The lawyer for the first officer and only survivor of Comair Flight 5191 says he has withdrawn a controversial defense strategy in which the passengers who died on the flight were held partly responsible for their deaths. They along with the pilot and a flight attendant died after the aircraft took off from the wrong runway at Lexington, Ky.’s airport in August of 2006. As part of first officer James Polehinke’s defense against the numerous lawsuits against him, his lawyer William E. Johnson wrote in the statement of defense that the passengers should have known that taking a commercial flight from the airport was a perilous affair because of well-publicized construction on the runways. He also claimed they should have known that the air traffic control tower was understaffed, that other airports in the area were considered safer and that flying in the dark is dangerous.
The striking assertions were covered as “contributory negligence” in the original filings and the details only came out after he was pressed for more details by plaintiffs’ lawyers. The other lawyers were stunned by the defense. “It was the most surprising affirmative defense I’ve ever seen,” said trial lawyer David Katzman. But Johnson said the controversy is “old news” and he doesn’t intend to pursue that line. “After we looked into it more we found it is not a proper defense,” he said.
