ESTATE OF Shannon J. FORTIER et al. v. CITY OF LEWISTON et al.
Supreme Judicial Court of Maine.
June 3, 2010
2010 ME 50, 997 A.2d 84
Argued: Feb. 10, 2010.
Edward R. Benjamin, Jr., Esq. (orally), Thompson & Bowie, LLP, Portland, ME, for the City of Lewiston.
E. Chris L‘Hommedieu, Esq., Lewiston, ME, for the Estates of Nicholas Babcock and Teisha Loesburg.
Jamie R. Lebovitz, Esq., Nurenberg, Paris, Heller & McCarthy Co., L.P.A., Cleveland, OH, Randall E. Smith, Esq., Terrence D. Garmey, Esq. (orally)*,
Janet T. Mills, Atty. Gen., Christopher C. Taub, Asst. Atty. Gen. (orally), Augusta, ME, for amicus curiae Attorney General.
Robert H. Furbish, Esq., Berman & Simmons, Lewiston, ME, for amicus curiae Maine Trial Lawyers Association.
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, and GORMAN, JJ.
Dissent: LEVY, SILVER, and JABAR, JJ.
MEAD, J.
[¶1] The City of Lewiston appeals from an order of the Superior Court (Androscoggin County, Delahanty, J.) denying its motion for summary judgment in a wrongful death suit brought by the estates of three Lewiston High School students who died in a 2006 plane crash while attending an Air Force Junior Reserve Officer Training Corps (AFJROTC) summer program sponsored by the school. The City‘s interlocutory appeal is not barred by the final judgment rule because the City raises a claim of immunity pursuant to the Maine Tort Claims Act (MTCA),
I. BACKGROUND
[¶2] The following facts are contained in the summary judgment record, viewed in the light most favorable to the three estate plaintiffs (Estates) as the nonmoving parties. See Tarbox v. Blaisdell, 2009 ME 123, ¶ 2, 984 A.2d 1273, 1275. Shannon Fortier, Nicholas Babcock, and Teisha Loesburg were students at Lewiston High School (LHS), and were also cadets in the school‘s AFJROTC program. The AFJROTC program is part of the school curriculum, and the principal of LHS has overall responsibility for its operation. The program is commanded by a retired Air Force officer, in this case Lieutenant Colonel (ret.) Robert Meyer, a career Air Force pilot. In his capacity as Senior Aerospace Science Instructor at LHS, Meyer was an employee of the City of Lewiston at the time of the accident at issue in these suits.
[¶3] In June 2006, Shannon, Nicholas, and Teisha attended an AFJROTC one-week summer leadership school. As part of the curriculum, on June 22 they and other cadets participated in orientation flights that Meyer had arranged using an FAA-certified aircraft provided by Twin Cities Air Services (Twin Cities), which operated a flight school at the Lewiston-Auburn airport. The aircraft was piloted by Charlie Weir, an FAA-certified flight instructor and Twin Cities employee.
[¶5] Fortier‘s estate filed a wrongful death suit against Twin Cities and the Lewiston School Department. The estates of Babcock and Loesburg filed suit against the Lewiston School Department and the City of Lewiston, which in turn filed a third-party complaint against Twin Cities. One of the theories advanced by the Estates was that Meyer acted negligently in failing to prevent the three students from flying with Weir, given his expertise as a former Air Force pilot and his knowledge of Weir‘s unsafe flying. The Superior Court consolidated the cases, and later entered an order removing the Lewiston School Department from the suit upon ruling that the City was the proper party. The Babcock and Loesburg estates eventually settled with Twin Cities.
[¶6] On March 20, 2009, the City moved for summary judgment, asserting that it was immune from suit pursuant to the MTCA because (1) it was not “using” the Twin Cities aircraft within the meaning of
II. DISCUSSION
[¶7] The MTCA states the general rule that “all governmental entities3 shall be immune from suit on any and all tort claims seeking recovery of damages.”
Except as specified in section 8104-B, a governmental entity is liable for property damage, bodily injury or death in the following instances.
1. Ownership; maintenance or use of vehicles, machinery and equipment. A governmental entity is liable for its negligent acts or omissions in its ownership, maintenance or use of any:
....
D. Aircraft, as defined in Title 6, section 3, subsection 5.
[¶8] In construing section 8104-A, we recognize that “the MTCA employs an exception-to-immunity approach rather than an exception-to-liability approach.” Thompson v. Dep‘t of Inland Fisheries & Wildlife, 2002 ME 78, ¶ 15, 796 A.2d 674, 676 (quotation marks omitted). Accordingly, our analysis “start[s] from the premise that immunity is the rule and exceptions to immunity are to be be strictly construed.” Id. (quotation marks omitted).
[¶9] The Superior Court denied the City‘s motion for summary judgment after finding that the application of a “plain and common meaning” of the word “use” made it “arguable that the School Department‘s hiring of an independent contractor to perform orientation flights constituted use, albeit indirect use, of an aircraft within the meaning of the MTCA.” The trial court‘s denial of a motion for summary judgment seeking immunity is reviewed for errors of law. Jorgensen v. Dep‘t of Transp., 2009 ME 42, ¶ 12, 969 A.2d 912, 916.
[¶10] The threshold and ultimately dispositive question of statutory interpretation before us is whether the City was “using” the Twin Cities aircraft within the meaning of the MTCA when it crashed. If so, then further analysis is required; if not, then section 8103(1) declares that the City is immune from suit and ends our inquiry. The first step in answering this threshold question is to recognize that the issue of whether Meyer should have prevented the three students from flying with Weir is relevant to a determination of whether Meyer acted negligently, but irrelevant to the separate question of whether the City was “using” the aircraft in the first instance. When the students’ flight took off, the City was either “using” the Twin Cities plane within the meaning of section 8104-A(1)(D) or it was not, regardless of anything Meyer did or failed to do. Accordingly, we set aside any consideration of Meyer‘s actions and examine de novo what the Legislature meant when it said that “[a] governmental entity is liable for its negligent acts or omissions in its ownership, maintenance or use of any ... [a]ircraft.”
[¶11] Although we have not previously addressed this precise question, the task of interpreting a statute is a familiar one that we undertake using well-established principles. We recently observed, “Statutory construction is a holistic process: we construe the whole statutory scheme of which the section at issue forms a part so that a harmonious result, presumably the intent of the Legislature, may be achieved.” McPhee v. Me. State Ret. Sys., 2009 ME 100, ¶ 23, 980 A.2d 1257, 1265 (quotation marks omitted). Although the Superior Court gave meaning to the word “use” in section 8104-A(1) by employing the definition found in Black‘s Law Dictionary, we apply the principle of statutory construction just recited to illuminate the meaning of the word “use” by examining other language in the same section.
[¶12] Careful analysis of the key clause in section 8104-A(1)—“its ownership, maintenance or use“—provides the necessary illumination. The clause addresses three situations in which the Legislature has decided to waive a governmen-
[¶13] It would make little sense for the Legislature to specify two categories of potential liability requiring actual control of equipment by a governmental entity and then make the “use” category so expansive as to include virtually any direct or indirect employment of motor vehicles, aircraft, watercraft, snowmobiles, or other equipment implicated by the statute, regardless of ownership and regardless of whether the governmental entity has any control over how the equipment is maintained or operated.
[¶14] That is, however, precisely what the Estates urge us to conclude. In their view, the City “used” the Twin Cities aircraft for MTCA purposes simply by paying for three seats on it, even though the City did not own or maintain the plane, or train, test, or employ its pilot. Logically, the same conclusion would result from the City‘s purchase of three seats on a commercial airline flight,6 or from the City‘s use of a private ferry for seaborne transportation. The Estates’ attempt to obscure this inescapable result and its implications7 by conflating the question of the City‘s “use” of the aircraft with the ques-
[¶15] Given the more restrictive meanings of “ownership” and “maintenance” in the same clause, and our obligation to strictly construe exceptions to immunity, we hold that, in providing for liability resulting from negligence in the “use of any ... [a]ircraft,”
[¶16] Because we conclude that
The entry is:
Order denying motion for summary judgment vacated. Remanded for entry of summary judgment for the City of Lewiston.
SILVER, J., with whom LEVY and JABAR, JJ., join, dissenting.
[¶17] Today, the Court further narrows the applicability of the MTCA by ignoring the plain meaning of the word “use” and substituting its own meaning of a commonly used word. The Court equates “use” with “ownership” and “maintenance.” Unfortunately, this interpretation will have far-reaching consequences.
[¶18] Under the majority‘s construction, in order to “use” an aircraft under the MTCA, the governmental entity must control how the aircraft is maintained or operated. This means either that “use” is synonymous with ownership and maintenance, or that “use” means “operation.” Either interpretation contradicts the plain
[¶19] Title 14, section 8104-A provides:
Except as specified in section 8104-B, a governmental entity is liable for property damage, bodily injury or death in the following instances.
1. Ownership; maintenance or use of vehicles, machinery and equipment. A governmental entity is liable for its negligent acts or omissions in its ownership, maintenance or use of any:
A. Motor vehicle, as defined in Title 29-A, section 101, subsection 42;
B. Special mobile equipment, as defined in Title 29-A, section 101, subsection 70;
C. Trailers, as defined in Title 29-A, section 101, subsection 86;
D. Aircraft, as defined in Title 6, section 3, subsection 5;
E. Watercraft, as defined in Title 12, section 1872, subsection 14;
F. Snowmobiles, as defined in Title 12, section 13001, subsection 25; and
G. Other machinery or equipment, whether mobile or stationary.
The provisions of this section do not apply to the sales of motor vehicles and equipment at auction by a governmental entity.
[¶20] “Use” must have an independent meaning from “ownership” or “maintenance,” or it would be mere surplusage. See Linnehan Leasing v. State Tax Assessor, 2006 ME 33, ¶ 21, 898 A.2d 408, 413 (applying “our rule of construction that we will not treat any provision of a statute as surplusage when a reasonable construction of a statute can provide meaning to each provision“). In determining the definition of the word “use” in the statute, we look to its plain meaning. See Me. Sch. Admin. Dist. No. 37 v. Pineo, 2010 ME 11, ¶ 16, 988 A.2d 987, 993. “A use is the application or employment of something for some purpose.” Uliano v. Bd. of Envtl. Prot., 2009 ME 89, ¶ 18, 977 A.2d 400, 409 (interpreting the Natural Resources Protection Act) (quotation marks omitted). “Use” does not mean “operate,” but rather has a broader definition, and this Court has noted that the choice of the word “using,” as opposed to “operating,” in a contract “reflects a recognition that one may use a motor vehicle without operating it.” Craig v. Estate of Barnes, 1998 ME 110, ¶ 11, 710 A.2d 258, 261; see also Allstate Ins. Co. v. Lyons, 400 A.2d 349, 352 (Me. 1979) (noting, in the context of an insurance contract, the “choice of the word ‘use’ as distinguished from the word ‘operation,‘” and agreeing that “the words use and operation are not synonymous.... Use is ... broader than operation“) (quotation marks omitted); id. at 353 (discussing the “dispositive nature of [the] choice of terms“).
[¶21] The United States Supreme Court as well has held the word “use” to mean “active employment,” and in the context of a firearm found that to include not only operation as a weapon, but the broader activities of brandishing and bartering with the firearm. See Bailey v. United States, 516 U.S. 137, 143, 146 (1995), superseded by statute, Act to Throttle Criminal Use of Guns, Pub.L. No. 105-386, § 1(a), 112 Stat. 3469 (1998) (codified at
[¶22] If the Legislature had intended “use” to mean something narrower than the common definition, it would have used the word “operation,” as it did in the Maine Aeronautics Act, referencing the “operation of aircraft.” See
[¶23] The majority raises the example of a city purchasing seats on a commercial airliner to suggest the possible expansive result of interpreting “use” according to its plain meaning. This example is misleading for two reasons. First, the MTCA requires not only use of the aircraft, but also negligence by the City in that use, in order to impose liability. See
dents to board a commercial flight would not be a negligent act. Here, in contrast, the City chartered the aircraft, potentially had information that such use would be dangerous, and allowed the students to board the plane anyway. This potentially negligent use subjects the City to a claim under the MTCA.9
[¶24] Second, this Court is tasked with interpreting the statute as written, not with finding a meaning that will avoid an increase in liability. We have always followed the plain meaning of statutes, see, e.g., Pineo, 2010 ME 11, ¶ 16, 988 A.2d at 993, and the majority‘s interpretation departs from this cardinal rule of statutory interpretation.
[¶25] It is common for local governments to contract with independent operators to provide transportation services as well as to perform activities such as garbage collection or street maintenance. Government employees may nonetheless be directly involved in the use of the vehicle associated with those services, and those employees should not be exempted from liability for their negligence. For example, a local official who has reason to believe that a school bus driver employed by a private operator is intoxicated should be expected to take steps to prevent the students from boarding the bus. Under the majority‘s approach, the local official‘s negligence would be deemed not to fall within the MTCA‘s unambiguous exception to immunity for a government‘s “negligent acts or omissions in its ... use of any ... [m]otor vehicle.”
[¶26] In this case, the City was using the aircraft when the accident occurred, and it was within the context of that use that Colonel Meyer is alleged to have acted negligently. For these reasons, I would hold that there is no governmental immunity for the City of Lewiston.
Notes
Notwithstanding section 8104-A, a governmental entity is not liable for any claim which results from:
...
3. Performing discretionary function. Performing or failing to perform a discretionary function or duty, whether or not the discretion is abused and whether or not any statute, charter, ordinance, order, resolution or policy under which the discretionary function or duty is performed is valid or invalid, except that if the discretionary function involves the operation of a motor vehicle, as defined in Title 29-A, section 101, subsection 42, this section does not provide immunity for the governmental entity for an employee‘s negligent operation of the motor vehicle resulting in a collision, regardless of whether the employee has immunity under this chapter.