Gardner v. Honda Motor Co., Ltd.

• Decision Date: 23 December 1988
• Parties: , 57 USLW 2451, Prod.Liab.Rep. (CCH) P 12,034 Michael D. GARDNER, Appellant, v. HONDA MOTOR COMPANY, LTD., American Honda Motor Company, Respondents, and Don Davis Pontiac, Inc., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 303

536 N.Y.S.2d 303

145 A.D.2d 41, 57 USLW 2451,

Prod.Liab.Rep. (CCH) P 12,034

Michael D. GARDNER, Appellant, v. HONDA MOTOR COMPANY, LTD., American Honda Motor Company Respondents, and Don Davis Pontiac, Inc., Defendant.

Supreme Court, Appellate Division Fourth Department.

Dec. 23, 1988.

Paul William Beltz, P.C. by Russell Quinlan and Craig R. Watson, Buffalo, for appellant.

Lester, Schwab, Katz & Dwyer by Eric A. Portuguese, Harold Lee Schwab and Steven B. Prystowsky, New York City, for respondents.

Lipsig, Sullivan & Liapakis, P.C. by Pamela Anagnos Liapakis, Jay W. Danker and Stephen C. Glasser, New York City, for New York State Trial Lawyers, amicus curiae.

William H. Crabtree, Edward P. Good, Charles H. Lockwood, II, John T. Whatley and Mayer, Brown & Platt by Paul M. Bator, Stephen M. Shapiro, Kenneth S. Geller and Kathryn A. Oberly, New York City, for Product Liability Advisory Council, and others, amicus curiae.

Before DOERR, J.P., and BOOMER, PINE, LAWTON and DAVIS, JJ.

LAWTON, Justice:

Plaintiff, twenty-five years of age, was permanently rendered a quadriplegic when the 1979 Honda Accord he was operating collided with a parked vehicle at 4:48 A.M. on April 23, 1983. It is undisputed that plaintiff had not fastened the seat belt installed in the vehicle. Plaintiff, in this personal injury action brought against the manufacturer and seller of the Honda, seeks to recover damages under theories of negligence, breach of warranty and strict liability. The plaintiff bases his claims on the alleged uncrashworthiness of the vehicle ( see, Larsen v. General Motors Corp., 391 F.2d 495, 502 (8 Cir.1968); Bolm v. Triumph Corp., 33 N.Y.2d 151, 158, 350 N.Y.S.2d 644, 305 N.E.2d 769 (1973)).

Defendants, in conjunction with a motion for a protective order to strike plaintiff's notice for discovery and inspection, moved for an order of partial summary judgment dismissing plaintiff's complaint to the extent it relied upon the absence of passive restraints, such as air bags or automatic seat belts. In opposition, plaintiff submitted an affidavit from an engineer, which alleged that the failure of the vehicle to have included such safety equipment rendered it uncrashworthy and unreasonably dangerous. Plaintiff appeals from so much of Special Term's order that granted partial summary judgment dismissing plaintiff's complaint to the extent that it relies upon claims asserting the absence of an air bag safety device. ¹

The sole issue presented on this appeal is whether the National Traffic and Motor Vehicle Safety Act of 1966 ("Safety Act") (15 U.S.C. § 1381, et seq.) expressly or impliedly preempts plaintiff's claims of negligence with respect to the absence of an air bag. While not a novel issue nationwide, this is the first instance that an appellate court of this state has been called upon to decide this question. Special Term held that there was a preemption under the Federal legislation which barred plaintiff's claims.

Despite the great weight of judicial authority upholding a finding of preemption, ² plaintiff, aided by an amicus curiae brief from the New York State Trial Lawyer's Association, argues strongly against such a holding. Defendant, in turn, is supported in its position by an amicus brief filed by The Product Liability Advisory Council, Inc., The Automobile Importers of America, Inc., and the Motor Vehicle Manufacturer's Association of the United States, Inc. All briefs are exceptionally well written.

The controversy centers upon the wording of the National Safety Act itself. Defendant relies on Section 1392(d), which reads:

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 performance of such vehicle or item of equipment which is not identical to the Federal standard. * * *

Plaintiff in turn relies upon the savings clause contained in Section 1397(c) of the act, which reads:

Continuation of Common Law Liability. Compliance with any federal motor vehicle safety standard issued under this title does not exempt any person from any liability under common law.

Plaintiff argues that the savings clause expressly authorizes common-law liability actions and precludes dismissal based on a finding of Federal preemption ( see, Garrett v. Ford Motor Co., 684 F.Supp. 407 (D.Md.1987); Baird v. General Motors Corp., 654 F.Supp. 28 (N.D.Ohio 1986); Murphy v. Nissan Motor Corp., 650 F.Supp. 922 (E.D.N.Y.1987)). Defendant responds that the savings clause applies only to those areas of automotive safety equipment not specifically dealt with under the act ( see, Staggs v. Chrysler Corp., 678 F.Supp. 270 (N.D.Ga.1987); Schick v. Chrysler Corp., 675 F.Supp. 1183 (D.S.D.1987)). On this appeal we are concerned only with the installation of air bags and there can be little question but that this issue has been dealt with extensively at the Federal level by the United States Congress, the Department of Transportation (DOT) and the National Highway Traffic Safety Administration (NHTSA).

The Safety Act was enacted by Congress in 1966. "The Act was necessary because the industry was not sufficiently responsive to safety concerns" (Motor Vehicle Manufacturers Assoc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 49, 103 S.Ct. 2856, 2870, 77 L.Ed.2d 443 ). Congress determined that given the "centralized, mass production, high volume character of the motor vehicle manufacturing industry in the United States," the country needed motor vehicle safety standards that were "strong and adequately enforced," and "uniform throughout the country." (S.Rep. No. 1301, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Admin.News 2709, 2720). It concluded that "the primary responsibility for regulating the national automotive manufacturing industry must fall squarely upon the Federal Government." (S.Rep. No. 1301, 89th Cong., 2d Sess, reprinted in 1966 U.S.Code Cong. & Admin.News 2709, 2712). Congress relegated the states to "a consultive role in setting of standards" (Id.). The Safety Act directed DOT and the NHTSA to issue federal motor vehicle safety standards that are "practicable", "meet the need for motor vehicle safety," and apply uniformly throughout the country (15 U.S.C. § 1392).

In 1967 NHTSA issued Standard 208, which required the installation of seat belts in all automobiles (32 Fed Reg 2415). Subsequent amendments broadened Standard 208 to authorize additional passive protection, such as air bags or automatic seat belts. In 1972, Standard 208 was further revised to require vehicles manufactured between August 1973 and August 1975 to use either passive restraints or lap and shoulder three-point seat belts with an ignition interlock system (37 Fed Reg 3911). Since Congress mandated the seat belt option, it has reserved to itself, however, the power to decide by Congressional veto whether air bags would ever be required (15 U.S.C. Section 1410 b ). Congress prohibited the implementation of a national air bag requirement in 1979 and 1980 (Pub L 95-335, Pub L 96-131). Repeated attempts have been made on behalf of consumers to compel the Federal government to require automobile manufacturers to install air bags, but to date such efforts have not been successful ( see, Motor Vehicle Manufacturers Assoc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); State Farm Mut. Ins. Co. v. Dole, 802 F.2d 474 (D.C.Cir.1986) cert. denied, sub nom., New York v. Dole, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 800 (1987); Public Citizen v. Steed, 851 F.2d 444 (D.C.Cir.1988)). As late as 1984, Secretary of Transportation Elizabeth Dole observed "that airbags would not save any more lives than the belt system" (49 Fed Reg 28985 ) and that air bags were "unlikely to be as cost effective" (49 Fed Reg 29001 ). In addition, based on extensive hearings and tests, Secretary Dole concluded that air bags may not be accepted by the public and that their use might even be injurious to children and out of place occupants (49 Fed Reg 28992). The Federal government in an amicus brief filed with the court in the case of Riechart v. Ford (No. 88-1900 ) took a strong position against the mandatory employment of air bags.

Where so much study has been given to a particular question and the Congress and the Executive branch both have concluded that a mandatory requirement for air bag installation would not be any more beneficial than the three-point safety belt currently required, and may even be detrimental, courts should be reluctant to permit a contrary result. Where Congress, by its acts, has precluded any state from enacting a law compelling their installation, one must conclude that Congress intended to preempt the law in this area. Where the individual states are precluded from enacting a law requiring automobiles to be equipped with air bags, and where NHTSA, the very agency charged with regulating vehicle safety, cannot promulgate such a rule without the indirect consent of both Houses of Congress, it makes little sense to permit a jury of six in any one case to find that the failure to do just that is evidence of negligence ( see, Palmer v. Liggett Group, 825 F.2d 620, 628 (1st Cir.1987)). To do so is to permit indirectly that which cannot be done directly ( International Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987)).

These facts distinguish this case from the line of cases that hold that the mere setting of minimum standards by the Federal government does not preclude actions brought under the common law of the different states ( see, Shipp v. General Motors Corp., 750 F.2d 418 (5th Cir.1985); Sours v. General Motors Corp., 717 F.2d 1511 (6th Cir.1983); Chrysler Corp. v. Tofany, ...