On Appeal from the United States District Court, for the Eastern District of Pennsylvania, D.C. Civil Action No. 85-6544.
Hutchinson, Scirica and Nygaard, Circuit Judges
HUTCHINSON, Circuit Judge.
Anne Duffy Pokorny (Pokorny), administratrix of the estate of John Duffy (Duffy), appeals from a district court order granting summary judgment in favor of Ford Motor Company (Ford). Duffy died in a traffic accident while a passenger in a Ford van. Pokorny claims that the van was defectively designed. She contends that Ford's failure to provide adequate safety protection for passengers in its van was a design defect that subjected it to liability either in negligence or as a maker of a defective product. In particular, Pokorny alleges that the van should have been equipped with air bags, automatic seat belts or protective netting on the windows to prevent fatal injuries like those that Duffy suffered. The district court, adopting the reasoning of Kolbeck v. General Motors Corp., 702 F. Supp. 532 (E.D.Pa. 1988), held that the National Traffic and Motor Vehicle Safety Act (Safety Act), 15 U.S.C.A. § § 1381-1431 (West 1982 & Supp. 1990), and Federal Motor Vehicle Safety Standard 208 (Standard 208), 49 C.F.R. § 571.208 (1980),*fn1 impliedly pre-empted Pokorny's common law action and granted Ford's motion for summary judgment. Pokorny v. Ford Motor Co., 714 F. Supp. 739, 742 (E.D.Pa. 1989).
To the extent that the district court's judgment was based on Pokorny's assertion that the Ford van should have been equipped with air bags or automatic seat belts, we agree that the action was pre-empted by the Safety Act and Standard 208. Common law liability arising from the failure to install these two types of passive restraint systems would present an actual conflict with certain federal statutes and regulations. However, Pokorny's action is not pre-empted to the extent that it is based on other types of passive restraints, like the protective window netting she mentions, that do not present an actual conflict with federal laws or regulations.*fn2 Because we agree with some, but not all, of the district court's pre-emption analysis, we will affirm the court's judgment with respect to pre-emption of common law liability for any design defect arising out of Ford's failure to equip its van with air bags or automatic safety belts. However, because not all design defects arising from a failure to provide passive restraints pose an actual conflict with the Safety Act or Standard 208, we will reverse the district court's judgment in part and remand on the question of whether Ford's failure to equip its van with passenger protective devices like window netting is a design defect actionable under the applicable Pennsylvania law of products liability.
The facts relevant to our review of the order granting summary judgment to Ford are not in dispute. Duffy was a twenty-two year old Philadelphia police officer. He was killed in December 1983 when the 1981 model Ford Econoline police van in which he was riding collided with another police patrol car while responding to an emergency call. Duffy, a passenger in the van, was partially ejected through the passenger side window and crushed by the van when it turned over after the collision. At the time, he was not wearing the seat belt Ford had installed in the van in compliance with Standard 208.
Pokorny originally brought her action against Ford in a Pennsylvania state court. The complaint asserted numerous claims of negligence, strict liability and breach of implied warranties, all based on Ford's failure to install an appropriate passive restraint system for passengers in the 1981 van. Since there was diversity between the parties, the case was removed to the United States District Court for the Eastern District of Pennsylvania upon Ford's motion.
In the district court, Ford moved for summary judgment on all counts. It asserted that Pokorny's action was both expressly and impliedly pre-empted by the Safety Act and Standard 208. To support its claim of express pre-emption, Ford relied heavily on the pre-emption provision of the Safety Act, 15 U.S.C.A. § 1392(d) (West Supp. 1990). That subsection provides (in relevant part):
Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard.
Ford pointed out that the van in question contained combined lap and shoulder safety belts with a warning light and buzzer, one of the options enumerated in federal Standard 208.*fn3 Alternately, Ford argued that allowing Pokorny's action to proceed and exposing it to possible liability for its failure to install a passive restraint system created an actual conflict with the federal regulatory requirements that clearly gave automobile manufacturers the choice to install either manual safety belts or passive restraints. Therefore, according to Ford, Pokorny's common law action was also impliedly pre-empted by federal regulation.
Pokorny responded to Ford's arguments by relying on the savings clause of the Safety Act, 15 U.S.C.A. § 1397(k) (West Supp. 1990).*fn4 This subsection provides that "[c]ompliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law." Id. Pokorny argued that § 1397(k)'s language demonstrates that Congress did not intend the Safety Act, or any federal standards promulgated under it, to expressly pre-empt common law actions alleging liability for defectively designed vehicles. In addition, she argued that the cautious approach that federal courts should take in pre-emption matters precluded implied pre-emption of her action because there was no actual conflict between her theory of recovery and the options presented in Standard 208.
The district court concluded that Pokorny's action created an actual conflict with the options given to automobile manufacturers by the Safety Act and Standard 208. The court recognized that Standard 208 was specifically designed to give automobile manufacturers a degree of flexibility and choice in providing passenger restraint systems. It reasoned that allowing Pokorny's suit to go forward and exposing Ford to possible liability for failing to install a passive restraint system in the 1981 Ford van would, in effect, eliminate that flexibility and choice. Thus, the district court held that Pokorny's action was impliedly pre-empted by the Safety Act and Standard 208, and it granted Ford's motion for summary judgment on all counts. See Pokorny v. Ford Motor Co., 714 F. Supp. 739, 742-43 (E.D.Pa.).*fn5
Pokorny now appeals the district court's judgment to this Court. We have appellate jurisdiction pursuant to 28 U.S.C.A. § 1291 (West Supp. 1990). We exercise plenary review because the question of whether Pokorny's action is pre-empted by the Safety Act and Standard 208 arose during summary judgment proceedings and the resolution of that question involves a pure question of law. See International Union, United Mine Workers v. Racho Trucking Co., 897 F.2d 1248, slip op. at 9 (3d Cir. 1990).
In Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 99 L. Ed. 2d 316, 108 S. Ct. 1145 (1988), the Supreme Court recognized that federal pre-emption of state law can occur in three types of situations: where Congress explicitly pre-empts state law, where pre-emption is implied because Congress has occupied the entire field and where ...