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filed: December 6, 1989.


Appeal from the Order entered May 12, 1988 in the Court of Common Pleas of Philadelphia County at March Term, 1984, No. 6155.


Larry E. Coben and Donald E. Matusow of Litvin, Blumberg, Matusow & Young, Philadelphia, for appellant.

Meridith I. Gingold and Edward W. Madeira, Jr., and Stephen Phillips, Philadelphia, for Audi.

Del Sole, Melinson and Hoffman, JJ.

Author: Melinson

[ 389 Pa. Super. Page 330]

This case involves an action for wrongful death and relief under the Survival Act*fn1 brought by the appellant in No. 2059, Merideth I. Gingold, Executrix of the Estate of Richard A. Gingold, deceased, (hereinafter "Gingold") against the appellants in No. 2058, Audi-NSU-Auto Union, Inc., Volkswagenwerk Aktiengesellschaft, and Volkswagen of America, Inc. (hereinafter collectively referred to as "Audi") and James McCloskey. It arises from a motor vehicle accident in which Richard A. Gingold was killed. For purposes of our review, we adopt the facts set forth by the trial court:

On February 10, 1984, at 6:30 a.m., Richard Gingold, age 36, was seated in the driver's seat of a 1983 Audi 5000 S automobile, waiting for [a] red light on Roosevelt Boulevard to change to green. At that time, defendant, James McCloskey, was driving his 1973 Cadillac in the same direction. McCloskey failed to observe Gingold's car or the red light and rear-ended the Audi at approximately 50 miles an hour. The rear end of the Audi was crushed forward on impact[,] and the two cars stayed together travelling a distance of 44 feet. The Audi then separated from the Cadillac and continued to go forward until the car's front end hit a tree at about 25 miles per hour.

The first officer on the scene noted that Gingold was wearing a seat belt over his suit jacket and overcoat. Although rushed to the nearest hospital, Gingold was pronounced dead on arrival.

A post-mortem examination revealed that Gingold suffered severe facial injuries, brain damage, and injuries to the spinal cord. The examining physician allegedly stated that Gingold's fatal injuries were attributable to the frontal collision which caused Gingold to be thrown forward into the steering wheel and not due to the rear-end

[ 389 Pa. Super. Page 331]

    collision. (Plaintiff's memo, pp. 3-4). It is [un]disputed that at the time of the accident, the deceased was wearing a manual three-point seat belt which complied with the [Federal National Traffic and Motor Vehicle Safety] Act and other applicable FMVSS [Federal Motor Vehicle Safety Standards], including FMVSS 208 governing occupant restraint systems. (Id. at 4).

Gingold filed a wrongful death and survival action against Audi, alleging negligence, products liability, and breach of warranty, and against McCloskey, alleging negligence. Among Gingold's claims against Audi were allegations that Audi had defectively designed the automobile in which Richard Gingold died by failing to install "passive restraints," a term which includes air bags, passive or automatic seat belts, knee bolsters and other unidentified items or systems.*fn2 Audi moved for partial summary judgment on the grounds that Gingold's passive restraint claims are preempted by the Federal National Traffic and Motor Vehicle Safety Act, 15 U.S.C. §§ 1381-1431, (hereinafter the "Act") and by certain Federal Motor Vehicle Safety Standards promulgated under the Act (hereinafter singularly and collectively "FMVSS" or "safety standard[s]"), in particular FMVSS 208, 49 C.F.R. 571.208. FMVSS 208 sets forth standards regarding automobile occupant restraints. Kolbeck v. General Motors Corp., 702 F.Supp. 532 (E.D.Pa.1988). Audi also contended that state law barred Gingold's passive restraint claims.

The trial court agreed to a limited extent with Audi, holding that the Act preempted a state common law tort

[ 389 Pa. Super. Page 332]

    action against an automobile manufacturer for failure to install air bags. At the same time, however, the court concluded that Gingold's claim that the vehicle was defectively designed and manufactured was not the equivalent of a "no air bag" claim,*fn3 that material issues of fact were still outstanding on this issue, and that, accordingly, Audi's motion for partial summary judgment must be denied. The court effectively granted Audi partial relief, however, by finding federal preemption of common law "no air bag" claims.*fn4

[ 389 Pa. Super. Page 333]

On appeal, Gingold argues that the court erred by directing that she would be precluded from presenting evidence of defect based upon Audi's failure to install air bags, while Audi maintains that its motion for partial summary judgment should have been granted.*fn5 Audi contends that its compliance with FMVSS 208 preempts any claim based upon its failure to install a passive restraint system under the Act and under Pennsylvania law. Audi further contends that Gingold's claims are not cognizable in Pennsylvania. On July 12, 1988, this court granted special allowance for appeal on the matter certified for permissive interlocutory appeal by the lower court pursuant to 42 Pa.Con.Stat.Ann. § 702(b). On August 30, 1988, the parties stipulated that their separate appeals were to be consolidated pursuant to Pa.R.A.P. 513.

The issue of federal preemption of common law passive restraint claims, though the subject of a great number of federal and state court decisions, has until now never come before the appellate courts of this Commonwealth. Some years ago, in Jackson v. Spagnola, 349 Pa. Super. 471, 503 A.2d 944 (1986), appeal denied, 514 Pa. 643, 523 A.2d 1132 (1987), this court stated that a manufacturer's compliance with a FMVSS did not grant immunity from a strict liability claim. The court, however, was not required by the issues presented to engage in an analysis of the Act or of FMVSS 208 and found support for its proposition by citation to decisions of other jurisdictions. Courts which have engaged

[ 389 Pa. Super. Page 334]

    in analyses of the Act and FMVSS 208 have come to widely divergent conclusions, with the majority finding federal preemption of common law passive restraint claims.*fn6 Our analysis, however, leads us to join the ranks of the minority and permit Gingold's passive restraint claims to go forward.

I. The Act and FMVSS 208

Congress passed the Act in 1966 as a response to mounting highway deaths and injuries. State Farm Mut. Auto Ins. Co. v. Dole, 802 F.2d 474, 477 (D.C.Cir.1986), cert. denied, New York v. Dole, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 800 (1987). The first section of the Act, entitled "Congressional declaration of purpose," states: "Congress hereby declares that the purpose of this chapter is to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents." 15 U.S.C. § 1381. Accordingly, courts have consistently held that the primary objective of Congress in passing the Act was to promote safety and reduce highway deaths and injuries. See, e.g., Wood v. General Motors Corp., 865 F.2d 395 (1st Cir.1988); Chrysler Corp. v. Tofany, 419 F.2d 499 (2d Cir.1969); Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.1968); Kolbeck, 702 F.Supp. 532; Murphy v. Nissan Motor Corp. in U.S.A., 650 F.Supp. 922 (E.D.N.Y.1987); Garrett v. Ford Motor Co., 684 F.Supp. 407 (D.Md.1987); Arbet v. Gussarson, 66 Wis.2d 551, 225 N.W.2d 431 (1975).

[ 389 Pa. Super. Page 335]

The Act attempts to achieve its goal to promote automotive safety in various ways. The Act provides for research, testing, and training in traffic safety. 15 U.S.C. § 1395. It also requires automobile manufacturers to notify the public of safety defects in their products. The manufacturers must repair these defects. 15 U.S.C. §§ 1411-19. Finally, the Act provides that the Department of Transportation shall promulgate "Federal motor vehicle safety standards" (FMVSS) and prohibits the manufacture or sale of automobiles or automobile equipment which fail to comply with these standards. 15 U.S.C. §§ 1392, 1394, 1396, and 1397. The Act provides for enforcement by means of civil penalties and injunctive relief by action of the United States Government. 15 U.S.C. §§ 1398-99. The Department of Transportation is also authorized to investigate compliance with the Act. 15 U.S.C. § 1401. See also Murphy, 650 F.Supp. at 924.

It was intended that the safety standards promulgated under the Act were to be "uniform throughout the country." S.Rep. No. 1301, 89th Cong., 2d Sess. 12 (1966), reprinted in, 1966 U.S.Code, Cong. & Admin.News, 2709. This intention is articulated, to a degree, in section 1392(d) of the Act. Section 1392(d) provides that whenever an FMVSS is established, a state is expressly prohibited from establishing a safety standard different from the FMVSS concerning "the same aspect of performance."*fn7 "Basically,

[ 389 Pa. Super. Page 336]

    this preemption subsection is intended to result in uniformity of standards so that the public as well as the industry will be guided by one set of criteria rather than a multiplicity of diverse standards." H.Rep. No. 1776, 89th Cong., 2d Sess. 17 (1966). We also note that the Act defines "motor vehicle safety standards" as "a minimum standard for motor vehicle performance, or motor vehicle equipment performance, which is practicable, which meets the need for motor vehicle safety and which provides objective criteria." 15 U.S.C. § 1391(2).

In 1966, the Department of Transportation first adopted FMVSS 208, 49 C.F.R. § 571.208. It is a lengthy regulation which has been described as having suffered a "complex and convoluted" regulatory history. Kolbeck, 702 F.Supp. at 535. See also Motor Vehicle Manufacturers Association of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); Dole, 802 F.2d 474. Its "scope" is stated as follows: "This standard specifies performance requirements for the protection of vehicle occupants in crashes." 49 C.F.R. § 571.208 S1. Its purpose "is to reduce the number of deaths of vehicle occupants, and the severity of injuries, by specifying vehicle crashworthiness requirements in terms of forces and accelerations measured on anthropomorphic dummies in test crashes, and by specifying equipment requirements for active and passive restraint systems." 49 C.F.R. § 571.208 S2.

For passenger cars manufactured between September 1, 1973 and September 1, 1986, FMVSS 208 allows for three "options."*fn8 The first option allows for manufacturers to equip the car with a complete passive restraint system, which is designed to protect occupants from front and lateral crashes. 49 C.F.R. § 571.208 S4.1.2.1. The second option allows manufacturers to utilize a combination of passive restraints (to protect against frontal crashes), detachable shoulder harnesses, lap belts, and warning systems

[ 389 Pa. Super. Page 337]

    to remind the occupant to fasten his seat belt. 49 C.F.R. § 571.208 S4.1.2.2. The third option permits manufacturers to install a lap belt with a non-detachable shoulder harness and a belt warning system. 49 C.F.R. § 571.208 S4.1.2.3. The third option, providing for a "three-point" seat belt, was the option chosen by Audi in the manufacture of the vehicle in question and indeed appears to be the overwhelming choice of automobile manufacturers in general. See Schwartz v. Volvo North America Corp., 554 So.2d 927 (Ala.1989) (Hornsby, C.J., concurring and dissenting). Audi's compliance with FMVSS 208 is the foundation for its argument that Gingold's passive restraint claims are preempted.

The Act, however, sets forth a savings clause in section 1397(c). This section provides in full:

Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under the common law.

15 U.S.C. § 1397(c). This section is the foundation of Gingold's argument that her claims are not preempted by the Act.

There is another section to the Act relevant to our discussion. In 1974, Congress amended the Act after a "public outcry" against a proposed regulation which would have provided for an "ignition interlock" system to "prevent starting [a] vehicle if the [safety] belts were not connected." Motor Vehicles Manufacturers Association, 463 U.S. at 35-36, 103 S.Ct. at 2862-63. The result was the addition of section 1410b which provides in pertinent part:

(2) Except as otherwise provided in paragraph (3), no Federal motor vehicle safety standard respecting occupant restraint systems may --

(A) have the effect of requiring, or

(B) provide that a manufacturer is permitted to comply with such standard by means of,

     an occupant restraint system other than a belt system. (3)(A) Paragraph (2) shall not apply to a Federal motor vehicle safety standard which provides that a manufacturer

[ 389 Pa. Super. Page 338]

    is permitted to comply with such standard by equipping motor vehicles manufactured by him with either --

(i) a belt system, or

(ii) any other occupant restraint system specified in such standard.

(B) Paragraph (2) shall not apply to any Federal motor vehicle safety standard which the Secretary elects to promulgate in accordance with the procedure specified in subsection (c) of this section, unless it is disapproved by both Houses of Congress by concurrent resolution in accordance with subsection (d) of this section.

15 U.S.C. § 1410b. The section thereupon sets forth the manner in which the Secretary of Transportation shall promulgate safety standards under this section and the manner in which Congress shall have an opportunity to veto such standards.

Our determination of the initial issues raised by Audi and Gingold in these appeals rests upon our careful analysis of the ...

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