Government Contractor Liability in Military Design Defect Cases: The Need for Judicial Intervention

• Author: by Commander George E. Hurley, Jr.
• Pages: 03

1. INTRODUCTION

   The liability of government contractors for damages as the result of injury or death to military service personnel from allegedly defective military equipment continues to receive ineonsistent judicial treatment. Government contractors have sought to share the federal government's sovereign immunity from tort liability. Supported by important holdings in McKay v. Rockwell International Corp , I government contractors have obtained sey. eral recent successes. The results. however, have been noticeably inconsistent. In the four years since McKay, there have been several decisions to test the MeKay criteria, as well as one applicable Supreme Court decision. United States v. Shearer.l Numerous law review articles in this area 3 have been unable to

   keep pace with this persistent problem. The Supreme Court recently agreed to decide the issue in Boyle u. United Technolo-gies Corp4 This comment updates the most recent law in this area prior to the Supreme Court's hearing of Boyle and offers a proposed scheme to help resolve this complex problem.

   11. GOVERNMENTAL IMMUNITY A. SOVEREIGN IMMUNITY

   The government contractor defense is an outgrowth of the doctrine of sovereign immunity, which precludes suits against the government without its prior consent.6 Government contractors attempt to assert this immunity under the government contractor defense.0

   With the expansion of activities by the federal government. its agents caused an increasing number of wrongs that would have been actionable if inflicted by an individual or B corporation, but which were remediless under the doctrine of sovereign immunity.'

   As the volume of federal activity increased, there were efforts to obtain relief through private bills in Congress.' Finally. in 1946, Congress enacted the Federal Torr Claims Act I€TCAI,* which constituted at least a partial waiver of the government's m v e ~ eigm immunity.

   2. FEDERAL TORT CLAIMS ACT

      The FTCA allowed injured parties to sue the government for the negligent acts of its employees.10 The Act pierced the shield

      the Go~srnmenl Confroci Dsfenro An lilitoi) Mmuiaciunrs Immuni fmm Products Lmbdit)>, 36 U Miami L Rev. 489 119621

      792 F.2d 413 14th Cu 19861. tori gmniad, 55 US Lil 1108 IUS Jan 13 'Cohens v Ylrmnm 19 U S 16 \%'hear! 261, 111-12 118211. United States Y 'See Johnston Y United Stater, 668 F Supp 361. 366 ID Kan 19631 Sote.

      Manuircturrr for Pmdvefs Defmti&d> Designed b) ihr Gorernrnenl. Ferer Y Unired Scales 340 US 136 139-40 119501'For exmnle Conmess rnved the eouernmenl'i lmmunltv m breach of contract

      19871 IN^ 86-4921

      Sherwoad. 312 US. 664. 566 119111. Liability of 23.B.C L. Rev 1046-49119821

      . I

      aetrons againrc the government Id at 14G

      Umted Srates may be broughr

      [Flor "jury or loss of pmperly. or period miury or death caused bythe negBgenr 01 wangful act or OIN~S~O~of any employee of rheGovernment wNe acting within the imps of his office or empioy-ment. under circumstances where rhe Dnited Stacer if a prii,are person, would be liable LO the claimant in accordance wirh the Ihw of

      '28 USC $5 13461bl, 2671-2660 119621 [hereinafter FTC41'28 U.S C P 13461bi 119621. Section 13461b1 provides that clams agamic the

      19871 COXTRACTOR LIABILITY

      of government immunity that had existed since 1821; the FTCA, however. contained important exceptions that limited the government's liability. Among these were the exception excluding claims arising out the combatant activities of the armed servicesduring time of WBT, and the important "discretionary funcrion"

      exception." The "discretionary function" exception, based on the separation of powers doctrine, was provided to allow military leaders and policymakers to make decisions without fear of reprisal in courts of law.'l These concerns also underlaid subse. quent Supreme Court holdings in cases concerning military discipline lofficerlenlisted relationshipsl, operations, training and readine~s.'~

      The Court did not decide, however, nor has it since decided, any case involving design decisions by military personnel.

   3. FERES-STENCEL DOCTRINE

      Court holdings subsequent to the enactment of the FTCA significantly narrowed the scape of the government's liability. In Feres u. United States.14 the Court held that the United States, under the FTCA, is not liable to members of the armed forces for injuries sustained while an active duty resulting from the

      the place where the act or omission occurred'28 U.SC. $$ 268001. 26801al 119821. Section 26801a1, the 'discretionary function" exception. provides that the government's assumptm of !iabhty under the FTCA does not apply to:

      Any elaim based upon en act or ommion of an employee of the Government, exercising due cue, in Lhe exeeutro~ of s ~zszute or regYlstian. whether or not such itslute or regulsl~an be v&d. or based upon the exercise or performance or the fdure 10 exereiae or perform a discretion- function m duty on the part of B federal agency or an employee of the Government whether or not the discretion involved be abused

      negligence of others in the armed farces. The Court construed the FTCA as fitting into the entire statutory system of remedies against the government. including the then.existing veterans compensation system. The Court stated that the FTCA was not "an isolated and spontaneous flash of congressional generosity. It marks the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit."lfi

      Despite persuasive considerations supporting liability in Feres, the Court upheld the government's immunity. Kevertheless, the Court acknowledged that the FTCA "does contemplate that the government will sometimes respond far negligence of military personnel" in eases not clearly falling under the exceptions provisions.16

      In Stencel Aero Enginrering Corp. v. United States." the Court broadened the scope of the government's immunity. In Stencel. the plaintiff was a National Guard officer who had been perma. nently injured when the ejection system of his fighter aircraft malfunctioned during ejection. The plaintiff sued both the United States and the Stencel Aero Engineering Corporation, the many. facturer of the ejection system. Stencel. in turn, crossdaimed against the United States Government in an indemnity action. The Court held that the FTCA precludes the United States from indemnifying a third party ISteneelI for damages paid by the third party to a member of the armed forces who is injured during military service.16 In reviewing its decision in Feres, the Court found three determinative factors: the distinctive federal character of the relationship between the government and members of the armed services: the availability of the Veterans' Benefit Act. which places an upper limit of liability on the government for serviceconnected injuries; and the effect that a suit by a member of the armed services against the government would have on discipline.19

      Thus, Feres precluded service members from suing the govern. ment for injuries sustained incident to service; Stencel extended the government's immunity to third party indemnity claims. In an intermediate decision, Laird u. h'elms.*o the Court held that

      19871 CONTRACTOR LIABILITY

      the FTCA does not authorize claims against the United States based on strict liability. With these decisions, the government in effect declared itself out of the game, leaving the injured service member or his survivors and the government contractors as the remaining participants.

   4. WITED STATES V, SHEARER

      In United States U. Shearer,*l the administratix of the estate of an Army private brought an action against the government for negligently causing the death of her son, who wa8 kidnapped and murdered, while off-duty, by another serviceman. The accused had been convicted previously of manslaughter but had been allowed to remain on active duty. The Court in Shearer stated explicitly that the first two factors an which the Feres decision was based were no longsr contralling.az Rather, the Court focused on the third factor.23 which involved two questions: whether the suit requires the court to second.guess military decisions, and whether the suit might impair essential military dis~ipline.~'

      The first question--a separation of powers argument-concerns the role of the judiciary in military matters. The Court stated "The complex, subtle, and professional decisions as to the composition, training, equipping. and control of a military force are essentially military judgments, subject always to civilian control of the Legislative and Executive Branches."2e The courts have attached great importance to the separation of powers argument in suits brought by military service personnel against government contractors. There has been no specific Supreme Court holding on whether military design decisions which result in injury or death to service members should be immune from judicial review, however.

      The second question-a "military discipline" argument-con. erns suits brought by service personnel against their superiors. These suits would threaten the basic structure of authority in the military by: (11 allowing subordinates to challenge superiors in a civilian court, and (21 compelling members of the military to

      FTCA permits recovery only for a ' negligent or wrongful act or omsii~n,'' and

      thus precluded stnet hsbhly Id at 799

      *'lo6 S. Ct 3039 119861.

      "Id BC 304344 n 4, 80e supra note 19 and accomplnying text"Sss mpro note 19 and meompanying tat.

      "Id at 3043"Chappell V. Wallace. 162 U.S. 296, 302 119631 !emphasis in onginall lquolvlg Gdligan v Morgan, 413 US. 1. 10 1197311

      testify against one another in a civilian court.26 The "military discipline" argument would not appear to be applicable to suits brought by service personnel against government contractors. Although the assertion of a government contractor defense might result in the introduction of potentially conflicting military testimony, this danger is considered, at least by some courts. to be

      11...