On February 12, 2009, Continental Connection Flight 3407 from Newark International Airport to Buffalo Niagara International Airport crashed approximately five miles away from the Buffalo Airport.  We have assembled the information below in the hope that this information will be helpful to persons interested in the legal and safety issues associated with this terrible tragedy.

Flight 3407 was en route to Buffalo, New York.  The airplane was a Bombardier Dash 8-Q400 twin-engine turboprop aircraft operated by Colgan Air, Inc.  The reported weather conditions near Buffalo along their flight path were conducive to ice formation, and the NTSB has reported that the flight crew discussed ice buildup during the flight.  It is also reported that there was no distress call from the flight crew, and that the aircraft was on autopilot during the approach to the Buffalo Airport.

This type of aircraft has several different types of de-icing equipment.  For example, there are rubber deicing boots for the wings and tail, as well as an electrical system of deicing for the propeller blades, pitot static ports and stall warning system.

Although equipped with de-icing equipment, flying the plane on autopilot through icing conditions raises safety concerns.  The use of autopilot during icing conditions has been implicated in other icing related accidents and has long been criticized within the aviation industry.  The reason that use of the autopilot during icing conditions is criticized is because of the effect it has on the flight crew’s ability to assess the changes in the aircraft’s handling as a result of the icing.  As ice accumulates, it changes the flight characteristics of the aircraft.  If a pilot is flying with hands on the controls, he or she can usually sense the changes in the aircraft’s responsiveness.  At the same time, if the autopilot is on, the autopilot makes subtle compensations for the changes in responsiveness.  However, it also masks these changes from the pilot, so the pilot is unaware of the condition of the controls and the adjustments necessary to safely fly the aircraft.

Because of these concerns, many commercial airline carriers prohibit using auto-pilot during severe icing conditions and discourage its use during moderate icing.  In fact, there have been a number of commercial accidents involving icing, including the crashes of Comair Flight 3272 and American Eagle Flight 4181.  Since 1994, the FAA has issued a number of Airworthiness Directives with regard to icing, and one of those directives applied to the Dash-8 model of aircraft.  While the FAA also has proposed requiring icing detection equipment and automatic de-icing systems for these types of aircraft, that proposal is still under review and the Flight 3407 aircraft was not equipped with an automatic de-icing system.  However, it is too early to know if such a system could have prevented this crash, or if the existing de-icing equipment (which may have been in use) was functioning properly.

Further investigation is also needed in connection with the types of stalls that can occur with these aircraft.  The NTSB reported that after lowering its landing gear and wing flaps, the airspeed of the Flight 3407 aircraft slowed rapidly, causing its stall warning system (known as a “Stick Shaker”) to emit a warning.  Following the warning was what is called a “Stick Pusher,” where the pilot’s control automatically moves forward to lower the nose of the airplane.  This is supposed to increase the aircraft’s speed to try and prevent or recover from an aerodynamic stall.  The NTSB has stated that the flight crew of Flight 3407 may have pulled the control back and at the same time increase the engines to full power.  The aircraft’s nose then pitched up 31 degrees, worsening the stall condition.  The aircraft then rolled to its left and then went into a steep right turn, dropping 800 feet in less than five seconds.  This suggests the pilots were fighting with the aircraft’s controls, and may have been close to regaining control prior to impact.

Further investigation will be needed to determine why the aircraft suddenly slowed, what role icing might have played in causing the stall, and whether the flight crew reacted appropriately under the circumstances.  Questions also have been raised as to whether the flight crew was sufficiently experienced with this aircraft and/or properly trained to deal with icing and/or stall recovery.  Answers to these questions will take time and further inquiry.

Victims’ families may be contacted by attorneys or individuals working for those attorneys during the weeks following this terrible tragedy.  However, the families should know that communications initiated by attorneys are prohibited by federal law for the first forty-five days after an accident.  49 U.S.C. § 1136(G)(2).  In addition, New York State ethics laws that govern attorney conduct prohibit such solicitations for thirty days after the accident.  New York Code of Prof. Resp., DR 7-111, [22 NYCRR § 1200.41-a] McK. Consol. Laws, Book 29 App.  This law applies to lawyers admitted to practice in New York and lawyers from other states.  Families improperly approached or solicited should report the improper conduct to the NTSB’s General Counsel’s office, the New York State Bar Association, or New York’s Attorney Disciplinary Committees.

This is a difficult time for those who have lost loved ones, and families of victims should not feel pressured to take any immediate legal action.  The wrongful death statute of limitations in New York and New Jersey is two years, and other states have similar statutes of at least one year.  And, if the accident investigation were to suggest any failures on the part of the federal government’s air traffic control, the period to file a Notice of Claim against the government is two years.