Says Field Enjoys 'Sovereign Immunity' As Government Entity

A Fayette County Circuit Court judge ruled Thursday Blue Grass Airport in Lexington, KY cannot be sued for damages stemming from the deadly takeoff crash of a Comair CRJ-100 last August.

The Cincinnati Enquirer reports after two hours of deliberations, Judge James Ishmael ruled the airport cannot be held legally responsible for the accident, as it falls under "sovereign immunity" as an entity of the merged Lexington-Fayette County government.

While cities and city entities may be sued under Kentucky's constitution, counties cannot be without a waiver from the General Assembly -- a step that hasn't been taken in the Comair case.

The decision is a blow for the Delta regional subsidiary, as it struggles to collect damages and divide blame for the accident that claimed 49 of the 50 persons onboard the regional jet, which departed the wrong runway at the airport.

As ANN reported, last week the National Transportation Safety Board ruled pilot error was the primary cause of the August 27, 2006 takeoff accident -- saying both pilots failed to heed runway signs and a NOTAM on construction at the airport. The Board also said the FAA shouldered some responsibility, for failing to enforce its own suggestions on proper runway checks before takeoff.

While it did not single out Blue Grass Airport, the NTSB also suggested improved runway and taxiway markings at regional airports across the country. Comair has maintained the airport is at least partially to blame for the accident, saying poor markings might have contributed to the crew lining up on Runway 26, instead of the correct -- and much longer -- Runway 22.

Comair attorney Ed Stopher tried unsuccessfully to convince the court while Blue Grass Airport is a county entity, it operates independently and receives little government money -- in essence, that KLEX operates as a private airport.

"Airports are not governmental by nature any more than a theater is governmental by nature," Stopher said.

Judge Ishmael wasn't convinced by the airline's efforts, however -- siding instead with airport attorney Kevin Henry, who countered the airport's runways and taxiways "operate like public roads for airplanes."

There was precedent for the decision, as well: a 1985 case that ruled KLEX was governmental in nature, and thereby immune from lawsuits.

The airline is now milling over whether to appeal the decision, according to Comair spokeswoman Kate Marx.

Comair spokeswoman Kate Marx said afterward that the airline was weighing whether to appeal.

FMI: www.bluegrassairport.com, www.ntsb.gov