Bruce v. Martin-Marietta Corp.

• Decision Date: 24 September 1976
• Docket Number: Nos. 75-1683,75-1684,MARTIN-MARIETTA,s. 75-1683
• Parties: 20 UCC Rep.Serv. 39 Mike BRUCE et al., Plaintiffs-Appellants, v.CORPORATION and Ozark Airlines, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 442

544 F.2d 442

20 UCC Rep.Serv. 39

Mike BRUCE et al., Plaintiffs-Appellants, v. MARTIN-MARIETTA CORPORATION and Ozark Airlines, Inc.,

Defendants-Appellees.

Nos. 75-1683, 75-1684.

United States Court of Appeals,

Tenth Circuit.

Argued and Submitted May 18, 1976.

Decided Sept. 24, 1976.

Rehearing Denied in No. 75-1683 Oct. 29, 1976.

Larry A. Tawwater and John W. Norman, Oklahoma City, Okl. (Lampkin, Wolfe, Burger, Abel, McCaffrey & Norman, Oklahoma City, Okl., on the brief), for plaintiffs-appellants.

D. C. Johnston, Jr., Oklahoma City, Okl. (Pierce Couch Hendrickson & Short, Oklahoma City, Okl., of counsel, on the brief), for defendant-appellee Martin-Marietta Corp.

James D. Foliart, Oklahoma City, Okl. (Foliart, Mills & Niemeyer and George W. Dahnke, Oklahoma City, Okla., on the brief), for defendant-appellee Ozark Airlines, Inc.

Before McWILLIAMS and BREITENSTEIN, Circuit Judges, and ZIRPOLI, District Judge. ^*

BREITENSTEIN, Circuit Judge.

These consolidated appeals relate to a product liability case arising out of an airplane crash. Plaintiffs-appellants are persons injured, and representatives of persons killed, in the crash. Defendant-appellee Martin-Marietta Corporation manufactured the plane. Defendant-appellee Ozark Airlines was an intermediate owner and seller of the plane. Jurisdiction is based on diversity. The district court gave summary judgment for the defendants. We affirm.

The airplane, a Martin 404, was chartered to carry the Wichita State University team and some of its supporters to a football game in Logan, Utah. On October 2, 1970, the plane crashed into a mountain west of Silver Plume, Colorado. The plane first struck trees at an altitude of approximately 10,800 ft. and then travelled 425 ft. before coming to rest. Seats in the passenger cabin broke loose from their floor attachments, were thrown forward against the bulkhead of the plane, and blocked exit. A fire then developed. Of the 40 persons on the plane, 32 died in the crash.

Martin manufactured the plane and sold it to Eastern Airlines in March, 1952. Eastern used the plane about ten years and in 1962 sold it to Mohawk Airlines which used it about three years and sold it to Ozark Airlines in 1965.

In 1967, Ozark sold the plane to Fairchild-Hiller Corporation, a manufacturer of aircraft. The plane was in storage until sometime in 1970 when it was sold to Jack Richards Aircraft Company. Golden Eagle Aviation contracted with Wichita State University to provide transportation for its football games away from home. Golden Eagle supplied the crew and used the Richards aircraft. Eastern, Mohawk and Ozark are all carriers providing scheduled services under pertinent federal aviation regulations. The defendants in the instant suit are Martin and Ozark.

On these appeals the plaintiffs do not contend that any action of either defendant caused the plane to crash. Their claims are that the defendants' failures to design, manufacture, or maintain the plane in crashworthy condition caused the deaths, or enhanced the injuries, of the passengers. The alleged defects are the inadequacy of the seat fastenings and the lack of protection against fire. Plaintiffs seek recovery on theories of negligence, implied warranty, and strict liability in tort.

In this diversity case the conflict of law rule of the forum state, Oklahoma, applies. Klaxon Co. v. Stentor Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477. Oklahoma has adopted the significant contacts rule. Brickner v. Gooden, Okl., 525 P.2d 632, 637, says:

"The factors to be taken into account and to be evaluated according to their relative

importance with respect to a particular issue, shall include:

(1) the place where the jury occurred,

(2) the place where the conduct causing the injury occurred,

(3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and

(4) the place where the relationship, if any, between the parties occurred."

The only connection of Colorado is that a transient airplane, flying interstate, crashed there. Plaintiffs assert no claims based on operation of the plane. The state or states in which the asserted misconduct of the defendants occurred is not identified. The domicile or residence of the plaintiffs is varied. Most of the plaintiffs have Kansas residence but some have Oklahoma. Defendant Martin has its principal place of business in Maryland and defendant Ozark in Missouri. There was no direct relationship between those injured or killed and either Martin or Ozark. The trial court concluded that, under the significant contacts rule, the laws of Maryland applied to determine the liability of Martin and those of Missouri to determine that of Ozark. The district court's choice of law is supportable and is not attacked on these appeals. Plaintiffs say, Br. p. 8, that "the laws of all of the states involved appear to be very similar with respect to the issues presented in this appeal."

We have no need to delve into the esoteric differences between implied warranty and strict liability in tort. The parties have briefed the case on the theories of strict liability in tort and negligence. The district court accepted those theories as controlling. The classic statement of strict liability in tort is found in Restatement of Torts, 2d, § 402A which reads:

"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and,

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."

I. LIABILITY OF MARTIN

Martin was the manufacturer and original seller of the plane. Martin does not claim any change in the condition of the plane. As to strict liability, the question is whether the plane was sold "in a defective condition unreasonably dangerous to the user." The negligence question is whether Martin exercised reasonable care. See Volkswagen of America, Inc. v. Young, 272 Md. 201, 321 A.2d 737.

A summary judgment is proper upon a showing that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), F.R.Civ.P. All matters in the record and all reasonable inferences to be drawn therefrom must be construed liberally in favor of the party opposing the motion. Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 10 Cir., 516 F.2d 33, 36. Conclusionary allegations do not establish an issue of fact under Rule 56. Bumgarner v. Joe Brown Co., 10 Cir., 376 F.2d 749, 750. "(T)he trial court may pierce the pleadings by determining from the depositional proof, admissions and affidavits in the record whether any material issues of fact exist." Ando v. Great Western Sugar Co., 10 Cir., 475 F.2d 531, 535 (footnote omitted).

The question is whether there is any genuine issue as to any material fact. Plaintiffs claim that the plane was not equipped with crashworthy design characteristics in two particulars; (1) the seats and seat fastenings In support of its motion for summary judgment, Martin submitted the affidavit of its Assistant Secretary pertaining to the design of the plane. It was designed and certificated as a land plane for the commercial transportation of passengers, mail and cargo. The plane was designed "to meet or exceed all applicable design requirements, safety requirements and other criteria prescribed by the Civil Aeronautics Administration" and was manufactured and certificated in accordance with specified CAA regulations. The affidavit stated with particularity the fire protection features incorporated in the plane design. With reference to the seats, it said:

were not designed or manufactured to withstand a crash and, (2) the aircraft was not designed so as to minimize the possibility of fire occurring after a crash.

"The seats were transport type duplex seats designed and manufactured by the Warren-McArthur Corporation of Bantam, Connecticutt (sic), and were designed to meet or exceed all of the criteria prescribed in Civil Air Regulation 514.35 (CAA Technical Standard Order No. C-25A)."

In response, plaintiffs presented the affidavit of an aircraft accident investigator whose qualifications are not questioned. He said:

"My studies thus far indicate that there were airline passenger seats in common use on October 2, 1970, which, if installed in the subject Martin 404 aircraft, would have remained in place throughout this otherwise survivable accident and would not have trapped the occupants in the burning aircraft. An occupant in this crash should not have had his escape from the burning aircraft impeded by seat failures. In the crash in question the seat failures constituted an unreasonable dangerous condition to the passengers because the seat failures prevented them from exiting the burning aircraft."

When the plane was manufactured, the Civil Aeronautics Act of 1938, 52 Stat. 973 et seq., as amended, was in effect. The Civil Aeronautics Authority was charged with the duty of the regulation of air transportation so as to assure the "highest degree of safety." 52 Stat. 980, § 2(b). Section 601(a)(1), 52 Stat. 1007, empowers CAA "to promote the safety of flight" by prescribing "(s)uch minimum standards governing the design * * * of aircraft * * * as may be required in the interest of safety * * * ." Rosenhan v. United States, 10 Cir., 131 F.2d 932, 935, says that the 1938 Act "is devoted to the promotion of safety" in air transportation. The 1938 Act was repealed in...