MAY 5, 2015
All four crew members aboard a 3rd Wing C-17 Globemaster
died when the plane crashed July 28, 2010, near Anchorage during a training
flight. The widow of one of the men killed in the crash filed suit against the
state in 2012, seeking compensatory damages for her husband's death. Senior
Airman CYNTHIA SPALDING / U.S. Air Force
A federal judge has granted the state of Alaska’s request to
dismiss a lawsuit originally filed by the widow of an airman who died in a
military cargo-plane crash during a July 2010 training flight for the
popular Arctic Thunder air show.
The crash of the C-17 at Joint Base Elmendorf-Richardson killed
three Alaska Air National Guardsmen and one active-duty Air Force member. An
Air Force investigation determined the transport plane crashed due to pilot
error.
On Monday, U.S. District Court Judge
John Sedwick dismissed the civil lawsuit, asserting the flight
was a military operation and the lawsuit was barred under the immunity
from civil litigation applied to military activities.
The men killed in the crash were Capt. Jeffrey Hill,
31, Maj. Aaron “Zippy” Malone, 36, Maj. Michael Freyholtz, 34,
and Master Sgt. Thomas Cicardo, 47, who was posthumously promoted to
senior master sergeant.
Cicardo was not a pilot, unlike the other three
airmen. He worked as a guard loadmaster, a flight member who
generally plans cargo and passenger placement.
Cicardo’s wife, Theresa Dayton, filed suit against the
state in December 2012. Her attorney argued pilot Freyholtz developed and
used unauthorized flight maneuvers during the training demonstration.
Dayton’s attorney did not return a call for comment Tuesday.
What will happen to Dayton's case is unclear.
Freyholtz's moves deviated from the Air Force’s flight
procedures and “reflected Maj. Freyholtz’s desire to make his maneuvers more
impressive to a viewer on the ground, and keep his operation of the C-17 closer
to the show center …,” the initial complaint says.
The Air Force's probe after the crash found that
the C-17 pilots ignored a stall-warning system and used incorrect
procedures in an attempt to regain altitude. The C-17 crashed in a wooded
area about a minute after takeoff. In addition to killing the men, the
crash damaged a section of the Alaska Railroad.
The state filed its own complaint against the
U.S. and the estates of the flight crew, arguing the crew members were
acting as employees of the federal government at the time of the crash.
The case was moved to federal court, and the federal
government substituted itself as the defendant in place of the
crew member estates. The government then successfully argued that
established case law barred service members’ suits arising from injuries
suffered in the course of military service. This is known as the Feres
Doctrine.
The case against the federal government was dismissed as a
result.
Because the federal court case established that Cicardo and
the other crew members were actively engaged in military duty as employees
of the federal government, the state subsequently argued the Feres
Doctrine also applied in its case and asked for a dismissal.
Dayton, through her attorney, said the immunity granted
by the doctrine did not apply to the state as her husband, a member of the
Alaska Air Guard, could be considered “a borrowed servant of the state,”
according to court documents.
Judge Sedwick disagreed.
“The complaint here specifically premises its allegation of
intentional misconduct on the pilot’s deviance from military procedures and
instructions and not on civilian regulations. Thus, the resolution of the case
necessarily involves military expertise,” Sedwick wrote in an order dismissing
the case dated May 4.
Source: http://www.adn.com