British Airways Bd. v. Boeing Co.

• Decision Date: 08 November 1978
• Docket Number: No. 76-3373,76-3373
• Citation: 585 F.2d 946
• Parties: BRITISH AIRWAYS BOARD, 1 Appellant, v. The BOEING COMPANY, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 946

585 F.2d 946

BRITISH AIRWAYS BOARD, ¹ Appellant, v. The BOEING COMPANY, Appellee.

No. 76-3373.

United States Court of Appeals Ninth Circuit.

Nov. 8, 1978.

George N. Tompkins (argued), of Condon & Forsyth, New York City, for appellant.

Keith Gerrard (argued), of Perkins, Coie, Stone, Olsen & Williams, Seattle, Wash., for appellee.

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

Before CHAMBERS and HUFSTEDLER, Circuit Judges, and RENFREW, ^* District Judge.

RENFREW, District Judge:

Appellant BOAC appeals from an order of the United States District Court for the Western District of Washington granting appellee The Boeing Company ("Boeing") summary judgment in a suit arising out of the crash of a Boeing 707 near Mt. Fuji, Japan, on March 5, 1966. BOAC, which owned and operated the plane, had sued Boeing for damages, alleging negligent design and manufacture, breach of express and implied warranties, and strict tort liability. On appeal, BOAC contends that the district judge should not have granted summary judgment, because there existed a "genuine issue of material fact" which remained to be resolved at trial, and because all discovery in the case had not been completed. In addition, it claims that the change of venue from the Central District of California to the Western District of Washington was improvidently granted. We hereby affirm the decision of the trial court.

HISTORY OF THE CASE

This suit was initially filed on May 18, 1973 in the Southern District of New York. ² After Boeing raised an affirmative defense based on the statute of limitations, BOAC filed a substantially identical "protective" suit on November 9, 1973 in the Central District of California. Both suits were transferred to the Western District of Washington pursuant to 28 U.S.C. § 1404(a) on motion of appellee Boeing. ³

After completion of preliminary discovery, BOAC moved for partial summary judgment on the strict tort liability claim. Boeing opposed the motion and filed a cross-motion for summary judgment seeking dismissal of the complaint in its entirety. Both parties filed briefs in support of their motions. Oral argument was heard on September 10, 1976. On September 23, 1976, the trial court denied BOAC's motion for partial summary judgment and granted Boeing's motion for summary judgment dismissing the complaint. It concluded that "1. The probable cause of the accident in question was abnormally severe Clear Air Turbulence which imposed excessive loads on the aircraft beyond its design limits.

"2. Although there is undisputed evidence of some fatigue failure in the fin attachment fittings on this aircraft * * * there is no evidence indicating that the crash resulted from, or was caused, in whole or in part, by such failure. Instead, the evidence supports the finding * * * that cracks in the fin fittings were not an accident cause factor.

"3. Plaintiff has been unable to produce any evidence that a contributing cause of the accident was a defect in the aircraft."

This appeal followed.

I. VENUE

BOAC's first argument on appeal is that the trial court in the Central District of California abused its discretion in transferring venue in the action to the Western District of Washington. In ruling on Boeing's motion for summary judgment, however, the court below had two suits before it, the California "protective" suit and the suit initially filed in the Southern District of New York. Because the Court of Appeals for the Second Circuit has upheld the transfer of venue from the Southern District of New York to the Western District of Washington, the trial court had at least one of the suits properly before it and we must dismiss BOAC's argument on this issue as moot.

II. GENUINE ISSUE OF MATERIAL FACT

BOAC and Boeing have different theories as to the cause of the airplane crash. BOAC claims that the accident resulted from defective design and manufacture of the fin attachment fitting of the aircraft ⁴ which caused the tail of the plane to crack and then to separate in flight. Boeing argues that the accident was due, not to design or manufacturing defects, but to the effect of severe air turbulence encountered when the plane's pilot flew close to Mt. Fuji at too low an altitude.

On appeal, BOAC contends that whether or not its theory is correct, it has at the very least demonstrated a "sharp and substantial dispute" as to the existence of material facts. Specifically, it contends that there is a factual dispute as to whether on the day of the accident there was clear air turbulence ("CAT") in the vicinity of Mt. Fuji of a magnitude in excess of the design strength of the aircraft, and whether, regardless of the clear air turbulence, the crack in the vertical fin attachment fitting was the proximate cause of the crash. ⁵

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where "there is no genuine issue as to any material fact and (where) the moving party is entitled to judgment as a matter of law." ⁶ The burden of establishing that there is no genuine issue of material fact lies with the moving party, in this case Boeing. Mutual Fund Investors v. Putnam Management Co., 553 F.2d 620, 624 (9 Cir. 1977); Doff v. Brunswick Corp., 372 F.2d 801, 805 (9 Cir. 1966), Cert. denied,389 U.S. 820, 88 S.Ct. 39, 19 L.Ed.2d 71 (1967); 6 Moore Federal Practice, P 56.15(3), at 56-463. However, once Boeing has met that burden by presenting evidence which, if uncontradicted, would entitle it to a directed verdict at trial, Rule 56(e) ⁷ shifts to BOAC the burden of presenting specific facts showing that such contradiction is possible. See First Nat. Bank v. Cities Service Co., 391 U.S. 253, 288-290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) (noting absence of "significant probative evidence" in support of contradictory theory); Mutual Fund Investors v. Putnam Management Co., supra, 553 F.2d at 624; Stansifer v. Chrysler Motors Corp., 487 F.2d 59, 63 (9 Cir. 1973). This is the burden that BOAC has failed to meet, even though we have drawn all permissible inferences from the evidence in its favor. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (Per curiam ); Stansifer v. Chrysler Motors Corp., supra, 487 F.2d at 63; 6 Moore Federal Practice, P 56.15(1.00), at 56-405.

Boeing produced substantial evidence that any preexisting fatigue crack in the fin attachment fitting was irrelevant to the cause of the accident. First, it introduced BOAC's official accident report (Incident/ Accident Report No. 558) which stated: "The fin fitting was released to Boeing for detailed metallurgical examination and they concluded that these cracks were not an accident cause factor." Boeing Exhibit D-1, at 5. Second, it noted that BOAC's Chief Investigator of Accidents and its Air Safety Advisor had both testified in depositions that neither they nor anyone they knew of disagreed with the findings of this metallurgical examination. Boulding Deposition, at 36-39; Nisbet Deposition, at 87-89. Finally, it pointed out that both the investigator for the Royal Aircraft Establishment and Boeing's Chief of Structures Research had testified that the crack in the fitting was irrelevant to the cause of the accident. Boeing Exhibit D-8; Boeing Exhibit D-6 ("there was no indication from the examination of the wreckage that the failures had been associated with any premature structural failure or malfunction of the aircraft systems").

If BOAC had produced evidence which contradicted these facts, or even evidence from which contradictory inferences could be drawn, we would be constrained to rule that summary judgment was inappropriate. However, after diligently searching the record, and after seeking the assistance of counsel at oral argument, we are unable to find any evidentiary support for BOAC's position.

BOAC attempted to meet its burden under Rule 56(e) with two pieces of evidence. First, it introduced the deposition testimony of a Boeing employee that a crack in the terminal fitting Can lead to a catastrophic accident. ⁸ However neither that witness nor any other witness produced by BOAC has been able to produce specific facts showing, or even creating an inference, that the crack Did lead to the accident in question. The only statements we can find in the record that the crash was caused by a defective fin attachment fitting were made by counsel for BOAC. But legal memoranda and oral argument are not evidence, and they cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion where no dispute otherwise exists. Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9 Cir. 1974).

Second, BOAC attempted to avert summary judgment by relying on the report of the Japanese Civil Aeronautics Board ("JCAB"), the agency which investigated the crash. Among other things, the JCAB found that the vertical stabilizer of the tail fin and the left horizontal stabilizer broke away before the rest of the aircraft disintegrated. BOAC claims that this supports an inference that the aircraft first broke apart at the fatigue cracks and that the fatigue cracks therefore caused the crash. ⁹ However, examination of the aircraft showed that at least Five in-flight failures had occurred. And in fact, the JCAB report ultimately concluded that "It was not possible to establish the break-up sequence of the major portions of the entire aircraft." BOAC Motion for Partial Summary Judgment, Exhibit 8, at 21 (emphasis added). ¹⁰

A party opposing a motion for summary judgment must introduce " sufficient evidence supporting the claimed factual dispute * * * to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat. Bank v. Cities Service Co., supra, 391 U.S. at 288-289, 88 S.Ct. at 1592; United States v. Gossett, 416 F.2d 565, 567 (9 Cir. 1969), Cert. denied, 397 U.S. 961, 90 S.Ct. 992, 25 L.Ed.2d 253 (19...