Swain v. Boeing Airplane Company

• Decision Date: 27 October 1964
• Docket Number: No. 17,Docket 28843.,17
• Citation: 337 F.2d 940
• Parties: Lorene M. SWAIN, as Executrix of the Last Will and Testament of William T. Swain, deceased, et al., Plaintiffs-Appellants, v. BOEING AIRPLANE COMPANY, Defendant-Respondent.
• Court: U.S. Court of Appeals — Second Circuit

337 F.2d 940 (1964)

Lorene M. SWAIN, as Executrix of the Last Will and Testament of William T. Swain, deceased, et al., Plaintiffs-Appellants, v. BOEING AIRPLANE COMPANY, Defendant-Respondent.

No. 17, Docket 28843.

United States Court of Appeals Second Circuit.

Argued September 28, 1964.

Decided October 27, 1964.

William F. X. Geoghan, Jr., New York City, Speiser, Shumate, Geoghan & Law, New York City (Stuart M. Speiser, William L. Shumate, New York City, and Alfred W. Gans, Rochester, N. Y., of counsel), for plaintiffs-appellants.

Benjamin E. Haller, New York City, Mendes & Mount, New York City, for defendant-appellee.

Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges.

FRIENDLY, Circuit Judge.

The personal representatives of five American Airlines employees, killed in a training flight of a Boeing 707-123 jet airplane over Long Island in 1959, brought actions for wrongful death against the Boeing Airplane Company in the District Court for the Southern District of New York — federal jurisdiction being predicated on diverse citizenship. Plaintiffs contended that the initial design of the tail, rudder and rudder controls of the airplane was defective; and that Boeing was liable for negligence in design and for failure to give adequate warning of the characteristics of the airplane, and also on a theory of a manufacturer's strict liability for a defective product, see Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 (1963). Their actions, tried before the late Judge Dawson and a jury, resulted in a verdict for the defendant, upon which the court entered judgments dismissing the complaints.

Boeing suggested at the trial that the plane had been put into too violent a maneuver even for a training flight or had been flown unskillfully. Although Boeing had pleaded contributory negligence, its counsel withdrew that defense on the basis that "we don't know which of the men was flying this airplane" — of which the decedents had been the sole occupants — "and we have not sought to sustain the burden of proving contributory negligence as to any one particular decedent." Appellants assert that, in the absence of any explanation for the accident independent of the conduct of the decedents, this concession entitled them to a directed verdict and, in the alternative, that the judge erred in permitting the jury to consider the possible misuse of the airplane. However, even under the principle of strict liability the manufacturer is liable only if the plaintiff proves the accident was caused by delivery of the article in a "defective condition," which is to say not "safe for normal handling and consumption." ALI, Restatement (Second), Torts § 402 (A) (1) & comment h (Tent. Draft No. 10, 1964). The inference of the existence and the causality of a defect would indeed be bolstered if the manufacturer admitted that improper use played no part in the accident. But Boeing's withdrawal of the contributory negligence defense for lack of affirmative proof as to who was misusing the plane in no way conceded that the plane was not being misused; it remained for the jury to decide whether the plaintiffs had sustained their burden of showing that the crash was due to a defect...