Preemption is a concept deeply rooted in the United States Constitution and in our system of federalism. When it presents itself in a state court room, however, the concept becomes more real, and hard-edged, particularly when it is used to defeat a wrongful death claim in favor of Ford Motor Company.
In Priester v. Cromer, — S.E.2d —-, 2010 WL 2990978 (S.C. August 2, 2010), the South Carolina Supreme Court took up the question of whether Federal Motor Vehicle Safety Standard 205 (49 C.F.R. § 571.205 (1971)) preempts a state law products liability claim premised solely on a manufacturer’s choice of tempered glass for a vehicle’s side windows. Regulation 205) mandates that “[g]lazing materials for use in motor vehicles … shall conform” to the American National Standard Institute “safety code for safety glazing materials.” Courts across the country faced with this issue have struggled with the preemptive effect, if any, of Regulation 205 and have reached opposite conclusions.
In this case, two twenty-one year olds, leaving a bar in Santee, South Carolina, drove off the road in a 1997 Ford F-150, rolled the truck several times, and the passenger, in the rear seat without a safety belt, was ejected and died at the scene. The passenger’s father brought a products liability suit against Ford, alleging that Ford used inappropriate glazing materials on the windows which failed to keep his son in the vehicle and instead shattered on impact.
Ford moved for summary judgment, arguing Regulation 205, a regulation promulgated by a federal agency, the National Highway Traffic Safety Administration (NHTSA) preempted the claim. Ford asserted Regulation 205 provided car manufacturers with options of types of glass they were permitted to use, and since Ford used one of the glass options, the state law products liability suit was preempted by the regulation.
The court examined the history of the regulation and the proceedings before the NHSTA in making a decision on what kind of window glazing to require of manufacturers. Under Regulation 205, the NHSTA decided not to require auto manufacturers to use tempered glass, but to allow the choice of laminated glass, which more easily shatters on impact. Three decisions in the country have decided whether state courts can allow juries to decide that the auto manufacturer’s choice resulted in a defective product under state tort law. The Fifth Circuit in O’Hara v. General Motors, 508 F.3d 753 (5th Cir. 2007) decided that the federal regulation is best understood as a minimum safety standard and held the regulation did not preempt the plaintiff’s products liability suit, while two other courts, the West Virginia Supreme Court in Morgan v. Ford Motor Co., 680 S.E.2d 77 (W. Va. 2009) and the Court of Appeals of Tennessee in Lake v. Memphis Landsmen, LLC, 2010 WL 891867 (Tenn. Ct. App. March 15, 2010) held Regulation 205 did preempt a claim against a manufacturer in which the plaintiff alleged his vehicle was defective because Ford used tempered glass in the side window.
The South Carolina Supreme Court recognized that courts across the country are struggling over Regulation 205 and whether it preempts conflicting state law actions, but held, nonetheless, in the absence of a determination from the United States Supreme Court on this matter, Regulation 205 provided a manufacturer with permissible, legal options rather than merely providing a safety floor and, therefore, acted to preempt Appellant’s suit.
The products liability suit based on South Carolina state law, therefore, was dismissed.
