Dashi v. Nissan North America, Inc.

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          Appeal 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 for Plaintiff/Appellant

          Ghelfi Law Group, PLLC, Phoenix, By Brent Ghelfi, Co-Counsel for Plaintiff/Appellant

         Klein Thomas, Phoenix, By Paul R. Lee, Thomas M. Klein, Briana Campbell, Counsel for Defendants/Appellees

          The Center for Auto Safety, The Attorneys Information Exchange Group, By Larry E. Coben, Counsel for Amici Curiae

         Presiding Judge David D. Weinzweig delivered the opinion of the Court, in which Judge Kent E. Cattani and Judge James P. Beene joined.

          OPINION

         WEINZWEIG, Judge:

         [¶1] 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 Administration’s ("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

         [¶2] 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 Dashi’s unfolding turn, the third vehicle, a 2008 Nissan Rogue, swerved around the second vehicle and crashed into Dashi’s then-perpendicular

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vehicle. Dashi suffered serious head injuries.

         [¶3] 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."^[1] Id. Dashi asserted that Nissan’s failure to install this "safety technology rendered the 2008 Nissan Rogue unreasonably dangerous and defective."

         [¶4] Nissan moved for summary judgment under Arizona Rule of Civil Procedure 56, arguing that Dashi’s 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).

          DISCUSSION

         [¶5] 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.

         [¶6] 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 Dashi’s 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 objectives.^[2]

          A. Federal Preemption Law

         [¶7] 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).

         [¶8] 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)).

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         [¶9] 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.^[3] 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 driver’s 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.

         [¶10] The Court first discerned the federal purposes and objectives at issue based on "the regulation [and] its history," DOT’s "explanation of its objectives," and its "current views of the regulation’s 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 DOT’s 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] Secretary’s 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.

         [¶11] 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 DOT’s 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

         [¶12] Nissan contends NHTSA’s denial of rulemaking for AEB standards likewise preempts Dashi’s 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). NHTSA’s 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." NHTSA’s Core Values, National Highway Traffic Safety Administration, www.nhtsa.gov/about-nhtsa/nhtsas-core-values (last visited June 11, 2019).

         [¶13] 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

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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 ...