Montgomery v. Goodyear Tire & Rubber Company

• Decision Date: 28 May 1964
• Citation: 231 F. Supp. 447
• Parties: Ruth MONTGOMERY, as Executrix of the Estate of Orion V. Montgomery, deceased, et al., Libellants, v. The GOODYEAR TIRE & RUBBER COMPANY, Goodyear Aircraft Corporation and Edwards Company, Inc., Respondents. Catherine R. COUTU, as Administratrix ad Prosequendum of the goods, chattels and credits which were of Leo Joseph Coutu, deceased, late of Ocean County, et al., Libellants, v. GOODYEAR AIRCRAFT CORPORATION and Edwards Company, Inc., Respondents.
• Court: U.S. District Court — Southern District of New York

231 F. Supp. 447

Ruth MONTGOMERY, as Executrix of the Estate of Orion V. Montgomery, deceased, et al., Libellants, v. The GOODYEAR TIRE & RUBBER COMPANY, Goodyear Aircraft Corporation and Edwards Company, Inc., Respondents.

Catherine R. COUTU, as Administratrix ad Prosequendum of the goods, chattels and credits which were of Leo Joseph Coutu, deceased, late of Ocean County, et al., Libellants, v. GOODYEAR AIRCRAFT CORPORATION and Edwards Company, Inc., Respondents.

United States District Court S. D. New York.

May 28, 1964.

COPYRIGHT MATERIAL OMITTED

Harry H. Lipsig, New York City, for libellants; Murray L. Lewis, New York City, of counsel.

Cahill, Gordon, Reindel & Ohl, New York City, for respondent Goodyear Aircraft Corp.; Paul W. Williams, H. Richard Schumacher, Robert F. Martin, New York City, William A. Runyan, Akron, Ohio, of counsel.

Perrell, Nielsen & Stephens, New York City, for respondent Edwards Co.; Joseph A. Minch, New York City, of counsel.

Bigham, Englar, Jones & Houston, New York City, for respondent Goodyear Tire & Rubber Co.; John J. Martin, New York City, of counsel.

COOPER, District Judge.

This is a motion for summary judgment pursuant to Rule 58(b) of the Rules of Practice in Admiralty and Maritime Cases, 28 U.S.C.,¹ brought by respondents Goodyear Aircraft Corporation and Edwards Company, Incorporated. Libellants Montgomery, Coutu and others commenced this action in admiralty to recover for the wrongful death of servicemen on active duty aboard a United States Naval airship which crashed 16 to 18 miles off the coast of New Jersey on July 6, 1960.

Respondent Goodyear manufactured the airship involved in the crash under a contract with the United States Government dated November 21, 1955. Edwards manufactured the electrical warning bell device built into the airship.

The dirigible was completed on September 24, 1959 and turned over to the Navy at Lakehurst, New Jersey. Approximately nine months later and after 363.4 hours of flight, it crashed into the Atlantic Ocean. All lives aboard were lost.

Libellants allege negligence in the manufacture of the ship on the part of Goodyear due to improper seaming of the balloon and against Edwards for manufacture of a faulty warning system which did not sound when the balloon began to lose air. These negligence claims are brought under the Death on the High Seas Act, 41 Stat. 537 (1920), 46 U.S.C. § 761 et seq. (1958).

In addition, libellants allege a breach of implied warranties of fitness and merchantability under the Act as well as a survival of their decedents' actions for conscious pain and suffering.

For the purposes of this motion, the pleaded facts are considered true. (Admiralty Rule 58 is identical to F.R. Civ.P. § 56). Accordingly, we assume that the balloon crashed when its defectively manufactured seams split, and that the servicemen aboard the dirigible were not warned of the escaping gas because of a faulty alarm system.

Nonetheless, respondents seek dismissal of the action, alleging that public policy considerations governing contracts between the United States Government and weapons suppliers preclude suits by injured or deceased servicemen against the supplier. They argue that in order to keep ahead in the armaments race in these perilous times, sacrifice must be made of some elements of safety on newly developed weapons systems.

It is alleged by respondents that the ZPG-3W airship in question was of advanced design, and therefore necessarily deficient in certain safety factors common to commercial aircraft; that in order to remain at the frontiers of the art of weaponry, system failures due to this necessary skimping must be expected. Allowing lawsuits based upon these failures, it is claimed, would work a hardship on the manufacturers and on Government personnel involved in designing, maintaining and operating these ships.

Moreover, say the respondents, the amount of time necessary for production of advanced weapons often exceeds the time within which the equipment must be in the hands of military personnel to prevent obsolescence; that identification of all safety problems in airships often cannot be completed; that the essential problem demanding speedy solution is unlike the situation of the ordinary manufacturer who has time to subject his product to extensive testing before distribution.

The Court is impressed by the sensitive questions of national defense raised here and the important role played by these advance weapons systems in protecting the nation. We recognize that in some cases, certain safety factors must be disregarded in order to explore new possibilities in weaponry. Similarly, it may be true that complete knowledge of all possible safety problems cannot be obtained because of the speed with which these weapons must be completed.

In response, libellants concede that certain safety factors must be sacrificed for experimentation in such weapons, but insist the number of safety factors lacking is not at issue here. Rather, they predicate their claim on the proposition that within the existing safety devices actually adopted on this airship, there was faulty manufacture. It is alleged, and for the purposes of this motion accepted as true, that the bolts used in the seams of the envelope were not correctly applied, thereby causing them to open. This has no bearing on the inclusion or exclusion of safety devices.

For the purposes of this motion, the Court accepts libellants' characterization of negligence as occurring within the safety factors existing in the ship. While libellants may not rely on any devices or materials intentionally omitted from this ship in order to prove a breach of the standard of care owed by a weapons manufacturer to those using his products, they may attempt to prove that even within the limited standard of safety demanded of this manufacturer, the fabrication of the balloon was negligently executed.

The speed with which an airship must be completed to prevent obsolescence is no license for defective work. Speculation over the adequacy of time consumed in the manufacture of this balloon, November 21, 1955 to September 24, 1959, will accomplish nothing.

Under perilous circumstances, men are expected to go forward at all hazards despite the total absence of safety devices; a piece of rope must serve in the stead of efficient mechanical equipment; a stone moved into place where expert masonry appears the only efficient answer. Fortunately, we are not confronted here with challenges so awesome.

Turning now to policy questions governing the actions in warranty and negligence, it is alleged that Government procurement of weapons is so unlike the ordinary contract and sale of a product as to disallow ordinary negligence and warranty considerations. Government, unlike the ordinary consumer, is allegedly in a position to dictate terms of manufacture. This distinction, however true, does not warrant summary judgment. The Court will not dismiss an action simply because it does not completely fit into any accepted mold of warranty or negligence claims. We choose to examine the particular facts upon which the claim rests and so determine whether there was in truth a breach of implied warranty or negligent manufacture. Unless compelling reasons are advanced and adopted, this cause of action should not be stricken at the threshold of its assertion.

Movants also seek summary judgment on the ground that, as a matter of law, their negligence could not have been the proximate cause of the crash. It is said that the Government exercised almost complete control over the manufacture of the airship in question, thereby precluding any meaningful control by Goodyear; that the ship was built according to Government specifications and under its inspection; that it was then delivered to the United States Navy which took complete control of it approximately nine months before the crash.

Of course the Government had control of the airship once it was finished. But the negligence which is claimed here occurred at an earlier stage. If we are to accept the alleged facts as true, and we do for purposes of this motion, the negligent acts took place at Goodyear's plant during the manufacture of the airship and not when the Navy accepted it. Accordingly, control upon delivery of the balloon does not preclude a finding of negligence on the part of either Goodyear or Edwards.

The extent of Government control over the actual day-to-day manufacturing process is not clear. Did Government personnel prepare the seams of the ship? Did Government direct, either by contract or through inspectors, the exact method to be used to seal the seams? These are material questions for the trier of fact to determine before the proximate cause is known. This alone thwarts summary judgment.

Next, respondents assert the defense of assumption of risk on the part of the servicemen as a bar to this action. Libellants' decedents were Navy servicemen who had volunteered for flight duty not required of all Navy personnel, and they received higher compensation to perform this duty. These facts, respondents argue, show an assumption of risk on their part.

In order to assume a risk, there must be an awareness of danger and a voluntary choice to encounter the hazards which that danger might bring. This defense requires "knowledge and appreciation of the risk, and a voluntary choice to encounter it." Prosser on Torts 303 (2d ed. 1955).

The decedents volunteered to fly. Other than this, we do not know what it was they assumed. What were they told about their airship? When they decided and volunteered to fly, were they told they would fly aircraft in which safety factors were limited? And if they knew this was an advanced design airship, were they made aware of a possible break in the seams? An unknown hazard cannot be assumed.

The state of decedents' knowledge is a material question of fact which must be explored at trial. Montellier...