Terry Garmey, the lawyer for families of Lewiston High School students killed in a plane crash in 2006, makes his point in Maine Supreme Judicial Court in Portland on Wednesday.

Lawyer Ed Benjamin Jr., representing the city of Lewiston, makes a point in Maine Supreme Judicial Court on Wednesday during a hearing on the city’s liability in a plane crash that killed three Lewiston High School students in 2006.

Leigh Saufley, chief justice of the Maine Supreme Judicial Court, listens to testimony during Wednesday’s appeal by the city of Lewiston in the 2006 plane crash that killed three students.

PORTLAND — An attorney for the city of Lewiston sought Wednesday to sway judges on the state’s highest court to overturn a lower court ruling that said the city wasn’t immune from a lawsuit over a plane crash in which three Lewiston High School students died.

An attorney speaking for the families of the students argued before the Maine Supreme Judicial Court that the city can’t duck responsibility.

Ed Benjamin Jr., representing the city, told the panel of seven justices that the Androscoggin County Superior Court was mistaken when it ruled last summer against the city’s efforts to drop civil claims stemming from a 2006 plane crash in Newry.

He said the city should be granted governmental immunity from the families’ complaints under the Maine Tort Claims Act. The city contracted with Twin Cities Air Services in Auburn to take Air Force Junior ROTC students at Lewiston High School on orientation flights. Twin Cities provided the plane and the pilot.

Chief Justice Leigh Saufley said Maine law on that point would appear open to interpretation.

“It is obviously … not at all clear who is at risk if the use of the aircraft in this case results in a tragedy,” she said.

If it’s ambiguous, “then immunity would prevail,” Benjamin told her.

He said the city had no control over the operation of the aircraft because it had hired a contractor and relied on its equipment and expertise.

“By hiring an independent contractor in this way, the government doesn’t have the risk,” he said.

The Maine Tort Claims Act says that independent contractors are not employees for the government, he said.

Assistant Attorney General Christopher Taub, who filed a brief in support of the city, argued before the court that government workers are given discretion to make public policy decisions without having to fear lawsuits that may arise from their decisions under the Maine Tort Claims Act. The state, like the city, hires many independent contractors.

Saufley continued to explore the distinction between government-owned-and-operated transportation and contracted transportation.

“If the school had owned that plane, as it does with school buses or vans, there would be little question that the city would be responsible and that insurance for such risks could be purchased,” she said. “Why does the contract … make this different? Why isn’t this just the same as if the city had decided to buy the plane?”

Taub said: “The Legislature has clearly signaled the intent that the state is not going to be held liable for the actions of independent contractors.”

Justice Ellen Gorman, a former Androscoggin County Superior Court judge, asked: “Once the city made the decision to retain this independent contractor, this flight instructor, anything that happened thereafter, the city was immune from?”

“I’m not sure if I would go that far,” Taub said.

Terry Garmey, who represents the estate of one of the students and spoke for the other two, argued that the Maine Tort Claims Act means exactly what it says.

“A governmental entity is liable for its negligent use,” he said. “I’m an old English major. ‘Its’ is a possessive. It modifies ‘negligence’ and ‘use.’ ‘It’ has to be negligent and it has to ‘use.’ ”

The city did both, he said. It used the plane for rides for its students and it was negligent by not stopping the flights after learning they might be unsafe.

“Does that mean, Mr. Garmey, that in any instance where a town contracts with a provider to provide a school bus, a van, some form of transportation and there is an accident, the school has used that vehicle and is therefore liable?” Saufley asked him.

Garmey said the town also would have to be negligent, as the city was when its ROTC program liaison at Lewiston High School had been after he was told about unusual maneuvers performed by the young pilot during an earlier flight, yet didn’t halt the following flight, during which the three students were killed.

Students Nicholas Babcock, 17, Teisha Loesberg, 16, and Shannon Fortier, 15, were flying in a single-engine plane operated by Auburn-based Twin Cities out of Bethel Airport. The plane crashed into Barker Mountain in nearby Newry, killing everyone aboard.

If the high court were to uphold the lower court ruling, it would send the matter back to the Auburn court for trial. But if the appeal is successful, the high court would order the lower court to grant the city summary judgment, dismissing the claims against it.

A decision is expected in the coming months.

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