Smith v. Xerox Corp.

• Decision Date: 23 February 1989
• Docket Number: No. 87-3853,87-3853
• Citation: 866 F.2d 135
• Parties: Prod.Liab.Rep.(CCH)P 12,062 Bennett P. SMITH, Plaintiff-Appellant, v. XEROX CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 135

866 F.2d 135

Prod.Liab.Rep.(CCH)P 12,062

Bennett P. SMITH, Plaintiff-Appellant, v. XEROX CORPORATION, Defendant-Appellee.

No. 87-3853.

United States Court of Appeals Fifth Circuit.

Feb. 23, 1989.

David J. L'Hoste, Rockne L. Moseley, Lea & Gibbens, New Orleans, La., for plaintiff-appellant.

Thomas G. Buck, Blue, Williams & Buckley, Metairie, La., for defendant-appellee.

Charles A. Boggs, Thomas W. Lewis, New Orleans, La., for Loral Electro Optical.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JOHNSON, JOLLY and JONES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this case we are called upon to consider whether the district court properly granted summary judgment in favor of Xerox Corporation, in a tort suit against it for personal injuries arising from the malfunctioning and premature discharge of a weapon simulator used during military training exercises, on the grounds that Xerox is entitled to the affirmative defense of government contractor immunity. Holding that Xerox presented evidence supporting its claim to the defense of government contractor immunity, and that Smith failed to raise any genuine issue of material fact regarding the defense, we affirm the summary judgment in favor of Xerox.

I

On November 16, 1983, P.F.C. Bennett Smith, was severely injured during military training exercises at Fort Polk, Louisiana, when an explosive cartridge in a shoulder-mounted "VIPER" weapon simulator he was using exploded prematurely, burning his arm and upper chest. The VIPER simulator was designed to fire a beam of laser light at light sensitive targets and had an explosive cartridge which simulated the noise, fire and smoke produced by an actual anti-tank weapon. When Smith moved the safety catch on the VIPER into the "arm" position, the VIPER discharged without Smith's having pulled the trigger. Smith was caught in the weapon's back blast.

Smith brought suit for his personal injuries against Xerox, the manufacturer of the weapon, and Loral Electro Optical Systems, Inc., the company under contract with the United States Army to repair VIPER units. His allegations against Xerox included negligence in the design and/or manufacture of the weapon; strict liability for injuries caused by a weapon unreasonably dangerous for its normal use; failure to warn or instruct Smith regarding the possibility of the weapon's firing when armed, when Xerox had knowledge that the weapon had malfunctioned in a similar manner previously; and breach of warranty of fitness for intended use. Smith also pled the doctrine of res ipsa loquitur on his negligence claims.

On October 16, 1987, Xerox filed a motion for summary judgment arguing that Smith's claims be dismissed as a matter of law, on the grounds that even if Smith could show a design or manufacturing defect, Xerox was entitled to summary judgment on its assertion of the government contractor's immunity defense. The district court granted the motion, and from that judgment Smith now appeals.

II

The Supreme Court recently settled a division among the circuits as to the proper formulation of the government contractor defense in Boyle v. United Technologies Corp., --- U.S. ----, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), holding that "[l]iability for design defects in military equipment cannot be imposed, pursuant to state law when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States." 108 S.Ct. at 2518. Boyle further held that the government contractor defense applies to both negligence and strict liability actions, as well as to other state law tort claims.

Although Boyle was decided after the district court considered this case and after the case was initially briefed to this court, we note that this circuit's previous application of the government contractor defense employed essentially the same standard as we now apply under Boyle.

Prior to Boyle, this circuit in Bynum v. F.M.C. Corp., 770 F.2d 556 (5th Cir.1985) had adopted the Ninth Circuit's formulation of the defense set forth in McKay v. Rockwell International Corp., 704 F.2d 444 (9th Cir.1983). Boyle adopted three of the four prongs of McKay 's test, rejecting McKay 's first requirement that the plaintiff must be otherwise precluded from suing the government under the Feres doctrine because such a requirement would produce "results that are in some respects too broad and in some respects too narrow." Boyle further simplified McKay 's second requirement to require that the United States have "approved" rather "established, or approved" reasonably precise specifications for the military equipment alleged to be defective. Boyle 108 S.Ct. at 2517, 2518. The Fifth Circuit formulation of the government contractor defense patterned on McKay, set forth in Bynum and applied by the district court in this case, is therefore materially the same as the standard now definitively established by the Supreme Court in Boyle.

III

"[S]ummary judgment is proper when, viewed in the light most favorable to the non-moving party, 'the pleadings depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.' " Bynum v. F.M.C. Corp., 770 F.2d 556, 576 (5th Cir.1985); Fed.R.Civ.P. 56(c). Should the moving party carry its burden of showing the absence of a genuine issue of material fact, the burden shifts to the party opposing the motion to demonstrate through affidavits or other competent evidence that a genuine issue of material fact exists for trial. Bynum, 770 F.2d at 576. "Mere allegations or affidavits setting forth ultimate or conclusory facts and conclusions of law are not enough." Id.; Fed.R.Civ.P. 56(e).

On appeal, Smith contends that Xerox failed to satisfy its burden of proving the affirmative defense of government contractor immunity. First, Smith argues, Xerox failed to establish affirmatively that the government had approved reasonably precise specifications for the VIPER because the original specifications were never produced; Xerox only produced a set of modified specifications dated February 1985, over a year after Smith's accident. Second, Xerox supplied no evidence that the particular VIPER unit in question had been examined for defects, other than the general statement of a Xerox witness that Xerox produced all its weapons in accordance with specifications. Smith also argues that Xerox had reason to know that the VIPER might misfire in damp conditions and yet failed to inform the government of this possibility, which now precludes Xerox from taking advantage of the government contractor defense.

A.

First we consider whether Xerox sufficiently demonstrated that the government approved reasonably precise specifications for the VIPER simulator. Because Boyle itself gives little guidance on what constitutes "reasonably precise" specifications, it is instructive to consult pre-Boyle cases construing the same language.

In McKay, the Ninth Circuit remanded to the district court for a determination of whether the United States had set or approved reasonably detailed specifications for an aircraft ejection system in the face of contradictory allegations by the appellants and appellees. The court of appeals was unable from the record before it to make that determination itself with assurance, but said that "if the United States neither set specifications for the system (other than general outlines of what type of system it required) nor approved [the contractor's] final reasonably detailed specifications (by examining and agreeing to a detailed description of the workings of the system)" then the contractor would be subject to strict liability for the design defect. 704 F.2d at 453.

In the Fourth Circuit's Boyle opinion, 792 F.2d 413 (4th Cir.1986), vacated and remanded, --- U.S. ----, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), the court found that a contractor had adequately demonstrated that the Navy had approved reasonably precise specifications for a helicopter escape hatch where Sikorsky, the helicopter manufacturer, and the Navy worked together to prepare detailed specifications; one of Sikorsky's program engineering managers for the helicopter "described in some detail the back- and-forth discussions" between Sikorsky and the Navy; Sikorsky built a mock-up of the helicopter cockpit, including the collective stick and the emergency escape hatch; and the Navy reviewed the mock-up and approved the design. 792 F.2d at 414-15.

Smith complains that Xerox failed to produce reasonably precise specifications for the VIPER's waterproofing procedures. He argues that because they were not produced, this court cannot determine if such procedures were in fact reasonably precise, approved, or ever followed.

Although Xerox failed to produce complete specifications for the original VIPERS it manufactured, Xerox did produce a listing of those specifications, as well as a copy of the original government performance criteria dictating the environmental specifications the government wanted the VIPER to meet in terms of temperature, humidity, and salt resistance, and a production contract furnished by Xerox for a series of VIPERS containing specific reference to government-approved specifications. Further, Lawrence Gallagher, an employee of Xerox from approximately 1975 to 1983 who was involved with the development of the VIPER system, testified at his deposition that the Army reviewed and approved the drawings and specifications prepared by Xerox. The government contractor defense requires only that the government approve reasonably precise specifications. Because the government in this case supplied the relevant environmental specifications it wanted the...