As articulated by the United States Supreme Court, the government contractor defense provides that “[l]iability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” Boyle v. United Techs. Corp., 487 U.S. 500, 512 (U.S. 1988). The Connecticut Supreme Court recognized the government contractor defense in Miller v. United Technologies Corp., 233 Conn. 732 (Conn. 1995). Nonetheless, a Connecticut Superior Court has just refused to apply the government contractor defense to a claim arising out of a road reconstruction project.
In Fox v. Town of Stratford, 2012 Conn. Super. LEXIS 1443 (Conn. Super. Ct. June 1, 2012), the plaintiff alleged that his property was damaged by flooding caused by a road reconstruction project. The contractor asserted that, under the authority of Miller and Boyle, it cannot be held liable for plaintiff’s alleged damages because it strictly complied with the government’s plans and specifications. The court, however, denied the contractor’s motion for summary judgment because:
1. The United States was not a party to the action;
2. The Federal Torts Claim Act was not applicable;
3. The government contractor defense has no application to claims of trespass or nuisance; and
4. The contractor has not cited any authority that supports its claim for immunity merely because it complied with the state’s plans and specifications.
Thus, the government contractor defense failed in this case but should not be abandoned in future litigation.
The origin of the government contractor defense is in the production of military equipment made in accordance with the government’s exact specifications. Obviously, there are important policy considerations associated with the government’s ability to obtain equipment necessary for national defense. Nonetheless, the same reasoning can and should be expanded.
If a contractor who builds a helicopter in accordance with military specifications cannot be liable to third parties, then why should a contractor, who builds a road in accordance with state specifications, be treated any differently? Importantly, the Fox decision is not binding authority. Legal counsel representing heavy highway contractors should not walk away from the government contractor defense.
For more information or if you have any questions about the foregoing, please give me a call.
Scott Orenstein
(203) 640-8825