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Arizonans can't sue car manufacturers for failing to install a safety device that wasn't required by federal law at the time, the state Court of Appeals has ruled. The judges tossed out a $3.1 million jury award to a Nogales, Sonora, woman who was paralyzed in a 1981 accident when the Volkswagen in which she was a passenger overturned west of Tucson. In its unanimous decision, the court did not dispute Amparo Hernandez-Gomez's contentions that she might have been spared the injuries had Volkswagen installed lap belts in the 1981 Rabbit. The judges, however, said she cannot maintain the manufacturer was negligent, because the shoulder harness it did install complied with federal law at the time.

The case is likely to go to the Arizona Supreme Court. But the ability of the high court to rule otherwise could be limited because of a U.S. Supreme Court ruling on a similar lawsuit this year. According to testimony at trial, the 1981 mishap occurred when the driver, her boyfriend, took his hands off the wheel as he reached for a cigarette lighter. The vehicle went off the road near the Old Tucson studios, flipped and Hernandez-Gomez slammed her head into the roof. Her attorney, Dale Haralson, argued during the trial that Volkswagen could have provided lap belts along with the automatic shoulder harness. There was testimony that most other car manufacturers were installing so-called three-point restraint systems in their vehicles by that time.

Haralson also said the woman would have worn a lap belt had one been available. Volkswagen began installing lap belts in the Rabbit in 1989 after they were required by federal law. Appeals Court Judge William Druke pointed out that the U.S. Supreme Court, in a decision last year, looked at the issue of injuries caused when manufacturers comply with federal requirement but do not do more. In that case, the high court said federal law gives manufacturers a variety of ways to comply with safety regulations. The justices said any state action, including state court lawsuits, that interfere with the legal choices of car makers is pre-empted.

Here, said Druke, federal law at the time gave Volkswagen and other car manufacturers three options for passenger restraint systems in its 1981 Rabbit. The first option was a "complete passive protection system." The second involved creating a "head-on passive protection system," with the third being a lap and shoulder belt, with a warning indicator to show when people were not properly buckled in. Volkswagen chose the second option, which did not require a lap belt. That means Volkswagen can't be sued for failing to install a lap belt to protect passengers because it had, in fact, complied with federal law.

Despite that, Haralson argued the option Volkswagen chose protected occupants only in frontal crashes. He also said federal transportation officials told Volkswagen it could install lap belts in addition to the shoulder harnesses. Druke said all that is immaterial, that forcing manufacturers to install something not required by law to protect themselves from lawsuits defeats the purpose of the statute to give car makers a choice. The Court of Appeals ruling should come as no surprise.

Earlier this year, the U.S. Supreme Court ruled a woman could not sue Honda. The woman suffered serious head injuries in an accident in her 1987 Honda and claimed Honda's failure to install a driver's side airbag made her vehicle unsafe and defective. (An air bag was not required.) Justice Stephen Breyer, writing for the five-judge majority, said that the Department of Transportation clearly intended to allow and promote a variety of protections, and that federal law pre-empted states from adopting their own, more stringent standards.

Attorneys for the Honda driver argued none of that pre-empted her from claiming that, to make her vehicle safe, Honda should have installed an air bag regardless of the federally allowed choice. But Breyer said allowing her to sue for damages in state court would frustrate the purpose of the federal regulations to promote different methods of achieving motorist safety. The judge also said federal officials wanted manufacturers to experiment with different devices to see which gained driver acceptance

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