Government contractors can face lawsuits based in tort when the products they provide to the government cause injury or death. For instance, when a military plane crashes and results in the death of its operator, the estate of the decedent will likely sue the contractor that manufactured the plane. The plaintiff institutes legal proceedings against the commercial entity instead of the government to avoid an immunity defense and bar to recovery.
However, the U.S. Supreme Court has extended immunity to contractors by establishing the government contractor affirmative defense. It is a three-part test that if met shields a government supplier from liability for tort claims.
In Boyle v. United Technologies Corp., 487 U.S. 500 (1988), the Court held that if a contractor can show 1) the government approved reasonably precise specifications, 2) the equipment conformed to those specifications, and 3) the supplier warned the United States about dangers in the use of the equipment known to the supplier but not to the United States, then it will be immune from tort liability.
Prospectively, therefore, contractors can posture to protect themselves. During the design, development, and manufacturing processes, contractors will want to keep in mind these three factors, ensure they are met, and keep contemporaneous records of such. Then, when confronted with a lawsuit based in tort for the design defect of a product it supplied to the government, a contractor will be well-positioned to meet the elements of this defense and forestall costly litigation and possible liability.
Weitz Morgan serves as litigation counsel to general counsels, business owners, and government contractors throughout Texas and nationally. This article is basic in nature, for the purpose of general interest and education, and limited to the law of the State of Texas.