Stoddard v. Ling-Temco-Vought, Inc.

• Decision Date: 27 January 1981
• Docket Number: No. CV-72-1294-PGH.,CV-72-1294-PGH.
• Citation: 513 F. Supp. 314
• Parties: Kathryn STODDARD et al., Plaintiffs, v. LING-TEMCO-VOUGHT, INC., et al., Defendants.
• Court: U.S. District Court — Central District of California

513 F. Supp. 314

Kathryn STODDARD et al., Plaintiffs, v. LING-TEMCO-VOUGHT, INC., et al., Defendants.

No. CV-72-1294-PGH.

United States District Court, C. D. California.

March 26, 1980.

On Motion to Dismiss April 14, 1980.

On Motion to Dismiss Complaints of Intervenor October 17, 1980.

On Assessment of Prejudgment Interest January 19, 1981.

On Further Motion to Dismiss Complaints of Intervenor January 27, 1981.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James J. McCarthy, Magana, Cathcart & McCarthy, Los Angeles, Cal., for Theriault, 72-1294, Burnett, 73-1290, McGinn, 73-1291, Blanchard, 73-1292, Ditto, 73-1293, and Unsderfer, 73-1294.

Robert S. Morris, San Bernardino, Cal., for Ashland, 72-1319.

Gerald V. Barron, Hoge, Fenton, Jones & Appel, Monterey, Cal., John H. Miltner, Honolulu, Hawaii, for Page, 73-1318, Rose, 73-1319, Reinhart, 73-1320, Myles, 73-1321, and Weimer, 73-1322.

Joan Celia Lavine, Los Angeles, Cal., for intervenors Hoar, 72-1294, and Slagle 72-1294.

Robert C. Packard, William T. Delhagen, Kirtland & Packard, Los Angeles, Cal., for defendants Ling-Temco-Vought, et al.

James Stotter, II, Asst. U. S. Atty., Los Angeles, Cal., for defendant United States.

ORDER

HATFIELD, District Judge.

IT IS HEREBY ADJUDGED AND ORDERED as follows:

1. There is no right to a jury trial in this case, and trial shall be by the court with an advisory jury.

2. Strict products liability, including the defense of assumption of risk as set forth in Section 402A, Restatement of Torts 2d, comment n. is applicable in this lawsuit.

3. Res Ipsa Loquitur is applicable under the facts as alleged by plaintiffs, as against both the United States and against LTV, et al. The burden of proving the elements of res ipsa loquitur is on the plaintiffs.

4. In exercise of the court's power to control the order of proof to avoid unnecessary delay at trial, the parties shall first present all of their evidence on res ipsa loquitur. If the court, as trier of fact, should determine res ipsa loquitur to be applicable under the facts proven and to have been not sufficiently rebutted or explained by one or all defendants, the court shall find liability at that stage of the trial. If the court finds that the res ipsa loquitur inference either does not apply under the facts proven by plaintiffs or has been sufficiently explained or rebutted by the evidence introduced by defendants, the trial shall then proceed with evidence as to strict products liability and specific acts of negligence.

5. Texas Workers Compensation settlements by Hoar, Blanchard and Ditto are a bar to those plaintiffs' actions against defendants LTV Aerospace Corporation and Vought Corporation, but are not a bar to their actions against the United States or any of the other named corporate defendants.

6. The lawsuits of plaintiff-intervenors Hoar and Slagle shall be bifurcated from and tried subsequently to the trials of the remaining plaintiffs. In the event that the first trial results in a finding of liability against any or all of the defendants, plaintiffs Hoar and Slagle may at that time argue the applicability of the doctrine of collateral estoppel against the defendants.

7. In the exercise of this court's discretion, prejudgment interest will be assessed to any damage award plaintiffs may receive.

8. The issues of liability shall be bifurcated from and determined prior to the issue of damages.

The Court shall follow this order with a memorandum of law setting forth the reasons for its rulings.

MEMORANDUM

On Motion to Dismiss

In these consolidated actions, plaintiff personal representatives have brought suit against defendants United States and Ling-Temco-Vought, Inc., et al., for the aircrash death of plaintiffs' decedents. The parties have sought the court's ruling on several motions to dismiss and evidentiary motions. This memorandum sets forth the court's reasons for its previously filed order and rulings on those motions.

I. TYPE OF ACTION

These are fourteen (14) consolidated wrongful death actions arising out of an aircraft crash which occurred on June 13, 1971, when a U. S. Air Force C-135B aircraft crashed into the Pacific Ocean about 700 miles southwest of Hawaii. Everyone on board the plane — crew and passengers — died in the crash. Plaintiffs are the personal representatives of the estates of fourteen (14) of the persons who died in the crash. The corporations which modified the aircraft before its ill-fated mission are defendants in all the actions, and will hereinafter be referred to as "LTV, et al.", or as the "corporate defendants". The United States is defendant in five of the actions.

All of the suits against defendant corporations are founded upon the Death on the High Seas Act ("DOHSA"), 46 U.S.C. §§ 761 et seq.

Plaintiff Margaret Metcalf, for the estates of decedents Blanchard and Ditto, has alleged jurisdiction against the United States based both on the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680 and Suits in Admiralty Act, 46 U.S.C. § 741. Plaintiff Charlotte Ashland, for the estate of Donald Ashland, has alleged jurisdiction against the United States under DOHSA. Plaintiffs Twila Hoar, for the estate of Dean Hoar, and Henry Slagle, for the estate of Edward Slagle, have alleged jurisdiction against the United States under both the FTCA and DOHSA. The plaintiffs who brought suit under the FTCA claim that the FTCA is applicable because the alleged negligence took place when the plane was modified in Texas, rather than when the plane crashed in the Pacific Ocean.

The court cannot accept these plaintiffs' argument. First, "... a tort is deemed to occur at the place where injury is sustained regardless of the place of origin of the negligent act." Chapman v. City of Grosse Pointe Farms, 385 F.2d 962, 965 (6th Cir. 1967); Accord, Oppen v. Aetna Ins. Co., 485 F.2d 252, 256 (9th Cir. 1973). Before the plane crashed, killing plaintiffs' decedents, the alleged elements of "... a duty, an act or failure to act in violation of the duty, and negligence were outstanding, but no tort was then in being; it was no more than a potentiality or threat." Sides v. Richard Machine Works, Inc., 406 F.2d 445 (4th Cir. 1969). Thus, under the facts as alleged by plaintiffs, this was a tort that accrued on the high seas rather than a tort that accrued in Texas. DOHSA, rather than FTCA is the proper statute upon which this action may be brought.

Defendant United States additionally and correctly points out that 28 U.S.C. § 2680(d) makes the FTCA inapplicable in all cases where a plaintiff has a right of action in admiralty. See, Roberts v. United States, 498 F.2d 520, 525 (9th Cir. 1974), cert. denied, 419 U.S. 1070, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974). Here, plaintiffs have a right of action, in admiralty, under DOHSA for "the death of a person ... caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State ... of the United States...." 46 U.S.C. § 761. The Suits in Admiralty Act, 46 U.S.C. §§ 741-752, gives this court jurisdiction over the DOHSA claims against the United States. Roberts v. United States, supra, 498 F.2d at 526.

II. RIGHT TO JURY

Defendant LTV, et al., as well as plaintiffs in seven of the consolidated cases, have moved for a trial by jury. Defendant United States, as well as plaintiffs in the remaining seven of the consolidated cases, have waived a jury and contend that the parties have no right to a jury trial in these actions.

DOHSA cases are suits for damages "in admiralty". 46 U.S.C. § 761. The parties in an admiralty lawsuit have neither a Constitutional right nor a right under the Federal Rules of Civil Procedure to a trial by jury. See, Rule 38(e), F.R.Civ.P.; Peace v. Fidalgo Island Packing Co., 419 F.2d 371, 371 (9th Cir. 1969); Frederickson v. Luedtke Construction Co., 427 F.Supp. 1309, 1317 (W.D.Mich.1977).

There being no right to a jury trial in cases cognizable only in admiralty, the motions for jury trial are denied. See, McCrary v. Seatrain Lines, Inc., 469 F.2d 666 (9th Cir. 1972). Upon the motion of defendants LTV, et al., however, this court shall exercise its discretion under Rule 39(c), F.R.Civ.P. to try these actions with an advisory jury.

III. STRICT PRODUCTS LIABILITY

The corporate defendants have submitted a trial brief in which they claim that strict products liability is inapplicable to the facts of this case. The corporate defendants modified a Boeing Aircraft Company airplane for a secret Air Force mission. The corporate defendants altered the nose of the aircraft, installed eleven windows on the starboard side of the plane, and, to house and conceal a radar antenna, designed and installed a fairing structure on top of the forward section of the plane's fuselage. The corporate defendants characterize their role as providers of a service, rather than sellers of a product for which strict products liability would be applicable.

Strict products liability, as expressed in the Restatement of Torts 2d, § 402A, is applicable in admiralty cases in the Ninth Circuit. Pan-Alaska Fisheries, Inc. v. Marine Construction and Design Co., 565 F.2d 1129, 1135 (9th Cir. 1977). The corporate defendants claim, however, that, regardless of the applicability of strict products liability in an appropriate case, the doctrine does not apply under the facts of this case.

The corporate defendants state that the airplane modification did not involve a mass-produced product, introduced into the stream of commerce, which caused injury to an unwary consumer. Because this was a unique modification of an airplane, and the work was performed for the U.S. Air Force, rather than for the average consumer, the corporate defendants conclude that § 402A is inapplicable. The court disagrees.

Although the vast majority of products liability cases involve consumers injured by mass-produced products that were introduced into the stream...