July 14th, 2009|
By Christopher Williams, Staff Writer Sun Journal
Published: Jul 14, 2009 12:00 am
Originally Published address http://www.sunjournal.com/node/33815/
AUBURN — A lawyer told a judge Monday that the city of Lewiston shouldn’t be held liable for the deaths of three local students who died in 2006 when the plane in which they were passengers crashed on Barker Mountain in Newry.
The Air Force Junior ROTC students — Nicholas Babcock, 17; Teisha Loesberg, 16; and Shannon Fortier, 15 — were taking an orientation flight in a single-engine plane operated by Twin Cities Air Services LLC in Auburn.
Families of the three students sued the company, as well as the city and the school department, for wrongful death in Androscoggin County Superior Court.
Lawyer Ed Benjamin Jr. of Portland argued at a hearing Monday that the city should be granted governmental immunity from the pending claims under the Maine Tort Claims Act. He said the city contracted with Twin Cities Air Services to provide a service, which included using an airplane.
“It was not our use of the aircraft,” according to the law, Benjamin said. “It was Twin Cities’ (Air Services) use.”
He 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, Benjamin said.
He is seeking summary judgment in the case in hopes the judge will agree that the plaintiffs’ claims against the city are not supported by the facts presented so far.
Jamie Lebovitz, an Ohio lawyer who represents Fortier’s estate, said the city falls outside the Maine Tort Claims Act in this case by using an aircraft in a reckless and negligent manner. The program director at Lewiston High School could have prevented the fatal flight.
“There were so many windows of opportunity for this tragedy to have been averted,” Lebovitz said.
Chris L’Hommedieu, who represents the estates of Babcock and Loesberg, echoed Lebovitz’s arguments. He said an exception to state law is the city’s use of a motor vehicle or aircraft. That can be construed as the city making use of the aircraft, even if it’s not the city’s own aircraft, L’Hommedieu said. Also, state law defines operation to include hiring somebody else to operate the aircraft for you, he said.
He noted that the pilot, 24-year-old William “Charlie” Weir, had engaged in unsafe flying maneuvers before the fatal flight and the school was made aware of the pilot’s behavior. At one point during an earlier flight with other students, one of the pilot’s flip-flops flew through the air and struck one of the students in the head, according to an affidavit sworn by the student.
L’Hommedieu said the city’s decision to put three students on a plane after it was made aware of the pilot’s behavior should not be protected under the Maine Tort Claims Act.
“Clearly, the decision to put kids onto a plane which is known to be an unsafe situation is not a public policy decision,” he said after the hearing.
Justice Thomas Delahanty II promised a decision by the end of next week
Both sides said they would appeal the judge’s decision were it not in their favor.
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 the earlier cadet flight the day of the crash, when 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.