Tate v. Boeing Helicopters

Decision Date02 June 1995
Docket NumberNo. 93-5863,93-5863
Citation55 F.3d 1150
PartiesProd.Liab.Rep. (CCH) P 14,237 Diann TATE, Individually and as the Personal Representative of the Estate of Dale Tate, and as Natural Guardian of Jason Tate; Brian Tate; Vivian Marie Johnson, Individually and as the Personal Representative of the Estate of Veltry Herman Johnson III; Angela Wooden; and Nancy Ann Schulz, Plaintiffs-Appellants, v. BOEING HELICOPTERS, an unincorporated division of Boeing Company, and Breeze-Eastern, an unincorporated division of Transtechnology Corporation, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Mark A. Rassas (briefed), Clarksville, TN, Francis G. Fleming (briefed), Daniel M. Kolko (argued and briefed), Kreindler & Kreindler, New York City, Lucius P. Hawes, Jr., (briefed), Hawes, Richardson, Cameron & Burman, Hopkinsville, KY, for plaintiffs-appellants.

Richard L. Walter, Boehl, Stopher, Graves & Deindoerfer, Paducah, KY, Steven S. Bell (argued and briefed), Perkins Coie, Seattle, WA, Ronald A. McIntire, Perkins Coie, Los Angeles, CA, Carol D. Browning (briefed), Stites & Harbison, Louisville, KY, Bruce G. Shanahan (briefed), Kirtland & Packard, Los Angeles, CA, for defendants-appellees.

Before: KRUPANSKY and RYAN, Circuit Judges; SPIEGEL, District Judge. *

RYAN, Circuit Judge.

The defendants built and sold to the Army a helicopter that crashed during a training mission in July 1990. Three crew members were killed and two others were injured. One of the survivors, and family members of two soldiers who perished, brought this diversity action under Kentucky law, alleging theories of design defect and failure to warn. The district court granted summary judgment for the defendants based on the government contractor defense established in Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), and dismissed the case. We affirm summary judgment for the defendants as to the design defect claim, but vacate and remand as to the failure to warn claim.

I.

On the night of July 24, 1990, five Army soldiers were on a training mission aboard a CH-47D Chinook helicopter at Fort Campbell, Kentucky. On board were Chief Warrant Officer Dale Tate, the instructor pilot; Second Lieutenant Nancy Schulz, the copilot; Staff Sergeant Veltry Johnson III, the flight engineer instructor; Specialist Lee Jordan; and Specialist Carlos Clyburn. The purpose of the training mission was to teach the crew members, while using night vision goggles, to attach heavy equipment to a hook and sling system on the underbelly of the helicopter, and then lift the load, fly to a new position, and set down the equipment. While Lieutenant Schulz was at the controls, the crew attached a 15,760 pound concrete block to the helicopter using the aircraft's hook and sling system. Schulz lifted the load and flew the aircraft toward the predesignated drop site. Within minutes she encountered a hill in the flight path. As Schulz flew over the hill, the crew heard a loud noise. According to an Army investigation board, the noise distracted the crew, and they allowed the block to lodge into the hillside. Schulz tried to free the load by releasing the hooks; however, the sling and the concrete block did not separate from the helicopter's hooks. Schulz tried to level the helicopter, but the block served as an anchor, and the aircraft pitched forward into the ground. Of the plaintiffs, Tate and Johnson died, and Schulz was injured.

Three hooks, situated forward, center, and aft, are mounted on the CH-47D's underside. Each hook's throat opening faces forward. Guarding the throat opening is a spring-loaded "hook keeper." When a cable or ring is strung onto a hook, the hinged hook keeper retracts, allowing the cable or ring to pass. The hook keeper then springs back to its original position. The strung cable or sling, which is attached to the load below, then comes to rest on the "bottom" of the hook which is called the "load beam." For maximum stability, the CH-47D uses the forward and aft hooks in tandem to carry a single load. The hooks are not mounted rigidly to the CH-47D's airframe; they pivot on their base, longitudinally, forty degrees. The load beam portion of the hook is hinged just as the hook keeper is. However, it is fixed in a horizontal position, unless electronically released from that position by a crew member. When cargo being carried in tandem is to be off-loaded, the pilot electronically actuates the load beams, which unlocks the load beams from their horizontal positions. The cargo's weight on the slings then pulls the load beams downward into a generally vertical position, the slings slip away from the hook system, and the power springs return the load beams to their original, horizontal, locked positions.

On the night of the accident, the helicopter was carrying the concrete block using the forward and aft hooks in tandem. Apparently, when Lieutenant Schulz tried to detach the block, the sling attached to the aft hook came free; however, the forward sling remained on the forward hook. The plaintiffs claim that the forward sling remained because there was insufficient tension in that sling to pull the hook's hinged load beam downward. The concrete block was resting on the ground, so the sling was slack.

The plaintiffs point to three design features they claim were responsible, at least in part, for the crash. First, the forward hook's forward-facing orientation made it more difficult for the sling attached to the concrete block to slide off the load beam than if the hook had faced aft. Second, the load beam's limited range of rotation--the forty degree pivot of each hook--increased the difficulty of releasing a slack sling. Third, the load beam's degree of curvature helped prevent the sling from sliding off the hook. The plaintiffs also claim that the defendants failed to provide adequate warnings under Kentucky tort law.

The district court entered summary judgment for the defendants based on the government contractor defense and dismissed the case, assuming, apparently, that the defense displaced the plaintiffs' failure to warn claim as well as design defect claim. The plaintiffs filed this timely appeal.

II.

We review a grant of summary judgment de novo, applying the same test as used by the district court. Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). And we view the evidence in the light most favorable to the nonmoving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if all the evidence before the district court " 'show[s] 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.' " Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988) (quoting Fed.R.Civ.P. 56(c)).

The plaintiffs first complain that, as to the design defect claim, the evidence fails to establish the three conditions required to apply the government contractor defense as detailed in Boyle, 487 U.S. at 512, 108 S.Ct. at 2518-19. In Boyle, a Marine pilot drowned when the helicopter he was flying crashed into the ocean off the Virginia coast. The pilot survived the impact, but could not escape from the sinking helicopter. The pilot's estate alleged, as one theory of liability under Virginia tort law, that the helicopter manufacturer defectively designed the escape hatch to open outward instead of inward, and, as a result, the hatch could not be opened when the aircraft was submerged. The pilot's estate recovered under a general verdict. Id. at 503, 108 S.Ct. at 2513-14.

The Boyle Court held that, under certain circumstances, government contractors are immune from state tort liability for design defects in military equipment. This defense was created to protect the "uniquely federal interest" that is involved where state tort law imposes liability on government contractors for design defects: "either the contractor will decline to manufacture the design specified by the Government, or it will raise its price." Id. at 507, 108 S.Ct. at 2516. The existence of a uniquely federal interest does not, however, alone justify "displacement" of state law. Id. There must also exist a " 'significant conflict' " between the federal interest and the application of state law. Id. (quoting Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966)).

In matters of liability claims arising from government procurement contracts, a "significant conflict" could arise between state tort law and the federal interest in immunizing the federal government from liability for performing a "discretionary function," an act for which the government may not be sued under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680(a). Id. at 511, 108 S.Ct. at 2518. Selecting the design of military equipment surely is 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." Id. If government contractors were held liable for defects in designs approved by the government, then the discretionary function exemption would afford little protection to the government; the contractors would simply pass through the tort liability to the government via higher contract prices. Id. at 511-12, 108 S.Ct. at 2518-19. Thus, state tort law could frustrate the federal interest in permitting the government to exercise discretion in choosing military equipment designs.

The Court concluded:

Liability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United...

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