Petition for Writ of Certiorari — Meier v. Nissan Motor Corp. in U. S. A.

) Supreme Court, US.

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Amended ; “So oe? >)

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MOV. 76 ‘S#

In the Supreme Cougr? ocr

eaenetenee

OF THE

United States

OCTOBER TERM, 1989

PAULA MEIER, et al.,

Petitioners,

VS.

NISSAN MOTOR CORPORATION

In U.S.A., et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA,

SECOND APPELLATE DISTRICT,

DIVISION ONE

DaviD M. HaRNEY

201 North Figueroa Street

Suite 1300

Los Angeles, Califernia

90012-2636

Telephone (213) 452-0581

FAX (213) 250-4042

Counsel of Record for Petitioners

Of Counsel

THOMAS KALLAY

MICHAEL N. FRIEDMAN

201 N. Figueroa Street,

Suite 1300

Los Angeles, California

90012-2636

(213) 482-0881

Bowne of Los Angeles, Inc.. Law Prnters. (215) 742-6000)

:

i

i

QUESTIONS PRESENTED

1. Whether Federal Motor Vehicle Safety Standard

208, which requires an automobile manufacturer to install

occupant restraint systems in all automobiles manufac-

tured or sold in the United States, preempts or otherwise

bars petitioners from asserting respondents’ failure to

install airbags in its automobiles as evidence of a design

defect in a state court common law products liability suit.

2. Whether the California Court of Appeal exceeded

its jurisdiction by granting respondents’ petition for a

writ of mandate, which respondents did not file until

forty-five (45) days after the expiration of the time limit

for such relief, as provided by California Code of Civil

Procedure § 437¢(1).

PARTIES

Petitioners herein are Paula Meier, individually, as

guardian ad litem for Shannon Ann Meier and Kristen

Jeanne Meier, and on behalf of the Estate of James R.

Meier, deceased. Respondents are Nissan Motor Corpora-

tion in U.S.A., Nissan Motor Company, Ltd. and Oxnard

Nissan. In the lower court’s opinion, the Nissan parties

were petitioners, the Superior Court of the State of

California for the County of Los Angeles was the respon-

dent and the Meier parties were real parties in interest.

en

li

TABLE OF CONTENTS

Page

ISSUES PRESENTED ............c0ccceceeeee a

PARTIES .. 0... cc cecccccccccucceuceuccencenne

OPINION BELOW AND RELATED CASES..... 1

JURISDICTION... ....ccccccecceccceucceuceeen 2

STATUTES AND REGULATIONS............... 2

STATEMENT OF THE CASE ............. oe 4

REASONS FOR GRANTING THE WRIT........ 6

I

THE PETITION PRESENTS A FEDERAL QUES-

TION WITHIN THIS COURT’S CERTIORARI

JURISDICTION .........cccccccccuccceuceeues 6

II

WOOD V. GENERAL MOTORS CORP. 865 F.2d 395

(Ist Cir. 1988), ON WHICH THE COURT BE-

LOW EXCLUSIVELY RELIED, WAS INCOR-

RECTLY DECIDED: COMPLIANCE WITH

FEDERAL MOTOR VEHICLE SAFETY STAN-

DARDS DOES NOT EXEMPT ANY PERSON

FROM LIABILITY UNDER THE COMMON

LAW... cnavcvccuuscau si eeeen ane 7

III

THE DECISION BELOW CONFLICTS WITH

OTHER DECISIONS OF THE CALIFORNIA

COURT OF APPEAL, COURTS OF LAST RE-

SORT IN OTHER STATES, AND DECISIONS |

OF THE U.S. CIRCUIT COURTS OF APPEAL 10

ill

TABLE OF CONTENTS

ry

—

@

IV

THE DECISION BELOW, WHICH STRIPS PETI-

TIONERS OF THEIR COMMON LAW THEORY

OF LIABILITY FOR DESIGN DEFECT

BASED UPON RESPONDENTS’ FAILURE TO

INSTALL AIRBAGS IN THEIR AUTOMO-

BILES, IS A CRITICAL ISSUE TO CONSUM-

ERS AND THE PUBLIC IN GENERAL ...... 14

A. The Policy Underlying The Safety Act ...... 14

B. The Decision of the Court Below Contravenes

the Purpose Underlying the Safety Act...... 16

V

THE DECISION BELOW, WHICH HOLDS THAT

PETITIONERS’ COMMON LAW CAUSE OF

ACTION FOR PRODUCTS LIABILITY PREDI-

CATED UPON RESPONDENTS’ FAILURE TO

INSTALL AIRBAGS IN THEIR AUTOMO-

BILES IS PREEMPTED BY FEDERAL LAW,

VIOLATES THE EXPRESS PROVISIONS OF

15 U.S.C. § 1397(¢) AND MISCONSTRUES THE

PROVISIONS OF 15 U.S.C. § 1392(d) ......... 18

A. The Court Below Misconstrued The Term “Mo-

tor Vehicle Safety Standard” .............. 18

B. Products Liability Decisions Do Not Consti-

tute Safety Standards .................... 20

iv

TABLE OF CONTENTS

£

VI

THE CALIFORNIA COURT OF APPEAL EX-

CEEDED ITS JURISDICTION CONFERRED

BY CALIFORNIA CODE OF CIVIL PROCE-

DURE SG IOEE) occ cc ccctevsccccsscevveesses 22

CORTE NGES 6o ccc canrececceccrcnesnseasegsue 24

APPENDIX A

Opinion, The Court of Appeal of the State of

California, Second Appellate District, Division

i PEPE Eee ETT re ree ey ree re oP Pree la - 3a

Order, The Supreme Court of the State of

| err ey rere ag or ae Ta

Excerpts from Federal Motor Vehicle Safety

Deena BOP oo onc snc cccesccccdecesetseuee 8a - 10a

Vv

TABLE OF AUTHORITIES

Cases

Page

Abadjian v. Superior Court, 168 Cal.App.3d 363,

214 Cal.Rptr. 234 (1085) ................008. 23

Buccery v. General Motors Corp., 60 Cal.App.3d 533,

133 Cal. Rote. G06 (1976) .................... 5, 12

Dawson v. Chrysler Corporation, 630 F.2d 950 (3d

Cir. 1980), cert. denied, 450 U.S. 959 (1981)... 11

Huff v. White Motor Corp., 565 F.2d 104 (7th Cir.

1977), appeal after remand 609 F.2d 286...... 12, 13

Kitts v. General Motors Corporation, 875 F.2d 787

CE Gi eos beds cacsewaseanes Lu,

Knippen v. Ford Motor Company, 546 F.2d 993

ES eee ee ke eSaded se civacdeus 11

Larsen v. General Motors Corporation, 391 F.2d 495

ES ond Linda ead ies ceases ss 11, 15, 16

McDonald v. Oregon Navigation Co., 233 U.S. 665,

58 L.Ed. 1145, 34 S.Ct. 772 (1914) ........... 7

Operating Engineers v. Jones, 460 U.S. 669, 75

L.Ed.2d 368, 103 S.Ct. 1453 (1983)........... 6

Seege v. Volkswagenwerk A.G, 648 F.2d 833 (2d Cir.

1981), cert. denied, 454 U.S. 867, 70 L.Ed.2d 168,

a 13

Silkwood v. Kerr McGee Corp., 464 U.S. 238, 78

L.Ed.2d 443, 104 S.Ct. 615 (1989)............ 16

Sode v. U.S., 531 F.2d 531, 209 Ct.Cl. 180 (1976) 19

Standard Pipe & Supply Co. v. Superior Court, 9

Cal Ben.Sd 760, 51 P.2d 910 ................. 23

Stonehocker v. General Motors Corp., 587 F.2d 151

sins ccc ccccescecss 16

vi n

TABLE OF AUTHORITIES

CASES

Page

Sturm Ruger & Co. v. Superior Court, 164

Cal.App.3d 579, 210 Cal.Rptr. 573 (1985) ...... 22, 23

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

Che. 20GB) on. ss ccukedeciune sees eeeeeeee 13

Valley v. Northern Fire & Marine Ins. Co., 254 U.S.

348, 65 L.Ed. 297, 41 S.Ct. 116 (1920) ........ 23

Voss v. Black & Decker Manufacturing, 59 NY 2d

102, 463 N.Y.S. 2d 398, 450 N.E. 2d 204 ...... 12

Wood v. General Motors Corporation, 865 F.2d 395

(Let Gah. SRGe +20 vk euaneseauheeenee passim

Woodfork v. Marine Cooks and Stewards Union, 642

P2d O68 (OGh CO. Beeee caved seaes caasecaess 19

Dictionary

Webster’s New Twentieth Century Dictionary of the

English Language, Unabridged (2d ed. 1978),

Mts: MOEEEOEP TP ee 19

Statutes

California Code of Civil Procedure

€ GBeTa(a) ...0cccncnekneeeeeeneeneeeee i, 3, 5, 7, 22

Yt Serer rT 4

Federal Motor Vehicle Safety Standard 208,

49 CPR 6 STLDOS « « 6cmasckcctenne i, 4, 6, 15, 18, 21

TABLE OF AUTHORITIES

STATUTES

Page

15 U.S.C.

EN ao sn db kp kee oe 2, 8, 14, 17, 18, 19

a as chs aww es'n4ks bees Renan ne 19

ET + sf es ee

i ne ckeeevceen passim

ER ga ou hs 045 606k 4s 64 ceed’ 0s 16

ee ek ec cwe ks seb bae eee 2

Textbook

Nowak, Rotunda and Young, Constitutional Law

(Weat 3d ed. 1963), p. 206 .................. 7

No.

~ In the Supreme Court

OF THE

United States

OCTOBER TERM, 1989

PAULA MEIER, et al.,

Petitioners,

vs.

NISSAN MoToR CORPORATION

IN U.S.A., et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA,

SECOND APPELLATE DISTRICT,

DIVISION ONE

OPINION BELOW AND RELATED CASES

The opinion of the California Court of Appeal is re-

ported at 212 Cal.App.3d 980, 261 Cal.Rptr. 80, and is

reprinted in the Appendix hereto, infra, p. la.

Two related cases, Wood v. General Motors Corporation,

865 F.2d 395 (1st Cir. 1988) and Kitts v. General Motors

Corporation, 875 F.2d 787 (10th Cir. 1989) are pending

before this Court on petitions for writs of certiorari. The

Wood case is related to this action because it involves

identical issues of law and because it was the principal

authority for the California Court of Appeal’s decision

2

which this Court is asked to review in this petition. The

Kitts ease also involves identical issues of law and was

based upon the First Cireuit Court of Appeals’ decision in

Wood.

JURISDICTION

The opinion of the California Court of Appeal was

decided on May 26, 1989 and modified on June 22, 1989.

(See Appendix A) Petitioners herein sought review by

the California Supreme Court which declined to review

the matter on August 31, 1989. A copy of the California

Supreme Court’s decision appears in the Appendix hereto

at pp. 7a-10a infra. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1257(a).

STATUTES AND REGULATIONS

The National Traffie and Motor Vehicle Safety Act of

1966, 15 U.S.C. §$§ 1381 et seq., P.L. 89-563, 80 Stat. 718

(“Safety Act”) provides in pertinent part as follows:

§ 1392(d) 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 stan-

dard applicable to the same aspect of performance of

such vehicle or item of equipment which is not identi-

eal to the Federal standard. Nothing in this section

shall be construed to prevent the Federal Govern-

ment or the government of any State or political

subdivision thereof from establishing a safety re-

quirement applicable to motor vehicles or motor vehi-

ele equipment procured for its own use if such

3

requirement imposes a higher standard of perform-

ance than that required to comply with the otherwise

applicable Federal standard.

ts

§ 1397(c) Compliance with any Federal motor vehi-

cle safety standard issued under this subchapter

does not exempt any person from any liability under

common law.

Relevant excerpts from Federal Motor Vehicle

Safety Standard 208, 49 CFR §571.208 are con-

tained in petitioners’ Appendix hereto at pp. 5a-6a.

As the subject Nissan Stanza was manufactured in

1982, its occupant restraint system is governed by

the provisions of Safety Standard 208, commencing

at 49 CFR 571.208.84.1.2.

California Code of Civil Procedure § 437¢(1) provides

as follows:

A summary judgment entered under this section is

an appealable judgment as in other cases. Upon entry

of any order pursuant to this section except entry of

summary judgment, a party may, within 10 days after

service upon him or her of a written notice of entry of

the order, or within such further time not exceeding

20 days as the trial court may for good cause allow,

petition an appropriate reviewing court for a peremp-

tory writ. If the notice is served by mail, the period

within which to file the petition shall be increased by

five days if the place of address is within the State of

California, 10 days if the place of address is outside

the State of California but within the United States,

and 20 days if the place of address is outside the

United States.

4

STATEMENT OF CASE

On June 4, 1986, petitioners filed a wrongful death

action in the West District of the Superior Court of the

State of California for the County of Los Angeles. The

complaint alleges, inter alia, that the 1982 Nissan Stanza

automobile driven by decedent James R. Meier was defec-

tive in design. Petitioners contended subsequent to the

filing of the complaint that the Nissan Stanza was defec-

tively designed because the occupant restraint system

installed in the automobile, a three-point safety belt,

failed to restra'n the decedent and because air bags had

not been installed in the automobile.

On December 2, 1988, respondents herein filed a motion

for summary adjudication of issues pursuant to California

Code of Civil Procedure § 437c, asserting that petitioners’

theory of liability, predicated upon respondents’ failure to

install air bags in the subject Nissan Stanza was pre-

empted by Federal Motor Vehicle Safety Standard 208,

which permits an automobile manufacturer to use one of

three types of occupant restraint systems of which one is

air bags. Petitioners admitted that respondents complied

with the federal safety standard but asserted that 15

U.S.C. § 1397(¢) permitted them to proceed with their

common law cause of action, predicated in part upon the

‘no air bag’ theory of liability.

On January 23, 1989, the court served notice of its

decision to deny the motion for summary adjudication of

issues in which the court states:

“Motion denied. After reading moving, responsive

and reply papers, the court concludes that the Fed-

eral Statute does not pre-empt common law reme-

dies. Although the issue is not altogether free from

5

doubt, the court cannot conclude as a matter of law

that the motion should be granted.”

On March 24, 1989, forty-five (45) days after notice of

entry of the summary adjudication order, respondents

filed a petition for a writ of mandate in the Court of

Appeal of the State of California, Second Appellate Dis-

trict. Notwithstanding the fact that California Code of

Civil Procedure § 437¢(1) requires such a petition to be

made, if at all, within ten days after notice of entry of the

order is given, the Court of Appeal granted the petition

over petitioner's objection and issued a peremptory writ

in the first instance directing the trial court to grant

respondents’ motion for summary adjudication of issues.

In its original unpublished opinion filed on May 26, 1989,

the court held that 15 U.S.C. § 1392(d) precluded, by way

of implied federal preemption, a common law tort action

based upon a manufacturer’s failure to install air bags in

its automobiles. The court based its decision upon Wood v.

General Motors Corp. 865 F.2d 395 (1st Cir. 1988). Al-

though the Wood case is the sole authority cited by the

court in support of its decision, the court does not discuss

the decision reached by the court in Wood nor does it

explain why it was persuaded by the Wood decision.

On June 22, 1989, the Court of Appeal modified and

certified its decision for publication. In the modified

opinion, the California Court of Appeal addressed a

California appellate decision, Buccery v. General Motors

Corp. (1976) 60 Cal.App.3d 533, 132 Cal.Rptr. 605, which

held that common law claims are not preempted by

federal law. The court went on to hold that it was not

bound by either the Wood or Buccery decisions but that it

was persuaded “that the ‘no air bag’ issue is preempted

by federal law.” (212 Cal.App.3d 982.)

6

On July 3, 1989, petitioners filed a petition for review in

the California Supreme Court. The issues raised in the

petition were that the Court of Appeal exceeded its

jurisdiction by granting respondent’s untimely petition

and that the Court of Appeal erred in holding that

petitioner’s “no air bag” theory of liability was preempted

by Federal law. The California Supreme Court, however,

denied the petition for review on August 31, 1989, al-

though Justice Stanley Mosk was of the opinion that the

petition should be granted.

This petition ensued.

REASONS FOR GRANTING THE WRIT

I

THE PETITION PRESENTS A FEDERAL QUES-

TION WITHIN THIS COURT’S CERTIORARI

JURISDICTION

Certiorari jurisdiction is conferred upon this Court

where a state court construes or applies federal law.

(Operating Engineers v. Jones 460 U.S. 669, 675, 75 L.Ed

2d 368, 103 S.Ct. 1453 (1983) [Whether the National

Labor Relations Act preempts State’s common law cause

of action for tortious interference with contract presents

a federal question within the Supreme Court’s certiorari

jurisdiction }.)

In this petition, petitioners request the court to review

the holding of the California Court of Appeal that Federal

Motor Vehicle Safety Standard 208 preempts a state

common law cause of action for products liability predi-

cated upon the manufacturer’s failure to install air bags

in its vehicles. In its decision, the California Court of

Appeal construed two provisions of the National Traffic

and Motor Vehicle Safety Act, 15 U.S.C. §$§ 1392(d) and

7

1397(¢c) and applied them to petitioners common law tort

cause of action as a bar to same. (See the opinion of the

California Court of Appeal below at 212 Cal.App.3d 980,

982, set forth in the Appendix, p. 3a.) Thus, this Court

has the requisite jurisdiction to issue petitioners’ re-

quested writ of certiorari.

Petitioners also challenge the decision of the California

Court of Appeal on the grounds that the court exceeded

its jurisdiction conferred by California Code of Civil

Procedure §437¢(1). This Court possesses certiorari juris-

diction to hear claims that state courts have exceeded

their own jurisdiction. (McDonald v. Oregon Navigation

Co., 233 U.S. 665, 670, 58 L.Ed. 1145, 34 S.Ct. 772 (1914)

[A state court’s “... fundamental absence of any and al!

right to take cognizance of the cause” presents a Federal

issue subject to the Supreme Court's certiorari

jurisdiction. } )

II

WOOD V. GENERAL MOTORS CORP. 865 F.2d 395

(Ist Cir. 1988), ON WHICH THE COURT BELOW

EXCLUSIVELY RELIED, WAS INCORRECTLY DE-

CIDED; COMPLIANCE WITH FEDERAL MOTOR

VEHICLE SAFETY STANDARDS DOES NOT EX-

EMPT ANY PERSON FROM LIABILITY UNDER

THE COMMON LAW

It is hornbook law that preemption is a matter of

congressional intent. (Nowak, Rotunda and Young, Con-

stitutional Law (West 2d ed. 1983), p. 295.) Wood v.

General Motors Corp., supra, 865 F.2d 395, 401 itself so

holds. Yet Wood concludes that actions such as the one at

bar were entirely unforeseen when the Safety Act was

enacted. (865 F.2d 395, 404-406.) The proposition that

Congress could have intended to preempt state common

8

law actions which did not exist when the Safety Act was

enacted and which were in 1966 entirely unforeseen is

starkly illogical. Wood does not explain how Congress

could have intended to preempt actions such as this when:

“We conclude that it is unrealistic to ascribe to the

authors of the Safety Act, and to Congress generally,

an awareness that in the years ahead a new breed of

state tort actions would be developed from which

design standards might emerge that, on some rare

occasion, might create a direct conflict with a partic-

ular FMVSS. Thus when Congress inserted the sav-

ings clause, it did not contemplate that lawsuits

would be brought with the potential to give rise to the

eurrent dilemma.” (Wood v. General Motors Corp.,

supra 865 F.2d 395, 406.)

The contradiction between the conclusion that Con-

gress intended to preempt state actions of this kind and

the finding that it could not have and did not foresee such

actions in 1966 when the Safety Act was enacted is

patent. Congress could not have intended to nullify that

which it did not know would ever exist. Yet the finding

that Congress could not have foreseen in 1966 state tort

actions for defective design is no casual comment in Wood

but the product of extended analysis. (Wood v. General

Motors Corp., supra 865 F.2d 395, 404-406.) Petitioners

submit that this studied and inherent contradiction in

Wood is reason enough to decline to follow it as

unpersuasive.

Ee eee Looe =

9

Further, Wood is not persuasive because it dispenses

with the savings clause which petitioners contend was

intended by Congress to apply to cases such as the one at

bar. The savings clause provides:

“Compliance with any Federal motor vehicle safety

standard issued under this subchapter does not ex-

empt any person from any liability under common

law.” (15 U.S.C. § 1397(c).)

After citing the provisions of 15 U.S.C. 1392(d) and the

savings clause, the Wood court noted the conclusion of the

District Court that since Congress had been fully aware

of the fact that damage suits would be initiated against

parties who had complied with federal regulations, Con-

gress had recognized and sanctioned the “tension” be-

tween compliance with federal regulations and state

common law claims. (865 F.2d 395, 403.) The Wood court

then concluded: : me

“We agree with neither General Motor’s reading of

Congress’s express intent nor with that of Wood and

the district court. We instead reach a third conclu-

sion: Congress in 1966 did not contemplate the likeli-

hood that there would be a state tort action that

would effectively create a state design standard con-

flicting with a federal safety standard. As it did not

envisage this peculiar type of lawsuit, and as no

reason appears in the legislative history or comes to

mind as to why Congress would have meant to en-

dorse a state claim having the same effect as a

forbidden state regulation, we do not find that Con-

gress meant to sanction the ‘tension’ between the

FMVSS and state common law existing in the cur-

rent situation. [ ] This interpretation of the Safety

Act and of Congress’s intent is first suggested by the

very fact that the two provisions, read alone, yield

10

such different results. If Congress had considered

the instant type of tort claim in these facts, it would

scarcely have left unexplained such a glaring ambigu-

ity. Our reading is supported by the state of tort law

when the Safety Act was passed in 1966 and the

legislative history of the Act.” (footnote omitted)

(Wood, 895 F.2d at 403-404.)

The answer to the foregoing is that 23 years have

passed since 1966 which have brought the changes in state

tort actions described in Wood and yet Congress has

allowed the savings clause to stand as enacted in 1966. As

the past 23 years show, Congress has decided to tolerate

the “tension” between section 1392(d) and the savings

elause. This Court (and the courts below) should do no

less.

No court has the power to arrogate to itself the right to

make legislative policy contrary to that expressed by the

Congress, nor should a Court draft a social policy whici

the Congress has consistently rejected since 1966. Yet

this is what the Wood decision and the California Court of

Appeal in the Nissan case have done. Petitioners submit

these decisions should be set aside.

Ill

THE DECISION BELOW CONFLICTS WITH

OTHER DECISIONS OF THE CALIFORNIA

COURT OF APPEAL, COURTS OF LAST RESORT

IN OTHER STATES, AND DECISIONS OF THE U.S.

CIRCUIT COURTS OF APPEAL

Prior to the appellate decision in Wood v. General

Motors Corp. 865 F.2d 395 (1st Cir. 1988), decided on

December 28, 1988, eight Federal Circuit Courts and five

state courts of last resort had addressed the issue of

11

whether compliance with the federal motor vehicle Safety

Standards exempts automobile manufacturers from com-

mon law liability in products liability actions predicated

upon design defects.

Some oi these cases, like the Wood and Kitts eases and

the case at bar, viewed the issue as whether federal safety

standards preempt, either expressly or impliedly, com-

mon law claims for design defects.

Other cases, petitioners contend, addressed the issue

more realistically. Those cases framed the issue as

whether compliance with the Federal Safety Standards

conferred immunity upon automobile manufacturers for

common law liability arising out of design defects. In

those cases, the automobile manufacturers asserted that

compliance with the Federal Safety Standards created an

absolute bar to common law liability for design defects

beeause, as a matter of law, a finding of compliance with

the Federal Safety Standards was the equivalent of a

finding that no design defect existed. (e.g. Knippen v.

Ford Motor Company, 546 F.2d 993, 1000 (D.C. Cir.

1976); Dawson v. Chrysler Corporation, 630 F.2d 950, 957-

58 (3d Cir. 1980), cert. denied, 450 U.S. 959 (1981).)

Both lines of cases, however, had one thing in common,

they all rejected any attempt by the automobile manufac-

turer to escape liability for common law design defects

merely by complying with the minimum requirements

established by the Federal Safety Standards.

Thus, in the first such case to reach a federal court of

appeal, Larsen v. General Motors Corporation, 391 F.2d

495, 506 (8th Cir. 1968) the Eighth Circuit stated:

Section 108(¢c) of the Act, 15 U.S.C. § 1397(¢), ex-

pressly negatives any intention of Congress to aec-

quire exclusive jurisdiction in this field and leaves

12

the common law liability intact ... It is apparent that

the National Traffic Safety Act is intended to be supple-

mentary of and in addition to the common law of

negligence and product liability. [Emphasis added. ]

This was the undisputed rule in California as well. In

Buccery v. General Motors Corp., supra, the California

Court of Appeal held that:

Defendants’ compliance with Federal Motor Vehicle

Safety Standards does not preclude imposition of

common law liability for a defective product.” (60

Cal.App.3d at 540.) [Emphasis added. ]

The court went on to explain the common law duty of an

automobile manufacturer, which parallels the goals and

duties imposed by the Federal Safety Act, by stating:

“The manufacturer must evaluate the crashworthi-

ness of his product and take steps as may be reasona-

ble and practicable to forestall particular crash

injuries and mitigate the seriousness of others.” (60

Cal.App.3d at 546.)

The significance of this common law rule is that it does

not require an automobile manufacturer to undertake

design changes at the caprice of a judge or jury. If the

design defect claimed by petitioners, i.e., no air bags,

eould not be cured within reason and practicability, then

no liability exists. (See section V.B., infra.) However, the

Buccery court wisely held that an automobile manufac-

turer can be held liable for a design defect which was both

reasonable and practicable to cure but which the automo-

bile manufacturer failed or chose not to cure. Other

jurisdictions follow this same principle. E.g., Voss v. Black

& Decker Manufacturing 59 NY 2d 102, 109, 463 N.Y.S. 2d

398, 450 N.E. 2d 204, 208 (1983); Huff v. White Motor

Corp. 565 F.2d 104 (7th Cir. 1977), appeal after remand

13

609 F.2d 286 [applying Indiana law]; Seege v. Volkswa-

genwerk A.G., 648 F.2d 833 (2d Cir. 1981), cert. denied

454 U.S. 867, 70 L.Ed.2d 168, 102 S.Ct. 330 [applying

North Carolina law. |

Until the Wood case was decided, no federal appellate

eourt or California court had barred a plaintiff from

asserting a common law cause of action based upon a

design defect despite the automobile manufacturer’s com-

pliance with Federal Safety Standards. However, subse-

quent to Wood, the court below in this action and two

ple established in Wood. See Kitt v. General Motors Corp.

875 F.2d 787 (10th Cir. 1989) and Taylor v. General

Motors Corp. 875 F.2d 816 (11th Cir. 1989).

As a-result of these various rulings, there is now a

substantial conflict between the decision of the court

below and decisions of other federal circuits, California

courts and other state courts of last resort over whether

Congress intended to preempt any common law design

defect cases. Even for those courts finding premption,

there is a sharp disagreement over the theory under which

section 1397(c) is, in effect, nullified. There are currently

thousands of automobile design defect cases pending

throughout the country, over a hundred of which involve

claims concerning passive restraints. The preemption is-

sue has been raised or is lurking in every one of them and,

therefore, this Court should grant review to resolve the

conflict.

14

IV

THE DECISION BELOW, WHICH STRIPS PETI- |

TIONERS OF THEIR COMMON LAW THEORY OF———

:

LIABILITY FOR DESIGN DEFECT BASED UPON

RESPONDENTS’ FAILURE TO INSTALL AIR BAGS

IN THEIR AUTOMOBILES, IS A CRITICAL ISSUE

TO CONSUMERS AND THE PUBLIC IN GENERAL

A. The Policy Underlying The Safety Act.

The Safety—Aet—was- enacted in 1966. Its_ very first j

provision states:

§ 1381. Congressional declaration of purpose. Con-

gress hereby declares that the purpose of this Act is

to reduce traffic accidents and deaths and injuries to

persons resulting from traffic accidents. Therefore,

Congress determines that it is necessary to establish

motor vehicle safety standards for motor vehicles

and equipment in interstate commerce; to undertake |

and support necessary safety research and develop- |

ment; and to expand the national driver register.

(Sept. 9, 1966, P. L. 89-563, § 1, 80 Stat. 718.)

CO ee ee ey

This provision has remained unaltered since its enact-

ment in 1966. It is thus necessary for courts to interpret

the Safety Act, including any immunity or preemptive

effect contained therein, in light of this stated purpose.

Moreover, any policy underlying a particular provision of

the Safety Act, such as the policy of promoting uniformity

of regulations which underlies § 1392(d), must be given

some effect but its application may not supercede the

purpose of the Safety Act as a whole.

Consistent with the overall purpose of the Safety Act,

Congress enacted § 1397(c), which permits common law

tort claims to be asserted against automobile manufactur-

15

ers notwithstanding their compliance with Federal Safety

Standards. Larsen v. General Motors Corp., supra, at 391

F.2d 506.

The stated purpose of said provision is contained in the

House Committee Report, as follows:

Common Law Liability — Sesction 108(c) of the

reported bill [15 USC § 1397(¢)] provides that com-

pliance with any Federal Motor Vehicle Safety Stan-

dard does not exempt a person from any liability

under common law.

It is intended, and this subsection specifically

establishes, that compliance with safety standards is

not to be a defense or otherwise to affect the rights of

parties under common law, particularly those relat-

ing to warranty, contract, and tort liability. (H.R.

Rep. No. 1776, 89th Cong. 2d Sess. 24 (1966).)

The Senate Report, which has been read by automobile

manufacturers to be more equivocal than the House Re-

port on this issue, was unfortunately prepared prior to the

time that 15 U.S.C. § 13897(¢c) was added to the Safety Act

by the House of Representatives. 15 U.S.C. § 1397(e)

was, of course, approved by the Senate, however, without

further report or comment.

The decision below, which held that petitioners’ com-

mon law theory of liability was preempted by Federal

Safety Standard 208, is thus in direct conflict with 15

U.S.C. § 1897(c) as Congress intended that provision to

be applied. The decision below effectively holds that

compliance with Federal Safety Standard 208 is an abso-

lute defense to a common law “no air bag” claim or at

least constitutes an absolute bar to such a claim.

16

B. The Decision of the Court Below Contravenes the

Purpose Underlying the Safety Act.

Generally, the “preemption doctrine” is applied in

situations where a federal regulatory scheme is substi-

tuted for those of individual states. Likewise, the federal

regulatory scheme generally contains its own rights and

remedies. (Silkwood v. Kerr McGee Corp. 464 U.S. 238,

251, 78 L.Ed.2d 443, 104 S.Ct. 615 (1989). “Preemption”,

as used by the California Court of Appeal in this instance,

is a misnomer because the Safety Act provides no rights

or remedies to automobile purchasers, only to automobile

distributors and dealers. See 15 U.S.C. § 1400. Further,

the Safety Act only contains a provision establishing a

federal claim for damages where the automobile manufac-

turer has not complied with the Federal Safety

Standards.

Congress, however, did not intend compliance to be a

defense to a common law action. (Larson, supra 391 F.2d

at 506.) Therefore, as Larson held, Congress intended

common law claims to be asserted in the face of the

manufacturer's compliance with applicable safety stan-

dards. Thus, the decision of the court below, while pur-

porting to meet the criteria for implied preemption in

reality established an absolute federal bar or defense to

common law “no air bag’’ claims which is totally contrary

to Congress’ avowed purpose for 15 U.S.C. § 1397(e).'

‘Generally, a manufacturer's compliance with law is some evidence

that the manufacturer was not negligent but it is by no means an

absolute defense. See Stonehocker v. General Motors Corp., 587 F.2d

151, 157 [“I]t is genera) law that custom is admissible against which

a finder of fact may measure a standard of care...safety codes

promulgated by an industry or trade or like regulations have simi-

larly been admitted.” ]

17

While the court below and the court in Wood justify

their decisions based upon their belief regarding Con-

gress’ purported intent to preempt “no air bag” claims,

both courts seem to have based their decision substan-

tially on a policy ground which is never mentioned in the

Safety Act and in fact conflicts with the expressed pur-

pose of the Safety Act — avoiding a multiplicity of ac-

tions, or, in other words, if common law “no air bag”

claims are allowed to be asserted, it will spawn a flood of

lawsuits on the airbag issue. The court below states:

: “To hold otherwise would be to allow a potential

flood of actions against manufacturers that have been

following the custom of the industry and acting in

compliance with Federal regulations. The result

would not only work a hardship to manufacturers,

but also might so encourage litigation as to hamper

the administration of justice.” (212 Cal.App.3d 980,

982-983.)

In Wood, the court stated:

*.. With respect to a claim that a vehicle is defee-

tive because it lacks air bags, however, it seems

obvious that a damages award will have a pronounced

effect on the manufacturer’s future conduct. The

same theory of recovery could be pursued by every

front seat occupant injured in a multipurpose vehicle.

It is well known that injuries to front seat occupants

are frequent; well over 20 lawsuits have been filed on

the theory of absence of air bags in the last two

years.” (865 F.2d at 410.)

These two decisions say that if “no air bag” claims are

not barred, the number of such claims “may” or “might”

or “could” be too great for the court system to handle.

While the orderly and speedy administration of justice is

18

indeed a worthy goal, courts may not substitute this goal

for the goal of the Safety Act, i.e., to reduce the number of

deaths and injuries arising out of traffic accidents. Such

policy decision must be left to Congress which has the

capacity and resources to determine whether policies

affecting tort reform and the administration of justice

should be implemented and their effects on the policy

underlying the Safety Act.

Therefore, this petition should be granted, if for no

other reason, so that the decision to allow tort victims like

petitioners herein to go uncompensated for their loss for

the sake of economic efficiency is left to the legislative

branch for determination.

Vv

THE DECISION BELOW, WHICH HOLDS THAT

PETITIONERS’ COMMON LAW CAUSE OF AC-

TION FOR PRODUCTS LIABILITY PREDICATED

UPON RESPONDENTS’ FAILURE TO INSTALL

AIRBAGS IN THEIR AUTOMOBILES IS PRE-

EMPTED BY FEDERAL LAW, VIOLATES THE EX-

PRESS PROVISIONS OF 15 U.S.C. § 1397(c) AND

MISCONSTRUES THE PROVISIONS OF 15 U.S.C.

§ 1392 (d)

A. The Court Below Misconstrued The Term “Motor

Vehicle Safety Standard.”

The Court below, following the reasoning in Wood, held

that petitioners’ “no air bag” claim was impliedly pre-

empted by Federal Safety Standard 208 because a jury

verdict in a common law action is “tanamount” to a state

standard. According to the court in Wood, any jury

verdict which has an effect upon how the defendant will

conduct himself in the future constitutes a state regula-

tion or standard. (865 F.2d at 410-411.)

19

The determination that a jury verdict is the functional

equivalent of a state regulation, however, is a gross

misconstruction of the Safety Act which renders the

Safety Act ambiguous, whereas a narrow construction of

the Safety Act, applied by the district court in Wood,

would avoid any ambiguity and would further promote the

purpose underlying the Safety Act. (See 673 F.Supp.

1108, 1115.)

Rules of statutory interpretation require a court to give

meaning, if possible, to every provision of the statute and

to avoid an interpretation which renders the statute

ambiguous or nonsensical. Woodfork v. Marine Cooks and

Stewards Union 642 F.2d 966, 970-971 (5th Cir. 1981):

Sode v. U.S. 531 F.2d 531, 538, 209 Ct.Cl. 180 (1976).

The term “Motor Vehicle Safety Standard,” as used in

15 U.S.C. §1392(d) is defined in 15 U.S.C. § 1391(2),

which provides:

“Motor vehicle safety standards” means a minimum

standard for motor vehicle performance, or motor

vehicle equipment performance, which is practicable,

which meets the need for motor vehicle safety and

which provides objective criteria.

A “standard” is defined as “anything recognized as

correct by common consent, by approved custom, or by

those most competent to decide; a model; a type; a

pattern; a criterion.” Webster’s New Twentieth Century

Dictionary of the English Language, Unabridged (2d ed.

1978) page 1772.

These definitions simply do not embrace common law

decisions or jury verdicts. One thing should be clear from

the above definitions — an essential element of a stan-

dard is that it is uniform and consistent in its application.

20

B. Products Liability Decisions Do Not Constitute

Safety Standards.

Under common law, a design defect is determined in

the context of all of the facts of a given case. Therefore,

jury verdicts may well be inconsistent in determining

whether a failure to install air bags constitutes a design

defect in a particular case.

While in this case petitioners contend that a jury would

find that respondents’ failure to install air bags caused

James Meier’s death when his seatbelt failed to ade-

quately restrain him, other juries might find under other

facets that in a given action the failure to install air bags

was not a design defect because the air bags would have

produced no added safety, as in non-frontend collisions,

or that a plaintiff's negligent conduct would have pre-

cluded any extra safety benefit afforded by the air bags,

such as driving with the door open, not sitting properly in

the seat or reclining too far back in the driver’s seat.

Moreover, as the existence of a design defect is a

question of fact under California law, as well as other

states, Courts of Appeal are forbidden from creating a

common law rule which requires all automobile manufac-

turers to install air bags. While in some cases, a jury may

determine according to the facts of the particular case

that the manufacturer's failure to install air bags consti-

tutes a design defect, it is not nearly as clear as the Wood

court suggests that once one jury has decided that the

failure to install air bags constitutes a design defect that

all automobile manufacturers will be forced “like one

coming up for air after being underwater,” to modify the

design of all multipurpose vehicles to include air bags.

(See 865 F.2d 410-411.)

21

Interpretation of the term “motor vehicle safety stan-

dards” to include jury verdicts creates an ambiguity

between the provisions of 15 U.S.C. § 1392(d), and 15

U.S.C. § 1397(¢c). According to 15 U.S.C. 1392(d), if a

jury verdict in a common law “no air bag” tort action

constitutes a safety standard, then the common law action

must be barred or at least its verdict must be consistent

with Federal Safety Standard 208. However, this result

directly contradicts the provision of 15 U.S.C. § 1397(e),

expressly permitting common law actions to proceed with-

out being affected by the Safety Act.

However, this ambiguity could have been totally

avoided had the court construed “motor vehicle safety

standards” to mean only regulations enacted by a state or

other government entity. According to this interpretation,

government regulation is constrained by 15 U.S.C.

§ 1392(d) while jury verdicts in common law actions are

controlled by 15 U.S.C. §1397(c). This interpretation

gives meaning to both provisions of the Safety Act with-

out creating any ambiguity or without sacrificing the

underlying goal of the Safety Act, i.e., the prevention of

traffic accident deaths and injuries.

As Congress did not see fit to include in its definition of

“Motor Vehicle Safety Standards” any reference to com-

mon law decisions or jury verdicts, the interpretation

given by the Court below and the court in Wood is either

erroneous or an act of judicial legislation.

The error in the court’s reasoning is that it fails to

make a distinction between government regulation and

economic forces which exist in the marketplace. A safety

standard may be created by government regulation. Such

a standard would apply to all automobile manufacturers

and to all automobi’es. A manufacturer cannot, in the face

22

of government regulation, refuse to comply with its

provisions.

On the other hand, a safety standard is not established

when the manufacturer still possesses a choice of whether

to adopt the standard or risk the imposition of liability

based on a state’s common law and a jury’s determina-

tion. A manufacturer is not free to disobey a regulation

but it is free to admit or deny liability on the facts of each

case as, and where, they arise. That these decisions are

influenced by eeconomie considerations is not the same as

subjecting the manufacturer to government regulation.

VI

THE CALIFORNIA COURT OF APPEAL EXCEEDED

ITS JURISDICTION CONFERRED BY CALIFOR-

NIA CODE OF CIVIL PROCEDURE § 437c(I)

On January 23, 1989, the trial court in this action in

denying respondents’ Motion for Summary Adjudication

of Issues, held that petitioners’ “no air bag” claim was

not preempted by federal law. On the same date, the court

mailed copies of its minute order, which reflects the entry

of the order, to all counsel in this action. According to

California law, the court’s mailing of a minute order to

the parties commences the running of the time period for

seeking a writ imposed by section 437¢(1). (Sturm, Ruger

& Co. v. Superior Court 164 Cal.App.3d 579, 582, 210

Cal.Rptr. 573 (1985).)

Respondents herein did not file their petition for a writ

until March 24, 1989, forty-five (45) days after the time

for seeking a writ elapsed. However, it was not within the

Court of Appeal’s discretion to grant the untimely appli-

cation for a writ because the timely filing of an applica-

tion for a writ pursuant to section 437(c)(l) is

eC

23

jurisdictional. Abadjian v. Superior Court 168 Cal.App.3d

363, 369, 214 Cal.Rptr. 234 (1985), approving Sturm,

Ruger & Co. v. Superior Court, supra. In Sturm the court

states:

“As a general rule, in the absence of a specific

statutory provision an appellate court may consider a

petition for extraordinary writ at any time, subject to

its discretionary power to deny relief on the grounds

of laches. The manifest purpose of the 1983 amend-

ment to Section 437¢ was to change this rule with

regard to orders relating to motions for summary

judgment — [in order] to prevent the losing party

from causing delays in trial court proceedings by use

of dilatory petitions to the appellate court.” Jd. at

581. [citations omitted. ]

Therefore, the untimely petition of respondents herein

to the California Court of Appeal should have been sum-

marily dismissed and its decision, in the absence of

jurisdiction, is void. (Valley v. Northern Fire & Marine

Ins. Co. 254 U.S. 248, 353-354, 65 L.Ed. 297, 41 S.Ct. 116

(1920); Standard Pipe & Supply Co. v. Superior Court

9 Cal.App.2d 769, 51 P.2d 910.)

24

CONCLUSION

For all of the reasons stated hereinabove, petitioners

respectfully request this court to grant their Petition for

a Writ of Certiorari.

Respectfully submitted,

Davip M. HARNEY

201 N. Figueroa Street, Suite 1300

Los Angeles, California 90012-2636

Telephone: (213) 482-0881

Counsel of Record for Petitioners

Of Counsel

THOMAS KALLAY

MICHAEL N. FRIEDMAN

201 N. Figueroa Street, Suite 1300

Los Angeles, California 90012-2636

Telephone: (213) 482-0881

la

NOT TO BE PUBLISHED

COURT OF APPEAL — SECOND DIST.

FILED

MAY 26, 1989

ROBERT N. WILSON... .Clerk

Deputy Clerk

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

NISSAN MOTOR CORPORATION IN U.S.A., et al.,

Petitioners,

Vv.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES,

Respondent,

PAULA MEIER, ete., et al.,

Real Parties in Interest.

B040894

(L.A.8S.C. No. WEC 103437)

(LAWRENCE WADDINGTON, Judge)

OPINION AND ORDER GRANTING PEREMPTORY

WRIT OF MANDATE

The Court:*

The petition for writ of mandate, filed March 24, 1989,

and the opposition thereto, filed May 23, 1989, have been

read and considered.

As there is not a plain, speedy and adequate remedy at

law, and in view of the fact that the issuance of an

alternative writ would add nothing to the presentation

already made, we deem this to be a proper case for the

issuance of a peremptory writ of mandate

*SPENCER, PJ. HANSON (Thaxton), J. ORTEGA, J.

“in the first instanee.”” (Code Civ. Proe., § 1088.) Opposi-

tion was requested by letter, and the parties were notified

by the same letter, dated May 11, 1989, as to the court’s

intention to issue a peremptory writ. (Palma v. U.S.

Industrial Fasteners (1984) 36 Cal.3d 171, 180.)

Petitioners, an automobile manufacturer and other de-

fendants in an underlying wrongful death action, seek

review of an order of respondent court (Hon. Lawrence

Waddington), denying their motion for summary adjudi-

eation of the issue that the “no air bag” claim is pre-

empted by federal law.

In their complaint for wrongful death, real parties

allege that the 1982 Datsun Stanza automobile, driven by

their husband/father, was defective in that it failed to

have an automatie air bag and that the three-point re-

straint system was defective. Petitioners moved for sum-

mary adjudication of the issue that the “no air bag” claim

is preempted by the federal government. The Federal

Motor Vehicle Safety Standard 208 established require-

ments for the occupant restraint system in the 1982

automobile involved in the underlying action; it required

DM ORT N OWN Re RF

€

3a

the 3-point safety belt system Nissan installed or an air

bag; it has never required air bags. The National Traffic

and Motor Vehicle Safety Act section 1392, subdivision

(d), requires ail state vehicle safety standards to be

identical to federal vehicle safety standards; a state

common law requirement for air bags would be contrary

to the federal requirements and, therefore, preempted.

Federal law provides that compliance with any federal

motor vehicle safety standard does not exempt any person

from common law liability (15 U.S. C. § 1397, subd. (ce) )

and does not expressly exempt non-identical state motor

vehicle safety standards. However, in Wood v. General

Motors Corp. (1988) 865 F.2d 395, 401, the First Circuit

Court of Appeals determined that, while there was n

express preemption, a state tort claim for failure to install

passive restraints is impliedly preempted.

THEREFORE,

Let a peremptory writ of mandate issue, commanding

respondent court to vacate its January 23, 1989 order,

denying summary adjudication of the issue that the ‘no

air bag” claim is preempted by federal law entered in Los

Angeles Superior Court case No. WEC 103437, and enter

a new and different order granting same.

da

CERTIFIED FOR PUBLICATION

COURT OF APPEAL — SECOND DIST.

FILED

MAY 26, 1989

ROBERT N. WILSON... .Clerk

“eee eee eeneenenee eee ee eee ee

Deputy Clerk

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

NISSAN Motor CORPORATION IN U.S.A., et al.,

Petitioners,

. -

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE CouNTY OF LOS ANGELES,

Respondent,

PAULA MEIER, ete., et al.,

Real Parties in Interest.

B040894

(L.A.8.C. No. WEC 103437)

(LAWRENCE WADDINGTON, Judge)

ORDER MODIFYING OPINION AND ORDER

GRANTING PEREMPTORY WRIT OF MANDATE;

CERTIFICATION FOR PUBLICATION

5a

The Court:*

It is ordered that the opinion and order granting

peremptory writ of mandate filed herein on May 26, 1989,

be modified in the following particular:

On page 2, line 7 of second paragraph, place a comma

after the words “Vehicle Safety Standard 208" and insert

the following:

revised by the Department of Transportation in 1972 to

include passive restraints,

*SPENCER, PJ. HANSON (Thaxton), J. ORTEGA, J.

On page 3, line 6, paragraph ending after the word

“preempted,” add the following three paragraphs:

One California case has permitted a California action to

allege a common law action despite the manufacturer's

compliance with federal standards. In Buccery v. General

Motors Corp. (1976) 60 Cal.App.3d 533, 540-541, the court

determined that federal regulations are supplementary to

the common law of products liability and a defendant's

compliance with federal safety standards does not pre-

clude imposition of common law liability for a defective

product.

This court is not bound by decisions of other California

Courts of Appeal. This court also is not bound by the

interpretation of federal law by federal courts lower than

the United States Supreme Court (People v. Bradley

(1969) 1 Cal.3d 80, 86; People v. Rooney (1985) 175

Cal.App.3d 634, 644), and decisions of federal courts on

federal issues are merely persuasive. (Graham v. Scissor-

Tail, Inc. (1981) 28 Cal.3d 807, 830; Rohr Aircraft Corp. v.

County of San Diego (1959) 51 Cal.2d 759, 764.) However,

6a

we are persuaded that the “no air bag” issue is preempted

by federal law.

To hold otherwise would be to allow a potential flood of

actions against manufacturers that have been following

the custom of the industry and acting in compliance with

federal regulations. The result would not work a hardship

to manufacturers, but also might so encourage litigation

as to hamper the administration of justice. (See Newman

v. Emerson Radio Corp. (May 25, 1989, S009325) ___

Cal.3d ___; Peterson v. Superior Court (1982) 31 Cal.3d

147, 152-153; Mark v. Pacific Gas and Electric Co. (1972)

7 Cal.3d 170, 177-178.)

This modification does not effect any change in the

judgment.

The opinion and order in the above entitled matter,

filed May 26, 1989, and was not certified for publication in

the Official Reports. For good cause, it now appears that

the opinion and order should be published in the Official

Reports, and it is so ordered.

Ta

ORDER DENYING REVIEW

AFTER JUDGMENT BY THE COURT OF APPEAL

SECOND APPELLATE DISTRICT, DIVISION ONE,

No. B040894

8010947

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

IN BANK

NISSAN Motor CORPORATION U.S.A. Et Al.,

Petitioners

Vv.

Los ANGELES CoUNTY SUPERIOR CouRT,

Respondent

PAULA MEIER

Real Party In Interest

Real Parties In Interest’s petition for review DENIED.

Mosk, J., is of the opinion the petition should be

granted.

Chief Justice

8a

S4. General requirements.

$4.1 Passenger cars.

84.1.2 Passenger cars manufactured from September 1,

1973, to August 31, 1983. Each passenger car manufac-

tured from September 1, 1973, to August 31, 1982, inclu-

sive, shall meet the requirements of $4.1.2.1, $4.1.2.2,

$4.1.2.3. Each passenger car manufactured from Septem-

ber 1, 1982, to August 31, 1983, inclusive, shall meet the

requirements of $84.1.2.1, $4.1.2.2, or 84.1.2.3, except that

a passenger car with a wheelbase of more than 100 inches

shall meet the requirements specified in 84.1.3. A protec-

tion system that meets requirements of $4.1.2.1 or

$4.1.2.2 may be installed at one or more designated

seating positions of a vehicle that otherwise meets the

requirements of $4.1.2.3.

$4.1.2.1 First option — Complete passive protection sys-

tem. The vehicle shall:

(a) At each front designated seating position meet the

front crash protection requirements of 85.1 by means that

require no action by vehicle occupants;

(b) At each rear designated seating position have a

Type 1 or Type 2 seat belt assembly that conforms to

Standard No. 209 and to 87.2; and

(ec) Either: (1) Meet the lateral crash protection re-

quirements of S5.2 and the rollover crash protection

requirements of S5.3 by means that require no action by

vehicle occupants; or

(2) At each front designated seating position have a

Type 1 or Type 2 seat belt assembly that conforms to

Standard No. 209 and to 87.1 through 87.3, and that

meets the requirements of 85.1 with front test dummies

as required by 85.1, restrained by the Type 1 or Type 2

__

Ya

seat belt assembly (or the pelvic portion of any Type 2

seat belt assembly which has a detachable upper torso

belt) in addition to the means that require no action by

the vehicle occupant.

$4.1.2.2 Second Option — head-on passive protection

system. The vehicle shall —

(a) At each designated seating position have a Type 1

seat belt assembly or a Type 2 seat belt assembly with a

detachable upper torso portion that conforms to S7.1 and

$7.2 of this standard.

(b) At each front designated seating position, meet the

frontal crash protection requirements of 85.1, in a per-

pendicular impact, by means that require no action by

vehicle occupants;

(c) At each front designated seating position, meet the

frontal crash protection requirements of 85.1, in a per-

pendicular impact, with a test device restrained by a Type

1 seat belt assembly; and

(d) At each front outboard designated seating posi-

tion, have a seat belt warning system that conforms to

$7.3.

$4.1.2.3 Third option — lap and shoulder belt protection

system with belt warning.

$4.1.2.3.1 Except for convertibles and open-body vehi-

cles, the vehicle shall —

(a) At each front outboard designated seating position

have a seat belt assembly that conforms to 87.1 and 87.2

of this standard, and a seat belt warning system that

conforms to 87.3. The belt assembly shall be either a Type

2 seat belt assembly with a nondetachable shoulder belt

that conforms to Standard No. 209 (§ 571.209), or a Type

1 seat belt assembly such that with a test device re-

ee

10a

strained by the assembly the vehicle meets the frontal

crash protection requirements of 85.1 in a perpendicular

impact.

(b) At any center front designated seating position,

have a Type 1 or Type 2 seat belt assembly that conforms

to Standard No. 209 (§ 571.209) and to 87.1 and S7.2 of

this standard, and a seat belt warning system that con-

forms to 87.3; and

(c) At each other designated seating position, have a

Type 1 or Type 2 seat belt assembly that conforms to

Standard No. 209 (§ 571.209) and 87.1 and 87.2 of this

standard.

$4.1.2.3.2 Convertibles and open-body type vehicles

shall at each designated seating position have a Type 1 or

Type 2 seat belt assembly that conforms to Standard No.

209 (§ 571.209) and to 87.1 and 87.2 of this standard,

and at each front designated seating position have a seat

belt warning system that conforms to 87.3.

Amended

PROOF OF SERVICE BY MAIL

STATE OF CALIFORNIA

Ss .

CouNTY OF Los ANGELES

I am a citizen of the United States and a resident of or

employed in the City of Los Angeles, County of Los

Angeles; I am over the age of 18 years and not a party to

the within action; my business address is 1706 Maple

Avenue, Los Angeles, California 90015.

On December 13, 1989, I served the within Petition for

a Writ of Certiorari in re: “Paula Meier, et al. v. Nissan

Motor Corporation in U.S.A., et al.” in the United States

Supreme Court, October Term 1989 No. ..., on all parties

interested in said action, by placing three true copies

thereof enclosed in a sealed envelope, with postage

thereon fully prepaid, in the United States Post Office

mail box at Los Angeles, California, addressed as follows:

Haight, Brown & Bonesteel

Elliott D. Olson

Roy G. Weatherup

Thomas N. Charchut

201 Santa Monica Boulevard

Post Office Box 680

Santa Monica, CA 90406

All parties required to be served have been served.

Sa OPS Ren Pe es a” Oe

I declare under penalty of perjury that the foregoing is

true and correct.

Executed on December 13, 1989, at Los Angeles,

California. ;

CE CE MEDINA