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March 3, 1983

In Re Air Crash Disaster at Washington, D.C. On January 13, 1983

Joyce Hens Green

The opinion of the court was delivered by: GREEN

Before the Court is the motion of defendant Air Florida, Inc., seeking reconsideration of those portions of this Court's Memorandum Opinion and Order of February 17, 1983 determining that, with respect to the majority of the actions in this consolidated proceeding, the law of the State of Washington shall govern the question of defendant The Boeing Company's liability for an assessment of punitive damages. Air Florida argues that under the applicable analysis, the law of the District of Columbia shall govern that issue. In the alternative, Air Florida seeks severance of the punitive damages issue from the liability trial or certification of the decision for interlocutory appeal. Because of the proximity of the scheduled trial date, the parties were directed to respond to the motion by noon, March 2, 1983. Boeing opposes the motion; the Plaintiffs' Steering Committee concurs with Air Florida, to the extent that Air Florida's motion supports the Plaintiffs' Steering Committee's previous position that District of Columbia punitive damages law shall apply to all defendants in all actions. Defendant American Airlines, Inc. has not filed an opposition to the motion. The arguing parties have briefed the issue more than adequately.

 Choice of law questions in air disaster cases often have proven difficult of resolution. In In Re Paris Air Crash of March 3, 1974, 399 F. Supp. 732 (C.D. Cal. 1975), Judge Pierson M. Hall, certainly one of the nation's most experienced judges in aviation cases, stated that

The law on "choice of law" in the various states and in the federal courts is a veritable jungle, which, if the law can be found out, leads not to a "rule of action" but a reign of chaos dominated in each case by the judge's "informed guess" as to what some other state than the one in which he sits would hold its law to be.

 399 F. Supp. at 739. The Ninth Circuit once referred to the process of determining the law to be applied as involving an entry into "the wilderness in which courts sometimes find themselves when searching for solutions to problems arising under the judicial nightmare known as Conflict of Laws." Forsyth v. Cessna Aircraft Co., 520 F.2d 608, 609 (9th Cir. 1975). Many have concluded that the only resolution of this recurring problem is by Congressional enactment of a uniform, national law governing airline tort liability. E.g., In Re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594, 632-33 (7th Cir. 1981), see also Kennelly, Litigation Implications of the Chicago O'Hare Airport Crash of American Airlines Flight 191, 15 J. Mar. L. Rev. 273, 297-300 (1982). In an effort to resolve the problem in advance of legislative action, some courts have looked to federal common law or federal aviation regulations as a source of uniform principles. E.g., Kohr v. Allegheny Airlines, Inc., 504 F.2d 400, 403-05 (7th Cir. 1974), cert. denied, Forth v. Allegheny Airlines, Inc., 421 U.S. 978, 44 L. Ed. 2d 470, 95 S. Ct. 1980 (1975) (federal common law rule of contribution and indemnity -- decided by court to be a comparative fault rule -- would control in light of pervasive federal regulation of aviation); Paris Air Crash, 399 F. Supp. at 746-47, 750-53 (federal interest evident to court in light of federal regulation of aviation, citing Kohr and Title 14, C.F.R. and appending relevant sections thereof to opinion; federal interest met by application of California law).

 Indeed, in Chicago, the Seventh Circuit found it impossible under the governing choice of law rules to discern the law that properly applied to the question of the defendant manufacturer's liability for punitive damages. Employing the interest analysis approach of the Restatement, Second, of the Law of Conflict of Laws, that court found that the two states having the greatest interest in the matter were Missouri, the manufacturer's principal place of business, and California, where the plane was built. 644 F.2d at 613-14. Yet between these two states, the court concluded that neither's interest could be said to be greater than the other's. Id. at 615. Since Missouri law permitted an award of punitive damages while California law did not, the Seventh Circuit was faced with a true conflict. As the court decided that there seemed to be no way to escape from that conflict by reaching a "moderate and restrained" interpretation of either state's policy, the problem simply could not be resolved under the Restatement, Second interest analysis. Id. As a result, the Seventh Circuit was forced to go outside of the established choice of law principles and chose the law of a state acknowledged to be less interested, Illinois, the site of injury, to break the tie. Id.

 In the absence of Congressional action or a decision of the Court of Appeals for this Circuit or the Supreme Court, this Court is constrained by the principles so aptly labeled by the Ninth Circuit a "judicial nightmare." This is not to say that the principles to which this Court is bound are in all cases necessarily unworkable. No party to the instant action has argued that, nor is it the view of this Court that a correct and fair resolution of these issues cannot be reached in this proceeding under the present rules. On the contrary. Recognizing this, the Court welcomes the opportunity to reconsider its prior decision in light of the arguments now before it and appreciates the fact that the pending motion provides the vehicle for that review.

 Although Air Florida does not suggest any defect in the approach used by the Seventh Circuit in Chicago, the essence of its argument is that in seeking to determine the law applicable to the instant litigation this Court did not simply consider the legal reasoning of Chicago but also transposed the factual application of that analysis to the different facts of the case at bar. Air Florida also challenges the Court's selection of Washington State as the locus of Boeing's allegedly wrongful conduct, to the extent that such conduct complained of includes Boeing's alleged failure to warn Air Florida of dangers, which warnings need not have been made in that state. Air Florida does not disagree with this Court's conclusion that the two jurisdictions most interested in this issue are the District of Columbia and Washington State. Nor does Air Florida argue that the Court did not apply the proper choice of law principles. Air Florida's narrow challenge primarily focuses on the extent to which this Court found Chicago analogous to this case.

 In response to Air Florida's motion, Boeing challenges Air Florida's standing to argue that punitive damages should be available against Boeing in that the airline is not a "party aggrieved" by an adverse ruling. However, the potential for jury confusion and prejudice are sufficient to establish on the part of Air Florida a stake in the resolution of the choice of law question as it affects the proceedings of the trial. Nevertheless, even if Air Florida did not have standing to raise the questions presented herein, the Court nonetheless could have entertained a reconsideration of its ruling sua sponte. Boeing also suggests that Air Florida in effect waived its right to argue the question of the law governing Boeing's liability for punitive damages because it did not address the issue in its briefs or at oral argument. The Court finds otherwise. Certainly, in light of the alignment of the two parties on the same side of the case it would have made no more sense for Air Florida to argue for the application of a punitive damages law to Boeing than it would have for Boeing to argue the same with respect to Air Florida -- which it did not. Air Florida's interest in the question arose only when this Court ruled that divergent punitive damages laws would govern these parties' liability.

 With respect to the choice of law question itself, Boeing argues that the holding in Chicago is precisely on point, interpreting that holding as meaning that in a case such as this the state of injury (evidently as a matter of law) has a lesser interest in promoting its policies on punitive damages than either the state where the conduct allegedly occurred or the state in which the defendant had its principal place of business. Under Chicago, Boeing argues, the court should consider the interests of the state where injury occurred only where there is a conflict between the laws of the latter two jurisdictions.

 There are a number of similarities between the facts of this case and those of Chicago. Both involved accidents which occurred upon takeoff. As such, in each case the state where the injury occurred had "very strong interests" in issues relating to the manufacturer's liability for punitive damages. 644 F.2d at 615. In each case no defendant had its principal place of business in the state of injury. Accordingly, in neither case could the state of injury be said to have had an interest in protecting the defendants from assessments of punitive damages. Similarly, in each case the aircraft was built or designed in a state other than the state of injury. Consequently, with respect to this issue neither state would have had a superior interest in such extraterritorial conduct causing injury within its borders, unless one of those states had a policy of punishing such conduct -- which it would if its law provided for punitive damages.

 There lies the rub. This is where the facts of the instant case depart from those of Chicago. Illinois' interest in the DC-10 manufacturer's liability for punitive damages vis a vis the interest of the other two potentially interested states, Missouri and California, was not as great as is the District of Columbia's interest in Boeing's liability vis a vis the interest of Washington State. Since Illinois did not impose punitive damages, Illinois would not have been disturbed by the application of California's equivalent law to the action. On the other hand, applying Missouri law would not have concerned it either, inasmuch as Illinois, as home of none of the defendants, had no interest in shielding any party from punitive damages. In the instant case, however, the policies of the District of Columbia of preventing air disasters and promoting safe air travel are advanced by the District's decision to allow punitive damage assessments in actions such as this. Those policies would be offended by resort to Washington's law, which denies such awards. As a result, unlike Illinois' interest in Chicago, the District of Columbia's interest in the question of Boeing's liability for punitive damages is by no means subordinate to that of the State of Washington. As another result, because the dilemma which forced the Seventh Circuit to look outside interest analysis is not present here, that analysis remains workable and useful toward resolving the instant choice of law problem.

 As noted above, Air Florida disputes the extent to which Boeing's conduct can be said to have been located in Washington State. According to Air Florida, if the site of injury is "almost always fortuitous," Pittway Corp. v. Lockheed Aircraft Corp., 641 F.2d 524, 527-28 (7th Cir. 1981), under this Court's reasoning Boeing's liability would always be protected by Washington State's policy against punitive damages.

 Boeing has a much more substantial relationship to the District of Columbia than a manufacturer generally has to the site of injury in a typical "fortuitous crash" case. Boeing had to foresee that its small, short-haul 737 aircraft would be used for departures from Washington National Airport, one of the nation's busiest airports and a station limited by federal regulation to domestic flights of 1,000 statute miles or less. See 14 C.F.R. § 159.60 (1982). Certainly, the allegations against that defendant concern the aircraft's performance upon departure. Moreover, with respect to the allegations that Boeing failed to make proper warnings about the aircraft's takeoff performance, as noted above, the locus of any such alleged omissions need not be confined to the State of Washington.

 Between the District of Columbia and the State of Washington, the former has the greater interest in the question of Boeing's liability for punitive damages in the instant litigation. While Washington State has made a considered choice not to allow the assessment of punitive damages, that choice necessarily includes a balancing of the interests of resident tortfeasors against the interests of that state in preventing harm caused by tortious conduct. Yet while Washington State, through its legislature, may weigh the rights of its own injured victims against its resident tortfeasors, the sovereignty of other states prevents it from placing on that scale the rights of those injured elsewhere. Accordingly, with respect to those actions in this litigation originally filed in jurisdictions following interest analysis choice of law principles, the law of the District of Columbia shall govern the question of Boeing's liability for punitive damages.

 In consideration of the foregoing, it is, by the Court, this 3rd day of March, 1983,

 ORDERED, that the motion of defendant Air Florida, Inc., for reconsideration of the Memorandum Opinion and the Order of February 17, 1983 be and hereby is granted, the relief sought in the alternative accordingly hereby being denied, and it is

 FURTHER ORDERED, that the same Memorandum Opinion and Order are hereby vacated and withdrawn, and it is

 FURTHER ORDERED, that a substitute Memorandum Opinion, and an Order appropriate thereto, shall issue this date, in accordance with the instant Memorandum Opinion and Order, and it is

 FURTHER ORDERED, that the Memorandum Opinion to issue this date will differ from that vacated this date only as to (1) the matters discussed at pages 43-46 of that prior opinion requiring amendment in light of this Order, (2) modifications elsewhere in the opinion made necessary by such amendments, and (3) certain alterations sua sponte determined appropriate in the text of footnote 36 of that opinion.


 Before the Court are the several motions and "proposals" of the parties as to which state's law should govern the following issues to be resolved at the consolidated trial in this case: the defendants' liability for compensatory damages, apportionment of liability among defendants, and the defendants' liability for punitive damages. These questions of choice of law have been more than amply briefed, by all defendants, the Plaintiffs' Steering Committee (which is charged with responsibility for presenting the case at trial on behalf of all plaintiffs), and counsel for several of the plaintiffs whose individual actions were originally filed in other courts but transferred here. *fn1" A brief review of the facts surrounding this litigation is essential to a full appreciation of the complexity of the issues addressed herein.

 This consolidated proceeding arises from the crash of a B-737 passenger jet (designed and built by The Boeing Company and operated by Air Florida, Inc.) in Washington, D.C. on January 13, 1982. The plane departed from Washington National Airport, located across the Potomac River from the city of Washington, in Arlington County, Virginia, *fn2" and was bound for Tampa and Fort Lauderdale, Florida. Snow was falling before and during the takeoff. Shortly after the plane left the runway, it hit the Rochambeau Memorial Bridge (the northbound span of what is popularly known as the 14th Street Bridge) connecting Arlington, Virginia and the District of Columbia, damaging several automobiles on the bridge and injuring or killing their occupants. It then fell into the icy waters of the Potomac River below, within the District of Columbia. Five people aboard the flight were pulled from the river to safety, tragically, however, over 70 others died. Most of the victims were residents of the District of Columbia or the states in which its suburbs lie, Maryland and Virginia; other victims were from Florida, Massachusetts, Pennsylvania, Georgia, and Texas. Rescuers from various authorities, including the District of Columbia, the United States Park Police, and Arlington County, went into action as a result of the crash. The bridge, an interstate highway (Route I-395) owned by the District of Columbia and a major commuter route between the city of Washington and its Virginia suburbs, was damaged and remained closed for several days. By a horrible yet unrelated coincidence, within a half-hour of the plane crash a subway train of the Washington Metropolitan Area Transit Authority carrying a full load of passengers derailed in an underground tunnel. The derailment caused several fatalities and resulted in the partial disruption of the Metro subway system, which, like the 14th Street Bridge, is used by many commuters between the District of Columbia and Virginia. The closing of the bridge and the disruption of Metro service prompted the federal government to direct that "nonessential" employees working in the District of Columbia need not report for work for several days following.

 Air Florida is a defendant in each of the cases embraced in the consolidated trial. The wrongdoing alleged against Air Florida centers around the actions of the cockpit crew and the procedures they followed before and during the takeoff, including their decisions regarding the necessity of undergoing additional wing deicing treatment before takeoff. Boeing likewise is a defendant in each case; in those cases wherein Boeing is not named in the complaint, Boeing has been impleaded by Air Florida. The allegations against Boeing concern such matters as the design of the aircraft and its alleged tendency to "pitch up" upon takeoff in icy weather when adhering ice or snow may affect the wings' aerodynamics, and Boeing's alleged failure to issue proper warnings regarding such a phenomenon. American Airlines is a defendant in some cases for the reason that its employees at National Airport performed the deicing of the aircraft, pursuant to a maintenance contract with Air Florida. Those two parties assert that an indemnification provision in that contract should render Air Florida responsible for any activities of the American Airlines deicing crew that would create liability. *fn3" Air Florida's corporate headquarters are in the State of Florida. The corporate headquarters of Boeing are in the State of Washington, the site of the design, construction, and certification of the 737, as well as the original sale of the particular aircraft involved in the crash. American Airlines has its corporate headquarters in the State of Texas.

 There is no doubt that a number of states *fn4" have an interest in some or all of the issues to be adjudicated at the consolidated liability trial. Since federal subject matter jurisdiction arises from the parties' diversity of citizenship, this Court must follow the choice of law rules of the states where the various actions were originally filed. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941); Van Dusen v. Barrack, 376 U.S. 612, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964); In Re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594 (7th Cir.), cert. denied, Lin v. American Airlines, 454 U.S. 878, 102 S. Ct. 358, 70 L. Ed. 2d 187, 102 S. Ct. 358 (1981) (hereinafter referred to as Chicago); In Re Air Crash Disaster at Boston, Massachusetts on July 31, 1973, 399 F. Supp. 1106 (D. Mass. 1975) [hereinafter referred to as Boston ]. *fn5" Therefore, the controlling choice of law rules are those of the District of Columbia, Georgia, Illinois, Maryland, Massachusetts, Pennsylvania, Texas, and Virginia.

 Most of these jurisdictions (the District of Columbia, Illinois, Massachusetts, Pennsylvania, and Texas) have discarded the lex loci delicti or "site of the injury" rule in favor of tests involving an exploration of the interests of the various states having some relationship to the parties or the crash. Illinois, Massachusetts, Pennsylvania, and Texas each have specifically adopted the test of the Restatement, Second, of the Law of Conflict of Laws (1971). *fn6" The District of Columbia likewise has discarded the lex loci rule, but before the Restatement, Second was published. Tramontana v. S.A. Empresa de Viacao Aerea Rio Grandense, 121 U.S. App. D.C. 338, 350 F.2d 468 (D.C. Cir. 1965), cert. denied, Tramontana v. Varig Airlines, 383 U.S. 943, 16 L. Ed. 2d 206, 86 S. Ct. 1195 (1966). As such, most of the reported decisions of courts employing District of Columbia choice of law rules do so without reference to the formulae set forth in the Restatement, Second. See, e.g., Semler v. Psychiatric Institute of Washington, D.C., 188 U.S. App. D.C. 41, 575 F.2d 922, 924 (D.C. Cir. 1978); In Re Air Crash Disaster Near Saigon, South Vietnam on April 4, 1975, 476 F. Supp. 521 (D.D.C. 1979). However, in a recent decision the District of Columbia Circuit used the factors enumerated in the Restatement, Second in applying the District of Columbia analysis. Hitchcock v. United States, 214 U.S. App. D.C. 198, 665 F.2d 354, 360-61 (D.C. Cir. 1981), citing Restatement, Second §§ 145, 146. The Commonwealth of Virginia and the States of Georgia and Maryland have not formally discarded the lex loci delicti rule; the principles governing the cases transferred from those jurisdictions are discussed in part II of this Memorandum Opinion.

 I. Choice of Law Under the Modern Analysis

 Modern choice of law analysis regards an examination not simply of the various states' interests generally, but of their interests regarding the various distinct issues to be adjudicated. This is the concept of "depecage," and has been followed in other air crash cases. Chicago, 644 F.2d at 594; Reyno v. Piper Aircraft Co., 630 F.2d 149 (3d Cir. 1980), rev'd on other grounds, 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). The issues to be resolved at the consolidated trial, as noted above, include the questions of the defendants' liability for compensatory damages (in other words, whether their conduct created tort liability) and their liability for punitive damages. Within the question of liability for compensatory damages are the sub-issues of negligence, of whatever products liability lies on the part of Boeing, and of the method of apportioning liability or determining contribution among the defendants.

 The District of Columbia method of "governmental interest analysis" directs the court first to identify the state policies underlying each law in conflict and second to decide which state's policy would be advanced by having its law apply. Semler, 575 F.2d at 924. Under the Restatement, Second formula, by comparison, the court endeavors to determine which state has the most significant relationship to the occurrence and parties with respect to the issue being considered. Restatement (Second) of Conflict of Laws § 145(1). *fn7" The potentially interested states are determined by looking to a list of contacts with the litigation -- place of injury, place where conduct occurred, residence or domicile of parties, and center of the parties' relationship, if any -- and evaluating the relative importance of the contacts with respect to the particular issue. Id., § 145(2); Hitchcock, 665 F.2d at 360. *fn8" The Restatement, Second lists a number of factors relevant to choosing the applicable law; the most important of these in a tort case include the relevant policies of the forum and other interested states. Id. § 6; *fn9" compare Saigon, 476 F. Supp. at 526 (the court must consider whether the public policy of a particular legislature would be furthered, frustrated, or irrelevant if applied to the case at bar). As such, the state with the "most significant relationship" should also be that whose policy would be advanced by application of the law, i.e., the state with the greatest interest in applying its law to the issue under the District of Columbia analysis.

 A. Negligence

 As there is no conflict as to the negligence law among the various interested jurisdictions the Court will apply the negligence law of the District of Columbia. *fn10" This issue resolved, the question of which state's products ...

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