The opinion of the court was delivered by: CANNELLA
CANNELLA, District Judge.
In January, 1963, Lieutenant Colonel Joe R. Simpson, Jr. and Major William W. Gabriel of the United States Air Force arrived from Walker Air Force Base, New Mexico to instruct instructor crews for B-52 bombers at Westover Air Force Base, Massachusetts in "terrain avoidance procedures" through the use of "advance capability radar" or ACR, which was a relatively recent development at the time and which was being installed in B-52's. Two "standardization" crews were to make a checkout flight together, starting at 8 a.m. on January 24, 1963, but maintenance problems with regard to the plane to be used, a model B-52C, number 53-406,
necessitated a delay of about four hours. Once the plane finally had become airborne shortly after noon with the two instructors
and both crews
aboard, it remained in the Westover vicinity for the next one and a half hours or so while an attempt was made to calibrate and correct the ACR equipment, whereupon the following radio conversation took place between the plane and the Westover weather station:
1830 Frosh 10 -- Westover Metro, this is Frosh 10
Metro -- Aircraft calling Westover Metro, this is Westover
Metro go ahead.
Frosh 10 -- Roger, this is Frosh 10 and we are still in
the local area here, will you give me a reading on the
northern Pokerdeck Area at the present time, is that
improving any up there.
Metro -- Roger 10 this is Westover Metro, stand by while
I check the very latest on that. Roger stand by.
1831 Metro -- Westover, this is Westover Metro, (Pause),
Pokerdeck generally scattered in the flatlands still
looks like however, it will be scattered to broken with
bases from around 2,000 to 2,500 in the south, in the
with tops around 6,500 MSI. Also received a report,
1832 expect anyway, moderate turbulence, with occasionally
severe turbulence in some of the hills. We do not have
Mt. Washington to the south, it is still zero, zero, fog,
and blowing snow. And we also have a report on Greenville,
showing that it is scattered, the restricted visibility is
down and blowing snow. But the general condition at
Greenville is 2500 scattered and ten. It looks like
the flat country will be scattered, occasionally broken
in the hills and some of the hills obscured over.
Ten this is Westover Metro did you read, Over.
Frosh 10 -- Roger, 10 here, be advised you are coming in,
your transmissions are very, very garbled and chewed up,
and hard to read.
Metro -- 10, Westover Metro, 10 Westover Metro, how do you
read me now.
1833 Frosh 10 -- Your coming in better now, Metro.
Metro -- This is Westover Metro, I repeat, the flatlands
in the northern pokerdecks route is generally high thin
scattered clouds, bases around 2500 feet, tops about
5,000. In the higher terrain you can expect 2500 scattered
to broken with a few isolated snow showers, that is MSI
on the 2500 feet. Tops about 6,000 still expect moderate
turbulence change to occasionally severe turbulence in the
hills. We have a report from Mt. Washington to the south
of your route it shows that they are still zero, zero and
fog and blowing snow. Over.
1834 10 this is Westover Metro, did you read me that time, Over.
Frosh 10 -- Thank you very much Metro, this is Frosh 10 out.
The background of this conversation was that two alternate routes had been planned for the low altitude training mission, one over central Maine, classified "Poker Deck 8-3" or northern route, and the other over the Carolinas, classified "Poker Deck 8-5" or southern route. The primary determining factor as to which route would be flown was apparently to be forecast(s) of weather conditions in the given area, and they resulted in an initial determination to fly the southern route. However, the delay in taking off combined with the airborne delay, the fact that the particular route was to be flown three or four times and under visual flight rules, and the seeming inaccuracy of the forecast with respect to the weather in the immediate Westover area led Colonel Bulli to opt to fly Poker Deck 8-3. The plane then proceeded to enter this route by way of the Princeton, Maine VOR at about 2:30 p.m., assuming an altitude of 500 feet above the terrain lying below the route flight path of 45 DEGREES 07' N 67 DEGREES 57' W to 45 DEGREES 35' N 69 DEGREES 26' W. Indicated airspeed was 280 knots. The aircraft encountered light to moderate turbulence right from the start, and Colonel Bulli elected to terminate the run as the plane approached the vicinity of Elephant Mountain. He caused the plane to assume a nose-up angle, and just as it began to climb, there occurred what sounded like an explosion to him; the aircraft went into a bank to the right with the nose down. The crew's immediate efforts to get the right wing and the nose up proved to no avail, and the plane crashed. Colonel Bulli and Captain Adler
The team sent by the Air Force to investigate the mishap arrived at the crash site near Upper Wilson Pond
on January 26, 1963 and discovered that the wreckage was at the one place except for the vertical tail which was subsequently found essentially intact approxmately a mile and a half back along the flight path.
The plaintiffs filed their complaint on January 23, 1964, alleging that B-406 crashed as a result of negligence and/or breach of warranty on the part of the defendant.
This Court has jurisdiction pursuant to 28 U.S.C. § 1332.
The defendant argues that the various claims asserted by the plaintiffs are barred by the applicable statute of limitations.
Since jurisdiction herein is based solely upon diversity of citizenship of the parties, this court must look to the pertinent state statute of limitations. See Guaranty Trust Co. v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945); Hodge v. Service Machine Co., 438 F.2d 347 (6th Cir. 1971).
B-406 was designed, manufactured and sold by the defendant in Washington. It was also turned over to the Air Force in Washington. The plane was subsequently stationed in Massachusetts; it crashed in Maine while being manned by military personnel whose assignments with the Strategic Air Command (SAC) caused them to continually traverse, if not live in, numerous states of the Union. This action was brought in New York, and the court is therefore required to refer to New York's conflict-of-laws rules
in order to determine which period of limitation is controlling. The New York "borrowing statute," N.Y.C.P.L.R. § 202, which applies to this case,
reads as follows:
An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.
The threshold issue then is what cause or causes of action accrued as a result of the crash on January 24, 1963. The plaintiffs allege causes of action for wrongful death and for personal injury. The rule once firmly settled with respect to such actions was that, being unknown to the common law, they derive solely from statutes and that the statute which governs is that of the place of the wrong. See, e.g., Turner v. Capitol Motors Transportation Co., 214 F. Supp. 545, 547 (D. Me. 1963); Kilberg v. Northeast Airlines, Inc., 9 N.Y. 2d 34, 38, 211 N.Y.S. 2d 133, 135, 172 N.E. 2d 526, 527 (1961). In this case, or course, all of the injuries and deaths complained of occurred in Maine, which, like most states, had statutory provisions for the maintenance of the causes of action alleged herein. See Me. Rev. Stat. Ann. title 18, §§ 2501, 2551-53. The present case is typical of most, if not all, cases involving complex choice of law considerations in that the positions of the parties plaintiff and defendant vary with regard to the traditional rule from one locus delicti to the next. It is the defendant here which argues that this court is compelled to apply Maine law.
However, after the New York Court of Appeals (per Desmond, C.J.) had first unsettled in Kilberg the "law long settled," it rendered an even more famous decision in Babcock v. Jackson, 12 N.Y. 2d 473, 240 N.Y.S. 2d 743, 191 N.E. 2d 279 (1963), holding that "[justice], fairness and 'the best practical result' . . . may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation." 12 N.Y. 2d at 481, 240 N.Y.S. 2d at 749, 191 N.E. 2d at 283. Thereafter, the Court held in Long v. Pan American World Airways, Inc., 16 N.Y. 2d 337, 266 N.Y.S. 2d 513, 213 N.E. 2d 796 (1965), that a New York forum, essentially neutral in a given death action, need not necessarily look at all to the lex loci delicti. The Court's opinion concludes as follows:
There was no suggestion in Babcock that its approach and principle were inapplicable to actions for wrongful death, and indeed, in a number of cases in which the question has been considered, the courts - including the Supreme Court of Pennsylvania (Griffith v. United Air Lines, Inc., 416 Pa. 1, 7, 203 A. 2d 796 . . .) - have indicated that the law to be applied is the law not necessarily of the place where the fatal accident occurred but rather of the place having the most significant relationship with, and the greatest interest in, the issue presented. (See, e.g., Fornaro v. Jill Bros., 22 A.D. 2d 695, 253 N.Y.S. 2d 771, affd. 15 N.Y. 2d 819, 257 N.Y.S. 2d 938, 205 N.E. 2d 862; Tramontana v. S.A. Empresa De Viacao Aerea Rio Grandense, [121 U.S. App. D.C. 338] 350 F.2d 468, 471; Gianni v. Fort Wayne Air Serv., 7 Cir., 342 F.2d 621; Watts v. Pioneer Corn Co., 7 Cir., 342 F.2d 617; Mertens v. Flying Tiger Line, Inc., 2 Cir., 341 F.2d 851, 858, cert. den. 382 U.S. 816, 86 S. Ct. 38, 15 L. Ed. 2d 64; Fabricius v. Horgen, [257 Iowa 268] 132 N.W. 2d 410). It would be highly incongruous and unreal to have the flexible principle of Babcock apply in a case where the victim of the tort is injured but not where he is killed.
Maine's relationship to the case at bar is certainly no less accidental nor more significant than Maryland's relationship to Long. For example, a B-52 is hardly an instrument of commercial carriage flying regularly scheduled commercial routes. And while Poker Deck 8-3 may have been a regularly used training route, it was flown on January 24, 1963 only after an airborne change of plan by the flight commander. Then again, there is no contention that any of the members of the crew(s) were citizens of Maine. In short, the inescapable conclusion to be drawn is that this court is not compelled to refer to any part of the law of Maine in this case.
But this does not mean that the deaths and injuries in Maine did not give rise to the causes of action for wrongful death and personal injury asserted by the plaintiffs since all of the states with more significant relationships to B-52 bombers in general and B-406 in particular allow for such actions, to wit, California, Kansas, Massachusetts, Nebraska, Ohio, Oklahoma and Washington.
See Cal. Code Civ. Proc. § 377; Kan. Stat. Ann. §§ 60-1801 to 60-1905; Mass. Ann. Laws chs. 228, 229; Neb. Rev. Stat. §§ 30-809, 30-810; Ohio Rev. Code Ann. §§ 2125.01-2125.04; Okla. Stat. tit. 12, §§ 1051-54; Wash. Rev. Code §§ 4.20.010, 4.20.020, 4.20.046. And New York, the forum state, also provides for such actions. See N.Y. Decedent Estate Law §§ 119, 130 (superseded Sept. 1, 1967 by N.Y.E.P.T.L. §§ 5-4.1, 11-3.2(b)).
Within the Air Force, responsibility for the design conformance, "depot level" maintenance, use and safety of B-406 was divided, respectively, among the B-52 Systems Project Office (SPO) at Dayton, Ohio, the Oklahoma City Air Materiel Area (OCAMA) at Tinker Air Force Base, Oklahoma, SAC headquarters in Omaha, Nebraska and the Office of the Inspector General at Norton Air Force Base in California. Routine maintenance of the plane while stationed in Massachusetts was the responsibility of SAC. "Engineering responsibility" within the defendant corporation for all B-52's, including the ill-fated B-52C herein, was apparently transferred in 1958 from Seattle, Washington to the defendant's installation at Wichita, Kansas. Quite unsurprisingly in view of the complexity of the B-52's, their apparent importance to the United States, and the large number produced,
the defendant maintains "direct relationships" on a "first name basis" with all of the above Air Force commands, with the Air Force maintaining, in turn, a "plant representatives office" (AFPRO) in Wichita.
The plaintiffs set forth in their brief 18 ways in which they contend the defendant was negligent. Two of these presumably relate ultimately to activities in California.
Eleven of the alleged acts of commission or omission appear to relate to the defendant's activities at the Air Force bases in California, Nebraska, Ohio and Oklahoma and at the defendant's facility at Wichita,
as well as possibly to Westover in Massachusetts. The plaintiffs propose as their initial conclusion of law, however, that the "law of Washington applies to issues of liability." And not only do their remaining five allegations of negligence appear to relate essentially to the defendant's activities in Washington, but with the possible exception of the two relating to California, the other eleven contentions appear to relate as much to activities in Washington as to acts in the other states. The specific question here then is not whether the defendant was negligent in any of the ways alleged or whether or not the standard of care varies among any of the above-mentioned states,
but rather whether the plaintiffs' first proposed conclusion of law is correct. The court concludes that it is. If in a case such as this the "niceties of . . . legal legerdemain do not concern us,"
but rather justice, fairness and the best practical result, then the law of Washington must apply here. B-406 was designed, manufactured, sold and delivered in Washington. If the defendant did not live up to a duty to manufacture it free from latent (defects), that duty was breached in Washington. Almost all of the alleged acts of negligence on the part of the defendant are referable, directly or indirectly, to Washington which is the defendant's principal place of business. Then again, the defendant is one of Washington's principal businesses. In short, the court concludes that Washington is the state with the greatest concern with the specific issues
raised in the litigation at this time. Of the other states, only Kansas appears to have a very significant concern with the issues raised in view of the shift of engineering responsibility for the B-52's from Seattle to Wichita in 1958 - or prior to the accident complained of. Only one of the two theories of liability raised by the plaintiffs relates to Kansas, however, and, in any event, the court is not persuaded that the interests of Kansas outweigh those of Washington. The liability questions are therefore controlled by Washington law.
The court concludes further that for purposes of applying the New York borrowing statute the plaintiffs' causes of action accrued in Washington as a result of the crash in Maine. The Court of Appeals for the Second Circuit predicted in George v. Douglas Aircraft Co.
that for borrowing statute purposes New York would hold that the cause of action "arose"
in the state of manufacture, sale and delivery and compare that state's statute of limitations. So far as this court is aware, the New York Court of Appeals has not yet specifically affirmed the prediction, but the decision in Long clearly underscored its logic. Cf. Braniff Airways, Inc. v. Curtiss-Wright Corp., 424 F.2d 427, 430 (2 Cir.), cert. denied sub nom. Addabbo v. Curtiss-Wright Corp., 400 U.S. 829, 91 S. Ct. 59, 27 L. Ed. 2d 59 (1970). Thus, even if New York courts would consider the issue of the statute of limitations separate and apart from the issue of which wrongful death statute applies,
this court is not persuaded that the "decision of reasonable intelligent lawyers, sitting as judges of the highest New York court, and fully conversant with New York 'jurisprudence'"
would be to refer to the statute of limitations of any state other than Washington. Referring then to Washington, the statutory period applicable to the causes of action asserted by the plaintiffs is three years which began to run at the time of the crash, January 24, 1963. See Wash. Rev. Code § 4.16.080; Robinson v. Baltimore & S. Mining & Reduction Co., 26 Wash. 484, 67 P. 274 (1901).
Returning to Section 202 of the N.Y.C.P.L.R., the New York limitation periods apply to plaintiff O'Keefe, a New York resident. These periods are two years for the wrongful death action and three years for the personal injury or survival action, and they normally begin to run as of the date of death or injury. See N.Y. Decedent Estate Law § 130; N.Y.C.P.L.R. §§ 214, 203. Plaintiff O'Keefe and all of the other plaintiffs base their causes of action, however, on two theories of liability, one predicated on negligence and the other sounding in products liability. Insofar as their causes of action are based on negligence, they are not time-barred by the statutes of limitations of either New York or Washington, the plaintiffs' complaint having been filed within one year of the accident. On the other hand, the New York Court of Appeals held in Blessington v. McCrory Stores Corp. that a cause of action for breach of implied warranty of fitness for use "gets the benefit of the six-year limit of subdivision 1 of section 48 of the Civil Practice Act,
as being an implied contract obligation or liability." 305 N.Y. 140, 147, 111 N.E. 2d 421, 423 (1953). The Court of Appeals, relying in part on Blessington, subsequently held that insofar as a cause of action for personal injury was based on a claim of breach of implied warranty of a product, the period of limitation runs from the date of the sale.
See Schwartz v. Heyden Newport Chemical Corp., 12 N.Y. 2d 212, 237 N.Y.S. 2d 714, 188 N.E. 2d 142, motion to amend remittitur granted, 12 N.Y. 2d 1073, 239 N.Y.S. 2d 896, 190 N.E. 2d 253, cert. denied, 374 U.S. 808, 83 S. Ct. 1697, 10 L. Ed. 2d 1032 (1963). In 1969, the Court refused to overrule Blessington, albeit by the narrowest of margins, 4-3. See Mendel v. Pittsburgh Plate Glass Co., 25 N.Y. 2d 340, 305 N.Y.S. 2d 490, 253 N.E. 2d 207 (1969). The majority's opinion reads, in part, as follows:
The appellants argue that Blessington does not apply to the instant case because our decision in Goldberg v. Kollsman Instrument Corp., 12 N.Y. 2d 432, 240 N.Y.S. 2d 592, 191 N.E. 2d 81, created in favor of the third-party strangers to the contract, a cause of action in tort and not in warranty and, therefore, the three-year-from-the-time-of-the-injury, rather than the six-year-from-the-time-of-the-sale, limitations period should apply. We do not agree. When Goldberg was before us, we were confronted with the issue of whether or not a cause of action other than in negligence should exist in favor of those persons not in privity, with the contract of sale. After determining that the cause of action should exist, two avenues were open to us - either to establish, as other jurisdictions already had, a new action in tort, or to extend our concept of implied warranty by doing away with the requirement of privity. While there is language in the majority opinion in Goldberg approving the phrase "strict tort liability," it is clear that Goldberg stands for the proposition that notwithstanding the absence of privity, the cause of action which exists in favor of third-party strangers to the contract is an action for breach of implied warranty. The instant action being one for personal injuries arising from a breach of warranty, it is our opinion that Blessington controls and, therefore, the applicable Statute of Limitations is six years from the time the sale was consummated (CPLR 213, subd. 2).
We would merely add that both parties appear to agree, and we believe correctly, that strict liability in tort and implied warranty in the absence of privity are merely different ways of describing the very same cause of action.
The Court also relied on subdivisions (1) and (2) of Section 2-725 of the N.Y.U.C.C. to support its decision although that section and its 4-yr. period of limitation did not specifically apply to the case, which is also true here. See N.Y.U.C.C. §§ 10-101, 10-105.
The causes of action the Court of Appeals dealt with in both Blessington and Mendel were for personal injuries, although the former case did involve a death. However, whatever the degree of persuasiveness and logic in the dissenting opinion in Mendel,30 this court, to paraphrase Long, supra, concludes that it would be highly incongruous and unreal to have the rule for which the two cases stand apply where a person is injured but not where he is killed or to apply only to plaintiff Adler but not to the other plaintiffs. Hence, the plaintiffs in this case were required to assert their products liability claims within six years of the date of delivery
of B-406 to the Air Force. That date was August 17, 1956.
The plaintiffs argue that "even if New York's contract statute of limitations applies, the statute was tolled because of defendant's modification of the airplane throughout its existence."
While there may be some authority generally supporting this type of proposition,
the court is unaware of any precedent controlling the type of case at bar. More importantly, however, liability in this case, as will be seen hereinafter, relates specifically to one section of an empennage bulkhead, and there is no showing that this particular section of the bulkhead was modified in any way subsequent to the date of delivery and prior to the date of the accident. Indeed, the plaintiffs claim that the defendant was negligent in not modifying the bulkhead. Thus, whether or not the defendant modified or improved upon other parts of B-406 or even other sections of the bulkhead in question, there is no showing (or even contention) that any such changes affected or changed the section at issue from the date of delivery until the crash.
In view of the foregoing, the court is constrained to conclude that plaintiff O'Keefe's causes of action, insofar as predicated upon products liability, are time-barred under the law of New York, and the court reaches the same conclusion through application of Section 202, N.Y.C.P.L.R. with respect to the products liability claims of the other plaintiffs.
See Braniff Airways, Inc. v. Curtiss-Wright Corp., 411 F.2d 451 (2d Cir.), cert. denied, 396 U.S. 959, 90 S. Ct. 431, 24 L. Ed. 2d 423 (1969), modified on petition for rehearing, supra.
OCAMA B-52 structures engineer Kenneth Denney, who was sent to Maine as a member of the team investigating the crash, testified that he went to the site where the vertical tail of B-406 had been found and determined that the "fin had failed from the left side and folded toward the right side"
of the aircraft. The fin apparently bore markings which indicated that it had struck the vortex generators on the right horizontal stabilizer in separating from the plane. In any event, this case is unlike many tragedies involving men and their complex machines in that there is no dispute about how B-406 crashed; the court finds that it crashed due to a loss of directional stability as a result of the vertical tail's separation from the fuselage during flight. There is a very definite dispute, however, as to what caused the tail to break away.
The vertical fin (and rudder) on a B-52C, representing a total area of some 555 square feet and a total exposed area of 460 square feet, is attached to the fuselage at three primary points - two forward at "body station" 1655 and one aft at station 1719
- with all of the loads on the exposed area being transmitted into the fuselage through these three points. See, e.g., TM, p. 2364. There are bulkheads at both stations, with the function of the station 1655 bulkhead characterized as follows by its designer, the Airframe Components Division of the A.O. Smith Corporation:
Station 1655 Bulkhead is the empennage support bulkhead. Its function is to distribute fin loads, stabilizer jack screw loads, and ground handling loads into the body structure. The bulkhead must also sustain the longitudinal components of above mentioned loads, which are reacted by main and auxiliary longerons, stabilizer jack screw support tube, and lower beam stability reinforcement.
The 1655 bulkhead in B-406 was manufactured by the Rohr (Aircraft) Corporation from AOS 4405, 4335 - AMS 6428, 6434 steel alloy, with the crown of the bulkhead an open web type, pin-ended truss welded together with SW-151 welding rod. Attached to and part of the crown assembly were two fin attachment lugs.
On January 19, 1961, a model B-52B bomber,
number 53-390, was engaged in a celestial navigation run at an altitude of about 36,000 feet when it suddenly went out of control and crashed north of Monticello, Utah. The team which investigated the accident was able to determine that the "vertical fin failed first. It failed sharply to the right and contacted the horizontal stabilizer resulting in [the] vertical fin leading edge being smashed to the left. [The] fin failed in [the] steel bulkhead adjacent to fin terminals." Exhibit BH; TM, p. 2257. Parts of the crown of the 1655 bulkhead in plane 53-390, which was also manufactured by Rohr, were examined and tested thereafter in laboratories of both the defendant and the Air Force, as well as the National Bureau of Standards (NBS) in Washington, D.C. The examination and tests conducted at NBS under the auspices of its Chief of the Mechanical Metallurgy Section, John A. Bennett, led to a conclusion that the origin of the plane's downfall was a "fatigue crack".008 of an inch deep in a fillet weld located near the bottom of a vertical weld relief hole below and immediately outboard of the left fin attachment lug. The summary of the NBS report, dated April 16, 1961, reads as follows:
1. The primary fracture in the parts submitted had originated at a small fatigue crack in a weld bead.
2. The design of the part resulted in significant stress concentration, and this was an important factor in the initiation of the fatigue cracks.
3. A large section of the fractured member had been fabricated by building up with weld metal.
4. The relatively small growth of the fatigue crack prior to the initiation of fast fracture is attributed to the presence of the stress concentration and to the very low fracture toughness of the weld metal at the operating temperature.
5. It is believed that the presence of the fatigue crack caused a significant decrease in the static strength of the part.
6. The results of the examination provide no basis for believing that this failure is unique.
Mr. Denney testified and the court so finds that the 1655 bulkhead of B-406 was found generally intact with the exception of the left hand fin attachment lug which remained attached to the fin when it separated from the plane.
A subsequent examination at NBS led to a conclusion on its part that the fracture of the butt-welded heavy members just below the heretofore mentioned weld relief hole was "nearly identical"
to that which had occurred earlier in bomber 53-390 over Utah. For a rough sketch of the approximate planes of the two fractures of the butt welds and heavy members, see line A-A on Exhibit 21.
The plaintiffs argue that there was a defect in the fillet weld of the B-406 1655 bulkhead. They further argue that the defendant was negligent in "specifying and using a welded, rather than a forged, bulkhead; designing a bulkhead with welds in close proximity to each other; burning a weld relief hole through the bulkhead and thereby creating local stresses and areas of severe stress concentration; designing a bulkhead which, because of its geometry, the proximity of the welds, and existence of the weld relief hole, contained an area of severe stress concentration; improperly welding, so as to create a defect; failing to use accepted and available inspection techniques, such as zyglo, magnaflux, dye penetrant, and x-ray to discover the existence of flaws or defects; failing to discover the existence of the defect during the manufacturing process and before the bulkhead boxed section was completed; removing the web, or part of the web, from the bulkhead, in all production bulkheads, after the 1954 static tests showed that a crack developed at 75% of ultimate load; failing to install an access hole or otherwise make it possible to inspect the weld relief hole area on the bulkhead, in the design of the aircraft, even after the 1954 static tests showed that a crack developed there at 75% of ultimate load; failing to order or recommend the installation of an access hole, or other adequate means of inspection, after cyclic tests also demonstrated that a crack developed at the weld relief hole; failing to order or recommend the installation of an access hole, or other adequate means of inspection, after the Monticello, Utah accident in January, 1961 when the bulkhead failed at the weld relief hole area in the same place as the crack had developed in the 1954 static test and in the cyclic tests; failing to take other appropriate measures, such as recommending modifications to or replacement of the welded bulkhead, and relating such modifications or replacement to the Monticello accident and the occurence [ sic ] of cracks in the same area as the Monticello failure, following receipt of information and opinions indicationg [ sic ] a weakness of the bulkhead at the weld relief hole; failing to alert the Air Force to the existence of a safety in flight problem relating to the bulkhead, and failing to relate such a problem to the need for a retrofit on B-52s in service; affirmatively advancing theories on the cause of the Monticello accident to the Air-Force-industry investigating board on that accident, which theories were known to be tenuous, and contradicted by the known facts and circumstances of that accident; advancing 'overload' as a cause of the Monticello, Utah accident when the known weather data would not support such a theory and when it was known that the aircraft had not yawed to the left as it would have done in an overload situation; affirmatively excluding, from discussions of the 1655 bulkhead, reference to the Monticello, Utah, failure . . .; ignoring the warnings of Berman, Bennett, and others that there was an area of severe stress concentration in the bulkhead, that the Monticello fracture was not unique, and that other aircraft would fail in the same way, despite knowledge that there was no evidence of overload failure in the form of ductility or permanent deformation on the Monticello fracture face; [and] failing to adequately review and reconsider the manufacturing processes of the bulkhead, including the burning of the weld relief hole, following the Monticello accident and failing to discover those processes which were creating severe stress concentrations." Plaintiffs' Brief, pp. II-3 to II-5.
At the outset, the court takes note of the fact that, even if the plaintiffs' causes of action based on breach of warranty and/or strict liability are time-barred, as indeed the court has concluded, failure to consider these alternate theories on the merits would be to presume that the court's conflict-of-laws analysis is infallible and to do a disservice to both sides who so thoroughly prepared the case. Moreover, products liability is almost invariably related to negligence, or stated another way, "an honest estimate might very well be that there is not one case in a hundred in which strict liability would result in recovery where negligence does not." Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1114 (1960).
In referring initially to the law of Washington as the state with the most significant relationship to this case, the court has not found a recent aviation case tried and decided in a Washington forum, applying the law of that state, nor have the parties cited any such precedent.
Looking elsewhere then, perhaps the most succinct statement of the rules applicable to a case such as this is to be found in the opinion of the U.S. Court of Appeals for the Eighth Circuit in Nicklaus v. Hughes Tool Co., 417 F.2d 983 (8th Cir. 1969); it reads as follows:
A manufacturer has a duty to exercise reasonable skill and care in the design and manufacture of its product, commensurate with the risk of harm flowing from normal use of that product. . . . This duty also binds the manufacturer with respect to component parts incorporated into its final product, but manufactured by another. . . . As a necessary corollary, a manufacturer has an affirmative duty to make such tests and inspections, during and after the process of manufacture, which are commensurate with the dangers involved in the intended use of the product. . . .
Where, as here, the plaintiff's claim against the manufacturer sounds in both negligence and breach of implied warranty, he must establish by a preponderance of the evidence these basic elements: (1) that the product was defectively designed or manufactured . . . (2) that the defect was the proximate cause of the damage complained of . . . and (3) that the defect existed at the time the manufacturer parted with possession of the product . . . To permit recovery for negligent manufacture, ordinarily plaintiff must show, in addition to lack of reasonable skill and care in the process of manufacture, that the manufacturer failed to make a reasonable inspection or test to discover defects.
The law of Washington is in general accord. See, e.g., Di Pangrazio v. Salamonsen, 64 Wash. 2d 720, 393 P. 2d 936 (Dep't 2 1964); Sutton v. Diimmel, 55 Wash. 2d 592, 349 P. 2d 226 (Dep't 2 1960). In addition, on March 29, 1969, the Supreme Court of Washington rendered its en banc "decision to discard the terminology of 'implied warranty' and adopt the language of strict liability contained in the Restatement (Second) of Torts § 402A,"
. . . (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Since this decision, parties plaintiff have been free to assert strict liability as well as negligence and/or breach of warranty,
and the complaint herein has been amended by way of the Pre-Trial Order to incorporate this change of nomenclature.
The Washington Supreme Court had earlier adopted the language of Section 395 of the Restatement of Torts in Di Pangrazio. The section reads as follows:
A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it is manufactured.
In addition to the specific acts of negligence alleged above, the plaintiffs also seek to rely on the doctrine of res ipsa loquitur. New York law determines whether this approach is permissible or not here,
and the New York Court of Appeals has concluded that "the introduction of some evidence does not render an instruction [to a jury] on res ipsa impermissible or improper." Abbott v. Page Airways, Inc., 23 N.Y. 2d 502, 514, 297 N.Y.S. 2d 713, 722, 245 N.E. 2d 388, 395 (1969) (emphasis added). The dilemma posed by the case at bar then is whether the significant amount of evidence adduced at trial on the issue of the defendant's negligence or lack thereof precludes the plaintiffs from attempting to rely on the res ipsa inference. The court concludes that it does not, if only because of the perhaps unfounded assumption that this juror is capable of distinguishing the logical nuances of such an approach. See generally Trihey v. Transocean Air Lines, Inc., 255 F.2d 824 (9th Cir.), cert. denied, 358 U.S. 838, 79 S. Ct. 62, 3 L. Ed. 2d 74 (1958), and the cases cited therein.
The within-the-exclusive-control-of-the-defendant requirement of the res ipsa doctrine is satisfied in a products liability context "if there is evidence of control by the defendant at the time of the negligent act complained of, i.e., creation of the defect . . . although the defendant's control is not exclusive at the time of the accident, provided plaintiff proves that the condition of the product had not been changed after it left defendant's control."
The defendant "takes the position that the decedents and the injured plaintiff assumed the risk of the happening of the accident" and "contends that decedents Morrison, Hanson, Simpson, Gabriel and plaintiff Adler were contributorily negligent in that they were in positions of responsibility and could have prevented the aircraft from going into an area of severe turbulence." Pre-Trial Conference Memorandum Submitted on Behalf of the Boeing Company, pp. 4-5. Unfortunately, the defendant has never seen fit subsequent to trial to provide the court with the benefit of its briefed reasoning on these points, which remain issues to be determined pursuant to the Pre-Trial Order.
Assumption of risk is a defense in a products liability case under Washington law. See, e.g., Stark v. Allis-Chalmers & Northwest Roads, Inc., 2 Wash. App. 399, 402, 467 P. 2d 854, 856 (Div. 1 1970). See also Northwest Airlines, Inc. v. Glenn L. Martin Co., 224 F.2d 120 (6th Cir. 1955), cert. denied, 350 U.S. 937, 76 S. Ct. 308, 100 L. Ed. 818 (1956). On the other hand, the Washington Supreme Court has pointed out that:
the fact that a danger is patent does not automatically free the manufacturer from liability, but does so only if the plaintiff voluntarily and unreasonably encounters it. Restatement (Second) of Torts § 402A, comment n at 356 (1965). It could never be said as a matter of law that [one] whose job requires him to expose himself to a danger, voluntarily and unreasonably encounters the same.
The court finds that plaintiff Adler and his fellow servicemen were doing nothing more than their duty on January 24, 1963, which was, of course, to conduct inflight training at low level. That this assignment involved peril is history; that plaintiff Adler and the plaintiffs' decedents did not assume the risk as a matter of law in this case is patent, and assumption of risk is therefore not a viable defense.
To be sure, it is a matter of record that the B-52 Flight Manual warns pilots to avoid clear air turbulence "whenever practical by all means available,"
that experienced pilot Bulli was well aware of this,
that turbulence is encountered more frequently at low altitude than at high altitude
and that disaster followed Colonel Bulli's decision to fly Poker Deck 8-3. It is also history that Colonel Bulli's guess as to the nature of the weather over Maine based on the discovered discrepancy between the Westover forecast and fact was wrong. However, before the conclusion could be drawn that the crew(s) of B-406 unreasonably exposed themselves to danger, there would at least have to be a showing that there were no reasonable grounds for the flight commander's guess,
that training flight(s) over Poker ...