The Maryland National Guard cannot be sued for its role in an accident involving an Army major who was run over by a military truck and who died during the two hours it took to get him to a trauma center, a Montgomery County Circuit Court judge ruled yesterday.
The state government is protected by legal doctrines that grant it immunity from accusations of negligence against the National Guard, Judge DeLawrence Beard ruled in dismissing a $6 million lawsuit brought by the widow of Maj. Andrew Burris.
Burris was run over by a 2 1/2-ton Army truck driven without lights by a member of the Maryland National Guard during a night training exercise in Florida in June 1997. Because of a series of errors by members of the Maryland and Florida guards and other military units, it took two hours to get Burris to a trauma center. By then, he had gone into cardiac arrest and was pronounced dead shortly afterward.
An appeal of the decision is likely. "The fight's not over yet," Burris's widow, Karen, 38, of McLean, said outside the courtroom after the hearing. "It's just beginning. Andy never gave up easily on anything, either."
The state claimed immunity based on several legal doctrines, including the Feres Doctrine, which bars suits based upon matters incident to military service.
"The courts are not equipped to second-guess professional military decision-makers," Assistant Attorney General Laura McWeeney, representing the Guard, argued in court yesterday. "While there are victims here, more is at stake than individual tragedy."
McWeeney also said that the two Maryland guardsmen operating the truck were on a federal payroll at the time of their accident and should not be considered state employees.
But Burris's attorney argued that responsibility for the accident rested at the highest level of the Maryland National Guard. "The drivers were not the only ones negligent," said Timothy Hyland. "There was systematic, widespread negligence."
Hyland blamed the leadership of the Guard for failing to properly equip and train its soldiers, including failing to instruct them on using night vision goggles and ensuring that they had a viable medical evacuation plan.
Lt. Col. Richard Parker, a representative of the Maryland Guard's judge advocate general, denied that the Guard was negligent. "We never conceded that the soldiers acted negligently, but this ruling precludes" the case going forward in court, he said.
In a statement, Maj. Gen. James Fretterd, adjutant general of Maryland, called Burris's death "a tragic accident" and said the Maryland Guard has "always tried to minimize the risk to soldiers and will continue to do so."
The Feres Doctrine stems from a 1947 fire at an Army barracks in New York in which a soldier died. His widow sued the government, but the Supreme Court dismissed the case in 1950, ruling that members of the armed services may not sue the government for death or injury resulting from activities "incident to service."