Johnston v. United States

• Citation: 568 F. Supp. 351
• Decision Date: 18 July 1983
• Docket Number: No. 81-1060,81-1100 and 81-1101.,81-1061,81-1060
• Court: U.S. District Court — District of Kansas
• Parties: Ada G. JOHNSTON, Individually and as Heir-At-Law of Earl E. Johnston, Deceased, Plaintiff, v. UNITED STATES of America, et al., Defendants. Barbara J. WOMACK and Loyd B. Womack, Plaintiffs, v. UNITED STATES of America, et al., Defendants. Estella I. VESSELS, Individually and as Heir-At-Law of Don C. Vessels, Deceased, Plaintiff, v. UNITED STATES of America, et al., Defendants. Lila M. MEWHINNEY and Richard M. Mewhinney, Plaintiffs, v. UNITED STATES of America, et al., Defendants.

568 F. Supp. 351

Ada G. JOHNSTON, Individually and as Heir-At-Law of Earl E. Johnston, Deceased, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Barbara J. WOMACK and Loyd B. Womack, Plaintiffs, v. UNITED STATES of America, et al., Defendants.

Estella I. VESSELS, Individually and as Heir-At-Law of Don C. Vessels, Deceased, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Lila M. MEWHINNEY and Richard M. Mewhinney, Plaintiffs, v. UNITED STATES of America, et al., Defendants.

Nos. 81-1060, 81-1061, 81-1100 and 81-1101.

United States District Court, D. Kansas.

July 18, 1983.

COPYRIGHT MATERIAL OMITTED

Ken M. Peterson of Morris, Laing, Evans, Brock & Kennedy, Wichita, Kan., for plaintiff.

Donald Patterson and Steve Fabert of Fisher, Patterson, Sayler & Smith, Topeka, Kan., for defendants General Motors and Lewis Engineering.

MEMORANDUM AND ORDER

KELLY, District Judge.

These lawsuits stem from cancer or leukemia that was contracted by four former employees of Aircraft Instrument and Development, Inc. (AID), a concern whose business is the repair and overhaul of aircraft instruments. Plaintiffs contend that these four cases of cancer were caused by exposure to ionizing radiation that originated in luminous radioactive compounds on the faces of many instruments sent to AID for overhaul; they assert various tort claims against the United States, for whom some of the instruments were made, against eight defendants who manufactured the instruments, and against 15 defendants who sent the instruments to AID.

These cases are now before the Court on motions for summary judgment filed by two of the manufacturer-defendants, General Motors Corporation (GM) and Lewis Engineering Company (Lewis). GM and Lewis argue that any of their instruments which reached the AID plant were produced under wartime contracts with the United States, and that the supposed injury-causing aspects of the instruments were all mandated by contract specifications; these facts, they claim, absolve them of any liability for plaintiffs' injuries. GM and Lewis also argue that under the facts of this case they had no duty to warn of the dangerous, radioactive condition of the instrument dials, and that they thus cannot be held liable for a "breach" of that ostensible but nonexistent duty. As explained more fully below, there is at least a substantial dispute as to whether the dangerous aspects of these instruments were mandated by contract specifications; moreover, even on defendants' version of the facts the Court doubts that the so-called "government contract defense" on which GM and Lewis rely has any application to this case. By the same token, defendants have not shown beyond factual doubt that the risk of harm to the injured AID workers — or others similarly situated — was so small or unforeseeable that no duty to warn of that risk was triggered. Defendants' motions for summary judgment must therefore be denied.

The so-called "government contract defense" at issue in such recent cases as In re Agent Orange Products Liability Litigation, 506 F.Supp. 762 (E.D.N.Y.1980) and 534 F.Supp. 1046 (E.D.N.Y.1982), is in reality an amalgam of two separate defenses that are based on separate principles and applicable in two ranges of distinct but overlapping factual situations. These two defenses will be referred to here as the "contract specification defense" and the "government contract defense." See Note, Liability of a Manufacturer for Products Defectively Designed by the Government, 23 B.C.L.Rev. 1025, 1031-32 (1982). The contract specification defense applies to products manufactured to the order and specification of another, whether that other be the government or a private party. Under this defense, which is based on ordinary negligence principles, a contractor is not liable for damages resulting from specifications provided by his employer unless those specifications are so defective and dangerous that a reasonably competent contractor "would realize that there was a grave chance that his product would be dangerously unsafe." Restatement (Second) of Torts § 404 comment a. (1965); see also id. § 389 comment e., illustration 1; Challoner v. Day and Zimmermann Inc., 512 F.2d 77, 83 (5th Cir.1975), vacated and remanded on choice of law grounds, 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975); Lenherr v. NRM Corp., 504 F.Supp. 165 (D.Kan.1980). In essence, the defense is based on the presumption that a contractor will lack the expertise to evaluate the specifications given him — just as a nurse or orderly will seldom be in a position to second guess a physician — and is thus not held to the same high standard of care as is a designer. See, e.g., Note, supra, 23 B.C.L.Rev. at 1034-35; Person v. Cauldwell-Wingate Co., 187 F.2d 832 (2nd Cir.1951) (Learned Hand, J.), cert. denied 341 U.S. 936, 71 S.Ct. 855, 95 L.Ed. 1364 (1951). This does not mean, however, that as long as the designer gets what he asks for the manufacturer bears no responsibility: indeed, in those unexpected cases where the manufacturer has special knowledge or expertise, he may be held to as high a standard of care as the designer — or higher. See id.; Restatement (Second) of Torts § 289(b) & comment m. In short, the contract specification applies when — and only when—the contractor is not negligent.

A necessary corollary of the fact that the contract specification defense has its source in ordinary negligence principles is that it does not apply to actions grounded in strict liability. Challoner, supra; Lenherr, supra. At first glance it may seem harsh to hold a manufacturer responsible for a defect in someone else's design, but surely no harsher to hold a retailer or wholesaler responsible for a nonobvious manufacturing defect, see Restatement (Second) of Torts § 402 comment f.: if the loss spreading rationale that is "the most basic and primary justification for imposing strict liability," Challoner, supra, 512 F.2d at 84, suffices to hold the "innocent" wholesaler liable in the latter instance, it should suffice to hold the "innocent" manufacturer liable in the former. See also Westerbeke & Meltzer, Comparative Fault and Strict Products Liability in Kansas: Reflections on the Distinction Between Initial Liability and Ultimate Loss Allocation, 28 Kan.L. Rev. 25, 95 (1979).

Defendants argue that the contract specification defense may nonetheless apply in strict liability cases predicated on design or warning defects, because in such cases "the standard of liability is no different in a negligence count than a strict liability count." This argument probably has merit insofar as it relates to the absence of any warnings about the instruments' radioactive character: Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348 (1983), makes it plain that a "strict liability" failure to warn claim is nothing but a negligence claim by a different name (indeed, it would be conceptually clearer simply to state that there is no such thing as a "strict liability" claim for breach of a duty to warn. Cf. Prentice v. Acme Machine & Supply Co., 226 Kan. 406, 408, 601 P.2d 1093 (1979)).¹ In cases involving flaws in design, however, the Kansas Supreme Court has made it crystal clear that negligence claims are not equivalent to strict liability claims. In Prentice, supra, a case based solely on strict liability claims for defective design (the negligence claims having been settled or abandoned before trial), the Court rejected as clearly erroneous jury instructions that "improperly presented negligence issues to the jury," and stated:

The question of whether a manufacturer exercised ordinary care in the design of a product as raised in instruction two, is not a proper issue under the theory of strict liability. In addition, the duty to warn in instruction three would be proper in a negligence case, but is not proper here....

226 Kan. at 408, 601 P.2d 1093. Similarly, in Lester v. Magic Chef, Inc., 230 Kan. 643, 650-54, 641 P.2d 353 (1982), a strict liability case involving an alleged design defect, the Court expressly rejected the "risk-benefit test" of Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978)—a test suffused with negligence concepts — in favor of a "consumer expectation test" that defines the standards of strict liability in terms of the objective characteristics of the product (as viewed by the consumer) rather than in terms of the reasonableness of the designer's actions. See also 2 L. Frumer & M. Friedman, Products Liability, § 16A4fivD, at 3B-136.2(v) (1983). Under Kansas law, defendants' assertion that there is no difference between defective design and negligent design is simply wrong.

Now it may well turn out that these defendants will be able to invoke the contract specification defense to defeat plaintiffs' claims of negligence, but at this point they have not established the essential facts beyond controversy, and are thus not entitled to summary judgment. In the first place, the injury-causing aspects of the instruments have not been shown to be required by the contract specifications. For example, the specifications presumably required that the instrument dials be self-luminous, but it has not been shown to the Court that this specification could not have been met by employing a luminous compound much less dangerous than the Radium 226 plaintiffs would cast as chief villain: in fact, these defendants admit that they have been unable to obtain copies of the relevant specifications. Nor has it been shown that any specification would have forbidden warnings of dangerous radioactivity on the instruments themselves, or in the instrument manuals; indeed, plaintiffs contend that language contained in manuals incorporated by reference in the specifications can be interpreted as requiring warnings.² Moreover, on plaintiffs' version of the facts, defendant Lewis manufactured some of the radioactivity instruments for commercial...