DocketNumber: No. 1 CA-CV 18-0389
Citation Numbers: 445 P.3d 13, 247 Ariz. 56
Judges: Weinzweig
Filed Date: 6/13/2019
Status: Precedential
Modified Date: 7/19/2022
¶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 *15vehicle. 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"),
¶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. ,
¶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.
A. Federal Preemption Law
¶7 Congressional intent is the touchstone of federal preemption under the Supremacy Clause. Cipollone v. Liggett Grp., Inc. ,
¶8 Preemption may be express or implied.
*16¶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 ,
¶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 ,
¶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.
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,
¶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 *17applicable 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,"
¶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,"
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 ,
¶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 continued efforts in this area." FMVSS AEB,
¶17 In recent years, NHTSA has used a diverse regulatory arsenal and assorted non-rulemaking tools to advance and achieve its AEB-related objectives, including to "improve vehicle safety" and "incentivize the installation of [AEB] technologies in a way that allows for continued innovation and technological advancement," while remaining "more responsive to safety issues and more proactive about preventing them."
¶18 NHTSA has "encouraged" and "incentivize[d]" light-vehicle manufacturers to install AEB technologies and has secured commitments from nearly all light-vehicle manufacturers, "representing more than 99 percent of light motor vehicle sales in the United States," to "voluntarily install[ ] forward crash warning and crash imminent braking" in their vehicles.
¶19 NHTSA has frequently issued "guidance documents to promote the development and adoption of safer designs of evolving, complex electronic vehicle safety systems."
¶20 And beginning in 2011, NHTSA incorporated AEB technologies into the New Car Assessment Program ("NCAP"), a federal government program that tests and scores all new vehicles on safety criteria and publishes the information for consumers.
¶21 Then in 2015, NHTSA announced it would explore and pursue formal AEB requirements for large commercial vehicles, granting a petition for rulemaking to "establish a safety standard to require automatic forward collision avoidance and mitigation systems on certain heavy vehicles." Federal Motor Vehicle Safety Standard; Automatic Emergency Braking ,
2. The Decision Not To Set Formal AEB Standards
¶22 Nissan's preemption argument emphasizes NHTSA's January 2017 refusal to set formal AEB standards for light-vehicle manufacturers. See FMVSS AEB,
¶23 A year later, NHTSA and DOT denied the petition, refusing to "begin a rulemaking proceeding to mandate that all light vehicles be equipped with three types of automatic emergency braking (AEB) technologies." FMVSS AEB,
¶24 NHTSA made plain that its refusal to cement AEB standards did not signify a lack of interest. Just the opposite. NHTSA offered a full-throated endorsement of AEB technologies, touting their "important safety benefits" and life-saving "promise" to "prevent human choice or error from causing crashes," and describing them as "vital to automated vehicles."
¶25 Even so, NHTSA concluded that formal rulemaking was not flexible or responsive enough to achieve NHTSA's objectives.
3. Current Views On Preemption
¶26 Our final source is DOT's and NHTSA's express views on implied preemption. We do not have the benefit of an express agency position on this issue, but can glean their positions from the record and their amicus curiae briefs in Williamson .
Federal Automated Vehicle Policies
¶27 In recent federal policy documents on automated vehicles, DOT and NHTSA have delineated a "clear" division of state and federal roles for motor vehicle regulation, including in September 2016, when they stated that "DOT and the Federal Government are responsible for regulating motor vehicles and motor vehicle equipment, and States are responsible for regulating the human driver and most other aspects of motor vehicle operation." U.S. Department of Transportation & National Highway Traffic Safety Administration, Federal Automated Vehicles Policy: Accelerating the Next Revolution in Roadway Safety ("2016 Automated *19Vehicles Policy "), at 38 (Sept. 2016). DOT "strongly encourage[d] States to allow DOT alone to regulate" the safety design and performance aspects of automated driving systems technology. Id. at 37. As relevant here, DOT said: "The Supreme Court has also found that State laws may be preempted if they stand as an obstacle to the accomplishment and execution of a NHTSA safety standard," even citing Geier in support. Id . at 38.
¶28 DOT reiterated this position in September 2017, drawing a bright line between the role of state and federal governments in regulating automated driving systems. "NHTSA remains responsible for regulating the safety design and performance aspects of motor vehicles and motor vehicle equipment; States continue to be responsible for regulating the human driver and vehicle operations." U.S. Department of Transportation & National Highway Traffic Safety Administration, Automated Driving Systems 2.0: A Vision for Safety ("Automated Driving Systems 2.0 "), at ii (Sept. 2017).
¶29 DOT responded to concerns raised by state governments that sought confirmation of NHTSA's authority and "reassurance that the Federal Government has tools to keep their roadways safe." Id. at 3. DOT emphasized that "NHTSA has broad enforcement authority to address existing and new automotive technologies and equipment," and the "enforcement authority concerning safety-related defects in motor vehicles and motor vehicle equipment extends and applies equally to current and emerging [automated driving systems]." Id. DOT reminded the public that NHTSA is "commanded by Congress to protect the safety of the driving public against unreasonable risks of harm that may arise because of the design, construction, or performance of a motor vehicle or motor vehicle equipment, and to mitigate risks of harm, including risks that may arise in connection with [automated driving systems]." Id.
¶30 DOT confirmed the 2016 and 2017 guidance in October 2018, restating that NHTSA has "broad authority over the safety of ... automated vehicle technologies equipped in motor vehicles," while advising that its authority extends to "establish[ing] Federal safety standards for new motor vehicles introduced into interstate commerce in the United States, and to address[ing] safety defects determined to exist in motor vehicles or motor vehicle equipment used in the United States." U.S. Department of Transportation, Preparing for the Future of Transportation: Automated Vehicles 3.0 ("Automated Vehicles 3.0 "), at 6 (Oct. 2018). And DOT again cited Geier , explaining that compliance with federal safety standards will not protect manufacturers from "tort liability for harm caused by negligent conduct," but "[t]he Federal standard would supersede if the effect of a State law tort claim would be to impose a performance standard on a motor vehicle or equipment manufacturer that is inconsistent with the Federal standard." Id.
¶31 Meanwhile, DOT warned that "[c]onflicting State and local laws and regulations surrounding automated vehicles [can] create confusion, introduce barriers, and present compliance challenges," id. at v, and acknowledged that NHTSA's equipment safety standards are "likely to raise questions about preemption and the future complementary mix of Federal, State and local powers," id. at 6. DOT described a balancing approach to these issues. "The Department will carefully consider these jurisdictional questions as NHTSA develops its regulatory approach to [automated driving system] and other automated vehicle technologies so as to strike the appropriate balance between the Federal Government's use of its authorities to regulate the safe design and operational performance of an [automated driving system]-equipped vehicle and the State and local authorities' use of their traditional powers." Id.
¶32 Dashi argues that the guidance documents only address "highly automated vehicles," such as "a Tesla," and are "irrelevant" to AEB systems, which she describes as the "lowest level" of automated technology.
DOT And NHTSA Amicus Briefs
¶33 Also instructive are DOT and NHTSA's amicus curiae briefs on the obstacle preemption issue in Williamson v. Mazda Motor of America, Inc. ,
C. Discerning The Federal Purposes And Objectives
¶34 The record shows that DOT and NHTSA are intensely interested in AEB technologies, having announced and pursued research and important regulatory objectives to encourage and expedite the innovation and deployment of safe and effective AEB systems.
¶35 We are persuaded by NHTSA's own words and commentary, its deliberate actions and accomplishments, its historical and current focus, and its informed refusal to set formal AEB standards at this moment. NHTSA has deliberately crafted and carefully calibrated a framework to achieve its objectives, using various non-rulemaking tools to achieve real success. NHTSA has pursued extensive negotiations with all light-vehicle manufacturers, issued formal guidance and worked to educate consumers about the importance of AEB systems. These calculated and meaningful efforts of federal regulators confirm NHTSA's longstanding, apparent interest in AEB technologies, and represent tangible proof of its overt, concrete goals to expand the universe of AEB-equipped vehicles and maximize the effectiveness of the life-saving technologies.
¶36 We construe NHTSA's refusal to set formal AEB standards as part and parcel of this regulatory approach, reflecting (1) its effort to balance the potential benefits and pitfalls associated with rapidly improving technologies, and (2) its conclusion that safety benefits will arise if manufacturers install alternative AEB systems rather than a singular system for all vehicles. See Hurley v. Motor Coach Indus., Inc. ,
*21As in Geier , NHTSA's decision reflects a thoughtful conclusion that "manufacturer choice [is] an important means for achieving its basic objectives," and will lead to the development of "alternative, cheaper, and safer" AEB systems. Williamson ,
¶37 NHTSA expressly links its refusal to set formal AEB standards to safety concerns, which is important for preemption purposes. NHTSA states that its "non-rulemaking tools" are "help[ing] [it] accomplish two goals," including "to make sure that new technologies are developed and deployed safely," and "to leave room for flexibility and safety innovations." FMVSS AEB,
¶38 We are also persuaded by NHTSA's decision to move forward and set formal AEB standards for large commercial vehicles. At a minimum, it shows the federal government will cement formal AEB standards when it deems appropriate, based on its expertise and considered judgment.
¶39 Last, DOT and NHTSA have stressed their "broad enforcement authority to address existing and new automotive technologies and equipment," 2016 Automated Vehicles Policy at 46, and emphasized preemption principles in recent guidance on automated vehicles and automated technologies, including AEB systems, even citing Geier . They have reminded the states that Congress "commanded [NHTSA] to protect the safety of the driving public against unreasonable risks of harm that may occur because of the design, construction, or performance of a motor vehicle or motor vehicle equipment."
D. Dashi's Common-Law Tort Claims Are Preempted
¶40 Turning to Dashi's tort claims, we must decide whether they would represent an obstacle to NHTSA's achievement of a significant regulatory objective. We conclude they would.
¶41 NHTSA has concluded there is room for improvement in automatic emergency braking system technologies before the federal government settles on a definitive formal standard. NHTSA declined to adopt formal AEB standards because it determined that driver safety-its core mission-is best served if NHTSA has regulatory space to use non-rulemaking tools rather than prematurely cement a definitive AEB standard, and manufacturers have regulatory space to choose between alternative AEB systems.
¶42 If successful, Dashi's design-defect and negligence claims would impose a duty on manufacturers whose vehicles drive in or through Arizona to install FCW and CIB systems or face liability from Arizona juries for making and peddling uncrashworthy vehicles. Dashi's claims would frustrate NHTSA's federal regulatory objectives by thrusting a jury-imposed AEB standard on Nissan inside Arizona's borders. The claims would disrupt NHTSA's careful balance, diminish its non-traditional efforts, compromise its ultimate safety goals, muzzle innovation and competition in this evolving space, and strip the federal government of leverage in NHTSA's ongoing negotiation efforts. Cf. Crosby v. Nat'l Foreign Trade Council ,
¶43 Moreover, an Arizona-specific AEB standard might spawn a patchwork quilt of liability exposure, where a single AEB-unequipped vehicle on an interstate road-trip oscillates between crashworthy and possibly uncrashworthy as it navigates from one state to the next. As a practical matter, then, all manufacturers would immediately need to install FCW and CIB systems in their light vehicles.
¶44 At a minimum, the proliferation of state-specific AEB tort standards would pressure NHTSA to act, forcing its hand to pick a dispositive AEB standard before it is prepared to do so. Dashi's state tort claims are preempted.
E. Dashi's Counterarguments
¶45 Dashi asserts several arguments to defeat implied preemption. We examine each in turn.
1. Geier Applies Here
¶46 Dashi first argues Geier "does not apply here" because it involved nascent technology while, by contrast, AEB technologies were technologically "mature" in the mid-90's and presumably had no room for innovation. But the record provides otherwise. To begin, in refusing to set formal AEB standards, NHTSA described AEB equipment as a "technologically dynamic area," using the word "innovation" four separate times. Indeed, NHTSA refused to cement a singular standard at this moment because the technology continues to evolve, and it feared "inadvertently stymieing innovation and stalling the development and introduction of successively better versions of these technologies." FMVSS AEB,
¶47 Dashi also contends that Geier is "distinctly different" because it involved "an actual rule, as required by the Act," rather than a denial of rulemaking. But implied conflict preemption turns on NHTSA's policy objectives, whether articulated in guidance documents or formal legislation. See Williamson ,
¶48 Dashi's argument also misconstrues a denial of rulemaking petition as inconsequential, but these denials are reviewable in federal court, Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin. ,
¶49 In sum, we reject the argument that informal efforts short of federal statutes or formal regulations are not enough to trigger obstacle preemption. Preemption is appropriate to ensure NHTSA can continue its flexible and responsive approach regarding AEB technologies without interference from state law tort actions.
2. Neither Sprietsma Nor Williamson Defeat Preemption
¶50 Dashi next argues that preemption does not apply here under Sprietsma v. Mercury Marine ,
¶51 Sprietsma harms rather than helps Dashi's cause. It confirms that implied obstacle preemption turns on deliberate federal *23inaction, and instructs the courts to focus on why a federal agency decided not to constrain the choices of manufacturers. The plaintiff sued a boat manufacturer in state court for failing to install propeller guards, and the manufacturer moved to dismiss under implied obstacle preemption because the U.S. Coast Guard had decided not to regulate propeller guards, leaving the manufacturers to choose design options for themselves. Sprietsma ,
¶52 Most important, the Sprietsma Court recognized the "sharp contrast" to Geier , where NHTSA's refusal to regulate was driven by a "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."
¶53 So too here. NHTSA has abjured formal AEB standards at this time because it is convinced the technology is a game-changer for vehicle safety and wants to ensure that manufacturers have the breathing room to innovate until they get it right.
¶54 The same is true under Williamson , which only confirms that implied obstacle preemption requires a link between the federal "regulatory objective and the need for manufacturer choice to achieve that objective." Williamson ,
¶55 At the same time, the Williamson Court reaffirmed Geier and distinguished between NHTSA's regulatory actions in Williamson and Geier .
¶56 NHTSA's actions in connection with AEB technology bear no resemblance to its *24actions in Williamson . NHTSA did not set a minimum AEB standard; indeed, it refused to set any AEB standard. And manufacturers continue to have AEB choices because NHTSA determined that preservation of such choice represented the safest course forward "to make sure that new technologies are developed and deployed safely," and "to leave room for flexibility and safety innovation." FMVSS AEB,
3. Dashi's Remaining Arguments Are Not Persuasive
¶57 Dashi argues that preemption is inappropriate because it would create "complete immunity from design defect liability to an entire industry," citing Medtronic, Inc. v. Lohr ,
¶58 And last, Dashi contends that "state regulatory action can only be preemptive if NHTSA has promulgated a standard 'applicable to the same aspect of performance.' " But this language is pulled from the Safety Act's express preemption clause, which is not at issue here, and the Supreme Court has held that "the saving clause does not foreclose or limit the operation of" implied obstacle preemption. Williamson ,
CONCLUSION
¶59 We affirm summary judgment for Nissan based on the doctrine of implied obstacle preemption.
Dashi refers to this technology as "automatic emergency braking," but we use the federal government's term.
The parties have identified minute entries in four other cases where the superior court has reached different conclusions on the implied preemption issue.
Passive restraints are safety devices (e.g., airbags or automatic seatbelts) that require no action from vehicle occupants.
We note that Dashi has taken inconsistent positions on the relevance of these documents, first offering the federal automated vehicle policies as a centerpiece of her argument in the opening brief, but later changing course in her reply brief.
The Solicitor General filed two amicus curiae briefs in Williamson at the Supreme Court's invitation. Brief for the United States as Amicus Curiae,
Only months ago, Nissan drivers filed a federal class action lawsuit against Nissan for installing AEB systems in newer models that were ineffective, showing that AEB technologies continue to evolve and were not well established in 2009. See Class Action Complaint, Bashaw v. Nissan N. Am., Inc. et al. , Case No. 3:18-cv-07292-JCS,
Dashi relies on a 1996 NHTSA report that used "mature" in connection with FCW technology, but her reliance is misplaced. The report never implies the technology is advanced or even purports to reach the issue. The report does, however, say that "collision avoidance systems" are in the "early stage" of development.
The Coast Guard itself also argued that its decision had no "preemptive effect." Id. at 68,
DOT, NHTSA and the Solicitor General thus shared their "current view" that the "regulation [did] not pre-empt this tort suit." Id. at 335-36,
Dashi also relies on Freightliner Corporation v. Myrick ,