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United States Court of Appeals,
Fifth Circuit.
No. 913363.
LYNDA D. PERRY, PlaintiffAppellant,
v.
MERCEDES BENZ OF NORTH AMERICA, INC. and ABC INSURANCE COMPANY,
DefendantsAppellees.
April 10, 1992.
Appeal from the United States District Court for the Middle
District of Louisiana.
Before REAVLEY, HIGGINBOTHAM and DeMOSS, Circuit Judges.
REAVLEY, Circuit Judge:
Lynda D. Perry contends that Mercedes Benz of North America
(MBNA) defectively designed or defectively constructed the air bag
system that was installed in Perry's automobile. The district
court granted summary judgment for MBNA, 761 F.Supp. 437, holding
that federal law preempts Perry's defective design claim and that
Perry's evidence raised no genuine issues of material fact to
support her claim of defective construction. We decide that
summary judgment was proper on the defective construction claim.
But we hold that federal law does not preempt Perry's design claim,
and we remand the case for further proceedings.
I. BACKGROUND
Perry was injured in East Baton Rouge Parish, Louisiana, on
March 4, 1986, when she lost control of her 1986 Mercedes Benz 190E
and drove it into a ditch. Perry initially failed to notice a stop
sign where the street that she was on dead-ended into another

street, forming a "T" intersection. Once she saw the stop sign,
Perry noticed a car approaching the intersection from her right.
Thinking that she would not be able to stop in time to avoid the
oncoming car, Perry decided to proceed through the intersection.
The driver of the other car, deputy sheriff James Todd Morris, was
able to avoid Perry's car, but Perry continued through the
intersection and into the ditch on the other side. Perry's
Mercedes was equipped with a driver's side air bag, but the air bag
did not inflate on impact. Perry, who was not wearing a seat belt,
struck the steering wheel or windshield and received facial
lacerations and damage to her teeth and mouth. The parties dispute
how fast Perry's car was traveling at the time of impact.
On February 27, 1987, Perry filed this suit against MBNA in
Louisiana state court, alleging that the failure of the air bag to
inflate caused Perry $500,000 in damages. MBNA removed this
diversity case and moved for summary judgment. The district court
granted MBNA's motion and held that: (1) federal law preempts
Perry's defective design claim, and (2) Perry failed to raise an
issue to support her claim of defective construction.
II. DISCUSSION
A. FEDERAL PREEMPTION OF THE DEFECTIVE DESIGN CLAIM
As the basis for her defective design claim, Perry alleges
that MBNA designed its air bag systems with an unreasonably

dangerous "deceleration velocity deployment threshold."1 Under
Louisiana products liability law as it existed when Perry filed
this suit,2 a product is considered unreasonably dangerous in
design if the "danger-in-fact" of the product outweighs the utility
of the product, or if the product could have been designed or
replaced with an alternative product with less risk of harmful
consequences. See Halphen v. JohnsManville Sales Corp., 484 So.2d
110, 115 (La.1986). Essentially, Perry claims that MBNA is liable
for her damages because it should have designed the air bag system
to deploy upon the type of impact that Perry's vehicle sustained.
MBNA argued, and the district court agreed, that federal
regulations promulgated under the National Traffic and Motor
Vehicle Safety Act of 1966 (the Safety Act or the Act), 15 U.S.C.
1The airbag system's "deceleration velocity deployment
threshold" determines the force that must be caused by the
vehicle's sudden deceleration to trigger inflation of the airbag.
MBNA designed the system in Perry's vehicle with a minimum
threshold of twelve miles per hour against a rigid barrier.
2In 1988, the Louisiana legislature enacted the Louisiana
Products Liability Act, LA.REV.STAT.ANN. §§ 9:2800.51.59 (West
1991), which provides that a plaintiff who seeks to prove that a
product is unreasonably dangerous in design must prove that,
at the time the product left its manufacturer's
control:
(1) There existed an alternative design for the
product that was capable of preventing the claimant's
damage; and
(2) The likelihood that the product's design would
cause the claimant's damage and the gravity of that
damage outweighed the burden on the manufacturer of
adopting such alternative design and the adverse
effect, if any, of such alternative design on the
utility of the product.
LA.REV.STAT.ANN. § 9:2800.56.

§§ 13811431, preempt Perry's state law defective design claim.
1. The Safety Act and the Regulatory Scheme.
Congress' express purpose for enacting the Safety Act over
twenty-five years ago was "to reduce traffic accidents and deaths
and injuries to persons resulting from traffic accidents." 15
U.S.C. § 1381. To achieve this purpose, the Act delegates to the
Secretary of Transportation the authority to establish "motor
vehicle safety standards" (MVSS) that provide practical and
objective minimum standards for the performance of motor vehicles
and their equipment. Id. §§ 1391(2), 1392(a). The Secretary, in
turn, delegated this duty to the National Highway Transportation
Safety Administration (NHTSA). See 49 C.F.R. § 501.2. The NHTSA
fulfilled its responsibility by promulgating the MVSS published at
49 C.F.R. §§ 571.1.302.
The MVSS that is relevant to this case is 49 C.F.R. § 571.208
(Standard 208), which is entitled "Occupant Crash Protection." In
Standard 208, the NHTSA set forth mandatory minimum "performance
requirements" for automobile crash protection systems, without
requiring the use of any single particular system or design.3 The
3For various recitals of the "complex and convoluted
history" of Standard 208, see Motor Vehicle Mfrs. Ass'n. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 3438, 103 S.Ct. 2856,
286264, 77 L.Ed.2d 443 (1983); Wood v. General Motors Corp.,
865 F.2d 395, 39899 (1st Cir.1988), cert. denied, 494 U.S. 1065,
110 S.Ct. 1781, 108 L.Ed.2d 782 (1990); Taylor v. General Motors
Corp., 875 F.2d 816, 823 (11th Cir.1989), cert. denied, 494 U.S.
1065, 110 S.Ct. 1781, 108 L.Ed.2d 783 (1990); Keith C. Miller,
Deflating the Airbag Pre-emption Controversy, 37 EMORY L.J. 897,

NHTSA has considered requiring the installation of air bags and the
use of particular designs in all vehicles, but has chosen not to do
so. See 49 Fed.Reg. 28,982, 29,001 (1984). Instead, Congress and
the NHTSA sought to ensure the minimum protection of occupants
while allowing manufacturers to develop better systems through
competition in the automobile industry. See S.REP. No. 1301, 89th
Cong., 2d Sess. 1, 4 (1966), reprinted in 1966 U.S.C.C.A.N. 2709,
2712.
To meet the performance requirements of Standard 208, a
manufacturer may choose from options that include both manual
restraints (which require the occupant to act in some way to
receive the protection) and passive restraints (which require no
action by the occupant). Air bags and automatic seat belts are the
most common forms of passive restraints. Standard 208 S4.1.2,
which applies to the vehicle that Perry was driving, requires the
manufacturer to choose one of three occupant restraint systems:
(1) a complete passive protection system for frontal and lateral
crashes (e.g., automatic seat belts with or without air bags); (2)
passive protection for frontal crashes (e.g., an air bag) plus lap
belts for lateral crashes and rollovers with a seat belt warning
system; or (3) manual lap and shoulder belts with a seat belt
warning system. See Kitts v. General Motors Corp., 875 F.2d 787,
788 n. 2 (10th Cir.1989), cert. denied, 494 U.S. 1065, 110 S.Ct.
1781, 108 L.Ed.2d 783 (1990). If a manufacturer chooses an option
that includes the use of air bags or other passive restraints, the
90109 (1988).

vehicle must meet the protection requirements set forth in Standard
208 S5.1.3 for frontal, lateral, and rollover crashes. These
requirements mandate that, following an "impact ... up to and
including 30 mph, into a fixed collision barrier," an
anthropomorphic test dummy must meet or exceed certain "Injury
Criteria" specified in Standard 208 S6.
The system that MBNA chose to install in the vehicle that
Perry was driving included both an air bag and a lap and shoulder
seat belt. Thus, federal law required MBNA to design the system to
meet the protection requirements and injury criteria of Standard
208 S5 and S6. Perry does not allege that the vehicle she was
driving failed to meet these requirements. Instead, she claims
that the vehicle was defectively designed because the likelihood of
the injuries that she suffered outweighed the burden that adopting
a safer system would place on the manufacturer, and thus it was
unreasonably dangerous under Louisiana products liability law.
The Safety Act includes two sections that are particularly
important to our determination of whether the Act and its
regulations preempt Perry's state law design claim. The first is
the "Preemption Clause," which provides:
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.

15 U.S.C. § 1392(d) (emphasis added). The second important section
is the "Savings Clause," which states:
Compliance with any Federal motor vehicle safety standard
issued under this subchapter does not exempt any person from
any liability under common law.
Id. § 1397(k) (emphasis added). We must determine whether the
Preemption Clause prohibits Perry's claim or the Savings Clause
allows it.
2. The Federal Preemption Doctrine.
The Supreme Court has "held repeatedly that state laws can be
pre-empted by federal regulations as well as by federal statutes."
Hillsborough County v. Automated Medical Lab., Inc., 471 U.S. 707,
713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985). The question of
whether federal statutes or regulations preempt state law under the
Supremacy Clause of the Constitution is essentially a question of
congressional intent. California Fed. Sav. and Loan Ass'n v.
Guerra, 479 U.S. 272, 280, 107 S.Ct. 683, 689, 93 L.Ed.2d 613
(1987). The Court in Guerra summarized the three ways that
Congress may express its intent to preempt state law:
First, when acting within constitutional limits, Congress is
empowered to pre-empt state law by so stating in express
terms. Second, congressional intent to pre-empt state law in
a particular area may be inferred where the scheme of federal
regulation is sufficiently comprehensive to make reasonable
the inference that Congress "left no room" for supplementary
state regulation.... As a third alternative, in those areas
where Congress has not completely displaced state regulation,
federal law may nonetheless pre-empt state law to the extent
it actually conflicts with federal law. Such a conflict

occurs either because "compliance with both federal and state
regulations is a physical impossibility," or because the state
law stands "as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress."
Id. at 28081, 107 S.Ct. at 689 (citations omitted) (emphasis
added); see also Schneidewind v. ANR Pipeline Co., 485 U.S. 293,
300, 108 S.Ct. 1145, 115051, 99 L.Ed.2d 316 (1988). Thus, federal
law may give rise to express, implied (or inferred), or conflict
preemption of state law.
We do not hesitate to find preemption when Congress has
expressly stated its intent. But we have a general hesitancy to
infer a preemptive intent. Especially as to state regulation of
matters of health and safety, "we start with the assumption that
the historic police powers of the States were not to be superseded
by the [federal law] unless that was the clear and manifest purpose
of Congress." Hillsborough County, 471 U.S. at 715, 105 S.Ct. at
2376 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230,
67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). Finally, we do not
begin with an assumption against conflict preemption, for " "[t]he
relative importance to the State of its own law is not material
when there is a conflict with a valid federal law,' for "any state
law, however clearly within a State's acknowledged power, which
interferes with or is contrary to federal law, must yield.' "
Felder v. Casey, 487 U.S. 131, 138, 108 S.Ct. 2302, 2307, 101
L.Ed.2d 123 (1988) (quoting Free v. Bland, 369 U.S. 663, 666, 82
S.Ct. 1089, 1092, 8 L.Ed.2d 180 (1962)).
3. Related Case Law.

No court has addressed the particular issue in this case.
Several courts, including four federal circuits, have considered
the related question of whether the Safety Act and its regulations
preempt a state tort action that is based on a manufacturer's
failure to install an air bag system in its cars.4 This case takes
us a step beyond those by asking whether tort liability is
preempted when a plaintiff alleges that the air bag system that a
manufacturer chose to install is defectively designed under state
law. Nevertheless, we find guidance in the failure-to-install
cases.
The First Circuit was the first circuit to consider the issue,
in Wood v. General Motors Corp., 865 F.2d 395 (1st Cir.1988).
Patricia Wood was rendered quadriplegic in an accident involving a
Chevrolet Blazer. The Blazer was equipped with seat belts and
complied with all MVSS, but Wood was not wearing a belt at the time
of the accident. Wood claimed that General Motors was liable for
her injuries because it defectively designed the Blazer by
equipping it with seat belts instead of air bags. The First
Circuit rejected General Motors' argument that the Safety Act
expressly preempted Wood's claim, but agreed with General Motors
that Wood's claim was preempted because, if successful, it would
conflict with "Congress' chosen method of increasing automobile
safety." Id. at 412 (emphasis omitted).
4Some of the many decisions on the failure-to-install issue
are listed in Taylor, 875 F.2d at 822 n. 13; Wood, 865 F.2d at
400 n. 7; and Welsh v. Century Prod., 745 F.Supp. 313, 316 n. 4
(D.Md.1990).

In rejecting the express preemption argument, the court noted
that the Preemption Clause prevents a State or political
subdivision from establishing non-identical safety standards
pertaining to the "same aspect of performance," but the Savings
Clause appears to allow common law actions that would have the same
effect. Id. at 40307. The court believed that this created an
ambiguity that resulted from the fact that, when it passed the Act,
"Congress ... did not contemplate the likelihood that there would
be a state tort action that would effectively create a state design
standard conflicting with a federal safety standard." Id. at 403.
Because both Clauses, and the relationship between the two, were
ambiguous in the context of a state tort standard not identical to
the federal standards but pertaining to the same aspect of
performance, the court "devine[d] no specific congressional intent
in section 1392(d) expressly to preempt an action of the present
type." Id. at 407 (emphasis added).
But the court held that Wood's state law claim was preempted
because it would "stand as an obstacle" to--and thus conflict
with--the Safety Act and its underlying regulations. Id. at 408.
The court reasoned that: (1) section 1392(d) would expressly
preempt a state regulation that required passive restraints,
because such a regulation would be applicable to the same aspect of
performance as, but not identical to, the federal standard; (2)
Wood's state law tort action would have the regulatory effect of
requiring passive restraints; and, therefore, (3) because Wood's
action "would have the same effect as an impermissible state

regulation, it is preempted because it stands as an obstacle to
Congress's chosen method for achieving auto safety." Id. The
court rejected Wood's argument that the Savings Clause foreclosed
the possibility of conflict preemption because it found that
Supreme Court cases support the view that "general savings clauses
may not be read literally to permit common law actions that
contradict and subvert a [federal] scheme." Id. at 415 (citing
International Paper Co. v. Ouellette, 479 U.S. 481, 494, 107 S.Ct.
805, 812, 93 L.Ed.2d 883 (1987), and Texas & Pacific Railway v.
Abilene Cotton Oil Co., 204 U.S. 426, 436, 27 S.Ct. 350, 353, 51
L.Ed. 553 (1907)).
The Tenth Circuit was next to address the failure-to-install
issue in Kitts v. General Motors Corp., 875 F.2d 787 (10th
Cir.1989). With little discussion, the Tenth Circuit followed
Wood, stating: "Because we believe Wood directly addresses and
correctly resolves the issue before us, we follow the general
principles articulated in Wood and adopt the implied preemption
rule of the First Circuit." Id. at 789.
One month later, the Eleventh Circuit faced the same issue in
Taylor v. General Motors Corp., 875 F.2d 816 (11th Cir.1989). Like
the First and Tenth Circuits, the Taylor court found that the
Safety Act does not expressly preempt a state tort action based on
a manufacturer's failure to install an air bag. Id. at 825.5 But
5The Eleventh Circuit found unpersuasive the First Circuit's
theory that Congress did not contemplate the possibility of a
state tort action that would create a state design standard that

the Taylor court also agreed that the tort action is impliedly
preempted because it would conflict with the federal regulatory
scheme. Citing the Supreme Court's holding in Fidelity Fed. Sav.
& Loan Ass'n v. de la Cuesta, 458 U.S. 141, 155, 102 S.Ct. 3014,
3023, 73 L.Ed.2d 664 (1982), that "a state common law rule cannot
take away the flexibility provided by a federal regulation, and
cannot prohibit the exercise of a federally granted option," the
Taylor court held that Taylor's state tort claim was preempted
because "a state common law rule that would, in effect, remove the
element of choice authorized in Safety Standard 208 would frustrate
the federal regulatory scheme." Id. at 827. Finally, the Eleventh
Circuit agreed with Wood's determination that "a "general' savings
clause, such as that contained in the Safety Act, does not preclude
a finding of implied preemption." Id. at 82728 n. 20.
The Third Circuit has issued the latest opinion on the
failure-to-install issue. In Pokorny v. Ford Motor Co., 902 F.2d
1116 (3rd Cir.), cert. denied, U.S. , 111 S.Ct. 147, 112
L.Ed.2d 113 (1990), the plaintiff claimed that Ford defectively
designed it's Econoline van because it failed to equip the van with
air bags, automatic seat belts, or protective netting on the
windows. Id. at 1117. Like the other circuits, the Third Circuit
found that: (1) the Safety Act did not expressly preempt Pokorny's
state tort claim, id. at 1121; (2) the claim that Ford is liable
because it failed to install air bags is impliedly preempted
conflicts with the federal standards. Id. at 825. But the court
rejected General Motors' express preemption argument because the
Preemption Clause does not mention state tort actions. Id.

because such a state standard would conflict with "the regulatory
methods chosen by the federal government to achieve the Safety
Act's stated goals," id. at 1123; and (3) the Safety Act's general
savings clause does not preclude preemption of a state common law
standard that conflicts with the federal scheme. Id. at 1125 & n.
10. But the Third Circuit emphasized that Pokorny's air bag claim
was preempted not simply because federal safety standards have been
established to govern the use of air bags, id. at 1121, but because
Pokorny's air bag claim "presents an actual, clear conflict with
federal regulation." Id. at 1123. Thus, the Safety Act preempted
Pokorny's claims that were based on Ford's failure to install air
bags or automatic seat belts, because they would create a state
standard that conflicts with the choice that the regulations
provide. Id. But the court held that the Act did not preempt
Pokorny's claim to the extent that it was based on Ford's failure
to install protective window netting, because a state standard
requiring such netting would not prohibit an option that Standard
208 provides. Id. at 112526.
4. Preemption in the Present Case.
The district court in this case held that, although the
Safety Act and its regulations do not expressly preempt Perry's
defective design claim,6 they implicitly preempt it because the
claim would create a state common law design standard for air bag
6MBNA does not contest the district court's decision that
Perry's design claim is not expressly preempted.

systems and thereby conflict with Standard 208's performance
standards and the overall federal scheme. We begin our analysis by
stating our agreement with the district court that Perry's
defective design claim is not expressly preempted.7 In the
Preemption Clause, Congress unambiguously expressed its intent to
preempt all regulations by a State or political subdivision of a
State that are applicable to the same aspect of performance as the
federal standards but not identical to them. 15 U.S.C. § 1392(d).
But Congress was just as unambiguous when it expressed its intent
in the Savings Clause not to exempt any person from any liability
under common law. Id. § 1397(k). So Congress did not expressly
preempt Perry's claim that MBNA's air bag system was unreasonably
dangerous and thus defectively designed under Louisiana law.
Nor do we find that Congress has created a "scheme of federal
regulation [that] is sufficiently comprehensive to make reasonable
the inference that Congress "left no room' for" Perry's tort claim.
Guerra, 479 U.S. at 280, 107 S.Ct. at 689. Nothing in the Safety
Act or its regulations reveals "the clear and manifest purpose of
Congress" to take from the States the power to allow tort liability
for unreasonably dangerous air bag systems. Hillsborough County,
471 U.S. at 715, 105 S.Ct. at 2376. In fact, the Savings Clause
reveals that Congress had the opposite intent.
7In doing so, we see no need to determine whether Congress
may or may not have "overlooked the possibility of the present
dilemma" when it wrote the Safety Act. See Wood, 865 F.2d at
402.

So we are left with the question of whether the imposition of
state-law tort liability for the defective design of an air bag
system would conflict with federal law. We think it obvious that
there is no conflict in the sense that "compliance with both
federal and state regulations is a physical impossibility."
Guerra, 479 U.S. at 281, 107 S.Ct. at 689. Federal Standard 208
S4.1.2 provides that, if a manufacturer chooses to install an air
bag system, that system must provide a level of protection that
meets the minimum performance standards specified in S5 and S6. If
a manufacturer is held liable in tort for not designing its system
to provide protection greater than that required by the federal
standard, the manufacturer can still comply with both the federal
standard and the state tort standard by designing its system to
meet the latter.
Thus, we are left with the question of whether state tort
liability would conflict with federal law by standing "as an
obstacle to the accomplishment and execution of the full purposes
and objectives of Congress." Id. This is the form of preemption
that the other circuits found in the failure-to-install cases,
based on their belief that tort liability in those cases would
interfere with "Congress's chosen method as well as ... the
ultimate goal of the statute." Wood, 865 F.2d at 408 (emphasis
added). But we find that it would not conflict with Congress'
objectives and methods if MBNA were found liable in tort for
failing to design its air bags to perform in a manner that
effectively exceeds the federal minimum standards. The landmark

for our analysis of this question is the Savings Clause, in which
Congress expressly preserved common law liability even if the
manufacturer complies with the federal standards. Perry contends
that the legislative history of the Safety Act and its Savings
Clause discloses Congress' intent that the federal scheme never
preempt common law liability. We need not recite that history
here,8 although we find it supportive of Perry's argument, because
we find that the Savings Clause itself unambiguously reveals
Congress' intent to preserve common law liability.
We are in agreement with the conclusion of the other circuits
that the Savings Clause does not preserve common law actions that
would actually conflict with, or "subvert," the objectives and
methods of the federal scheme. See Pokorny, 902 F.2d at 1125 ("it
is well-established that a savings clause like § 1397(k) does not
"save' common law actions that would subvert a federal statutory or
regulatory scheme"); Taylor, 875 F.2d at 82728 n. 20 ("a
"general' savings clause, such as that contained in the Safety Act,
does not preclude a finding of implied preemption"); Wood, 865
F.2d at 41516 (discussing the "general reluctance ... to follow a
savings clause if state law will actually conflict with a federal
regulatory scheme"). In reaching this conclusion, those courts
found, first, that the imposition of common law liability for the
8For an exhaustive discussion of the legislative history of
the Savings Clause, supporting Perry's argument that Congress
intended to preserve every common law remedy against automobile
manufacturers, see Keith C. Miller, Deflating the Airbag
Preemption Controversy, 37 EMORY L.J. 897, 91621 (1988)
(discussing the "cloudless and unmistakable will of Congress not
to preempt common law actions").

"defect" urged by those plaintiffs would have a regulatory effect
not unlike that of any state law or regulation, see, e.g., Taylor,
875 F.2d at 824 n. 16, 827; Wood, 865 F.2d at 41012, and, second,
that that effect would create an actual conflict with the federal
scheme.
We agree with their findings that state damages awards based
on tort liability can have a regulatory effect. But we find that
liability for the defective design of an air bag system would not
necessarily conflict with the objectives of the Safety Act or the
methods that have been chosen to fulfill those objectives. The
other circuits found an actual conflict in the failure-to-install
cases because the tort claims sought to impose liability on the
manufacturer for choosing an option that the federal scheme
expressly granted them the right to choose. Thus, the Third
Circuit concluded that "Pokorny's action does present an actual
conflict with the Safety Act and Standard 208 to the extent that it
alleges liability for Ford's failure to include air bags or
automatic seat belts" because such liability "undermines the
flexibility that Congress and the Department of Transportation
intended to give to automobile manufacturers in this area."
Pokorny, 902 F.2d at 1123 (emphasis added). But Pokorny's claim,
to the extent it asserted liability for Ford's failure to install
window netting, "presents no direct, actual conflict ... [because]
[i]t does not take away the flexibility established by the federal
scheme, and it does not have the effect of prohibiting an option
granted by Congress or the Department of Transportation." Id. at

1126 (emphasis added). And the Eleventh Circuit concluded that
Taylor's failure-to-install claim "would frustrate the federal
regulatory scheme" because it "would, in effect remove the element
of choice authorized in Safety Standard 208." Taylor, 875 F.2d at
827 (emphasis added).
We need not decide today whether we agree with the conclusion
that the other circuits reached on the failure-to-install issue.
Although we have stated our agreement with much of their reasoning,
we will wait to decide that issue if and when we face it. But even
if we assume that allowing liability for a manufacturer's failure
to install an air bag would conflict with Congress' chosen method
by removing or requiring one of the manufacturer's choices, Perry's
claim presents a different scenario.9 Once the manufacturer
chooses an option that includes an air bag system, Standard 208
S5S6 merely set forth minimum performance requirements for that
system. To allow tort liability for the design of that system
would not remove or require any particular choice, or otherwise
frustrate "flexibility" that the federal scheme provides. We
recognize that the manufacturer who chooses to meet only the bare
minimum performance requirements will be burdened with the
potential for tort liability, but this is the exact burden that
Congress preserved in the Savings Clause, when it stated that
9The First Circuit recognized the potential for this
distinction. After explaining the conflict that would be created
by "[a]llowing a common law action holding manufacturers liable
for failing to install air bags," that court noted: "We, of
course, do not imply that section 1392(d)'s prohibition immunizes
the manufacturer from liability for defective design of an air
bag." Wood, 865 F.2d at 402 & n. 10 (emphases added).

"[c]ompliance with any Federal motor vehicle safety standard ...
does not exempt any person from any liability under common law."
Congress sought to meet its goal of minimizing the number of deaths
and injuries caused by auto accidents by setting forth minimum
standards and leaving common law liability in place.
MBNA contends that allowing common law liability for the
defective design of an air bag system would conflict with another
goal of the Safety Act, that "motor vehicle safety standards be not
only strong and adequately enforced, but that they be uniform
throughout the country." S.REP. No. 1301 at 12, reprinted in 1966
U.S.C.C.A.N. at 2720. To allow tort liability under state law,
MBNA contends, would subvert this goal by allowing the development
of a different standard in each State. But whether the need for
uniform standards justifies the preemption of common law liability
is a legislative question. Our role is to determine the intent of
Congress as expressed by federal statutes and regulations. And the
method that Congress chose for meeting its goal of uniformity is
revealed in the Preemption Clause: no State or political
subdivision shall establish any non-identical standards. As the
Third Circuit explained in Pokorny,
uniformity was not Congress's primary goal in enacting the
Safety Act. In 15 U.S.C.A. § 1381, Congress declared that the
Safety Act's purpose was "to reduce traffic accidents and
deaths and injuries to persons resulting from traffic
accidents." Congress evidently thought that preserving common
law liability would further the goal of motor vehicle safety,
since § 1397(k) was included as part of the Act. In the face
of this clear declaration of congressional purpose, we are
unwilling to accept an overly broad notion of preemption based
on uniformity that could have the effect of undercutting

Congress's concern for safety.
902 F.2d at 1122 (citations omitted).
We agree with the Third Circuit, and refuse to reject the
Savings Clause in favor of Congress' secondary goal of uniformity.
We thus find that Perry's state law claim for defective design of
an air bag system does not create an actual conflict with the
Safety Act and its underlying regulatory scheme. As a result, we
cannot ignore the Savings Clause or find preemption in this case.
5. Evidence to Support the Defective Design Claim
MBNA contends that, even if Perry's defective design claim is
not preempted, summary judgment was proper on this claim because
Perry failed to adduce any competent evidence that the design of
the air bag system was unreasonably dangerous. MBNA raised this
argument before the district court, but that court based the
summary judgment only on the preemption argument. We may affirm a
district court's judgment on grounds other than those on which it
was based. See Lavespere v. Niagara Machine & Tool Works, Inc.,
920 F.2d 259, 262 (5th Cir.1990) ("Our affirmance of the district
court may rest on reasons not advanced by that court, although
reversal may not be."). But we decline MBNA's invitation to do so
in this case, and prefer, instead, to allow the district court to
consider the issue first.
B. THE DEFECTIVE CONSTRUCTION CLAIM

Perry alleges that, even if MBNA did not defectively design
its air bag systems, the particular system installed in her vehicle
deviated from its design and thus was unreasonably dangerous under
Louisiana law.10 Essentially, Perry contends that an air bag that
was properly constructed to MBNA's standards would have inflated in
this accident. The district court granted summary judgment for
MBNA on this claim because it found that, based on the evidence
provided, a reasonable juror could not find that Perry's vehicle
sustained the type of impact required to deploy the air bag under
MBNA's design specifications.11
When reviewing a summary judgment, we consider the record de
novo and are guided by the same standards that guided the district
court. GATX Aircraft Corp. v. M/V Courtney Leigh, 768 F.2d 711,
714 (5th Cir.1985). MBNA is entitled to summary judgment if it
demonstrates by pleadings, depositions, answers to interrogatories,
admissions, and affidavits, that there is no genuine issue of
material fact and that it is entitled to a judgment as a matter of
law. FED.R.CIV.P. 56(c). In response to this showing by MBNA,
10Under Louisiana law,
A product is unreasonably dangerous in
construction or composition if at the time it leaves
the control of its manufacturer it contains an
unintended abnormality or condition which makes the
product more dangerous than it was designed to be.
Halphen, 484 So.2d at 114; see also LA.REV.STAT.ANN. §
9:2800.55.
11The district court also held, and we agree, that the
Safety Act does not preempt claims that are based on the
allegation that a vehicle was not constructed according to its
design.

Perry may not rest on mere allegations or denials, but in the same
manner must demonstrate facts that show that a genuine and material
issue remains for trial. FED.R.CIV.P. 56(e). Perry's evidence must
be both significant and probative. State Farm Life Ins. Co. v.
Gutterman, 896 F.2d 116, 118 (5th Cir.1990).
Perry bears the burden of proving the elements of her claim.
See LA.REV.STAT.ANN. § 9:2800.54. In essence, Perry must prove both
the type of impact that is necessary to deploy the air bag
according to MBNA's design, and that her vehicle sustained that
type of impact. Axle Stehle, MBNA's expert, testified in his
deposition that MBNA designed the system so that the air bag would
deploy upon an impact equal to or greater than twelve miles per
hour against a rigid barrier. But because Perry's vehicle collided
with an earthen embankment rather than a rigid barrier, this
standard must be translated into terms that are applicable to this
particular accident. Stehle testified to two separate methods for
determining whether Perry's vehicle struck the ditch with the force
equivalent to twelve miles per hour against a rigid barrier.
First, Stehle testified that, based on his evaluation of the
accident and the ditch, Perry would have had to have been traveling
around forty to fifty miles per hour to trigger the air bag in this
accident. Second, Stehle testified that a vehicle that sustains an
impact equivalent to twelve miles per hour against a rigid barrier
will suffer damage to its structural members, so we can determine
whether Perry's air bag should have deployed by looking for

structural damage to the vehicle.12 Perry offered no evidence to
supplement or contradict Stehle's testimony on this point.
If Perry's speed at impact was the only material fact, we
would agree with Perry that the existence of a genuine issue
prevents summary judgment.13 But we must also consider Stehle's
testimony that an impact that is sufficient to trigger the air bag
would cause structural damage to the vehicle. While we might doubt
that this would be true in every case, Perry offered no evidence to
contest the validity of this standard, and thus we accept it as
fact. Perry has offered no evidence that her vehicle suffered
structural damage in this accident. In fact, the vehicle's repair
records show only repairs to external parts and replacement of the
12Specifically, Stehle testified: "I saw [vehicles that
sustain an impact equivalent to twelve miles per hour against a
rigid barrier], and they have damage to the structural parts of
the vehicle." Stehle Deposition at 10. Later, Perry's attorney
asked Stehle "whether it is the position of MercedesBenz that
[structural damage] must be demonstrated before the air bag is
supposed to deploy;" to which Stehle responded: "That is
correct." Id. at 1213. Finally, Stehle testified that, to
trigger the airbag, "you have to have speed to deform some parts
of the vehicle." Id. at 40.
13The parties offered conflicting evidence on Perry's speed
at impact. Perry testified in her deposition that she was going
at least twenty-five miles per hour before she noticed the stop
sign, and that she then "floor boarded it" to get through the
intersection and avoid Morris' car. Her intention, she stated,
was "to make the car go as fast as possible." Thus, she argues,
she must have been going well over twenty-five, and potentially
between forty and fifty miles per hour, at the time of impact.
MBNA, on the other hand, submitted the affidavit of Morris, who
had been trained as a deputy sheriff in accident evaluation and
investigation, in which he states his belief that Perry was
traveling between fifteen and twenty miles per hour, and did not
accelerate, as she moved through the intersection. Stehle
testified that, based on his evaluation of photographs of the
damaged vehicle, he "guessed" that Perry was traveling between
ten and twenty miles per hour.

steering wheel. And Stehle, who inspected the vehicle after it had
been repaired, testified that he found no evidence that the vehicle
had ever suffered structural damage. Because Perry offered no
evidence to create a factual issue of whether an impact sufficient
to deploy the air bag would cause structural damage to the vehicle,
or whether her vehicle sustained structural damage, we agree with
the district court that MBNA is entitled to summary judgment on
Perry's defective construction claim.
We REVERSE the district court's judgment and REMAND this case
for further proceedings on Perry's defective design claim.