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Arnold v. McDonnell Douglas Corp.5/18/1999
8 U.S.C.A. section 2680(b) (1994).
In Boyle, the court reasoned that the discretionary function exception of the FTCA suggests the outlines of a significant conflict between federal interests and state law in the procurement context which would justify displacement of state law. 487 U.S. at 511.
"After Boyle, the discretionary function exception to the FTCA indicates the scope of the government contractor defense." Carley v. Wheeled Coach, 991 F.2d 1117, 1122 (3rd Cir. 1993).
We, therefore, must consider whether the government performs a discretionary function when, with knowledge of safety risks, it determines flight testing of military aircraft is necessary and establishes procedures therefor.
In Dalehite v. United States, 346 U.S. 15, 37-42 (1953), the Court held the government performed a discretionary function under the FTCA when it planned a fertilizer shipment program, determined the ingredients of the fertilizer, and determined the methods for its coating, storing, and shipping. The Court stated the discretionary function exception "includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion." Id. at 35-36. The Fifth Circuit Court of Appeals more recently clarified this saying, "both the evaluation of actual or suspected hazards, and the decision to proceed in a particular manner in light of those hazards, are protected discretionary acts, not subject to tort claims in the district court." Ford v. American Motors Corp., 770 F.2d 465, 467 (5th Cir. 1985).
We believe the government performed a discretionary function when it required testing of a product and established procedures therefor with an awareness of the dangers. Landowner's point one, arguing the government contractor defense is inapplicable to his cause of action, is denied.
IV. Contractor's Motion for Summary Judgment
Landowner's second point on appeal asserts contractor's motion for summary judgment did not present evidence sufficient to show material facts that were free from genuine dispute supporting the elements of the government contractor defense.
A defending party may establish a right to summary judgment by showing: 1) facts that negate any one of the facts necessary to support the elements of claimant's cause of action; 2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements; or 3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 381 (Mo. banc 1993). Regardless of which of these three means is employed, each establishes a right to judgment as a matter of law. Id.
We must apply the government contractor defense to determine whether contractor has shown the government's use of discretion with regard to its test flights and the attendant substantial conflict between federal and state law required to establish contractor's right to immunity from tort liability. The defendant bears the burden of proving each element of the defense. Rodgers v. Czamanske, 862 S.W.2d 453, 459 (Mo.App. 1993).
A. Formulation of Government Contractor Defense for Performance Contracts
The Court in Boyle announced a three-prong test for determining when a significant conflict exists between federal and state law such that state tort law is displaced by feder
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