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Court opens door to no air bag suits.

The New Hampshire Supreme Court The New Hampshire Supreme Court is the supreme court of the U. S. state of New Hampshire and sole appellate court of the state. The Supreme Court is seated in the state capital, Concord.  recently became the first state high court to rule that people injured in car crashes can sue automakers for failing to equip cars and light trucks with air bags. (Tebbetts v. Ford Motor Co., No. 93-751 (N.H., Sept. 19, 1995).)

In a unanimous ruling, the court disagreed with the application of federal preemption preemption

U.S. policy that allowed the first settlers, or squatters, on public land to buy the land they had improved. Since improved land, coveted by speculators, was often priced too high for squatters to buy at auction, temporary preemptive laws allowed them to acquire
, which exempts an automaker from being sued under common law. In the past, federal preemption has been a common defense used by automakers to block air bag-related lawsuits. (Warren Brown, Family Cleared to Sue Ford Over Air Bags, Wash. Post, Sept. 20, 1995, at c1.)

The decision which is binding only in New Hampshire New Hampshire, one of the New England states of the NE United States. It is bordered by Massachusetts (S), Vermont, with the Connecticut R. forming the boundary (W), the Canadian province of Quebec (NW), and Maine and a short strip of the Atlantic Ocean (E). , may open the door to claims in other states.

The New Hampshire case arose after Rebecca Ann Tebbetts, 18, was killed when the 1989 Ford Escort Over the years, the name 'Ford Escort' has been used for several models.

For more information, see:
  • Ford Escort (Europe)
  • Ford Escort (North America)

Ford Motor Company
 she was driving veered off the road and struck a tree in May 1991. Tebbetts died from injuries to her abdomen and head, which struck the steering wheel. She was wearing a lap belt lap belt
A seat belt that fastens across the lap.
 and shoulder harness shoulder harness
A safety belt used with a seat belt in a vehicle and worn diagonally across the chest and over the shoulder. Also called shoulder belt.
, but the car was not equipped with air bags.

Her mother sued Ford, claiming that the Escort was defectively designed because it lacked an air bag on the driver's side. She alleges that Ford delayed installing air bags in its cars long after it knew the device would save thousands of lives each year.

Congress did not make air bag installation mandatory until 1991--the year of Tebbetts's death. But the debate over their effectiveness had already gone on for years, beginning when Congress passed the National Traffic and Motor Vehicle Safety Act The National Traffic and Motor Vehicle Safety Act allowed new standards to be set by the federal government. Regulation of these standards is also managed by the federal government.  of 1966. The act gave automakers the choice of installing air bags, automatic seat belts Automatic seat belts are seat belts that automatically close over riders in a car. History
Automatic seat belts were created to increase safety regardless of user negligence because even when seat belts were available, people often forgot to, or chose not to, use them.
, or manual seat belts. Car companies overwhelmingly chose manual seat belts.

By the late 1980s, however, many automakers and consumers came to view air bags combined with automatic seat belts as the preferred safety strategy. Plaintiffs' attorney Edgar McKean said the change did not come about overnight.

"The documentation shows that the technology was in place for air bags since the early 1970s," he said. "But the automakers claimed the added expense to install them would make them less competitive with the Japanese imports."

It took another decade, McKean said, before foreign automakers ultimately beat domestic manufacturers at their own game. "When Volvo and some of the other European manufacturers began their high-profile advertising campaigns pitching safety as their number-one priority, all of a sudden domestic automakers were racing to play catch-up," Mc-Kean said. "Clearly, profit triumphed over lives-until it became profitable to save them."

The trial court sided with Ford in the Tebbetts case and granted summary judgment, holding that Congress meant for Ford's compliance with Federal Motor Vehicle Safety Standard 208 to exempt the Detroit automaker from liability under common law. The case then went before the New Hampshire Supreme Court on appeal.

In its decision, the state high court ruled that tort claims are not expressly preempted by the safety act because of the statute's savings clause, which says that compliance with any federal motor vehicle safety standard does not exempt any person from any liability under common law.

The court held that an examination of the congressional debate leading up to the passage of the 1966 statute also makes clear that lawmakers did not intend to bar state tort claims. "We therefore determine that Congress intended the Safety Act to be `supplementary' of and in addition to the common law of negligence and product liability," the court said.

The court held that there was no reason to consider the issue of implied preemption since the savings clause and the legislative history made clear Congress's intent not to preempt pre·empt or pre-empt  
v. pre·empt·ed, pre·empt·ing, pre·empts
1. To appropriate, seize, or take for oneself before others. See Synonyms at appropriate.

 state claims. The case was remanded to the lower court for trial unless Ford seeks and the U.S. Supreme Court grants review.

At TRIAL press press time, Denver lawyer Malcolm Wheeler, who is representing Ford, said the automaker has not yet decided whether to appeal.

Scottsdale, Arizona Scottsdale (O'odham Vaṣai S-vaṣonĭ) is a city in Maricopa County, Arizona, United States, adjacent to Phoenix. Scottsdale has become internationally recognized as a premier and posh tourist destination, while maintaining its own identity and culture as " , attorney Larry Coben assisted the Trial lawyers for Public Justice in filing an amicus curiae brief Noun 1. amicus curiae brief - a brief presented by someone interested in influencing the outcome of a lawsuit but who is not a party to it
brief, legal brief - a document stating the facts and points of law of a client's case
 against federal preemption in the Tebbetts case.

"Having, worked on 70 to 80 of these air bag cases, I can honestly say it's been a really long and frustrating frus·trate  
tr.v. frus·trat·ed, frus·trat·ing, frus·trates
a. To prevent from accomplishing a purpose or fulfilling a desire; thwart:
 road," said Coben, chair of ATLAS Products Liability Section. "If the trend continues, the Supreme Court may not even have to take the Tebbetts case, but the battle is not Over. There's just too much at stake for the automakers to give up now."
COPYRIGHT 1995 American Association for Justice
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1995, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Title Annotation:New Hampshire
Author:McMurry, Kelly
Date:Nov 1, 1995
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