CACI No. 1246. Affirmative Defense - Design Defect - Government Contractor

Judicial Council of California Civil Jury Instructions (2024 edition)

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1246.Affirmative Defense - Design Defect - Government
[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,
“[W]here a purchase does not involve ‘reasonably precise specifications’ bearing
on the challenged design feature, the government necessarily has not made a
considered evaluation of and affirmative judgment call about the design.” (Kase
v. Metalclad Insulation Corp. (2016) 6 Cal.App.5th 623, 628 [212 Cal.Rptr.3d
“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]; see also Kase, supra, 6 Cal.App.5th at p. 637 [“We continue to
agree with Jackson and Oxford that a product’s commercial availability does not
necessarily foreclose the government contractor defense.”].)
“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
“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 (11th ed. 2017) Torts, § 1704
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
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)

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