PHOENIX — The state Court of Appeals won’t require vehicle manufacturers to install safety equipment for cars sold in Arizona that are not mandated by federal law.
In a new ruling, the judges rejected arguments by a woman seriously injured in an accident that Nissan should be held liable for failing to install an automatic braking system in the vehicle that struck her car.
Her lawyer, Lynn Shumway, contends that the system, which would have cost perhaps no more than $500, could have prevented the accident that left Antea Dashi with brain damage and diminished mental capacity.
Judge David Weinzweig, writing for the unanimous three-judge panel, said the National Highway Safety Administration has so far declined to set formal standards for advanced automatic braking technologies in light vehicles.
The judge said Congress gave the power to the U.S. Department of Transportation to set safety standards, a power it delegated to the NHTSA. That also means federal authority preempts any state law, and any litigation based on state law, Weinzweig said.
“If successful, Dashi’s design-defect and negligence claims would impose a duty on manufacturers whose vehicles drive in or through Arizona to install forward collision warning and crash imminent braking systems or face liability from Arizona juries for making and peddling uncrashworthy vehicles,” Weinzweig wrote.
“Dashi’s claims would frustrate NHTSA’s federal regulatory objectives by thrusting a jury-imposed AEB standard on Nissan inside Arizona’s borders.”
Shumway said he plans to seek review by the Arizona Supreme Court.
“Arizona law requires when you sell a product that it not have any conditions that are unreasonably dangerous,” Shumway said.
He said that is defined as when “the harmful characteristics or consequences outweigh the benefits of the design.”
In 2015, Dashi was driving along a one-way access road to a freeway in north Phoenix when she missed her turnoff.
Rather than proceed to the next exit and go through side streets, she decided to turn around and seek to return to the missed exit. But while she was turning around, a 2008 Nissan Rogue swerved around a vehicle that had stopped behind Dashi’s vehicle and crashed into her car, which was by then perpendicular to traffic.
She sued Nissan, saying the crash would not have occurred if Nissan had equipped the Rogue with then-available automatic emergency braking systems. These included “forward collision warning” and “crash imminent braking,” the former warning the driver of a likely crash, the latter automatically applying the brakes.
A trial judge threw out the case on Nissan’s claim of federal preemption, leading to this appeal.
Weinzweig said both DOT and NHTSA have shown “palpable and enduring interest” in the development of automatic emergency braking and “continues to explore test procedures and the effectiveness of these systems and to refine the performance criteria that should be used to assess these systems.”
More recently, he said, NHTSA is seeking ways to incentivize manufacturers to install new technologies.
Shumway said the agency has gotten commitments from 20 car companies to make them standard in 2022.
But that, said Shumway, is not enough. Nor, he said, should it immunize manufacturers from failing to install clearly available — and he contends affordable — safety features.
“Statistically, we’re talking about many, many thousands of deaths every year and hundreds of thousands of serious injuries that are not being prevented by the withholding of these,” Shumway said.
Weinzweig said if Shumway’s case were to proceed it could create a “patchwork quilt” of liability exposure, where the question of whether a vehicle without automatic emergency braking traveling across the country is unsafe based on which state it was in at the time.
That, the judge said, effectively would require manufacturers to immediately install their equipment in all vehicles.
Weinzweig said the ruling does not immunize manufacturers from all liability claims. He said a customer who was injured would be able to sue if an installed device was improperly designed or installed.
