California Civil Jury Instructions (CACI)

1247. Affirmative Defense—Failure to Warn—Government Contractor

[Name of defendant] may not be held liable for failure to warn about the dangers in the use of 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 imposed reasonably precise specifications on [name of defendant] regarding the provision of warnings for the [product];

3. That the [product] conformed to those specifications regarding warnings; 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 December 2010

Directions for Use

This instruction is for use if the defendant’s product about which a failure to warn is alleged (see CACI No. 1205, Strict Liability—Failure to Warn—Essential Factual Elements, and CACI No. 1222, Negligence—Manufacturer or Supplier—Duty to Warn—Essential Factual Elements) 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 design defect case. For an instruction for use in such a case, see CACI No. 1246, Affırmative Defense—Design Defect—Government Contractor.

Sources and Authority

  • “The appellate court in Tate [Tate v. Boeing Helicopters (6th Cir. 1995) 55 F.3d 1150, 1157] offered an alternative test for applying the government contractor defense in the context of failure to warn claims: ‘When state law would otherwise impose liability for a failure to warn of dangers in using military equipment, that law is displaced if the contractor can show: (1) the United States exercised its discretion and approved the warnings, if any; (2) the contractor provided warnings that conformed to the approved warnings; and (3) the contractor warned the United States of the dangers in the equipment’s use about which the contractor knew, but the United States did not.’ ” (Oxford, supra, 177 Cal.App.4th at p. 712.)
  • “As in design defect cases, in order to satisfy the first condition—government ‘approval’—in failure to warn cases, the government’s involvement must transcend rubber stamping. And where the government goes beyond approval and actually determines for itself the warnings to be provided, the contractor has surely satisfied the first condition because the government exercised its discretion. The second condition in failure to warn cases, as in design defect cases, assures that the defense protects the government’s, not the contractor’s, exercise of discretion. Finally, the third condition encourages frank communication to the government of the equipment’s dangers and increases the likelihood that the government will make a well-informed judgment.” (Oxford, supra, 177 Cal.App.4th at p. 712, quoting Tate, supra, 55 F.3d at p. 1157.)
  • “Under California law, a manufacturer has a duty to warn of a danger when the manufacturer has knowledge of the danger or has reason to know of it and has no reason to know that those who use the product will realize its dangerous condition. Whereas the government contractor’s defense may be used to trump a design defect claim by proving that the government, not the contractor, is responsible for the defective design, that defense is inapplicable to a failure to warn claim in the absence of evidence that in making its decision whether to provide a warning . . . , [defendant] was ‘acting in compliance with “reasonably precise specifications” imposed on [it] by the United States.’ ” (Butler v. Ingalls Shipbuilding (9th Cir. 1996) 89 F.3d 582, 586.)
  • “In a failure-to-warn action, where no conflict exists between requirements imposed under a federal contract and a state law duty to warn, regardless of any conflict which may exist between the contract and state law design requirements, Boyle commands that we defer to the operation of state law.” (Butler, supra, 89 F.3d at p. 586.)
  • “Defendants’ evidence did not establish as a matter of law the necessary significant conflict between federal contracting requirements and state law. Although defendants’ evidence did show that certain warnings were required by the military specifications, that evidence did not establish that the specifications placed any limitation on additional information from the manufacturers to users of their products. Instead, the evidence suggested no such limitation existed.” (Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1317 [273 Cal.Rptr. 214].)
  • “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.” (Oxford, supra, 177 Cal.App.4th at p. 708, quoting Boyle, supra, 487 U.S. at pp. 500, 504, 507, 512.)
  • “[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.)
  • “[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, supra, 223 Cal.App.3d at p. 1319.)
  • “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.)

Secondary Sources

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

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)