The auto-safety preemption war since Geier: a year ago, the Supreme Court ruled that consumers may not sue auto manufacturers for failing to equip a car with air bags. But the narrow decision does not affect many other auto safety claims.

Courts have continued to wrestle with the preemption issue in products liability cases since the Supreme Court rendered its decision in Geier v. American Honda Motor Co., Inc., (1) in May 2000. In Geier, the Court ruled that the National Traffic and Motor Vehicle Safety Act (2) impliedly, but not expressly, preempted a plaintiff's defective design claims against a vehicle manufacturer for failing to equip a car with a driver's-side air bag.

Fortunately, most courts have recognized that Geier is extremely narrow and applies only to rare cases. However, a few courts have tried to broaden its analysis to limit plaintiffs' access to the courts in other circumstances.

Geier's underlying facts are simple: In 1992, Alexis Geier was driving her 1987 Honda Accord when the car crashed into a tree, leaving her seriously injured. She had fastened the manual shoulder and lap belt, but the vehicle did not have an air bag. Geier sued Honda, claiming that the company negligently and defectively designed the Accord by failing to include a driver's-side air bag.

Before Geier, a number of federal and state courts had held that the Safety Act expressly preempted negligence and strict liability claims based on the defective design of motor vehicles. (3) These courts based their holdings on the following clause in the act:

   Whenever a Federal Motor Vehicle Safety Standard established under this
   subchapter is in effect, no state or political subdivision of a state shall
   have any authority either to establish, or to continue in effect, with
   respect to any motor vehicle or item of motor vehicle equipment any safety
   standard applicable to the same aspect of such vehicle or item of equipment
   which is not identical to the federal standard. (4)

However, these courts ignored or rendered meaningless the act's savings clause, which specifically protects tort actions from preemption. The savings clause states, "Compliance with any Federal Motor Vehicle Safety Standard shall not exempt any person from any liability under common law. (5)

In Geier, the majority found that the Safety Act did not expressly eliminate common law torts. (6) It said the savings clause allows tort law to operate as long as the relevant Federal Motor Vehicle Safety Standard (FMVSS) creates only a minimum requirement. (7)

"[T]he saving[s] 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," the Geier majority said. (8)

Although the Court rejected the manufacturer's express preemption argument, it held that the plaintiff's no-air-bag claim was impliedly preempted. In particular, the Court emphasized that its ruling was based on the unique nature of the passive-restraint requirements of FMVSS 208. In its effort to encourage manufacturers to install these restraints, such as air bags and automatic seat belts, the government allowed manufacturers to phase them in: Automakers were required to have these devices in 10 percent of the vehicles in their fleets by 1987, 25 percent by 1988, 40 percent by 1989, and 100 percent by 1990. (9)

The Court noted, "[T]he promulgation of FMVSS 208 make[s] clear that the standard 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." (10)

The Court went on to point out that Alexis Geier's claim would have conflicted with the stated purpose of FMVSS 208 because it "would have stood as an obstacle to the gradual passive-restraint phase-in that the federal regulation deliberately imposed." (11)

But the Court, citing the savings clause, refused to go further. Without the clause, the Court noted, one could read the Safety Act's preemption clause as applying to standards imposed by tort actions as well as state regulations. (12) If this were the case, then federal regulations could preempt all nonidentical state standards established by common law actions covering the same aspect of performance as an applicable federal standard, even where the federal standard only established a minimum requirement.

The Court made clear that it found no significant evidence that Congress intended such sweeping preemption. To the contrary, in fact, the Court said that lawmakers clearly wanted to maintain tort actions in their traditional role of providing compensation to victims of defective products:

   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 saving[s] 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. (13)

Defendants have already attempted to broaden Geier beyond its clear meaning, so it is important for plaintiff lawyers to emphasize just how narrow the holding was. The regulations at issue related only to driver's-side protection and did not apply to cars built before September 1, 1986. In addition, the phase-in provisions of FMVSS 208 never applied to trucks and nonpassenger cars, so the Court's preemption analysis does not apply to those vehicles.

Also, for the first time, the Supreme Court concluded that there is no express preemption of claims that a vehicle's compliance with the minimum safety standards was insufficient to provide a safe, crashworthy vehicle. In other words, compliance with minimum standards is not a defense to a products liability action for failure to design a safe vehicle. The Court concluded that implied preemption principles apply only when it is absolutely clear that a tort action would cause a manufacturer to violate a federal motor vehicle safety standard. (14)

The Court's ruling in Geier is largely based on arguments presented in the government's amicus curiae brief. The government argued that

   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. (15)

The government offered a number of examples of claims that would not be preempted, including claims for failure to install antilock brakes, claims for failure to design a different type of reflective device to warn traffic of a stopped motor vehicle, and claims that a manufacturer installed an air bag that deployed improperly. The government also argued that a claim that an air bag rather than a different passive restraint should have been installed would not be preempted if the plaintiff could prove that a certain model vehicle had other design features that warranted an air bag rather than a passive belt. (16)

Recent cases

One of the first cases to be decided after Geier was an Illinois case, Hurley v. Motor Coach Industries, Inc., in which the Seventh Circuit relied heavily on the Supreme Court ruling to uphold preemption of the plaintiffs design defect claims. (17)

Hurley was driving a Greyhound bus--and wearing a lap belt--when the bus crashed into a jackknifed tractor trailer. He suffered severe lower-body injuries when the front end of the bus collapsed on him. The bus was not equipped with an air bag, three-point belt, or any other structural enhancements that would have protected him in the crash. (18)

To recover under a defective design claim in Illinois, Hurley was required to prove that the bus was unreasonably dangerous by. showing that another design was "economical, practical, and effective." (19) Applying this to Hurley's claims, the Seventh Circuit found that manufacturers selling buses in Illinois would have to "incorporate [Hurley's] proposed steel cage, crumple zone, air bag, and three-point belt lest they face liability for selling an uncrashworthy vehicle." (20) The court considered the case factually similar to Geier, with the only difference being the type of vehicle involved. (21)

The court noted that buses were covered by FMVSS 208 and that the standard gave the manufacturer the option of installing a "lap belt or a complete passenger protection system." It concluded that Hurley's claim would have foreclosed one of those options.

"Geier confirms Motor Coach's theory that a state lawsuit that forecloses an option left open by FMVSS 208 is in fact preempted," the Seventh Circuit held. (22) Geier compels the conclusion that when a "... Federal Motor Vehicle Safety Standard leaves a manufacturer with a choice of safety device options, a state suit that depends on foreclosing one or more of those options is preempted." (23)

The court repeated none of Geier's serious analysis. The Seventh Circuit simply concluded that, if the motor vehicle safety standards provide an option, then regulators must have had a safety reason for offering that option, and one will be assumed even if it cannot be found in the legislative or regulatory history. (24)

The Eleventh Circuit arrived at a similar decision in James v. Mazda Motor Corp., in which the driver of a 1994 Protege was killed while wearing the vehicle's passive two-point shoulder belt but not the manual lap belt. The Court concluded that the plaintiffs failure-to-warn claim was impliedly preempted, and confirmed that the prior case of Irving v. Mazda Motor Corp. was still good law in the circuit after Geier. (25)

In reaching these decisions, the courts failed to appreciate and follow the Supreme Court's preemption reasoning in Geier. The Supreme Court upheld implied preemption in that case only because it was able to discern a unique purpose in FMVSS 208 for passenger cars during the passive-restraint phase-in period: Regulators provided options in order to encourage a combination of technologies during the shift to air bags.

However, the Hurley court, after making one weak attempt to suggest that lap belts were permitted as an option to encourage usage, could not find such a rationalization anywhere in the history of the regulation or in the preamble to the rule. The James court, meanwhile, did not even attempt to rationalize the choice of a particular option but simply stated that since the option existed, the plaintiff's claim was preempted.

Other courts have hewed more closely to Geier's analysis and refused to extend preemption to cases with different circumstances. For example, in Rogers v. Cosco, an Indiana appeals court reviewed the defendant's motion for summary judgment based on preemption in a child car-seat case. (26)

The case involved the Cosco Grand Explorer booster seat, which was marketed as a restraint for children weighing 30 to 60 pounds. The plaintiff argued that the seat was defective because it had failed to properly restrain JaQueria Rogers, who was 22 months old and weighed 30 pounds, during a front-end collision. The defense contended that the claim was preempted because the seat complied with all applicable Federal Motor Vehicle Safety Standards, particularly FMVSS 213. (27)

The Rogers court noted that booster seats are among the child restraint options allowed under FMVSS 213. (28) The court said that the standard includes both minimum performance and specific design requirements for child booster seats and that a manufacturer can meet the upper torso restraint standard by equipping the seat with a forward barrier, such as the shield on Cosco's Grand Explorer. (29)

The company claimed that since the lawsuit sought to prohibit booster seats like the Grand Explorer for children under 40 pounds, it would foreclose an option allowed under the standard with respect to a certain class of children.

However, the court rejected the defense argument that Geier stands for the proposition that, since the Grand Explorer met the federal standards, the plaintiffs action was preempted:

   The [Geier] court ... held ... that a tort action is not preempted if it
   "seeks to establish greater safety than the minimum safety achieved by a
   federal regulation intended to provide a floor, i.e., a minimum safety
   standard.... "

      In the present case, the evidence designated by both parties indicates
   that FMVSS 213 allows but does not require the use of a booster seat such
   as the Grand Explorer in protecting children from injuries. The evidence
   further indicates that FMVSS 213 is intended to establish only minimum
   safety standards for child restraint systems. Thus, as Geier explicitly
   provides, a state may impose a stricter standard through the agency of its
   general common law of torts. We conclude that there is no conflict between
   Rogers's proposed tort remedy and the minimum standards of FMVSS 213.
   Therefore, Rogers's attempt to impose a greater safety standard through the
   prohibition of booster seats such as the Grand Explorer for children under
   40 pounds is not preempted by the Safety Act. (30)

The Eighth Circuit reached a similar conclusion in Harris v. Great Dane Trailers. (31) The plaintiff sued Great Dane for catastrophic injuries he suffered when the car he was driving ran into the rear of a trailer that was stopped along an interstate highway. Harris alleged that the trailer had been defectively manufactured because it lacked reflective tape that would have made its back end visible at night to other motorists.

The trial court concluded that Harris's tort claim was preempted by FMVSS 108, the standard that governs lamps and reflective devices on passenger vehicles, trucks, buses, trailers, and motorcycles. (32) The Eighth Circuit reversed that ruling after conducting a thorough analysis of the regulatory history behind FMVSS 108.

The court determined that at the time that this trailer was manufactured, FMVSS 108 was only a minimum standard, and that the plaintiff could pursue a tort claim holding Great Dane to a higher standard. (33) The court specifically noted that the claim in Geier was impliedly preempted because FMVSS 208 was not merely a minimum air bag safety standard. Requiring air bags to have been installed in Geier's vehicle, the court said, would have been in direct conflict with FMVSS 208's gradual phase-in requirements for passive restraints. (34)

More important, the Eighth Circuit specifically stated that "we further read Geier as strongly suggesting that a minimum federal safety standard will rarely, if ever, impliedly preempt more rigorous common law safety obligations, particularly when, as here, the governing federal statute contains a common law remedial savings clause." (35) The court concluded that FMVSS 108 merely provided a minimum federal safety standard for trailer manufacturers, and therefore did not preempt Harris's claim that Great Dane was liable for failing to provide greater protection than the minimum standard required. (36)

A Georgia case, Griffith v. General Motors Corp., involved a claim that the plaintiff was severely injured because of the manufacturer's failure to provide a lap/shoulder belt in the front center position of a 1990 Chevrolet Silverado. (37) The defense argued that since FMVSS 208 gave the option of installing either a lap belt or a lap/shoulder belt, the plaintiff's claim should be preempted.

The trial court disagreed, holding that Geier was limited to passive restraints. The history of passive restraints under FMVSS 208, according to the court, showed that manufacturers were allowed choices during the phase-in period to encourage consumer acceptance of these restraints. The defendant was not able to point to any similar historical context regarding manual belts in the Griffith case. (38)

Practical effects

It is clear, in light of these cases, that air bag and passive seat-belt litigation will need to be pursued differently from how it was done in the past. With rare exceptions, most failure-to-install-airbag cases will no longer be viable. A few may still be pursued if the plaintiff can show the court that the vehicle in question had unique characteristics that required an air bag as opposed to another type of restraint system.

Other air bag cases can still be pursued: Those based on the deployment threshold being too low, the air bag being too aggressive, or the bag failing to deploy when it should have; or cases claiming that other technology, such as dual-stage inflators (which adjust the inflated pressure of an air bag depending on crash severity) should have been used. In fact, the government argued in its brief in Geier that defective-air-bag cases should not be preempted, (39) and several courts have already agreed. (40)

The situation is not quite so clear with passive-belt cases. In the past, most plaintiffs have argued that the better alternative to passive belts was a manual three-point belt plus an air bag. Given Geier's reasoning, this argument is unlikely to survive preemption, because defendants will be able to contend that the regulations allowed them to choose which passive-restraint system to use.

On the other hand, it would seem entirely consistent with Geier to argue that if a manufacturer chooses passive seat belts--as opposed to air bags or padded interiors or a combination of passive-restraint devices--then the belts must be designed properly. In other words, plaintiffs cannot dispute the manufacturer's choice among options, but they can challenge the way the chosen device was designed.

For instance, in a case involving door-mounted three-point passive belts, a plaintiff might argue that the geometry of the belt is poor for mitigating frontal collisions; if the passenger was ejected, the plaintiff might show that the door latch was defective. If the car had a two-point automatic shoulder belt system, he or she might claim that the vehicle's lap belt should have been motorized.

Even under an overly broad interpretation of Geier, these theories should survive preemption. Again, the key is to argue not that the manufacturer's choice of one passive restraint system over another was wrong, but that the device that was chosen was defectively designed. (41)

A Sixth Circuit decision rendered just before Geier lends support to this theory. King v. Ford Motor Co., involved a woman who suffered fatal injuries in a frontal collision: She was wearing the motorized shoulder belt, but not the manual lap belt, provided in her 1992 Ford Escort. (42) The plaintiffs claimed that the passive-restraint system was defective and unreasonably dangerous, and that Ford failed to warn consumers of the potential dangers associated with failing to wear the lap belt.

The jury returned a plaintiffs' verdict, and defendant Ford appealed. The company characterized the plaintiffs' suit as alleging that a restraint system involving a two-point automatic shoulder belt and manual lap belt is inherently defective, and thus their claim would limit the flexibility of FMVSS 208's passive-restraint provisions. The court, however, held that Ford had "misconstrued" the claim, specifically noting:

   In the case at bar ... plaintiffs' position was not that the design choice
   made by defendants for protecting against frontal collision--an automatic
   shoulder belt and knee bolster--was inherently defective, but that the
   specific design was defective due to failure to use load limiters and/or
   change the location of the knee bolster and/or change the location of the
   belt anchor." (43)

The court went on to say that the "savings clause, which states that compliance with an FMVSS does not shield the manufacturer from liability at common law, contemplates that manufacturers may be held liable for failure to exceed these minimum standards when their decisions were unreasonable." (44) The Court, citing several other decisions, concluded that as long as the plaintiff does not challenge the choice of the car manufacturer's decision to use a passive belt (or an air bag), but rather argues that the passive belt (or air bag) should have been safer than required by federal law, the plaintiffs claim is not preempted. (45) The King case is completely consistent with Geier and therefore is most assuredly still good law.

If a preemption motion is filed against a case not involving passive restraints, then plaintiffs should argue the specific narrowness of Geier and the unique policy considerations underlying the phase-in of passive restraints under FMVSS 208. They should remind the court that the requirements apply only to passive restraints--not manual belts or any other aspect of motor vehicles. Also, the passive-restraint requirements deal only with driver's-side protection in cars built after September 1, 1986, and they were never applied to trucks, buses, or other nonpassenger cars. Therefore, the logic of Geier should not apply to claims outside a very narrow category of cases.

Despite defendants' attempts to argue otherwise, simply meeting minimum standards does not allow a defendant to escape liability. In fact, Geier supports the proposition that defendants still face liability for their defective products even if they meet the minimum safety standards.

Clearly, defendants will continue to argue that Geier should be broadened from its original holding, and, unfortunately, some courts will listen. However, the language of the decision and a number of cases that have followed it clearly outline the steps plaintiffs can take to defeat preemption motions.

Notes

(1.) 529 U.S. 861 (2000). For a detailed analysis of Geier, see Larry E. Coben, The Air Bag Preemption War, TRIAL, Sept. 2000, at 64.

(2.) 49 U.S.C. [subsection] 30101-30170 (2001).

(3.) See, e.g., Johnson v. General Motors Corp., 889 F. Supp. 451,457 (W.D. Okla. 1997); Dykema v. Volkswagenwerk AG, 525 N.W.2d 754, 758 (Wis. Ct. App. 1994); Cox v. Baltimore County, 646 E Supp. 761,763 (D. Md. 1986).

(4.) 49 U.S.C. [section] 30103(b) (2001); see Lawrence Baron & Robert C. Sanders, No Dead End for Air Bag Cases, TRIAL, Feb. 2001, at 52.

(5.) 49 U.S.C. [section] 30103(e) (2001).

(6.) Geier, 529 U.S. 861,868.

(7.) Id. at 870. The history of the Safety Act strongly supports the conclusion that the minimum safety standards do not in any way limit the tort system. As the National Transportation Safety Board reported, "The imposition of Federal Motor Vehicle Safety Standards for certain safety characteristics of vehicles insures that a particular level of safety will be universally applied, but it does not insure that the highest level of safety will be the standard, nor does it insure that the highest practical level of safety will be available to purchasers in the market." NAT'L TRANSP. SAFETY BD., REP. NO. NTSB-HSS-70-1, SPECIAL STUDY, THE ROLES OF GENERAL SERVICES ADMINISTRATION AND DEPARTMENT OF TRANSPORTATION AND MOTOR VEHICLE STANDARDS 4 (1970).

(8.) Geier, 529 U.S. 861,871.

(9.) 49 C.F.R. [section] 571.208 (2001).

(10.) Geier, 529 U.S. 861,875.

(11.) Id. at 881.

(12.) Id. at 868.

(13.) Id.

(14.) Id. at 869-70.

(15.) Brief Amicus Curiae United States, at 21, Geier, 529 U.S. 861 [hereafter Brief].

(16.) Id. at 22-26.

(17.) 222 F.3d 377 (7th Cir. 2000).

(18.) Id. at 378.

(19.) Id. at 380 (quoting Baltus v. Weaver Div. of Kidde & Co., Inc., 557 N.E.2d 580, 585 (Ill. App. Ct. 1990)).

(20.) Id. at 381.

(21.) Id.

(22.) Id. at 382.

(23.) Id. at 383.

(24.) Id.. at 382.

(25.) 222 F.3d 1323 (11th Cir. 2000) (citing Irving v. Mazda Motor Corp., 136 F.3d 764 (11th Cir. 1998), cert. denied, 525 U.S. 1018 (1998)). The Irving decision was based on the theory that if the plaintiff's case forecloses an option permitted by a standard, then it is preempted. See also Moser v. Ford, No. 1:97CV194 (N.D.W. Va. Feb. 2, 2001) (dismissing plaintiffs claim because it would preclude manufacturer choice in installing restraint systems).

(26.) 737 N.E.2d 1158 (Ind. Ct. App. 2000).

(27.) 49 C.F.R. [section] 571.213 (2001).

(28.) Rogers, 737 N.E.2d 1158, 1166.

(29.) Id. at 1163.

(30.) Id. at 1165-66 (quoting Geier, 529 U.S. 861, 874).

(31.) 234 F.3d 398 (8th Cir. 2000).

(32.) Id. at 399.

(33.) Id. at 401.

(34.) Id. at 400.

(35.) Id. at 401 (emphasis in original).

(36.) Id. at 401; see also Great Dane Trailers v. Wells, No. 00-0022, 2001 WL 660696 (Tex. June 14, 2001).

(37.) No. 1:97-CV-940-RWS, slip op. (N.D. Ga. Sept. 20, 2000).

(38.) Note the almost identical holding in two rear-seat lap-belt cases: Nores v. Mazda Motor Corp., No. 98-0-004476 CKH (Haw. 1st Dist. Ct. Mar. 12, 2001), and Johnson v. Nissan Motor Co., No. 1:00.CV.1705 BBM (N.D. Ga. Apr. 2, 2001).

(39.) Brief, supra note 15, at 26.

(40.) See, e.g., Perry v. Mercedes Benz of N. Am., 957 F.2d 1257 (5th Cir. 1992).

(41.) See Irving, 136 F.3d 764, 768 n.4 (noting that if the plaintiff had argued that the particular design was defective, it is unlikely that the case would have been preempted).

(42.) 209 F.3d 886 (6th Cir. 2000).

(43.) Id. at 892.

(44.) Id. But see Fisher v. Ford, 224 F.3d 570 (6th Cir. 2000) (appears to hold that Geier stands for the proposition that compliance with the applicable FMVSS does provide grounds for preemption). See generally Baron & Sanders, supra note 4.

(45.) King, 209 F.3d 886, 892-93.

Robert M.N. Palmer practices law in Springfield, Missouri.