This article provides the reader with an understanding of the Supreme Court’s decision in Geier v. Honda[1] and its effects on air bag and passive belt cases.  There have now been several cases that have come out since the Geier decision and they will be analyzed as well.  Lastly, some suggestions will be made on how to avoid the pitfalls created by Geier and the cases that have interpreted it. 

The facts of Geier are simple.  In 1992, plaintiff Alexis Geier was driving her 1987 Honda Accord when it collided with a tree leaving her seriously injured.  The car was equipped with a manual shoulder and lap belt but not an air bag.  Ms. Geier wore the available seat belts at the time of the accident.  Ms. Geier sued Honda and its affiliates in the District of Columbia, the site of the accident, claiming Honda negligently and defectively designed the Accord because it lacked a driver’s side air bag.  The District Court dismissed the lawsuit on the basis of express preemption, holding Federal Motor Vehicle Safety Standard 208 gave the car manufacturers a choice as to whether to install air bags.  Since Ms. Geier’s claim sought to “establish a different safety standard” (i.e. an air bag requirement), it was expressly preempted by the provisions of the National Traffic and Motor Vehicle Safety Act of 1966, 80 Stat. 718, 15 U.S.C. § 1381 et seq. (1988 ed.). 

The Court of Appeals agreed with the District Court’s conclusion but on different grounds.   It held that given the Act’s “savings” clause, express preemption most likely did not apply to tort claims such as Geier; however, Ms. Geier’s claim did pose an obstacle to the accomplishment of the purposes of FMVSS 208 and therefore was  impliedly preempted.  

In the past, a number of state courts have held that the Safety Act neither expressly nor impliedly preempted a no-air bag claim.[2] All of the Federal Circuit Courts that had considered the question had found preemption.  One circuit rested its opinion on express preemption[3] and the others on implied preemption.[4]  The Supreme Court granted certiorari in Geier to resolve the differences created by those cases.

 

Express Preemption 

Though Geier is specifically based upon a finding of conflict implied preemption, the Court first dealt with the issue of express preemption.  The Supreme Court unanimously held that Congress had not intended to expressly preempt negligence and strict liability claims based upon the defective design of motor vehicles, despite the fact that a number of federal and state courts had made such a finding in the past.  The majority found that the Safety Act did not expressly  eliminate common-law torts.[5]  The Safety Act’s saving clause allows normal tort law to operate and thereby provide protection to tort victims, as long as the relevant Federal Motor Vehicle Safety Standard simply creates a minimum requirement.[6]         

At the time of the drafting of the Safety Act, courts around the country were adopting the concept of crashworthiness and applying common-law tort principles to the issue of a car manufacturer’s duty to build a vehicle that was crashworthy.[7]  Therefore, as Congress was drafting the Act, it was well aware of product liability litigation applying state common law to the design of motor vehicles.  It was also aware that a few states had enacted their own regulations that were not in conformity with the Safety Act.  The legislative history of the Safety Act, as well as the plain language of the Safety Act itself, makes clear that Congress did not want conflicting safety regulations promulgated by state and federal agencies, and therefore Congress included in the Act a preemption provision.  However, Congress also specifically provided that the Safety Act not preempt the common law.   

“While the federal statute under which these regulations were passed preempts inconsistent state standards, 15 U.S.C. 1392(d), compliance with the federal regulation does not exempt any person from any liability under common law, 15 U.S.C. 1397 (1966).”[8] 

The preemption clause of the Safety Act prohibits any state or political subdivision from establishing any safety standards not identical to the federal standards.  Congress clearly expressed its intent to affect only the conduct of states and political subdivisions rather than juries.  The Safety Act’s preemption provision does not mention the common law, but identifies the specific state activity which it intends to preempt (i.e., the activities of state and political subdivisions).  More importantly, Congress expressed clear intent to preserve the common law by stating that compliance with Federal Motor Vehicle Safety Standards does not exempt any person from any liability under common law.[9] 

Any company wishing to market an automobile in the United States must meet the minimum safety standards.  On the other hand, these standards are only minimum standards, and Congress made it clear that the threat of common-law liability would hopefully spur manufacturers to do much more than simply comply with the minimum federal standards.  Otherwise, they would be exposed to potential liability from marketing an unreasonably dangerous product.  The majority in Geier specifically stated in response to the above: “[o]n the other hand, the saving clause reflects a Congressional determination that occasional nonconformity 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.”[10]

 

Implied Preemption 

As noted above, the Court in Geier specifically based its finding on conflict implied preemption.  In particular, the Court emphasized its ruling was founded upon the unique nature of the phase-in requirements of FMVSS 208.  Specifically the Court stated that the unique nature of FMVSS 208 was fundamental to its decision and distinguished it from other safety standards.  

“[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.”[11]   

The Court went on to point out that Alexis Geier’s claim would have conflicted with the stated purpose of FMVSS 208.   

“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 that 10% of a manufacturer’s nationwide fleet be equipped with any passive restraint device at all. It thereby also would have stood as an obstacle to the gradual passive restraint phase-in that the federal regulation deliberately imposed.”[12]  

Without the savings clause, the Court noted one could read the preemption clause as applying to standards imposed by tort actions, as well as state regulations.  If this were the case, then the federal government or its regulations could preempt all non-identical state standards established in common-law actions covering the same aspect of performance as the applicable federal standard, even where the federal standard only established a minimum standard.  However, the Court made clear that they found no significant evidence that Congress intended such broad sweeping preemption and in fact to the contrary, it clearly wanted to maintain tort actions in their traditional role of providing compensation to victims of defective products. 

“On that broad reading of the pre-emption clause little, if any, potential ‘liability at common law’ would remain. And few, if any, state tort actions would remain for the saving clause to save. We have found no convincing indication that Congress wanted to pre-empt, not only state statutes and regulations, but also common-law tort actions, in such circumstances.”[13]

 

Geier’s Limitations on Preemption 

There have already been attempts to broaden Geier beyond its clear meaning.[14]  This will occur not only in other types of crashworthiness cases, but also in any type of litigation where potential preemption exists.  When crafting future responses to motions for preemption, it will be extremely important to recognize that Geier is based upon - and at certain portions of the decision has adopted verbatim - the arguments presented to the Court in the Brief for United States as Amicus Curiae.[15]  The Government very clearly argued that:  

1)       “…state courts are not necessarily precluded from entering tort judgments that a vehicle was defectively designed with respect to that aspect of performance…”[16] (i.e., an aspect of performance established in a minimum standard). 

2)       “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.”[17] 

3)       The Government in its brief provided a number of examples where claims of preemption would not be preempted: 

a.    Failure to include antilock brakes since FMVSS 105 does not address this issue and the Secretary has never stated that ABS brakes would degrade safety;[18]

b.     Failure to design a different type of reflective devices to warn approaching traffic of a stopped vehicle even though FMVSS 125 provides options for the design of the reflective devices, because the Secretary did not determine the availability of options was necessary to promote safety;[19]

c.       Claims that a manufacturer installed an air bag that improperly deployed;[20]

          and

d.       A claim that an air bag should have been installed rather than a different type of passive restraint (seat belt) is not preempted upon proof that a certain model vehicle had other design features which warranted an air bag rather than a passive belt.[21] 

The United States stated that if a manufacturer (was required to violate a federal standard in order to avoid tort liability, that claim would be impliedly preempted.  However, this would be an extremely rare situation.  Though the Government was able to give only one such example (a claim asserting that windshields should break away after NHTSA had established FMVSS 212 requiring that windshields be designed to retain occupants and prevent ejections[22]), the example itself is farfetched.  No practical plaintiffs lawyer would bring suit against a car manufacturer where the alternative design would required the defendant to violate Federal Motor Vehicle Safety Standards.  No jury would buy it. 

Rationale of Geier 

It is important when trying to analyze the import of Geier to make several observations about the 1984 phase-in provision of FMVSS 208.  First, these regulations only related to driver side protection.[23]  Second, they did not apply to cars built before September 1, 1986.  Third, the phase-in provisions of FMVSS 208 never applied to trucks and non-passenger cars.  As the dissenting opinion makes clear, the entire basis for implied preemption as stated by the majority is totally inapplicable to vehicles not subject to the phase-in provisions of FMVSS 208.[24] 

More importantly, and for the very first time, the Supreme Court concluded that there is no express preemption of claims which simply ask the jury to find that a vehicle’s compliance with the minimum Safety Standards was insufficient to provide a safe, crashworthy vehicle.  Stated another way, compliance with the minimum federal standards is not a defense to a products liability action for failure to design a safe vehicle.   

“As we have previously explained, the saving provision still makes clear that the express pre-emption provision does not of its own force pre-empt common-law tort actions. And it thereby preserves those actions that seek to establish greater safety than the minimum safety achieved by a federal regulation intended to provide a floor.”[25] 

The Court concluded that only when it is absolutely clear that a tort action would cause a manufacturer to violate a Federal Motor Vehicle Safety Standard should implied preemption be applicable.[26] 

Cases Since Geier 

Since the United States Supreme Court came down with the Geier decision, there have been several lower courts that have interpreted Geier.  Despite the clear language of the Geier opinion itself, there does appear to be some tendency by a few courts to broaden the logic of Geier to apply to situations that the Supreme Court clearly did not intend.  The first such situation is found in the case Hurley v. Motor Coach Industries, 222 F.3d 377, (7^th Cir. 2000)  The plaintiff in Hurley was driving a Greyhound bus when it collided with a jack knifed trailer.  The plaintiff suffered severe lower body injuries in the collision when the front end of the bus collapsed in upon him.  Mr. Hurley was wearing a lap belt at the time of the accident.  The bus was not equipped with an air bag, three-point belt, or any other structural enhancements that would have protected the driver in an accident such as this one.  Even though it was not briefed to the Seventh Circuit, the Court based its opinion upholding the lower court’s preemption of this case in large part upon Geier. 

The plaintiff was required in Illinois to establish that the defendant’s product was unreasonably dangerous by presenting an alternative design that was ‘“economical, practical, and effective.”[27]  Plaintiff produced experts who were going to testify that the bus should have contained a knee bolster, a three-point seat belt, an air bag, and a steel cage.  The Seventh Circuit interpreted the plaintiff’s theory to require manufacturers selling busses in Illinois to “incorporate his proposed steel cage, crumple zone, air bag, and three-point belt least they face liability for selling an uncrashworthy vehicle.”[28]  The Court mistakenly considers this case remarkably close to Geier, holding that with the exception of the fact that Hurley involved busses and Geier involved a car, there was no significant difference between the two cases.  The Court noted that busses were also covered by FMVSS 208 and that the Standard did provide an option to the manufacturer of either installing a “lap belt or a complete passenger protection system.”  The Court then concludes that the bus manufacturer was given an option by the FMVSS and that Mr. Hurley’s case would have foreclosed one of those options.  “Geier confirms Motor Coaches’ theory that a state lawsuit that forecloses an option left open by FMVSS 208 is in fact preempted.”  If its opinion were not clear enough, the Court goes on to state that the Geier case governs the Hurley case and compels the conclusion what 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.”[29]   

The unsettling aspect of the Court’s opinion in Hurley is that none of the serious analysis that took place in Geier took place in Hurley.  In fact, the Court in Hurley simply arrives a the conclusion that if there is an option provided by the Standards, then NHTSA must have had a safety rationalization for that option and one will be assumed even if it cannot be found in the legislative or regulatory history.  As was made clear from the analysis of the Geier opinion above, the Supreme Court only applied implied preemption because it was able to discern a very special and unique purpose in FMVSS 208 for passenger cars during the phase-in period for passive restraints.  The options in 208 regarding air bags in passenger cars was specifically to encourage a mixture of technologies and the final movement towards air bags.  However, the Court in Hurley, after making one weak attempt to suggest that lap belts were permitted as an option so as to encourage usage, was unable to fine anywhere in the history of the regulation or in preamble to the rule such a rationalization.  Clearly Hurley is troublesome for its lack of analysis of the basis for the option.  More problematic is its reduction of the complex and careful analysis of Geier down to the concept that if a regulation promises an option, a tort theory that would foreclose one such option is preempted.  In the Seventh Circuit or wherever Hurley is a threat, the language of the government’s Amicus brief regarding options as discussed in-detail above must be used. 

One case that came down just before Geier and two that came down right after do suggest that there are ways that one can frame a passive belt or an air bag case such that it can avoid the problem as set forth in Hurley interpreting Geier (i.e. if plaintiff’s theory takes away an option provided by the Federal Motor Vehicle Safety Standards, then it is preempted).  The first of these three cases is King v. Ford Motor Company, 209 F.3d 886 (6^th Cir. 2000).  Mrs. King received massive injuries that proved to be fatal when she was wearing the motorized shoulder belt but not the manual lap belt when her 1992 Ford Escort was involved in a frontal accident.  The plaintiffs brought their claim on the basis that the automatic restraint system was defective and unreasonably dangerous to a consumer and that Ford failed to warn consumers of the potential dangers associated with the failure to wear the manual lap belt.  A plaintiffs’ verdict was returned and defendant Ford Motor Company appealed.   

The Sixth Circuit, after reviewing FMVSS 208 and the three options provided during the phase-in period, did seem to conclude that a state law removing one option could be ‘“an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,”’ namely the objective that manufacturers have flexibility in choosing a restraint system.[30]  Defendant Ford contended that plaintiffs’ suit would in fact limit its flexibility as the company characterized plaintiffs’ suit as one claiming that a restraint system involving a two-point automatic shoulder belts and manual lap belts are inherently defective.  The Court, however, held that Ford had “misconstrued” the plaintiffs’ case specifically noting  

“[i]n the case at bar… plaintiffs’ position was not that the design choice made by defendants for protecting against frontal collisions –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.”[31]   

The Court specifically held that such a claim is not preempted by the Safety Act.  The Court went on to state that the “saving clause, which states that compliance with a 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.”[32]  The Court, while citing to several other decisions, essentially concludes that as long as  the plaintiff does not challenge the choice of the car manufacture’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, that plaintiff’s theory is not preempted.[33]  The King case is completely consistent with Geier and therefore is most assuredly still good law.

A similar result was returned in the case of Choate v. Champion Home Builders Company, 222 F.3d 788 (6^th Cir. 2000).  The Tenth Circuit in Choate  held that in a case involving smoke alarms that the plaintiff’s theory would not affect the choice made by the defendant, but would simply increase the effectiveness of the particular choice of the defendant and therefore “is one of those actions preserved by the saving clause because it seeks to establish greater safety than the minimum safety achieved by a federal regulation intended to provide a floor.”[34]

Plaintiff’s theory in Choate was that the defendant should have been required to add a battery backup to their hard-wired smoke detectors and/or provide warnings with the hard-wired smoke detectors.  The plaintiff was not claiming the defendant should have installed battery powered smoke detectors instead of hard-wired detectors.  Therefore, the plaintiff’s case was not preempted because they were arguing that the defendant should have gone beyond the minimum provided by the Standard but not questioning the choice of the defendant to use hard-wired smoke detectors.

In the case of Rogers v. COSCO, 2000 WL 1641158 Ind.App., 2000,  the Court reviewed defendant’s motion for summary judgment based upon preemption in a child car seat case.  Plaintiff had argued that the COSCO Grand Explorer booster restraint seat was defective in that it had failed to properly restrain Jaqueria Rogers during a frontal collision.  The defendant responded in its motion that the child car seat complied with all applicable Federal Motor Vehicle Safety Standards, most importantly FMVSS 213 and that therefore plaintiff’s claim was preempted.  The Geier decision had been rendered by the Supreme Court approximately a week before the oral arguments in this case, and therefore was not briefed to the Court, but it was discussed during oral arguments.  The Court noted that FMVSS 213 allows a manufacturer to meet its performance criteria regarding child restraint systems through the use of booster seats.  The Court further commented that FMVSS 213 contains both minimum performance and specific design requirements for child booster seats, and that a manufacturer is permitted to meet the upper torso child restraint standard through the use of a forward barrier such as the shield placed on the COSCO’s Grand Explorer.  The Court however rejected the defendant’s argument that the Geier case stands for the proposition that since the Grand Explorer met the Federal Motor Vehicle Safety Standards, the plaintiff’s action was preempted.

“The court [Geier] further held, however, 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 doing so, the Court cited the Brief for the United States as Amicus Curiae 21….”[35]

“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, Roger’s attempt to impose a greater safety standard through the prohibition of booster seats such as the Grand Explorer for children under forty pounds is not preempted by the Safety Act.”[36]

Clearly the Court in Rogers got it right.  Simply because a defendant meets the minimum standards of the Federal Motor Vehicle Safety Standards does not mean it is immune from suit.  Even where FMVSS 213 does permit - though does not require - booster seats Federal Motor Vehicle Safety Standards only establish minimum safety standards and a state can require more through its tort system from a manufacturer than just meeting the minimum standards.

The case of Griffith v. General Motors,[37] is also very instructive.  This case involved a claim that the plaintiff was severely injured as a result of only being provided a lap belt as opposed to a lap/shoulder belt in the front center position of a 1990 Chevrolet Silverado.  The defendant argued that since it was provided an option under FMVSS 208 of installing either a lap belt or a lap/shoulder belt, that plaintiff’s claim should be preempted.  In an extremely well-written decision, the trial court concluded that the lap belt claim was not preempted.  The Court held that the Geier decision involved a passive restraint and that the history of passive restraints under FMVSS 208 shows that manufacturers were allowed choices during the phase-in period to encourage consumer acceptance of passive restraints and to actually promote passive restraints themselves.  The defendant was not able to point to any such historical context regarding manual belts in the Griffith case and the Court therefore interpreted Geier as limited to passive as opposed to active belts. 

Practical Effects of Geier

It is clear in light of the above-mentioned cases that air bag and passive belt cases will need to be pursued in a slightly different way than they have in the past.  First of all, with rare exceptions, most failure-to-install air bag cases will no longer be viable.  It is true that some unique no-air bag cases may still be pursued if plaintiff can demonstrate to the court that the particular car in question had characteristics unique to it which required an air bag as opposed to another type of restraint system.  It would seem that this would be a very narrow exception to the general rule.

On the other hand, air bag cases based on the deployment threshold being too low, that the air bag is too aggressive, that the bag failed to deploy when it should have, or that other technology should have been employed such as dual stage inflators, are still good cases.  First of all, as mentioned above in the discussion of the Geier case, one of the very examples used by the Government in its Amicus brief before the United States Supreme Court in Geier was a situation of a defective air bag.  The Government argued that these types of cases should not be preempted.[38]  Second, there already have been several cases that have held the lawsuit involving air bags that alleges that the design of the particular air bag was defective (as opposed whether or not one should be installed) is a theory that is not preempted.  The most important of these cases is Perry v. Mercedes Benz of North American, Inc., 957 Fed.2d 1257 (5^th Cir. 1992).  In that particular case, the plaintiff alleged that the air bag in her car had “an unreasonably dangerous deceleration velocity deployment threshold” despite the fact that it met the requirements of FMVSS 208.[39]  In other words, the plaintiff did not challenge Mercedes’ decision to place an air bag in its car, but rather argued that the air bag should have been safer than required by federal law.  The Court held that the case was neither expressly nor impliedly preempted.  The Court found that it was “obvious” that there is no impossibility of complying with both federal and state law if a state law requires a higher level of protection than federal law, as the system that complied with the state requirements would satisfy federal regulations as well.  The Court also found that the differing levels of protection did not create an obstacle to fulfillment of federal objectives. 

“Once the manufacturer chooses an option that includes an air bag system, Standard 208 S5-S6 merely set forth minimum performance requirements for that system.  To allow tort liability for the design of that system would not remove or require any particular choice, or otherwise frustrate ‘flexibility’ that the federal scheme provides.  We recognize that the manufacturer who chooses to meet only the bare minimum performance requirements will be burdened with the potential for tort liability, but this is the exact burden that Congress preserved in the Savings Clause when it stated that “[c]ompliance with any Federal Motor Vehicle Safety Standard … does not exempt any person from any liability under common law.”  Congress sought to meet its goal of minimizing the number of deaths and injuries caused by auto accidents by setting forth minimum standards and leaving common law liability in place.”[40]

Even though Perry was decided prior to Geier, its logic is totally consistent with it.  Therefore Geier, and even Hurley, should not preclude the pursuit of air bag cases other than those alleging a failure to install.[41]

Turning to passive belt cases, the situation is not quite so clear.  In the past, most of these cases have been pursued by simply arguing that the alternative design was the installation of a manual three-point belt plus an air bag.  Given the reasoning of Geier, it is doubtful that such an argument will survive preemption.  On the other hand, other alternative designs certainly do exist.  For instance, with door-mounted three-point passive belts, it probably should be argued that instead of a three point manual belt and air bag, that in a frontal collision the geometry of the belt is very poor or in an ejection case that the door latch was defective and should have prevented the door from opening.  In cases involving two-point automatic shoulder belts, the King case points the way to one possible solution.  In the proper case, one should argue that the anchor points are wrong, there should be guide loops or upper adjustable anchor points for the shoulder belt, the webbing of the belt is too stiff, the knee bolster should have been designed differently, that a seat ramp should have been provided, etc.  Even under an overly broad interpretation of Geier, these theories should survive preemption.  Again, the key here is to not argue that the choice of the manufacturer of one passive restraint system over an other is defective, but to argue that the execution of that choice was defective.[42]

Under FMVSS 208, as discussed above, the manufacturers were provided three choices.  Roughly speaking, they included air bags, passive belts, or friendly interiors.  It should therefore be permissible to argue that the “choice” that the Supreme Court in Geier discussed was the choice between one of these above-mentioned three categories.  In other words, a plaintiff cannot argue that a defendant should have chosen from category 1 (air bags and manual belts) as opposed to category 2 (passive belts).  This argument is entirely consistent with Geier and would mean that in a passive belt case one could propose as alternative designs different types of passive belt systems, in other words, staying within the second category.  It can be imagined that under this interpretation one could argue that a three-point door-mounted passive restraint system should have been utilized as a design alternative in a specific case, as opposed to a two-point automatic shoulder belt system or possibly that the lap belt of the two-point automatic shoulder system should have been motorized.  This latter alternative is not a different restraint system as all the plaintiff is claiming is that the technology of the shoulder belt that allows it to move along track also be applied to the lap belt.  Clearly in light of Geier and Hurley, plaintiffs will have to be creative to argue that they are not attacking the choices of the manufacturer, but just the execution of design.

Warnings: The Fisher Case

Unlike all of the above-mentioned cases, which to one degree or another revolve around the concept of choice of options as found in the FMVSS, Fisher v. Ford Motor Company[43] stands out as an extreme departure from the reasoning of Geier.  In fact, upon close review of the decision, it turns out to not only be fundamentally unsound, but a complete misreading of the rationale in Geier.

The facts of the Fisher case are rather simple.  Ms. Fisher, while driving a 1996 Ford Sable which contained both driver and passenger side air bags, was involved in a low-speed frontal collision which resulted in the air bags deploying.  It was admitted by the parties that Ms. Fisher was seriously injured by the deployment of the air bags and had they not deployed she would have been uninjured.  At the time of the collision, Ms. Fisher was sitting extremely close to the steering wheel due to the fact that she was a small statured woman and had adjusted her seat as far forward as possible.   Ms. Fisher pursued a failure-to-warn claim against Ford Motor Company arguing that the warning provided in the vehicle was inadequate to warn her of the danger of being so close to the air bag.

The warning that was found in the vehicle was on the visor and was mandated by FMVSS 208.[44]  The District Court held that Fisher’s warning claim was not expressly preempted; however, in applying implied preemption analysis the trial court did hold that the plaintiff’s warning claim was impliedly preempted and that plaintiff could not argue to a jury that any other language would be permissible on the visor or that any other language could be placed elsewhere in the vehicle regarding the air bag.  The trial court, however, did hold that the same language as contained on the visor might be placed elsewhere in the vehicle and allowed the plaintiff to proceed to the jury on that theory.

On appeal the Sixth Circuit looked just at the issue of whether the failure-to-warn claim was preempted.  In reviewing the Geier case which had just come down, the Sixth Circuit makes an absolutely remarkable statement.  Despite the clear language in Geier that says that meeting the minimum Safety Standards will not be a bar to a tort claim, the Fisher court explicitly reads Geier to the contrary.  “In that case [Geier] the Court held that, absent express preemption by the National Traffic and Motor Vehicle Safety Act, and despite the safe harbor it creates for common law tort actions, ordinary preemption principles nevertheless can apply to bar a suit against a manufacturer who had adhered to, but did not go beyond, federal safety standards concerning air bags.” (Emphasis added.)  Based upon this interpretation of Geier, the Sixth Circuit affirmed the trial court’s opinion.

The Sixth Circuit reasoned that “NHTSA policy indicated that NHTSA thought of its warning language as not simply the minimum, but as the sole language it wanted on the subject.  NHTSA feared ‘information overload,’ i.e., that additional warnings would distract from the warnings it had determined were critical, leading consumers not to focus properly on the latter.”[45]  The Court even went so far as to disregard an opinion letter from NHTSA specifically stating that “[t]he Standard [208] did not prohibit vehicle manufacturers from placing other accurate information concerning air bags or seat belts in locations in the vehicle other than the sun visor.”[46]  The Court gave as its reasoning for disregarding the letter that it was written two years after the accident in this case and dealt with a different hypothetical warning (risks to children). 

The Fisher opinion is flawed in several very significant respects.  First of all, the Court in Geier specifically stated that just meeting FMVSS 208 would not preempt a tort action.[47]  Furthermore, the Supreme Court only concluded there was preemption in Geier after it had engaged in a very careful and detailed study of FMVSS 208 and it specifically relied on NHTSA’s interpretation of its own rules in coming to that conclusion.  Unfortunately, in Fisher, the Court never engaged in such a careful analysis and completely disregarded NHTSA’s own position on this issue.

It is interesting to note that nowhere in the decision did the Court ever address the preamble to the rule covering the visor warning or the limiting language of the rule itself.  The preamble specifically states:

“[M]anufacturers are free, of course, to provide additional information in other places, such as the owners manual.” (emphasis added). (58 Fed. Reg. 46554)

The language in the rule itself specifically provides:

“No other information shall appear on the same side of the sun visor to which the label is affixed.  Except for the air bag alert label placed on the visor pursuant to §4.5.1(c) of this standard, no other information about air bags or the need to wear seat belts shall appear anywhere on the sun visor.” (58 Fed. Reg. at 46554 §571.208, §4.5.1(b)(2)) (emphasis added).

Though it is true that the NHTSA may have had some concerns about “information overload,” it is obvious the NHTSA recognized that manufacturers may include other warnings in the vehicle.  In light of the above, it is extremely difficult to justify the Court’s holding that the field of air bag warnings has been implicitly preempted.[48]

Turning to the letter written by Frank Spears, Chief Counsel of the NHTSA, the Court, as mentioned above, did note this letter but essentially ignored its importance.  As already mentioned, this is particularly disturbing in light of the Supreme Court’s reliance upon the NHTSA’s own interpretations of its rules as a basis for its opinion in Geier.  It is also difficult to see how the fact that the letter was written two years after the accident in the Fisher case has any relevance whatsoever to NHTSA’s interpretation of its own regulation.  More importantly, despite the Court’s observation to the contrary, the comments of Mr. Spears were not specifically directed to child warnings.  The exact language of Mr. Spears’ letter reads as follows:

“You asked whether this final rule precluded automobile manufacturers from placing air bag information labels elsewhere in the vehicle (i.e., other than on the sun visor) with a text different than that of sun visor label.  The answer is no.  §4.5.1.(b)(1) of Standard No. 208 specified the precise information concerning air bags that was required to be placed on the sun visor, and §4.5.1.(b)(2) specified that ‘no other information concerning air bags or seat belts shall spear anywhere on the sun visor.’  The Standard did not prohibit vehicle manufacturers from placing other accurate information concerning air bags or seat belts in locations in the vehicle other than the sun visor.”[49]

Clearly the operative portion of Mr. Spears’ letter never even references warnings having to do with children.  It may be questioned whether, even if it had, it would affect the underlying rationale of Mr. Spears that other information could be placed elsewhere in the vehicle regarding air bags.

Obviously it will be very important to resist the logic of Fisher wherever one brings an air bag warning case.  It can only be hoped that future courts will recognize the flaws in the Sixth Circuits’ logic in Fisher. 

It should also be recognized that the Court in  Fisher was interpreting the version of FMVSS 208 that was adopted September 2, 1993 and which applied to vehicles manufactured after September 1, 1994 and through February 25, 1997 when the new amended rule on warnings took effect.  The new rule has never been interpreted by any court as of this date.  Clearly prior to September 1, 1994, an air bag warning case would still be viable as there were no applicable standards regarding warnings on air bags at that time.  In fact, just eight days after the Fisher case, the same Court issued an opinion entitled Hirisch v. Volvo, 2000 Fed. App. 2092P (6^th Cir. August 2000).  In that particular case, a six-year old child was killed in a 1993 Volvo.  The trial court had not allowed the plaintiff to pursue a warning case.  On appeal the Sixth Circuit overturned that decision and ruled that the plaintiff on retrial can go forward with her warning claim.  Given that no standard was in effect for the 1993 Volvo regarding warnings, it makes perfectly good sense that that claim could not possibly be preempted.

If one is going to pursue an air bag warning case, it is important that your case included the following allegations:  The manufacturer failed to effectively communicate the dangers of air bags by failing to use direct language, warning about death, failing to post the visor warnings elsewhere in the vehicle, failing to use additional in-vehicle warnings with bright and direct language, failing to advise occupants to move the seat in the rear-most position on the seat track, and maybe even failing to use crash videos to demonstrate the dangers of air bags.  It is also possible that manufacturer should be required to notify consumers that it failed to test its air bag system for women and children.  Even if the case is filed in the Sixth Circuit, one can still argue that the visor warning as found between 1994 and 1997 should have been placed elsewhere in the vehicle such as on the steering wheel or dash so as to catch the occupant’s attention.

Conclusion 

The Geier case and those cases that have come subsequent to it will challenge plaintiffs attorneys to pursue their air bag and passive belt cases in ways they would not have felt compelled to do so in the past.  Nonetheless, as pointed out above, there still are a number of avenues left open for the pursuit of these cases that should permit one to avoid the pitfalls of preemption.  There can be no doubt that the area of preemption will continue to evolve and that anyone contemplating an air bag or passive belt case will need to pay particularly close attention to it.

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[1] Geier v. American Honda Motor Company, Inc., ___U.S.___, 120 S. Ct. 1913 (2000).[1] See Drattel v. Toyota Motor Corp., 699 N.E.2d 376, 379-386 (N.Y. 1998); Minton v. Honda of America Mfg., Inc., 684 N. E. 2d 648, 655-661 (Ohio 1997); Munroe v. Galati, 938 P.2d 1114, 1116-1120 (Ariz. 1997); Wilson v. Pleasant, 660 N. E.2d 327, 330-339 (Ind. 1995); Tebbetts v. Ford Motor Co., 665 A. 2d 345, 347-348 (N.H.1995).[1] See Harris v. Ford Motor Co., 110 F.3d 1410, 1413-1415 (9^th Cir. 1997)[1] See Montag v. Honda Motor Co., 75 F.3d 1414, 1417 (10^th Cir. 1996); Pokorny v. Ford Motor Co., 902 F.2d 1116, 1121-1125 (3d Cir. 1990); Taylor v. General Motors Corp., 875 F.2d 816, 825-827 (4^th Cir. 1989); Wood v. General Motors Corp., 865 F.2d 395, 412-414 (1^st  Cir. 1988).[1] Geier, 120 S. Ct. at 1918.[1] Id. at 1920.  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 Traffic 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 Traffic Safety Bd., Rep. No. NTSB-HSS-70-1, Special Study, The Roles of General Service Administration and Department of Transportation and Motor Vehicle Standards at 4 (1970).[1] Larsen v. General Motors Corporation, 391 F.2d 495 (8^th  Cir. 1968)  (See generally Hoening, “Resolution of Crashworthiness Design Claims,” 55 St. John’s L. Rev. 633 (1981)).[1]

Dorsey v. Honda Motor Co., Ltd., 655 F.2d 650, 656-57 (5^th  Cir. 1981).

[1] 15 U.S.C. § 1397(k) (1988).[1] Geier, 120 S. Ct. at 1920.[1] Id. at 1922.[1] Id. at 1925.[1] Id. at 1918.[1] Manufacturers have already filed preemption motions based on Geier in passive belt and rear seat lap belt cases.  As of this date, none have been successful.[1] Geier, 120 S. Ct. at 1919 (adopting an example provided in the Government’s Brief).[1] Brief for United States as Amicus Curiae Supporting Affirmance at 8 and 9, Geier.[1] Brief for United States as Amicus Curiae Supporting Affirmance, at 21, Geier.[1] Id.[1] Geier, 120 S. Ct. at 1925.[1] Brief for United States as Amicus Curiae supports Affirmance at 21.N.3, Geier.[1] Id.[1] Id.  at 23.[1] See FMVSS 208, 49CFR  § 571.208, S.4.1.4. (1995)[1] Geier, 120 S. Ct. at 1930.[1] Id. at 1919.[1] Id. at 1919.[1] Hurley, 222 F.3d at 380, citing Baltus v. Weirer Division of Kidde & Co., Inc., 199 Ill.App.3d 821, 145 Ill.Dec. 810, 557 N.E.2d 580, 586 (1990).[1] Id.[1] Id. at 382.  The Eleventh Circuit arrived at a similar decision in James v. Mazda, 222 F.3d 1323(11^th Cir. 2000)  which held that the prior case of Irving v. Mazda, 136 F.3d 764, (11^th Cir. 1998), cert. denied, 525 U.S. 1018 (1998) is still good law in the Eleventh Circuit after Geier.  The Irving decision was based upon the theory that if plaintiff’s case forecloses an option permitted by a Standard, then it is preempted.[1] Id. at 892, citing Hines v. Dandowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941).[1] Id. at 892.[1] Id. [1] Note, the same result was arrived at by the trial courts in Zapoli v. Mazda, Civil Action No. 1:98-CV-3210.Cap, U.S. District Court, North District of Georgia (Order date May 5, 2000) and Sanderson v. Mazda, Civil Action No. CI99-PL1147, Circuit Court of the Ninth Judicial Circuit in Osceola, Florida (Order date October 30, 2000).  See also the Court’s order in Kendall v. Hyundai, Civil Action No. 2-99-3463-18, U.S. District Court, District of South Carolina (Order date November 20, 2000), where the Court did specifically preempt plaintiff’s design claim in a passive belt case on the basis that the plaintiff had attacked the choice of this design by defendant, but stated that if plaintiff had been criticizing the design of the particular system, and not the choice, the claim would not be preempted.  The defendant in that case specifically admitted this was the law.  The Court also held that the warning claim was not preempted on the basis that there was no FMVSS  regulation warnings for passive belts.[1] Id. at 796, citing Geier v. American Honda Motor Company, Inc., ___U.S.___, 120 S.Ct. at 1919.[1] Id.[1] Id.[1] No. 1:97-CV-940-RWS, slip op. (N.D. GA Sept. 20, 2000).[1] United States as Amicus Brief in Geier at 21N.3.[1] Perry at 1260.[1] Id. at 1265 – 1266.[1] Note Harris v. Ford Motor Company 110 F.3d 410 (C.A. 199) noted in a footnote that if one were alleging that the air bag itself was defective the claim would not be preempted.[1] See Irving v. Mazda Motor Corporation, 136 F.3d 764, n.4  (11^th Cir. 1998), cert. denied, 525 U.S. 1018 (1998). The court here notes that if the plaintiff had argued that the particular design was defective it is unlikely that the case would have been preempted.[1] Fisher v. Ford Motor Co., 224 F.3d 570 (6^th Cir. 2000)[1] The warning on the 1996 Sable read as follows:CAUTION – TO AVOID SERIOUS INJURY:For maximum safety protection in all types of crashes, you must always wear your safety beltDo not install rearward-facing child seats in any front passenger seat position.Do not sit or lean unnecessarily close to the air bag.Do not place any object over the air bag or between the air bag and yourself.See the owner’s manual for further information and explanations.See 58 Federal Register 46551-46568 (Sept. 2 1993)[1] Fisher, 224 F.3d at 574.  [1] Id. at 575, citing letter of NHTSA General Counsel Frank Spears to the Parents For Safer Air Bags in response to PSBs letter of September 23, 1998.[1] See the discussion at page 8FF, above.[1] By the way, it is important to note that other manufactures, including Volvo, Mercedes, and Saab, in fact did have other warning labels inside their vehicles in 1996 regarding the dangers of air bags.  It is curious to wonder if they were in violation of federal law by doing so.[1] Letter of Chief Counsel the NHTSA Frank Spears, dated November 12, 1998, to Robert Sanders, Director of General Counsel for Parents for Safer Air Bags.