In Estate of Fortier v. City of Lewiston, the Maine Supreme Judicial Court, sitting as the Law Court, was asked to decide if the City of Lewiston was “using” an aircraft under the Maine Tort Claims Act (MTCA) when it chartered a plane from Twin Cities Air Services (Twin Cities) as part of an Air Force Junior Reserve Officer Training Corp (AFJROTC) exercise. Tragically, the pilot and three AFJROTC cadets from Lewiston High School lost their lives when the plane crashed into Barker Mountain shortly after take-off. The families of the students brought suit against Lewiston, in part, alleging negligence on behalf of the high school’s Senior Aerospace Instructor, who was responsible for coordinating the chartered flight as part of the AFJROTC program. A slim majority held that, under the court’s rules of statutory construction, and in the interest of narrowly construing exceptions to immunity under the MTCA, the statutory exception for “use” only applied when the governmental entity had some measure of direct control over the vehicle that was being used. Because the aircraft was under the direct control of Twin Cities’ pilot, Lewiston was not “using” the plane as defined by the MTCA and was thus immune from suit. The dissent would not have equated “use” to “operation,” as it believed the majority did, but instead would have used a broader, plain meaning definition of “use.” When Lewiston chartered the plane as part of its AFJROTC program, this “use” qualified as an exception to the MTCA, allowing the lawsuit to go forward.

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