It does not show, or even suggest, that the product configuration involved was "unintended".
The material issue is not whether there was an unwanted result, but "whether the Government may be said to have 'authorized' the defective condition, in spite of the possible results." Mitchell, 913 F.2d at 248. If the government authorizes a defective condition by means of specifications complied with by the contractor, the defect is one of design; if, on the other hand, a defective condition results from a contractor's failure to comply with government design specifications, then the defect is one of manufacture. Id. "In either event, the defect may produce unintended and unwanted results . . . ." Id.
As the court found in its January 7, 1992 Order, the Air Force issued detailed design specifications for the mounting of the SDR on the fairing and defendants complied with those specifications. Plaintiffs have produced absolutely no evidence suggesting that defendants' assembly or manufacture of the particular ACES-II seat in Capt. Sundstrom's airplane was defective in the sense that it failed to comply with the design authorized by the Air Force. Indeed, plaintiffs' whole theory of this case has been that the design itself -- mounting the SD on the fairing -- caused the fairing to buckle. The fact that the Air Force did not "want" the fairing to buckle is irrelevant to whether defendants failed to comply with authorized design specifications. See also Kleeman v. McDonnell-Douglas Corp., 890 F.2d 698, 703 (4th Cir. 1989) ("Nonconformance to precise specifications must mean more than that the design does not work in compliance with some 'general admonition against an unwanted condition.'") (quoting Harduvel, 878 F.2d at 1319 n.3).
Therefore, the court finds that defendants are entitled to summary judgment on plaintiffs' defective manufacturing claim (Complaint PP 16-19). Because plaintiffs' negligence claim (Complaint PP 20-25) merely realleges and duplicates their defective manufacturing claim and because plaintiffs have proffered no further evidence to support either claim, the court finds that summary judgment is also proper as to the negligence claim.
B. Misrepresentation or Failure to Warn Claim
Plaintiffs have not argued that their failure to warn claim is not barred by Boyle. However, for the sake of completeness, the court will address that claim as well. The complaint alleges that Capt. Sundstrom and the Air Force relied on the safety of the ACES-II system and that steps would have been taken to make it safer had defendants warned of its dangers. See Complaint at PP 31-33. The court finds that this failure to warn claim is also barred by the government contractor immunity defense.
By granting partial summary judgment on the third prong of Boyle, the court finds than the Air Force was aware of any possible dangers in the ACES-II. Therefore, plaintiffs' claim cannot be based on a failure to warn the Air Force. However, plaintiffs' claim might arguably still be based on allegations that Capt. Sundstrom, apart from the Air Force, was not aware that the ACES-II was dangerous. Under controlling Ninth Circuit authority and Boyle, that more limited claim is also barred when defendants have established government contractor immunity.
The Ninth Circuit in McKay held that the government contractor immunity defense applied to the defendant contractor 704 F.2d at 451. However, in addition to their design defect theory, plaintiffs in McKay relied on Section 389 of the Restatement (Second) of Torts. Section 389 concerns a supplier's liability to persons ignorant of dangers from a product supplied to a party aware of the product's danger, where the supplier knows that the product is unlikely to be made reasonably safe before it is used by the "ignorant" persons. 704 F.2d at 455.
The Ninth Circuit declined to allow the plaintiffs (widows of Navy pilots) to proceed against a military contractor defendant on this theory because "Section 389 . . . presupposes . . . 'persons who are ignorant of the dangerous character of the chattel'" would not use a product if they knew it was dangerous. Id. However, the court noted that such an assumption could not be made in the case of military personnel: "Naval pilots are required to fly as ordered." Id.
Plaintiffs' failure to warn claim is analogous to the Section 389 theory rejected by the Ninth Circuit in McKay. In this action, because the Air Force was warned of all known dangers in the ACES-II system, plaintiffs' claim would have to rest on the allegation that Capt. Sundstrom himself was not warned. However, such a claim is barred under McKay's analysis because Capt. Sundstrom, as a military officer who must follow orders, could not have refused to fly even if defendants had warned him that the design of the ACES-II seat in his airplane was somehow unsafe. Because the Air Force was already apprised of all known dangers and opted to proceed with the mounting of the SDR, a warning from defendants could not have prevented any risk to plaintiffs' decedent.
Moreover, entertaining a failure to warn claim in this action would present the kind of interference with discretionary government acts that McKay and Boyle intended to prevent. As the Supreme Court stated in Boyle,
The selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function . . . It often involves not merely engineering analysis but judgment as to the balancing of many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness. . . . Permitting "second-guessing" of these judgments, see United States v. Varig, 467 U.S. 797, 814, 104 S. Ct. 2755, 2765, 81 L. Ed. 2d 660 (1984), through state tort suits against contractors would produce the same effect sought to be avoided by the [Federal Tort Claims Act] exemption. The financial burden of judgments against the contractors would ultimately be passed along, substantially, if not totally, to the United States itself, since defense contractors will predictably raise their prices to cover, or to insure against, contingent liability for the government ordered designs.
Boyle, 487 U.S. 500 at 511-12, 101 L. Ed. 2d 442, 108 S. Ct. 2510. In this case, the Air Force specified and approved the design for the mounting of the SDR on the fairing of the ACES-II seat. The Air Force thereby made a judgment, rightly or wrongly, that the design was safe. Therefore, the only effect of imposing tort liability on defendants for failing to warn would be to second-guess the government's judgment and to vitiate the intended effect of the Boyle defense.
For the foregoing reasons:
1. The court GRANTS defendants partial summary judgment as to the third prong of the Boyle defense.
2. The court STRIKES the declarations of A.B. McDonald filed by MDC on September 30, 1991, October 31, 1991 and June 24, 1992.
3. The court FINDS that no genuine issues of material fact remain as to any of the claims for relief in the complaint and that, under Boyle, defendants are entitled to judgment as a matter of law.
Therefore, defendants' motions for summary judgment are GRANTED and this action is DISMISSED in its entirety.
IT IS SO ORDERED.
Dated: JAN 6 - 1993
MARILYN HALL PATEL
United States District Judge