State not immune from suit for negligence of military pilot

Law Reporter, May 2002

Estate of Himsel v. State, 36 P.3d 35 (Alaska 2001).

The Alaska Supreme Court held that the state could be sued for the negligence of a military pilot because such negligence did not involve a discretionary act protected by governmental immunity.

Here, the families of National Guard members killed in a plane crash sued the state of Alaska, alleging pilot negligence. The trial court granted defendant summary judgment, finding that the claims were barred under the doctrine of Feres v. United States, 340 U.S. 135 (1950), which precludes service members from suing the federal government for injuries arising out of or in the course of activity related to service.

Reversing, the court noted the Feres doctrine has been losing support in the U.S. Supreme Court and has been heavily criticized and reluctantly applied in federal circuit courts. In addition, the court cited case law from other jurisdictions that have refused to apply the Feres doctrine. The court decided not to apply the doctrine here, holding that state law is adequate to deal with the case at issue.

Turning to state law, the court noted that, although Alaska has generally waived its sovereign immunity, it has reserved it for discretionary government acts. Discretionary acts involve a basic policy decision as opposed to the execution or implementation of that decision, the court explained. This distinction exists, the court reasoned, because much of what is done by officers of the government must remain beyond the range of judicial inquiry.

Applying state law to the case here, the court said it was obviously a discretionary act to fly from one location to another. However, if the pilot did fly the plane negligently, that was not a basic policy decision but, rather, the implementation of the decision. Thus, defendant is not immune from liability, the court said.

The court rejected defendant's argument that the Feres doctrine should be adopted to prevent courts from improperly intruding on military matters. Not all questions involving the military require military expertise such that judicial inquiry would cause undue interference with the military mission, the court explained. Here, there was nothing "uniquely military" about the flight, and evaluating whether the pilot was negligent does not require any special military expertise. Thus, there is no reason why the military status of the passengers should limit plaintiffs' civil remedies, the court concluded.

Accordingly, the court remanded. Plaintiffs' Counsel

*Robert Merle Cowan, Kenai, Alaska

*Steven E. Aldous, Austin, Tex.

*Tom H. Davis, Austin, Tex.

Kermit E. Barker Jr., Anchorage, Alaska