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Court opens door to no air bag suits.

The New Hampshire Supreme Court 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, 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, 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 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 and shoulder harness, 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 of 1966. The act gave automakers the choice of installing air bags, automatic seat belts, 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 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, attorney Larry Coben assisted the Trial lawyers for Public Justice in filing an amicus curiae brief 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 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."
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Title Annotation:New Hampshire
Author:McMurry, Kelly
Date:Nov 1, 1995
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