Moyer v. Martin Marietta Corp., 29550.
| Decision Date | 13 July 1973 |
| Docket Number | No. 29550.,29550. |
| Citation | 481 F.2d 585 |
| Parties | Lisellotte MOYER, etc., Plaintiff-Appellant, v. MARTIN MARIETTA CORP., etc., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Hawkesworth & Kay, Arthur J. Hawkesworth, Jr., Horton & Schwartz, Alan R. Schwartz, Miami, Fla., for plaintiff-appellant.
Edward A. Perse, Carey, Dwyer, Austin, Cole & Selwood, Miami, Fla., for Martin Marietta Corp.
A. Lee Bradford, Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, Fla., for Aircraft Mechanics, Inc.
Robert W. Rust, U. S. Atty., Miami, Fla., Philip Silverman, Daniel Joseph, Alan S. Rosenthal, Michael C. Farrar, Attys., Dept. of Justice, Washington, D. C., for U. S. A.
Before GODBOLD, SIMPSON and CLARK, Circuit Judges.
Larry Eugene Moyer, a test pilot employed by American Airmotive, Inc., at Miami, Florida, was preparing to fly a B-57A aircraft owned by the United States of America on April 22, 1964, when the ejection seat was triggered while the plane was still on the ground. The pilot was thrown into the air by the explosive charge associated with the ejection seat and was killed instantly when he fell on the paved runway.
The widow and administratrix of the decedent, Lisellotte Moyer, brought suit for wrongful death in the court below, against the manufacturer of the aircraft, Martin Marietta Corporation (Martin)1, the manufacturer of the ejection seat, Aircraft Mechanics, Inc. (Aircraft), and the United States. Jurisdiction for suit against the corporate defendants was based on diversity of citizenship. The jurisdictional basis for the action against the United States was Title 28 U.S.C. Sec. 1346(b) and the Federal Tort Claims Act, Title 28 U.S.C. Secs. 2672-2680.2
The claims against Martin and Aircraft were tried to a jury at the same time the court tried the tort claim against the United States. At the close of the plaintiff's case in chief, the trial judge directed a verdict in favor of the two corporate defendants.3 The "Motion for Directed Verdict" of the United States was denied and the trial continued, the jury remaining as an advisory jury pursuant to Rule 39(c), F.R.Civ.P. At the conclusion of the evidence the jury found in answer to special interrogatories that the United States had been negligent both in the furnishing of an improperly designed aircraft and in preparing and issuing Technical Order No. 876,4 that this negligence was a "legal cause" of Moyer's death, that Moyer had not been contributively negligent, and that Mrs. Moyer's damages were in the amount of $700,000.
Inasmuch as the verdict was purely advisory, the trial judge was required to make an independent decision as to the issues against the United States. He dismissed the action on the ground that it was barred by the "discretionary function" exception to the Federal Tort Claims Act, Title 28 U.S.C. Sec. 2680(a).5 Moyer v. United States, S.D. Fla.1969, 302 F.Supp. 1235.6 These rulings, as well as the instructed verdicts against the corporate defendants, are challenged by this appeal. We find merit in appellant's contentions and reverse and remand for further proceedings.
The B-57A aircraft in question, No. AF-52-1469 sustained damage to its fuselage in the course of an emergency landing in Alaska and was sent to American Airmotive, Inc., in Miami, Florida, for repairs. In the course of this work the pilot's seat was removed and placed on a bench. While the aircraft was undergoing structural repairs by Airmotive, the United States Air Force issued Technical Order No. 1B-57-876 directing several modifications to the ejection seat. Upon learning of the new technical order Airmotive requested permission of the Air Force to perform the modifications while the plane was still at its Miami plant. The Air Force approved this request in March, 1964, and Airmotive assigned its employee, Al Bass, to modify the ejection seat.
The purpose of the technical order was to install a new type of trigger guard for the ejection seat mechanism, which was located on the right-hand armrest. Bass, who was qualified as a sheet metal worker, carried out the modifications called for in paragraphs "j" through "l" of the technical order. He then proceeded to perform the operations directed by paragraphs "q" and "r" of the order. These latter paragraphs required the drilling of a hole through the right-hand armrest support to facilitate the installation of a down stop and the installation of a specified bolt in that hole. The purpose of the bolt, which acted as a down stop, was to prevent a new safety pin, installed in the armrest, from hitting the seat bucket when the armrest was in the down position.
Bass made a mistake in locating and drilling a hole for the new bolt and ended up with a clearance adjacent to the newly installed bolt in excess of the specified one-eighth of an inch. He then consulted with his lead mechanic, Cohen, and the two men made two important, but incorrect decisions: (a) that this excessive clearance had to be corrected; and (b) that the only way to make the correction was to remove the armrest assembly from the seat and then to grind down the sleeve or collar on which the bolt rested. Bass and Cohen determined that the only way to remove the armrest assembly was to disassemble it from the bottom by removing a roll pin. This roll pin was designed to act as a stop so as to prevent the armrest support from slipping upward through the collar when the armrest was pulled up to the horizontal position by the pilot. Bass was required to use considerable force to remove the roll pin. After the pin was removed, he ground down the collar to insure the 1/8" clearance specified by the technical order. In reassembling the armrest assembly, Bass neglected to replace the roll pin. The roll pin was found in Bass' tool box after the fatal accident of April 22, 1964.
On April 22, 1964, prior to making a scheduled test flight in the B-57A aircraft, Moyer made the usual external inspection of the plane in the company of his ground mechanic, Seftchick. The pilot then climbed inside, pulled the ejection seat initiator pins, and climbed into the pilot's seat. Moyer reached to his right and, while holding out with one hand a spring-loaded pin located in the collar, he jerked the armrest (which had been lowered to permit entry into the pilot's seat) upward with the other hand. Because the spring-loaded pin was held out by Moyer, and because the roll pin was missing, the armrest did not stop at the horizontal position. As the armrest passed the horizontal position and headed towards the vertical position, it brought about the same action as if the trigger mechanism had been squeezed. Moyer and the seat were thrown one hundred feet into the air by the explosive charge. Moyer's death followed.
Three factors interacted to cause the activation of the ejection mechanism while the aircraft was on the ground: (1) the pilot pulled the initiator pins, which activated the explosive component of the seat, before he was seated in the pilot's seat; (2) the pilot held out the spring-loaded pin, which normally would have caught in a hole in the ascending armrest support and which would have stopped the armrest at some point near the horizontal; and (3) the ultimate safety stop, the roll pin, which was meant to prevent this type of accident, had been removed and not replaced by Bass.
Mrs. Moyer's complaint alleged, with respect to Martin, that the pilot's seat and ejection mechanism had been negligently designed and manufactured in the following aspects: (1) the spring-loaded pin was too weak to catch and lock properly; (2) the roll pin was removable and not adequately marked as a safety feature; (3) the ejection mechanism was incorporated into the pilot's righthand armrest; and (4) the initiator pins were not identified by streamers or otherwise. The complaint also alleged a proximate causal relationship between the allegedly improper design and manufacture, or the selection of equipment for the B-57A aircraft and the death of Moyer caused by the ejection of the seat while the plane was on the ground on April 22, 1964, and resultant damages. Similar allegations of negligence and proximate causation were made against Aircraft Mechanics, Inc., the manufacturer of the seat and ejection mechanism.
Two theories for recovery were asserted by plaintiff against the United States. The first one alleged that Technical Order 1B-57-876 was drafted in a vague, ambiguous and negligent manner in that it failed to provide adequate instructions for the modification of the right armrest of the pilot's seat.7 The second alleged that the United States negligently furnished to American Airmotive, Inc., the aircraft and seat in question when it knew or should have known that the seat was improperly designed and manufactured in that: (1) the ejection mechanism was incorporated into the right-hand armrest which had to be moved up and down each time the pilot entered and left the aircraft; (2) the initiator pins meant to prevent inadvertent jettisoning of the ejection seat were not properly marked so as to warn of the danger inherent in their premature removal; and (3) the spring-loaded mechanism used to raise and lower the right armrest was inadequately designed because it failed to stop the armrest from inadvertently slipping into an ejection position. Finally, the complaint as to the United States alleged that as a proximate and direct result of the negligence of the United States the pilot's seat was inadvertently ejected while the pilot was preparing the plane for takeoff causing Larry Eugene Moyer "great mental pain and suffering and ultimate death."
Martin answered the complaint by denials that it had negligently designed and equipped the B-57A aircraft in question. Martin alleged as an affirmative defense that Moyer's negligence was the...
To continue reading
Request your trial
-
Todd Shipyards Corp. v. Turbine Serv., Inc.
...not have been anticipated by the first party. See generally Restatement (Second) of Torts § 447 (1965) and Moyer v. Martin Marietta Corp., 481 F.2d 585, 591 (5th Cir. 1973). I have already discussed above how the duty to test or inspect possessed by an actor subsequent to the original actor......
-
Aretz v. United States
...under contracts with independent contractors include: Market Insurance Company v. United States, supra, 415 F.2d 459; Moyer v. Martin Marietta Corp., 481 F.2d 585; Chanon v. United States, 480 F.2d 1227; Seaboard Coast Line Railroad v. United States, 473 F.2d 714; Pigott v. United States, 4......
-
Blessing v. United States
...the programmatic breadth or narrowness of the decision has helped the courts reach a decision. See, e. g., Moyer v. Martin Marietta Corp., 481 F.2d 585 (5th Cir. 1973) (design of pilot's ejection seat not protected activity); Swanson v. United States, supra. The military nature of the activ......
-
Allen v. United States, Civ. No. C 79-0515.
...515 F.2d 97, 99 (5th Cir. 1975); see Griffin v. United States, 500 F.2d 1059, 1064 (3rd Cir. 1974). See also Moyer v. Martin Marietta Corp., 481 F.2d 585, 597-98 (5th Cir. 1973). This would seem to be most particularly so with respect to those high-echelon decisions which by their very natu......