The National Highway Traffic Safety Administration (“NHTSA”) issued a final rule requiring vehicle manufacturers to install rear view cameras in all vehicles by May 1, 2018.  Will this new rule lead to new avenues of litigation risk and potential liability for vehicle manufacturers?  If past history is a guide, the answer may well be yes.

This new rule, announced on April 7, 2014, applies to all vehicles under 10,000 pounds gross vehicle weight, excluding motorcycles and trailers.   NHTSA established a 48-month phase-in period for manufacturers to equip vehicles with rear view cameras.  The phase-in period runs from May 1, 2016 to May 1, 2018.  The rear view cameras must have a 10-foot by 20-foot field of view directly behind the vehicle.  Small volume and multi-stage vehicle manufacturers are excluded from the phase-in but must comply with all requirements by May 1, 2018.

According to the NHTSA Press Release:

On average, there are 210 fatalities and 15,000 injuries per year caused by backover crashes. NHTSA found that children under 5 years old account for 31 percent of backover fatalities each year, and adults 70 years of age and older account for 26 percent.

History suggests that the phase-in of rear view cameras may expose vehicle manufacturers to tort lawsuits.  In the late 1980’s, NHTSA published a regulation establishing a phase-in of airbags that led to several defective design lawsuits. These lawsuits targeted manufacturers that had not equipped all of their vehicles with airbags but were in compliance with the phase in, which permitted a certain percentage of vehicles to be manufactured without airbags until the end of the phase-in.  The lawsuits were based on an alternative design theory that airbags were a safer technology installed in other vehicles and should have been installed on the vehicle that was the subject of the lawsuit.

But in 2000, the United States Supreme Court held that In Geier v. Am. Honda Motor Co., Inc., defective design lawsuits over the phase-in of airbags were preempted by the NHTSA regulation. See Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861.  The Court applied ordinary preemption principles and reasoned that NHTSA expressed a clear purpose for the phase-in of airbags in the regulation that would ‘actually conflict’ with tort actions against vehicle manufacturers in compliance with the phase-in.  As it did with the phase-in of airbags, NHTSA has articulated a clear and express purpose for the phase-in of rear view cameras: to maximize safety benefits while providing flexibility to achieve compliance and avoid a significant additional cost burden on manufacturers.

Link to final rule: http://www.gpo.gov/fdsys/pkg/FR-2014-04-07/pdf/2014-07469.pdf

Link to Geier: http://supreme.justia.com/cases/federal/us/529/861/