AUBURN — The city of Lewiston is hoping the state’s highest court will agree that a lower court judge erred when he declined to drop a civil claim against the city by parents of three high school cadets killed in a 2006 plane crash.

Ed Benjamin Jr. filed notice of appeal to the Maine Supreme Judicial Court on behalf of the city. He challenged the ruling of a judge in Androscoggin County Superior Court after Benjamin filed a motion for a summary judgment to dismiss the case against Lewiston High School and the city.

Benjamin had argued in court that the city should be granted governmental immunity from the pending claims under the Maine Tort Claims Act. He said the city had contracted services with Twin Cities Air Services to provide orientation flights to the public high school’s Air Force Junior ROTC students. Twin Cities used its plane and its pilot.

Justice Thomas Delahanty II wrote in his ruling last month that: “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 Delahanty erred when he ruled that the city was not entitled to “discretionary function immunity.”

Benjamin had argued city employees are given 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 that company choose its pilots should be viewed as an extension of the discretionary function covered under the Maine Tort Claims Act, Benjamin had told the judge.

Delahanty ruled that Col. Robert Meyer, the Lewiston High School employee who headed up the ROTC program, wasn’t making governmental public 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 is seeking to have the high court decide his appeal before the case continues to trial.

Lewiston High School 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, killing everyone aboard.

A federal report determined there was no evidence of mechanical error by the Cessna 172 N that would have 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 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 filed in court by families of the deceased students.

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