Petition for Writ of Certiorari — Pokorny v. Ford Motor Co.

90-174

No. 90-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

ANNE DUFFY POKORNY, Administratrix

of the Estate of John Duffy, Deceased,

Petitioner

FORD MOTOR COMPANY,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Richard A. Sprague

Hugh J. Bracken*

David R. Dearden

Gerald E. Arth

Sprague, Higgins, Creamer & Sprague

The Wellington, Suite 400

135 South Nineteenth Street

Philadelphia, PA 19103

215 561-7681

Attorneys for Petitioner

* Counsel! of Record

QUESTION PRESENTED!

Whether the court of appeals erred in deciding that

when Congress explicitly declared its intent that compliance

with any federal motor vehicle safety standard would not

excmpt any person from any liability under common law,

its implicit intent was to preempt common law tort claims

for lack of air bags or automatic seat belts?

Petitioner Anne Duffy Pokorny, Administratrix of the

Estate of John Duffy, appeared as plaintiff-appellant

below. Respondent Ford Motor Company appeared as

defendant-appellee below. In addition, the Motor

Vehicle Manufacturers Association of the United States,

Inc. and the Product Liability Advisory Council, Inc.

appeared as amici curiae in the court of appeals in

support of the position of Ford Motor Company.

TABLE OF CONTENTS

Page

Question Presented ... 2. 00 pe as te ee i

Table of Authorities... . «0 Fo Se eee iV

Opinions Below .. . .. . «1% 3 05 @ Re aes l

Jurisdiction 2... . «0 )s 5 << See ee 2

Statutes and Regulations ........-- 26s eres Z

Statement of the Case |. |. . Sons eee 3

REASONS FOR ALLOWANCE OF THE WRIT OF

CERTIORARI

1. In the face of an increasing number

of tort claims alleging failure on the

part of motor vehicle manufacturers

to include air bags or automatic scat

belts in their vehicles, courts

throughout the country have diverged

widely on whether such claims are

preempted. . .. 1. esse ee ss ae ees 7

nea

TABLE OF CONTENTS (continued)

Page

tv

The court of appeals erred in

deciding that when Congress

explicitly declared its intent

that compliance with any

federal motor vehicle safety

standard would not exempt

any person from any liability

under common law, _ its

implicit intent was to preempt

common law tort claims for

lack of air bags or automatic

MN ce 4k ce yn ao aos oa a cos 10

a oh el a rr 21

Appendix

Court of Appeals Opinion ............. Al

District Court Memorandum... ........ A26

TD A35

TABLE OF AUTHORITIES

Cases:

Abbot by Abbot v. American Cyanamid Co.,

844 F.2d 1108 (4th Cir. 1988) 20.02

American Tobacco Co. v. Patterson,

GUS. GTO ...........05 025.

Buccery v. General Motors Corp.,

132 Cal.Rptr. 605, 60 Cal.App.3d 533

SN aioe ee ary as eee a ee ROR ae

Burch v. Amsterdam Corp.,

366 A.2d 1079 (D.C.App. 1976) .........

California Fed. Sav. and

Loan Ass'n v. Guerra,

S79 US: 277 ORT)... .. ..-......-.

Capital Cities Cable, Inc. v. Crisp,

ee CE acts a a eo ete se Sele ers

Chrysler Corp. v. Rhodes,

456 F.26 309 Gia Cw, 1969) . oe eee eee

Chrysler Corp. v. Tofany,

419 F.2d 499 (2d Cir. 1969) .....0.00...

Cox v. Baltimore County,

646 F.Supp. 761 (D.Md. 1986) ..........

-iv-

Page

TABLE OF AUTHORITIES (continued)

Cases:

Dawson v. Chrysler Corp.,

630 F.2d 950 (3d Cir. 1980) .. 2.2.00...

Dreisonstok v. Volkswagenwerk, A.G.,

489 F.2d 1066 (4th Cir. 1974) .........

Ferebee v. Chevron Chemical Co.,

736 F.2d 1529 (D.C. Cir. 1984) ........

Gingold v. Audi-NSU-Auto Union, A.G.,

389 Pa.Super. 328, 567 A.2d 312

(Ts eee

Goodyear Atomic Corp. v. Miller,

486 U.S. 174 (1988) ................

H.P. Hood and Sons, Inc. v.

Ford Motor Co..,

370 Mass. 69, 345 N.E.2d 683 (1976) ....

Hubbard -Hall Chemical Co. v. Silverman.

340 F.2d 402 (Ist Cir. 1965) ...0.0.00..

Knippen v. Ford Motor Co.,

546 F.2d 993 (D.C. Cir. 1976) .........

Page

re

TABLE OF AUTHORITIES (continued)

Cases: Page

Kitts v. General Motors Corp.,

SiS F.26 767 (1th Cle. 1989)... 0 we tw 8,12

Larsen v. General Motors Corp.,

391 F.2d 495 (8th Cir. 1968) ........ 8,10,11,16,17

Lobianco v. Property Protection, Inc.,

292 Pa.Super. 346, 437 A.2d 417 (1981)... 2... 12

MacPhearson v. Buick Motor Co.,

217 N.Y.2d 382, 111 N-E. 1050

CEUEGR 6c cc 040 tbe eneeebannnnutenoe 10

Maryland v. Louisiana,

S58 US. Tad (IGRI): occ ei vws cc eaeneteue 13,18

Massachusetts Medical Soc'y v. Dukakis,

815 F.2d 790 (ist Cir. 1987)... 2... 00200022.0.. 18

McIntire v. Estate of Forte,

463 S.W.2d 491 (Tex.Civ.App. 1971) 2000000... 19

Motor Vehicle Mfrs Ass'n of the

United States, Inc. v. State

Farm Mut. Auto. Ins. Co.,

GOS Us 20 CUES) acs cc i ctaccneeee ee 14

-vi-

TABLE OF AUTHORITIES (continued)

Cases: Page

Murphy v. Nissan Motors in U.S.A.,

650 F.Supp. 922 (E.D.N.Y. 1987) ............. 8

Northwest Central Pipeline Corp. v.

State Corp. Comm'n of Kansas,

Po ae eee een Le = 15

Olsen v. United States, 521 F.Supp.

PO GREE GERD 6 dice wi enca cv esesi cates 12

Raymond v. Riegel Textile Corp.,

ee © we Cee Oe: BONED on ke eens avsies 19

Rice v. Santa Fe Elevator Corp.,

re 13,18

Roberts v. May,

41 Colo.App. 82, 583 P.2d 305 (1978) ......... 17

Shipp v. General Motors Corp.,

tae F.20 418 (Sth Cir. 1985) .. 5... wee 7,13,17

Silkwood v. Kerr-McGee Corp.,

ae a SERENE Sha oc ees eee 14,18

-Vii-

TABLE OF AUTHORITIES (continued)

Cases:

Smialek v. Chrysler Motors Corp.,

290 Pa.Super. 496,

Pe Te SP OEOEEE Co bins Dba eee ed awe

Taylor v. General Motors Corp.,

S7>. F.26 S16 (iith Cis. 1989) .............

Turner v. General Motors Corp.,

514 S.W.2d 497 (Tex.Civ.App. 1974)... 2...

Vanover v. Ford Motor Co.,

632 F.Supp. 1095 (E.D.Mo. 1986) ..........

Wickstrom v. Maplewood Toyota, Inc.,

416 N.W.2d 838 (Minn.Ct. App. 1987) .......

Wood v. General Motors Corp.,

865 F.2d 395 (1st Cir. 1988)

-Vil-

Page

TABLE OF AUTHORITIES (continued)

Statutes: Page

ae War Gt ROR NEEE oe ec aei uses pened aki 2

Ee GR EEE 2 ccs eeeeecesens ones eas’ 15

ge 7 ad | Ba ee er 15

cS Was © UPR ov eic ccs edsnns BSS

Se eens a IE 0 gs IC ee cc eee terals bole bo 19

ee es Ee EEE On 6 00 eo 6 Ns SS es tee 2

Regulation:

Pe ae PR ove oes eee eee ere 3

obits

Opinions Below l

No. 90-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

ANNE DUFFY POKORNY, Admunistratrix

of the Estate of John Duffy, Deceased,

Petitioner

FORD MOTOR COMPANY,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

OPINIONS BELOW

The opinion of the district court is reported at 714

F.Supp. 739 (E.D.Pa. 1989) and appears in the appendix to

this petition at App. A26-A34. The opinion of the court of

appeals is reported at 902 F.2d 1116 (3rd Cir. 1990) and

appears at App. Al-A25.

2 Jurisdiction; Statutes and Regulations

JURISDICTION

The decision of the court of appeals was entered on

April 30, 1990. App. Al. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS

The National Traffic and Motor Vehicle Safety Act

of 1966, 15 U.S.C. §§ 1381-1431, Pub.L.No. 89-563, 80

Stat. 718 (hereinafter “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 cither 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. 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 applicable

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

Statement of the Case 3

standard.

eK

§ 1397(k). Compliance with any

Federal motor vehicle 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 C.FLR. § 571.208 (hereinafter

"Standard 208"), appear at App. A36-A40. The 1981 Ford

Econoline van in issue in this case is a "multipurpose

passenger vehicle with GVWR [gross vehicle weight rating]

of 10,000 pounds or less manufactured on or after January

‘are, ae ER. 9 571.208 $42.2.

STATEMENT OF THE CASE

Procedural History

On October 16, 1985, Anne Duffy Pokorny

(hereinafter “Pokorny"), Admunistratrix of the Estate of

John Duffy, deceased, filed a civil action against the Ford

Motor Company (hereinafter “Ford") in the Court of

Common Pleas of Philadelphia County, Pennsylvania at

June Term, 1985, No. 1933. On November 13, 1985, upon

the petition of Ford, the case was removed to the United

States District Court) for the Eastern District of

: This provision was formerly codified at 15 US.C. §

1397(c)

+ Statement of the Case

Pennsylvania at Civil Action No. 85-6544.

On August 25, 1987, Ford filed Defendant's Motion

for Summary Judgment in the district court. The Honorable

Thomas N. O'Neill, Jr., Judge of the United States District

Court for the Eastern District of Pennsylvania, granted

Ford's motion and entered judgment against Pokorny and in

favor of Ford on June 8, 1989. Pokorny v. Ford Motor

Co., 714 F.Supp. 739 (E.D.Pa. 1989); App. A35. Pokorny

appealed to the United States Court of Appeals for the

Third Circuit from the district court decision. The court of

appeals affirmed in part and reversed in part the decision of

the district court. Pokorny v. Ford Motor Co., 902 F.2d

1116 (3d Cir. 1990); App. A1l-A25.

Facts Relevant to the Issue Presented®

On December 10, 1983, John Duffy, a 22-year-old

Philadelphia police officer, was killed in the line of duty.

Officer Duffy was a passenger in a 1981 Ford Econoline

police van driven by Officer James R. Coughlin. While

responding to an "assist officer" emergency police radio

dispatch, the van collided with a police patrol car answering

the same call. After the first collision, the van rolled over

and Officer Duffy was partially ejected through the

passenger side window and was crushed by the van.

Officer Duffy dicd as a result of the injuries he sustained in

this "second collision."

The facts underlying this action are not in dispute on

appeal.

Statement of the Case 5

The City of Philadelphia purchased the 1981 Ford

Econoline van as a part of a fleet for use as a police patrol

and transport vehicle. The van as provided by Ford was

not crashworthy and, therefore, defective, because Ford

failed to manufacture it with necessary safety systems that

would have prevented Officer Duffy's partial ejection from

the vehicle and his resulting death. Such technologically

and financially feasible safety systems included passive seat

belts that automatically engage the vehicle's occupants on

entering, other types of passive passenger restraint systems,

and protective netting or other material at the window to

prevent ejection. Had the van been properly designed and

equipped, Officer Duffy would not have been ejected and

crushed when the vehicle rolled over.

Decision of the District Court

The district court concluded that Pokorny's

Pennsylvania common law cause of action, alleging that the

lack of suitable passive occupant protection rendered the

police van defective, is implicdly preempted by the Safety

Act and Standard 208, but did not rule on whether common

law tort claims are expressly preempted by the Safety Act

or Standard 208. See Pokorny, 714 F.Supp. at 742; App.

A31. The district court found implicd preemption in spite

of the explicit expression of Congressional intent in the

Safety Act that "[c]ompliance with any federal motor

vehicle safety standard issued under this subchapter does

not exempt any person from any liability under the common

law," 15 U.S.C. § 1397(k), and in spite of the fact that there

is no actual conflict between the Safety Act or Standard

208 and a common law judgment on the theory of liability

advanced by Pokorny.

6 Statement of the Case

Decision of the Court of Appeals

The decision of the district court was affirmed in

part and reversed in part by the United States Court of

Appeals for the Third Circuit. See Pokorny v. Ford Motor

Co., 902 F.2d 1116 (3d Cir. 1990); App. Al-A25. The

court of appeals concluded that, to the extent the district

court's decision was based on Pokorny's assertion that the

Ford van should have been cquipped with air bags or

automatic scat belts, the action is impliedly preempted by

Standard 208. The court of appeals held that, although such

actions are not expressly preempted by federal law,

common Jaw liability arising from the failure to install one

of these two particular types of passive restraints would

present. an actual conflict with federal regulations.

However, according to the court of appeals, not all design

defects arising from a failure to provide passive restraints

pose an actual conflict with the Safety Act or Standard 208,

and thus the court of appeals left open the question of

whether Ford's failure to equip its van with other passenger

protective devices, such as window netting, is a design

defect actionable under the applicable Pennsylvania law of

products liability.

Reasons for Allowance of Writ 7

REASONS FOR ALLOWANCE OF

THE WRIT OF CERTIORARI

a. IN THE FACE OF AN INCREASING NUMBER

OF TORT CLAIMS ALLEGING FAILURE ON

THE PART OF MOTOR VEHICLE MANU-

FACTURERS TO INCLUDE AIR BAGS OR

AUTOMATIC SEAT BELTS IN’ THEIR

VEHICLES, COURTS THROUGHOUT THE

COUNTRY HAVE DIVERGED WIDELY ON

WHETHER SUCHE CLAIMS ARE PRE-

EMPTED.

Perhaps the most compelling reason for this Court

to grant the writ of certiorar: requested herein is the need

to Impose uniformity in an area in which courts throughout

the country have splintered in) numerous directions.

Presented with an increasing array of state Common law tort

claims alleging liability on the part of motor vehicle

manufacturers for failure to equip their vehicles with air

bags, automatic seat belts or other passive passenger

restraints, both federal and state courts uniformly have been

called upon to address one crucial issue: whether such

Claims are preempted by the provisions of the Safety Act

and/or Standard 208. Their answers, however, have been

far from uniform.

A number of different courts when faced with the

issue have directly or indirectly held that state common law

claims for lack of passive passenger restraints are not

preempted and, indeed, have found that Section 1397(k) of

the Safety Act expressly preserves these claims. See Shipp

v. General Motors Corp., 750 F.2d 418 (Sth Cir. 1985);

Dreisonstok vo Volkswagenwerk, A.G., 489 F.2d 1066 (4th

Cir. 1974); Chrysler Corp. v. Tofany, 419 F.2d 499 (2d Cir.

8 Reasons for Allowance of Writ

1969); Larsen v. General Motors Corp., 391 F.2d 495 (8th

Cir. 1968). See also Murphy v. Nissan Motors in U.S.A.,

650 F.Supp. 922 (E.D.N.Y. 1987); Gingold v. Audi-NSU-

Auto Union, A.G., 389 Pa.Super. 328, 567 A.2d 312 (1989).

By contrast, other courts addressing the same issue

have concluded just the opposite, ruling that the Safety Act

and Standard 208 do preempt state common law claims.

See Pokorny v. Ford Motor Co., 902 F.2d 1116 (3d Cir.

1990); Taylor v. General Motors Corp., 875 F.2d 816 (11th

Cir. 1989), cert. denied, 110 S.Ct. 1781 (1990); Kitts v.

General Motors Corp., 875 F.2d 787 (10th Cir. 1989), cert.

denied, 110 S.Ct. 1781 (1990); Wood v. General Motors

Corp., 865 F.2d 395 (1st Cir. 1988), cert. denied, 110 S.Ct.

1781 (1990); Cox v. Baltimore County, 646 F.Supp. 761

(D.Md. 1986); Vanover v. Ford Motor Co., 632 F.Supp.

1095 (E.D.Mo. 1986). See also Wickstrom v. Maplewood

Toyota, Inc., 416 N.W.2d 838 (Minn.Ct. App. 1987), cert.

denied, 476 U.S. 1236 (1988).

Even in the cases finding preemption, however, their

is very little agreement. The courts in Cox, Vanover and

Wickstrom held that the claims for lack of passive

passenger restraints are expressly preempted by the Safety

Act, yet Pokorny, Taylor, Kitts and Wood all rejected this

analvsis, ruling instead that such claims are only impliedly

preempted.

Adding further to the confusion is the fact that

among the courts finding implicd preemption, there is utter

disagreement as to the reasons therefor. The Wood court

found implied preemption based on its beiief that Congress

did not foresee the development of design defect litigation

when it passed the Safety Act in 1966, a rationale rejected

in Pokorny and Kitts. In Kitts, the court based its implied

Reasons for Allowance of Writ 9

preemption analysis largely on the theory that national

uniformity of safety regulations is an important

Congressional purpose, while Taylor held that so long as a

vehicle manufacturer used onc of the occupant restraints

permitted by Standard 208, all claims for lack of passive

passenger protection are implicdly preempted as frustrating

the regulatory flexibility provided by Standard 208. The

Pokorny court refused to follow Wood, Kitts or Taylor,

holding that only claims premised on the absence of air

bags or automatic scat belts are implicdly preempted, since

Standard 208 allows vehicle manufacturers the right to use

manual seat belts as well.

Although confronting the same preemption issue, the

Various Circuit courts of appeals and others throughout the

country have been unable to develop a consensus, but

instead have issued numerous opinions reaching varying

conclusions. Furthermore, even in those instances where

the same result has obtained, the courts have not been able

to agree on a single coherent rationale but, in fact, have

devoted a great deal of attention to criticizing cach other's

line of reasoning. In short, what has been created is a

tangled web of judicial confusion over an important

national issue and, as a result, the success or failure of

identical claims for lack of passive restraints can depend

solely on the fortuity of the jurisdiction in which they arise.

Obviously, this is neither practical nor just. Because

courts across the country have been incapable of agrecing,

despite numerous opportunities, on the recurrent issue of

whether common law damages claims against vehicle

manufacturers are preempted by the Safety Act and/or

Standard 208, the time has come for this Court to clear the

confusion. To deny the petition for writ of certiorari in this

case would serve only to continue a situation that. is

10 Reasons for Allowance of Writ

patently unfair not only to those injured through lack of

appropriate passive restraints in motor vehicles, but to the

vehicle manufacturers themselves, whose potential liability

can now. shift) from jurisdiction to jurisdiction.

Accordingly, petitioner urges this Court to grant her petition

for writ of certiorari in order to resolve this important

national issuc

2. THE COURT OF APPEALS ERRED IN

DECIDING THAT WHEN CONGRESS

EXPLICITLY DECLARED ITS INTENT THAT

COMPLIANCE WITH ANY FEDERAL

MOTOR VEHICLE SAFETY STANDARD

WOULD NOT EXEMPT ANY PERSON FROM

ANY LIABILITY UNDER COMMON LAW, ITS

IMPLICIT INTENT WAS TO PREEMPT

COMMON LAW TORT CLAIMS FOR LACK

OF AIR BAGS OR AUTOMATIC SEAT

BELTS.

The theory of liability advanced by Pokorny in this

case is not novel or unique. At least since the seminal

decision in MacPhearson v. Buick Motor Co., 217 N.Y .2d

382, 111 N.E. 1050 (1916), the common law has imposed

liability on automobile manufacturers to compensate victims

of defective vehicles. The evolution of the common law

has extended the manufacturers’ responsibility for the

prevention and minimization of injury to automotive

passengers in the inevitable event of collisions. The

decision in Larsen vo General Motors Corp., 391 F.2d 495

(8th Cir. 1968) sect forth the standard for vehicle

“crashworthiness” in a “second collision,” which is the

collision of a vehicle occupant that occurs after and as a

result of the collision of the vehicle itself into another

Reasons for Allowance of Writ 11

vehicle or some other object. According to the Larsen

court:

[w]hile automobiles are not made for the

purpose of colliding with cach other, a

frequent and inevitable contingency of

normal automobile use will result in

collisions and injury-producing impacts. No

rational basis exists for limiting recovery to

situations where the defect in design or

manufacture was the causative factor of the

accident, as the accident and the resulting

injury, usually caused by the so-called

“second collision” of the passenger with the

interior part of the automobile, all are

foresceable. Where the injuries or enhanced

injuries are duc to the manufacturer's failure

lo use reasonable care to avoid subjecting

the user of its products to an unreasonable

risk of injury, general negligence principles

should be applicable. The sole function of an

automobile is not just to provide a means of

transportation, it is to provide a means of

Safe transportation or as safe as is reasonably

possible under the present state of the art.

Id. at S02 (footnote omitted)

Under Pennsylvania common law, Ford was duty-

bound to design and build the police van that crushed

Officer Duffy with “every clement necessary to make it safe

for [its intended] use, and without any condition that makes

it unsafe for [its intended] use." Smialek v. Chrysler Motors

Corp., 2900 PaSuper. 496, , 434 A2d 1253, 1256

(1981). This duty has been repeatedly recognized by

i2 Reasons for Allowance of Writ

Pennsylvania courts and by federal courts applying

Pennsylvania law. See, eg. Lobianco v. Property

Protection, Inc., 292 Pa Super. 346, 437 A.2d 417 (1981),

Olsen v. United States, 521 F.Supp. 59 (E.D.Pa. 1981),

aff'd, 688 F.2d 820 (3d Cir. 1982), cert. denied, 459 US.

1107 (1983), and cases cited therein.

Ford's “preemption” argument is founded on article

VI, clause 2 of the United States Constitution, which

provides:

This Constitution, and the Laws of the

United States which shall be made in

Pursuance thereof; and all Treaties made, or

which shall be made, under the Authority of

the United States, shall be the supreme Law

of the Land; and the Judges in every State

shall be bound thereby, any Thing in the

Constitution or Laws of any State to the

Contrary notwithstanding

There are three wavs in which a federal statute may

preempt state law under the Supremacy Clause. Capital

Cities Cable, Inc. v. Crisp, 467 U.S. 691, 698-99 (1984).

They are:

First. Congress may cxpressiv state an intent to

. '

preempt state law.”

The court of appr is held that the Safetv Act docs not

expressly preempt any of Pokorny’s claims. Accord

lavior v. General Motors Corp, 875 F.2d $16 (1th Cis

1989), cert denied, 110 SCt 1781 (1990), Aatts +s

General Motors Corp, 875 F2d 787 (Oth Cir, 1989),

(continucd. )

Reasons for Allowance of Writ 13

Second, Congress may indicate an intent to occupy

an entire ficld of regulation;> and

Third, state laws are preempted by implication to

the extent that they create an actual conflict with the

policies of a specific federal law (implied

preemption).”

According to this Court, “|cJonsideration under the

Supremacy Clause starts with the basic assumption that

Congress did not intend to displace state law." Maryland

v. Louisiana, 451 US. 725, 746 (1981)(citing Rice v. Santa

Fe Elevator Corp., 531 U.S. 218 (1947)). In addition to the

continued)

cert denied, 110 S Ct 1781 (1990), Shipp v. General

Motors Corp., 750 F.2d 418 (5th Cir. 1985), Dawson v.

Chrysler Corp, 630 F.2d 950 (3d. Cir. 1980), cert.

denied, 450 US. 959 (1981), Larsen v. General Motors

Corp., 391 F.2d 495 (8th Cir, 1968)

It is apparent trom section 1392(d) of the Safety Act, and

Ford has conceded in the district court, that Congress has

not preempted the entire ficld of automotive | safety.

“[States] may regulate on ‘aspects of performance’ not

specifically established by the federal government."

Chrysler Corp. v Rhodes, 416 F.2d 319 (Ist Cir. 1969).

It is on the basis of this third theory that the court of

appeals determined that Pokorny’s claim is preempted by

the Safety Act and Standard 208. 902 F.2d at 1123-25,

App A1S-A22. Itis, therefore, only implied preemption

that will be addressed at length in this petition.

14 Reasons for Allowance of Writ

required assumption against preemption there 1s an express

statement of legislative intent in the Safety Act to preserve

“common law claims. "Compliance with any federal motor

vehicle safety standard issued under this subchapter docs

not exempt any person from any lability under common

law." 15 U.S.C. § 1397(k)(emphasis added).

Pokorny's Claims Present No Actual

Conflict with Standard 208

The court of appeals held that Standard 208

impliedly preempts Pokorny’s common law claims because

such state “regulation” by jury verdict would actually

conflict with the purpose of Standard 208, which is

designed to give manufacturers a choice among passenger

restraint options. 902 F.2d at 1123-25; App. A15-A22.

However, the stated purpose of the Safety Act is to

decrease the carnage resulting from automobile accidents

where inadequate safety standards were followed by the

industry and the user. See Motor Vehicle Mfrs Ass'n of the

United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 49 (1983). Although Congress may have intended

to allow some flexibility in the minimum safety standards,

Congress certainly did not intend to guarantee flexibility “at

all costs."’ Nor did Congress intend to promote uniformity

at the expense of adequate remedies for those injured by

defectively designed products of automobile manufacturers.

See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 257

(1984), holding that, while the Nuclear Regulatory Act

was intended to encourage the development of nuclear

power plants, it was not intended to encourage such

development "at all costs." Thus, state tort claims that

might inhibit that purpose are not preempted.

Reasons for Allowance of Writ 15

The reason for the enactment of the Safety Act is set

forth in the statute as follows: "Congress hereby declares

that the purpose of this chapter is to reduce traffic accidents

and deaths and injuries to persons resulting from traffic

accidents." 15 U.S.C. § 1381. Pursuant to this purpose

Congress provided that “[t]he Secretary shall establish by

order appropriate Federal Motor Vehicle Safety Standards."

1S U.S.C. § 1392(a). Congress defined a "Motor Vehicle

Safety Standard" as "a minimum standard for motor vehicle

performance, or motor vehicle cquipment performance,

which is practicable, which meets the need for motor

vehicle safety and which provides objective criteria." 15

U.S.C. § 1391(2)(emphasis added).

The court of appeals concluded that Standard 208

was specifically intended to provide manufacturers with a

choice among "restraint system alternatives," 902 F.2d at

1124-25; App. Al18-A22, and then reasoned that an award

of damages for failing to choose one of those passive

restraint alternatives removes the element of choice

authorized in Standard 208. 902 F.2d at 1124-25; App. at

A21-A22. This Court has cautioned, however, that where

a federal regulatory system preserves a role for state law, as

is the case under the Safety Act by virtue of Section

1397(k), 15 US.C. § 1397(k), "conflict. pre-emption

analysis must be applicd sensitively... so as to prevent the

diminution of the role Congress reserved to the states while

at the same ume preserving the federal role." Northwest

Central Pipeline Corp.v. State Corp. Comm'n of Kansas,

489 US. 493, , 109 S.Ct. 1262, 1276 (1989). The

sensitivity required by Section 1397(k) and the Northwest

Central Pipeline Corp. decision compels the conclusion that

Standard 208 does not confer an affirmative "right" on

manufacturers to comply only with minimum standards and

thus avoid liability. for failure to meet common. law

16 Reasons for Allowance of Writ

standards of care

The Safety Standard Compliance

Defense Has Been Rejected

As carly as 1968, the United States Court of

Appeals for the Eighth Circuit held that 15 U.S.C. §

1397(k) “expressly negatives any intention of Congress to

acquire exclusive jurisdiction in this ficld and leaves the

common law liability intact.” Larsen v. General Motors

Corp., 391 F.2d 495, 506 (Sth Cir. 1968). The same

analysis has been applicd also by the Third Circuit Court of

Appeals:

Compliance with the safety standards

promulgated pursuant to [the Safety Act], |

however, docs not relieve [a manufacturer]

of liability... For, in authorizing — the

Secretary of Transportation to enact these

standards, Congress explicitly provided,

"Compliance with any Federal motor vehicle

safety standard issued under this subchapter

does not exempt any person from = any

liability under common taw." 15 U.S.C. §

1397(c) (1976).

Dawson vy. Chrysler Motors Corp., 630 F.2d 950, 958 (3d

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

federal standards "should" be conclusive in "crash-

worthiness" cases is not a decision to be made by courts.

Such a decision, if made, would have to be made by the

appropriate Icgislative body. See td., 630 F.2d at 963.

The decision of the court of appeals below is

sid

Reasons for Allowance of Writ 17

contrary to holdings in other circuit court opinions such as

Shipp v. General Motors Corp., 750 F.2d 418, 421 (Sth Cir.

1985)("OFf course, compliance with such minimum safety

Standards docs not cxempt or immunize a manufacturer

from common law strict liability... certainly Congress did

not intend such a result..."); Dawson, 630 F.2d at 958

("Compliance with the safety standards promulgated

pursuant to the National Traffic and Motor Vehicle Safety

Act, however, does not relieve Chrysler of liability in this

action"); and Larsen v. General Motors Corp., 391 F.2d

495, 506 (8th Cir. 1968)("It is apparent that the National

Traffic Safety Act [sic] is intended to be supplementary and

in addition to the common law of negligence and product

liability. The Act is... not an exemption from common law

liability."). Other decisions holding that federal safety

Standards do not preempt state common law include

Knippen v. Ford Motor Co., 346 F.2d 993 (D.C. Cir. 1976);

Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066 (4th

Cir. 1974); Chrysler Corp. v. Tofany, 419 F.2d 499 (2d Cir.

1969), Gingold v. Audi-NSU-Auto Union, 4.G., 389 Pa.

Super. 328, 567 A.2d 312 (1989): Roberts v-. May, 41 Colo.

App. 82, 583 P.2d 305 (1978); HP. Hood and Sons, Inc. v.

Ford Motor Co., 370 Mass. 69, 345 N.E.2d 683 (1976);

Buccery v. General Motors Corp., 132 Cal.Rptr. 605, 60

Cal.App.3d 533 (1976); and Turner v. General Motors

Corp., 514 S.W.2d 497 (Tex.Civ.App. 1974).

The Plain Language of the Safety

Act Precludes Preemption

In determining whether common law or any other

aspect of state law is preempted by federal law, a court's

"sole task is to ascertain the intent of Congress." California

Fed. Sav. and Loan Ass'n v. Guerra, 479 U.S. 272. 280

18 Reasons for Allowance of Writ

(1987). In so doing, it must be assumed "that the

legislative purpose is expressed by the ordinary meaning of

the word[s] used." American Tobacco Ca. v. Patterson,

456 USS. 63, 68 (1982). Morcover, if there is any doubt as

to whether Congress intended to preempt state law, that

doubt is to be resolved against a finding of preemption.

Maryland v. Louisiana, 451 U.S. 725, 746 (1981); Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947);

Massachusetts Medical Soc'y v. Dukakis, 815 F.2d 790 (st

Cir.), cert. denied, 484 U.S. 896 (1987). "The presumption

against preemption is even stronger against preemption of

state remedies, like tort recoveries, when no federal

remedies exist." Abbot by Abbot v. American Cyanamid

Co., 844 F.2d 1108, 1112 (4th Cir.), cert. denied, 109 S.Ct.

260 (1988). Accord Silkwood v. Kerr-~McGee Corp., 464

U.S. 238 (1984).

In the instant case, Congress explicitly and

unequivocally expressed its intent to preserve all common

law claims by enacting section 1397(k) of the Safety Act,

which states "Compliance with any federal motor vehicle

safety standard issued under this subchapter docs not

exempt any person from amy liability under common law."

(Emphasis added.) Given their plain meaning, these words

preserve petitioner's claims. The court of appeals, however,

concluded that Pokorny’s claims are preempted, finding that

Standard 208 not only gives nianufacturers options for

providing passenger restraints, including air bags and

automatic scat belts, but that it also provides absolute

immunity from common law claims based on a failure to

install air bags or automatic seat belts. 902 F.2d at 1123-

25; App. Al5-A22.

Congress had several good reasons for preserving all

common law claims. It sought to further the sole stated

Reasons for Allowance of Writ 19

purpose of the Safety Act -- "to reduce traffic accidents

and deaths and injuries to persons resulting from traffic

accidents," 15 U.S.C. § 1381 —- by ensuring that all design

defect victims would be compensated and by preserving the

incentive for design improvements that potential tort

liability creates. Indeed, Congress traditionally preempts

direct state regulation and preserves tort claims, particularly

in the area of consumer protection, and courts consistently

respect that decision.” As this Court held in Goodyear

Atomic Corp. v. Miller, 486 U.S. 174, __, 108 S.Ct. 1704,

1712 (1988):

The effects of direct regulation on the

operation of federal projects are significantly

more intrusive than the incidental regulatory

etfects of such an additional award

: See Abbot by Abbot v. American Cyanimid Co., 844 F.2d

1108 (4th Cir. )(FDCA does not preempt product liability

claims), cert. denied, 109 S.Ct. 260 (1988); Ferebee v.

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

Cir.)(Federal Insecticide, Fungicide and Rodenticide Act

does not preempt product lability claims), cert. denied,

469 U.S. 1062 (1984), Raymond v. Riegel Textile Corp.,

484 F.2d 1025 (1st Cir. 1973) (Flammable Fabrics Act

does not preempt product lability claims); //ubbard-

Hall Chemical Co. v. Silverman, 340 F.2d 402 (1st Cir.

1965 (same as Ferebee), Burch v. Amsterdam Corp., 366

A2d 1079) (DC.App. 1976) (Federal Hazardous

Substance Act does not preempt product liability claims);

MeIntre ov. Estate of Forte, 463 S.W.2d 491

(Tex.Civ. App. 1971)(Federal Aviation Act does not

preempt common Jaw claims). See also 15 U.S.C. §

2074 (1976) (Consumer Product Safety Act does not

preempt common law lability).

20 Reasons for Allowance of Writ

provision. .... We believe Congress may

reasonably determine that —_ incidental

regulatory pressure is acceptable, whereas

direct) regulatory authority is not. Cf

Silkwood v. Kerr-McGee Corp., 464 US. at

256 (Congress was willing to accept

regulatory consequences of application of

state tort law to radiation hazards even

though direct state regulation of safety

aspects of nuclear energy was preempted).

Section 1397(k) of the Safety Act clearly and plainly

preserves Pokorny’'s claims, and climinates any doubt as to

Congressional intent. The decision of the court of appeals

finding partial implicd preemption flies in the face of this

Statutory provision, and is clearly erroneous.

Conclusion 21

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted by

Richard A. Sprague

Hugh J. Bracken*

David R. Dearden

Gerald FE. Arth

Sprague, Higgins, Creamer & Sprague

The Wellington, Suite 400

135 South Nineteenth Street

Philadelphia, PA 19103

215 561-7681

Attorneys tor Petitioner

* Counsel of Record

July 27, 1990

APPENDIX

Court of Appeals Opinion Al

Pokorny v. Ford Motor Co., 92 F.2d 1116 (3d Cir. 1990)

. UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. S9Y-1527.

ANNE DUFFY POKORNY, Administratrix

of the Estate of John Duffy, Deceased,

Appellant,

¥.

FORD MOTOR COMPANY, Appellee.

On appeal from the United States District

Court for the Eastern District of Pennsylvania

(D.C. Civil Action No. 85-6544)

Argued: January 24, 1990

Opimon Filed: April 30, 1990

Before: HUTCHINSON, SCIRICA and NYGAARD.

Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judee

Anne Duffy Pokorny (Pokorny), administratrix of

the estate of John Duffy (Duffy), appeals from a district

court order granting summary judgement in favor of Ford

Motor Company (Ford). Duffy died in a traffic accident

while a passenger in a Ford van. Pokorny claims that the

A2 Court of Appeals Opinion

van was defectively designed She contends that Ford's

failure to provide adequate safety protection for passengers

in its van was a design defect that subjected it to liability

cither in negligence or as a maker of a defective product.

In particular, Pokorny alleges that the van should have been

equipped with air bags, automatic seat belts or protective

netting on the windows to prevent fatal injuries like those

that Duffy suffered The district court, adopting the

reasoning of Aolheck « General Motors Corp., 702 F.Supp.

§32 (E.D.Pa.195S), held that the National Traffic and Motor

Vehicle Safety Act (Safety Act) IS USCA. §§

1381-1431 (West 1982 & Supp.1990), and Federal Motor

Vehicle Safety Standard 208 (Standard 208), 49 C.F.R. §

§71.208 (1980),' impliedly pre-empted Pokorny's common

law action and granted Fords motion for summary

judgment. Pokorny vo Ford Motor Co., 714 F.Supp. 739,

742 (E.D.Pa.19S9)

To the extent that the district court’s judgment wes

based on Pokorny’s assertion that the Ford van should have

been equipped with air bags or automatic seat belts, we

agree that the action was pre-empted by the Safety Act and

Standard 208. Common law liability arising from the

failure to install these two types of passive restraint systems

would present an actual conflict with certain federal statutes

and regulations. However, Pokorny's action is not

pre-empted to the extent that it is based on other types of

passive restraints, like the protective window netting she

mentions, that do not present an actual conflict with federal

This is the version of Standard 208 that was in effect

when the 1981 Ford van was manufactured. The current

version of Standard 208 is substantially similar. See 49

C.F.R. § 571.208 (1989)

Court of Appeals Opinion A3

laws or regulations.” Because we verce with some, but not

all, of the district court's pre-emption analysis, we will

affirm the court's judgment with respect to pre-emption of

common law liability for any design defect arising out of

Ford's failure to equip its van with air bags or automatic

safety belts. However, because not all design defects

arising from a failure to provide passive restraints pose an

actual conflict with the Safety Act or Standard 208, we will

reverse the district court's judement in part and remand on

the question of whether Ford's failure to cquip its van with

passenger protective devices like window netting is a design

defect actionable under the applicable Pennsylvania law of

products liability.

The pre-emption question in this type of case often is

discussed in terms of passive, or automatic, restraints.

even though Standard 208 itself refers to automatic or

Passive protection systems. See 49 CFR. § 571.208,

S4.1.2. Cf State Farm Mut. Auto. Ins. Co. v. Dole, 802

F.2d 474, 476 (D.C.Cir 1986) (using the terms "passive

restraints” and “passive protection devices” almost

interchangeably), cert. denied, 480 U.S. 951 (1987). As

We use the term, “passive restraints” includes any device

intended to protect motor vehicle occupants from injury

during a collision that is effective without affirmative

action by the occupant Under this usage, passive

restraints are not limited to air bags and automatic seat

belts. See, eg. Laylor + General Motors Corp., 875

F.2d 816, 821 (11th Cir 1989) (cushioned-back seats

constitute passive restraints, similar in effect to air bays),

cert, denied, US. __, 10 S.Ct. 1781 (1990). We do

not think these differences in terminology affect the

result in this case

A4 Court of Appeals Opinion

The facts relevant to our revicw of the order

granting summary judgment to Ford are not in dispute.

Duffy was a twenty-two year old Philade!phia police

officer. He was killed in December 1983 when the 1981

model Ford Econoline police van in which he was riding

collided with another police patrol car while responding to

an emergency call. Duffy, a passenger in the van, was

partially ejected through the passenger side window and

crushed by the van when it turned over after the collision.

At the time, he was not wearing the seat belt Ford had

installed in the van in comphance with Standard 208.

Pokorny originally brought her action against Ford

in a Pennsylvania state court. The complaint asserted

numerous claims of negligence, strict hability and breach of

implied warranties, all based on Ford's failure to install an

appropriate passive restraint system for passengers in the

1981 van. Since there was diversity between the partics,

the case was removed to the United States District Court

for the Eastern District of Pennsylvania upon Ford's motion.

In the district court, Ford moved for summary

judgment on all counts. It asserted that Pokorny's action

was both expressly and impliedly pre-empted by the Safety

Act and Standard 208. To support its claim of express

pre-emption, Ford relicd heavily on the pre-emption

provision of the Safety Act, 1S U.S.C.A. § 1392(d) (West

Supp.1990). That subsection provides (in relevant part):

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 cither to

Court of Appeals Opinion AS

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 vchicle or item of equipment which

is not identical to the Federal standard.

Ford pointed out that the van in question contained

combined lap and shoulder safety belts with a warning light

and buzzer, one of the options enumerated in federal

Standard 208.° 9 Alternately, Ford argued that allowing

Pokorny's action to proceed and exposing it to possible

liability for its failure to install a passive restraint system

created an actual conflict with the federal regulatory

requirements that clearly gave automobile manufacturers the

Choice to install either manual safety belts or passive

restraints. Therefore, according to Ford, Pokorny's common

law action was also implicdly pre-empted by federal

: For 1981 model year passenger cars, Standard 208

requires automobile manufacturers to provide one of

three types of occupant restraint systems. Standard 208

requires cither: (1) an automatic system to protect

passengers from both frontal and lateral crashes; (2) an

automatic system designed to protect against frontal

crashes, in combination with seat delts and a warning

system, or (3) manual lap and shoulder belts with a seat

belt warning system. See 49 C.F.R. § 571.208, S4.1.2.

Manufacturers of 1981 multipurpose passenger vehicles

with a gross vehicle weight rating of 10,000 pounds or

less are given the same safety options as manufacturers

of passenger cars, but they can also comply with

Standard 208 by choosing one of two closely analogous

options: (1) a complete automatic protection system, or

(2) a manual seat belt system. See id., $4.2.1.

AO Court of Appeals Opinion

regulation.

Pokorny responded to Ford's arguments by relying

on the savings clause of the Safety Act, 15 U.S.C.A. §

1397(k) (West Supp.1990).* This subsection provides that

"[cJompliance with any Federal motor vehicle safety

standard issued under this subchapter does not exempt any

person from any liability under common law." Jd. Pokorny

argucd that § 1397(k)'s language demonstrates that

Congress did not intend the Safety Act, or any federal

standards promulgated under it, to expressly pre-empt

common law actions alleging liability for defectively

designed vehicles. In addition, she argued that the cautious

approach that federal courts should take in pre-emption

matters precluded implicd pre-emption of her action

because there was no actual conflict between her theory of

recovery and the options presented in Standard 208.

The district court concluded that Pokorny's action

created an actual conflict with the options given to

automobile manufacturers by the Safety Act and Standard

208. The court recognized that Standard 208 was specifi-

cally designed to give automobile manufacturers a degree

Of flexibility and choice in providing passenger restraint

systems. It reasoned that allowing Pokorny's suit to go

forward and exposing Ford to possible liability for failing

to install a passive restraint system in the 1981 Ford van

would, in effect, eliminate that flexibility and choice. Thus,

the district court held that Pokorny’s action was impliedly

pre-empted by the Safety Act and Standard 208, and it

granted Ford's motion for summary judgment on all counts.

: The savings clause was formerly codified at 15 U.S.C.A.

§ 1397(c) (West 1982)

tt

Court of Appeals Opinion A7

See Pokorny v. Ford Motor Co., 714 F.Supp. 739, 742-43

(E.D.Pa.).°

Pokorny now appeals the district court's judgment to

this Court. We have appellate jurisdiction pursuant to 28

U.S.C.A. § 1291 (West Supp.1990). We exercise plenary

review because the question of whether Pokorny's action is

pre-empted by the Safety Act and Standard 208 arose

during summary judgment proceedings and the resolution of

that question involves a pure question of law. See

International Union, United Mine Workers v. Racho

Trucking Co., 897 F.2d 1248, 1252 (3d Cir.1990).

In Schneidewind v. ANR Pipeline Co., 485 U.S. 293

(1988), the Supreme Court recognized that federal pre-

emption of state law can occur in three types of situations:

where Congress explicitly pre-empts state law, where

pre—cmiption is implicd because Congress has occupied the

entire ficld and where pre-emption is implied because there

is an actual conflict between federal and state law.

A pre-emption question requires an

examination Of congressional intent. Of

course, Congress explicitly may define the

extent to which its enactments preempt state

Because the district court granted summary judgment to

Ford on this) ground, it) did not) consider other

pre-emption arguments made by Ford, including its

express pre-emption argument See Pokorny, 714

F.Supp. at 742

A8 Court of Appeals Opinion

law. In the absence of explicit statutory

language, however, Congress implicitly may

Indicate an intent to occupy a given field to

the exclusion of state law. Such a purpose

properly may be inferred where the

pervasiveness of the federal regulation

precludes supplementation by the States,

Where the federal interest in the field is

sufficiently dominant, or where "the object

sought to be obtained by the federal law and

the character of the obligations imposed by

it... reveal the same purpose." Finally, even

where Congress has not entirely displaced

state regulation in a particular field, state law

is pre-empted when it actually conflicts with

federal law. Such a conflict will be found "

When it is impossible to compty with both

state and federal law, or where the state law

stands as an obstacle to the accomplishment

of the full purposes and objectives of

Conegress.""

Id. at 299-300 (quoting Rice v. Santa Fe Elevator Corp.,

331 US. 218, 230 revd, 331 US. 247 (1947), and

California Coastal Comm'n v. Granite Rock Co., 480 U.S.

572, 581 (1987)) (citations Omitted).

A.

Initially, Ford contends that Pokorny's common law

action is expressly pre-empted by § 1392(d), the

pre-emption provision of the Safety Act. Ford notes that

Standard 208, with its three basic Options, defines the

federal safety standard for passenger-side Passive restraint

————————————

Court of Appeals Opinion AY

systems. Therefore, it argues, § 1392(d) mandates that no

state, and no political subdivision of a state, may establish

a safety standard on this aspect of performance that differs

in any way from the requirements of federal Standard 208.

According to Ford, exposure to possible liability under state

common law because of the absence of passive restraint

systems for passengers has the effect of establishing a state

standard within the meaning of § 1392(d), and thus such

common law liability is expressly pre-empted if it is not

identical to the requirements of Standard 208.

Ford's argument that Pokorny's common law action

is expressly pre-empted by the Safety Act and Standard

208 is unconvincing, primarily because it focuses on one

provision of the Safety Act, § 1392(d), without giving

adequate consideration to the Act's savings clause, §

1397(k). The question of express pre-emption is properly

analyzed only after considering both § 1392(d) and §

1397(k). See American Textile Mfrs. Inst., Inc. v. Donovan,

452 U.S. 490, 513 (1981) (“all parts of a statute, if possible,

are to be given effect"); Taylor v. General Motors Corp.,

875 F.2d 816, 824 (11th Cir.1989) (courts have a duty to

give effect to every clause of a statute, if possible), cert.

denied, _ US. _, 110 S.Ct. 1781 (1990); Wood v.

General Motors Corp., 865 F.2d 395, 420 (1st Cir.1988)

(Selva, J., dissenting) (in construing statutes, court's role is

to give effect to them as written and as a whole, not to

enforce One section at the expense of another), cert.

denied, 58 U.S.L.W. 3626 (Apr. 2, 1990)(No. 89-46) [110

S.Ct. 1781 (1990)].

The cases that Ford cites in support of its arguments

On express pre-emption--Cox v. Baltimore County, 646

F.Supp. 761, 763 (D.Md.1986): Fanover v. Ford Motor Co.,

632 F.Supp. 1095, 1096-97 (E.D.Mo.1986); and Wickstrom

Al0 Court of Appeals Opinion

v. Maplewood Toyota, Inc., 416 N.W.2d 838, 840

(Minn.Ct.App.1987), cert. denied, [487 U.S. 1236,] 108

S.Ct. 2905 (1988)--fail to give adequate weight to the

effect of the savings clause on the question of express

pre-emption. When we consider § 1397(k) together with

§ 1392(d), we conclude that Congress did not intend all

common law actions for design defects like Pokorny's to be

expressly pre-empted by federal regulations like Standard

208.

Ford, however, argues that § 1397(k) should be

construed narrowly, since its limited purpose is to express

Congress's intent not to pre-empt the entire ficld of

automobile safety. In other words, according to Ford, §

1397(k) was enacted to ensure only that state common law

continues to exist where no federal safety standard has been

promulgated.

Ford's construction undermines the express language

of § 1397(k). Section 1397(k) specifically recognizes that

compliance with a particular federal safety standard, like

Standard 208, docs not exempt Ford from common law

liability. See Dawson v. Chrysler Corp., 630 F.2d 950, 958

(3d Cir.1980), cert. dented, 450 U.S. 959 (1981). The

savings provision cannot be limited to matters not covered

by the federal standards. We reject Ford's argument on this

point and are not persuaded by the few district court

Opinions that have accepted it. See, ¢e.g., Cox, 646 F.Supp.

at 764.) The language of § 1397(k) does not reasonably

support that narrow construction. See Taylor, 875 F.2d at

824 ("Such a construction ... would render the savings

clause a mere redundancy since the preemption clause itself

provides that where a federal standard does not govern ‘the

same aspect of performance’ as the state standard, the state

Court of Appeals Opinion All

standard is not preempted.").”

We also note that § 1392(d), the pre-emption

provision, docs not specifically mention common law

liability. In the pre-emption clauses of many other statutes,

Congress has explicitly referred to common law actions

when it wished to pre-cempt them. See Taylor, 875 F.2d at

824-25; Cipollone v. Liggett Group, Inc., 789 F.2d 181,

185-86 (3d Cir.1986), cert. denied, 479 U.S. 1043 (1987);

Kolbeck v. General Motors Corp., 702 F.Supp. 532, 537

(E.D.Pa. 1988) (§ 1392(d) only prohibits states from

implementing their own safety standards; it does not

directly address state common law).

Nevertheless, Ford argues that our construction of §

1397(k) is inconsistent with § 1392(d) because common law

liability has the same effect on automobile manufacturers as

the other kinds of state regulation that are expressly

pre-empted by § 1392(d). Although we recognize that

common law damages may have an effect on automobile

manufacturers similar to other safety standards established

by states through statutory or regulatory processes, common

law liability cd state regulation have important differences.

We are also unpersuaded by the narrow construction

given to the savings clause by the United States Court of

Appeals for the First Circuit in Wood v. General Motors

Corp., 865 F.2d 395 (Ist Cir. 1989), cert. denied 58

US.L.W. 3626 (Apr. 2, 1990)(No. 89-46) [110 S.Ct.

1781 (1990)]. There, the First Circuit, over Judge

Selya’s dissent, held that Congress did not foresee

lawsuits claiming design defects when it enacted §

1397(k), and hence that section should not be construed

to "save" such common law actions. See 865 F.2d at 402,

407

Al2 Court of Appeals Opinion

See Gingold v. Audi-NSU—-Auto Union, A.G., 389 Pa.Super.

328, 567 A.2d 312, 321-22 (1989); Wood, 865 F.2d at

423-24 (Sclya, J., dissenting). Ford's hypothesis about the

economic effect of common law liability is a question more

properly addressed to Congress than to a court. The

judiciary must adhere to the framework Cofgress designed

when it enacted the Safety Act. As we construe that Act,

common law lability survives federal regulation, even in

those areas where federal safety standards have actually

been established. Pokorny's common law action is not

expressly pre-empted by § 1392(d).

B.

In the alternative, Ford contends that Pokorny's

action is implicdly pre-empted by the Safety Act and

Standard 208 because the possibility of common law

liability. “would stand as an obstacie to the — full

accomplishment and execution of the federal purposes

articulated by Congress and the Department — of

Transportation,” Bricf for Appellee at 13, and therefore

would create an actual conflict with the flexible approach

to passenger safety specifically established by federal law.’

It is well-established that federal law may impliedly

pre-cmpt state law to the extent that the state law conflicts

Ford concedes that the third type of pre-emption

discussed in Schueidewind v. ANR Pipeline Co., 485 US.

293 (1988), is not applicable here, since § 1397(k)

demonstrates that Congress did not intend to occupy the

entire field of motor vehicle safety. We agree that

Pokorny’s common law action cannot be pre-empted on

this basis

a

Court of Appeals Opinion Al3

with a federal regulatory scheme. See /nternational Paper

Co. v. Ouellette, 479 U.S. 481, 490-92 (1987); Michigan

Canners & Freezers Ass'n v. Agricultural Mktg. &

Bargaining Bd., 467 U.S. 461, 469 (1984). A federal

regulation may have just as much pre-emptive effect as a

federal statute. See Fidelity Fed. Sav. & Loan Ass'n v. de

la Cuesta, 458 U.S. 141, 153 (1982). Moreover, common

law liability may create a conflict with federal law, just as

other types of state law can. See Taylor, 875 F.2d at 826;

Cipollone, 789 F.2d at 187. However, there is generally a

presumption against’ pre-emption. See Maryland v.

Louisiana, 451 U.S. 725, 746 (1981). Therefore, state law

must create an actual conflict with a federal regulatory

scheme before it is implicdly pre-empted.

Before we determine whether, and to what extent, an

actual conflict exists between federal law and the common

law liability asserted by Pokorny, we address a few pre-

liminary matters the partics raise in this appeal. First,

despite Pokorny's arguments to the contrary, our decision in

Dawson docs not prohibit us from holding that Pokorny's

common law action is implicdly pre-empted by the Safety

Act and Standard 208. While Dawson held that an auto-

mobile manufacturer's compliance with federal safety

standards could not be used as a defense foreclosing the

possibility of finding that an automobile was defectively

designed, see 630 F.2d at 957-58, that decision did not

involve pre-emption. Cf Wood, 865 F.2d at 401 n. 8.

There was no federal standard governing the particular

design said to be defective in Dawson, and thus there was

no asserted conflict between federal standards and common

law liability.

Al4 Court of Appeals Opinion

On the other hand, we cannot agree with Ford's

Suggestion that Pokorny’s entire action should be dismissed

because any other result would conflict with the Safety

Act's goal of national uniformity in motor vehicle safety

requirements. Certainly Congress was concerned with

providing uniform safety standards while enacting the

Safety Act. Evidence of this concern appears in § 1392(d),

Which prohibits state safety standards not identical to

federal standards, and in selected passages of the Act's

legislative history. See, ¢e.. § Rep. No. 1301, 89th Cong.,

2d Sess. 12 (1966), reprinted in 1966 U.S.Code Cong. &

Admin.News 2709, 2724)

However, uniformity was not Congress's primary

goal in enacting the Safety Act. In 15 U S.C_A. § 1381,

Congress declared that the Safety Act's purpose was “to

reduce traffic accidents ind deaths and iInjurics tO persons

resulting from traffic accidents Congress evidently

thought that preserving common law lability would further

the goal of motor vehicle Safety, since § 1397(k) was

included as part of the Act. See Gingold, 389 Pa.Super. at

—» 567 A2d at 328-29. In the face Of this clear

declaration of congressional purpose, we are unwilling to

accept an overly broad notion of pre-emption based on

uniformity that could have the effect of undercutting

Congress's concern for safety. See Kolbeck. 702 F.Supp. at

539. We prefer to analyze the pre-emption issuc in a more

Cautious and precise manner, allowing pre-emption of

Pokorny's action only where it presents an actual, clear

conflict with federal regulation. See Northwest) Cent.

Pipeline Corp. v. State C rp. Comm'n, [489 US. 493], 109

S.Ct. 1262, 1276 (L989) ("4 ‘Jonflict-pre-emption analysis

must be applied sensitively |. to prevent the diminution of

the role Congress reserved to the States while at the same

time preserving the federal role.")

Eo |

Court of Appeals Opinion Al5

>

So analyzed, we conclude that Pokorny’'s action docs

present an actual conflict with the Safety Act and Standard

208 to the extent that it alicges li: ibility for Ford's failure to

include air bags or automatic seat belts on the passenger

side of the 1981 van in which Duffy was killed. As the

district. court correctly recognized, Standard 208 was

specifically designed to give automobile manufacturers a

choice among several options when providing restraint

systems for passengers. The van in which Duffy was killed

contained manual safety belts and a buzzer system, one of

Standard 208's options

Allowing Pokorny to assert that the Ford van was

defectively designed because it did not contain air bags or

automatic seat belts frustrates the gouls of the federal

regulatory framework and undermines the flexibility that

Congress and the Department of ‘| ransportation intended to

give to automobile manufacturers in this area. Because

potential common law liability interferes with the regulatory

methods chosen by the federal government to achieve the

Safety Act's stated goals, we think Pokorpy's action is

pre-empted to the extent that she alleges that the Ford van

was defectively designed because it lacked air bags or

automatic seat belts. See Ouellette, 479 US. at 494.

The conflict between possible common law liability

for failing to install air bh: WS Or automatic scat belts and the

federal regulatory framework established pursuant to the

Safety Act becomes clearer when we consider 15 U.S.C.A.

§ 1410b (West 1982). © ongress cnacted § 1410b as part of

the a Vehicle and Schoolbus Safety Amendments of

1974, * Pub.L. No. 93-492, § 109. &®& Stat. 1470, 3

Al6 Court of Appeals Opinion

direct response to the simmering controversy over safety

belt interlock systems and certain proposed passive restraint

requirements. See H_R Rep. No. 1191, 93rd Cong., 2d Sess.

28-30) (1974), reprinted in 1974 US.Code Cong. &

Admin.News 6046, 6073-75: Conf. Rep. No. 1452, 93rd

Cong., 2d Sess. 25 (1974). reprinted in 1974 U.S Code

Cong. & Admin. News 6084, 6108 Apparently there was

Significant concern among motorists that certain tvpes of

Passive safety systems, most particularly air bags and

automatic seat belts, could become mand: tory in motor

Vehicles and that motor vehicles’ lgmitions soon would be

designed not to start unless the occupants’ scat belts were

connected. See Motor Vehicle Mfrs. Ass'n v. State Farm

Mut. Auto. Ins. Co., 463 US. 29, 34-37 (1983).

In § 1410b, Congress addressed these-concerns. It

preserved manual seat belts as a continuing option for

Occupant resiraint systems by providing that:

(2) Except) as otherwise provided in

paragraph (3), no Federal motor vehicle safety

Standard respecting occupant restraint systems

May

(A) have the effect of requiring, or

(3B) provide that a manufacturer is

permitted to comply with such standard by means

Of, an Occupant restraint svstem other than a belt

svstem

(5) (A) Paragraph (2) shall not apply

to a Federal motor vehicle safety

Standard) which provides that a

manufacturer is permitted to comply

Court of Appeals Opinion Al7

with such standard by equipping

motor vehicles manufactured by him

with cither--

(1) a belt system, or

(i) any other occupant

restraint’ system specified in such

standard.

IS U.S.C.A. § 1410b(b) (in relevant part).

“Belt: system" for these purposes was defined as "an

eecupant restraint system consisting of integrated lap and

Shoulder belts for front outboard occupants and lap belts

for other occupants." 15 USCA. § 141 0b(f)(2).

In § 1410b, Congress did provide a way to circumvent

the limitations it had established in subsections (b)(2) and

(b(3) A). A safety standard could be promulgated that

conflicted with subsections (b)(2) or (b\3)A) if certain

procedural requirements were followed during its

promulgation. See §§ 1410b(b)(3)(B), 1410b(c). The key

procedural requirement in these — situations — was

congressional notification, which would allow. both

Houses of Congress to consider the proposed standard

and determine whether it should become effective. If

both Houses passed concurrent resolutions disapproving

of the proposed standard, then the standard was to be

ineffective. See § 1410b(d\1) Of course, after the

Supreme Court's holding in /NS v. Chadha, 462 U.S. 919

(1983), the “congressional veto" scheme devised in §

14106 is no longer availible. However, Congress's

inclusion of such a check in § 1410b reinforces the

inference that it remained wary about safety standards

(continued...)

Als Court of Appeals Opinion

Section 1410b shows, inter alia, that Congress

intended manual seat belts to remain one of the options for

complying with federal restraint system requirements, see

Tavlor, 875° F.2d at 826-27, at Icast insofar as the

procedures in subsection (c) were not used to circumvent

subsections (b)(2) and (b)(3)(A). The options presented by

the Department of Transportation in Standard 208 reflect

congressional intent, since they allow automobile

manufacturers to comply with federal safety requirements

by providing cither a passive safety system, such as air bags

Or automatic scat belts, or manual safety belts.

4

That such flexibility and choice is an essential

element of the regulatory framework established in Standard

208 has repeatedly been made clear in the regulatory

history of this particular safety standard. See, e.g., 49

Fed. Reg. 28962, 28997 (1984) (Secretary Dole explained

needed to “provide sufficient latitude for industry to

develop the most effective [occupant restraint] systems" and

cr

ielp “overcome any concerns about public acceptability

by permitting some public choice"); 46 Fed.Reg. 53419

(1981) (Seeretary Lewis determined that air bags and

:utomanue seat belts should not be required, but each should

saustying occupant restraint requirements); 42 Fed.Reg.

S071 (1977) (Secretary Coleman relicd on a 1976 document

entitled “The Sceretary's Decision Concerning Motor

remain only one alternative among several options in

Vehicle Occupant Crash Protection" to conclude that

passive restraint systems should not be mandated at the

continucd)

that did not include an option for manual safety belts.

—eEe ee

Court of Appeals Opinion Al9

time due to public uncertainty). The regulatory history

shows that the Department of Transportation, consistent

with Congress's intent in § 1410b, rejected the idea that air

bags or automatic scat belts should become a mandatory

requirement for occupant safety at the time this Ford van

was manufactured. See, ¢.g., 49 Fed.Reg. 29000 (1984)

(Department of Transportation “determined that airbags

should not be required in all cars"); 42 Fed.Reg. 5071

(1977) (after considering several alternate approaches to

occupant safety under Standard 208, Secretary of

Transportation rejected alternatives "mandatling] passive

restraints On some or all passenger cars" and continued

with approach allowing use of manual seat belts).’

More recently, the Department of Transportation has

taken some steps to slowly phase in automatic restraint

system requirements for passenger cars manufactured

after 1986. Sec 49 C.F.R. § 571.208, S4.1.3-4.1.4

(1989). However, until September 1993, manufacturers

may continue to provide manual scat belts on the

passenger's side of vehicles that have air bags on the

driver's side. See id, S414. Moreover, until April 1,

1989, it was unclear whether the automatic restraint

system requirements would become effective, since the

Seerctary of Transportation was authorized to climinate

the requirements if cnough states passed mandatory seat

belt use laws. See ud, S4.1.5. The requirements

themselves are limited to passenger cars and do not apply

to multipurpose vehicles

Despite this evolution, we remain convinced that both

Congress and the Department of Transportation did not

want to mandate the use of air bags or automatic safety

belts when Ford manufactured this Econoline Van in

198]

A20 Court of Appeals Opinion

Allowing Pokorny, and others in similar situations,

to allege common law liability for the failure to install air

bags or automatic safety belts would directly undermine the

regulatory framework suggested by Congress in § 1410b

and implemented by the Department of Transportation in

Standard 208. These aspects of Pokorny's common law

action are pre-empted. See Taylor, 875 F.2d at 827

(Eleventh Circuit applicd holding of Fidelity Fed. Sav. &

Loan Ass'n v. de la Cuesta, 458 U.S. 141 (1982), that "a

state common law rule cannot take away the flexibility

provided by a federal regulation, and cannot prohibit the

exercise of a federally granted option"; since plaintiffs’

theory of recovery, based on manufacturers’ failure to equip

certain motor vehicles with air bags, effectively would

remove the clement of choice provided in Standard 208,

plaintiffs’ actions were implicdly pre-empted); Aitts v.

General Motors Corp., 875 F.2d 787 (0th Cir.1989)

(plaintiffs' air bag claims implicdly pre-empted by Safety

Act), cert. denied, 58 U.S.L.W. 3626 (Apr. 2, 1990)(No.

89-279) [110 S.Ct. 1781 (1990)]}; Wood, 865 F.2d at 402,

408-14 (defective design action based on lack of air bags

in motor vehicle implicdly pre-empted); Kolbeck, 702

F.Supp. at 541-42 (although an “extremely close issue,"

court held that Safety Act and Standard 208 pre-empted

common law damage claim for failure to provide a passive

Occupant restraint system), Nissan Motor Corp. v. Supertor

Court (Meier), 212 Cal.App.3d 980, 261 Cal.Rptr. 80

(Ct.App.1989), cert. denied, 58 U.S.L.W. 3626 (Apr. 2,

a 1990)(No. 89-940) [110 S.Ct. 1782 (1990)].

The Safety Act's savings clause docs not change our

resolution of the pre-emption issuc, since it Is

well-established that a savings clause like § 1397(k) does

not "save" common law actions that would subvert a federal

statutory or regulatory scheme. See Ouellette, 479 US. at

caesar

Court of Appeals Opinion A21

492-94; Chicago & NW. Transp. Co. v. Kalo Brick & Tile

Co., 450 U.S. 311, 328-31 (1981); Pennsylvania R.R. v.

Puritan Coal Mining Co., 237 U.S. 121, 129 (1915); Texas

& Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 446

(1907)."°

Pokorny’s assertion that there is no actual conflict

between federal law and the imposition of common law

liability for failing to provide air bags or automatic safety

belts is unconvincing. A few courts have held that there is

no conflict between Standard 208 and common law liability

in this type of situation since common law liability would

not compel automobile manufacturers to install certain types

Of passive restraints and, in any event, it is possible for

them to meet both federal and state requirements; for

On this issue, we do not find the analysis in Gingold v.

Audi-NSU-Auto Union, A.G.. 389 Pa.Super. 328, __,

567 A.2d 312, 324-27 (1989), persuasive. In Gingold,

the Pennsylvania Superior Court concluded that the

Safety Act's savings clause permitted an action for design

defect based on the lack of any type of passive restraint

system, even though it appeared to conflict, at least in

part, with the Act and Standard 208. That court

determined that there could be no conflict between the

federal regulatory scheme and possible common law

liability in such a situation, since it construed § 1397(k)

to preserve an individual's common law remedies without

limitation. However, because of the actual conflict that

exists between Standard 208 and common law actions

based on the absence of air bags or automatic safety

belts, we believe the better approach is to construe §

1397(k) to permit only those common law actions for

design defect that do not frustrate or undermine the

Safety Act’s regulatory framework.

A22 Court of Appeals Opinion

example, a manufacturer could install air bags or automatic

seat belts. See, e.g., Gingold, 389 Pa.Super. at __, 567

A.2d at 325-27. However, we think that Kolbeck is more

attuned to the realities of such a situation: "'An automobile

manufacturer faced with the prospect of choosing the

[passive restraint Options], or facing potential exposure to

compensatory and punitive damages for failing to do so, has

but one realistic choice.'" 702 F.Supp. at 541 (quoting Baird

v. General Motors Corp., 654 F.Supp. 28, 32 (N.D. Ohio

1986)). Because common law liability for failing to

provide passenger-side air bags or automatic seat belts

would undermine the option of meeting federal safety

standards by providing a manual scat belt system like that

in the Ford van in which Duffy was killed, an option that

Congress and the Department of Transportation clearly

intended to preserve, Pokorny’s action is pre-empted to the

extent that it is based on this theory of recovery.

We think Pokorny's action is not pre-empted,

however, to the extent that it asserts lability for Ford's

failure to provide protective netting over the van's windows.

Potential liability for this type of passive system, unlike

liability for failing to provide air bags or automatic seat

belts, presents no direct, actual conflict with Standard 208's

regulatory framework. It does not take away the flexibility

established by the federal scheme, and it does not have the

effect of prohibiting an option granted by Congress or the

Department of Transportation. Cf. de la Cuesta, 458 US. at

154-56 (state court limitations on federal savings and loan's

ability to enforce duc-on-sale clauses deprived lender of

flexibility given to it by the Federal Home Loan Bank

Board and conflicted with Board's express policy on such

Court of Appeals Opinion A23

clauses). Because of the significant difference between

common law liability predicated on the failure to provide

air bags or automatic seat belts and liability based on the

absence of protective window netting or other possible

non-conflicting designs reasonably adapted to increase

passenger safety, Ford's argument that we should not make

a distinction among particular tvpes of passive restraints

and should simply hold that all safety alternatives not

included in Standard 208 are pre-empted docs not persuade

us."

im We recognize that other courts addressing | similar

questions on pre-emption in the context of the Safety

Act and Standard 208 have not made the distinction

among passive systems that we make here. However,

most of those cases involved only the pre-emption of

common law actions based on the failure to include air

bags. See, e.g. Taylor v. General Motors Corp., 875

F.2d 816 (11th Cir.1989), cert. denied, 58 U.S.L.W. 3626

(Apr. 2, 1990)(No. 89-852) [110 S.Ct. 1781 (1990));

Kitts v. General Motors Corp., 875 F.2d 787 (10th

Cir.1989), cert. denied, 58 U.S.L.W. 3626 (Apr. 2,

1990)(No. 89-279) [110 S.Ct. 1781 (1990)]; Wood v.

General Motors Corp., S65 F.2d 395, 396-97 (Ist

Cir.1988) (although plaintiff's complaint alleged a

defective design since General Motors "failed to provide

reasonably safe and adequate safety devices, which

include but are not limited to ‘air bag’ devices," the First

Circuit limited its review to “whether federal law

preempts a state law product liability claim against a

motor vehicle manufacturer based on its installing seat

belts, rather than airbags, in a motor vehicle"), cert.

denied, 58 US L.W. 3626 (Apr. 2, 1990)(No. 89-46)

(110 S.Ct 1781 (1990)). But see Kolbeck v. General

Motors Corp... 702. F Supp. 532, 534° (E.D.Pa.1988)

(continued...)

A24 Court of Appeals Opinion

A state's common law, imposing lability because the

absence of protective window netting is a design defect,

would not, to our mind, frustrate the purpose of the federal

regulatory scheme. The options set forth in Standard 208

would not be undermined in such a situation, and manual

safety belts in particular would remain a viable option.

Common law hability simply would "encourage"

automobile manufacturers to provide safety features in

addition to those listed in Standard 208.

Congress clearly expressed its main purpose as

promoting safety when it enacted the Safety Act. See

typescript supra, at 14-15 (discussing 15 U.S.C.A. § 1381).

Our result is consistent with that purpose and with the

federal regulatory scheme established pursuant to the Safety

Act. We do not think that Congress or the Department of

Transportation intended to "freeze" motor vehicle safety

design with cither the Safety Act or Standard 208.

Therefore, we will not use the pre-emption doctrine in a

manner that would have that effect. Thus, we hold that

Pokorny’'s claim against Ford for defective design in failing

to include protective netting over the windows is not

pre-empted.

continued)

(finding pre-emption where plaintiff's claim asserted

defective design because of the absence of a "passive

restraint system such as airbags, an energy absorbing

Interior, or automatic seat belts”). Here, we think that it

IS proper to examine cach aspect of Pokorny's action

independently to determine whether it is pre-empted by

the Safety Act and Standard 208

a

Court of Appeals Opinion A25

IT.

For the foregoing reasons, the district court's order

granting summary judgment to Ford will be affirmed in part

and reversed in part. To the extent that Pokorny's action is

based on the lack of air bags or automatic safety belts in

the 1981 Ford van, it is pre-empted by the Safety Act and

Standard 208. To the extent that it is based on the absence

of protective netting over the van's windows, however, it 1s

not pre-empted because there is no actual conflict with the

federal regulatory scheme. We will remand to the district

court for further proceedings consistent with this opinion.

A Truc Copy:

Teste:

Clerk of the United States Court of Appeals

fo» the Linrd Circun

A206 District Court Memorandum

Pokorny v. Ford Motor Co., 714 F.Supp. 739 (E.D.Pa.

1989)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 85-6544

Anne Duffy POKORNY, admiinistratrix

of the Estate of John Duffy

FORD MOTOR COMPANY

June 8, 1989.

MEMORANDUM

O'NEILL, District Judge

Plaintiff Anne Duffy Pokorny brought this action as

administratrix of the estate of her brother John Duffy,

asserting claims of common law negligence, strict liability

and breaches of implicd warranties against defendant Ford

Motor Company.’ Duffy dicd from injuries he suffered

while a passenger in a 1981 Ford Econoline van. Pokorny

alleges that Ford's failure to equip the van with passive

restraining devices caused Dufty’s death. Ford has moved

Suit was commenced in the Court of Common Pleas of

Philadelphia County, thereafter, Ford removed the action

to this Court. Pokorny is a Pennsylvania citizen, and

Ford is a Delaware corporation whose principal place of

business is in Michigan

District Court Memorandum A27

for summary judgment, arguing that Pokorny's claims are

preempted by the National Traffic and Motor Vehicle

Safety Act ("Safety Act"), 15 U.S.C. § 1381 et seq., and

Federal Motor Vehicle Safety Standard 208 ("FMVSS

208"), 49 C.F.R. § 571.208. Because | adopt the reasoning

of my colleague Judge Huvett in Kolbeck v. General

Motors Corp., 702 F.Supp. 532, 542 (E.D.Pa.1988) (holding

"that the Safety Act and FMVSS 208 preempt a common

law damage claim for failing to include a passive occupant

restraint system”), | will grant Ford's motion for summary

judgment.

Background

On December 10, 1983, John Duffy, in the course of

his duties as a Philadelphia police officer, was a passenger

in a 1981 Ford Econoline police van driven by another

police officer, James R. Coughlin. While responding to an

emergency call, the van collided with a police patrol car

also answering the call. The van spun, hit a mailbox, and

rolled over on its right side. Duffy, who was not wearing

a seat belt, was partially ejected through the open passenger

side window and was crushed by the van.

The City of Philadelphia purchased the van in

question for use as a police patrol and transport vehicle.

Ford equipped the van with combined lap and shoulder

safety belts and a warning light and buzzer in compliance

with FMVSS 208. The van did not contain netting over the

windows, airbags or any other passive occupant restraining

device.

A2S8 District Court Memorandum

Discussion

F.R.C.P. Rule 56(c) provides that summary judgment

iS appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issuc as to

any material fact and that the moving party is entitled to a

judgment as a matter of law." Pokorny's sole theory of

recovery is that Ford's failure to equip the van with passive

restraining devices caused Duffy's death? Ford contends

that it is entitled to judement as a matter of law because

federal statutes and regulations have preempted state tort

law claims against automobile manufacturers for failure to

provide passive occupant restraint systems.

The Supreme Court recently reviewed the circum-

stances under which federal statutes or regulations preempt

State regulation in Schneidewind vo ANR Pipeline Co., 485

U.S. 293 (19838):

A pre-emption question requires an exami-

nation of congressional intent. Of course,

Congress explicitly may define the extent to

Which its enactments pre-empt state law. In

the absence of explicit statutory language,

however, Congress implicitly may indicate

an intent to occupy a given field to the

exclusion of state law. Such a purpose

Although the Complaint: asserts numerous claims of

Neghgenee, strict lability and imphed warranties, all of

these claims are based on Ford's failure to provide a

Passive occupant restraint system

a ee |

District Court Memorandum A29

properly may be inferred where the

pervasiveness of the federal regulation

precludes supplementation by the States,

Where the federal interest in the ficld is

sufficiently dominant, or where the object

sought to be obtained by the federal law and

the character of obligations imposed by it

reveal the same purpose. Finally, even

where Congress has not entirely displaced

State regulation in a particular field, state law

Is pre-empted when it actually conflicts with

federal law. Such a conflict will be found

When it is impossible to comply with both

State and federal law, or where the state law

stands as an obstacle to the accomplishment

of the full purposes and objectives of

Congress. (citations and quotations omitted)

In addition, “state law is also preempted if it interferes with

the methods by which the federal statute was designed to

reach [the stated goals of the statute }." Jnternational Paper

Co. v. Ouellette, 479 US. 481, 494 (1987). Where these

circumstances are present, federal law preempts conflicting

State regulation in the form of cithcr statutes or common

law liability. See, eg. Ouellette, 479 US. at 481, 107

S.Ct. at 806 (holding that the Clean Water Act preempts the

common law of a state affected by pollution to the extent

that the common law sccks to impose liability on a

pollution point source in another state); San Diego Unions

v. Garmon, 359 U.S. 236, 247 (1989) (“Even the States’

Salutary effort to redress private wrongs Or grant

compensation for past harm cannot be exerted to regulate

activities that are potentially subject to the exclusive federal

regulatory schemce.").

A30 District Court Memorandum

Ford argues that Pokorny's state law claims are

preempted by the Safety Act and FMVSS 208. In 15

U.S.C. § 1381, Congress declares that the purpose of the

Safety Act “is to reduce traffic accidents and deaths and

injurics to persons resulting from traffic accidents." The

Safety Act provides at 15 U.S.C. § 1392(d) that

{w]henever a Federal motor vehicle safety

standard established under this subchapter is

in effect, no State or political subdivision of

a State shall have any authority cither to

establish, or to continue in effect, with

respect to any motor vehicle or item of

motor vchicle cyuipment any safety standard

applicable to the same aspect of performance

of such vchicie or item of equipment which

is not identical to the Federal standard.

FMVSS 208, which was first adopted in 1967 and

was in effect at all times relevant to this action, establishes

federal safety standards for automobile occupant restraint

systems. The stated purpose of this regulation is “to reduce

the number of deaths of vehicle occupants, and the severity

of injurics, by specifving vehicle crashworthiness require-

ments ... [and] cquipment requirements for active and

passive restraint systems.” 49 C.F.R. § 571.208 S2. For

vehicles manufactured between September 1, 1973 and

September 1, 1986, FMVSS 208 requires that the manufac-

turer provide one of three different occupant restraint

systems: the “First option”, a passive restraint system

designed to protect occupants automatically from frontal

and lateral crashes; the “Second option”, a combination of

passive restraints designed to protect occupants automati-

cally from frontal crashes and seat belts with a warning

system, the “Third option’, scat belts with a warning

District Court Memorandum A3l

system. 49 C.F.R. § 571.208 S$4.1.2.1-S4.1.2.3.

Ford contends that Pokorny’s claims are expressly

preempted by 15 U.S.C. § 1392(d), and impliedly pre-

empted because, if recognized, they would frustrate the

purpose of the Safety Act to establish uniform national

automobile safety standards, as well as the policy,

embodied in 15 US.C. § 1410b(b)-(d), of permitting

requirement of passive occupant restraint systems only upon

approval of Congress.’ A number of federal courts have

addressed these issucs, but they have reached various

conclusions: ¢xpress preemption, implicd preemption, or no

preemption.’

I need not address these contentions, however, as

Ford also argues that Pokorny’s claims are preempted

because they interfere with the method by which FMVSS

208 was intended to operate, i.e. permitting the

manufacturer to choose one of three occupant restraint

system options. According to Ford, state common law

liability for failure to provide passive restraints “would

deprive manufacturers of the flexibility that the Department

of Transportation explicitly found necessary to ‘provide

sufficient latitude for industry to develop the most effective

[passive-restraint] systems ....' 49 Fed. Reg. 28962, 28977

(July 17, 1984)." Memorandum of Points and Authorities in

Support of Defendant's Motion for Summary Judgment, at

20. Judge Huyett addressed this issue in Kolbeck, where the

defendant manufacturer also contended “that FMVSS 208

was specifically designed to provide manufacturers with a

See Memorandum of Points and Authorities in Support

of Defendant's Motion tor Summary Judgment, at 12-21.

See cases cited in Kolbeck, 702 F Supp. at 534, n. 1.

A32 District Court Memorandum

choice among restraint svstem alternatives." Kolbeck, 702

F.Supp. at 541.

Judge Huvett found that "[t]he prospect of common

law damage awards for failing to choose the passive

restraint alternatives removes the clement of choice

expressly authorized in FMVSS 208." As a result, he held

that

[p}laintiff's passive restraint claim would tip

the carefully drawn balance of [the Safety

Act's] purposes by foreclosing options in

favor of common law damage awards. Cf.

Cipollone, |v. Liggett Group, Inc.| 789 F.2d

[181] at 187 [3rd Cir.1986]. Thus, the effect

of plaintiff's passive restraint claim interferes

with the methods by which the federal

statute was designed to reach [the primary]

goal,’ Ouellette [479 U.S.] at 494, 107 S.Ct.

at 813, to an extent sufficient to overcome

the presumption against preemption. 702

F.Supp. at 541.

| adopt the reasoning of Kolbeck, and therefore find that

Pokorny's claims are implicdly preempted by the Safety Act

and FMVSS 208

The Safety Act also contains a savings clause, which

provides that “[cJomphance with any Federal motor

Vehicle safety standard issued under this subchapter does

not eXempt any person from any hability under common

law.” IS USC. § 1397(c) Tam aware that some courts

have relied on this savings clause in holding that the

Safety Act cannot preempt state tort law lability for

(continued...)

ef

District Court Memorandum A33

‘ Pokorny suggests that general preemption principles

Should not apply in this case because the van was sold to

the City of Philadelphia for use as a police vehicle: "[e]ven

if the Federal Safety Standards were to preempt state

common law with respect to gencral purpose motor

Vehicles, it does not follow at all that such a preemption

principal [sic] should be applied where, as here, the vehicle

is intended for special uses not necessarily or specifically

within the contemplation of the Act or the Safety Standards

promulgated pursuant thereto." Plaintiff's Memorandum of

Law in Opposition to Defendant's Motion for Summary

Judgment, at 12. But Pokorny cites no law in support of

this proposition. Moreover, 15 U.S.C. § 1392(d) speci-

fically authorizes the City of Philadelphia to require passive

*(...continued)

failure to provide passive restraints. See Richart v. ord

Motor Co., 68] F.Supp. 1462 (D N.M.1988&): Baird v.

General Motors Corp., 654 F Supp. 28 (N.D.Ohio 1986).

But Tam persuaded to follow the reasoning of Kolbeck,

702 F.Supp. at 541, n 13. and of the Court of Appeals

for the First Circuit in Wood v. General Motors Corp.,

865 F.2d 395, 414-416 (Ist Cir.1988) (dismissing

argument that) savings clause — forecloses implied

preemption because "the ambiguity created by section

1392(d) in) combination with the savings clause,

combined with the paucity of design defect suits at the

time the Safety Act was passed, leads us to conclude that

Congress would have intended to preempt any state

Standard like this (even though established through the

medium of a design lawsuit rather” than by a state

regulation) that. in the parlance of Implied preemption

analysis, ‘actually conthet{s] with the Safety Act.").

A34 District Court Memorandum

restraints in vehicles purchased for its own use,° and thus

expressly contemplates that "special use vehicles" are

subject to the Safety Act and Safety Standards unless the

governmental entity purchasing the vehicles chooses to

impose a more stringent standard. Pokorny offers no

evidence that the City has ever required manufacturers to

install or provide passive restraints in police vehicles

pursuant to § 1392(d). As a result, the van in question was

required to conform to the requirements of the Safety Act

and FMVSS 208, and, as in Kolbeck, plaintiffs state law

claims regarding passive restraint systems are impliedly

preempted.

6

§ 1392(d) provides, in relevant part: "[nJothing 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 applicable to) motor vehicles or motor

vehicle cquipment 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.”

eieiietieiie

District Court Orders A35

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANNE DUFFY POKORNY: Civil Action

Administratrix of the No. 85-6544

Estate of John Duffy,

Deceased

Vv.

Ford Motor Company

ORDER

AND NOW, this sth day of June, 1989, upon

consideration of defendant's motion for summary judgment,

and of the supporting and opposing memoranda, it is hereby

ORDERED that said motion is GRANTED. Judgment is

entered against plainuff and in favor of defendant.

/s’ Thomas N. O'Neill, Jr., J.

ORDER

AND NOW, this Sth day of July, 1989, it is hereby

ORDERED that the Memorandum filed June 8, 1989 be

AMENDED as follows:

1. The third sentence of footnote 5, page 7 ("See

Richart v. Ford Motor Co., 681 F. Supp. 1462 (D.N.M.

1988); Garrett v. Ford Motor Co., 684 F. fits 407 (D.Md.

1987).") be replaced by: “See Richart _v. Ford Motor Co.,

681 F. Supp. 1462 (D.N.M. 1988); Baird v. General Motors

Corp., 654 F. Supp. 26 (N.D.Ohio 1986)."

Ss’ Thomas N. O'Neill, Jr., J

A36 Excerpts from 49 C.FLR. § 571.208

§ 571.208 Standard 208; Occupant Crash Protection

Sl. Scope. This standard specifies performance

requirements for the protection of vehicle occupants in

crashes.

S2. Purpose. The purpose of this standard is to

reduce the number of deaths of vehicle occupants, and the

severity of injurics, by specifying vehicle crashworthiness

requirements in terms of forces and accelerations measured,

on anthropomorphic dummics in test crashes, and by

specifying equipment requirements for active and passive

restraint systems.

S3. Application. This standard applies to passenger

cars, multipurpose passenger vehicles, trucks and buses.

S4. General requirements.

S4.1 Passenger cars.

S4.1.2 Passenger cars manufactured on or after

September 1, 1973, and before September 1, 1986. Each

passenger car manufactured on or after September 1, 1973,

Excerpts from 49 C.F.R. § 571.208 A37

and before September 1, 1986, shall meet the requirements

of S4.1.2.1, $4.1.2.2 or S4.1.2.3. A protection system that

meets the requirements of S4.1.2.1 or S4.1.2.2 may be

installed at one or more designated seating positions of a

vehicle that otherwise mects the requirements of S4.1.2.3.

$4.1.2.1 First option -- frontal/angular automatic

protection system. The vehicle shall:

(a) At each front outboard designated seating

position mect the frontal crash protection requirements of

S5.1 by means that require no action by vehicle occupants;

(b) At the front center designated seating position

and at cach rear designated seating position have a Type 1

or Type 2 scat belt assembly that conforms to Standard

No. 209 and to S7.1 and S7.2; and

(c) Either (1) Mect the lateral crash protection

requirements of S5.2 and the rollover crash protection

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

vehicle occupants; or

(2) At cac!. front outboard designated seating

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

conforms to Standard No. 209 and S7.1 through S7.3, and

that meets the requirements of S5.1 with front test dummies

as required by S5.1, restrained by the Type 1 or Type 2 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.

S4.1.2.2 Second option -- head-on automatic

protection system. The vehicle shall --

A38 Excerpts from 49 C.F.R. § 571.208

(a) At cach designated seating position have a Type

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

detachable upper torso portion that conforms to $7.1 and

S7.2 of this standard;

(b) At cach front outboard designated seating

position, meet the frontal crash protection requirements of

S5.1, in a perpendicular impact, by means that require no

action by vehicle occupants;

(c) At cach front outboard designated seating

position, mect the frontal crash protection requirements of

S5.1, in a perpendicular impact, with a test device

restrained by a Type 1 scat belt assembly; and

(d) At cach front outboard designated seating

position, have a scat belt warning system that conforms to

$7.3.

S4.1.2.3. Third option -- lap and shoulder belt

protection system with belt warning.

S4.1.2.3.1. Except for convertibles and open—body

vehicles, the vehicle shall --

(c)(c)(a) At cach front outboard designated seating

position have a seat belt assembly that conforms to $7.1

and S7.2 of this standard, and a scat belt warning system

that conforms to $7.3. The belt assembly shall be cither a

Type 2 scat 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

restrained by the assembly the vehicle meets the frontal

crash protection requirements of S5.1 in a perpendicular

impact.

Excerpts from 49 CFR. § 571.208 A39

(chc)b) At any center front designated seating

position, have a Type | or Type 2 scat belt assembly that

conforms to Standard No. 209 (§ 571.209) and to $7.1 and

S7.2 of this standard, and a scat belt warning system that

conforms to $7.3; and

(c(c)(c) At cach other designated seating position,

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

to Standard No. 209 (§ 571.209) and S7.1 and $7.2 of this

standard.

* + * .

S4.2. Trucks and multipurpose passenger vehicles

with GVWR of 10,000 pounds or less.

S4.2.2. Trucks and multipurpose passenger vehicles,

with GVWR of 10,000 pounds or less, manufactured on or

after January 1, 1976. Fach truck and multipurpose

passenger vehicle, with a gross vehicle weight rating of

10,000 pounds or less, manufactured on or after January 1,

1976, shall meet the requirements of $4.1.2.1 or, at the

option of the manufacturer, $4.1.2.2 or §.4.1.2.3 (as

specified for passenger cars), ....

* * * *

S4.5.3 0 Automatic belts. Except as provided in

S4.5.3.1, a seat belt assembly that requires no action by

Vehicle occupants (hereinafter referred to as an “automatic

belt") may be used to meet the crash protection

a

A40 Excerpts from 49 CFR § 571.208

requirements of any option under $4 and in place of any

seat belt assembly otherwise required by that Option.

* ¥ * *

Authority: Secs. 103, 112. 114, 119, Pub. L. 59-563, 80

Stat. 718, 719, 72s: 15 U.S.C. 1392, 1401, 1403. 1407;

delegation of authority at 49 CFR 1.50, unless otherwise

noted.

Source: 36 FR 22902, Dec 2. 1971, unless Otherwise

noted.