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 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 (2018).
Nissan bears the burden of establishing the preemption
defense. See id. at 504, ¶ 8.
¶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 (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 (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
(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 (2011) (quoting Hines v. Davidowitz, 312
U.S. 52, 67 (1941)).
¶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. 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. A motorist
sued Honda under state tort law for "negligently and
defectively" designing her 1987 Honda Accord
"because it lacked a driver's side air bag."
Id. at 865. Honda argued the claim was preempted
because it conflicted with the federal objectives set forth
in FMVSS 208. Id. at 894.
¶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 (discussing
Geier, 529 U.S. at 875-81). 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, 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. 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.
¶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). 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. 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.
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
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 "[compliance 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 operation of"
implied obstacle preemption. Williamson, 562 U.S. at
329.
¶14
To determine whether Dashi's lawsuit erects an obstacle
in DOT and NHTSA's path to "the accomplishment and
execution of . . . [federal] purposes and objectives,"
id. at 330 (quoting Hines, 312 U.S. at 67),
we must first discern the purposes and objectives at issue.
We thus examine the regulatory history, text and commentary,
along with NHTSA's explanation of objectives and
"current views" on preemption. See id. at
330-36.
1.
Regulatory History And Explanations Of
Objectives
¶15
The record reveals DOT's and NHTSA's palpable and
enduring interest in the development and deployment of AEB
technologies, including FCW and CIB. NHTSA "began a
thorough examination of the state of forward-looking advanced
braking technologies" in 2010, "analyzing their
performance and identifying areas of concern or uncertainty,
in an effort to better understand their potential."
Advanced Braking Technologies That Rely on
Forward-Looking Sensors; Request for Comments, 77 Fed.
Reg. 39, 561, 39, 562 (July 3, 2012). Since then, NHTSA has
marshalled enormous amounts of data and information on AEB
systems, collaborated with stakeholders and "continue[s]
to explore test procedures and [the] effectiveness of these
systems and to refine the performance criteria that should be
used to assess these systems." Id.; FMVSS AEB,
82 Fed. Reg. at 8391-94.
¶16
By 2012, NHTSA had concluded that "these technologies
show promise for enhancing vehicle safety by helping drivers
to avoid crashes or mitigate the severity and effects of
crashes," and it "solicited comments on the results
of its research thus far to help guide its ...