from the Superior Court in Maricopa County, No.
CV2017-006583, The Honorable Kerstin G. LeMaire, Judge
Shumway Law, PLLC, Phoenix, By G. Lynn Shumway, Co-Counsel
Law Group, PLLC, Phoenix, By Brent Ghelfi, Co-Counsel for
Thomas, Phoenix, By Paul R. Lee, Thomas M. Klein, Briana
Campbell, Counsel for Defendants/Appellees
Center for Auto Safety, The Attorneys Information Exchange
Group, By Larry E. Coben, Counsel for Amici Curiae
Judge David D. Weinzweig delivered the opinion of the Court,
in which Judge Kent E. Cattani and Judge James P. Beene
The Supremacy Clause of the United States Constitution bars a
state common-law tort claim under the doctrine of implied
preemption when it presents an obstacle to the purposes and
objectives of a federal law or regulation. A federal agency
may trigger implied obstacle preemption when it refuses to
set formal equipment standards to advance a regulatory
purpose or objective. At issue here is the National Highway
Traffic Safety Administrations ("NHTSA") refusal
to set formal standards for advanced automatic braking
technologies in light vehicles, and whether that refusal
preempts Arizona common-law tort claims against Nissan for
manufacturing the 2008 Nissan Rogue without these safety
features. The superior court dismissed the lawsuit as
preempted. We affirm.
FACTS AND PROCEDURAL BACKGROUND
This products liability case stems from an April 2015 car
collision. Antea Dashi was driving her Honda Accord on a
one-way street when she missed her intended exit. Rather than
traverse side-streets to reach her destination, Dashi decided
to turn around and return to the exit against oncoming
traffic. A second vehicle stopped in the street behind Dashi
as she performed an illegal U-turn, and a third vehicle
followed behind the second vehicle, creating a backup.
Unaware of Dashis unfolding turn, the third vehicle, a 2008
Nissan Rogue, swerved around the second vehicle and crashed
into Dashis then-perpendicular
vehicle. Dashi suffered serious head injuries.
Dashi sued Nissan in the superior court, asserting state
common-law tort claims. As relevant here, she alleged the
collision would not have occurred if Nissan had equipped the
2008 Nissan Rogue with then-available automatic emergency
braking ("AEB") systems, including Forward
Collision Warning ("FCW") and Crash Imminent
Braking ("CIB"). FCW "uses information from
forward-looking sensors to determine whether or not a crash
is likely or unavoidable" and warns the driver to
"brake and/or steer to avoid a crash or minimize the
force of the crash." Federal Motor Vehicle Safety
Standards; Automatic Emergency Braking ("FMVSS
AEB"), 82 Fed.Reg. 8391, 8392 (Jan. 25, 2017). CIB
"uses information from forward-looking sensors to
automatically apply the brakes in driving situations in which
a crash is likely or unavoidable and the driver makes no
attempt to avoid the crash." Id. Dashi
asserted that Nissans failure to install this "safety
technology rendered the 2008 Nissan Rogue unreasonably
dangerous and defective."
Nissan moved for summary judgment under Arizona Rule of Civil
Procedure 56, arguing that Dashis claims are preempted under
federal law. The superior court agreed and dismissed the
lawsuit. The court found that NHTSA decided "[vehicle]
manufacturers [should have] options with regard to which
[automatic braking] safety features to adopt," which
"preempts the state court tort action based on whether
the lack of FCW and [CIB] technology renders the 2008 Nissan
Rogue as defective." This timely appeal followed. We
have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
We "review de novo issues of law relating to alleged
federal preemption of state law claims." Conklin v.
Medtronic, Inc., 245 Ariz. 501, 504, ¶ 7, 431 P.3d 571
,574 (2018). Nissan bears the burden of establishing the
preemption defense. See id. at 504, ¶ 8,
431 P.3d at 574.
Dashi argues that federal law does not preempt her state
common-law design-defect and negligence claims because her
lawsuit would not interfere with the purposes or objectives
of federal regulations. Nissan counters that Dashis claims
were properly dismissed under the doctrine of implied
preemption because her requested relief— a jury-imposed
requirement that light vehicles in Arizona, manufactured in
2008 or later, must be equipped with FCW and CIB
systems— would erect an obstacle to federal policy
A. Federal Preemption Law
Congressional intent is the touchstone of federal preemption
under the Supremacy Clause. Cipollone v. Liggett Grp.,
Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407
(1992). There is a presumption against preemption, based on
"the assumption that the historic police powers of the
States were not to be superseded ... unless that was the
clear and manifest purpose of Congress," particularly in
"a field which the States have traditionally
occupied." Wyeth v. Levine, 555 U.S. 555, 565,
129 S.Ct. 1187, 173 L.Ed.2d 51 (2009).
Preemption may be express or implied. Id. This case
is about implied conflict preemption, which has two forms:
(1) impossibility preemption and (2) obstacle preemption.
Geier v. Am. Honda Motor Co., 529 U.S. 861, 899, 120
S.Ct. 1913, 146 L.Ed.2d 914 (2000). Relevant here is the
second form, which preempts state law that "stands as an
obstacle to the accomplishment and execution of the full
purposes and objectives" of a federal law or regulation.
Williamson v. Mazda Motor of Am., Inc., 562 U.S.
323, 330, 131 S.Ct. 1131, 179 L.Ed.2d 75 (2011) (quoting
Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399,
85 L.Ed. 581 (1941)).
A federal agency may trigger implied obstacle preemption when
it refuses to adopt a specific equipment standard in
furtherance of a federal regulatory objective, thus
deliberately leaving manufacturers with equipment
alternatives. Geier, 529 U.S. at 881, 886, 120 S.Ct.
1913. At issue in Geier was the preemptive effect of
Federal Motor Vehicle Safety Standard 208 ("FMVSS
208"), where the Department of Transportation
("DOT") rejected a requirement that all vehicle
manufacturers install airbags as standard equipment, and
instead left manufacturers the ability to choose from a
diverse menu of passive restraint devices. Id.
at 874-75, 879, 120 S.Ct. 1913. A motorist sued Honda under
state tort law for "negligently and defectively"
designing her 1987 Honda Accord "because it lacked a
drivers side airbag." Id. at 865, 120 S.Ct.
1913. Honda argued the claim was preempted because it
conflicted with the federal objectives set forth in FMVSS
208. Id. at 894, 120 S.Ct. 1913.
The Court first discerned the federal purposes and objectives
at issue based on "the regulation [and] its
history," DOTs "explanation of its
objectives," and its "current views of the
regulations pre-emptive effect." Williamson,
562 U.S. at 330, 131 S.Ct. 1131 (discussing Geier,
529 U.S. at 875-81, 120 S.Ct. 1913). The regulation and DOTs
explanation of its objectives "made clear that
manufacturer choice was an important means for achieving its
basic objectives," id. at 331, 131 S.Ct. 1131,
and that DOT "deliberately sought variety" in hopes
that "a mix of several different passive restraint
systems" would lead to the "development of
alternative, cheaper, and safer passive restraint
systems" and would "lower costs, overcome technical
safety problems, encourage technological development, and win
widespread consumer acceptance," Geier, 529
U.S. at 875, 878-79, 120 S.Ct. 1913. The Court also heard
from DOT, which argued in favor of preemption, informing the
Court that FMVSS 208 "embodies the [DOT] Secretarys
policy judgment that safety would best be promoted if
manufacturers installed alternative protection
systems in their fleets rather than one particular system in
every car." Id. at 881, 120 S.Ct. 1913.
In the end, the Court held that the state tort claims were
preempted because they stood " as an obstacle to the
accomplishment and execution of the important means-related
federal objectives" in FMVSS 208. Id. (quoting
Hines, 312 U.S. at 67, 61 S.Ct. 399). The Court
determined that FMVSS 208 reflected "significant
considerations," including DOTs policy judgment that
"safety would best be promoted if manufacturers"
had a "variety and mix" of alternative restraint
mechanisms, including airbags, seatbelts and interlock
devices. Id. at 876-78, 881, 120 S.Ct. 1913. And the
state tort claim at issue would have created "a rule of
state tort law imposing" a duty on all car manufacturers
"to install airbags rather than other passive restraint
systems, such as automatic belts or passive interiors."
Id. at 881, 120 S.Ct. 1913.
B. DOT And NHTSA
Nissan contends NHTSAs denial of rulemaking for AEB
standards likewise preempts Dashis tort claim here. Congress
authorized DOT to "prescribe motor vehicle safety
standards" and "carry out needed safety research
and development" under the National Traffic and Motor
Vehicle Safety Act of 1966 ("Safety Act"), Pub.
L. No. 89-563, 80 Stat. 718 (1966) (recodified as
amended at 49 U.S.C. § 30101 et seq. ). DOT has
delegated these duties to NHTSA. 49 C.F.R. § 1.95(a). NHTSAs
regulatory mission is to "[s]ave lives, prevent
injuries, and reduce economic costs due to road traffic
crashes, through education, research, safety standards and
enforcement activity." NHTSAs Core Values,
National Highway Traffic Safety Administration,
www.nhtsa.gov/about-nhtsa/nhtsas-core-values (last visited
June 11, 2019).
The Safety Act contains dueling guidance on the issue of
preemption. An express preemption clause directs that "a
State may prescribe or continue in effect a standard
applicable to the same aspect of performance of a motor
vehicle or motor vehicle equipment only if the standard is
identical to the standard prescribed under this
chapter," 49 U.S.C. § 30103(b)(1), while a saving clause
states that "[c]ompliance with" a federal safety
standard "does not exempt a person from any liability at
common law," 49 U.S.C. § 30103(e). The Supreme Court has
concluded, however, that "the saving clause does not
foreclose or limit the ...