Petition for Writ of Certiorari — Kitts v. General Motors Corp.

Supreme Court, U.S,

FILED

AUG 17 1989

JOSEPH F. SPANIOL, J

CLERK

Serene ae

=

In the Supreme Court of the United States

OCTOBER TERM, 1989

PAULINE W. KITTS, as Personal Representative of the

Estate of Willard F. Kitts, Deceased,

Petitioner,

VS.

GENERAL MOTORS CORPORATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOSEPH GOLDBERG

(Counsel of Record)

WILLIAM H. CARPENTER

Davip J. STOUT

CARPENTER & GOLDBERG, P.A.

1600 University, NE, Suite B

Albuquerque, New Mexico 87102

Tel. (505) 243-1336

WILLIAM E. SNEAD

OrTEGA & SNEAD, P.A.

P.O. Box 2226

Albuquerque, New Mexico 87103

Tel. (505) 842-8177

Attorneys for Petitioner

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTION PRESENTED

Whether the court of appeals below correctly found

that Congress had impliedly preempted state common law

remedies for product liability in enacting the National

Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C.

sections 1381 et seq., despite Congress’ express statutory

command that the Act “does not exempt any person from

any liability under comraun law’?

II

TABLE OF CONTENTS

Ss | aN TT TT

IEEE TINIE © csccsvevsicntsshinsiiapsinesnntebbhipoalicbsiabiinateaeiaee

REASONS FOR GRANTING THE WRIT—

1. The Implied Preemption of State Common

Law Sets a Dangerous Precedent, Threatening the

Vitality of Our Precious Common Law Heritage,

Disrupting the Delicate Balance of Federalism in

Our Republic, and Violating Fundamental Prin-

ciples of Separation of Powers ..........2..2.........-.-----

2. The Decision of the Court of Appeals Is Man-

ifestly in Error and Works a Grave Injustice ........

3. The Preemptive Effect of the Federal Safety

Statute Presents a Question of Wide and Enduring

Significance, Provoking Conflicting Decisions in

the Lower Federal and State Courts. The Issue

Requires Final Resolution by This Court ..............

CA TETRIE sncccninsniiscisnssstoisennteenan ues anmnaaeaaa aa

APPENDIX—

Opinion from the United States Court of Appeals

for the Tenth Circuit in Kitts v. General Motors

Corporation, No. 87-2517, which is being ap-

OI ann scensincvnnsnsivdernsnseneneniennhaneieaanaantan

Final Judgment in the United States District

Court for the District of New Mexico in Kitts

v. General Motors Corporation, No. CIV 85-0967

FES --s.cesnciynsnnisnineniicinnieiidinaaninain

a oo |

ee we ) ee ee

lil

Order Granting Defendant’s Motion for Partial

Summary Judgment and Directing Entry of

Final Judgment on Plaintiff’s “Air Bag” Claim

in the United States District Court for the Dis-

trict of New Mexico in Kitts v. General Motors

Corporation, No. CIV 85-0967 JC 0.0... ee...

TABLE OF AUTHORITIES

Cases

Baird v. General Motors Corporation, 654 F. Supp. 28

GR TER IID» dibesniticsichecnsncnttlbsenisacdpieetinalbbbiscbaamisenenniiinnaian 3-4

Barfels v. Holman Imports, No. 85-1901-CB (Fla. Cir.

Pi URN NII 0 sales neni 17

Bass v. General Motors Corporation, No. SA-86-CA-

279 (W.D. Tex. September 14, 1987) 00.0000... 4

Black and White Taxicab and Transfer Co. v. Black

and Yellow Taxicab and Transfer Co., 276 U.S. 518

CRUE. = icataceidbuidbniisatesvescataedginialAtuiidanatiinicphiadidaiassasasndgleasatiediins 12

Burge v. Blight, No. 44-74-75 (Cal. Super. Ct., Orange

Se a Sc ciiicccniicihecaiceineiicaniebeitenioninnentecemmes 17

California Federal Savings and Loan Association v.

SS Es ee 10

Cox v. Baltimore County, 646 F. Supp. 761 (D. Md.

RNR EDR ahs a Se a NON T S NDaR eR 17

Distler v. General Motors Corporation, Civ. No. 4-86-

821 (D. Minn. September 8, 1987) _....0002 4

Donnelly v. General Motors Corporation, No. 86-576JU

Be __, SR aeeeR ceem EOL NOOR 4

Erie Railroad Co. v. Tomkins, 304 U.S. 64 (1938) ....12, 14

Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C.

SE MITE 2 tihadh casa vi dnaciaaiassammcensenumnainbvedvamataanaaceboneieesisbialas 10

Florida Lime & Avocado Growers, Inc. v. Paul, 373

Us. 888 (3508). .............. Posasioho eater 6 WORE RTCA TEIN We ERO 10

Gardner v. Honda Motor Co., Index No. H-72107 (N.Y.

Sup. Ct. August 26, 1987) Pncedhainebaialaiaiieckibocnebesitdtcasiien 17

Garrett v. Ford Motor Co., No. JH-86-582 (D. Md.

Ee ASIII 2h siisss acc ccctinseenccdeienatiisanethncnh abactalbnancqeeiblesins 17

V

Hughes v. Ford Motor Co., 677 F. Supp. 76 (D. Conn.

STITT & shidspicsocensnaibinioetnsabiciecieisthsseeietsceaaaipapiasintsineiaidiatibabitenigaibaae 17

International Paper Co. v. Ouellette, 479 U.S. 481

CITI — so tilicniannscnesouhssnpennnmansnthdeninealidiagnasaigansedeaapeninchedaian 10

Kimbrel v. Jones, No. 85-6068B (Tex. Dist. Ct. Octo-

SE Sei SR escsintinesteteevnsiniciicipinnsteslibiarcinscsheaepccadeiniehaainelll 17

Louisiana Public Service Commission v. FCC, 476

i a I ec sacicantstctibdsnnsbinhcichoecousativsnesammiacntaad 10, 14, 15

Lynch v. Mims, No. GCG 85-0019 (Fla. Cir. Ct. Au-

SIRE Ante TTI wssshisuiisiihitetniptadeeupeataoshcaenahienibniatubaniahintebamaniod 17

Mackey v. American Honda Motor Co., No. 83CV-08-

4508 (Ohio Ct. C.P. December 29, 1986) .................. 17

MacPherson v. Buick Motor Co., 217 N.Y.2d 382, 111

ID iecscttenisiciosvcanbisienhconanlenelioteanaanstivtaltaacdas i)

Maryland v. Louisiana, 451 U.S. 725 (1981) ..... nonaeene 15

Morgan v. Noble, No. 84-Cl-136 (Ky. Cir. Ct. Feb-

PRI hE TD neta intnnirinensrseancnininapsanassiainemnantoneess 17

Motor Vehicle Manufacturers Association v. State

Farm Mutual Insurance Co., 463 U.S. 29 (1983) .. 9

Munson v. Pearcy, No. B-840,570 (Tex. Dist. Ct.

SEE Dy SID i nteininavinctccinds incidences 17

Murphy v. Nissan Motor Corp., 650 F. Supp. 922 (E.D.

Bic 5: HITED scssiinkcccetnasiitsaiessasiciocbinehecusinlpaphemnipeeincanennaricisaineninte iets 17

Nader v. Allegheny Airlines, 426 U.S. 290 (1976) ...12-13

Pederson v. Ford Motor Co., No. 3AN-85-15565 (Alaska

Super. Ct. September 24, 1987) .....................--....e.0+- 17

Phillis v. Naime, No. 85-33951-CA-07 (Fila. Cir. Ct.

emmpten: Ta, TT) nine einen ncccctcnsenewesonicennienissinstens 17

Picadio v. General Motors Corporation, No. GD 85-

14613 (Pa. Ct. C.P. December 28, 1987) .................... 4,17

Puzio v. General Motors Corporation, No. L 07-2323-

85 (N.J. Super. Ct. March 27, 1987) .......................... 4

VI

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)

sO pO ene RRO LN te ee aS Nag ALR, 11, 13, 15

Ross v. Ford Motor Co., No. CV119361 (Ohio Ct. C.P.

RNIN revo OIE C neta tear os Ao 17

Schick v. Chrysler Corp., 675 F. Supp. 270 (D.S.D.

RS I ee eR Ce eR ee Ae eee 17

Seemann v. General Motors Corp., No. 86-6145 (CL)

“en «(Crem Cie, Ge, BEG. 7, TE) cncccciccessivicstemecsreres 17

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984)

«=i ae ear seamen 12, 13, 15, 16

Soboscienski v. Ford Motor Co., No. 2NOQ-85-246

(Alaska Super. Ct. October 28, 1986) —....02.... 17

Staggs v. Chrysler Corp., 678 F. Supp. 270 (N.D.

SUIT IIIS > nicnsaihcaehetagandnentoeenencietohine Aseaninateasatatensianicaidiniitad 17

Steenbergen v. Ford Motor Co., No. 85-15718-C (Tex.

RE ___ | een saree LE 17

Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842) ~.............. 12

Taylor v. General Motors Corporation, 875 F.2d 816

I PI CI cs ooh ace ora nneneialdenananieisemaeibiaiiinel 3,15

United Construction Workers v. Laburnum Construc-

Chom Come, SET UW. GOR CRD R) onccceccsccccccccscenssseesserseees 13

Vanover v. Ford Motor Co., 632 F. Supp. 1095 (E.D.

Sc TITIES sin saiss caitacpnaniunnienasseaebeivdbeegacuannaaduenausateiaeligatameiananas 17

Vasquez v. Ford Motor Co., No. CIV 86-0657 PHX

WPC (D. Ariz. November 4, 1986) ............................ 17

Victory Carriers, Inc. v. Law, 404 U.S. 202 (1971) ... 18

Wattelet v. Toyota Motor Corp., 676 F. Supp. 1039

Samii EIN, ” EITEES DF civ asinscbveceunseeniiepniasseahniaaunashaausanaaeiiancnats 17

Wood v. General Motors Corp., 865 F.2d 395 (ist Cir.

SITIES cctaictnccishisabcudsncssonhnrsdsoanscadibshndakioanhsetnabinminealoainanl 3, 5, 6, 7, 15

Vii

Statutes

ee a ccnneremmenuiianianicelloien 15

15 U.S.C. sections 1381 et seg. (1982) —.....000.n.... 2

EE | ESTEE RENN DOE oem 2,5, 13

BB etre GI TD .icn neces ie niccccccintecicciicics 2, 6, 7, 13, 15

Be I” os ccnicinsencsnevirensteninnsenneneaiaaluaenasin 1

ee I an instr carceannnnsninnsicdeinccipalemnbibatilaliobin 4

2B U.S.C. section LSS nnn nnenscceceeensceseeenssnessesnenes 3

Treatises

F. Pollock, Oxford Lectures and Other Discourses

NE | TI sestisistnnaninetinctinsiennenianiaindiiminitinaliesinsiiiiceaadadiabitiliies 1]

T.F.T. Plucknett, A Concise History of the Common

Ge I Te cecernertteteneeeenetveniseenisinininintionniene 11

R. Pound, The Spirit of the Common Law (Beacon

OE TEE, eckestenionrsin snc ieanshedieniiasneieeaiiaainaaesananedanaeuntntanniiaenianeta ll

R. Pound, Readings on the History and System of

the Common Law (2d ed. 1913) ...... ccladuebeheamansaae 12

No.

In the Supreme Court of the United States

OCTOBER TERM, 1989

PAULINE W. KITTS, as Personal Representative of the

Estate of Willard F. Kitts, Deceased,

Petitioner,

vs.

GENERAL MOTORS CORPORATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

OPINIONS BELOW

The opinion of the district court is unreported and

appears in the appendix to this Petition for a Writ of

Certiorari at Pet. App. A7 through A9. The opinion

of the court of appeals is reported at 875 F.2d 787 (10th

Cir. 1989) and appears at Pet. App. Al through A6.

JURISDICTION

The judgment of the court of appeals was issued

on May 19, 1989. This Court has jurisdiction pursuant

to 28 U.S.C. section 1254(1).

STATUTES AND REGULATIONS

The National Traffic and Motor Vehicle Safety Act

of 1966, Pub. L. 89-563, 80 Stat. 718 codified at 15 U.S.C.

sections 1381 et seq. (1982) (“Safety Act”), provides in

pertinent part, as follows: |

§ 1392 (d) Supremacy of Federal standards; allow-

able higher standards for vehicles used by Federal

or State governments

Whenever a Federal motor vehicle safety stan-

dard 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 appli-

cable to the same aspect of performance of such

vehicle or item of equipment which is not identical

to the Federal standard. Nothing in this section shall

be construed as preventing any State from enforcing

any safety standard which is identical to a Federal

safety standard. Nothing in this section shall be

construed to prevent the Federal Government or the

government of any State or political subdivision

thereof from establishing a safety requirement appli-

cable to motor vehicles or motor vehicle equipment

procured for its own use if such requirement imposes

a higher standard of performance than that required

to comply with the otherwise applicable Federal

standard.

§ 1397 (c) Continuation of common law liability

Compliance with any Federal motor vehicle safety

standard issued under this subchapter does not ex-

empt any person from any liability under common

law.

STATEMENT OF THE CASE

_ This is a diversity action filed pursuant to 28 U.S.C.

section 1332. Plaintiff filed her complaint on July 11,

1985, seeking damages under the common law of New

Mexico for the wrongful death of her husband in a single

car collision occurring on July 17, 1982. Mr. Kitts was

driving a 1982 Pontiac J2000, manufactured by defen-

dant General Motors Corporation (“GM”). Notwith-

standing the fact that Mr. Kitts was wearing his three-

point seat belt/shoulder harness system that had been

installed in the car he was driving, the force of the crash

killed him.

In her complaint, Mrs. Kitts alleged that the car

was defective and unreasonably dangerous because, among

other things, GM failed to utilize available technology

to provide a passenger restraint system that would have

allowed Kitts to survive the crash (“passive restraint

claim”). GM answered the complaint denying the ma-

terial allegations and asserting as pertinent to this appeal

that the National Highway Traffic and Motor Vehicle

Safety Act (“Safety Act”) preempted Kitts’ passive re-

straint claim.

On August 4, 1986, GM filed a Motion for Partial

Summary Judgment, based only on its argument that

under New Mexico law the manufacturer owed no duty

to Kitts. After the exchange of briefs, the matter rested

until July of 1987. Pursuant to what is obviously a

coordinated nationwide campaign to raise the argument

in virtually every case in which it is a defendant,’ GM

1. See, e.g., Taylor v. General Motors Corporation, 875

F.2d 816 (11th Cir. 1989); Wood v. General Motors Corporation,

865 F.2d 395 (1st Cir. 1988); Baird v. General Motors Corpora-

(Continued on following page)

4

filed a supplemental memorandum supporting its motion

for partial summary judgment with the additional argu-

ment that the Safety Act preempted Kitts’ common-law

passive restraint claim. GM’s Motion for Partial Sum-

mary Judgment was argued before the district court on

September 10, 1987. After nearly three hours of oral

argument, the district court took a brief recess and re-

turned to grant GM’s motion from the bench. The dis-

trict court ruled that the common law of New Mexico

was preempted by the Safety Act.

Thereafter the district court granted Kitts’ request

that the district court enter a final judgment pursuant

to Fed. R. Civ. P. 54(b) on its decision from the bench.

The district court entered its Order granting GM’s Mo-

tion for Partial Summary Judgment. Kitts prosecuted

a timely appeal under 28 U.S.C. section 1291 from that

final judgment.

The appeal was fully briefed to the court of appeals

by the parties. The court of appeals consolidated the

appeal with another similar case from the United States

District Court for the District of New Mexico. In addi-

tion, an amicus curiae brief was filed by The Products

Liability Advisory Council, Inc., The Automobile Im-

porters of America, Inc., and the Motor Vehicle Manu-

facturers Association of the United States, Inc., arguing

that the Safety Act preempted New Mexico’s common

Footnote continued—

tion, 654 F. Supp. 28 (N.D. Ohio 1986); Bass v. General Motors

Corporation, No. SA-86-CA-279 (W.D. Tex. September 14, 1987);

Donnelly v. General Motors Corporation, No. 86-576JU (D. Ore.

August 3, 1987); Distler v. General Motors Corporation, Civ.

No. 4-86-821 (D. Minn. September 8, 1987); Puzio v. General

Motors Corporation, No. L 07-2323-85 (N.J. Super. Ct. March 27,

1987); Picadio v. General Motors Corporation, No. GD 85-14613

(Pa. Ct. C.P. December 28, 1987).

D

law. Amicus Curiae briefs were filed in the consolidated

appeal by The Trial Lawyers for Public Justice and The

Association of Trial Lawyers of America, arguing that

the Safety Act did not preempt state common law. Fi-

nally, an amicus curiae brief was filed by the United

States Department of Transportation setting forth the

position of the federal government on the preemption

issue.”

On May 19, 1989, the court of appeals issued its

opinion and judgment in the appeal. The court affirmed

the district court’s entry of partial summary judgment

in favor of General Motors. The court held that “the

Safety Act preempts plaintiff’s air bag claim.” Pet. App.

A5. The court engaged in no independent analysis but

rather chose to rely exclusively on the opinion of the

United States Court of Appeals for the First Circuit in

Wood v. General Motors Corp., 865 F.2d 395 (1st Cir.

1988). See Pet. App. A6 (“Because we believe Wood

directly addresses and correctly resolves the issue before

us, we follow the general principles articulated in Wood

and adopt the implied preemption rule of the First Cir-

cuit.’’).

The Wood decision was rendered by a split panel

of the First Circuit Court of Appeals. The Wood ma-

jority held that section 1392(d) of the Safety Act did

2. Initially, the Department of Transportation took no posi-

tion directly on the preemption issue, but rather called certain

relevant concerns to the attention of the court of appeals. Sub-

sequently, the Department of Transportation filed a supple-

mental brief setting forth its position that the Safety Act would

not preempt state common law, except in certain limited situa-

tions not applicable to the Kitts case.

3. A petition for a Writ of Certiorari to review the court

of appeals’ decision in Wood has been filed in this Court and

is presently pending. See No. 89-46.

6

not expressly preempt state common law tort claims. The

majority opinion went on to hold, however, that notwith-

standing the explicit language of section 1397(c) pre-

serving all comn:on law claims,‘ state common law tort

claims based on negligent or defective design were some-

how impliedly preempted. The Wood majority reached

a conclusion of implied preemption of common law rem-

edies solely and exclusively on its own (rather than Con-

gress’) judgment that “[a]llowing a common law action

holding manufacturers liable would be tantamount to

establishing a conflicting safety standard that necessarily

encroaches upon the goal of uniformity specifically set

forth by Congress in this area.” Wood, 865 F.2d at 402.

Jn reaching this conclusion, the Wood majority disre-

garded the clear and unqualified language of section

1397(c) to speculate that Congress had in mind the pres-

ervation- of only certain types of common law claims

when it enacted the Safety Act. See Wood v. General

Motors Corp., 865 F.2d at 402. The Wood dissent dis-

agreed with the approach of the majority in speculating

that Congress intended to preserve only certain common

law claims and instead would have given effect to the

clear and unqualified language in section 1397(c) which

preserved claims against “any person [for] any liability

under common law.” See Wood, 865 F.2d at 421-22

(Selya, J. dissenting).

4. Section 1397(c) provides: “Compliance with any Fed-

eral motor vehicle safety standard issued under this subchapter

does not exempt any person from any liability under common

law.”

REASONS FOR GRANTING THE WRIT

Petitioner has been unable to find one case de-

cided by this Court where preemption was found in the

face of language as clearly and explicitly reflecting Con-

gress’ intent on preserving common law claims as that

of section 1397(c) of the Safety Act. Quite simply, it

is inconceivable to petitioner that the lower court can

find preemption contrary to the express congressional

statement that the statute does not exempt any person

from any liability under common law. The present peti-

tion should be granted because the decision of the court

of appeals below departs from a century of preemption

analysis un of the Constitution

to reach a result which dangerously disrupts the delicate

balance of federalism in our Republic that the supremacy

clause was designed to preserve and ignores important

separation of powers principles.

The approach adopted by the court of appeals below

—in disregarding the expressed intention of Congress and

instead resting its finding of preemption on the court’s

own speculative perception of a conflict between the

federal statute and the state’s common law*—ignores the

5. Wood, and the lower court’s opinion in the instant case,

are based on two fundamental errors. First, both courts assume

the false premise that because design defect verdicts may have

some regulatory impact, they are therefore “tantamount to estab-

lishing . . . conflicting safety standard[s].” Pet. App. at A6.

Second, both courts perceive the primacy of a goal of ‘federal

uniformity, a conclusion wholly devoid of any content rooted

in Congressional action. The facts are, as the petitioners in

Wood make clear, that Congress was well aware of the potential

impact of design defect verdicts under the common law when

it passed the Safety Act, with its express non-preemption dec-

laration in section 1397(c), and, that the court’s perception of

a goal of federal uniformity is nothing less than a judicial

(Continued on following page)

8

separation of powers between the legislative and judicial

branches of government and shifts the focus of inquiry

under preemption analysis from what Congress intended

to the court’s own perception of proper policy. These

important concerns require authoritative resolution by

this Court, since the numerous cases addressing the pre-

emptive effect of the Safety Act have provoked conflicting

decisions in the lower federal and state courts. aaa

1. The Implied Preemption of State Common Law

Sets a Dangerous Precedent, Threatening the

Vitality of Our Precious Common Law Heritage,

Disrupting the Delicate Balance of Federalism

in Our Republic, and Violating Fundamental Prin-

ciples of Separation of Powers.

GM’s arguments below and its coordinated campaign

in the courts throughout the country constitute a frontal

assault on the common law. What GM seeks is to sub-

stitute administrative rulemaking (which not coinciden-

tally GM has considerable ability to influence)* for the

Footnote continued—

weighing of conflicting policies, which is directly contrary to

that expressly engaged in by Congress. See Wood v. General

Motors Corp., No. 89-46, Pet. at 13-19. GM’s argument (ac-

cepted by the Wood court and the court below in this case)

reduces itself to the proposition that anytime Congress autho-

rizes a federal administrative safety standard, the adoption of

that standard necessarily forecloses any product liability claim

based on design defect when the standard has been met, even

where Congress has expressly declared to the contrary.

6. The history of FMVSS 208, upon which GM and the

courts below relied in finding preemption, is a perfect example

of what is wrong with administrative rulemuking, even for

its legitimate and limited purposes, much less as a substitute

for common law remedies for injuries. For nearly twenty years

after the technology for air bags was available and after it

was known that the introduction of such systems would save

(Continued on following page)

9

common law system for remedying injuries. Of course,

as a result of its campaign, Mr. Kitts’ survivors and

thousands of other persons maimed or killed because of

defectively designed automobiles will be without any

remedies whatsoever. Equally important, GM seeks to

employ the federal courts to stifle and thwart the evolv-

ing common law of product liability in the states, a

development that is nearly universally recognized as one

of the signal developments in the law in the twentieth

century.’

Footnote continued—

scores of thousands of lives, GM and other car manufacturers

dragged their feet and repeatedly forced the administrative

agency, the National Highway and Transportation Safety Ad-

ministration to back off from its proposed rules requiring in-

troduction of passive restraint systems. GM’s obduracy was

matched only by the administrative agency’s pusillanimity. See

Insurance Institute for Highway Safety, “Air Bags: A Chron-

ological History of Delay” (1984). Indeed, Mr. Kitts’ car was

not equipped with air bags because at the time his car was

manufactured the administrative agency had illegally rescinded

its rule requiring air bags, as determined by this Court in

Motor Vehicle Manufacturers Association v. State Farm Mutual

Insurance Co., 463 U.S. 29 (1983). Ironically the same party

in State Farm unsuccessfully seeking to defend the arbitrary

and capricious rescission of the rulemaking was an amicus

curiae in the court below, urging that the Safety Act preempts

the states’ common law.

7. For more than seventy years—at least since Chief Judge

Cardozo’s seminal decision in MacPherson v. Buick Metor Co.,

217 N.Y.2d 382, 111 N.E. 1050 (1916)—the common law has

imposed on manufacturers of negligently designed or manufac-

tured automobiles liability to compensate victims who have been

injured as a result of the manufacturer’s negligence. With

its characteristic flexibility and adaptability, the common law

in this area has evolved into one of this century’s major legal

developments, the law of product liability. Sometimes em-

ploying a negligence standard and sometimes employing a stan-

dard of strict liability, product liability law requires that a

manufacturer be held responsible to compensate those who are

injured by the manufacturer’s negligence or by a defect in

the product which poses an unreasonable danger to the fore-

seeable user.

10

The supremacy clause of article VI of the Constitu-

tion is central to the structure of our federal system.

Because the effect of the supremacy clause is to invade

the sovereignty of the individual states, the preemption

power is vested exclusively in Congress. What this means

is that state law is not preempted just because a federal

judge prefers the federal policy to the state policy; or

even where a federal judge may determine that the state

policy is in conflict with the federal policy. The touch-

stone is congressional intent to preempt state law. See,

e.g., Louisiana Public Service Commission v. FCC, 476

U.S. 355, 369 (1986); Florida Lime & Avocado Growers,

Inc. v. Paul, 373 U.S. 132, 141 (1963). The federal court

may find state law preempted only where the court de-

termines that Congress has intended to preempt state

law.

In this respect, the power to preempt state law be-

longs to Congress exclusively, and the role of the federal

court is to determine the congressional intent and to

apply it. This is the reason why this Court has stated

that in determining whether state laws are preempted by

federal statutes, the “sole task is to ascertain the intent

of Congress.” California Federal Savings and Loan Asso-

ciation v. Guerra, 479 U.S. 272, 280 (1987). Moreover,

the “courts should not lightly infer pre-emption,” Inter-

national Paper Co. v. Ouellette, 479 U.S. 481, 491 (1987),

and there is a heavy presumption against finding pre-

emption where the claim of preemption addresses the

historic police powers of the state, such as common law

tort liability. See, e.g., Florida Lime & Avocado Growers,

Inc. v. Paul, 373 U.S. 132, 144 (1963); Ferebee v. Chevron

Chemical Co., 736 F.2d 1529, 1542 (D.C. Cir. 1984). “[Wle

start with the assumption that the historic police powers

of the States were not to be superceded by the Federal

11

Act unless that was the clear and manifest purpose of

Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230 (1947).

The court of appeals’ decision below ignores this

Court’s injunction and trenches on historic state powers

in the absence of a manifest congressicnal purpose to

do so. The effect of the decision below is to quash an

important area of common law development in the states.

This effect, of course, is not limited to those areas of

common law product liability dealing with design de-

fects in automobiles. The reasoning of the court of ap-

peals below would apply also to the many other areas

in which Congress has enacted minimum design standards.

The potential impact on this important area of common

law development, therefore, is great.

From Pollock® to Plucknett® to Pound,” the common

law has been recognized as a prized part of our Anglo-

American legal heritage and a cornerstone of our legal

system. The founding fathers of the Republic expressly

and specifically recognized the common law as one of

the bulwarks of political liberty... This Court has rec-

8. See, e.g., F. Pollock, Oxford Lectures and Other Dis-

courses 111 (London 1890) reprinted edition 4 Classics in Legal

History (R. Mersky & J. Jacobstein eds. 1970) (“So venerable,

so majestic, is this living temple of justice, this immemorial

and yet freshly growing fabric of the Common Law, that least

of us is happy who hereafter may point to so much as one

stone thereof and say, The work of my hands is there.”).

9. See T.F.T. Plucknett, A Concise History of the Common

Law (5th ed. 1956).

10. See, e.g., R. Pound The Spirit of the Common Law

4-5 (Beacon ed. 1963) (extolling the “vitality and tenacity”

of the common law).

11. Whereupon the deputies so appointed being now as-

sembled in a full and free representation of these colonies,

taking into their most serious consideration the best means

(Continued on following page)

12

ognized that the common law is a matter distinctly re-

served to development in the several states. For ex-

ample, Justice Holmes repeatedly attacked the rule of

Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842) as impermis-

sibly infringing on the states’ sovereign power to develop

their respective common laws. See Black and White

Taxicab and Transfer Co. v. Black and Yellow Taxicab

and Transfer Co., 276 U.S. 518, 533-34 (1928) (Holmes, J.,

dissenting) (“The common law so far as it is enforced

in a State, whether called common law or not, is not the

common law generally but the law of that State... .”).

Justice Holmes’ view, of course, was vindicated in Erie

Railroad Co. v. Tomkins, 304 U.S. 64 (1938). The same

evil which Justice Holmes identified and which caused

this Court to overturn Swift in Erie prohibits federal

judges, independent of the will of Congress, from pre-

empting state common law.

It is precisely these interests and concerns which

animated this Court to impose a particularly heavy pre-

sumption against a finding of preemption of state com-

mon law remedies. See, e.g., Silkwood v. Kerr-McGee

Corp., 464 U.S. 238 (1984); Nader v. Allegheny Airlines,

Footnote continued—

of attaining the ends aforesaid, do in the first place, as

Englishmen, their ancestors, in like cases have usually done,

for asserting and vindicating their rights and liberties

declare...

5. That the respective colonies are entitled to the

common law of England, and more especially to the great

and inestimable privilege of being tried by their peers in

the vicinage, according to the course of law.

Declaration of Rights of the Continental Congress (1774), as

excerpted in R. Pound, Readings on the History and System

of the Common Law viii (2d ed. 1913). Similar sentiments

were expressed fifteen years later in the seventh amendment

to the Constitution of the United States.

13

426 U.S. 290, 298 (1976); Victory Carriers, Inc. v. Law,

404 U.S. 202, 211-13 (1971). The presumption against

finding preemption reflects two salient concerns. First,

the presumption reflects a deference to the sovereignty

of the states, especially in those areas that have been

traditionally reserved to state supervision. See Rice, 331

U.S. at 230. Second, the presumption reflects a_caution

on the part of the courts in attributing to Congress an

intent to leave injured persons without remedies. As

this Court stated in Silkwood, “It is difficult to believe

that Congress would, without comment, remove all means

of judicial recourse for those injured by illegal conduct.”

464 U.S. at 251; see also United Construction Workers

v. Laburnum Construction Corp., 347 U.S. 656, 663-64

(1954).

If it was “difficult” for this Court in Silkwood to

believe that Congress would silently remove common law

remedies for injuries, it is inconceivable in this case to

believe that Congress did so in the face of its explicit

command in section 1397(c) that the Act “does not ex-

empt any person from any liability under common law.”

This language, of course, is what compelled the court

of appeals below to hold that Congress did not express

an intention to preempt. While this conclusion is un-

assailable, it makes indefensible the remainder of the

court’s analysis, that somehow the Safety Act impliedly

preempts state common law. Once the court of appeals

correctly concluded that Congress had expressly consid-

ered the matter, it made no sense to even address implied

preemption. Congress considered the preemptive effect

of the Safety Act in sections 1392(d) and 1397(c) and

as the court of appeals found did not thereby intend to

preempt common law remedies. In this context, any

14

finding of implied preemption must rest not on Congress’

intent but rather on the court’s own perception of policy.”

If the court of appeals’ decision is left to stand, we

will be back to pre-Evie days, where federal courts on

the basis of their own determinations of proper policy

can invade state sovereignty and displace important seg-

ments of state common law development. Under the

supremacy clause, this is a power conferred only on Con-

gress and Congress’ intent to exercise that power is not

to be casually or lightly inferred. The court of appeals’

decision at once ignores the separation of powers by arro-

gating to the courts a power reserved exclusively to

Congress and disrupts the balance of federalism preserved

by the supremacy clause by invading state sovereignty

and displacing this important common law area. This

Court should grant review to reestablish the proper con-

stitutional roles and balances.

2. The Decision of the Court of Appeals Is Man-

ifestly in Error and Works a Grave Injustice.

While this Court does not exercise its certiorari re-

view power solely to rectify errors and correct injustices,

these considerations are not wholly irrelevant. The court

of appeals’ decision is wrong for so many reasons that

12. In an analogous context, this Court has refused to

find an implied administrative preemption in the face of lan-

guage in the federal statute which clearly evinced an intent

not to give the administrative agency the power to displace

state law. Louisiana Public Service Commission v. FCC, 476

U.S. at 473-76. In Louisiana PSC, the statutory language pre-

cluded finding express preemption. The FCC then argued that

state regulation would frustrate the federal policies. This Court

held that the express statutory language precluded a finding

of implied preemption, even if the federal policies would be

frustrated. Id. at 476. (“While we do not deprecate this con-

cern, § 152(b) precludes both the FCC and this Court from

providing the relief sought [preemption of state regulation].”).

15

it seems incredible that the court below, as well as two

other circuit courts,’* reached that result.

First, the decision contradicts Congress’ explicit com-

mand that the Safety Act “not exempt any person from

any liability under common law.” 15 U.S.C. section

1397 (c).

Second, as described in Point 1, above, the court

incorrectly proceeded to find implied preemption after

it had determined that Congress explicitly adverted to

the preemptive effect of the statute and Congress’ ex-

pression of the preemptive effect preserved rather than

preempted common law remedies. Cf. Louisiana Public

Service Commission v. FCC, supra.

Third, the court of appeals’ decision wholly ignores

the heavy presumption, articulated by this Court, against

finding preemption of common law remedies. See Silk-

wood v. Kerr-McGee Corp., supra; Maryland v. Louisiana,

451 U.S. 725, 746 (1981); Rice v. Santa Fe Elevator Corp.,

331 U.S. at 230.

Fourth, the court of appeals erroneously identified

“uniformity” as a primary goal of Congress in enacting

the Safety Act. Pet. App. A6. Nowhere in Congress’

own expression of its purposes is uniformity even men-

tioned, much less identified as a primary purpose. See

15 U.S.C. section 1381.

Fifth, even assuming that “uniformity” were a pri-

mary purpose of the Safety Act, common law remedies

for damages do not frustrate that legislative goal. Com-

13. In addition to the instant decision and that of the

first circuit in Wood, the eleventh circuit reached the same

result in Taylor v. General Motors Corp., 875 F.2d 816 (11th

Cir. 1989).

16

mon sense and human experience both suggest that fed-

eral minimum design standards can and do coexist with

the continuation of damages actions for injuries sustained.

Certainly they have coexisted for the twenty years be-

tween the passage of the Safety Act in 1966 and the

current decisions that are at issue in this petition.

In addition to being manifestly in error, the court

of appeals’ decision works a grave injustice. If allowed

to stand, the decision below deprives Mrs. Kitts of any

remedy for her grievous loss, even though General Motors

may have been flagrantly negligent in its design. This

injustice, of course, will be visited not only on Mrs. Kitts

but also thousands of other victims. This Court has re-

peatedly expressed a solicitude for protecting common

law remedies from disruption through speculative claims

of preemption. See, e.g., Silkwood v. Kerr-McGee Corp.,

supra.

3. The Preemptive Effect of the Federal Safety

Statute Presents a Question of Wide and Enduring

Significance, Provoking Conflicting Decisions in

the Lower Federal and State Courts. The Issue

Requires Final Resolution by This Court.

There is no doubt that over the past three years

or so, there has been a coordinated and concerted pro-

gram among automobile manufacturers to raise the argu-

ment that the enactment of the Safety Act preempts

state common law remedies based on defective or negli-

gent design. The issue has been raised and addressed

in more than twenty cases and the courts have substan-

tially divided in result.* There is equally no doubt that

14. Numerous cases have addressed the preeraption issue

and resolved it in favor of preserving common law remedies.

(Continued on following page)

17

this issue will continue to be raised until it is finally

resolved by this Court. The decision below presents the

issue squarely to this Court. The considerations have

been sufficiently explored and refined. This Court, there-

fore, should grant this petition to address the important

issue raised and finally resolve it.

Footnote continued—

See, ¢.g., Murphy v. Nissan Motor Corp., 650 F. Supp. 922

(E.D.N.Y. 1987); Garrett v. Ford Motor Co., No. JH-86-582

(D. Md. August 21, 1987); Seemann v. General Motors Corp.,

No. 86-6145 (CL)“AI” (Fla. Cir. Ct. March 7, 1989); Picadio

v. General Motors Corp., No. GD 85-14613 (Pa. Ct. C.P. De-

cember 28, 1987); Kimbrel v. Jones, No. 85-6068B (Tex. Dist.

Ct. October 13, 1987); Steenbergen v. Ford Motor Co., No.

85-15718-C (Tex. Dist. Ct. June 30, 1986); Lynch v. Mims,

No. GCG 85-0019 (Fla. Cir. Ct. August 20, 1985); Morgan

v. Noble, No. 84-Cl-136 (Ky. Cir. Ct. February 17, 1986);

Munson v. Pearcy, No. B-840,570 (Tex. Dist. Ct. May 15, 1986);

Barfels v. Holman Imports, No. 85-1901-CB (Fla. Cir. Ct. Sep-

tember 1985); Burge v. Blight, No. 44-74-75 (Cal. Super. Ct.,

Orange County June 30, 1987).

In addition to the cases noted above in footnote one, there

are numerous cases both federal and state which have found

common law remedies to be preempted. See, e.g., Schick v.

Chrysler Corp., 675 F. Supp. 270 (D.S.D. 1987); Staggs v.

Chrysler Corp., 678 F. Supp. 270 (N.D. Ga. 1988); Wattelet

v.- Toyota Motor Corp., 676 F. Supp. 1039 (D. Mont. 1987);

Hughes v. Ford Motor Co., 677 F. Supp. 76 (D. Conn. 1987);

Vanover v. Ford Motor Co., 632 F. Supp. 1095 (E.D. Mo. 1986);

Cox v. Baltimore County, 646 F. Supp. 761 (D. Md. 1986);

Vasquez v. Ford Motor Co., No. CIV 86-0657 PHX WPC (D.

Ariz. November 4, 1986); Phillis v. Naime, No. 85-33951-CA-07

(Fla. Cir. Ct. September 22, 1986); Pederson v. Ford Motor

Co., No. 3AN-85-15565 (Alaska Super. Ct. September 24, 1987);

Gardner v. Honda Motor Co., Index No. H-72107 (N.Y. Sup.

Ct. August 26, 1987); Ross v. Ford Motor Co., No. CV11936i

(Ohio Ct. C.P. May 5, 1987); Soboscienski v. Ford Motor Co.,

No. 2NO-85-246 (Alaska Super. Ct. October 28, 1986); Mackey

v. American Honda Motor Co., No. 83CV-08-4508 (Ohio Ct.

C.P. December 29, 1986).

18

CONCLUSION

For all the above reasons, petitioner respectfully re-

quests that this Court grant this Petition for a Writ of

Certiorari.

Respectfully submitted,

JOSEPH GOLDBERG

(Counsel of Record)

WILLIAM H. CARPENTER

Davip J. Stout

CARPENTER & GOLDBERG, P.A.

1600 University, NE, Suite B

Aibuquerque, New Mexico 87102

Tel. (505) 243-1336

WILLIAM E. SNEAD

OrTEGA & SNEAD, P.A.

P.O. Box 2226

Albuquerque, New Mexico 87103

Tel. (505) 842-8177

Attorneys for Petitioner

Al

APPENDIX

(Filed May 19, 1989)

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 87-2517

PAULINE W. KITTS, as Personal Representative of the

Estate of Willard F. Kitts, Deceased,

Plaintiff-Appellant,

V.

GENERAL MOTORS CORPORATION,

Defendant-Appellee.

PRODUCT LIABILITY ADVISORY COUNCIL, INC.,

AUTOMOBILE IMPORTERS OF AMERICA, INC., and

MOTOR VEHICLE MANUFACTURERS ASSOCIATION

OF THE UNITED STATES, INC.,

Amicus Curiae.

No. 88-1900

WAYNE M. RICHART, as Personal Representative of the

Estates of Norman J. Richart, Deceased,

and Jean R. Richart, Deceased,

Plaintiff-Appellee,

v.

FORD MOTOR COMPANY,

Defendant-Appellant.

THE ASSOCIATION OF TRIAL LAWYERS OF

AMERICA; TRIAL LAWYERS FOR PUBLIC

JUSTICE; and UNITED STATES OF

AMERICA,

Amici Curiae.

A2

Appeal From the United States District Court

for the District of New Mexico

(D.C. CIV 85-0967 JC for Tenth Cir. No. 87-2517)

(D.C. Civil No. 86-0926-JB for Tenth Cir. No. 88-1900)

Joseph Goldberg of Carpenter & Goldberg, P.A. Albu-

querque, New Mexico (William H. Carpenter and

David J. Stout of Carpenter & Goldberg, P.A., and

William E. Snead of Ortega & Snead, P.A., Albu-

querque, New Mexico, with him on the briefs), for

Plaintiff-Appellant in No. 87-2517.

David M. Heilbron of McCutchen, Doyle, Brown & Enersen,

San Francisco, California (Leslie G. Landau of

McCutchen, Doyle, Brown & Enersen, San Francisco,

California; Thomas E. Fennell of Jones, Day, Reavis

& Pogue, Dallas, Texas; John P. Raleigh and Nicholas

J. Wittner of General Motors Corporation, Detroit,

Michigan; Russell D. Mann and Bob F. Turner of

Atwood, Malone, Mann & Turner, Roswell, New

Mexico, with him on the brief), for Defendant-

Appellee in No. 87-2517.

(William H. Crabtree and Edward P. Good, Detroit Mich-

igan; Charles H. Lockwood II, Arlington, Virginia;

and Paul M. Bator and Stephen M. Shapiro of Mayer,

Brown & Platt, Chicago, Illinois, on the brief for

Amicus Curiae in No. 87-2517.)

Malcolm E. Wheeler of Skadden, Arps, Slate, Meagher

& Flom, Los Angeles, California (Robert G. McCorkle

of Rodey, Dickason, Sloan, Akin & Robb, P.A., Al-

buquerque, New Mexico, with him on the briefs),

for Defendant-Appellant in No. 88-1900.

A3

Walter J. Melendres of Montgomery & Andrews, P.A.,

Santa Fe, New Mexico, for Plaintiff-Appellee in No.

88-1900.

(Arthur H. Bryant of Trial Lawyers for Public Justice,

Washington, D.C., on the brief for Amicus Curiae

Trial Lawyers for Public Justice, P.C. in No. 88-1900.)

(Larry E. Coben of Litvin, Blumberg, Matusow & Young,

Philadelphia, Pennsylvania, and Eugene E. Pavalon,

President, The Association of Trial Lawyers of Amer-

ica, Chicago, Illinois, on the brief for Amicus Curiae

The Association of Trial Lawyers of America in No.

88-1900.)

(B. Wayne Vance, General Counsel, and Kenneth N.

Weinstein, Deputy Assistant General Counsel, U.S.

Department of Transportation; Erika Z. Jones, Chief

Counsel, and David W. Allen, Assistant Chief Counsel,

National Highway Traffic Safety Administration,

Washington, D.C.; William L. Lutz, United States

Attorney for the District of New Mexico; John R.

Bolton, Assistant Attorney General, and Douglas

Letter, Appellate Litigation Counsel, Civil Division,

Department of Justice, Washington, D.C., on the brief

for Amicus Curiae United States in No. 88-1900.)

Before McKAY, McWILLIAMS, and BALDOCK, Circuit

Judges.

McKAY, Circuit Judge.

Kitts v. General Motors Corp., No. 87-2517, and

Richart v. Ford Motor Co., No. 88-1900, were separately

submitted to us. On our own motion we consolidate

for purposes of disposition of the preemption issue before

us in both cases.

A4

Although the cases before us are not factually iden-

tical, appellants raise the same issue on appeal: whether

section 1392(d) of the Naticnal Traffic and Motor Ve--

hicle Safety Act (the “Safety Act”), 15 U.S.C. § 1381

(1982), preempts state tort claims against automobile

manufacturers who comply with Federal Motor Vehicle

Safety Standards (“FMVSS”) regarding occupant crash

protection but fail to install air bags as well. See 15

U.S.C. § 1392(d) (1982)! and FMVSS 208, 49 C.F.R.

§ 571.208, S4.1.2 (1987). In each case the plaintiff sued

an automobile manufacturer under New Mexico tort law

alleging that an automobile manufactured by it was neg-

ligently and defectively designed because it did not have

a passive restraint system, i.e., air bags, in addition to

or instead of federally approved safety belts.*

1. Section 1392(d) states in pertinent part:

Whenever a Federal motor vehicle safety standard estab-

lished 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.

15 U.S.C. § 1392(d) (1982).

2. FMVSS 208 details the occupant crash protection options

a manufacturer may install in passenger vehicles in order to

comply with federal motor vehicle safety standards. At the

time these automobiles were manufactured, a manufacturer could

comply with FMVSS 208 by installing (1) a complete passive

protection system for front and lateral crashes; (2) passive

protection for frontal crashes plus lap belts with belt warning

for side crashes and rollovers; or (3) manual lap and shoulder

belts with belt warning. 49 C.F.R. § 571.208, S4.1.2 (1987).

3. In Richart, plaintiff alleged that the car was negligently

designed, and not crashworthy, because it lacked air bags. In

Kitts, plaintiff alleged that the car was defective and unrea-

sonably dangerous because the manufacturer failed to utilize

available technology, i.e., air bags, which would have prevented

the death of plaintiff's decedent.

A5

Both defendants moved for partial summary judg-

ment on the ground that the Safety Act preempts plain-

tiffs’ air bag claims.* See 15 U.S.C. § 1392(d) (1987).

In response to defendants’ motions, each plaintiff argued

that its claim was a common law tort claim expressly

saved by section 1397(c) of the Safety Act. See 15

U.S.C. § 1397(c) (1982).5 The district courts reached

opposite conclusions: The trial court in Kitts held that

the Safety Act preempts plaintiff's air bag claim; the

trial court in Richart held that the Safety Act does not

preempt plaintiff’s air bag claim.

We conclude that the Safety Act preempts plain-

tiff’s air bag claim. See Wood v. General Motors Corp.,

865 F.2d 395 (1st Cir. 1988). For our purposes, Wood

is almost identical to the cases before us: the plaintiff

alleged under state law that the automobile manufac-

tured by the defendant was defective because it was

equipped with safety belts rather than air bags or another

passive restraint system (e.g., automatic safety belts).

The defendant moved for summary judgment on the

ground that the Safety Act and FMVSS 208 promulgated

under the Act preempt plaintiff’s claim.

In Wood, the First Circuit rejected an express pre-

emption claim, but held that section 1392(d) of the Safety

4. The Richart defendant moved for partial summary judg-

ment on the additional ground that the Safety Act and Federal

Motor Vehicle Safety Standard 208 impliedly preempt plain-

tiff’s air bag claim. The Kitts defendant moved for partial

summary judgmert on the additional ground that it owed no

duty to the decedent under New Mexico law. Due to our dis-

position of the preemption issue, we need not reach Kitts’ sec-

ond ground. See discussion infra.

5. Section 1397(c) states: “Compliance with any Federal

motor vehicle safety standard issued under this subchapter does

not exempt any person from any liability under common law.”

15 U.S.C. § 1397(c) (1982).

A6

Act and FMVSS 208 impliedly preempt plaintiff’s passive

restraint claim. The Court found that

Congress’s purposes, as revealed in the Safety Act

and in the legislative history, plainly imply a pre-

emptive intent.

Such an action is . . . impliedly preempted because

it would effectively circumvent section 1392(d)’s

prohibition of nonidentical state standards covering

the same aspect of performance as a federal safety

standard. Allowing a common law action holding

manufacturers liable for failing to install air bags

in motor vehicles would be tantamount to estab-

lishing a conflicting safety standard that necessarily

encroaches upon the goal of uniformity specifically

set forth by Congress in this area.

Id. at 402 (emphasis in original). Because we believe

Wood directly addresses and correctly resolves the issue

before us, we follow the general principles articulated

in Wood and adopt the implied preemption rule of the

First Circuit.

In view of our determination that the Safety Act

preempts plaintiff’s air bag claim, we affirm the trial

court’s grant of partial summary judgment to the de-

fendant in Kitts and reverse the trial court’s denial of

partial summary judgment to the defendant in Richart.

We also direct the trial court in Richart to enter partial

summary judgment for the defendant.

A7

(Filed October 2, 1987)

IN THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

No. CIV 85-0967 JC

PAULINE W. KITTS, as Personal Representative of the

Estate of WILLARD F. KITTS,

Plaintiffs,

Vs.

GENERAL MOTORS CORPORATION,

a foreign corporation,

Defendant.

FINAL JUDGMENT

THE COURT, having granted Partial Summary

Judgment on Defendant General Motors Corporation’s

Motion for Partial Summary Judgment, and

The Court having directed that the Clerk enter a

final judgment dismissing Plaintiff’s “air bag” claim, now

therefore,

IT IS ORDERED that Final Judgment be, and hereby

is, entered dismissing the Plaintiff’s “air bag” claim

against the Defendant General Motors Corporation.

DONE a: Albuquerque, this 2nd day of October, 1987.

/s/ Jesse Casaus

Clerk, U.S. District Court

A8

(Filed September 29, 1987)

IN THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

No. CIV 85-0967 JC

PAULINE W. KITTS, as Personal Representative of the

Estate of WILLARD F. KITTS,

Plaintiffs,

vs.

GENERAL MOTORS CORPORATION,

a foreign corporation,

Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR

PARTIAL SUMMARY JUDGMENT AND DIRECT-

ING ENTRY OF FINAL JUDGMENT ON PLAIN-

TIFF’S “AIR BAG’’ CLAIM

Defendant General Motors Corporation’s Motion for

Partial Summary Judgment on Plaintiff’s claim that her

1982 Pontiac J-2000 should have been equipped with air

bags came on for hearing before the Court on Septem-

ber 10, 1987. Upon consideration of the pleadings, briefs

and the oral arguments of counsel, the Court finds:

1. The National Traffic and Motor Vehicle Safety

Act of 1966, 15 U.S.C. §1381, et seq. (“Safety Act”)

and regulations promulgated thereunder were intended

by Congress to preempt any non-identical state stan-

dards, whether established through the application of

common law principles of liability or otherwise, as to

any federally regulated aspect of vehicle performance.

AQ

; 15 U.S.C. §1392(d). Accordingly, Plaintiff’s air bag

claim is preempted by 15 U.S.C. §1392(d) and is not

) saved by 15 U.S.C. §1397(c). E.g., Donnelly v. General

Motors Corp., No. 86-576-JU, District Court of Oregon,

August 30, 1987 (adopting Magistrates rulings of June 22,

1987; Vanover v. Ford Motor Co., 632 F.Supp. 1095 (E.D.

Mo. 1986). Moreover, Plaintiff’s air bag claim, if per-

mitted, would stand as an obstacle to the accomplishment

and execution of the full purposes and objectives of the

Safety Act and Federal Motor Vehicle Safety Standard

208, and is preempted for this reason as well. E.g.,

Baird v. General Motors Corp., 654 F.Supp., 28 (N.D.

Ohio 1986); Wattelet v. Toyota Motor Corp., (D. Mont.

April 27, 1987); Wickstrom v. Maplewood Toyota, Inc.,

Consumer Prod. Safet, Guide (CCH) Para. 75,377 at

61,265 (Minn. Dist. C*. March 12, 1987).

2. Defendant General Motors Corporation had no

duty under New Mexico law to equip the subject ve-

hicle with air bags. Accordingly, Plaintiff's air bag

claim does not state a cause of action under New Mexico

law.

3. There is no just reason for delay in entering a

final judgment dismissing Plaintiff’s “air bag” claim.

IT IS THEREFORE ORDERED that Defendant Gen-

eral Motors Corporation’s Motion for Partial Summary

Judgment be, and it hereby is, granted.

IT IS FURTHER ORDERED that the Clerk of this

Court be, and hereby is, directed to enter a final judg-

ment, dismissing Plaintiff’s “air bag” claim.

DATED this 28th day of September, 1987.

/s/ John E. Conway

United States District Judge

————