Judge says city not immune in cadet plane crash case

by fstrack | July 25th, 2009

By Christopher Williams, Staff  Writer Sun Journal
Published: Jul 25, 2009 12:00 am
Originally Published Address www.sunjournal.com/node/41106

AUBURN — A judge has ruled against the city of Lewiston’s motion to dismiss a civil suit brought by the parents of three local students who died in a 2006 plane crash during an orientation flight for Air Force ROTC cadets.

The ruling means the parents’ claims of wrongful death will continue. The city has promised to appeal.

A lawyer representing Lewiston argued last week that the city should have been granted governmental immunity under the Maine Tort Claims Act.

Lawyer Ed Benjamin Jr. of Portland said the city contracted with Twin Cities Air Services to provide a service, which included using an airplane. He told the judge it was not the city’s use of the aircraft, according to state law.

Writing in his order, Androscoggin County Superior Court Justice Thomas Delahanty II said: “The city’s use of the aircraft was indirect, as contractors were employed to operate the aircraft, but nevertheless constituted use under the plain meaning of the word.”

Benjamin also said city employees are given the discretion to make public policy without having to fear lawsuits that may arise from those decisions under the Maine Tort Claims Act. The school’s decision to use Twin Cities Air Services for the flights, and to let the company choose its pilots, should be viewed as an extension of the discretionary function covered under the Maine Tort Claims Act, he told the judge.

But Justice Delahanty wrote that Col. Robert Meyer, the Lewiston High School employee who headed up the school’s ROTC program, wasn’t making governmental policy when he decided “whether, and to what extent, to review what the pilot was doing during a particular flight … Rather, it involved operational decisions made by a school employee regarding the safety of the children participating in that particular” program.

Benjamin could not be reached Friday for comment.

Chris L’Hommedieu, who represents the estates of two of the students, said Friday all of the plaintiffs were pleased by Delahanty’s ruling. “We think the judge made the right decision,” L’Hommedieu said, in opting for “the common sense definition of ‘use.'”

The Air Force Junior ROTC students — Nicholas Babcock, 17; Teisha Loesberg, 16; and Shannon Fortier, 15 — were flying in a single-engine plane operated by Auburn-based Twin Cities Air Services LLC out of Bethel Airport. The plane crashed into Barker Mountain in nearby Newry.

A federal report showed there was no mechanical failure by the Cessna 172 N that caused it to crash. The National Transportation Safety Board pointed to incidents, including a cadet flight earlier on the day of the crash, when 24-year-old pilot William “Charlie” Weir reportedly took unsafe chances. He reportedly flew too low, performed stall-and-dive maneuvers and executed a “zero G” maneuver, according to the complaints.