Hofer et al v. Old Navy Inc. et al

Filing 70

Hofer et al v. Old Navy Inc. et al

Doc. 70 Att. 10

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EXHIBIT 10
Dockets.Justia.com

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1 9 8 5 U.S. Dist. LEXIS 17211, *

2 3 of 29 DOCUMENTS I n Re Korean Air Lines Disaster of September 1, 1983 C iv il Action Nos. 83-3442, 83-3443, 83-3444, 83-3445, 83-3448, 83-3449, 83-3450, 8 3 - 3 4 5 1 , 83-3452, 83-3453, 83-3454, 83-3455, 83-3456, 83-3457, 83-3458, 83-3459, 833 4 6 0 , 83-3461, 83-3462, 83-3463, 83-3463, 83-3466, 83-3467, 83-3468, 83-3472, 833 8 9 8 , 83-3900, 83-3903, 84-0029, 84-0030, 84-0083, 84-0084, 84-0402, M D L Docket N o . 565, M is c . No. 83-0345 U N I T E D STATES DISTRICT COURT FOR THE DISTRICT OF COLUM B I A 1 9 8 5 U.S. Dist. LEXIS 17211 A u g u s t 1, 1985, Decided; August 2, 1985, Filed F o r s y th , for Defendant Korean Air Lines. C O U N S E L : [*1] Gerald H. Baker, Esquire, for Plaintiffs, John M a r in o (84-0083, 84-0084), Maria Beirn (83-3467), H a n s Ephraimson-Abt (83-3463), Robert Speir (833468). A a r o n J. Broder, Esquire, F. Lee Bailey, Esquire, for P l a in tiffs , Betty B.S. Lim (83-3448), Christina Ting (833 4 5 7 ) , Barbara Swift (83-3458), Kyung HW A Park (833 4 5 9 ) , Hee Sook Lee (83-3460), Ul Ran Lim (83-3461), E u n Jung Oh (83-3462). M ilto n G. Sincoff, Esquire, Kreindler & Kriendler, fo r Plaintiffs, Elisa E. Chan (83-3465, 83-3466), Robert C a l ta b e l la t ta , Sr. (83-3453), Sungwha Oh Yoo (83-3454), J o se A. Bolantem (83-3455, 83-3452), JW A Hong (833 4 5 6 ) , Maurine E. Oren (83-3449), David W u Dunn (833 4 5 0 ) , Renay Lynne B e v in e (83-3451), Jeung Em Yun ( 8 3 -3 4 6 4 ) , Robert Cruz (84-0029), Robert Caltabellatta, S r . (84-0030). P h i l i p Corboy, Esquire, Corboy & Demetrico, P.C., fo r Plaintiff Cecille Chauapoco (83-3472). M e lv in M. Belli, Sr., Esquire, for Plaintiffs Pataban A r iv a d e (83-3442), Maria Beirn (83-3443), Thomas L. M a h a l e k (83-3444), Joeph Munder (83-3445). J a m e s M. Kenny, Esquire, McHugh, Leonard & O 'C o n n o r , for Plaintiff Louella Maris Antonia Defrentias N a s s ie f (83-3893). H e r o i c o M. Aguiluz, Esquire, for Plaintiff Rosario B a yo n a [*2] (83-3900). M ic h a e l S. M a z u r , Esquire, Chambers, Steiner, M a z u r , Ornstein & Amlin, for Plaintiff W i l lie N. James ( 8 3 -3 9 0 3 ) . G e o r g e N. Tompkins, Jr., Esquire, Condon & O P I N I O N BY: ROBINSON O P IN IO N : MEMORANDUM AND ORDER A u b r e y E. Robinson, Jr., Chief Judge. B e fo r e the Court is a motion to dismiss filed by D e fe n d a n t Litton Systems, Inc. (Litton) pursuant to Fed. R . Civ. P. 12(b)(6) and a motion for summary judgment file d by Defendant Boeing Company (Boeing) under F e d . R. Civ. P. 56(b). Both motions arise out of the d o w n i n g of Korean Air Lines Flight 007 (KAL 007) on S e p t e m b e r 1, 1983 by Soviet SU-15 fighter aircraft s o u th w e s t of Sakhalin Island over the Sea of Japan. On b o a r d KAL 007 were 269 civilian passengers and crew t r a v e lin g to Seoul, South Korea. It is undisputed that the c o m m e r c ia l airliner owned and operated by a corporation o f South Korea deviated from its assigned course, which w a s the northernmost airline route, and over sensitive S o v ie t territory. It is also undisputed that military a i r c r a ft, dispatched by the Union of Soviet Socialist R e p u b lic s , deliberately fired missiles destroying the a ir c r a ft and killing all aboard. These are the [*3] u n d i s p u t e d and material facts which are pertinent to both m o tio n s . Issues Presented B o t h motions also raise the same legal question: was th e action of the Soviet Union foreseeable. More s p e c ific a lly the question can be phrased as a d e t e r m in a t io n of Defendants' duty and whether the in te n tio n a l downing of KAL 007 by Soviet missile attack

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1 9 8 5 U.S. Dist. LEXIS 17211, * a r is e s to the level of a "superseding cause" preventing a n y liability which might otherwise attach to Defendants B o e i n g and Litton: Boeing has raised these questions in t h e form of a motion for summary judgment primarily a r g u i n g that, as a matter of law, the assertedly criminal n a t u r e of the Soviet attack supersedes any possible lia b ility on its part. Litton has cast the same issue in the f o r m of a motion to dismiss. Litton argues that the d o w n i n g of KAL 007 by missile attack was not a " r e a s o n a b l y foreseeable" consequence of any product d e fe c t which might be attributed to Litton Systems, Inc. C o n s e q u e n t l y , Litton argues that it had no duty to P la i n t i f f s ' decedents with respect to the Soviet attack and t h a t , under these circumstances, there can be no liability. F o r the purpose of their motions, both Boeing and L i tto n assume that there was in [*4] fact a product defect in the inertial navigation systems (INS) aboard KAL 007, c a u s i n g the aircraft to stray from its assigned course w i th o u t detection of the error. Plaintiffs oppose both the m o tio n for summary judgment and the motion to dismiss o n the ground that, assuming product defect in the INS, th e question of foreseeability is one which must be d e t e r m in e d by jury. Alternatively, Plaintiffs urge the C o u r t to find that the missile attack was reasonably fo r e s e e a b le by these two manufacturers. D e te rm i n a tio n of the Motions Pursuant to Fed. R. C i v . P. 12(b)(6) and Fed. R. Civ. P. 56 B e fo r e reaching the precise legal questions presented b y these two motions, the question of what standard s h o u ld govern their determination must be addressed. B o e i n g has presented a motion for summary judgment, p l a c in g before the Court evidence beyond the c o m p l a i n t s . The evidence which Boeing asks the Court to c o n s id e r ranges from affidavits to reports and provisions o f the Convention on International Civil Aviation ( I C A O ) , a United Nations agency charged with the task o f administering international civil aviation in a c c o rd a n c e with the principles of the Convention on I n te r n a tio n a l Civil Aviation [*5] signed at Chicago on D e c e m b e r 7, 1944, 61 Stat. 1180; 15 U.N.T.S. 295, U.N. D o c . 7300/6. In addition to the arguments already noted, P l a i n t i f fs have asserted a need for discovery, pursuant to F e d . R. Civ. P. 56(f) as another reason for denying B o e i n g 's motion for summary judgment. L i tto n 's motion to dismiss is, according to Fed. R. C i v . P. 12(b)(6), to be decided based strictly on the p l e a d in g s presented. It is this Defendant's position that c o n s i d e r i n g the complaint in the light most favorable to P la in tiffs , i.e., assuming all allegations to be true, relief m a y not be granted because there was no duty to guard a g a in s t missile attack in the design of the inertial n a v i g a t i o n system. Consequently, Litton argues, there is n o claim against it upon which relief may be granted. T h e legal arguments of these Defendants do not differ v e r y much. Nonetheless, because they have chosen a l te r n a te procedural devices for their presentation of the is su e , the Court is faced with two slightly different s ta n d a r d s for a determination of the same legal questions a r is in g out of the same fact situation. U n d e r the test for consideration of a motion to d i s m i s s for failure to state a claim, the Court [*6] and t h e parties are limited to consideration of the complaint. L i t to n 's motion to dismiss for lack of a cognizable claim c a n n o t be granted unless it appears beyond doubt that u n d e r no set of facts well pleaded and proved can P l a i n t i f f s prevail. B o e i n g 's motion for summary j u d g m e n t , on the other hand, may be granted if there are n o issues of material fact and if, based upon the facts p r e se n te d , Defendant is entitled to prevail as a matter of la w . Both motions require the Court to scrutinize the e v i d e n c e and pleadings closely and to resolve any doubts in favor of Plaintiffs. See Adickes v. S.H. Kress & Co., 3 9 8 U.S. 144, 157 (1970); Scheuer v. Rhode s, 416 U.S. 2 3 2 , 236 (1974). Therefore, the principal difference in t h e s e two standards is the scope of the evidence which th e Court may consider and the opportunity to oppose w h i c h must be afforded to Plaintiffs. T h e ultimate question presented in these two m o tio n s , however, is the same: should the Defendants h a v e foreseen the possibility that the Soviet Union would in te n tio n a lly shoot down KAL 007. If, as a matter of law, th e act of the Soviet Union was not foreseeable, then, w h e t h e r phrased in terms of duty or "superseding cause," [ * 7 ] whether embodied in a motion to dismiss or in a m o t i o n for summary judgment, no liability can attach to e i t h e r Defendant. S i n c e the material facts and issues of law relevant to t h e i r determination are the same, the Court will c o n s o l i d a t e these two motions. However, in order to c o n s i d e r the motions according to a procedure which is fa i r to all parties, the Court will necessarily convert the m o t i o n filed by Litton, seeking dismissal pursuant to F e d . R. Civ. P. 12(b)(6), into a motion for summary j u d g m e n t. Rule 12(b) provides that If, on a motion asserting the defense numbered (6) to d is m i s s for failure of the pleading to state a claim upon w h i c h relief can be granted, matters outside the pleading a r e presented to and not excluded by the court, the m o tio n shall be treated as one for summary judgment and d i s p o s e d of as provided in Rule 56, and all parties shall b e given reasonable opportunity to present all material m a d e pertinent to such a motion by Rule 56. In this case, matters outside the pleadings have been p r e se n te d for the Court's consideration by Boeing and by P l a i n t i f fs ; these matters will not be excluded. Plaintiffs h a v e had reasonable opportunity to present any and [*8] a ll material pertinent to a decision pursuant to Rule 56. I n d e e d , submitting to the Court exhibits and affidavits

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1 9 8 5 U.S. Dist. LEXIS 17211, * b e y o n d the pleadings, it was Plaintiffs' decision to file a s in g le opposition, apparently recognizing the identical le g a l question is presented. Consequently, by attempting to demonstrate through extrinsic evidence that Litton o w e d a duty to Plaintiffs' decedents and that the behavior o f the Soviet Union was foreseeable, Plaintiffs have tr e a te d the motion to dismiss as though it were for s u m m a r y judgment. The Court finds that the requisites h a v e been satisfied for conversion of Litton's motion to d is m i s s into a motion for summary judgment. Moreover, fo r the reasons set forth below, the Court finds that the m a tte rs presented are properly disposed of by way of s u m m a r y judgment. DISCUSSION F o r the purpose of their motions, Defendants Boeing a n d Litton have assumed that there was a product defect i n the inertial navigation systems and that negligence in m a n u f a c t u r e was a factor in causing KAL 007 to deviate fr o m course. Litton points out in its motion that in order f o r a product defect to have been responsible for KAL 0 0 7 's unfortunate misdirection into Soviet airspace, [*9] a ll three INS systems aboard the aircraft would have had to have failed simultaneously. However unlikely it may h a v e been, such simultaneous failure is within the realm o f possibility and shall be assumed for the purpose of d e c id in g these motions. H a v in g assumed that some act or omission of D e f e n d a n t s contributed to bringing KAL 007 to the site o f this tragedy, thereby acting as a "cause in fact," the q u e s t i o n becomes one of "proximate cause." Proximate c a u s e is best described as a question of legal r e s p o n s i b i l it y . W . Prosser & P. Keeton The Law of Torts 2 8 1 (5th ed. 1984) [hereinafter cited as Prosser & K e e to n ] . In fact, "the question is primarily not one of c a u s a tio n , and never arises until causation has been e sta b lis h e d . It is rather one of the fundamental policy of t h e law, as to whether defendant's responsibility should e x t e n d to such results." Id. Stated in terms particularily r e l e v a n t in this case "the question of proximate c a u s a tio n , like that of duty, is at base one of fo r e se e a b ility ." Rieser v. District of Columbia, 563 F.2d 4 6 2 , 479 (D.C. Cir. 1977). F u n d a m e n t a l principles of tort law require that there b e duty before there can be liability and, before there [ * 1 0 ] can be duty, foreseeability of the consequences of o n e 's act. As stated in the celebrated case Palsgraf v. L o n g Island Railroad Co., 162 N.E. 99, 100 (N.Y. 1928) " [ t] h e orbit of the danger as disclosed to the eye of r e a s o n a b le vigilance would be the orbit of the duty." In th is case, the pure and simple legal question is whether or n o t the armed Soviet missile attack was a risk within the o r b it of duty of the manufacturers of the aircraft's n a v i g a tio n equipment, thereby creating a corresponding d u ty in Defendants to protect against it. The Court c o n c lu d e s that the risk of a missile attack was not r e a s o n a b ly foreseeable by Defendants. Moreover, the S o v ie t attack upon KAL 007 operated as an independent a n d intervening cause of the damages suffered by P la in tiffs and relieves Defendants of any legal r e s p o n s i b i l it y . Accordingly, judgment shall be entered in fa v o r of Defendants Boeing Company and Litton S y s te m s . Foreseeability and the Scope of duty T h e scope of one's duty extends only to "that degree o f care which a reasonably prudent person would have e x e r c i s e d under the same or similar circumstances." W a s h in g to n Hospital Center v. Butler, 384 F.2d 331, 335 ( D . C . Cir. [*11] 1967). In this case, Defendants can o n l y be held to that standard of care required of p r o d u c e r s of equipment utilized by commercial airlines f o r civil aviation. Since the Court is only concerned with th e standard of care owed in the context of civil aviation, P l a in tiffs ' protests that the United States government p r in ts a warning on the maps it publishes for use by m ilita ry aircraft are not relevant. W h ile it may be true th a t the political climate between our government and th a t of the Soviet Union may be so "cold" that the United S ta t e s may expect its military aircraft to be fired upon s h o u l d Soviet boundaries be crossed, unarmed c o m m e r c ia l airlines have no reason to expect the same or s i m i l a r treatment. T h e treatment to be accorded civilian aircraft is d e fin e d in the Convention on International Civil Aviation a n d Annexes thereto, signed at Chicago on December 7, 1 9 4 4 , 61 Stat. 1180; 15 U.N.T.S. 295. W h i l e the ICAO is p r im a r ily directed to civil, not military, agencies of a v ia tio n , the Chicago Convention incorporated Rules. of th e Air and international Standards and Recommended P r a c tic e s for civil aviation which 152 nations of the w o r ld , including the Soviet Union have agreed [*12] to. I n c o r p o r a te d in the ICAO Annex 2 of the Rules of the A i r is an international code of conduct applicable to s itu a tio n s where civilian aircraft intrude into prohibited a ir s p a c e and interception becomes necessary. W h e n i n t e r c e p t i n g an intruding aircraft, an overflown state is a d m o n is h e d to avoid the use of weapons. The procedures e s ta b lis h e d for interception are elaborate but do not m e n tio n the use of force. See ICAO Annex 2, para. 3.8. I n d e e d , the Note which precedes the general rules for in te r c e p tio n provides that interceptions are to be avoided a n d used only as a "last resort." See also ICAO Annex 1 1 , para. 2.13-2.14.2. This principle was reaffirmed by th e community of nations adhering to the Chicago C o n v e n tio n when the attack on KAL 007 was in v e s tig a t e d . The report of the ICAO fact-finding in v e s tig a t io n reaffirmed that "[i]n accordance with the I C A O Council's special recommendations in ICAO A n n e x 2, Attachment A, interception of civil aircraft s h o u l d be avoided and should be undertaken only as a

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1 9 8 5 U.S. Dist. LEXIS 17211, * la s t resort. Furthermore, an interception should be limited to determining the identity of the aircraft and providing a n y navigational guidance necessary for the safe conduct [ * 1 3 ] of the flight." See Boeing Exhibit B. Therefore, in tr u d i n g aircraft may be required to land; nothing in the I C A O documents authorizes destruction. Even while the I C A O language appears to anticipate the remote p o s s i b i l it y of armed force, the use of weapons is d i s c o u r a g e d . It is clear that the ICAO Council expected o v e r flo w n states to refrain from deliberate violence a g a i n s t unarmed civilian aircraft; likewise, Defendant m a n u fa c tu r e rs had reason to expect that force would be a vo id e d . F o r whatever reason, the Soviet Union disregarded th e ICAO principle embodied in the international Rules o f the Air and intentionally fired upon KAL 007 while it w a s impossible for the airliner to land. To support their c o n te n tio n that the action taken by the Soviet Union was f o r e s e e a b l e , Plaintiffs in effect argue that Defendants w e r e "on notice" that aircraft overflying sensitive Soviet t e r r ito r y might be fired upon. Plaintiffs point out that the D e fe n s e Mapping Agency has published navigation c h a rts including the warning: "Aircraft infringing upon N o n -F r e e Flying Territory may be fired on without w a r n in g ." See Plaintiffs' Exhibits 1 and 2. As already n o t e d , these warnings, directed to military [*14] flights, h a v e no bearing on the motions before the Court. In a d d itio n , Plaintiffs submit news clippings concerning o th e r incidents of interception in which the Soviet Union h a s used force. See Plaintiffs' Exhibit 3-19. These e x h i b its are intended to show that Defendants were or s h o u l d have been aware that the Soviet Union W o u l d e m p l o y armed force against intruding civilian aircraft. F ir s t of all, even assuming awareness, a duty does not n e c e s s a r i l y follow. In addition, most of the incidents r e p r e s e n t e d in Plaintiffs' exhibits involved identifiable m i lita ry aircraft; the legal standards and rules which w o u l d govern in those situations are not analogous in this one. H o w e v e r , there is one incident noted by Plaintiffs w h ic h is similar to that which occurred on September 1, 1 9 8 3 . On April 23, 1978, another Korean Air Lines j e tlin e r, a Boeing 707, was intercepted by Soviet fighter p la n e s . See Plaintiffs' Exhibit 19. The earlier act of the S o v i e t Union is not comparable to the circumstances p r e s e n te d in this case. In that incident, the Soviet in te r c e p tin g fighter planes did follow the ICAO p r o c e d u r e s and signalled the Korean plane to land. Only a f t e r those attempts failed, apparently, [*15] did the S o v ie t Union force the plane down. Even then the c o m m e r c ia l airliner was only disabled and forced to land; it was not, as was KAL 007, shot into the sea. There lies th e difference. In 1978, the Soviet Union opted to force la n d in g . Unfortunately, in 1983, the decision was o th e r w is e ; the civilian craft was destroyed and all aboard k ille d . Forced landing could not have been intended; K A L 007 was attacked over water. Boeing and Litton w e r e under no obligation to anticipate such deliberate d e s tr u c tio n . D e f e n d a n t s urge that such intentional attack amounts to a criminal act and point out that there is no duty to g u a r d against criminal acts since "independent illegal a c t s of third persons are deemed unforeseeable and th e re fo r e the sole proximate cause of the injury, which e x c l u d e s the negligence of another as a cause of injury." D e c k e r v. Gibson Products Co. of Albany, 679 F.2d 212, 2 1 5 (11th Cir. 1982). Plaintiffs counter by noting that w h e r e there has been a history of criminal acts, there is a d u t y to make reasonable provision against their o c c u r r e n c e , Lillie v. Thompson, 332 U.S. 459 (1947) and th a t this principle applies to manufacturers. d' Hedouville v . Pioneer Hotel [*16] Co., 552 F.2d 886 (9th Cir. 1 9 7 7 ) . Plaintiffs are correct. * For example, in Hicks v. U n i t e d States, 511 F.2d 407 (D.C. Cir. 1975), recovery w a s allowed for the death of a woman at her husband's h a n d s upon his negligent release from a mental hospital. S i n c e attacks upon his wife were known manifestations o f the patient's mental condition, the court found that the h o m i c id e was only a consequence. "The homicide was c lo s e ly related to the very reason he had been committed o r ig in a l ly to the Hospital -- one of many drunken attacks o n his wife." Id. at 422. The court first found that the h o s p i ta l realized or should have realized that such a s i t u a t i o n might be created. That cannot be said of this s i t u a tio n . It may have been foreseeable that some sort of h a r m might have come of an equipment failure; it was n o t within a foreseeable risk nor was it to be anticipated t h a t injury would occur by reason of deliberate state a c tio n . * However, whether the state action was "criminal" is of no relevance to the determination of this motion. T h e Court need only determine whether the action taken w a s sufficiently unforeseeable to prevent liability. D e f e n d a n t s are correct in noting that many [*17] cases w h i c h hold that criminal attacks are foreseeable involve s itu a tio n s or products designed for use in circumstances r e la tin g to crime. For instance, dangerous consequences a r e presumed foreseeable when a product intended to r e p e l attackers fails upon use. See, e.g., Klages v. G e n e r a l Ordinance Equipment Co., 367 A.2d 303 (Pa. 1 9 7 6 ) . (Mace spray did not immediately stop attacker, as a d v e rtise d .) T h e re fo r e , the question continues to hinge on w h e t h e r or not Defendants could foresee or had a duty to fo r e se e n that an intruding aircraft would be destroyed by th e Soviet Union. The Court "must reach the question of lia b ility for attacks which are foreseeable in the sense th a t they are probable and predictable." Kline v. 1500 M a s s a c h u se tts Avenue Apartment Corp., 439 F.2d 477, 4 8 3 (D.C. Cir. 1970. Beyond the foreseeable risk, D e f e n d a n ts need not go. "It would be folly to impose

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1 9 8 5 U.S. Dist. LEXIS 17211, * l i a b i l i t y for mere possibilities." Kline v. 1500 M a s s a c h u se tts Avenue Apartment Corp., 439 F.2d at 4 8 3 . Duty extends only to those things which are o b j e c tiv e ly reasonable to expect, not to all things which m ig h t conceivably occur. This must be so because "[i]n o n e sense, almost nothing [*18] is entirely u n f o r e s e e a b le , since there is a very slight mathematical c h a n c e , recognizable in advance, that even the most fr e a k is h accident which is possible will occur, p a r t i c u l a r i l y if it has ever happened in history before." P r o s se r & Keeton at 297. Plaintiffs argue, however, that th e precise nature of the harm need not have been p r e d ic te d , noting that if some injury could have been f o r e s e e n , it would be enough to impose a duty. Cain v. V o n t z , 703 F.2d 1279 (llth Cir. 1983). However, in the c a s e cited for that proposition, the court noted that, in c o n n e c t io n with the harm suffered, "[a] dangerous s i t u a t i o n was created when the defendant failed to repair th e broken locks on a young woman's apartment door, It w o u l d not take a very foresighted person to be able to im a g in e the possible consequences of such an action." Id. a t 1283. Therefore, the resulting break-in and murder w e r e , under the circumstances of that case, easily within t h e "possible consequences." N o n e t h e l e s s , Plaintiffs argue that Defendants fo r e sa w the "exact danger encountered" by KAL 007. P la in tiffs ' Opposition at 12. It is their position that even t h e intentional nature of the Soviet action does not r e lie v e [*19] Defendants of a duty to have guarded a g a in s t attack by designing and manufacturing a n a v ig a tio n system which would have avoided Soviet a i r s p a c e . The contention that Soviet hostilities toward in tr u d in g but unarmed civilian aircraft should be e x p e c te d and guarded against by manufacturers negates a n y requirement that the Soviet Union behave r e s p o n s ib l y with regard to the protection of human lives a n d , in this instance, is tantamount to making Defendants in s u r e r s of Soviet state actions. M o r e o v e r, a duty to protect from harm can only flow fr o m an ability to protect from harm. In the cases cited b y Plaintiffs the scope of duty extended only to territory o r person over whom the defendants could exert control. E v e n in cases where a defendant is required to guard a g a i n s t intentional or criminal conduct by unknown third p e r s o n s there must be some contention that his s u p e r v i s io n over the situation could have made a d i ffe r e n c e . See Cullen v. BMW of North America, Inc., 6 9 1 F.2d 1097 (2d Cir. 1982) ("No amount of s u p e r v i s i o n by [defendant] would have enabled it to fo r e se e [third party actor's] thievery."). In this case, p r e v e n tio n of armed military attack by a foreign power w a s beyond [*20] the control of Defendants and th e re fo r e beyond their duty. The law does not impose a d u t y, the fulfillment of which is, for these Defendants, im p o s sib le . In any event, direct and deliberate military a tta c k was not a tactic to be expected. Being unexpected, th e r e was no duty to prepare for it. In light of the relevant c i r c u m s ta n c e s , the Court finds that Defendants had no d u t y to anticipate or guard against the Soviet action. W i t h o u t such a duty there can be no legal responsibility o r liability for plaintiffs' harm. "Superseding Cause" Analysis I n addition to the claim that no duty was owed P la i n tiffs ' decedents with respect to deliberate attack by a f o r e i g n power, Defendants urge the Court to find that, in th e circumstances presented, such an attack operated as a n independent, intervening cause of harm superseding a n y liability which might otherwise fall upon them. The l e g a l definition of a "superseding cause" is the act of a th ir d person or other force which by its intervention p r e v e n t s the actor from being liable for harm which his a n te c e d e n t negligence is a substantial factor in bringing a b o u t . Restatement (Second) of Torts § 440 (1977). This is true even though Defendants' [*21] negligence may h a v e created the situation which created the opportunity fo r the ultimate cause Restatement (Second) of Torts § 4 4 8 (1977). In the case before the Court, were there a le g a l duty to protect against the attack, which the Court h a s held there was not, the Soviet Union's action toward K A L 007 was sufficiently independent and intervening to c o n s titu te "superseding cause" as a matter of law. I n support of their contention that any liability on th e i r part is superseded by the fault of the Soviet Union, D e fe n d a n ts direct the Court's attention to The Lusitania, 2 5 1 F.2d 715 (S.D.N.Y. 1918). In that case, the Cunard S t e a m s h ip Company, Ltd. was alleged to have been n e g lig e n t for attempting to aid a merchant ship through a w a r zone on a trip from New York to Liverpool, E n g la n d . The ship was torpedoed without warning by G e r m a n submarines causing the deaths of approximately 1 , 2 0 0 persons. Although there had been explicit notice fr o m the German government that enemy merchant ships p a s s in g through certain waters would be destroyed, the c o u r t dismissed all claims against the steamship c o m p a n y , finding: I t is, of course, easy now, in the light of many later e v e n t s , added to preceding [*22] acts, to look back and s a y that the Cunard Line and its captain should have k n o w n that the German government would authorize or p e r m it so shocking a breach of international law and so f o u l an offense, not only against an enemy, but as well a g a i n s t peaceful citizens of a then friendly nation. But th e unexpected character of the act was best evidenced b y the horror which it excited in the minds and hearts of th e American people. T h e fault, therefore, must be laid upon those who are r e s p o n s ib l e for the sinking of the vessel, in the legal as w e ll as moral sense. It is therefore not the Cunard Line, p e t i tio n e r , which must be held liable for the loss of life a n d property. The cause of the sinking of the Lusitania

Case 4:05-cv-40170-FDS

Document 70-11

Filed 02/16/2007

Page 7 of 7
Page 6

1 9 8 5 U.S. Dist. LEXIS 17211, * w a s the illegal act of the Imperial German government, a c t in g through its instrument, the submarine commander, a n d violating a cherished and humane rule observed until th i s war, by even the bitterest antagonists. The court utilized both the concepts of foreseeability and s u p e r s e d i n g cause when it concluded that the Cunard L i n e could not be held accountable for the deliberate act o f the German government. Similarly, Defendants in this c a se cannot be held accountable for the [*23] u n e x p e c t e d act of aggression by the Soviet Union. " L ia b ility for compensation for injury alleged to have b e e n caused by negligence follows only if it is proven th a t the negligence was a proximate cause of the injury. A n intervening cause which is independent of the n e g lig e n c e absolves the defending negligent actor of lia b ility . " Hicks v. United States, 511 F.2d at 420. From D e fe n d a n t's vantage point, the Soviet missile attack upon th e commercial airliner was an intervening force and a " s u p e r s e d i n g cause" of Plaintiffs' injuries. Under this a n a l y s i s , Defendants are insulated from any liability b e c a u s e of the unexpected and needlessly tragic way in w h ic h the KAL 007 intrusion into Soviet airspace was h a n d le d . Defendants cannot be found liable where P la i n tiffs ' injuries result from an independent and in te r v e n in g force, the danger of which was neither a n tic i p a t e d nor increased by any negligence of theirs. CONCLUSION " P r o x im a te cause is designed not only to allow r e c o v e r y for damages incurred because of another's act, b u t also to define such limits on recovery as are e c o n o m ic a lly and socially desirable." Klages v. General O r d i n a n c e Equipment Co., 367 A.2d 304, 313 (Pa. [*24] 1 9 7 6 ) . The Court is aware that "approximate causation, i n c l u d i n g the question of superseding cause, however, is o r d in a ri l y a question of fact for the jury." Rieser v. D is tr ic t of Columbia, 563 F.2d at 480. Nonetheless, in t h i s case, the issues presented are so clear that the Court m a y decide them as a matter of law. "Under Fed. R. Civ. P . 56(c), summary judgment is proper only where there is no genuine issue of material fact and, viewing the e v i d e n c e in light most favorable to the nonmoving party, t h e movant is entitled to prevail as a matter of law." B y e r s v. Burleson, 713 F.2d 856, 859 (D.C. Cir. 1983). " I n d e e d , the record must reveal that the party opposing th e motion would not be entitled to prevail under any d i s c e r n i b l e circumstances." Kreuzer v. American A c a d e m y of Periodontology, 735 F.2d 1479, 1495 (D.C. C i r . 1984). In this case, the Soviet act of firing upon an u n a r m e d commercial airplane over the Sea of Japan, k n o w in g this would inevitably result in the loss of life of a ll persons on board was, at the least, a deviation from a c c e p t e d international norms, or, at the most, all that it h a s been characterized to be by our government. See, P u b . L. No. 98-98, 97 [*25] Stat. 715 (1983). W h a t it w a s not is "expected," or, in the language of the law, " fo re se e a b le ." A fte r all inferences are viewed in light most fa v o r a b le to Plaintiffs, the circumstances presented are so e x c e p tio n a l, so extraordinary that Plaintiffs cannot p r e v a il. No jury in the land could reasonably find that t h i s chain of events, assumed to have begun with e q u ip m e n t failure and ended with an act of military a g g r e s s io n by a world power against a commercial a i r lin e r , was foreseeable to the airplane and equipment m a n u f a c tu r e r s . Under either duty or superseding cause a n a ly s i s , this tragedy cannot be found to have been p r o x i m a t e ly caused by these Defendants. W h ile any n e g l ig e n c e on Defendant's part may have been in part r e s p o n s ib l e for placing KAL 007 at the site, such original n e g l ig e n c e was not the proximate cause of the disaster. T h e re fo r e , the motion for summary judgment, filed by D e fe n d a n t Boeing, and the motion to dismiss, filed by D e fe n d a n t Litton, also considered under Fed. R. Civ. P. 5 6 (c ), must be granted. A n a p p ro p ria te M em o rand um . ORDER I n accordance with the Memorandum entered this d a te , it is by the Court this day 1985, O R D E R E D , that the against [*26] Defendant B o e i n g Company and against Defendant Litton Systems, I n c . are DISMISSED. O rder a cco m p anies this