ANCHORAGE -- Families of seven Army National Guard servicemen whose plane crashed into a Juneau mountain in 1992 may be able to sue the state for damages based on the ruling of a sharply divided Alaska Supreme Court in overturning a lower court.
Superior Court Judge John Reese, in a summary judgment, said the claims of pilot negligence should be thrown out because they were related to military service.
But the three-member majority of the state's high court said the military exemption should be limited to "uniquely military" activities, at least under state law.
"Simply put, the C-12 (plane) was being used to transport passengers between Anchorage and Juneau," says the opinion written by Justice Walter L. Carpeneti. "It was not being used in combat or in training..."
The group could have flown a commercial or chartered flight instead, the court reasoned, and in that case "it is unquestionable that the families could pursue a tort claim against the employer of the pilot. .... No reason appears why the military status of the passengers alone should limit their civilian remedies."
But in his dissent, Chief Justice Warren W. Matthews says the majority is taking state law into murky waters that federal courts up to the U.S. Supreme Court have sidestepped by keeping the judiciary out of military affairs since a pivotal decision half a century ago. Besides, Matthews says, it will be tough to draw the majority's line between military and civilian actions of people in the armed services.
"Today's opinion also seems to adopt a confusing and unworkable test which purports to distinguish between uniquely military activities and those involving military expertise, immune to civilian judicial oversight, and activities which are not uniquely military and do not require military expertise, which civilian courts may review," Matthews wrote.
Matthews was joined in his dissent by Justice Robert L. Eastaugh.
While the court majority decided that the military connection doesn't bar the families from suing for damages, it says that there's still an issue that could stop their claim.
That's the question of whether the pilot, Col. Thomas Clark, was flying as a federal guard officer or as a state employee, because he was listed as the state aviation/safety officer. That question isn't clear enough to be decided by summary judgment, the court ruled, so the case needs to go back to the Superior Court for trial.
Carpeneti's majority opinion was joined by Justices Alexander O. Bryner and Dana Fabe.
The lawsuit was brought by relatives of five of the passengers on the plane, which crashed Nov. 12, 1992, killing all eight aboard. Among them was Gen. Thomas Carroll, then commander of the Alaska Army National Guard.
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