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THE U.S. SUPREME COURT last week missed an opportunity to bring a little more sense into the U.S. tort system when it declined to review a New Hampshire case involving air bags.

The case, Ford Motor Co. vs. Tebbetts, focuses on a lack of air bags in a 1988 Ford Escort and whether a product liability suit should be allowed to go forward in New Hampshire courts even though the federal government did not require that cars have driver's side air bags until 1990. Instead, the Escort had a motorized automatic shoulder belt and a manual lap belt, safety options that met federal standards when the Escort rolled off the assembly line.

It seems like common sense that a manufacturer should be able to protect itself against product liability exposures by complying with a federal safety standard.

But that isn't what happened to Ford Motor Co. after a young woman died in a single-car accident while driving her 1988 Escort. Her mother sought a damages trial, alleging that, under state law, a car without air bags was unsafe. Ford argued that the case should be dismissed because federal car safety laws pre-empt state common law and its car met the federal standards at the time of manufacture.

A lower court agreed, but the New Hampshire Supreme Court overruled the lower court. While not addressing the issue of safety, New Hampshire's highest court ruled unanimously that the trial should proceed (BI, Sept. 25, 1995). Ford appealed, but the U.S. Supreme Court declined without comment to hear the case.

What's particularly troubling about the court's inaction is that the Ford case is not unique. Only a few weeks ago, the Indiana Supreme Court allowed a similar case against General Motors Corp. to go forward. The case involves a truck made in 1986, four years before air bags became mandatory (BI, Jan. 15).

There isn't a question that Ford complied with federal recommendations; it did. That the automaker still should face a product liability claim for complying with those regulations smacks of Franz Kafka. And to allow even one case to go forward in which a manufacturer faces a legal liability because it did what the federal government encouraged it to do is to open the litigation floodgates, which will work to virtually no one's benefit.

It is inevitable that the justices will get another chance to deal with the question raised in the Ford case. We can only hope they don't throw away the next chance to restore sanity to this corner of liability law.