Full opinion text
MEMORANDUM OPINION AND ORDER JOYCE HENS GREEN, District Judge. 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 eases 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 Kennedy, 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. Alle gheny Airlines, Inc., 421 U.S. 978, 95 S.Ct. 1979, 44 L.Ed.2d 470 (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. Yet the inquiry as to the site of defendant’s conduct is not an end in itself, but a part of the process of determining the defendant’s nexus with the jurisdictions interested in the litigation. In the typical case where the site of an air crash is determined to be “fortuitous” that state is generally not considered to be interested because it “might ... have no substantial relation to either the producer or the passenger.” Reese, The Law Governing Airplane Accidents, 39 Wash. & Lee L.Rev. 1303, 1314 (1983). This process also embraces some due process considerations, on the theory that a manufacturer should not be exposed to the tort liability law of a jurisdiction when it could not reasonably foresee becoming subject to that law. Reese, id. at 1311—12. 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. MEMORANDUM 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. 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, 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 1-395) 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. 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 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, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (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 (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]. 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). 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, 350 F.2d 468 (D.C.Cir.1965), cert. denied, Tramontana v. Varig Airlines, 383 U.S. 943, 86 S.Ct. 1195, 16 L.Ed.2d 206 (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., 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, 526 (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, 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 “dépegage,” 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, 102 S.Ct. 252, 70 L.Ed.2d 419 (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). 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. 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; 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. This issue resolved, the question of which state’s products liability law to apply to the allegations against Boeing will be considered. B. Products Liability As noted above, the allegations of products liability against Boeing are essentially that the design of the 737 aircraft’s wings was defective in that the plane had a tendency to lose control or “pitch up” on takeoff when ice or snow became adhered to the leading edges of the wings, and that operating manuals for the 737 did not adequately advise the users of this phenomenon. Aside from the matter of the manuals’ adequacy, Boeing is also charged with failing to warn consumers of the alleged defective wing design. In accordance with Hitchcock and section 145(2) of the Restatement, Second, the contacts to be considered include: (a) the site of injury, (b) the place where the conduct occurred, (c) the parties’ domiciles, and (d) the place where the parties’ relationship is centered. The Second Restatement further instructs that these contacts be evaluated according to their relative importance with respect to the particular issue; for example, while section 145(2)(c) lists residence of the parties as a relevant contact, with respect to the issue of tort liability, the states wherein the plaintiffs or victims resided have a negligible interest in regulating extraterritorial conduct causing injury outside their borders. Likewise, a simple mechanical application of these factors is inappropriate: the mere fact that one jurisdiction numerically satisfies more of these contacts than another is not dispositive of the question of which state has the “most significant relationship” regarding this issue. See Chicago, 644 F.2d at 613 (mere tabulation of states’ interests insufficient); see also Saigon, 476 F.Supp. at 526 n. 11. With respect to this issue of Boeing’s liability, the jurisdictions having contacts to consider are: the District of Columbia (the place of injury), the State of Washington (the place of Boeing’s alleged misconduct and its principal place of business), and whatever state in which the relationship between the parties can be said to be centered. Guidance on the question of where the parties’ relationship is centered as well as some direction as to the relative importance of each of the four contacts to the particular issue at hand is provided in Reese, The Law Governing Airplane Accidents, 39 Wash. & Lee L.Rev. 1303 (1983) [hereinafter cited as Reese, Airplane Accidents], Professor Reese has developed a useful approach to determining the law to apply to the various issues likely to arise in an air crash action. According to Professor Reese, in an action by a passenger against an aircraft manufacturer the question of whether the manufacturer’s conduct was liability-creating is governed by the law of (1) the place of manufacture or design, (2) the manufacturer’s principal place of business, (3) the place of the flight’s departure, or (4) the place of the flight’s intended destination. Reese, Airplane Accidents, at 1310. Washington State, of course, is the site of the first two places, which are equivalent to alternatives (b) and (c) of the Restatement, Second’s list of contacts in section 145(2). Places (3) and (4) in Professor Reese’s analysis, which are the District of Columbia and Florida, are related to the question posed by contact (d) of the Restatement, Second (i.e., where is the relationship of the parties centered), in that those places “necessarily bear some relationship to the plaintiff[s]” since they are where the plaintiffs began and intended to complete their journeys and since the manufacturer “would have good reason to foresee” that its planes would come to either place. Id. at 1311-12. See also Chicago, 644 F.2d at 612 (while center of relationship “unclear,” court noted probable importance of Illinois as site of departure and California as intended destination). The same difficulties as to determining the center of the parties’ relationship are here just as in numerous other air crash cases involving allegations of a defective design created in a removed state. As between the District of Columbia and Florida, to the extent that the center of the parties’ relationship can be discerned, the former is a more likely choice. The great majority of passengers were from the Washington, D.C. metropolitan area and were planning to return home after the trip. Likewise, the victims on the 14th Street Bridge were local residents. Furthermore, the municipality itself is a plaintiff. The importance of the sites of departure and intended destination vis a vis that of the manufacturer’s domicile and place of manufacture and design also bears some relationship to contact (a) of the Restatement, Second; site of injury. Professor Reese comments that the relative importance of the place of intended destination is not usually great, unless the plane happens to crash upon arrival. Id. at 1312. Accordingly, Florida’s interest in this issue as the scheduled arrival point can be further discounted under the Reese analysis, inasmuch as the plane did not crash while landing. The Reese analysis appears to imply that where the site of injury coincides with the site of departure (or intended arrival), the interest of the relevant state qua site of injury is less likely to be discounted as the “result of a fortuity.” This is especially appropriate to the facts of the instant case, where the allegations of fault refer to the actions of flight and ground crew and the performance of the aircraft on takeoff. Consequently, the District of Columbia’s interest as the place of departure is augmented by its having been the place of injury as well. The potentially interested states having been identified, the Court now considers whether their laws are in conflict. The District of Columbia has adopted the doctrine of strict liability in tort for product defects. Young v. Upright Scaffolds, Inc., 637 F.2d 810, 812-13 (D.C. Cir.1980), citing Russell v. GAF Corp., 422 A.2d 989 (D.C.App.1980); Restatement (Second) of Torts § 402A (1965). Under this doctrine, a merchant who sells an unreasonably dangerous product to a consumer is liable for resultant injuries, regardless of fault, or privity of contract. Id. However, if the product is unreasonably dangerous only because of the manufacturer’s failure to warn of possible dangers, the manufacturer’s fault is relevant to the question of his liability. As such, the issue of a failure to warn is governed by a negligence standard. Young, 637 F.2d at 814; Russell, 422 A.2d at 991. Even so, to the extent that the plaintiffs’ allegations refer to inadequate warnings or instructions in Boeing’s operating manuals for the 737, a strict liability standard may yet apply. As the United States Court of Appeals for this Circuit recently stated, “an allegation that there were defects in the aircraft encompasses one that there were defects in the manuals. The latter class of defects constitutes a subset of the former.” Leachman v. Beech Aircraft Corp., 694 F.2d 1301, 1306 (D.C.Cir.1982). The policies advanced by the District of Columbia’s adoption of these doctrines are several. The existence of law providing for tort liability in the District of Columbia demonstrates, first of all, the District’s interest in regulating — and preventing — conduct that could cause tortious injury. W. Prosser, Law of Torts § 4, p. 22 (4th ed. 1971). Furthermore, the adoption of the rule of strict products liability evinces additional interests: to do away with the harsh common-law requirement of privity in products cases and to hold manufacturers of defective products to a higher standard than that of negligence. See Berman v. Watergate West, Inc., 391 A.2d 1351, 1355-57 (D.C.App.1978), see also Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 377 P.2d 897, 27 Cal.Rptr. 697 (1962) (quoted with approval in Berman). Washington State recently has codified its judicially-acknowledged products liability law, by enacting the Washington Products Liability Act of 1981, Wash.Rev.Code §§ 7.72.010-.060 (1981). This act estáblishes a negligence standard for a manufacturer’s failure to issue warnings concerning dangers discovered after manufacture. .Wash.Rev.Code § 7.72.030(l)(c). Likewise, negligence is the standard as regards allegations that adequate warnings or instructions were not provided with the product to prevent harm resulting from dangers present at the time of manufacture. Wash. Rev.Code § 7.72.030(l)(b). Finally, design defects are also considered under a negligence standard. Wash.Rev.Code § 7.72.-030(l)(a). In the State of Washington, the strict liability standard only governs manufacturing defects and failures of a product to conform to the manufacturer’s express warranties or the implied warranties created under Title 62A of the Revised Code of Washington. Wash.Rev.Code § 7.72.030(2). While the newness of the Washington Products Liability Act of 1981 has resulted in a paucity of judicial interpretations thereof, the act’s preamble conveniently provides a statement of the legislature’s intent in enacting the statute. 1981 Wash. Laws ch. 27 § 1. The preamble notes first the process of tort reform in Washington and the resulting amelioration of the “harshness of many common law doctrines.” It then states that “The purpose of this amendatory act is to enact further reforms in the tort law to create a fairer and more equitable distribution of liability among parties at fault.” Id. at ¶ 2. This evident interest in providing fair treatment for defendants is explicated in the paragraph immediately following, wherein the preamble refers to these effects of modern changes in products liability law: increased costs of consumer and. industrial goods because of rising premiums for product liability insurance and the related “disincentives to industrial innovation and the development of new products.” Id. at ¶ 3. The remainder of the preamble continues in this vein. The PSC asserts that there is no actual conflict between the Washington and District of Columbia laws for two reasons. First, the PSC asserts that the standards that would govern the relevant allegations against Boeing are essentially the same under the laws of the District of Columbia and Washington in that the claim is one for a “failure to warn” which is subject to a negligence charge either way. PSC Reply Brief of Nov. 24,1982, at 11-12. However, the PSC states that the “failure to warn” allegation also concerns the 737 operations manual, id. at 12, which, under Leachman v. Beech Aircraft Corp., might well require analysis under a design defect theory. Moreover, in responding to Boeing’s liability contention interrogatories, the plaintiffs have acknowledged that they indeed are proceeding on a theory of defective design. See Transcript of Hearing, Jan. 11,1983, at 21 (comments of Chairman, Plaintiffs’ Steering Committee), 22-23 (comments of counsel for Boeing). Furthermore, the question of Boeing’s design of the 737 will in any case most likely be an issue at trial, inasmuch as this is an important part of Air Florida’s case against Boeing. See Jan. 11, 1983 Transcript at 34-35 (comments of counsel for Air Florida re slotted wing slat design alternative). As the laws of the District of Columbia and Washington address design defects differently, a conflict is strongly suggested. Second, the PSC argues that although the laws of the two jurisdictions may differ, the policies they effectuate, i.e., the creation of a products liability doctrine not dependent on historical requirements of privity, are the same and that therefore District of Columbia law may be applied with no fear of a true conflict. The PSC cites an unreported opinion from this district, Cunningham v. Textron, Inc., Civil Action No. 75-0318 (May 15, 1978) (order granting plaintiff’s motion in limine) to the effect that where states having different products liability laws have demonstrated similar policies, no actual conflict exists. Cunningham indeed involved a “false conflicts” situation, because the three interested states all followed in substance (if not in name) the rule of strict liability. In the case at hand, however, it can not be doubted that, with respect to design defects the two interested jurisdictions do not apply the same standard of care. Moreover, the two jurisdictions have expressed different policy objectives that are relevant to their particular interests in the parties. The decisions of the District of Columbia courts in strict products liability cases demonstrate a preeminent concern with the protection of plaintiffs. See Berman v. Watergate West, Inc., 391 A.2d at 1355-58. As the plaintiffs in the instant case have a strong relationship with the District of Columbia, this is a real interest. Washington, to the contrary, has articulated in no indefinite terms its concerns about the effects of its products liability laws upon local defendants, particularly those defendants which are industrial or commercial concerns. Washington Products Liability Act of 1981, Preamble, 1981 Wash.Laws ch. 27 § 1. As Boeing is a Washington defendant, that state’s interest in the application of its law likewise is material. Accordingly, the laws are in conflict and this Court must determine which of the two jurisdictions has the “most significant relationship” to the relevant matters at hand. Boeing argues that the products liability-law of Washington State rather than the District of Columbia law should govern because any interest the District has relevant to this issue is diminished because it was “fortuitous” that the plane crashed and caused injury here. Under this theory, since the site of injury resulting from a design or manufacturing defect is “almost always fortuitous,” Pittway Corp. v. Lockheed Aircraft Corp., 641 F.2d 524, 528 (7th Cir.1981), less weight should be given to that state’s concern because its interest in and ability to control or regulate' wrongful conduct by deterrence or punishment or to protect defendants from liability is not as significant as that of the place of misconduct or principal place of business. Chicago, 644 F.2d at 615. No one disputes that as the abbreviated path of Flight 90 took it over the irregular shoreline of the Potomac River, the flight crossed the District of Columbia-Virginia boundary several times before the impact. (The boundary between these jurisdictions has long been established as the high water mark of the Potomac on the Virginia side of the river.) Bruce v. Martin-Marietta Corp., 418 F.Supp. 829 (W.D.Okl.1975), affirmed, 544 F.2d 442 (10th Cir.1976) involved a crash typical of the kind usually found to be fortuitous. After departing Kansas, the Utah-bound plane crashed in Colorado. The plaintiffs were from Oklahoma and Kansas, and the defendant manufacturer, against whom there was a products liability claim, had its principal place of business in Maryland, where the allegedly defective aircraft was designed and manufactured. The court found that place of injury was of “relatively minor importance” to the issues of liability because the crash occurred while the plane was merely passing through Colorado. 418 F.Supp. at 832-33. The court concluded that Maryland had the most significant relationship to the issue of Martin-Marietta’s liability and applied the law of that state. Id., at 833. Similar results were reached in other cases involving crashes of transient aircraft. E.g., Halstead v. United States, 535 F.Supp. 782 (D.Conn.1982); Melton v. Borg-Warner Corp., 467 F.Supp. 983 (W.D.Tex.1979); O’Keefe v. Boeing Co., 335 F.Supp. 1104 (S.D.N.Y.1971). The Chicago court also noted a certain amount of fortuity in that case. In evaluating the various states’ interests in the Chicago DC-10 crash, the Seventh Circuit suggested the nature of the supposed cause of the crash — allegedly wrongful conduct on the parts of the manufacturer and the airline maintaining the plane which resulted in cracked engine mounts, rendering the engines prone to falling off — meant that there was nothing special about the plane’s presence in Illinois at the time of crash (with regard to the defendants’ part in the litigation) and that “the injury might well have occurred in one of any number of states” on its route from Chicago to Los Angeles. 644 F.2d at 615. However, as explained below, this did not deprive Illinois of all interest in the Chicago crash. See id. The fact that the site of injury might be fortuitous does not for every case answer the question of which state has the most significant relationship to this issue. Indeed, were that so, the lex loci delicti rule would simply be replaced by another equally rigid rule of lex loci actus. The unfairness of such a rule to those who suffered from the injury directly and indirectly is obvious, and denies what the Seventh Circuit recognized in Chicago, that the state where the injury occurred does have some interest in imposing liability on the wrongdoer, depending on the facts of the particular case. 644 F.2d at 615. This interest of the District of Columbia cannot be ignored inasmuch as its connection with the Flight 90 crash is much greater than the interests of the injury sites in the more typical “fortuitous crash” cases cited above. Unlike those cases, the instant case is not one where the injury might have occurred in “one of any number of states.” Rather, the allegations as to the various defendants all concern the effect of their conduct on the takeoff procedure, which only involved but a portion of the scheduled Washington to Florida trip confined to some limited area centered upon Washington National Airport. Had Flight 90 cleared the bridge and proceeded on its way to Florida there is nothing to indicate that the alleged deficiencies of the 737’s design or its operation by Air Florida would have jeopardized the flight’s cruising at altitude or landing, inasmuch as those alleged problems are only relevant to takeoff. In fairness to Boeing’s position, it must be recognized that the site of the crash was more fortuitous with respect to Boeing than with respect to Air Florida and American. Boeing’s alleged defects could have manifested themselves upon any takeoff under the same circumstances present in the instant accident. However, one of the reasons for looking away from the site or injury in the typical “fortuitous crash” case is the concern of not holding a defendant manufacturer to a standard of law to which it could not foresee becoming subject. Reese, Airplane Accidents, at 1311-12. In a coast-to-coast flight, for example, it has been suggested that it would be unreasonable to require the manufacturer to govern its conduct in accordance with the laws of any state over which its product might pass. This problem is not present in the instant case. It is much more foreseeable that an aircraft with a takeoff deficiency would crash on departure from an airport that the manufacturer expected its plane would use than it is that a transient plane on an Oklahoma to Utah flight would crash in Colorado rather than either of those states or Arizona or New Mexico. Furthermore, in the cases cited above an important reason why the sites of injury were determined fortuitous and therefore uninterested was that the plaintiffs had little or no connection with those states. Here, by contrast, the site of injury was Flight 90’s site of departure. As such, many of the victims had some kind of settled relationship with the District of Columbia, be it residence, employment, or some other nexus, and the District of Columbia no doubt has an interest in protecting such individuals from harm. See Restatement (Second) of Conflict of Laws § 146, comment (e). Likewise, as suggested earlier, the District of Columbia has an interest in protecting those persons who use the services of its airport. The instant case is distinguishable from the typical “fortuitous crash” cases cited above inasmuch as the crash sites in those cases had no relationship to the parties on either side. The instant case is more like Chicago than those cases; as Illinois had an interest in the crash in light of the victims’ relationship to Illinois and the severity of the disaster’s impact on that state, so it is with the District of Columbia in the case at bar. Yet the District of Columbia has a greater interest in this litigation than Illinois had in Chicago. While the Chicago crash was purely fortuitous inasmuch as the DC-10’s engine could have fallen off anywhere on that flight, 644 F.2d at 615, in the instant case the potential for harm was limited to the takeoff portion of a flight, which here was centered on National Airport. The interest of the District of Columbia in regulating conduct so as to promote air safety is evidenced further by the aftermath of the crash. The crash had a direct and severe effect on people throughout metropolitan Washington. It caused death and injury to people using the District’s bridge to enter into the city. The consequent closing of both spans of the bridge jammed commute routes into the suburbs for hours and, with the coincidental Metro subway disruption, caused the federal government’s Washington offices virtually to shut down for several days. The resources of District of Columbia and other rescue units were taxed, and the District no doubt incurred substantial expense in the course of the rescue and clean-up, not to mention the repair of its bridge. Notwithstanding its location on the Virginia side of the Potomac, the operation of the Washington National Airport, through which, as noted elsewhere, the vast majority of those traveling by air come to the city, is of great concern to the District of Columbia as well. The municipality has a strong interest in seeing that ample air transportation is provided to its residents, as well as those who come to the city in the course of service to (or as) government officials, for business, or for tourism. For these various reasons, the Court finds that the District of Columbia has a very strong interest in the application of its tort law principles to the question of Boeing’s liability. Nevertheless, the interest of Washington State in the resolution of this issue is evident as well. As the allegations against Boeing concern its conduct within the State of Washington, that state has, at the outset, a strong interest in the regulation of that conduct. That interest is strengthened further by the fact that Washington has made a legislative choice as regards the imposition of strict liability for design defects, after addressing how the issue concerns plaintiffs and corporate defendants doing business in Washington. See Washington ' Products Liability Act of 1981, Preamble, supra. The preamble to Washington’s new products liability act demonstrates that state’s interest in how the balance between providing remedies to plaintiffs and insuring the fiscal health of local corporate defendants is made. Indeed, as Boeing is one of the largest, if not the largest, employers in that state, Washington’s interest in various issues relating to Boeing’s products liability cannot be denied. Yet, as regards the policies expressed in the preamble to the Washington Products Liability Act, the Court must examine how important the specific provisions of that act at issue here are toward effectuating those policies. The Washington Products Liability Act, according to Boeing, substantially duplicates the Uniform Products Liability Act, with the exception that it does not adopt the uniform law’s rule providing for punitive damages. There is long-established policy in Washington against the award of punitive damages. See Maki v. Aluminum Building Products, 73 Wash.2d 23, 436 P.2d 186, 187 (1968) and cases cited therein. Washington considers the doctrine of punitive damages “unsound,” id, and has refused to change that rule by statute or decision. See Boeing’s Memorandum on Punitive Damages, Nov. 16, 1982 at 17-18. Boeing, however, directs the Court’s attention to no similarly strong expression of a policy choice regarding the standard of care governing design defects. Accordingly, it is evident that the statements in the preamble to the Washington act have more to do with the denial of punitive damages than with the rule on the standard for products liability. Consequently, the Court finds that the interest of Washington State with regard to the question of Boeing’s alleged products liability is not as great as the interest of the District of Columbia, and as the District of Columbia has the most significant relationship to this issue, its law shall control. C. Apportionment of Liability The jurisdictions interested in how fault is apportioned among the defendants follow two different rules on this subject. The District of Columbia and Virginia (which, it is argued, has an interest in apportionment because of the allegedly wrongful conduct of Air Florida and American Airlines which occurred there) both follow an equal-share rule, under which all culpable defendants contribute equal parts of the judgment, regardless of their relative fault. Air Florida argues in favor of the law of either jurisdiction; American concurs. Florida, Texas, and Washington (the principal places of business of Air Florida, American, and Boeing, respectively) all follow a comparative fault rule under which each tortfeasor is assessed a portion of the judgment proportional to its relative culpability. Boeing supports application of this rule. The policies behind the equal-share rule are (1) that of encouraging each member of the community to conform to a standard of due care and (2) that of facilitating the determination of each defendant’s share of the judgment. The first policy is one in which the District of Columbia and Virginia are interested in the instant case, in that injury and conduct took place in those jurisdictions. As the second policy concerns efficient judicial administration, it is an interest of the District of Columbia, as this is the forum for the majority of the individual actions. The rationale behind a comparative fault rule essentially is to make certain that all defendants are treated fairly. There is no doubt that Washington has an interest in seeing its law applied in that it certainly would be concerned that one of its local corporations, a defendant who is alleged to have done a wrong in Washington, be treated fairly among its co-defendants. Similarly, Florida and Texas would be interested in the fair treatment of their citizens. Air Florida asserts that Florida, Texas, and Washington have no interest in the apportionment of fault where the injury was “extraterritorial” as to those states. However, as Boeing notes, the primary purpose of a comparative fault apportionment rule is not to punish or deter, but to ensure fair treatment of defendants. As such, with respect to this issue, a state where the conduct or injury took place is not necessarily the state of most significant relationship; rather, it is likely to be a state in which a protected defendant is located. So it is with the instant case. The jurisdictions most interested in the application of the comparative fault rule are those in which the defendants are located. Moreover, applying this rule will not contravene the purposes of the rules of the other interested jurisdictions, the District of Columbia and Virginia, in that by apportioning responsibility in accordance with fault this rule, like the equal-share rule, serves the purpose of ensuring that parties act in conformance with a standard of due care. Indeed, by making sure that a highly-culpable defendant pays its fair share, rather than a per capita portion, which might be less, the comparative fault rule effectuates this policy even more completely and accurately than the older rule. As to the concern about the jury’s ability to allocate fault upon a proportional basis, this Court is not convinced that a jury would be less equipped to entertain this task than it would be to consider other types of speculative matters typically assigned to juries. Finally, and most importantly, while applying the comparative fault rule in the instant case would not contravene the policies of the District of Columbia and Virginia, application of the equal-share rule would most certainly offend the legitimate and profound interests of the, defendants’ home states. The comparative fault rule will govern the apportionment of liability among the defendants. D. Punitive Damages This issue has generated much interest among numerous parties, who have provided the Court with a plethora of suggestions as to which jurisdiction’s law should govern the liability of the various defendants. The PSC argues that, because of the obvious contacts this litigation has with the District of Columbia, that jurisdiction’s law, which allows punitive damages in survival actions but not wrongful death actions, should apply. Alternatively, the PSC argues for the application of Florida law, because Air Florida trained its pilots and received Boeing’s warnings and instructions for 737 operators there. Florida permits punitive damage assessments in cases such as this. Air Florida and American suggest that Virginia law, which would not allow punitive damages in this case, should control their liability for punitive damages since the allegations as to their conduct relevant to this issue took place in that Commonwealth. Similarly, Boeing argues for Washington State’s law to govern; as noted earlier, punitive damages would not be available under this law. Plaintiffs Fako, Izzo, and Donahue assert that the laws of their decedents’ domiciles, which also are their transferor courts’ locations (Pennsylvania for Fako; Massachusetts for the others) should apply to those individual actions. Both Commonwealths allow punitive damages claims. Finally, plaintiff Hamilton, a Maryland plaintiff, argues in favor of Florida punitive damages law. No party argues for the application of Texas law to American, but that state allows punitive damages. The primary purpose of imposing punitive damage assessments is to punish egregious conduct of a defendant and deter future wrongful conduct by the defendant and others, not to compensate a plaintiff. Consequently, a state whose only connection with this litigation is that it was the domicile of a plaintiff or victim has no interest in the imposition of punitive damage liability. Chicago, 644 F.2d at 612; Jackson v. Koninklijke Luchtvaart Maatschappij N.V., 459 F.Supp. 953, 955-56 (S.D. N.Y.1978) (under California interest analysis, Pennsylvania punitive damages law would not apply to action involving crash of Dutch airliner in Spain, despite plaintiffs’ domicile in that Commonwealth, because conduct causing the crash, being a local interest, was the concern of the jurisdiction in which the conduct occurred); Sibley v. KLM-Royal Dutch Airlines, 454 F.Supp. 425, 428-29 (S.D.N.Y.1978) (under Massachusetts choice of law rules, Massachusetts punitive damage law would not apply to same crash in Jackson despite plaintiffs’ domicile in that Commonwealth, for same reason); Hurtado v. Superior Court, 11 Cal.3d 574, 522 P.2d 666, 114 Cal.Rptr. 106 (1974), W. Reese, Airplane Accidents, supra, at 1313, 1317. Plaintiff Fako asserts that under the choice of law rules of the Commonwealth of Pennsylvania, which this Court must follow inasmuch as her action was transferred here from a federal court located there, Pennsylvania is the state most interested in the assessment of punitive damages. The cases cited by plaintiff Fako do not convince the Court that a Pennsylvania court would depart from the settled rule and impose its punitive damages law in a case involving an extraterritorial tort. In Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), the Pennsylvania Supreme Court discarded the lex loci delicti rule in favor of a modern interest analysis approach, and ruled that the law of Pennsylvania (the decedent’s domicile) should govern instead of that of Colorado (the lex loci delicti). However, the argument in Griffith concerned not the issue of the availability of punitive damages, but rather the amount of compensatory damages. Colorado law then imposed a limit on damage recoveries. In refusing to apply the Colorado limit, the Pennsylvania court noted that Pennsylvania’s interest in the amount of recovery, on the other hand, is great .... Our commonwealth, the domicile of decedent and his family, is vitally concerned with the administration of decedent’s estate and the well-being of the surviving dependents to the extent of granting full recovery, including expected earnings. 203 A.2d at 807. The court then cited a Pennsylvania constitutional provision guaranteeing “reasonable compensation for injuries to employees arising in the course of their employment.” Id., citing the relevant provision of the Pennsylvania Constitution. As such, the Pennsylvania court’s decision concerned that Commonwealth’s legitimate and substantial interest in ensuring adequate compensation for its citizens. Nowhere in that opinion did the Pennsylvania court suggest that Pennsylvania had any interest in the assessment of punitive damages. Similarly, the case of Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966), also cited by plaintiff Fako, did not involve the issue of punitive damages but the question of whether Pennsylvania’s simple negligence standard or Georgia’s gross negligence rule should serve as the applicable standard of care. 222 A.2d at 899. Finally, the Third Circuit’s opinion in Scott v. Eastern Airlines, Inc., 399 F.2d 14 (3d Cir.), cert. denied, 393 U.S. 979, 89 S.Ct. 446, 21 L.Ed.2d 439 (1968), the third case cited by plaintiff Fako, similarly concerned Pennsylvania’s interest in compensatory, rather than punitive, damages. 399 F.2d at 23. Accordingly, the Court is reassured that the conclusion reached by the court in Jackson v. KLM under the California choice of law rules applies here as well, i.e., that under the interest analysis/“most significant relationship” rule of Pennsylvania, that jurisdiction would not be interested in the imposition of punitive damages in a case involving an out-of-state air crash. The Izzo and Donahue plaintiffs argue that a court in Massachusetts, from which their actions were transferred, would be guided by that Commonwealth’s “most significant relationship” test to apply its rule allowing punitive damages. These plaintiffs cite Massachusetts’ law governing punitive damages, which provides for a mandatory, minimum $5,000 assessment of punitive damages where a defendant is found to have acted maliciously, willfully, wantonly or recklessly, or to have been grossly negligent. Mass.Ann.Laws ch. 229, § 2 (Michie/Law.Co-op.Cum.Supp.1982). In support of their position, plaintiffs Izzo and Donahue quote the following portion of Schulhof v. Northeast Cellulose, Inc., 545 F.Supp. 1200, 1206 (D.Mass.1982): Massachusetts has a strong interest in applying its punitive damage provision .... I