as a new theory advanced for the first time on appeal. Although appellate courts retain the discretion to entertain new theories, the usual rule is that such theories will not be heard except in exceptional cases. We find no circumstances in this case justifying departure from the normal rule. Our decision not to consider the District's public trust claim is reinforced by our belief that the argument that public trust duties pertain to federal navigable waters, such as the section of the Potomac River at issue here, raises a number of very difficult issues concerning the rights and obligations of the United States (which is not a party here), the creation of federal common law, and the delegation of trust duties to the District. We would prefer to have the benefit of a complete trial record, including the District Court's thinking on these questions, before reaching such novel issues on appeal; we therefore leave the resolution of these issues to another day and another case.

I. BACKGROUND

On January 13, 1982, a passenger jet operated by Air Florida took off from Washington National Airport in a heavy snowstorm. Shortly after leaving the runway, the plane struck the Rochambeau Bridge and then plunged into the Potomac. Seventy-eight people, including some on the bridge, were killed in the accident. The District of Columbia incurred significant expenses, allegedly in excess of three-quarters of a million dollars, in rescuing survivors, recovering bodies of the deceased, and raising the airplane and its contents from the river. ¹

The District initially sued to recover these emergency and cleanup expenses in the Superior Court of the District of Columbia; however, on Air Florida's motion, this action was removed to the District Court under 28 U.S.C. Sec. 1441(a). In its complaint, the city alleged that it had incurred extraordinary expenses as a result of Air Florida's negligence. The appellee moved to dismiss this claim under Fed.R.Civ.P. 12(b)(6). In support of its motion, Air Florida argued that it had no duty of due care to protect the District from the expense of providing emergency services and that the costs of public services are not recoverable in a negligence action. The District Court agreed and dismissed this claim, holding that absent either a statute specifically authorizing recovery or a governmental proprietary interest protected by the services, public funds expended in the "performance of governmental functions such as the emergency service provided by plaintiff following the crash ... are not recoverable in tort." ²

II. ANALYSIS

A. Rational Cost Allocation Theory

The District contends that it is entitled to recover the costs of rescue and cleanup from Air Florida under a tort theory of rational cost allocation. Because the costs of emergency services occasioned by air disasters are quite high, the city urges that considerations of economic efficiency and equity require that these costs be allocated to the airline industry and its passengers, rather than to those distressed municipalities fortuitously located in the paths of crashes. ³

The question whether a municipality may recover the cost of police and other emergency services from a tortfeasor is governed by local law. Because this issue apparently has never been decided by District of Columbia courts, we look to other jurisdictions for assistance in determining how the District's courts would rule, were they to face this question. ⁴

The general common-law rule in force in other jurisdictions provides that, absent authorizing legislation, "the cost of public services for protection from fire or safety hazards is to be borne by the public as a whole, not assessed against the tortfeasor whose negligence creates the need for the service." ⁵ We think that the Ninth Circuit, in City of Flagstaff v. Atchison, Topeka and Santa Fe Railway Co., ⁶ has offered a persuasive rationale for this common-law rule, and we adopt both their reasoning ⁷ and the rule here. Where emergency services are provided by the government and the costs are spread by taxes, the tortfeasor does not anticipate a demand for reimbursement. Although settled expectations must sometimes be disregarded when new tort doctrines are needed to remedy an inequitable allocation of risks and costs, where a generally fair system for spreading the costs of accidents is already in effect--as it is here through assessing taxpayers the expense of emergency services--we do not find the argument for judicial adjustment of liabilities to be compelling.

We are especially reluctant to reallocate risks where a governmental entity is the injured party. It is critically important to recognize that the government's decision to provide tax-supported services is a legislative policy determination. It is not the place of the courts to modify such decisions. Furthermore, it is within the power of the government to protect itself from extraordinary emergency expenses by passing statutes or regulations that permit recovery from negligent parties. ⁸ In other words, the city clearly has recourse to legislative initiative to eliminate or reduce the economic burdens of accidents such as the Air Florida crash.

Exceptions to this general common-law rule have been made where the government incurs expenses to protect its own property. ⁹ We need not consider the propriety of this exception, however, because the District was not acting to protect its property in providing services after the Air Florida crash. Consequently, we hold that the District Court correctly dismissed the District's claim for reimbursement of expenses associated with emergency services.

B. The Public Trust Doctrine Theory

The District has attempted to overturn the judgment of the District Court by advancing a new legal theory on appeal. While, as the city acknowledges, the United States holds title to the section of the Potomac at issue, ¹⁰ and must therefore be the sovereign trustee, the District contends that Congress has implicitly delegated to it the United States' public trust responsibilities for the river ¹¹ and that, as surrogate trustee, it is obliged to keep the river free from impediments to navigation and from impurities. This responsibility, the District maintains, forms the basis of a duty of care on the part of Air Florida not to interfere with the city's trust obligations, and permits the city to recover cleanup costs which resulted from the breach of that...