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From Products Liability Law Daily, May 6, 2013

Federal Motor Vehicle Standards Did Not Preempt Strict Liability and Negligence Claims Alleging Defects in Bus’s Seat Belts and Windows

By Pamela C. Maloney, J.D.

Federal motor vehicle safety standards (FMVSS) regulating seatbelts and window glazing materials did not implicitly preempt strict liability and negligence claims brought against a shuttle bus manufacturer by a passenger who sustained a severe brain injury when a concrete truck collided with the shuttle bus in which he was riding, the Tennessee Supreme Court ruled, reversing the court of appeals decision in this matter (Lake v. The Memphis Landsmen, LLC, May 3, 2013, Wade, G.). The state supreme court also determined that the evidence was sufficient to establish causation on the passenger’s claim that the use of perimeter seating rather than forward-facing rows in the shuttle bus rendered the bus defective and unreasonably dangerous.

Background. The passenger and his wife contended that the bus was unsafe because it was not equipped with passenger seatbelts, because it had side windows made of tempered glass rather than laminated glass, and because it provided perimeter seating instead of forward-facing rows. The manufacturer of the bus, The Memphis Landsmen, LLC, argued that FMVSS 205 (occupant crash protection) and 208 (glazing materials for use in motor vehicles) preempted state law claims based on the lack of passenger seatbelts and the material used in the window glass. The manufacturer also claimed that it should have been granted a directed verdict on the perimeter-seating claim because the evidence was insufficient to establish causation.

Preemption under FMVSS 208. Although the original version of FMVSS 208 required either a complete protection system or a belt system for all buses manufactured on or after January 1, 1972, this requirement applied only to the driver, not to passengers. A proposed new standard that would have required seatbelts for all seating positions in all buses was withdrawn by the agency, which opted in favor of requiring passenger seatbelts for school buses only. During consideration of a subsequent proposal to amend the standard, the National Highway Traffic Safety Administration (NHTSA) specifically exempted from consideration large buses such as the one involved in this case. A review of the regulatory history of FMVSS 208 indicated that NHTSA’s decision to exclude large buses from the standard’s coverage was based on the inherent differences between large buses and other types of vehicles covered by the standard; it did not reflect any determination that passenger seatbelts would be unsafe in large buses or the need to preserve manufacturers’ choice to opt for other comparable safety measures. Instead, it demonstrated a determination by NHTSA that the relevant data—including costs and potential safety benefits—did not warrant a passenger seatbelt requirement for large buses. However, the agency did not take the “further” step of deciding that, as a matter of policy,” states should not be permitted to impose a passenger seatbelt requirement. Furthermore, NHTSA’s own view of the preemptive effect of FMVSS 208 “counseled” against preemption, as did a statement in a U.S. Supreme Court brief written by the U.S. Solicitor General to the effect that the agency’s decision not to implement a safety requirement because of cost or feasibility was insufficient to trigger federal preemption. The regulatory history, NHTSA’s explanation of its objectives in setting the standards, and the agency’s own views on the preemptive effect of FMVSS 208 compelled the court to conclude that the standard did not preempt the passenger’s claims premised on the lack of passenger seatbelts.

Preemption under FMVSS 205. The court noted that the preemptive effect of FMVSS 205 was more difficult to ascertain. FMVSS 205 offers motor vehicle manufacturers a choice regarding which type of glass to use in side windows. The manufacturer argued that to limit this choice by requiring laminated glass would frustrate the standard’s stated purpose of reducing injuries from impact to glazing surfaces in light of the increased probability of neck injury from impacts with laminated glass. In response, the passenger argued that any safety tradeoff between minimizing ejection risk and minimizing neck injuries did not amount to a significant regulatory objective or purposes and therefore, federal preemption was not implicated. Upon review of court decisions that have considered this issue and taking into account the regulatory history of the version of FMVSS in effect in 1995 when the bus was manufactured, the court found that there was no indication that the primary concern raised by the manufacturer—the increased risk of impact neck injuries associated with laminated glass—motivated NHTSA’s decision to give manufacturers the option of installing side windows made of tempered glass rather than requiring laminated glass. Moreover, the court explained that while one of the objectives of FMVSS 205 is “to reduce injuries resulting from impact to glazing surfaces,” as several courts and NHTSA have noted, the increased risk of impact neck injury associated with laminated glass applies primarily to belted occupants.” Therefore, in considering both the regulatory history and agency statements made regarding the preemptive effect of FMVSS 205, which were similar to those made regarding FMVSS 208, the court concluded that the passenger’s claims based on the use of tempered rather than laminated glass were not preempted.

Causation. In addition to arguing that the passenger’s claims were preempted, the manufacturer argued that there was no evidence that the passenger had been seated at the time of the accident and, therefore, the manufacturer’s motion for summary judgment should have been granted. The direct and circumstantial evidence presented at trial demonstrated that the passenger was one of two people on the shuttle bus at the time of the collision. Thus, neither passenger was forced to stand because of a lack of available seating. The evidence also showed that the bus was traveling a distance of over two miles from the airport to the rental car facility, and a significant portion of the route consisted of large, busy roads with a speed limit of 50 miles per hour. The passenger was familiar with the route, as he had taken it several times during his frequent business trips to Memphis. Although the passenger’s accident reconstruction expert conceded that he was not present during the accident and had no first-hand information regarding the passenger’s position, his testimony indicated that the passenger’s ejection from one of the passenger side windows of the bus was consistent with his being seated in one of the inward-facing seats on the driver side at the time of the collision. From this evidence, a reasonable juror, drawing upon his or her common sense and life experiences, could have inferred that the passenger had opted to sit in one of the many available seats on the shuttle bus during the trip to the rental car facility, and was sufficient to overcome the manufacturer’s motion for a directed verdict. The manufacturer also challenged the expert’s conclusion, arguing that it was based on statements made by the other passenger on the bus, and as such was inadmissible hearsay. The court rejected the manufacturer’s argument finding that the expert was entitled to rely upon witness statements in developing his opinion and that the expert had relied on other evidence at his disposal in forming his opinion.

The case number is: W2011-00660-SC-R11-CV.

Attorneys: Gary K. Smith and C. Philip M. Campbell for the Lakes; Kenneth R. Rudstrom (Spicer Rudstrom PLLC) and James E. Singer (Bovis, Kyle, Burch & Medlin, LLC) for The Memphis Landsmen, LLC; Molly A. Glover, Steve N. Snyder (Leitner, Williams, Dooley & Napolitan, PLLC), and Eric J. Llewellyn, for Metrotrans Corp.; and James Branson Summers (Allen, Summers, Simpson, Lillie & Gresham, PLLC) for Budget Rent A Car Systems, Inc.

Companies: The Memphis Landsmen, LLC; Metrotrans Corp.; Budget Rent A Car Systems, Inc.

MainStory: TopStory PreemptionNews MotorEquipmentNews MotorVehiclesNews TennesseeNews

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