Browne v. McDonnell Douglas Corp., C-77-2016-WWS

• Decision Date: 19 December 1980
• Docket Number: C-77-2031-WWS,C-78-0997-WWS,C-77-2030-WWS,C-78-2935-WWS and C-79-2804-WWS.,No. C-77-2016-WWS,C-77-2016-WWS
• Citation: 504 F. Supp. 514
• Parties: Richard Lee BROWNE et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, a corporation, Defendant. Alfred PEETZ et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, a corporation, Defendant. Zeynep Buge GUNER et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, a corporation, Defendant. Alheid LEENDERDSE et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, a corporation, Defendant. Jeremy Nicholas BOWDLER et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, a corporation, Defendant. Afet HAMAMZI, individually, and Cemalije Hamamzi, by and through her Guardian ad Litem, Mrs. H. Hamamzi, as heirs of Hilmi Hamamzi, deceased, Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, a corporation, Defendant.
• Court: U.S. District Court — Northern District of California

504 F. Supp. 514

Richard Lee BROWNE et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, a corporation, Defendant.

Alfred PEETZ et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, a corporation, Defendant.

Zeynep Buge GUNER et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, a corporation, Defendant.

Alheid LEENDERDSE et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, a corporation, Defendant.

Jeremy Nicholas BOWDLER et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, a corporation, Defendant.

Afet HAMAMZI, individually, and Cemalije Hamamzi, by and through her Guardian ad Litem, Mrs. H. Hamamzi, as heirs of Hilmi Hamamzi, deceased, Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, a corporation, Defendant.

Nos. C-77-2016-WWS, C-77-2030-WWS, C-77-2031-WWS, C-78-0997-WWS, C-78-2935-WWS and C-79-2804-WWS.

United States District Court, N. D. California.

December 19, 1980.

COPYRIGHT MATERIAL OMITTED

Gerald C. Sterns, John C. Elstead, Law Offices of Gerald C. Sterns, San Francisco, Cal., for plaintiffs.

Edwin W. Green, Philip R. Diamond, James C. Krieg, Mary E. Reilley, Bronson, Bronson & McKinnon, San Francisco, Cal., James M. Fitzsimons, Mendes & Mount, New York City, John J. Hennelly, Jr., Timothy R. Cappel, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., for defendant McDonnell Douglas Corp.

SCHWARZER, District Judge.

FACTUAL BACKGROUND

This action arises out of a midair collision between a Hawker Siddley Trident 3 and a McDonnell Douglas DC-9 that occurred at 33,000 feet near Zagreb, Yugoslavia, on September 10, 1976, while both planes were under "positive control" by the air traffic control center at Zagreb. At the very moment the Trident 3 was crossing over Zagreb at 33,000 feet on course to Istanbul, the DC-9 was climbing to 35,000 feet following instructions from Zagreb air traffic control which led it directly through the altitude and airspace occupied by the Trident 3. Instead of warning the DC-9 of the impending collision, the Zagreb air traffic controller incorrectly advised the crew of the DC-9 seconds before the collision that there was a 500 foot vertical separation between it and the Trident 3. Seconds before the collision, the DC-9 was instructed to maintain altitude at the same flight level as the Trident 3. The collision occurred without any evasive action being taken by either crew.

The DC-9 had been manufactured by McDonnell Douglas in Long Beach, California and was owned and operated by a Yugoslavian airline, Inex Adria. The Trident 3 was owned and operated by British Airways. Crew and passengers of both aircraft were nationals of Yugoslavia, England, Turkey, West Germany, and Australia. Plaintiffs are the heirs of various passengers from England, Germany, Australia and Turkey. McDonnell Douglas is the sole defendant in the present action. However, several lawsuits arising out of the accident are currently pending in Yugoslavia. Both the Yugoslav government and Inex Adria are named as defendants in at least three of those suits. In addition, the air traffic controller responsible for the collision has been found criminally negligent by Yugoslav authorities.

Plaintiffs contend that California law applies to the substantive issues of liability and damages, and that California's rule imposing joint and several liability on tort-feasors is also applicable. Defendant argues that the facts of the accident mandate that the substantive law of Yugoslavia govern both the strict liability and the joint and several liability issues, and that the substantive law of the domiciles of the various plaintiffs govern the issue of damages.

DISCUSSION

In a diversity action, a federal court in California must apply California's choice of law rule. Klaxon Company v. Stentor Electric Mfg. Co., 318 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Strassberg v. New England Mutual Life Ins. Co., 575 F.2d 1262 (9th Cir. 1978). In Reich v. Purcell, 67 Cal.2d 551, 63 Cal.Rptr. 31, 432 P.2d 727 (1967), California abandoned the rule that the controlling law was the law of the place where the tort occurred. Instead it adopted the more flexible governmental interest analysis to determine which law must be applied. Under the government interest analysis, California will apply its own law unless it is shown that there is a compelling reason to displace forum law. Kasel v. Remington Arms Co., 24 Cal.App.3d 711, 101 Cal.Rptr. 314 (1972). There is no compelling reason to displace the law of an interested forum unless such a choice of law would impair the interest of a foreign jurisdiction. Cf. Bernhard v. Harrah's Club, 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719 (1976).

California has defined the relevant government interests in a wrongful death action as follows: (1) compensation for survivors, (2) deterrence of wrongful conduct, and (3) limitation upon the damages recoverable. Hurtado v. Superior Court, 11 Cal.3d 574, 114 Cal.Rptr. 106, 112, 522 P.2d 666 (1974). "All three aspects are primarily local in character." Id. That is, the state is concerned with tortious conduct within its borders, with compensation for local plaintiffs, and with the limitation of damages payable by resident defendants. The government interests which may be implicated must be analyzed separately with respect to each issue presented by the case; this analysis will not necessarily result in the same choice of law for each issue. Beech Aircraft Corp. v. Superior Court, 61 Cal.App.3d 501, 132 Cal.Rptr. 541 (1976); In re Paris Air Crash, 399 F.Supp. 732, 742 (C.D.Cal.1975).

This case presents three separate issues: products liability; wrongful death recovery; and the imposition of joint and several liability. Each of the government interests defined in Hurtado is implicated by these issues, as shown in the following paragraphs.

First, the plaintiffs are domiciled in West Germany, Australia, England and Turkey. All of these jurisdictions have an interest in full compensation of their resident plaintiffs, but are not concerned with the other two government interests identified in Hurtado. No relevant conduct occurred within their borders and none of the tortfeasors identified in this litigation resides in any one of these jurisdictions.

Second, wrongful conduct allegedly took place in two jurisdictions: in California, where McDonnell Douglas allegedly defectively designed the DC-9 cockpit, and in Zagreb, Yugoslavia, where the Yugoslav air traffic control directed the DC-9 into the same airspace as that occupied by another airplane. Two jurisdictions therefore have an interest in deterring wrongful conduct within their respective borders.

Finally, tortfeasors reside in at least two jurisdictions, California and Yugoslavia. McDonnell Douglas is the sole defendant named in the present action in California. Various Yugoslav parties have been named as defendants in pending lawsuits in Yugoslavia. In addition, the air traffic controller responsible for the collision has been found criminally negligent by Yugoslav authorities. Two jurisdictions therefore have an interest in the limitation (or apportionment) of damages payable by resident tortfeasors.

Turning now to the particular issues raised by this action, first, no compelling reason warrants displacing the products liability law of California for the allegedly faulty design of the DC-9 by a California manufacturer in Long Beach, California.¹See Kasel, supra. No other jurisdiction has been shown to have an interest which would be impaired if its law were not applied on this issue. Even if Yugoslavia were interested in applying its liability rule to the manufacture of the DC-9 in California on the ground that the consequences of the defective design occurred in Yugoslavia, there is no "true conflict" between California and Yugoslavia on this issue. Yugoslavia recognizes a cause of action for "objective liability" which is similar to strict liability.² When the laws of two interested jurisdictions do not differ significantly on an issue, the apparent conflict is a "false conflict" and the court will apply the law of the forum. See Kasel, supra, and Bernhard, supra.

Nor do the states of domicile of the various plaintiffs which may have different and perhaps more restrictive rules governing wrongful death recovery have an interest in displacing California's liberal rules on the issue of recoverable damages. Cf. Hurtado, supra, in which California declined to apply Mexico's rule limiting damages to the claim of Mexican nationals injured in California by a California resident. Foreign jurisdictions "have no interest in limiting recovery of their resident plaintiffs as against a nonresident" defendant. In re Paris Air Crash, supra, at 746; Colonial Gas Energy System v. Unigard Mutual Insurance Company, 441 F.Supp. 765 (N.D.Cal. 1977).

A different question is presented, however, concerning the choice of law on the issue of joint and several liability. Under California law, any one of the joint tortfeasors may be held liable for the full amount of damages assessed, notwithstanding the right to contribution and indemnity among...