Appeal from the United States District Court for the Southern District of California. D.C. No. 93-1031-WBE. William Enright, District Judge, Presiding.
Before: Floyd R. Gibson,*fn1 John T. Noonan, Jr., and David R. Thompson, Circuit Judges. Opinion by Judge Gibson.
Terrence L. Butler appeals the district court's grant of summary judgment against him. We affirm in part and reverse and remand in part.
On October 9, 1992, United States Navy Boatswain's Mate First Class Terrence L. Butler was injured when an accommodation ladder on which he was standing fell into the water. An accommodation ladder is an adjustable stairway attached to the side of a vessel that can be lowered alongside the hull. The apparatus includes an adjustable platform at the bottom, a permanently mounted chainhoist on the hull directly above the end of the platform, and a lifting padeye (a small aluminum loop) on the end of the platform. The accommodation ladder was attached to the U.S.S. Essex, the second in a series of LHD class vessels. These vessels, which resemble small aircraft carriers, are used to carry troops, landing craft, attack helicopters, and harrier jets.
Butler and three other crewmen were attempting to raise and stow the accommodation ladder, which had been lowered over the side of the vessel, when the accident occurred. Instead of properly rigging the accommodation ladder by using a chain fall or a chain sling to attach the lifting brackets on the accommodation ladder, the crewmen attached the winch to a steel ring attached to the padeye on the lower portion of the ladder. The steel ring and the padeye were designed to attach to the side of the vessel in order to prevent the ladder from swinging away from the side of the vessel. When the ladder failed to fully raise, the crewmen realized the winch was hooked to the wrong loop. Instead of fully lowering the accommodation ladder and re-rigging it properly, the four crewmen climbed out onto the ladder and attempted to re-rig it. The weight from the ladder, the platform, and the four men caused the padeye, which was intended to be used to adjust the platform alone, to break, dumping the entire apparatus and the four crewmen into the water. Butler was seriously injured as a result.
On July 13, 1993, Butler filed suit against Ingalls Shipbuilding, Inc. (Ingalls), the contractor that manufactured the accommodation ladder, claiming failure to warn, strict products liability and negligence in design and manufacture. On August 8, 1994, Ingalls moved for summary judgment based on the government contractor's defense. On August 11, the district court granted the motion with respect to all allegations regarding the design of the ladder, reserving the issue of potential manufacturing defects not inherent in the design. In response to Ingalls' motion for reconsideration, the district court subsequently granted Ingalls' motion in full, concluding that the alleged manufacturing defects alleged by Butler regarding the strength and durability of the components were inherent in the product approved by the Navy and therefore barred by the government contractor's defense. Butler appeals.
Under Boyle v. United Technologies Corp., 487 U.S. 500, 101 L. Ed. 2d 442, 108 S. Ct. 2510 (1988), liability for design defects in military equipment cannot be imposed upon a private government contractor 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." Id. at 512. This defense arises from the "significant conflict" between state law that would hold government contractors liable for design defects in military equipment and the federal interest in immunizing "the trade-off between greater safety and greater combat effectiveness" through the discretionary function exception to the Federal Tort Claims Act. Id. at 511-12. The underlying rational is one of economics: "It makes little sense to insulate the Government against financial liability for the judgment that a particular feature of military equipment is necessary when the Government produces the equipment itself, but not when it contracts for the production." Id. at 512. The first two elements of the defense are intended to insure that it is indeed a discretionary decision on the part of the government that is being immunized. Id. The third is intended to ensure that the contractor has fully conveyed all information necessary to allow the government to make a fully informed decision. Id. at 512-13.
Butler contends that the government contractor's defense is inapplicable to his complaint because an accommodation ladder does not qualify as military equipment. Butler also challenges the first element of the defense, claiming that the Government neither provided Ingalls with nor approved "reasonably precise specifications." Finally, Butler argues that the government contractor's defense is inapplicable to his complaint because it involves a failure to warn. We review the district court's grant of summary judgment de novo, in the light most favorable to the nonmoving party in order to determine whether there are any genuine issues of material fact and whether the district court correctly applied the law. Chapman v. Westinghouse Elec. Corp., 911 F.2d 267, 268 (9th Cir. 1990).
As a preliminary matter, we have little difficulty characterizing the accommodation ladder in issue as "military equipment." In McKay v. Rockwell Int'l Corp., 704 F.2d 444, 451 (9th Cir. 1983), cert. denied, 464 U.S. 1043, 79 L. Ed. 2d 175, 104 S. Ct. 711 (1984), this Court observed that the line lay "somewhere between an ordinary consumer product purchased by the armed forces - a can of beans, for example - and the escape system of a Navy RA-5C reconnaissance aircraft." We believe the accommodation ladder falls within the term's meaning while the can of beans does not. It is used by sailors, marines, or other naval personnel to access other ships, docks, or piers.
This case is a far cry from the situation in Nielsen v. George Diamond Vogel Paint Co., 892 F.2d 1450, 1453 (9th cir. 1990), in which the manufacturer readily conceded that its paint was not designed for any special military purpose, or In re Hawaii Federal Asbestos Cases, 960 F.2d 806, 812 (9th Cir. 1992), in which the manufacturer conceded that the asbestos at issue was exactly the same product sold in significant quantities to private industry. The accommodation ladder in this case was specially ordered and designed with the special military needs of the LHD class ...