Perry v. Mercedes Benz of North America, Inc. ( 1992 )


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  •                  United States Court of Appeals,
    
                                 Fifth Circuit.
    
                                  No. 91–3363.
    
                  LYNDA D. PERRY, Plaintiff–Appellant,
    
                                       v.
    
     MERCEDES BENZ OF NORTH AMERICA, INC. and ABC INSURANCE COMPANY,
    Defendants–Appellees.
    
                             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. Johns–Manville 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.
    
    
           1
          The 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.
           2
          In 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.
    §§ 1381–1431, 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
    
         3
          For 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
    , 34–38, 
    103 S. Ct. 2856
    ,
    2862–64, 
    77 L. Ed. 2d 443
     (1983); Wood v. General Motors Corp.,
    
    865 F.2d 395
    , 398–99 (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
    
    
    901–09 (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 280–81, 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
    , 1150–51, 
    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).
    
    
              4
          Some 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 403–07.     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
    
         5
          The 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 827–28 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 1125–26.
    
    
    
    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
    
    
          6
          MBNA 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.
    
    
    
    
         7
          In 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   827–28   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 415–16 (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
    
         8
          For 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, 916–21 (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 410–12, 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
    
    S5–S6 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
    
         9
          The 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,
    
           10
                Under 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.
           11
          The 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
    
         12
          Specifically, 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 Mercedes–Benz that
    [structural damage] must be demonstrated before the air bag is
    supposed to deploy;" to which Stehle responded: "That is
    correct." Id. at 12–13. Finally, Stehle testified that, to
    trigger the airbag, "you have to have speed to deform some parts
    of the vehicle." Id. at 40.
         13
          The 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.