Forsyth v. Cessna Aircraft Co.

Decision Date26 June 1975
Docket NumberNo. 73-2544,73-2544
Citation520 F.2d 608
PartiesRonald G. FORSYTH, Appellant. v. CESSNA AIRCRAFT COMPANY, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Before KILKENNY and SNEED, Circuit Judges, and WOLLENBERG, District Judge. *

KILKENNY, Circuit Judge:

This appeal presents a classic example of the wilderness in which courts sometimes find themselves when searching for solutions to problems arising under the judicial nightmare known as Conflict of Laws.


For the purposes of this appeal, the fundamental facts are undisputed. Appellant, a resident of the state of Washington, owned an airplane manufactured and sold by appellee in the state of Kansas in 1967. In January, 1972, appellant's pilot flew the aircraft from Spokane to Yakima and thence on toward Seattle. During the leg of the flight between Yakima and Seattle, the pilot noticed the odor of what he thought was an electrical fire. On the approach to the landing field near Seattle, he discovered he was unable to lower the landing gear, either through activation of the electrical primary system or through use of the manual back-up system. After checking the aircraft manual and talking to a mechanic on the ground, all to no avail, the pilot again attempted to activate the manual landing gear, at which time the chain mechanism broke. Subsequent to exhausting all means of lowering the gear and after consultation with the tower, the pilot decided to crash land in a grass field. The landing was executed without personal injury to the occupants, but the aircraft sustained substantial damage.


The appellant thereupon instituted in the district court a diversity action against appellee to recover damages sustained by the aircraft. The issues for trial, as outlined in the pre-trial order, 1 were as follows:

"1. Whether the landing gear extension mechanisms were defectively manufactured by the defendant.

"2. Whether the defects in the landing gear extension mechanisms were the proximate cause of the damage to the said Cessna aircraft.

"21/2. Whether plaintiff's claim is barred by the applicable statute of limitations.

"3. The amount of plaintiff's recoverable damage, if any."

From the above, and from his pleadings and briefs in the district court, it is clear that appellant's sole claim for recovery was based on a theory of strict liability in tort. Although the court expressly indicated that the aircraft was defectively designed, 2 it nonetheless went on to hold that the law of the state of Kansas applied and, because the Kansas courts had not adopted the doctrine of strict liability in tort, appellant's action should be treated as one on contract for breach of warranty. Having so decided, the court concluded that appellant's action was barred by the Kansas statute of limitations on such actions, KSA 84-2-725. This appeal is prosecuted from the resulting judgment of dismissal.


We state the issues as follows:

(1) Should appellant's action be characterized as one in tort?

(2) Does Kansas, Washington, or Oregon substantive law apply?

(3) Is the action barred by a statute of limitations?

(4) If the district court erred in its choice of law, is its alleged finding of defective design sufficiently definite to support a judgment?


The threshold question, one essential to discussion of the other problems, is whether appellant's action should be characterized as one in tort or on contract from the commencement of the litigation. We conclude that it would be wholly illogical to pass on the ultimate choice of law question before the action is properly classified.

Both Oregon, the forum state, and Washington, the state in which the accident occurred, recognize and enforce the doctrine of strict liability in tort for defective product design or manufacture. 3 Manifestly, if appellant had instituted his action in an Oregon state court, that court would have characterized the initial pleading and claim as stated in the pre-trial order as one in tort, not on contract. Wights v. Staff Jennings, Inc., 241 Or. 301, 405 P.2d 624 (1965). The tortious nature of an action in strict liability is clarified in Roach v. Kononen, Or., 525 P.2d 125 (1974), and Markle v. Mulholland's, Inc., 265 Or. 259, 272-273, 509 P.2d 529 (1973). To the same effect is Arrow Transportation Co. v. Fruehauf Corp., 289 F.Supp. 170, 172 (D.Or.1968).

In diversity of citizenship cases such as this, the federal courts are required to apply the conflict of laws principles of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), and Erie R. Co. v. Tompkins, 304 U.S. 64, 74-77, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Likewise, the characterization of an action must be made in accordance with the law of the forum. Hall v. Copco Pacific, Ltd., 224 F.2d 884, 885 (CA9 1955); Restatement, 2d, Conflict of Laws § 124. 4

For the purposes of characterization, we discern no valid distinction between an action by a citizen of a foreign state and one by a citizen of the forum. If this were an action by an Oregon resident, the Oregon courts would undoubtedly characterize the action as one in tort, as distinguished from one on contract. The forum not the plaintiff's place of residence determines how an action is characterized.

Because appellant chose Oregon as his forum, he is entitled to maintain his strict liability in tort action against appellee. It follows that the district court was in error when it characterized the action as one for breach of contract.


Having concluded that the action should be characterized as one in tort, we proceed to a determination of which state's law should be applied to the record before us. Should it be the substantive law of Kansas, Washington, or Oregon?

Oregon, a neutral forum, has adopted, with minor modifications, the doctrine of strict liability in tort as embodied in Restatement, 2d, Torts § 402A. Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806 (1967). The identical doctrine under the same Restatement section, has been adopted by the Washington courts. Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969). Consequently, there is no conflict on this subject between the laws of Washington and Oregon. However, the courts of the state of Kansas have neither recognized nor rejected § 402A.

Until recently, the Oregon Supreme Court was committed to the traditional rule that in tort cases the law of the place of wrong, lex loci delicti commissi, controls. In 1967, however, the court in Casey v. Manson Constr. Co., 247 Or. 274, 428 P.2d 898, decided to adopt the equally maligned, generally criticized "most significant relationship" approach embodied in Restatement, 2d, Conflict of Laws § 145.

With the passage of time, the Oregon court recognized the futility of attempting to strictly follow the "most significant relationship" theory, holding in Erwin v. Thomas, 264 Or. 454, 506 P.2d 494 (1973), that when, in the particular factual context, the interests and policies of one state are involved only in a minor way, reason dictates that the law of the state whose policies and interests are vitally involved should apply. Or, in the court's words ". . . if those of neither state are vitally involved, . . . the law of the forum should apply." Id., 506 P.2d at 496. While the court in Erwin did not reject the "most significant relationship" theory as outlined in the Restatement and adopted in Casey, it did hold that if a false conflict exists, the law of the forum should apply. It held that a false conflict would arise: (1) when the laws of two states are the same or would produce the same result, and (2) when no substantial conflict exists between the states' policies or interests in the particular factual context in which the question arises.

Consequently, under Erwin, as applied to our context, Oregon law would apply unless an actual conflict exists among the relevant policies of Oregon, Washington, and Kansas. As we have already said, Oregon and Washington recognize and enforce the doctrine of strict liability in tort as embodied in Restatement § 402A. Between those states there is obviously no conflict. Nor, in these circumstances, do we find a true conflict between the relevant law of Kansas and that of either Oregon or Washington.

Of significant aid to our analysis is McDaniel v. Sinn, 194 Kan. 625, 400 P.2d 1018 (1965), in which the plaintiff prosecuted an action in that forum for injuries to himself and the wrongful death of plaintiff's decedent resulting from an automobile accident in Missouri. The Kansas court held that the substantive rights of the parties, including the extent of damages recoverable, were governed by the law of the state where the tort occurred, as long as the enforcement of such rights would not be contrary to the laws, public policy and good morals of Kansas. Cited in support of its decision is Richards v. United States, 369 U.S. 1, 11-12, 82 S.Ct. 585, 592, 7 L.Ed.2d 492 (1962), an airplane accident case, where the Supreme Court said:

"The general conflict-of-laws rule, followed by a vast majority of the States, is to apply the law of the place of injury to the substantive rights of the parties."

The Kansas court also cited, with approval, La Prelle v. Cessna Aircraft Co., 85 F.Supp. 182 (D.Kan.1949). In La Prelle, a citizen of Florida brought a diversity action in the Kansas district court under an Oklahoma statute against the Cessna Aircraft Company (the appellee here), to recover damages for the wrongful death of her husband killed in an Oklahoma airplane crash. La Prelle held that the law of Oklahoma governed the action and that it could be maintained in a Kansas forum even though actual damages were recoverable under the Oklahoma statute in...

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