Smith Elliott Smith & Garmey
Verdicts & Settlements
Judge denies Lewiston's bid to kill Barker Mountain case; City argued it had "immunity" to claims in fatal ROTC plane crash
Auburn, ME -- Judge Thomas E. Delahanty has denied a motion by the City of Lewiston and the Lewiston School Department seeking a summary judgment that would effectively dismiss a wrongful death lawsuit filed by the families of three high school students who were killed in a 2006 plane crash on Barker Mountain.
Further, the judge ordered that all claims against the Lewiston School Department in the case, which will now proceed to trial in Androscoggin Superior Court, be merged into the claims against the City of Lewiston.
Lewiston High School maintained a chapter of the Air Force Junior Reserve Officers' Training Corps (AFJROTC) and three of its students, Shannon Fortier, Nicholas Babcock and Teisha Loesburg, were cadets in the program. During a second training flight on June 22, 2006, the pilot of the plane, who was recklessly flying barefoot, flew dangerously low and performed inappropriate maneuvers, including a stall-and-dive maneuver and a "zero G" maneuver.
"These were supposed to be simple orientation flights," said Randall Smith, co-counsel for the plaintiffs in the case. "Instead, the pilot's unsafe tactics took these poor kids into the side of a mountain, costing them their lives."
The pilot was also killed in the crash.
Robert Meyer, a retired Air Force colonel and an employee of Lewiston High School, was in command of the AFJROTC unit at the time of the accident, and was responsible for supervising the pilot's flight. (The U.S. Air Force funded the program, but Meyer's salary was jointly funded by the Air Force and Lewiston High School.) Prior to the flight, Colonel Meyer conferred with the pilot and outlined that the flight should be about 20 minutes long. However, Meyer and the pilot did not discuss the specific parameters of the flight, or what particular maneuvers the pilot would demonstrate. Court documents show that Meyer "believed that orientation flights were short flights in which the cadets would be exposed to take-off, basic maneuvering of the aircraft in flight, and then landing."
In the lawsuit, the families of the three cadets allege that the pilot flew in an "unsafe and reckless" manner, and that Meyer was negligent in overseeing the flight orientations. In its motion for summary judgment, the defendant argued that the City did not actually "use" the airplane that crashed, but that it had merely contracted for its use. Citing case law, it also argued that as a government entity, it is immune to claims against one of its employees. In his order, Delahanty wrote that "Colonel Meyer's acts or omissions were not of a governmental nature or function; rather, they were made within the scope of his business as a school instructor."
Delahanty was equally plainspoken in his decision about whether or not the City was using the plane. "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."
According to Smith, unless there is a settlement the case will now proceed to trial.
"That June day three years ago was a terrible day for the families of these three kids," Smith said. "I know they are grateful for Judge Delahanty's ruling, and are now preparing emotionally for their day in court, and for some measure of closure."
Randall Smith is a partner at Smith Elliott Smith & Garmey, P.A, with offices at 199 Main Street in Saco and 7 Custom House Street in Portland.