933 F.2d 331 (5th Cir. 1991), 90-8294, Stout v. Borg-Warner Corp.

Docket Nº:90-8294.
Citation:933 F.2d 331
Party Name:Kendall STOUT, Plaintiff-Appellant, v. BORG-WARNER CORPORATION, et al., Defendants, Fairchild-Hiller Stratos Division, Defendant-Appellee.
Case Date:June 13, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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933 F.2d 331 (5th Cir. 1991)

Kendall STOUT, Plaintiff-Appellant,


BORG-WARNER CORPORATION, et al., Defendants,

Fairchild-Hiller Stratos Division, Defendant-Appellee.

No. 90-8294.

United States Court of Appeals, Fifth Circuit

June 13, 1991

Rehearing and Rehearing En Banc

Denied July 15, 1991.

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Susan Larsen, El Paso, Tex., for plaintiff-appellant.

James L. Gallager, Scott A. Agthe, Scott, Hulse, Marshall, Feuille, Finger & Thurmond, El Paso, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, JOLLY and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this product liability action, Kendall Stout, a former United States Army Corporal, caught his hand in a fan. He brought suit against Fairchild-Hiller Stratos Division of Fairchild Industries, Inc. ("Fairchild"), the designer and manufacturer of a 38,000 BTU air conditioning unit used by the United States Army to cool its Hawk Missile System Mobile Repair Unit. It was while he was attempting to repair the air conditioning unit that his right hand was caught in the rotating blades of the unit's condenser fan. He appeals the district court's award of summary judgment granting Fairchild immunity from Stout's defective design and failure to warn claims under the government contractor defense set forth in Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). We affirm.


Kendall Stout was a United States Army air conditioning repair technician stationed at Fort Bliss, Texas. On September 6, 1985, he lost four of his fingers and one-half of his thumb on his right hand while attempting to repair a VEA4-3A air conditioning unit. He was injured while checking for blockage in the Freon system by manually feeling the temperature differences in the copper lines running from the unit's compressor. To conduct this inspection, Stout had removed the side panels of the air conditioner while the unit was still in operation. There is a factual dispute as to whether the suction created by the condenser fan forced his right hand across the fan's rotating blades or whether Stout himself inadvertently flinched his hand across the blades. The Army, however, after conducting an investigation, concluded that the accident was caused by Stout's own negligence, which supports the latter version of how the accident happened.

The VEA4-3A air conditioner is used by the United States Army to cool the Hawk Missile System Mobile Repair Unit. The air conditioner mounts on the side of the Hawk radar repair shelters. It serves to maintain controlled atmospheric conditions inside the shelter, preventing damage to the sensitive computers and radar systems essential to the performance to the Hawk Missile System.

The Army Corps of Engineers had developed the predecessor to the VEA4-3A air conditioner known as the VEA4-3. In the early 1960s, the Army Corps of Engineers at Fort Belvoir's Army Research and Development Center wrote and issued initial specifications for a redesigned VEA4-3 air conditioner for specific use with the Hawk Missile System. The Army's initial specifications included engineering design drawings and required shop drawings and pre-production models. The Army's specifications for the unit's condenser fan were as follows:

Air-handling components. All air fans shall be of the continuous-duty type, statically and dynamically balanced.

Fan motors. The evaporator and condenser fan motors shall be of continuous-duty type, totally enclosed, and fungus-proofed and shall be equipped with permanently

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lubricated ball bearings. The motors shall be equipped with thermal overload protectors sized to prevent motor operation above the safe operating temperature for which the motor is rated.

Notably, these specifications did not provide for, or prohibit, the installation of a safety device, such as a wire screen to cover the condenser fan.

In 1966, Fairchild was awarded the contract to redesign the VEA4-3. Fairchild performed a detailed engineering analysis, including engineering calculations to select components for the VEA4-3A that would comply with the Army's specifications. This detailed engineering analysis was then reviewed and approved by Army engineers.

Fairchild next developed a complete preliminary design layout, consisting of several engineering drawings of the assembled configuration and dimensions of the air conditioning unit. The preliminary design layout was submitted to Army engineers for a formal preliminary design review. At this time, the Army engineers critiqued the layout, made changes in the preliminary drawings, and then approved the preliminary design.

Fairchild then prepared detailed drawings from which each component of the unit would be fabricated. As with the initial engineering analysis and the preliminary design layout drawings, these detailed design drawings were submitted to the Army for review, evaluation, and approval and were subject to any changes desired by the Army at a critical design review. The critical design review lasted several days and every component of the VEA4-3A was reviewed by Army engineers.

After the Army granted its final approval of the detailed drawings, the design was "frozen." Any variation by Fairchild from the detailed design at this point would result in automatic rejection of the unit by the Army.

After the detailed design had...

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