California Civil Jury Instructions (CACI)

1246. Affirmative Defense—Design Defect—Government Contractor

[Name of defendant] may not be held liable for design defects in the [product] if it proves all of the following:

1. That [name of defendant] contracted with the United States government to provide the [product] for military use;

2. That the United States approved reasonably precise specifications for the [product];

3. That the [product] conformed to those specifications; and

4. That [name of defendant] warned the United States about the dangers in the use of the [product] that were known to [name of defendant] but not to the United States.

New June 2010; Revised December 2010

Directions for Use

This instruction is for use if the defendant’s product whose design is challenged was provided to the United States government for military use. The essence of the defense is that the plaintiff should not be able to impose on a government contractor a duty under state law that is contrary to the duty imposed by the government contract. (See Boyle v. United Technologies Corp. (1988) 487 U.S. 500, 508—509 [108 S.Ct. 2510, 101 L.Ed.2d 442].)

It has been stated that the defense is not limited to military contracts (see Oxford v. Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 710 [99 Cal.Rptr.3d 418]), though no California court has expressly so held.

Different standards and elements apply in a failure-to-warn case. For an instruction for use in such a case, see CACI No. 1247, Affırmative Defense—Failure to Warn—Government Contractor.

Sources and Authority

  • “The [United States] Supreme Court noted that in areas of ‘ “uniquely federal interests” ’ state law may be preempted or displaced by federal law, and that civil liability arising from the performance of federal procurement contracts is such an area. The court further determined that preemption or displacement of state law occurs in an area of uniquely federal interests only where a ‘ “significant conflict” ’ exists between an identifiable federal policy or interest and the operation of state law. The court concluded that ‘state law which holds Government contractors liable for design defects in military equipment does in some circumstances present a “significant conflict” with federal policy and must be displaced.’ ” (Oxford, supra, 177 Cal.App.4th at p. 708, quoting Boyle, supra, 487 U.S. at pp. 500, 504, 507, 512.)
  • “Liability for design defects in military equipment cannot be imposed, pursuant to state law, 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. The first two of these conditions assure that the suit is within the area where the policy of the ‘discretionary function’ would be frustrated—i.e., they assure that the design feature in question was considered by a Government officer, and not merely by the contractor itself. The third condition is necessary because, in its absence, the displacement of state tort law would create some incentive for the manufacturer to withhold knowledge of risks, since conveying that knowledge might disrupt the contract but withholding it would produce no liability. We adopt this provision lest our effort to protect discretionary functions perversely impede them by cutting off information highly relevant to the discretionary decision.” (Boyle, supra, 487 U.S. at pp. 512—513.)
  • “[T]he fact that a company supplies goods to the military does not, in and of itself, immunize it from liability for the injuries caused by those goods. Where the goods ordered by the military are those readily available, in substantially similar form, to commercial users, the military contractor defense does not apply.” (In re Hawaii Federal Asbestos Cases (9th Cir. 1992) 960 F.2d 806, 811.)
  • “In our view, if a product is produced according to military specifications and used by the military because of particular qualities which serve a military purpose, and is incidentally sold commercially as well, that product may nonetheless still qualify as military equipment under the military contractor defense.” (Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1319 [273 Cal.Rptr. 214].)
  • “While courts such as the court in Hawaii have sought to confine the government contractor defense to products that are made exclusively for the military, we agree with the court in Jackson that this limitation is unduly confining. Though the court in Boyle discussed the parameters of the contractor defense in terms of ‘military equipment,’ use of that term appears to have followed from the facts of that case. Other courts considering this issue have concluded the defense is not limited to military contracts… [Boyle’s] application focuses instead on whether the issue or area is one involving ‘uniquely federal interests’ and, if so, whether the application of state law presents a ‘significant conflict’ with federal policy.” (Oxford, supra, 177 Cal.App.4th at p. 710; the split on this issue in the federal and other state courts is noted in Carley v. Wheeled Coach (3d Cir. 1993) 991 F.2d 1117, 1119, fn. 1.)
  • “[T]he Supreme Court in Boyle did not expressly limit its holding to products liability causes of action. Thus, the government contractor defense is applicable to related negligence claims.” (Oxford, supra, 177 Cal.App.4th at p. 711.)
  • “[I]n order to satisfy the first condition—government ‘approval’ . . . the government’s involvement must transcend rubber stamping.” (Oxford, supra, 177 Cal.App.4th at p. 712.)
  • “[A]pproval must result from a ‘continuous exchange’ and ‘back and forth dialogue’ between the contractor and the government. When the government engages in a thorough review of the allegedly defective design and takes an active role in testing and implementing that design, Boyle’s first element is met.” (Getz v. Boeing Co. (9th Cir. 2011) 654 F.3d 852, 861, internal citation omitted.)
  • “[T]he operative test for conformity with reasonably precise specifications turns on whether ‘the alleged defect . . . exist[ed] independently of the design itself.’ ‘To say that a product failed to conform to specifications is just another way of saying that it was defectively manufactured.’ Therefore, absent some evidence of a latent manufacturing defect, a military contractor can establish conformity with reasonably precise specifications by showing ‘[e]xtensive government involvement in the design, review, development and testing of a product’ and by demonstrating ‘extensive acceptance and use of the product following production.’ ” (Getz, supra, 654 F.3d at p. 864, internal citations omitted.)
  • “Although the source of the government contractor defense is the United States’ sovereign immunity, we have explicitly stated that ‘the government contractor defense does not confer sovereign immunity on contractors.’ ” (Rodriguez v. Lockheed Martin Corp. (9th Cir. 2010) 627 F.3d 1259, 1265.)

Secondary Sources

6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1538

Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability For Defective Products, ¶¶ 2:1270, 2:1316, 2:1631 (The Rutter Group)

1 California Products Liability Actions, Ch. 8, Defenses, § 8.05 (Matthew Bender)

2 Levy et al., California Torts, Ch. 21, Aviation Tort Law, § 21.02[6] (Matthew Bender)

2 California Forms of Pleading and Practice, Ch. 16, Airplanes and Airports, § 16.10[5] (Matthew Bender)

40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.104[23] (Matthew Bender)