166 F.3d 1236 (D.C. Cir. 1999), 98-7006, Geier v. American Honda Motor Co., Inc.

Docket Nº:98-7006.
Citation:166 F.3d 1236
Party Name:Alexis GEIER, et al., Appellants, v. AMERICAN HONDA MOTOR COMPANY, INC., et al., Appellees.
Case Date:February 05, 1999
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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166 F.3d 1236 (D.C. Cir. 1999)

Alexis GEIER, et al., Appellants,



No. 98-7006.

United States Court of Appeals, District of Columbia Circuit

February 5, 1999

Argued Oct. 22, 1998.

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Arthur Bryant argued the cause for appellants. With him on the briefs were Robert M.N. Palmer, William Petrus and James W. Taglieri.

Benjamin S. Boyd argued the cause for appellees. With him on the brief was Eric A. Portuguese. Philip L. Cohan entered an appearance.

Before: WILLIAMS, GINSBURG and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

The question on appeal is whether federal law pre-empts a defective design lawsuit against the American Honda Motor Company for damages arising from injuries suffered by Alexis Geier 1 when her 1987 Honda Accord, which did not have an airbag, crashed into a tree. The district court granted summary judgment for Honda on the ground that the lawsuit was pre-empted by the National Traffic and Motor Vehicle Safety Act of 1966, as amended, 15 U.S.C. § 1381 et seq. (Safety Act), and the Federal Motor Vehicle Safety Standard 208, 49 C.F.R. § 571.208 (1997) (Standard 208), which govern the passive safety restraints that automobile manufacturers must install. 2 Joining our sister circuits, we affirm, concluding that Geier's lawsuit is impliedly pre-empted.


Under the Supremacy Clause of the Constitution, the laws of the United States "shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. In applying this Clause, courts have identified three ways in which a federal statute or regulation can pre-empt state law: by express pre-emption, by "field" pre-emption (in which Congress regulates the field "so extensively that [it] clearly intends the subject area to be controlled only by federal law"), and by implied or conflict pre-emption, which applies when a state law conflicts with a federal statute or regulation. Irving v. Mazda Motor Corp., 136 F.3d 764, 767 (11th Cir.1998); see also Cipollone v. Liggett Group, 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). The Supreme Court has identified two presumptions that courts must consider when invoking the doctrine of preemption. First, in areas where States have exercised their historic police powers (such as the health and safety of their citizens), courts must start with a presumption against preemption, absent a "clear and manifest purpose of Congress." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). Second, in every pre-emption case, "[t]he purpose of Congress is the ultimate touchstone." Id. (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963)).

For cars manufactured between September 1, 1986, and September 1, 1987, the inclusion of a driver-side airbag was one of several passive restraint "options" from which car manufacturers could choose in order to comply with Standard 208. 3 See 49

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C.F.R. § 571.208, S4. (1997). The effect of Standard 208 on state law is governed by two provisions of the Safety Act. The first, 15 U.S.C. § 1392(d), 4 provides:

[w]henever 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 performance of such vehicle or item of equipment which is not identical to the Federal standard.

The second provision, 15 U.S.C. § 1397(k), 5 a so-called savings clause, provides that "[c]ompliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law." Without stating whether it was adopting a theory of express or implied pre-emption, the district court reasoned that § 1392(d) pre-empted Geier's claim because recovery under her common law tort theory might establish a safety standard that was not identical to Standard 208. Adopting an approach articulated by the First Circuit in Wood v. General Motors Corp., 865 F.2d 395, 408 (1st Cir.1988), and developed by the Ninth Circuit in Harris v. Ford Motor Co., 110 F.3d 1410, 1415 (9th Cir.1997), the district court ruled that although §§ 1397(k) and 1392(d) might appear to be in "direct conflict[,] ... it is clear that both sections can be given effect if the court finds that 'compliance with Federal standards does not exempt anyone from any liability that the States have authority to impose.' " Geier v. American Honda Motor Co., CA. No. 95-64, at 3 (D.D.C. Dec. 10, 1997) (quoting Harris, 110 F.3d at 1415). In the district court's view, a State lacks authority to require airbags because § 1392(d) and Standard 208 pre-empt such a requirement, and therefore no common law design defect claim remained for § 1397(k) to preserve.

On appeal, Geier contends that the district court erred in granting summary judgment because § 1392(d) expressly preserved all common law claims against pre-emption and the term "standards" in § 1392(d) applies only to state legislation or regulations. Honda maintains that summary judgment was appropriate because the Safety Act either expressly preempts Geier's lawsuit, or impliedly pre-empts it because a verdict in her favor would conflict with Standard 208. 6


The Supreme Court has considered pre-emption under § 1392(d), although it did not directly address the issues presented in the instant appeal. Freightliner Corp. v. Myrick, 514 U.S. 280, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995), involved Standard 121, which was promulgated by the National Highway Traffic Safety Administration acting pursuant to the Safety Act, and required that tractor trailers stop within a certain distance. For all practical purposes, Standard 121 required the installation of antilock braking systems ("ABS"). Following the decision of the Ninth Circuit that Standard 121 was unsupported by substantial evidence, see id. at 285, 115 S.Ct. 1483 (citing Paccar, Inc. v. NHTSA, 573 F.2d 632 (9th Cir.1978)), a driver seriously injured in a collision with an 18-wheel tractor-trailer sued a truck manufacturer under a common-law state tort theory, alleging that the absence of ABS on the truck was a design defect that caused it to jackknife when the truck driver attempted to

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make a sudden stop. See id. at 282-83, 115 S.Ct. 1483. In response, the manufacturer asserted that § 1392(d) expressly pre-empted such claims. The Supreme Court rejected this argument, observing that in view of the Ninth Circuit's suspension of Standard 121, 7 "[t]here is no express federal standard addressing stopping distances or vehicle stability for trucks and trailers" and that "States remain free to 'establish, or to continue in effect,' their own safety standards concerning those 'aspect[s] of performance.' " Id. at 286, 115 S.Ct. 1483 (quoting § 1392(d)) (alteration in original). The Court further concluded that the claims were not impliedly preempted because the absence of any federal regulation governing ABS meant that private parties would not face a conflict between complying "with both federal and state law." Id. at 289, 115 S.Ct. 1483. The Court also concluded that a finding of liability against tractor-trailer manufacturers "would undermine no federal objectives or purposes with respect to ABS devices." Id. at 289-90, 115 S.Ct. 1483. The Court explicitly left open the question whether "the term 'standard' in 15 U.S.C. § 1392(d) preempts only state statutes and regulations, but not common law." Id. at 287 n. 3, 115 S.Ct. 1483. Although it referred to § 1397(k), see id. at 284, 115 S.Ct. 1483, the Court did not consider the relationship between the pre-emption and savings clauses.

Thus far, five circuit courts of appeal have analyzed the issue of pre-emption under the Safety Act when plaintiffs have brought design defect claims based on the absence of airbags. In each case, Section 208 did not require airbags for the model-year cars in question, but presented them as one of several options from which manufacturers could choose. Four of the five circuit courts of appeal held that such claims were impliedly pre-empted, while the Ninth Circuit held that the claims were expressly pre-empted. See, e.g., Harris, 110 F.3d at 1416 (9th Cir.); Montag v. Honda Motor Co., 75 F.3d 1414, 1417 (10th Cir.1996); Pokorny v. Ford Motor Co., 902 F.2d 1116, 1126 (3d Cir.1990); Taylor v. General Motors Corp., 875 F.2d 816, 827 (11th Cir.1989); 8 Wood, 865 F.2d at 412 (1st Cir.). Contemporaneously, however, a number of state supreme courts have reached the opposite conclusion, holding that the Safety Act does not preclude these types of claims, relying heavily on the broad sweep of the savings clause. See, e.g., Drattel v. Toyota Motor Corp., 92 N.Y.2d 35, 677 N.Y.S.2d 17, 699 N.E.2d 376, 382, 383-86 (N.Y.1998); Munroe v. Galati, 189 Ariz. 113, 938 P.2d 1114, 1119-20 (Ariz.1997); Tebbetts v. Ford Motor Co., 140 N.H. 203, 665 A.2d 345, 347-48 (N.H.1995).

As noted, Geier contends that § 1397(k) expressly preserved "all common law claims" against pre-emption and that the term "standards" in § 1392(d) applies only to state legislation or regulations. This contention obviously cannot be rejected out of hand, yet nor can Honda's contention that " § 1392(d) expressly preempts state safety standards not 'identical' to applicable federal standards." In Honda's view, because Standard 208 allowed car manufacturers the option of choosing an airbag, a jury verdict in favor of Geier on her design defect claim would...

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