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.