PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
COLGAN AIR, INCORPORATED,
Plaintiff-Appellant,
v. No. 06-1069
RAYTHEON AIRCRAFT COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(1:05-cv-00213-TSE)
Argued: May 24, 2007
Decided: October 18, 2007
Before KING and GREGORY, Circuit Judges, and
Frank D. WHITNEY, United States District Judge for the
Western District of North Carolina, sitting by designation.
Affirmed in part, vacated in part, and remanded by published per
curiam opinion.
COUNSEL
ARGUED: Mark Andrew Dombroff, DOMBROFF & GILMORE,
P.C., McLean, Virginia, for Appellant. Michael Gordon Jones, MAR-
TIN, PRINGLE, OLIVER, WALLACE & BAUER, L.L.P., Wichita,
Kansas, for Appellee. ON BRIEF: Morgan W. Campbell, Thomas B.
Almy, DOMBROFF & GILMORE, P.C., McLean, Virginia, for
2 COLGAN AIR v. RAYTHEON AIRCRAFT
Appellant. Robert T. Hall, Holly Parkhurst Essing, HALL, SICKELS,
FREI & KATTENBURG, Reston, Virginia; William L. Oliver, Jr.,
MARTIN, PRINGLE, OLIVER, WALLACE & BAUER, L.L.P.,
Wichita, Kansas, for Appellee.
OPINION
PER CURIAM:
Plaintiff Colgan Air, Inc., ("Colgan") appeals the district court’s
order granting summary judgment for Defendant Raytheon Aircraft
Company ("Raytheon") on Colgan’s claims of negligence, strict lia-
bility, and breach of express and implied warranties arising out of the
crash of a Beech 1900D aircraft (Registration No. N240GJ)
("Aircraft") that resulted in the death of the pilot and co-pilot. Colgan
alleged that several errors in the maintenance manual for the Aircraft,
which was created and published by Raytheon, caused the fatal crash.
In a published decision awarding summary judgment for Raytheon,
Colgan Air, Inc. v. Raytheon Aircraft Co., 404 F. Supp. 2d 893 (E.D.
Va. 2005), the district court held that the Used Airliner Airplane War-
ranty, executed by Colgan as part of its lease of the Aircraft, con-
tained a waiver of right, which barred all of Colgan’s claims against
Raytheon. We affirm in part, vacate in part, and remand for further
proceedings consistent with this opinion.
I.
A.
Colgan is a Virginia corporation that operates a regional air carrier
in Virginia. As part of its business operation, Colgan contracted to
lease several aircraft from both Raytheon Aircraft Credit Corporation
("RACC") and Raytheon Airline Aviation Services, LLC, ("RAAS").
RACC financed and leased to Colgan the Aircraft that is the subject
of this matter.
Raytheon, a Kansas corporation, manufactured the Aircraft and
also created, edited, and published the maintenance manuals for the
COLGAN AIR v. RAYTHEON AIRCRAFT 3
Aircraft. Raytheon is a separate and independent company from the
lessors of the Aircraft; however, Raytheon and RACC are both
wholly-owned subsidiaries of Raytheon Aircraft Holdings, Inc.
RAAS is a wholly-owned subsidiary of RACC and otherwise has no
direct relationship to Raytheon.
Colgan executed several documents throughout the process of leas-
ing the Aircraft, including the Definitive Agreement, Lease Agree-
ment, and Side Letter Agreement that incorporated and modified the
Used Airliner Airplane Warranty. On August 1, 2002, Colgan,
RAAC, and RAAS1 entered into the "Definitive Agreement," whereby
the parties agreed to certain terms that would govern transactions
among them as they related to the leasing of several aircraft. Essen-
tially, the Definitive Agreement was the broad contractual statement
regarding how all the aircraft were going to be leased by Colgan from
RACC and RAAS. Among other general provisions that would gov-
ern the leasing of aircraft, the Definitive Agreement stated that RAAS
would provide to Colgan "Support Items," which included a mainte-
nance manual.2 Additionally, the Definitive Agreement provided that
the aircraft were to be leased pursuant to the terms of a form lease,
which was attached to the Definitive Agreement as Appendix 1 and
entitled "Operating Lease Agreement between Raytheon Aircraft
Credit Corporation and Colgan Air, Inc." ("Lease Agreement"). Col-
gan and RACC signed the Lease Agreement for the Aircraft on Janu-
ary 3, 2003, and the Aircraft entered service with Colgan the very
next day.
The Lease Agreement specifically provided that RACC was not the
manufacturer of the Aircraft, stated that it was providing the Aircraft
"as is," and disclaimed all warranties and liability. The Lease Agree-
1
Notably, RAAS and RACC are not parties to this lawsuit, notwith-
standing the fact it was RAAS and RACC — not Raytheon — who
entered into the Definitive Agreement, Lease Agreement, and Side Letter
Agreement, all of which governed Colgan’s lease of the Aircraft.
2
The parties dispute whether or not RAAS actually provided Colgan
with a maintenance manual under the terms of the Definitive Agreement.
The parties presented conflicting evidence on this fact, thereby creating
an issue of fact for the jury. Because this bears on our reversal of the dis-
trict court’s ruling, this issue is more fully developed in our analysis.
4 COLGAN AIR v. RAYTHEON AIRCRAFT
ment further provided that Colgan was under an obligation to main-
tain the Aircraft in accordance with the manufacturer’s maintenance
manuals and in compliance with all applicable Federal Aviation Reg-
ulations. The lease also stated that any manufacturer warranty would
be subject to a separate contractual agreement, called the Used Air-
liner Airplane Warranty.
On January 9, 2003, RAAS supplied the Used Airliner Airplane
Warranty pursuant to a Side Letter Agreement between RAAS and
Colgan, which provided that the terms of the Used Airliner Airplane
Warranty were otherwise applicable to the lease transaction. Ray-
theon was not a party to this Side Letter Agreement, although Ray-
theon was the issuer of the Used Airliner Airplane Warranty. The
Used Airliner Airplane Warranty stated that Raytheon warrants that
"each part of the Aircraft," except avionics equipment and engines,
were free from defects in materials, workmanship, or design for a
period of thirty days. (J.A. at 361). The Side Letter Agreement
between Colgan and RAAS extended the manufacturer’s warranty for
the Aircraft from thirty days to ninety days. (J.A. at 359).
The Used Airliner Airplane Warranty also contained a disclaimer
of warranties and an exclusive remedy provision. Specifically, the
Used Airliner Airplane Warranty stated the following:
3. TO THE EXTENT ALLOWED BY APPLICABLE
LAW, BUYER WAIVES AS TO RAYTHEON AND
SELLER ALL OTHER WARRANTIES, WHETHER
OF MERCHANTABILITY, FITNESS OR OTHER-
WISE. THERE ARE NO WARRANTIES WHICH
EXTEND BEYOND THE DESCRIPTION ON THE
FACE HEREOF.
4. TO THE EXTENT ALLOWED BY APPLICABLE
LAW, THE OBLIGATIONS OF RAYTHEON SET
FORTH HEREIN SHALL BE THE EXCLUSIVE
REMEDIES FOR ANY BREACH OF WARRANTY
HEREUNDER, AND, TO THE SAME EXTENT NEI-
THER RAYTHEON NOR SELLER SHALL BE LIA-
BLE FOR ANY GENERAL, CONSEQUENTIAL OR
INCIDENTAL DAMAGES, INCLUDING, WITHOUT
COLGAN AIR v. RAYTHEON AIRCRAFT 5
LIMITATION, ANY DAMAGES FOR DIMINUTION
OF MARKET VALUE, LOSS OF USE OR LOSS OF
PROFITS, OR ANY DAMAGES TO THE AIRCRAFT
CLAIMED BY BUYER OR ANY OTHER PERSON
OR ENTITY UPON THE THEORIES OF NEGLI-
GENCE OR STRICT LIABILITY IN TORT.
(J.A. at 361).
B.
On August 26, 2003, the Aircraft crashed off the coast of Massa-
chusetts shortly after takeoff, destroying the Aircraft and killing the
only two passengers onboard: the pilot and co-pilot. Immediately
prior to the accident, Colgan’s mechanics had performed a mainte-
nance procedure installing a new elevator trim tab cable. Colgan’s
maintenance crew performed the procedure using the maintenance
manual for the Aircraft, which was published by Raytheon.3 The par-
ties agree that Colgan’s maintenance personnel, referencing the main-
tenance manual then in effect, installed the trim tab cable such that
the trim tabs operated in reverse.
The REPS Manual contained a section within Chapter 27 entitled
"Flight Controls-Description and Operation," which included the fol-
lowing language:
Proper winding of the cables on the pedestal and actuator
drums, is shown in . . . the Elevator Tab Control Cable
Winding illustration in Chapter 27-30-04 for elevator tabs,
ensures against crossing the cables and causing improper
trim tab movement.
3
As noted by the district court, Raytheon issued maintenance manuals
in both paper and electronic format. The electronic version was called the
Raytheon Electronic Publications Program Maintenance Library for the
Beech 1900 Aircraft ("REPS Manual"). Colgan used both types of manu-
als in maintaining their fleet of 1900 Series aircraft. It is undisputed that
the substantive content of both manuals was identical. With respect to the
maintenance performed on the trim tab cables at issue here, Colgan con-
tends it exclusively used the REPS Manual.
6 COLGAN AIR v. RAYTHEON AIRCRAFT
(J.A. at 156A). Clicking on the underlined portion of the language
above led to Figure 201 of Chapter 27-30-04, which depicted the for-
ward trim cable drum backwards, or 180 degrees from the properly
installed position, and shows the open, keyed side of the drum,
instead of the flat side. Colgan claimed that its maintenance crew fol-
lowed the REPS Manual’s directions as depicted in Figure 201,
resulting in the reversal of the action of the elevator manual trim sys-
tem.
Colgan also asserted that the table of contents for Chapter 27 failed
to contain a reference or hyperlink to an operational check that would
have revealed the problem with the trim tabs. Because Colgan’s main-
tenance personnel did not locate or find the appropriate operational
check, which was included in both the paper and REPS versions of
the manual, they proceeded to devise their own check. Their check
was not sufficient to disclose the problem with the Aircraft’s elevator
trim system. Colgan contended that these two defects with the REPS
Manual — the reverse drawing and the missing hyperlink — proxi-
mately caused the Aircraft to crash. These defects appeared in all rele-
vant versions of the manual, both electronic and paper.
As a result of the maintenance procedure, when cockpit controls
were used to set the trim tabs at a nose up position, the trim tabs actu-
ally moved to a nose down position. Because the trim tabs operated
in reverse, the Aircraft was unable to gain altitude following take-off
and ultimately crashed. Neither maintenance crew nor the pilots dis-
covered the error prior to the fatal flight.
C.
Colgan filed a complaint in the United States District Court for the
Eastern District of Virginia on the basis of diversity of citizenship,
alleging state law claims against Raytheon for breach of express and
implied warranties, negligence, and strict liability. Raytheon disputed
all claims and also asserted that any defects in the manual did not
proximately cause the accident. Raytheon also defended on the basis
that the maintenance manual was part of the Aircraft such that the
claims were barred by the disclaimer in the Used Airliner Airplane
Warranty. Following discovery, both parties moved for summary
judgment.
COLGAN AIR v. RAYTHEON AIRCRAFT 7
In granting summary judgment for Raytheon, the district court did
not rule on the cause of the accident, but proceeded upon the premise
that the defects in the maintenance manual existed and were the prox-
imate cause of the crash. After considering the Used Airliner Airplane
Warranty, the district court concluded the manual was "part of the
Aircraft" and therefore governed by the terms of the Used Airliner
Airplane Warranty. Consequently, Colgan had no warranty rights
against Raytheon except the ninety-day limited warranty, which had
expired by the time of the crash. The district court also ruled that, by
entering into the Used Airliner Airplane Warranty, Colgan had
waived all claims based on negligence or strict liability in tort that it
might have had against Raytheon. The court noted that its determina-
tion that Colgan alone bore the risk of loss for the Aircraft "from any
cause whatsoever" was consistent with all the documents accompany-
ing the transaction, including those executed by RAAS and RACC
and where Raytheon was not a party.
In an alternative ruling, the district court rejected Colgan’s argu-
ment that the language within the manual rose to the level of an
express warranty and also concluded that Massachussets law did not
permit Colgan’s claim for strict liability. For these reasons, the district
court granted summary judgment in favor of Raytheon on all claims,
and Colgan timely appealed.
II.
Our standard of review in this case is well-settled. We review de
novo a district court’s order granting summary judgment and view the
facts in the light most favorable to the nonmoving party. Beverati v.
Smith, 120 F.3d 500, 503 (4th Cir. 1997). Because we sit in diversity
in this case, we must apply the substantive law of the forum state
including its choice of law rules. Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496-97 (1941); Erie R.R. Co. v. Tompkins, 304
U.S. 64, 79 (1938).
Because this action was filed in Virginia, we look to that state’s
laws to determine which state’s laws govern Colgan’s claims. Vir-
ginia law looks favorably upon choice of law clauses in a contract,
giving them full effect except in unusual circumstances, none of
which exist here. See, e.g., Hitachi Credit America Corp. v. Signet
8 COLGAN AIR v. RAYTHEON AIRCRAFT
Bank, 166 F.3d 614, 624 (4th Cir. 1999). Here, the Used Airliner Air-
plane Warranty included a choice of law clause designating the law
of Kansas. Thus, Kansas law is applicable to our analysis regarding
the application of the Used Airliner Airplane Warranty.
Under Virginia law, the rule of lex loci delicti, or the law of the
place of the wrong, applies to choice-of-law decisions in tort actions.
Milton v. IIT Research Inst., 138 F.3d 519, 522 (4th Cir. 1998); Katz
v. Odin, Feldman & Pittleman, P.C., 332 F. Supp. 2d 909, 914 n.4
(E.D. Va. 2004); Dreher v. Budget Rent-A-Car Sys., Inc., 634 S.E.2d
324, 327 (Va. 2006). Under the rule of lex loci delicti, Massachusetts
law, the situs of the crash, applies to the analysis of the claims for
negligence, strict liability, and breach of express and implied warran-
ties.
III.
A.
Colgan first contends the district court erred in granting summary
judgment for Raytheon pursuant to the Used Airliner Airplane War-
ranty, which the district court concluded barred all of Colgan’s
claims. The gravamen of Colgan’s argument on appeal is that the law
does not support a ruling that the maintenance manual was "part of
the Aircraft." According to Colgan, this faulty conclusion by the dis-
trict court resulted in error in the court’s ultimate ruling that the dis-
claimer and waiver of rights contained in the Used Airliner Airplane
Warranty precluded Colgan’s claims against Raytheon for defects
contained in the maintenance manual. We agree.
The district court ruled that the maintenance manual was "part of
the Aircraft" as a matter of law for several reasons: (1) other courts
have concluded that "a product, such as an aircraft, and its mainte-
nance or other operational manuals are a single, integrated product,"
Colgan Air, Inc., 404 F. Supp. 2d at 903 (citations omitted); (2) the
Federal Aviation Regulations support the conclusion that an aircraft’s
maintenance manual is an integrated part of the aircraft; and (3) the
fact that Colgan may have purchased the maintenance manual in a
separate transaction is immaterial to determining that a maintenance
COLGAN AIR v. RAYTHEON AIRCRAFT 9
manual and an aircraft are a single product. We address each of these
conclusions in turn and deem them erroneous.
Colgan first argues that the district court erred in concluding that
the maintenance manual and the Aircraft were a "single, integrated
product" because the maintenance manual, like a flight manual, is "in-
dispensable to maintain the aircraft’s airworthiness certificate without
which the aircraft cannot be flown or used." Id. at 903. For these rea-
sons, according to the district court, the maintenance manual was
"part of the Aircraft" such that the Used Airliner Airplane Warranty
also applied to bar claims arising from the use of the maintenance
manual.
In support of its ruling on an issue of first impression under Kansas
law, the district court looked to various jurisdictions for guidance and
broadly applied cases where the courts have suggested that a flight
manual, which Federal Aviation Regulations require to be onboard an
aircraft at all times, was not a separate product from the aircraft. See
Alexander v. Beech Aircraft Corp., 952 F.2d 1215, 1220-21 (10th Cir.
1991) (holding that replacement flight manual was not a separate
product for purposes of the Indiana Products Liability Act and the
statute of repose); see also Caldwell v. Enstrom Helicopter Corp., 230
F.3d 1155, 1157 (9th Cir. 2000) (holding that flight manual is "part"
of a helicopter that does not restart the applicable statute of repose
within the meaning of the General Aviation Revitalization Act).
Nearly all of the cases cited by the district court generally consid-
ered the issue of whether a supplement to a flight manual, which
failed to include a warning regarding defects in the aircraft, consti-
tuted a continuing failure to warn and could restart the statute of
repose for limitations purposes. The courts in those cases held that the
duty to warn arose at the time of the transaction involving the sale of
the aircraft, and the failure to add a warning in subsequent updates to
the flight manual could not be used to circumvent the statute of
repose. See Schamel v. Textron-Lycoming, 1 F.3d 655 (7th Cir. 1993)
(affirming district court’s dismissal of action for failure to warn of
defective condition in engine of aircraft as being barred by the statute
of repose); Alexander, 952 F.2d at 1222 (rejecting plaintiff’s argu-
ment that operator manual/handbook was replacement part for pur-
poses of statute of repose; holding the instruction page was not a
10 COLGAN AIR v. RAYTHEON AIRCRAFT
separate product so as to recommence the running of the statute of
repose).
None of the cases relied on by the district court presented facts
where the defect existed in the flight manual alone but was not pres-
ent in the aircraft. Had the defect existed solely in the flight manual,
these cases might carry more weight in the case now before us. See
Driver v. Burlington Aviation, Inc., 430 S.E.2d 476 (N.C. Ct. App.
1993) (recognizing that a manual can constitute a separate product
from an aircraft for purposes of statute of repose when: (1) the defect
only exists in the manual; (2) the relevant product liability act permits
such a suit; and (3) the manual was obtained in a separate transaction
apart from and following the lease or purchase of the aircraft). Similar
to Driver, Colgan has only asserted claims arising out of the defect
in the manual and has not made any allegation that the Aircraft itself
was defective. Thus, although its central issue concerns the statute of
repose, Driver is more analogous to the case at bar — more so than
Schamel, Alexander, and other cases cited in the district court’s order.
Nevertheless, the controlling issues in these cases concerned a duty
to warn and the statute of repose — two issues not before us in this
matter.
These cases are further inapplicable because, for purposes of analy-
sis under these facts, a maintenance manual is not sufficiently similar
to a flight manual. A flight manual is used by the pilot and is "neces-
sary to operate the aircraft," Caldwell v. Enstrom Helicopter Corp.,
230 F.3d 1155, 1157 (9th Cir. 2000), whereas a maintenance manual
"outline[s] procedures for the troubleshooting and repair of the air-
craft" for the mechanic. Emory v. McDonnell Douglas Corp., 148
F.3d 347, 351 (4th Cir. 1998). Moreover, Federal Aviation Adminis-
tration ("FAA") regulations require a flight manual to be onboard the
aircraft. See 14 C.F.R. §§ 121.133, 121.139 (2007). Because a flight
manual must be onboard the aircraft, we understand why a court may
consider it to be "part of the aircraft" for statute of repose purposes.
On the contrary, we are unaware of any federal regulation requiring
a maintenance manual to be onboard the aircraft. A maintenance man-
ual, unlike a flight manual, can be used on multiple (albeit identical
model) aircraft, which signifies the possibility that a maintenance
hangar or other similar facility may be the appropriate place to keep
a maintenance manual. For example, the Federal Aviation Regula-
COLGAN AIR v. RAYTHEON AIRCRAFT 11
tions expressly contemplate that carriers will arrange for independent
contractors to perform maintenance: "A certificate holder may make
arrangements with another person for the performance of any mainte-
nance, preventive maintenance, or alterations." 14 C.F.R.
§ 121.363(b). For these reasons, the district court’s reliance on the
cases involving flight manuals is misplaced. Accordingly, we reject
the district court’s conclusion, based on the line of case authority
involving flight manuals, that a maintenance manual is part of the air-
craft as a matter of law.
Next, Colgan contends that the district court erroneously concluded
that Federal Aviation Regulations support treating a maintenance
manual and the Aircraft as a single, integrated product. The district
court ruled that because "an aircraft’s maintenance manual is essential
to maintaining an aircraft’s airworthiness" under the Federal Aviation
Regulations, "an aircraft’s maintenance manual is analogous to an
‘on-off’ switch that must be turned on before the aircraft can be
flown." Colgan Air, Inc., 404 F. Supp. 2d at 904. Although we agree
federal regulations require aircraft operators to obtain airworthiness
certificates before flying the aircraft, the airworthiness standards spe-
cifically contemplate and approve alternate methods to maintain the
aircraft. Indeed, 14 C.F.R. § 43.13 (2007) provides:
Each person performing maintenance, alteration, or preven-
tive maintenance on an aircraft, engine, propeller, or appli-
ance shall use the methods, techniques, and practices
prescribed in the current manufacturer’s maintenance man-
ual or Instructions for Continued Airworthiness prepared by
its manufacturer, or other methods, techniques, and prac-
tices acceptable to the Administrator . . . .
(Emphasis added). Recognizing that a maintenance manual is an
acceptable means of compliance, it is not the sole means by which an
operator may obtain airworthiness. Therefore, because a maintenance
manual is not "essential" to maintaining an aircraft’s airworthiness
under the Federal Aviation Regulations, it follows that the federal
regulations do not support a conclusion that, as a matter of law, a
maintenance manual is a component of an aircraft, nor do the regula-
tions indicate that the two constitute a single, integrated product as a
matter of law.
12 COLGAN AIR v. RAYTHEON AIRCRAFT
Finally, Colgan argues the district court erred in concluding that "it
is immaterial whether Colgan received the maintenance manuals pur-
suant to a subscription it paid for . . . or whether the particular manu-
als in issue were provided by Raytheon free of charge." Colgan Air,
Inc., 404 F. Supp. 2d at 905. The record clearly demonstrates an issue
of fact exists as to whether the maintenance manual was provided to
Colgan in connection with the Lease Agreement and other documents
related to the Used Airliner Warranty. Specifically, the parties dispute
the relationship between the maintenance manual and the Aircraft,
including the temporal and financial circumstances under which Col-
gan acquired the manuals. As mentioned above, the parties disagree
as to whether RAAS actually provided Colgan with a maintenance
manual under the terms of the Definitive Agreement. We disagree
with the district court’s conclusion that these facts are immaterial to
resolution of the issue surrounding the Used Airliner Airplane War-
ranty. To the contrary, resolution of this fact is relevant because it
bears directly on the issue of whether the parties intended and consid-
ered the maintenance manual to be "part of the Aircraft" so as to make
the Used Airliner Airplane Warranty applicable.
The parties presented conflicting evidence on this fact, thereby cre-
ating an issue of fact for the jury. Colgan asserted that it acquired the
manual in a separate transaction from Raytheon apart from and inde-
pendent of the Definitive Agreement. In support of this contention,
Colgan presented affidavits, purchase orders, invoices, and check
stubs to demonstrate that RAAS did not provide a REPS manual (nor
any other maintenance manual), or paper maintenance manual, along
with the Aircraft. Instead, Colgan argued it purchased the REPS Man-
ual directly from Raytheon in a separate transaction, along with the
subscription service to keep it updated. Further, Colgan asserted that
Raytheon did not provide a single free maintenance manual in either
paper or REPS form between early 2001 and the date of the accident.
On the other hand, Raytheon made a contrary contention and submit-
ted its own affidavits and documents to the district court in support
of its position that the maintenance manual was provided free of
charge in connection with and in satisfaction of the Definitive Agree-
ment.
This issue of fact is further complicated by the Raytheon Aircraft
Company 1900D Airliner Specifications ("Specifications"), which
COLGAN AIR v. RAYTHEON AIRCRAFT 13
were prepared by Raytheon and listed in detail what was to be
included in each aircraft leased by Colgan from RAAS. The Specifi-
cations failed to list a maintenance manual anywhere in the document.
(J.A. at 469-74). In contrast, the Specifications listed the Airplane
Flight Manuals, which, as discussed above, must be onboard an air-
craft. Together, the relationship between the parties and the docu-
ments surrounding the lease of the Aircraft raise an issue of fact as
to whether Raytheon considered the maintenance manual to be "part
of the Aircraft" or an individual product to be acquired via a separate
transaction.
In sum, we hold the district court erred in concluding as a matter
of law that the maintenance manual is "part of the Aircraft" under the
terms of the Used Airliner Airplane Warranty. Neither the Federal
Aviation Regulations nor the authority relied on by the district court
compel such a result under these facts. Instead, an issue of fact exists
as to whether the Used Airliner Airplane Warranty and its attendant
disclaimer regarding "each part of the Aircraft" applies to Colgan’s
claims arising out of the defective maintenance manual.
B.
Colgan also assigns error to the district court’s alternative ruling,
whereby it concluded that Massachusetts law barred Colgan’s claims
for strict liability and breach of express warranty.
1.
Turning first to the strict liability claim, the district court ruled that
Massachusetts law does not recognize a cause of action for strict lia-
bility in tort. See Sebago, Inc. v. Beazer East, Inc., 18 F. Supp. 2d 70,
89 (D. Mass. 1998) ("Massachusetts does not apply § 402A of the
Restatement (Second) of Torts, ‘and, consequently, there is no recov-
ery on the basis of strict liability in tort under Massachusetts law.’")
(quoting Ramcharran v. Carraro Graphic Equipment, Inc., 823 F.
Supp. 63, 67 (D. Mass. 1993); Mason v. General Motors Corp., 490
N.E.2d 437, 442 (Mass. 1986)). Instead, as conceded by Raytheon in
its brief, "While the scope of liability under Massachusetts’ breach of
the implied warranty of merchantability may be nearly congruent with
that of strict liability, the cause of action remains one for breach of
14 COLGAN AIR v. RAYTHEON AIRCRAFT
implied warranty of merchantability, not strict liability." (Brief for
Defendant-Appellee, p. 48). In its reply brief, Colgan agreed with
Raytheon that a separate claim for strict liability is not permitted
under applicable law and that it may recover instead under the theory
of breach of implied warranty. Colgan appears to have waived its
appeal of this portion of the district court’s order. Furthermore, rele-
vant case law cited above supports the district court’s ruling. We
therefore affirm that portion of the district court’s order granting sum-
mary judgment for Raytheon on Colgan’s claim for strict liability.
2.
Next, we consider whether the district court erred in ruling that the
statements in the maintenance manual did not constitute an express
warranty as a matter of law.
Colgan contends that the following statement in the maintenance
manual constitutes an express warranty under Massachusetts law:
Proper winding of the cables on the pedestal and actuator
drums, is shown in . . . the Elevator Tab Control Cable
Winding illustration in Chapter 27-30-04 for elevator tabs,
ensures against crossing the cables and causing improper
trim tab movement.
(J.A. at 156A (second emphasis added)).
"Express warranties are defined by Massachusetts statute to include
affirmations of fact or promises made by sellers relating to their
goods, as well as descriptions or samples of the goods." Wajda v. R.J.
Reynolds Tobacco Co., 103 F. Supp. 2d 29, 35 (D. Mass. 2000) (cit-
ing Mass. Gen. Laws ch. 106, § 2-313). Generally, it is a question of
fact for the jury or fact-finder as to whether a statement gives rise to
an express warranty. 18 Samuel Williston and Richard A. Lord, A
Treatise on the Law of Contracts § 52:45 (4th ed. 2007) (citing, inter
alia, Goldman v. Barnett, 793 F. Supp. 28 (D. Mass. 1992)). Massa-
chusetts law recognizes that a jury may find an express warranty
where the product contains statements promising that the product per-
forms in a certain manner. For example, in Roth v. Ray-Stel’s Hair
COLGAN AIR v. RAYTHEON AIRCRAFT 15
Stylists, Inc., 470 N.E.2d 137 (Mass. App. Ct. 1984), the court
affirmed a jury verdict finding a breach of an express warranty where
the product did not perform as promised.
Colgan contends the maintenance manual promises that if the user
follows the instructions contained therein — specifically, the illustra-
tion in Chapter 27-30-04 — then the cables will not cross and the trim
tabs will move properly. Although the statement in this case appears
to be buried on one of thousands of pages in the maintenance manual,
a jury could nonetheless find that it is a statement that promises how
the maintenance manual performs, i.e., that it "ensures" against
improper trim tab operation. Furthermore, a jury could reasonably
find that in using the product as directed, the maintenance manual
failed to perform as warranted, thereby causing the fatal crash. There-
fore, we conclude that an issue of fact exists for the jury as to whether
the statement constitutes an express warranty.
Notably, the district court relied on Jones v. Walter Kidde Portable
Equipment, Inc., 183 F.3d 67, 70 (1st Cir. 1999) (holding that state-
ment in instructional manual does not constitute express warranty as
a matter of law). Jones, however, does not support the district court’s
conclusion, but rather shows another issue of fact concerning Col-
gan’s claim for breach of express warranty. The holding in Jones
requires that a single clause in a manual not be read in isolation of
accompanying provisions of the manual. In Jones, the court noted,
"Where the relied on statement is flanked with another, IMPOR-
TANT advice that something may go wrong and instructions how to
guard against it, we hold as a matter of law that the combination can-
not be read as a warranty that the event will not happen." Id. Thus,
Jones stands for the proposition that an assertion in an operation man-
ual does not, as a matter of law, create an express warranty if it is sur-
rounded by text that so qualifies and limits its meaning so that it
cannot be fairly understood as a promise about the operation of the
product to which it pertains.
Here, it is unclear from the record whether a similar qualifying
statement — which was so significant in the Jones court’s ruling —
appears in either relevant verison of the maintenance manual at bar.
A print-out of the electronic page containing the statement provides
at the bottom: "The selection may not include all relevant data, such
16 COLGAN AIR v. RAYTHEON AIRCRAFT
as: process specifications, Warnings, Cautions & Notes that may be
found elsewhere in the complete document or in other applicable ser-
vice information . . . ." (J.A. at 156A). Colgan argues this note falls
short of the standard set forth in Jones. Although the note appears to
be advisory, it remains unclear whether the selected text qualifies or
limits the manual’s statement that adherence to the Elevator Tab Con-
trol Cable Winding Illustration would "ensure against crossing the
cables and causing improper trim tab movement." (J.A. at 156). Con-
sequently, a jury question exists concerning what the note at the bot-
tom of the print-out means and the effect of this statement. A
reasonable trier of fact could find that the note about the print func-
tion of the electronic manual did not negate the manual’s statement
on how the Aircraft’s Elevator Tab Control would operate. Thus, the
Jones case fails to support the district court’s ruling that the statement
in the maintenance manual does not constitute an affirmation of fact
or promise as a matter of law. Accordingly, the district court erred in
awarding summary judgment for Raytheon on this claim.
IV.
In conclusion, the district court erred in concluding that the mainte-
nance manual was part of the Aircraft as a matter of law. To the con-
trary, a genuine issue of material fact exists as to whether the
maintenance manual was a separate product apart from the Aircraft.
Consequently, an issue exists for the jury as fact-finder to determine
whether the Used Airliner Airplane Warranty, which barred claims
outside a ninety (90) day window for "each part of the Aircraft," also
applied to bar Colgan’s claims for defects in the maintenance manual.
Additionally, a genuine dispute exists as to whether the statement in
the maintenance manual created an express warranty. Massachusetts
law, however, bars Colgan’s claims for strict liability, and we affirm
the district court’s ruling on this single issue. Finally, because the dis-
trict court did not make an alternative ruling on Colgan’s claims for
negligence and breach of implied warranties, and because the merits
of those claims are unchallenged on appeal, our ruling today leaves
these claims for consideration on remand.
Accordingly, the order of the district court is affirmed in part,
COLGAN AIR v. RAYTHEON AIRCRAFT 17
vacated in part, and remanded for further proceedings consistent with
this opinion.4
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
4
We note Colgan also moved for summary judgment before the district
court, although the district court’s ruling on Colgan’s motion has not spe-
cifically been argued to this Court. Nonetheless, because a genuine issue
of triable fact exists on those claims, we decline to reverse the district
court’s decision denying Colgan’s summary judgment motion.