Part 2: A Regulatory Basis for the Implied Preemption of State-Law Design-Defect Claims

As discussed in Part 1 of this article, the National Highway Traffic Safety Administration (NHTSA) has issued an Advance Notice of Proposed Rulemaking (ANPR) announcing the agency's consideration of a policy that would encourage diversity in autonomous-vehicle design. If adopted, that policy will foster the development and deployment of autonomous vehicles by helping insulate manufacturers from state-law design-defects claims.

The key to understanding the significance of NHTSA's ANPR is Geier v. American Honda Motor Co., 529 U.S. 861 (2000), the Supreme Court's seminal decision on preemption of common-law design-defect claims in the automotive context. In Geier, the plaintiff was injured in a collision despite wearing shoulder and lap belts. The plaintiff asserted state-law designdefect claims, contending that the car she was driving should have been equipped with airbags. The Supreme Court affirmed the dismissal of the plaintiff's claims, holding that they were preempted by federal law notwithstanding the savings clause codified at 49 U.S.C. § 30103(e).

When the car driven by the plaintiff was manufactured in 1987, a federal motor vehicle safety standard, FMVSS 208, required that cars be equipped with passive restraints, but did not specify the type of passive restraint to be used. Thus, FMVSS 208 gave manufacturers unfettered discretion to choose between airbags, automatic seatbelts, and other passive-restraint technologies that satisfied the performance standard embodied in the regulation.

The Court began its analysis by rejecting the contention that 49 U.S.C. § 30103(b)(1) expressly preempted the plaintiff's claims. The Court held that although FMVSS 208 established a federal safety standard applicable to passive restraints, although a tort duty could constitute a state-law ''standard,'' although FMVSS 208 allowed manufacturers to decide which type of passive restraint to install, and although a state-law requirement to install airbags in particular was not ''identical to the standard prescribed'' by FMVSS 208, a state-law tort duty to install airbags was not expressly preempted by § 30103(b)(1). This was so, the Court explained, because 49 U.S.C. § 30103(e) specifically saved common-law claims from preemption. If § 30103(b)(1) were interpreted to preempt tort duties, then § 30103(e) would rendered be a nullity.

That, however, was not the end of the Court's preemption analysis. The Court explained that the savings clause codified in § 30103(e) ''does not bar the ordinary working of conflict pre-emption principles.''' Geier, 529 U.S. at 869. Thus, although the plaintiff's design-defect claims were not expressly preempted, they nonetheless would be impliedly preempted if they were ''an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'' Crosby, 530 U.S. at 372.

Upon examining the history of FMVSS 208, the Court concluded that allowing private plaintiffs to use state tort law to compel the installation of air bags would indeed have thwarted Congress's goals as articulated by NHTSA when exercising its congressionally delegated authority ''to prescribe motor vehicle safety standards.'' 49 U.S.C. § 30101. The Court found that FMVSS 208 reflected the agency's determination ''that safety would best be promoted if manufacturers installed alternative protection systems in their fleets rather than one particular system in every car.'' Geier, 529 U.S. at 881. The preamble published in the Federal Register upon adoption of FMVSS 208 stated NHTSA's belief that technological diversity would not only ''promote public acceptance'' of passive restraints, but ''would help develop data on comparative

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