Bynum v. General Motors Corp., WC82-51-NB-D.

• Decision Date: 27 November 1984
• Docket Number: No. WC82-51-NB-D.,WC82-51-NB-D.
• Citation: 599 F. Supp. 155
• Parties: Daniel Edward BYNUM, Plaintiff, v. GENERAL MOTORS CORPORATION and FMC Corporation, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

599 F. Supp. 155

Daniel Edward BYNUM, Plaintiff, v. GENERAL MOTORS CORPORATION and FMC Corporation, Defendants.

No. WC82-51-NB-D.

United States District Court, N.D. Mississippi, W.D.

November 27, 1984.

Cliff Finch, Batesville, Miss., Melvin Block, Brooklyn, N.Y., for plaintiff.

Lee Davis Thames, Jackson, Miss., for defendants.

MEMORANDUM OPINION

BIGGERS, District Judge.

This cause came before the court on the oral motion by defendant FMC Corporation (FMC) to reconsider the denial of a previous motion for summary judgment by FMC in this case. After considering the pleadings, affidavits, memoranda, and stipulations of the parties, the court rendered an oral opinion granting summary judgment in favor of FMC. This opinion sets forth in detail the reasons for the court's decision.

The parties hereto have entered into the following two stipulations:

(1) This court has the authority to reconsider a previous ruling on a motion for summary judgment; and

(2) The vehicle in issue in the present case was manufactured in accordance with precise design specifications furnished by the United States Government, the vehicle conformed to the specifications, and the manufacturer FMC knew of no patent dangers in the vehicle that were not known to the United States Government.

This case arose from the following uncontested facts. Plaintiff, a resident of Water Valley, Mississippi, seeks recovery for injuries sustained on July 18, 1978, during National Guard military training at the federal enclave of Fort Stewart, Georgia.¹ The injuries complained of occurred when a United States Army vehicle, an M548 cargo carrier, plunged from a bridge into a creek bed. The plaintiff, who was riding in the vehicle turret as an air gunner, suffered severe injuries when the turret gun rotated freely and broke both his legs. The plaintiff alleges that the vehicle was defective due to both a faulty left track which caused the plunge and a faulty gun locking mechanism.

Due to the parties' stipulations, this case involves only alleged "design defects" rather than negligent manufacture. The United States has no liability under the Federal Tort Claims Act for injuries sustained by the plaintiff incident to military service. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Therefore, the plaintiff seeks recovery only from the manufacturer FMC under the theories of strict liability, negligence, and breach of warranty. FMC contends that under the "government contractor" or "governmental specification" defense,² it shares the immunity to suit of the United States under all the theories asserted by the plaintiff.

Public contractors have long been accorded immunity from tort under state law when the injury complained of does not result from performing the work in a tortious manner, see, e.g., Roland v. Jumper Creek Drainage District, 4 F.2d 719, 721-22 (D.C.Fla.1925) (non-liability of contractor hired by state for damage resulting from construction according to plans of state); Converse v. Portsmouth Cotton Oil Refining Corp., 281 F. 981, 984 (4th Cir.), cert. denied, 260 U.S. 724, 43 S.Ct. 13, 67 L.Ed. 482 (1922) (non-liability of contractor hired by state for damage resulting from construction according to plans of state when incidental injury necessary and unavoidable consequence of work), see generally, Annot., 9 A.L.R.3d 389, 389-90 (1966) (cases involving immunity of state contractor when no negligent or wilful tortious conduct). Similarly, the Supreme Court has recognized that contractors of the federal government acquire a protective cloak when they perform such work in accordance with government specifications, although the Court did not specifically use the word "immunity." Yearsley v. W.A. Ross Construction Co., 309 U.S. 18, 20-22, 60 S.Ct. 413, 414-415, 84 L.Ed. 554 (non-liability of contractor of United States Government when work performed properly, apparently through imputation of governmental immunity to contractor under agency principles).

Although the government contractor defense has not been applied in either Mississippi or this circuit, it was recently discussed by the Fifth Circuit Court in Hansen v. Johns-Mansville Products Corp., 734 F.2d 1036, 1045 (5th Cir.1984) (inapplicability of government specification defense in case not involving instrument of war absent state precedent and on facts in issue). Cf. Whitaker v. Harvell-Kilgore Corp., 418 F.2d 1010, 1014 (5th Cir.1969), reh'g. denied, 424 F.2d 549, 551 (5th Cir. 1970) (contractor not immune under agency principles where contract expressly provided contractor not agent of government; government contractor defense not raised); Challoner v. Day & Zimmermann, Inc., 512 F.2d 77, 82-83 (5th Cir.), vacated and remanded for misapplication of conflict of law rules, 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975) (possible liability of contractor for defective design under strict liability principles; government contractor defense not raised). Thus, this court has guidance through case law as to when the doctrine should apply, if at all.

In Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court determined that the United States could not be held liable under the Federal Tort Claims Act for injuries arising out of or incident to military service. This doctrine was extended in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), wherein the Court held that the Federal Tort Claims Act prevents a third party from being indemnified by the United States for damages paid by the third party to a member of the military injured during or incident to military service. In reaching this decision, the Court in effect recognized that indirect liability of the government is no more proper than the direct liability prohibited by Feres. See 431 U.S. at 673-74, 97 S.Ct. at 2058-59.

In cases such as the one at bar, liability of a government contractor would indirectly impose liability upon the government, inasmuch as the increased exposure of the manufacturer would be reflected in higher contract prices to the government. Accord, McKay v. Rockwell International Corp., 704 F.2d 444, 449 (9th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 711, 79 L.Ed.2d 175 (1984). Furthermore, the court is mindful that the advanced technology involved in the construction of an instrument of war may necessitate risks beyond those associated with normal consumer goods. See, e.g., In re "Agent Orange" Product Liability Litigation, 506 F.Supp. 737 (E.D.N.Y.1979), rev'd. on other grounds, 635 F.2d 987 (2d Cir.1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981). Liability on the part of the contractor is particularly inappropriate when dealing with war weapons, wherein a manufacturer may be compelled by federal law to produce the weapon with no ability to negotiate specifications, contract prices, or terms. In re "Agent Orange" Product Liability Litigation, 506 F.Supp. 762, 794 (E.D.N.Y.1980), cert. denied, ___ U.S. ___, 104 S.Ct. 1417, 79 L.Ed.2d 743 (1984). The court is further impressed by the widespread acceptance of the government contractor defense throughout the nation, which was characterized by the Pennsylvania Supreme Court as follows:

In every jurisdiction in this Country where

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