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Slate v. United Technologies Corp.

California Court of Appeals, Second District, First Division
Jul 18, 2008
No. B197395 (Cal. Ct. App. Jul. 18, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. YC 051311, Carey H. Nishimoto, Judge. Reversed.

Law Offices of Victor L. George, Victor L. George and Wayne C. Smith for Plaintiffs and Appellants Karim Slate and Ghada Ahmed.

Michaelis, Montanari & Johnson and Garry L. Montanari for Defendants and Respondents United Technologies Corporation and Sikorsky Aircraft Corporation.


ROTHSCHILD, J.

Karim Slate suffered injuries when the Sikorsky helicopter he was piloting crashed. Slate sued Sikorsky for negligence, strict products liability and breach of warranty. His spouse, Ghada Ahmed, sued for loss of consortium. The trial court granted Sikorsky’s motion for summary judgment on the ground that plaintiffs’ causes of action were barred by the 18-year statute of repose under the federal General Aviation Revitalization Act (GARA). We reverse.

FACTS AND PROCEEDINGS BELOW

The following facts are undisputed.

In July 2003, Slate was piloting a Sikorsky S58ET helicopter owned by his employer, Aris Helicopter, Limited. The helicopter crashed, injuring Slate.

Sikorsky built the helicopter for the Navy in 1962. It designed the helicopter’s intermediate gearbox and the input bevel pinion gear (IBP) within the gearbox in the 1950s. Aris purchased the helicopter in 1986. In 1991, Aris removed the helicopter’s intermediate gear box, inspected the components and replaced the IBP. The replacement IBP was built by Fenn Manufacturing. It had been “shot peened” in 1991 or 1992 in accordance with directions Sikorsky issued to owners of the S58ET in 1984. Sikorsky’s post-accident inspection found that “a large section of the [IBP] had fractured in the [gear box].”

We take judicial notice that “[s]hot peening is a process for treating metal parts by controlled high-speed impact of many balls (shot). It is used mainly to increase the resistance of metal parts against fatigue, fretting fatigue, stress corrosion and corrosion fatigue.” (Fuchs, Shot Peening (1986) Mechanical Engineers’ Handbook, p. 941, § 32.1.)

Slate sued Sikorsky and its former parent company, United Technologies Corporation (collectively Sikorsky) alleging his injuries were caused by Sikorsky’s defective design and manufacture of the helicopter including its gearbox. Slate’s spouse sued for loss of consortium.

Sikorsky moved for summary judgment. It did not deny that the fractured IBP caused the accident. It argued instead that it could not be held liable for Slate’s injuries because it did not “manufacture” the IBP and, even if it did, plaintiffs’ causes of action were barred by GARA’s 18-year statute of repose.

Sikorsky also maintained it was immune from suit under the “government contractor defense.” (Boyle v. United Technologies Corp. (1988) 487 U.S. 500.) Because the trial court did not consider this defense and Sikorsky does not raise it on appeal, we do not address it.

The trial court reasoned that GARA provided Sikorsky a complete defense to plaintiffs’ causes of action. The undisputed evidence showed that Sikorsky manufactured and delivered the helicopter to its first purchaser 41 years before the accident and that Sikorsky did not build the IBP that caused the crash. Furthermore, plaintiffs could not recover on a theory of design defect because Sikorsky designed the IBP in the 1950s and the 1991 shot peening of the IBP did not restart the 18-year period. The court also held that GARA barred recovery on a theory that Sikorsky failed to warn Slate of hazards involving the IBP. Plaintiffs filed a timely appeal from the judgment. Our review is de novo. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.)

Because we reverse the judgment on other grounds we do not consider the failure to warn theory.

We conclude that the trial court erred in granting Sikorsky’s motion for summary judgment. If, as Sikorsky claims, its redesign of the IBP did not make it a “manufacturer,” it still might be liable as a designer. Slate’s complaint alleges that theory of liability and Sikorsky offers no authority holding that the designer of a product cannot be held liable for injuries proximately caused by a defect in its design. If, on the other hand, redesigning the IBP made Sikorsky a “manufacturer” for purposes of GARA, GARA does not protect Sikorsky from liability. Sikorsky’s directive that replacement IBPs be shot peened before being placed in service constituted a redesign of the IBP that Sikorsky originally designed. This redesign restarted the 18-year statute of repose, as to the redesign only, on the date the redesigned IBP was first placed in service. The undisputed evidence shows that the IBP was first placed in service in late 1991 or early 1992, well within the 18-year period.

DISCUSSION

I. SIKORSKY’S LIABILITY FOR DEFECTIVE DESIGN.

Sikorsky initially argues that, leaving GARA aside, it cannot be held liable for injuries caused by the failure of the IBP gear because the undisputed evidence shows that it did not manufacture that gear.

It is true that Sikorsky did not manufacture the IBP gear in the sense of taking raw material and turning it into a finished product. But Slate’s complaint does not limit Sikorsky’s liability to that of a “manufacturer.” His complaint alleges “[d]efendants were negligent in the design, manufacture and marketing of [the gearbox]”; that “as designers, manufacturers, distributors, suppliers and sellers of the [h]elicopter’s engine [defendants] owed a duty of care to [p]laintiff”; and that the defective condition of the helicopter was “proximately caused by the negligence . . . of [d]efendants in the design, manufacture, assembly [et cetera] of the [h]elicopter[.]” (Italics added.)

Slate’s complaint does not expressly allege that the IBP caused the accident but Slate may not have known at the time he filed his complaint exactly which system, component or part caused the accident. That is what discovery is for. Sikorsky was not prejudiced by Slate’s failure to identify the IBP as the part that failed. Discovery focused on the IBP and both parties briefed the issues of design and manufacture of the IBP on the motion for summary judgment.

Sikorsky offers no authority that the designer of a product cannot be held liable for damage proximately caused by its defective design. On the contrary, the doctrine of strict liability in tort may be applied where injury occurs as the proximate result of a defect in the design of a product. (Hyman v. Gordon (1973) 35 Cal.App.3d 769, 773.)

II. GARA: BACKGROUND.

GARA (Pub. L. 103-298, 108 Stat. 1552-1554) is a statute of repose that places an 18-year time limit on products liability against the manufacturers of defective general aviation aircraft and their component parts. Congress enacted GARA in 1984 “in response to a serious decline in the nation’s general aviation aircraft manufacturing industry.” (Campbell v. Parker-Hannifin Corp. (1999) 69 Cal.App.4th 1534, 1544.) An important reason for this decline, Congress found, was the “long tail” of liability attached to aircraft that had been originally sold as far back as the 1940s resulting in ever-increasing costs of liability insurance. (Schwartz & Lorber, The General Aviation Revitalization Act: How Rational Civil Justice Reform Revitalized An Industry (Fall 2002) 67 J. Air L. & Com. 1269, 1274-1275 (hereafter Schwartz & Lorber). In order to revitalize the industry, GARA established an 18-year statute of repose for civil actions against manufacturers of aircraft and aircraft parts for damages arising out of an accident involving a non-commercial aircraft. (Campbell v. Parker-Hannifin Corp., supra, 69 Cal.App.4th at p. 1545.)

Section 2, subdivision (a) of GARA provides in relevant part: “[N]o civil action for damages for death or injury to persons or damage to property arising out of an accident involving a general aviation aircraft may be brought against the manufacturer of the aircraft or the manufacturer of any new component, system, subassembly, or other part of the aircraft . . . if the accident occurred . . . with respect to any new component, system, subassembly, or other part which replaced another component, system, subassembly, or other part originally in, or which was added to, the aircraft, and which is alleged to have caused such death, injury, or damage after [18 years] beginning on the date of completion of the replacement or addition.” (The 18-year period is contained in section 3(3) of the statute.)

Thus, GARA provides for a “rolling” statute of repose for “new” parts that replace existing parts. As we discuss below, a new part may be the redesigned element of a used part but the 18-year period applies only to the element of the part that has been redesigned. The 18-year period for a replacement part begins to run on the date the replacement is completed. If that part is later switched to another aircraft the 18-year period continues to run; it does not start over. For example, a propeller which has only three years left under the statute of repose would still have only three years left if it were switched to a different airplane. (Schwartz & Lorber, supra, at pp. 1298-1299.) GARA makes no distinction between the triggering dates for design defects and manufacturing defects. The House Report stated: “In essence, the bill acknowledges that, for those general aviation aircraft and component parts in service beyond the statute of repose, any design or manufacturing defect not prevented or identified by the Federal regulatory process by then should, in most instances, have manifested itself.” (H.R.Rep. No. 103-525(II), 2d Sess. (1994), pp. 6-7.)

III. SIKORSKY’S PROTECTION UNDER GARA.

Sikorsky argues that GARA’s 18-year statute of repose protects it from liability for any defect in the design of the IBP because the accident occurred in 2003, and it designed the gear in the 1950s. It further contends that its directive to shot peen the gear before replacing it in service did not constitute a redesign of the gear and even if it did, Sikorsky issued that directive in 1984, nineteen years before the accident. We do not find these arguments persuasive.

Slate does not deny that one who designs an aircraft part is a manufacturer for purposes of GARA.

We disagree with Sikorsky’s contention that shot peening did not constitute a redesign of the IBP. In a case analogous to ours, the court in Hiser v. Bell Helicopter Textron, Inc. (2003) 111 Cal.App.4th 640 (Hiser) held that GARA did not protect the defendant helicopter manufacturer from liability when its redesigned fuel flow switches failed causing a model 206L-1 helicopter to crash, killing plaintiff’s husband. The defendant built and delivered the helicopter in 1979, more than 18 years before the accident. Prior to 1981, defendant had received reports of engine “flameouts” occurring in this model when the fuel in the tanks failed to reach the engine. In 1982, in response to these reports, defendant redesigned the fuel flow switches so that they had a larger internal capacity and were more resistant to contamination. At the time of the accident, decedent’s helicopter was equipped with the redesigned fuel flow switches which had been installed 15 years earlier. The jury returned a special verdict finding that there was “‘a defect in design of the helicopter’s fuel system as modified in accordance with the defendant’s 1982 [t]echnical [b]ulletin . . .’” and “‘the design defect [was] a cause of the helicopter crash.’” (Id. at p. 652.) The Court of Appeal affirmed the verdict because it concluded that there was “substantial evidence from which the jury could find the accident was caused when the fuel flow switches, indisputably a replacement part of the 1982 retrofit, failed because of defective design.” (Id. at pp. 651-652.) As to defendant’s GARA defense, the court held that because the fuel flow switches were redesigned less than 18 years before the accident, “GARA does not provide a defense if substantial evidence supports a finding that the fuel flow switches were defectively designed and were a cause of the accident.” (Id. at p. 652.)

Here, Sikorsky’s original design of the IBP did not call for shot peening the gear. Sikorsky’s 1984 directive that an IBP should be shot peened before being placed in service constituted a redesign of the gear because shot peening subjected the gear’s metal surfaces to highly stressed compression theoretically making the metal more resistant to fatigue and stress corrosion failures.

The replacement of a non-shot peened gear with a shot peened gear triggered a new 18-year period of repose, as to the redesign, “beginning on the date of completion of the replacement . . . .” (GARA, § 2, subd. (a)(2).) The undisputed evidence in our case shows that the completion of the replacement occurred when the redesigned IBP was first installed in any helicopter—here it happened to be Slate’s—in late 1991 or early 1992, less than 18 years before the accident.

The redesign of the IBP restarted the 18-year period only as to defects in that redesign. Again, Hiser is on point. In Hiser, the court held that redesigning a component of the helicopter’s fuel transfer system did not restart the 18-year period as to the whole system (Hiser, supra, 111 Cal.App.4th at pp. 649-650) but observed that “[w]hile the fuel transfer system may have been largely GARA protected, the component that was supposed to warn of failure,” the redesigned fuel control switch, “was not itself GARA protected.” (Id. at p. 654.)

Because the redesign of a component restarts the 18-year period only as to the element of the component that is redesigned it is immaterial whether the redesign is applied to a new or used component.

The Ninth Circuit’s opinion in Caldwell v. Enstrom Helicopter Corp. (9th Cir. 2000) 230 F.3d 1155 is illustrative. In Caldwell plaintiffs sued a helicopter manufacturer for wrongful death, personal injury and property damage after one of its helicopters ran out of useable fuel and crashed. Plaintiffs conceded that the fuel tanks were in good working order but argued that the helicopter’s flight manual was a defective part of the helicopter because it did not include information about the limits on the fuel tanks’ ability to burn the last two gallons of fuel. Defendant argued that the flight manual was not a “part” of the helicopter but even if it was GARA precluded liability because the helicopter along with the flight manual were first sold 23 years before the crash. Plaintiffs responded that the manual had been revised several times in the last 18 years and therefore was not protected under GARA’s rolling feature. The district court dismissed the plaintiffs’ complaint for failure to state a claim. The Ninth Circuit reversed. The court held the flight manual was a “system” or a “part” of the helicopter. Thus, “if Defendant substantively altered, or deleted, a warning about the fuel system from the manual within the last 18 years, and it is alleged that the revision or omission is the proximate cause of the accident, then GARA does not bar the action.” (Id. at p. 1158, fn. omitted.) Thus, in Caldwell, the flight manual was a “used” part protected by GARA’s 18-year statute of repose. Nevertheless, the court held, a revision to one of the manual’s pages within 18 years prior to the accident would not be protected by GARA if that revision is alleged to have caused the accident.

Accordingly, it is immaterial whether the IBP that was installed in Slate’s helicopter was new or used or, if used, how much time, if any, remained in the 18-year period before it was redesigned. The relevant point is when completion of the replacement occurred by installing the redesigned IBP in any aircraft. Here the undisputed facts show that the shot peened IBP was first installed in any aircraft within 18 years before the accident. Of course, at trial plaintiffs would be required to establish that the redesigned element caused the accident, but on summary judgment GARA could furnish Sikorsky with a “complete defense” to plaintiffs’ causes of action only if Sikorsky could show through undisputed evidence that shot peening the IBP gear was not a cause of the accident or that Slate did not have, and could not acquire, evidence to show that shot peening the IBP was a cause of the accident. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) Sikorsky did not show either.

DISPOSITION

The judgment is reversed. Appellants are awarded their costs on appeal.

We concur: MALLANO, P. J., VOGEL, J.

Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

Slate v. United Technologies Corp.

California Court of Appeals, Second District, First Division
Jul 18, 2008
No. B197395 (Cal. Ct. App. Jul. 18, 2008)
Case details for

Slate v. United Technologies Corp.

Case Details

Full title:KARIM SLATE et al., Plaintiffs and Appellants, v. UNITED TECHNOLOGIES…

Court:California Court of Appeals, Second District, First Division

Date published: Jul 18, 2008

Citations

No. B197395 (Cal. Ct. App. Jul. 18, 2008)