The air bag preemption war.

The issue of federal preemption of claims for defective or missing air bags has a long and convoluted history. They say history teaches; read and learn.

Alexis Geier has become yet another casualty in the battle by consumers for the right to sue for injuries caused by a manufacturer's failure to install an air bag. In a narrow decision, a deeply divided U.S. Supreme Court recently ruled that her claim that a 1987 Honda Accord was defective because it did not have a driver-side air bag is preempted by the Federal Motor Vehicle Safety Act of 1966 (Safety Act). A finding of common law liability, the Court found, would conflict with a federal standard on passive restraints (effective beginning in September 1986) that allowed automobile companies to choose from a variety of driver crash protection systems to meet the standard.(1)

The Supreme Court wisely, and unanimously, rejected the notion--embraced by many federal and state courts--that Congress, in passing the Safety Act, intended to expressly preempt negligence and strict liability claims based on unsafe vehicle design. Specifically, the majority found that the act did not establish an express intent to eliminate common law tort actions.(2)

The court observed that the act's savings clause preserves tort actions, providing inherent benefit to tort victims, so long as the relevant federal standard simply creates a minimum safety requirement.(3) This conclusion is well grounded in the history of this legislation. As the National Transportation Safety Board reported in 1970:

   The imposition of Federal Motor Vehicle Safety Standards [FMVSS] for
   certain characteristics of vehicle safety ensures that a particular level
   of safety will be universally applied, but it does not ensure that the
   highest level of safety will be the standard, nor does it ensure that the
   highest practical level of safety will be available to purchasers in the
   market.(4)

At the time Congress was writing this legislation, legal scholars and courts were writing that it would be logical to apply common law principles to determine whether manufacturers had met their duty to build crashworthy vehicles.(5) Congress was aware that this development, as well as the promulgation of state motor vehicle safety legislation, could create a lack of uniformity in the law. The Safety Act addressed both issues, but not in the same way.

The act's wording and its legislative history indicate that Congress did not want conflicting safety regulations promulgated by state and federal agencies. This is made quite clear by the inclusion of a preemption provision.

Yet, Congress also specifically provided that the Safety Act would not undermine the common law. This was noted by the Fifth Circuit in 1981: "While the federal statute under which these regulations were passed preempts inconsistent state standards, 15 U.S.C. [sections] 1392(d), compliance with the federal regulations does not exempt any person from any liability under common law, 15 U.S.C. [sections] 1397(c) (1966)."(6)

The preemption section of the Safety Act prohibits any state or political subdivision from establishing any safety standard dissimilar to published federal standards. This specific language shows that Congress intended that the provision would affect only the conduct of states and political subdivisions, not juries or judges.

The preemption provision does not mention the common law. Instead, it identifies specific state activity. This shows that Congress did not intend to preempt common law causes of action. In fact, Congress's intent to preserve these claims is revealed by a provision stating that compliance with federal safety standards does not exempt any person from common law liability.(7)

Congress also intended federal regulations to establish only minimum standards for products sold in the United States. The "threat" of common law liability continues to spur manufacturers to either do more than simply comply with these standards or suffer potential liability for injury caused by not providing the most reasonably safe product possible.

As the Geier majority noted, "[T]he savings clause reflects a congressional determination that occasional nonuniformity is a small price to pay for a system in which juries not only create, but also enforce, safety standards, while simultaneously providing necessary compensation to victims."(8) Thus, Geier appears to ratify the few federal appellate court decisions that rejected preemption of tort claims predicated on the marketing of a defectively designed air bag or passive seat belt.(9)

Politics as usual

In rendering its decision, the Court conducted a studied review of the legislative history of the Safety Act and the public evolution of the passive restraint standard (FMVSS 208). However, one aspect of this history the Court did not mention was the political forces that affected the restraint standard's course through the regulatory process. It seems only fitting to mention this history in an analysis of the Court's view of what was intended by our government regulators.

In April 1971, when FMVSS 208 was scheduled to require passive frontal safety for cars produced on or after September 1, 1973, the corporate heads of the Ford Motor Co., General Motors, and Chrysler Corp. met privately with then-President Richard Nixon and convinced him to indefinitely postpone the date the regulation would go into effect.(10) Over the next 13 years, automobile manufacturers waged a regulatory war with the National Highway Traffic Safety Administration (NHTSA), which resulted in the complete retraction of the passive protection aspect of FMVSS 208 in 1981.(11)

Then, in 1984, only after the Supreme Court held that the recission of safety standard 208 had been arbitrary,(12) did NHTSA issue what the Geier Court termed a temporary regulation. It allowed manufacturers to phase in frontal/driver passive protection in passenger cars over the next four years.

This proposed phase-in provision was the product of considerable debate between government regulators and the businesses they regulated. It was a compromise providing the least intrusive demand on the industry and inconvenience to consumers. In essence, the regulated wore down the regulators.

Basis for decision

The Supreme Court majority stressed that the phase-in provision of safety standard 208 was fundamental to its decision. The opinion states, "[The] DOT's comments, which accompanied the promulgation of FMVSS 208, make clear that the rule deliberately provided the manufacturer with a range of choices among different passive restraint devices. Those choices would bring about a mix of different devices introduced gradually over time ... all of which would promote FMVSS 208's safety objectives."(13)

A little later in the decision, the majority states,

   In effect, petitioners' tort action depends upon its claim that
   manufacturers had a duty to install an air bag when they manufactured the
   1987 Honda Accord. Such a state law--i.e., a rule of state tort law
   imposing such a duty--by its terms would have required manufacturers of all
   similar cars to install air bags rather than other passive restraint
   systems.... It thereby would have presented an obstacle to the variety and
   mix of devices that the federal regulation sought. It would have required
   all manufacturers to have installed air bags ... even though FMVSS 208 at
   that time required only 10 percent of a manufacturer's nationwide fleet be
   equipped with any passive restraint device at all. It thereby would have
   stood as an obstacle to the gradual passive restraint phase-in that the
   federal regulation deliberately imposed.(14)

The majority also stressed that it would be error--in light of the statute's savings clause--to find that the only claims that can proceed are those not covered by the standard. Where the federal law "creates only a floor, i.e., a minimum safety standard," this leaves "adequate room for state tort law to operate," the majority said.(15)

The Court observed that without the savings clause, one might broadly read the preemption clause as applying to standards imposed by court decisions in common law actions as well as state regulations. One could then find preemption of all nonidentical state standards established by tort actions covering the same aspect of performance covered by a federal standard--even when the standard was a minimum one.

The majority wrote,

   On that broad reading of the preemption clause, little, if any, potential
   "liability at common law" would remain. And few, if any, state tort actions
   would remain for the savings clause to save. We have found no convincing
   indication that Congress wanted to preempt, not only state statutes and
   regulations, but also common law tort actions, in such circumstances....
   The language of the preemption provision permits a narrow reading that
   excludes common law actions.(16)

Limited application

Surely, there will be many who will read into the Geier decision meaning that was unintended. Both in connection with other claims against manufacturers and in other types of litigation, some litigants will make every effort to extend this holding.

To do so would be serious error given the decision's limited application. The majority's rationale is founded on and adopted almost verbatim from arguments in the amicus curiae brief filed by the United States.(17) In it, the government states,

* "State courts are not necessarily precluded from entering tort judgments that a vehicle was defectively designed with respect to that aspect of performance (i.e., one established in a minimum standard)"(18) and

* "In cases in which tort liability does not conflict with a federal standard ... compliance with the standard does not immunize a manufacturer from liability. Those cases can arise frequently, since state tort law does not conflict with a federal `minimum standard' ... merely because state law imposes a more stringent requirement."(19)

To illustrate, the government provided the following examples of claims that would not be preempted:

* Failure to include antilock brakes--because FMVSS 105 does not address this issue and the transportation secretary has never stated that these brakes would compromise safety.(20)

* Failure to design a different type of reflective device to warn approaching traffic of a stopped vehicle even though FMVSS 125 provides options for the design of reflective devices--because the transportation secretary did not determine that the availability of options was necessary to promote safety.(21)

* Improper air bag installation.(22)

* Failure to install an air bag rather than a different type of passive restraint (for example, a seat belt) where evidence shows the vehicle had other design features that warranted installation of an air bag rather than a passive seat belt.(23)

The government did, however, make the point that in a rare case---outside the scope of the 1984 version of FMVSS 208--in which a manufacturer would be required to violate a federal standard in order to avoid liability under common law, that claim would be impliedly preempted.(24) Because this situation is exceedingly uncommon, it is clear that the government believes that preemption in this field should be rarely found.

The ruling's narrow application is made even more clear when the limitations of the 1984 phase-in provision are considered. First, these regulations only related to driver-side protection.(25) Second, they did not pertain to cars built before September 1, 1986. Third, the phase-in provisions of FMVSS 208 never applied to trucks and other nonpassenger cars. As the dissent in Geier observed, the Court's implied preemption holding does not apply in cases involving vehicles not subject to the phase-in provision.(26)

Even some no-air-bag claims involving cars governed by the phase-in would not be impliedly preempted. Referring to the government's brief, which stated that FMVSS 208 would not be frustrated by allowing a plaintiff to bring a claim that a vehicle's design features warranted an air bag, the Court stated,

   [The government] leave[s] open the question whether FMVSS 208 would preempt
   a different kind of tort case--one not at issue here. It is possible that
   some special design-related circumstance concerning a particular kind of
   car might require air bags, rather than automatic belts, and that a suit
   seeking to impose that requirement could escape preemption--because it
   would affect so few cars that its rule of law would not create a legal
   "obstacle" to 208's mixed-fleet, gradual objective.(27)

The Supreme Court concluded that there is no implied preemption of claims that simply ask a jury to find that a vehicle's compliance with minimum federal standards was insufficient to provide a safe or crashworthy vehicle.(28) Only when it is crystal clear that a successful tort action would cause an auto manufacturer to violate federal safety standards should implied preemption apply.(29)

Both the majority and the dissent in Geier agree that the savings clause preserves all tort actions that seek to establish liability on the basis that greater safety design is consistent with the promulgation of minimum safety standards.(30) This overriding conclusion by the Court will certainly serve as the guiding principle in studying any future preemption arguments raised by manufacturers.

Tort law is alive and well. Neither the Supreme Court nor the U.S. government has expressed any interest in displacing the common law in favor of a regulatory body that exclusively controls the safety interests of the U.S. motoring public.

Nevertheless, the convoluted history of the preemption issue in air bag litigation and the politicized nature of the evolution of the air bag regulation provide an important lesson for lawyers, safety advocates, and consumers: The fine line between federal and state authority to establish vehicle safety standards and judge in a court of law the design decisions of car manufacturers must be cautiously guarded.

Notes

(1.) Geier v. American Honda Motor Co., 120 S. Ct. 1913 (2000).

(2.) Id. at 1915.

(3.) Id. at 1918.

(4.) NATIONAL TRANSP. SAFETY BD., THE ROLES OF GENERAL SERVICES ADMINISTRATION AND DEPARTMENT OF TRANSPORTATION IN MOTOR VEHICLE SAFETY STANDARDS, REPORT NO. NTSB HSS 70 1, 4 (June 3, 1970) (emphasis added).

(5.) See generally Hoening, Resolution of "Crashworthiness" Design Claims, 55 ST. JOHN'S L. REV. 633 (1981).

(6.) Dorsey v. Honda Motor Co., 655 F.2d 650, 654 (5th Cir. 1981).

(7.) 15 U.S.C. [sections] 1397(c) (1998).

(8.) Geier, 120 S. Ct. 1913, 1920.

(9.) See, e.g., King v. Ford Motor Co., 209 F.3d 886 (6th Cir. 2000); Perry v. Mercedes Benz of North America, 957 F.2d 1257 (5th Cir. 1992).

(10.) National Archives Transcript, Part of a Conversation Among President Nixon, Lee Anthony Iacocca, Henry Ford II, and John D. Erlichman in the Oval Office on Apr. 27, 1971, Between 11:08 and 11:43 a.m., 37 Fed. Reg. 3911 (1972).

(11.) 46 Fed. Reg. 12,033 (Feb. 12, 1981); 46 Fed. Reg. 53, 419 (Oct. 29, 1981).

(12.) Motor Vehicle Mfrs. Ass'n of the United States v. State Farm Mut. Auto. Ins. Co., 163 U.S. 29 (1983).

(13.) Geier, 120 S. Ct. 1913, 1922.

(14.) Id. at 1925.

(15.) Id. at 1918.

(16.) Id.

(17.) Id. (adopting the example provided in the government's brief).

(18.) Amicus Curiae Brief of the United States at 8-9.

(19.) Id. at 21.

(20.) Id.

(21.) Id. at 21-22.

(22.) Id. at 26, n.23.

(23.) Id.

(24.) The only example the government could give was if a claim asserted that windshields should be break-away after NHTSA established FMVSS 212, requiring that windshields be designed to retain occupants and prevent ejection.

(25.) See 49 C.F.R. [sections] 571.208 (2000), which provides that compliance with the passive performance requirements of the standard for the driver's position exempts the manufacturer from having to provide passive protection on the driver's side until some time after September 1, 1993.

(26.) Geier, 120 S. Ct. 1913, 1931.

(27.) Id. at 1928.

(28.) Id. at 1919.

(29.) Id. at 1921.

(30.) Id. at 1931 (Stevens, J., dissenting).

For further reading

Larry E. Coben, Victory in a No Air Bag Case, TRIAL, Apr. 1995, at 48.

Steven C. Laird & Lorin M. Subar, When Air Bags Injure or Kill, May 1998, at 74.

Larry E. Coben practices law in Scottsdale, Arizona.