792 F.2d 403 (4th Cir. 1986), 84-1907, Tozer v. LTV Corp.

Docket Nº:84-1907(L), 84-1962.
Citation:792 F.2d 403
Party Name:Joan S. TOZER, surviving widow of Eliot F. Tozer, deceased and to her own use and benefit and to the use and benefit as mother and next friend of: Katherine S. Tozer, surviving minor child of Eliot F. Tozer, deceased and; Lindsay M. Tozer, surviving minor child of Eliot F. Tozer, deceased and; Joan S. Tozer, personal representative of the estate of
Case Date:May 27, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 403

792 F.2d 403 (4th Cir. 1986)

Joan S. TOZER, surviving widow of Eliot F. Tozer, deceased

and to her own use and benefit and to the use and benefit as

mother and next friend of: Katherine S. Tozer, surviving

minor child of Eliot F. Tozer, deceased and; Lindsay M.

Tozer, surviving minor child of Eliot F. Tozer, deceased

and; Joan S. Tozer, personal representative of the estate

of Eliot F. Tozer, deceased, Appellees,

v.

LTV CORPORATION, a Texas Corporation; Jones & Laughlin

Industries, Inc.; Vought Corporation, a Delaware

Corporation, Appellants.

Bell Helicopter Textron, Lockheed Corp., McDonnell-Douglas

Corp., United Technologies Corp., Amici Curiae.

Joan S. TOZER, surviving widow of Eliot F. Tozer, deceased

and to her own use and benefit and to the use and benefit as

mother and next friend of: Katherine S. Tozer, surviving

minor child of Eliot F. Tozer, deceased and; Lindsay M.

Tozer, surviving minor child of Eliot F. Tozer, deceased

and; Joan S. Tozer, personal representative of the estate

of Eliot F. Tozer, deceased, Appellants,

v.

LTV CORPORATION, a Texas Corporation; Jones & Laughlin

Industries, Inc.; Vought Corporation, a Delaware

Corporation, Appellees.

Bell Helicopter Textron, Lockheed Corp., McDonnell-Douglas

Corp., United Technologies Corp., Amici Curiae.

Nos. 84-1907(L), 84-1962.

United States Court of Appeals, Fourth Circuit

May 27, 1986

Argued Dec. 5, 1985.

Page 404

Drew Pomerance (Kern & Wooley, Los Angeles, Cal., Fred J. Meier, Charles E. Iliff, Jr.; Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellants.

Michael J. Pangia (Smiley, Olson, Gilman & Pangia, Washington, D.C., Paul D. Bekman, Baltimore, Md., on brief), for appellees.

(Lewis T. Booker; L. Neal Ellis, Jr.; Hunton & Williams, Richmond, Va., on brief), for amici curiae.

Before RUSSELL, HALL and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

In 1980, Lieutenant Commander Eliot Tozer was killed when the Navy plane he was piloting crashed. His widow, Joan Tozer, and his two minor children brought an action against LTV Corporation and its subsidiary Vought Corporation under the Death on the High Seas Act (DOHSA) 46 U.S.C. Sec. 761 et seq. and general maritime law, alleging the defective design of a modification to the airplane. The jury returned a verdict in favor of the plaintiffs. Because the government contractor defense shields the contractor from liability for design defects under either a strict liability or a negligence theory when the government has approved reasonably detailed specifications, we reverse and remand for entry of judgment in favor of the defendants.

I.

Tozer's crash occurred off the coast of California while his plane was executing a low-altitude, high speed fly-by of its carrier, the U.S.S. Kitty Hawk. At trial, Joan Tozer contended that the plane had crashed because a panel known as the "Buick Hood" had come off in mid-flight, causing him to lose control of his Navy RF-8G Reconnaissance plane. The Buick Hood is a hinged panel that permits access to the equipment underneath so that it can be repaired and maintained; the panel should not open during flight.

When the RF-8G was first designed, it had a one-piece panel that wrapped around the top of the aircraft. In order to do maintenance or repair work in the compartment below, the whole panel had to be removed. The Navy asked Vought to modify the panel so that the systems beneath it could be more easily and quickly maintained. Vought cut the panel into three pieces, fixing the center piece to the aircraft, and hinging the two outer pieces along the center line. The non-hinged sides of the hood are fastened with "camlocs," quick fasteners which can be released by a turn of a screwdriver. Tozer contends that it is well known that camlocs often come loose, because of wear, vibration, or corrosion,

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and that usually many camlocs are installed for safety. Tozer said that Vought was negligent because it did not fasten the panel with redundant camlocs.

Vought contended the design had been carefully analyzed, tested, and found adequate. More fundamentally, Vought argued that it could not be found liable for the design of the aircraft since the Navy had approved it, and the company shared the United States' immunity through the government contractor defense. The district judge instructed the jury that the government contractor defense precluded recovery on the basis of strict liability, but did not instruct the jury on the defense with respect to negligence. The jury returned a special verdict, finding that defendants were negligent in the design of the Buick Hood modification and that the U.S. Navy had reviewed and approved reasonably detailed specifications for the Buick Hood modification. The jury awarded $350,000 to Joan Tozer, and $50,000 to each of her two daughters.

Vought contends that the district judge should have instructed the jury that the government contractor defense precludes recovery for negligence as well as strict liability. We agree that the defense applies here to prevent recovery under either theory and reverse and remand for entry of judgment notwithstanding the verdict in favor of Vought. 1

II.

Traditionally, the government contractor defense shielded a contractor from liability when acting under the direction and authority of the United States. Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 20, 60 S.Ct. 413, 414, 84 L.Ed. 554 (1940). In its original form, the defense covered only construction projects, McKay v. Rockwell Int'l Corp., 704 F.2d 444, 448 (9th Cir.1983), cert. denied, 464 U.S. 1043, 104 S.Ct. 711, 79 L.Ed.2d 175 (1984). Its application to military contractors, however, serves more than the historic purpose of not imposing liability on a contractor who has followed specifications required or approved by the United States government. It advances the separation of powers and safeguards the process of military procurement. We consider each of these values in turn.

The judicial branch is by design the least involved in military matters. "The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches." Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973) (emphasis in original). Judges possess no power "To declare War ... To raise and support Armies ... To provide and maintain a Navy." U.S. Const. art. 1, sec. 8, cl. 11-13. Nor have they been "given the task of running the Army," Orloff v. Willoughby, 345 U.S. 83, 93, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953). In the face of a "textually demonstrable" commitment of an issue to "a coordinate political department," Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), judicial caution is advisable. Even apart from matters of constitutional text, the reservation of judicial judgment on strictly military matters is sound policy. The judicial branch contains no Department of Defense or Armed Services Committee or other ongoing fund of expertise on which its personnel may draw. Nor is it seemly that a democracy's most serious decisions, those providing for common survival and defense, be made by its least accountable branch of government.

It is difficult to imagine a more purely military matter than that at issue in this case--the design of a sophisticated reconnaissance craft that was flying, on the day of Tozer's death, some 50 to 75 feet above

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the surface of the water at a speed of 500-550 nautical miles per hour. It should be axiomatic that "considerations of cost, time of production, risks to participants, risks to third parties, and any other factors that might weigh on the decisions of whether, when, and how to use a particular weapon, are uniquely questions for the military and are exempt from review by civilian courts." In re Agent Orange Product Liability Litigation, 534 F.Supp. 1046, 1054 n. 1 (E.D.N.Y.1982).

Here, however, the jury was invited to "second-guess military decisions," see United States v. Shearer, --- U.S. ----, 105 S.Ct. 3039, 3043, 87 L.Ed.2d 38 (1985), and to judge the design of a Navy-approved aircraft. Special interrogatory number one inquired of the jury whether defendants were "negligent in the design of the Buick Hood modification," and interrogatory five questioned whether the hood was "defective in that its design rendered it unreasonably dangerous." A group of laymen was thus ineluctably thrust into the intricacies of military technology involving, in the words of the district court, "the structural reaction of the modified Buick Hood panel to aerodynamic forces and loads experienced by the aircraft."

These are judgments, however, which lay men and women are neither suited nor empowered to make. There is a danger in transporting the rubric of tort law and products liability to a military setting and military technology. While jurors may possess familiarity and experience with consumer products, it would be the rare juror--or judge--who has been in the cockpit of a Navy RF-8G off the deck of a carrier on a low level, high speed fly-by maneuver. Moreover, "the United States is required by the exigencies of our defense effort to push technology towards its limits and thereby to incur risks beyond those that would be acceptable for ordinary consumer goods." McKay, 704 F.2d at 449-50. What would pose an unreasonable risk to...

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