CORPORATE CRIME REPORTER
Bloch on Auto Safety, Federal Pre-Emption and Vision Zero
25 Corporate Crime Reporter 3, January 17, 2011
Any day now, the Supreme Court will come down with its decision in Williamson v. Mazda.
In that case, the court will decide whether federal auto safety law pre-empts state common law.
The auto industry is watching the case closely.
Because it could put a damper on state product liability lawsuits.
The case focuses on a federal rule that allows auto makers to use a seat belt only – without a shoulder belt – on seats next to an aisle in the middle row of a minivan.
In the case in question, the passenger in that middle row seat next to the aisle was killed when the Mazda minivan she was riding in was involved in a head on collision. She was wearing the only belt available – the seat belt – and she jack-knifed – causing fatal internal injuries.
Mazda argued that the federal rule allowing it to put only a seat belt on that middle row seat – without a shoulder belt – pre-empts state common law.
The appellate court agreed with Mazda and the plaintiff appealed to the U.S. Supreme Court.
Auto safety expert Byron Bloch was at the Supreme Court when the justices heard the oral argument in the case last November.
He’s not optimistic about the outcome.
“Chief Justice Roberts focused on various of the economic factors,” Bloch said in an interview with Corporate Crime Reporter last week. “He thought that was an important consideration. Having a shoulder belt might cost Mazda more money. And shouldn’t Mazda be allowed to make economic decisions with regard to these various safety devices in a vehicle?”
“I was personally disappointed in having our Chief Justice pursue such a line of questioning – presuming that this reflected his thinking on the matter.”
“It felt to me like it was a trade off between a few extra pennies or dollars per vehicle – versus a major safety feature – a shoulder belt – to make a much safer restraint system.”
“Justices Scalia and Alito similarly seemed to be more interested Mazda’s position and giving Mazda more options and more freedoms – the ability to make economic decisions as well.”
“I was personally disappointed in hearing that line of questioning.”
“In contrast, I thought there were more compassionate concerns raised by Justices Kennedy, Ginsburg, Breyer, and Sotomayor.”
“Justice Kagan was recused from the case. Before she became a member of the Supreme Court, she had been the U.S. Solicitor General and was representing the U.S. in this case.”
So, it could be a 4-4 decision?
“It may be a 4-4 decision,” Bloch says. “If it is, that essentially leaves in place the appeals court decision, and the ruling there was to grant pre-emption.”
“A 4-4 decision would not have the strength of a 5-4 Supreme Court decision in favor of pre-emption, but it would unfortunately leave standing the pre-emption ruling in California.”
“By the way, lap and shoulder belts can easily be built into the seats, so that you don’t have the shoulder belt hanging from a roof rail and coming across the narrow aisle way.”
This is the second time that the Supreme Court has visited the question of pre-emption in auto safety cases.
In 2000, the Supreme Court decided Geier v. Honda.
Bloch said that in Geier, the Supreme Court upheld pre-emption from liability.
“The plaintiff in that case wanted to take Honda to court over the failure of Honda to have an airbag system,” Bloch said. “The Supreme Court ruled that federal law pre-empted state liability law.”
Bloch says that over the years, the auto industry has been strategically building defenses against state product liability laws.
“Forty years ago, the auto companies would ask the court for a jury instruction that the vehicle at-issue complied with federal standards,” Bloch said.
“Let’s call that phase one.”
“In phase two in the 1980s, the auto companies would ask for a presumption that the vehicle was reasonably safe because it complied with the federal auto safety standard.”
“So, phase one – a jury instruction asking that the vehicle complied.”
“Phase two – a presumption of reasonable safety.”
“Then phase three – they move from asking for a presumption to asking for pre-emption.”
“So, defense lawyers representing auto companies became more bold in challenging these jury trials.”
This despite the fact that the federal auto safety law itself explicity states that “compliance with any federal motor vehicle standard under this title does not exempt any person from any liability under common law.”
The auto safety movement has made progress over the years – dropping the death rate per hundred million miles traveled from about 4 in the 1970s to about 1.2 today.
But Bloch says that still means that we have today 35,000 dead every year and 3 million injuries in motor vehicle crashes.
And that’s unacceptable.
Bloch is part of an international movement called Vision Zero.
“It’s the vision of zero fatalities in motor vehicle accidents. Internationally, there are 1.3 million fatalities per year in motor vehicle related accidents,” Bloch says.
“Plus there are many millions of severe and disabling injuries.”
How could zero fatalities happen?
“To use one example, we could eliminate 10,000 deaths a year and 5,000 quadriplegics a year in the U.S. in rollover accidents with stronger roofs and safer side window glass.,” Bloch says.
“It is perfectly sensible and compassionate to say that the goal should be zero deaths and zero permanent disabling injuries like quadriplegia in motor vehicle accidents.”
“You try to prevent the accident. And then you make a crashworthy vehicle to protect the occupant in the case of an accident.”
Bloch is proud to have contributed to a new Smithsonian American History exhibit called Inventing Automobile Safety.
“It shows safety developments over the decades, like the padded dash, safety collapsible steering column, and lap-and-shoulder seatbelts,” Bloch said.
“The exhibit describes some of my work in encouraging vehicle safety, such as helping prompt safer fuel tanks, and how the court cases involving the Ford Pinto served as a catalyst.”
“Ironically, that's why there shouldn't be pre-emption that might preclude such justifiable court cases which help stimulate safer vehicles.”
[For the complete q/a format of the Interview with Byron Bloch, see 25 Corporate Crime Reporter 3(12), January 17, 2011, print edition only.]
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