December 2007

From the editors of Wolters Kluwer Law & Business, this update describes important developments from CCH products liability and safety publications.

If you have any comments or suggestions concerning the information provided or the format used, we'd like to hear from you. Please send your comments to pamela.maloney@wolterskluwer.

Fifth Circuit Upholds Preemptive Effect of FMVSS No. 208 . . .
A state law design defect claim concerning a vehicle manufacturer's decision not to include a shoulder belt in a vehicle's center rear seat position was preempted by Federal Motor Vehicle Safety Standard (FMVSS) No. 208, which specifically allowed manufacturers to include a lap-only belt, according to the U.S. Court of Appeals for the Fifth Circuit. The design defect claim was brought by the parents of a child who died in a vehicle accident while he was seated in the vehicle's center rear seat. The parents alleged that the vehicle's lack of a shoulder belt and the lap belt's lack of a retractor constituted design defects. Although the parents argued that FMVSS No. 208 only set a minimum standard regarding the vehicle's restraint system, the appeals court determined that a review of the rulemaking history of FMVSS No. 208 revealed that the federal government decided on a specific policy that balanced the technical challenges of engineering a shoulder belt for the rear center seat position with the lower risk associated with the seat's low occupancy rate. Although the court acknowledged that claims involving a particularly unique vehicle design might not be subject to preemption if the vehicle's overall design foreclosed some of the safety options detailed in FMVSS No. 208, it found that the parents had failed to establish that their 1999 Pontiac Grand Am was sufficiently unique. Lastly, the court held that the preemption of the parent's design defect claim undermined the basis for their failure-to-warn claim, finding that the preemption of the parent's claim established that there was no defect and, therefore, there was no risk that would have required a warning (Carden v. General Motors Corp., 5th Cir.; CCH Products Liability Reporter, No. 1149, December 26, 2007, ¶17,882).

. . . but Rejects Preemption Concerning FMVSS No. 205
Common law negligence and strict liability claims involving a motor vehicle side window and its failure to prevent the ejection of a passenger during a rollover were not preempted by federal standards relating to window glazing, according to the Fifth Circuit. The parents of child who was ejected through the passenger side window of their 2004 Chevrolet Tahoe during a rollover brought a lawsuit against the vehicle's manufacturer, alleging that the side window was defectively designed, manufactured, and marketed. The parents asserted that the use of tempered glass in the side windows was unreasonably dangerous and that the use of advanced glazing would have decreased the likelihood of passenger ejection. The trial court granted summary judgment in favor of the manufacturer, holding that the manufacturer's compliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 205, "Glazing materials" preempted the parents state-law claims. The appeals court found, however, that FMVSS 205 was distinguishable from other FMVSSs that had been found to preempt state-law claims. Although the court acknowledged that a FMVSS mandating a specific design choice or a specific set of design options would preempt conflicting state law, the court determined that FMVSS 205, which only barred the use of tempered glass in a vehicle's windshield, established a minimum standard. The court noted that statements by the National Highway Traffic Safety Administration, indicated that recent changes to FMVSS 205 in which it incorporated by reference the industry standard articulated in ANSI/SAE Z26.1-1996 was an attempt to increase the usefulness and clarity of the federal standard by deleting the federal standard's previous text. Further, the court found that there was no language in the Glazing Materials Final Rule commentary indicating that the agency intended to preserve the option of using tempered glass in side windows, or that preserving this option would serve the safety goals of FMVSS 205. The court concluded that FMVSS 205 established a minimum standard and that state-law claims arguing that more advanced window glazing should have been incorporated into a vehicle's design were not preempted (O'Hara v. General Motors Corp., 5th Cir.; CCH Consumer Product Safety Guide, Report No. 904, December 6, 2007, ¶75,754 (ip access user) and CCH Products Liability Reporter, Report No. 1148, December 12, 2007, ¶17,872 (ip access user)).

Conflict-of-Law Analysis Clarified by Illinois Supreme Court
The Illinois Supreme Court vacated the decisions of two lower courts that Illinois law applied to a Michigan mother's design defect claim arising out of an accident that occurred in Michigan. The mother's minor child required the amputation of one of his legs after he was run over by a riding lawn mower which was being operated by his grandfather. The accident occurred when the grandfather got stuck and failed to see the child before reversing the lawn mower--something the mother argued would not have occurred if the lawn mower had been equipped with a feature to prevent the mower's blades from engaging when operated in reverse. The manufacturer argued that although it was headquartered in Illinois, Michigan law should apply to the mother's claim because the mother was a Michigan resident and the injury occurred in Michigan. On interlocutory appeal, the appellate court held that Illinois' interest was greater and that its law should apply. The Illinois Supreme Court acknowledged extensive differences in products liability law between the two jurisdictions, including the Michigan's refusal to recognize strict liability, Michigan's cap on compensatory damages, and the greater availability of punitive damages in Illinois. In determining the correct conflict-of-law analysis, the court reiterated its adoption of Restatement (Second) of Conflict of Laws and its accompanying presumption based on the location where an injury occurred. Although this presumption weighed in favor of the application of Michigan law, the court stressed that testing the presumption against the interests of Illinois by weighing each of the four factors recognized in the Restatement was essential. In the mother’s case, the court determined that the factors further supported the presumption toward the application of Michigan law (Townsend v. Sears, Roebuck and Co., Ill. S.Ct.; CCH Products Liability Reporter, Report No. 1149, December 26, 2007, ¶17,880 (ip access user)).

SUV Manufacturer Not Liable for Backover Fatality
A jury instruction regarding the applicability of a federal motor vehicle safety standard was proper because the standard addressed the product risk at issue, according to the U.S. Court of Appeals for the Fifth Circuit. The parents of a child who was fatally injured when the driver of a large sport utility vehicle (SUV) backed over the child in a parking lot objected to a jury instruction that the manufacturer of the SUV was entitled to a rebuttable presumption that it was not liable if the vehicle complied with Federal Motor Vehicle Safety Standard No. 111, "Rearview mirrors." The parents brought a design defect claim against the SUV's manufacturer, alleging that the SUV was defective for lack of a reverse sensing system that would have detected the presence of an object or, in this case a small child, in the blind spot behind the vehicle when driven in reverse. Because the safety standard for rearview mirrors did not govern the rear sensing device with which the SUV should have been equipped, the parents argued, the jury should not have been instructed to rebuttably presume the SUV was not defective. The court found that the product risk addressed by the safety standard for rearview mirrors was the same risk that caused the harm on which the parents' claim was based, specifically, the risk of injury or death occurring from an obstructed view to the rear of the vehicle. Accordingly, that risk would be governed only by the requirements of the standard, the court ruled. The parents also argued, in the alternative, that even if the standard was applicable, the presumption once rebutted should not be conveyed to the jury. The court distinguished two types of presumption, one that shifts only the burden of production and disappears from the case upon introduction of evidence sufficient to support a finding contrary to the presumption, and another that shifts the burden of persuasion and does not disappear from the case. Because the court found no clear or obvious indication that the former presumption applied here, and because the parents failed to preserve an objection on the issue, the court refused to find error (Wright v. Ford Motor Co., 5th Cir.; CCH Consumer Product Safety Guide, December 6, 2007; ¶75,753 (ip access user) and CCH Products Liability Reporter, Report No. 1148, December 12, 2007, ¶17,873 (ip access user)).

NHTSA Rewrites Standard for Lights, Reflective Devices
Federal Motor Vehicle Safety Standard No. 108, “Lamps, reflective devices, and associated equipment,” was reorganized by NHTSA to provide a more logical presentation of regulatory requirements and to incorporate directly into the standard applicable provisions of third-party requirements that previously were incorporated only by reference. No new substantive requirements for manufacturers were added. The final rule also amended the standard for replaceable light source information by adding a new Appendix C, to house information concerning sealed beam headlamps previously included in FMVSS No. 108 and a Society of Automotive Engineers standard. The final rule will be effective September 1, 2008, with voluntary compliance permitted beginning December 4, 2007 (CCH Consumer Product Safety Guide, Report No. 905, December 19, 2007, ¶41,972 (ip access user)).

Final Rule Addresses Motor Home, RV Trailer Overloading
Manufacturers of motor homes and recreation vehicle trailers must provide consumers with information on a label regarding the vehicle's load carrying capacity under a final rule adopted by NHTSA. The required information is intended to help consumers make purchasing decisions and to use the vehicles. The final rule also requires the tires on motor homes and recreation vehicle trailers to be the same size as the tires listed on the tire information label. Under the final rule, prior to the first sale to a retail consumer, any party who adds weight to a completed vehicle exceeding the lesser of 100 pounds or 1.5 percent of the vehicle's gross vehicle weight rating, must disclose the additional weight on labels affixed to the vehicles, but lesser amounts of weight may be added without changing or adding labels. According to NHTSA, the final rule complements efforts of the recreation vehicle industry to reduce the overloading of motor homes and recreation vehicle trailers by properly informing consumers. The effective date for the final rule is June 2, 2008, with voluntary compliance permitted as of December 4, 2007 (CCH Consumer Product Safety Guide, Report No. 905, December 19, 2007, ¶41,973 (ip access user)).