Winans v. Rockwell Intern. Corp.

Decision Date01 August 1983
Docket NumberNo. 82-3057.,82-3057.
Citation705 F.2d 1449
PartiesMary V. WINANS, Individually and as the Executrix of the Estate of L.H. Winans, et al., Plaintiffs-Appellants, v. ROCKWELL INTERNATIONAL CORP., et al., Defendants-Appellees. Marguerite B. FUNAI, Individually and as the Special Administratrix of the Estate of Alfred Charles Funai, Sr., et al., Plaintiffs-Appellants, v. ROCKWELL INTERNATIONAL CORP., et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

COPYRIGHT MATERIAL OMITTED

Robert S. Cooper, Jr., Baton Rouge, La., for plaintiffs-appellants.

A.R. Christovich, Jr., R.K. Christovich, New Orleans, La., for Rockwell.

F. Drake Lee, Jr., Shreveport, La., for Goodyear & Air Center.

Wm. A. Porteous, III, New Orleans, La., for General Elec.

Harry A. Johnson, Jr., Shreveport, La., for Atlantic Aviation.

S. Maurice Hicks, Jr., Shreveport, La., for Seaboard Tank.

Before RUBIN, GARZA and WILLIAMS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Two pilots, attempting an emergency landing in a nine-year-old private jet after discovering an onboard fire, died when the plane exploded in mid-air. After hearing five days of testimony in the resulting wrongful death suit against the plane's manufacturers and some of its overhaulers and repairers, the jury returned a verdict for the defendants. The plaintiffs claim the trial court erred in instructing the jury on the standard of care applicable to the defendants, in not instructing the jury on res ipsa loquitur, and in several evidentiary rulings. We hold that the district court conducted the trial properly. The verdict demonstrates that the jury was not convinced those responsible for the tragedy were joined as defendants. It is not within our province to disturb that conclusion. For these reasons the judgment is affirmed.

I.

The plane was a Model 1121A Jet Commander aircraft manufactured in 1969 by Rockwell International Corporation. Its fuel system included an integral fuel tank within its wings and four flexible rubber fuel cells, manufactured by Goodyear Aerospace Corporation, above and below the wings in its fuselage. The jet engines were designed and manufactured by General Electric Company.

By 1976, when it was sold to Atlantic Aviation Corporation, the Jet Commander had developed a fuel leak. Atlantic inspected the right engine and hired Seaboard Tank Sealing Corporation to replace the flexible fuel cells and to repair the leak. In February and March 1977, Seaboard attempted unsuccessfully to repair the leak. The company also installed four new Goodyear flexible fuel cells. The Seaboard employee who supervised the cells' installation testified that one of them would not fit properly onto the Jet Commander. He testified that the cell had to be stretched and pulled in installation, and was "under a lot of tension."

In May 1977, the plane was flown to Air Center, Incorporated in Oklahoma City for further maintenance. Air Center's employees removed the left engine and sent it to General Electric for a mandatory factory overhaul. They also performed a scheduled maintenance inspection of the aircraft. This inspection included a check for fuel leaks, and none were discovered. While the Jet Commander was at Air Center, Seaboard employees removed one of the flexible fuel cells and examined it for leaks. Their tests indicated that the cell was not leaking, and they reinstalled it. The left engine developed oil leaks after its overhaul by General Electric.

In October 1977 the Jet Commander was sold to its sixth owner, John Cassidy. In January 1978, before Cassidy took possession of the aircraft, it was again taken to Air Center. Air Center employees effected minor repairs and gave the plane another scheduled maintenance inspection. The inspection again included an examination of the fuel system. No leaks were discovered.

Cassidy then took delivery of the aircraft. Within a few days, his employees noticed that the plane was again leaking fuel. They placed a drip pan under the plane to catch the leaking fuel; no repairs were attempted. One of the employees called Air Center to inform it of the leak. One of Air Center's vice-presidents advised him that the leak was not a significant problem and advised against attempting to repair it at that time. On February 20, 1978, Air Center performed more minor repair work on the Jet Commander. No effort was made to repair the fuel leak.

On April 27, 1978, Cassidy's pilots Winans and Funai were flying the Jet Commander over Louisiana. A fire ignited in the right hand engine or the nacelle containing that engine. Winans and Funai attempted to extinguish the fire, then made an emergency descent to low altitude in an effort to land. Several witnesses observed the plane in low-altitude, low-speed flight. The Jet Commander was intact and flying on a level bearing, but it was trailing black smoke. Two witnesses observed that the plane was on fire. Others reported hearing a sound similar to that of an engine backfiring or a small explosion. Then the aircraft exploded in a fireball. Winans and Funai were killed.

The plaintiffs sued Rockwell, General Electric, Goodyear, Seaboard and Atlantic Aviation. Air Center was not joined as a defendant. Seaboard filed a third-party complaint against Air Center, but this action was later dismissed without prejudice. The jury returned a verdict for the defendants.

II.

The trial court instructed the jury that there were two groups of defendants, with different theories of liability for each group. The Jet Commander's manufacturers, Rockwell, General Electric and Goodyear, were charged under a strict liability theory. The defendants that had performed repair work on the aircraft, Atlantic and Seaboard, were charged under a negligence theory. The district judge instructed the jury that General Electric was strictly liable only for defects existing in the plane's engines at the time they were manufactured. He refused to instruct that General Electric was also strictly liable for engine defects existing after General Electric overhauled the engines.1 Plaintiffs claim this refusal was error.2

In Louisiana, an individual "who without fault on his part sustains an injury caused by a defect in the design, composition or manufacture" of a product rendering it "unreasonably dangerous to normal use" may recover from the product's manufacturer without proof of negligence.3 Louisiana courts have so far applied this strict-liability doctrine only to manufacturers.4 In undertaking the overhaul of the Jet Commander's engines, however, General Electric acted not as a manufacturer but as a repairer of the engines.

For a number of reasons, we conclude that Louisiana would not impose strict liability on those who merely provide repairs. First, that is the position taken by the majority of other jurisdictions to consider the question.5 Second, Louisiana products liability jurisprudence does not easily accommodate the rationale underlying the minority view. Jurisdictions imposing strict liability on repairers do so because the repairers are viewed as "sellers" within the meaning of the Restatement (Second) of Torts § 402A (1965).6 Louisiana has, however, adopted a narrow view of section 402A. It holds sellers liable for latent product defects only if they had knowledge of the defect at the time of sale.7

Finally, Louisiana case law suggests that repairers are not subject to strict liability. In Hunt v. Ford Motor Co., 341 So.2d 614 (La.App.1977), the plaintiff had purchased an automobile through a dealer. The steering column was defective and the dealer replaced it. The steering wheel later locked while the car was in operation. An accident resulted and the Hunts sued both the manufacturer and the dealer. The Louisiana Court of Appeals held that the manufacturer was strictly liable for defects in the steering column. 341 So.2d at 618. The dealer who repaired the car, however, was held only to "a duty of reasonable care, inspection and repair work . . . ." Id. at 619. The Court noted that a repairer failing to meet this standard was subject to liability for "damages occasioned by his negligence." Id.

In Williams v. Louisiana Machinery Co., 387 So.2d 8 (La.App.1980), the court defined the duty of care applied to repairers. Citing the Restatement (Second) of Torts § 404 (1965), the court held: "A repairer has a duty, arising in tort, to exercise reasonable care and skill in the design and repair of the object to be repaired commensurate with the risk of harm flowing from the normal use of that product." 387 So.2d at 12.

If General Electric failed to exercise reasonable care in overhauling the Jet Commander's engines, the plaintiffs had a negligence claim against the company. They failed, however, to base their suit on that theory. They were not entitled to an instruction on strict liability with respect to General Electric's work in overhauling the engines.8

III.

The trial judge's instructions correctly defined the standard of care that Seaboard and Atlantic were required to use in repairing the Jet Commander. The jury was instructed that these defendants were required to use ordinary care, i.e., reasonable care in proportion to the foreseeable danger.9 Plaintiffs contend that the instruction should have stated that aircraft repairers are held to an extraordinary standard of care.

Louisiana law does hold "to an extraordinary duty of care" those who "deal in or handle dangerous substances or agencies such as explosives, electricity, gas, firearms, combustibles and fireworks."10 This principle, however, is inapplicable to the present case. The Jet Commander simply was not, itself, unusually explosive or combustible. As plaintiffs point out, it contained combustible jet fuel. The Louisiana rule, however, applies only to those working directly with the dangerous substance. Automobiles contain combustible gasoline, but the Louisiana courts have not held automobile...

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