Fortier – Use It or Lose It


The third significant decision from the Maine SJC last week was Estate of Fortier v. City of Lewiston, 2010 ME 50,

The factual predicate was a tragedy – three students died in a plane crash while participating in an ROTC summer program sponsored by Lewiston High School.  Their estates filed wrongful death suits against the City, which raised an immunity defense.  The issue was the scope of one of the exceptions to immunity under the Maine Tort Claims Act, 14 M.R.S. s. 8104-A(1)(D):  "A governmental entity is liable for its negligent acts or omissions in its ownership, maintenance or use of any … aircraft, as defined in Title 6, section 3, subsection 5."  The Estates alleged that the defendant was negligent because the commander of the program should not have allowed the students to board the flight, which was provided by a private flight school on a non-governmentally owned aircraft.

The majority (decision by Justice Mead, joined by CJ Saufley and Justices Alexander and Gorman) concluded that the cited MTCA language did not provide an exception to immunity because it read into the relevant statutory text, i.e. the word "use," the need for some governmental "measure of direct control over the aircraft or its pilot."  By direct control, the majority listed as an example Maine state aircraft piloted by wardens or troopers.  

To reach this conclusion, the majority said that the term "use" had to be read in context and applying strict construction against exceptions to immunity.  The words "own" and "maintain" necessairly require "positive control by the governmental entity involved."  The majority said:  "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 onwership and regardless of whether the governmental entity has any control over how the equipment is maintained or operated." (P 13) 

Justice Silver, writing the dissent (joined by Justices Levy and Jabar) opined that the majoirty ignored the plain meaning of the word "use," instead making it surplusage or the equivalent to "operate," which was not the term included in the text.  "The majority's construction of the MTCA, by extending governmental immunity to situations where a governmental unit 'leases out' its functions, renders the law outmoded and unresponsive to the frequency with which governments contract for transportation services in today's economy," which the dissenters said "could not be intended by our Legislature."  The example they gave was a local official who has reason to believe a school bus driver employed by a private operator is drunk.  Under the majority's interpretation, the dissenters said, the government is immune if the official does nothing to stop students from boarding the bus.

The decision generates two observations, at least for me.

First, it appears that both the majority and dissent are saying that the word "use" was not ambiguous.  But when there is such a close split among the Justices, doesn't that in itself suggest that there are two reasonable views of its meaning? If so, then it could have been helpful for the Court to have gone through and applied the roadmap for interpreting ambiguous statutory language.  Was there any relevant legislative history, for example?  If the text is plain, it doesn't matter.  If it's ambiguous, you examine it.  There may not have been any legislative history — there probably wasn't – but that might have been useful to know for the reader for future guidance.  I don't think this distinction would have changed either side's outcome, but I'm always a big fan of decisions that connect all the dots from a to b to c in a way that I can just lift the template from that decision and apply it to the situation that I'm briefing.    

Second, per some recent blog entries, I am very happy to see here that both the majority and dissent looked at the implications of their interpretations.  Indeed, that seems to have been the governing factor for both sides.  As I mentioned, looking at the consequences of an individual decision is I think an important part of the highest Court's analysis, and I'm glad that this factor is high on the Justices' radar screens. I note that their were two amici, the Attorney General and the MTLA, so those implications were probably fleshed out in those amici briefs.  Hence, this decision shows the benefit of having amici briefs in general.