                  IN THE SUPREME COURT OF TENNESSEE
                              AT JACKSON
                               November 7, 2012 Session

  CLIFTON A. LAKE ET AL. v. THE MEMPHIS LANDSMEN, LLC ET AL.

          Appeal by Permission from the Court of Appeals, Western Section
                         Circuit Court for Shelby County
                 No. CT00609400      John R. McCarroll, Jr., Judge


                   No. W2011-00660-SC-R11-CV - Filed May 3, 2013


On March 18, 1998, a concrete truck collided with a shuttle bus used to transport passengers
between the Memphis International Airport and a nearby rental car facility. A passenger,
who suffered a severe brain injury as a result of the collision, and his wife brought suit
against the owner of the bus, the manufacturer of the bus, the manufacturer of the bus
windows, and the franchisor of the rental car business. They based their claims in negligence
and products liability, contending that the bus was unsafe because it was not equipped with
passenger seatbelts, because it had side windows made of tempered glass rather than
laminated glass, and because it provided perimeter seating instead of forward-facing rows.
The trial court granted summary judgment to the window manufacturer and partial summary
judgments as to the products liability claims against the bus owner and franchisor, but
otherwise denied the defendants’ motions for summary judgment, which asserted that the
plaintiffs’ claims were preempted by federal motor vehicle safety standards. Following trial,
the jury found that the plaintiffs had sustained damages in the amount of $8,543,630, but
assessed 100% of the fault to the corporate owner of the concrete truck, which had reached
a settlement with the plaintiffs prior to trial. On appeal, the plaintiffs contended that they
were entitled to a new trial, citing twelve grounds for review. As a threshold issue, however,
the defendants continued to argue federal preemption of the claims. The Court of Appeals
held that Federal Motor Vehicle Safety Standards 205 and 208, 49 C.F.R. §§ 571.205, .208
(1995), preempted the claims based on the lack of passenger seatbelts and the material used
in the window glass, and further ruled that the trial court had erred by failing to grant a
directed verdict on the perimeter-seating claim because the evidence was insufficient to
establish causation. We granted the plaintiffs permission to appeal and remanded the case
to the Court of Appeals for reconsideration in light of the intervening decision by the United
States Supreme Court in Williamson v. Mazda Motor of America, Inc., 131 S. Ct. 1131
(2011). On remand, the Court of Appeals reaffirmed its prior judgment, concluding that the
ruling in Williamson did not affect its previous analysis. The plaintiffs were again granted
permission to appeal. Because the seatbelt and window-glass claims are not preempted by
federal law and the evidence sufficiently demonstrates causation in fact as to the perimeter-
seating claim, the judgment is reversed and the cause is remanded to the Court of Appeals
for consideration of the plaintiffs’ claims of error during the course of the trial.

   Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
               Reversed; Case Remanded to the Court of Appeals

G ARY R. W ADE, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Gary K. Smith and C. Philip M. Campbell, Memphis, Tennessee, for the appellants, Clifton
A. Lake and Charleen J. Lake.

Kenneth R. Rudstrom, Memphis, Tennessee, and James E. Singer, Atlanta, Georgia, for the
appellee, The Memphis Landsmen, LLC.

Molly A. Glover, Aaron Robert Parker, Steve N. Snyder, and Eric J. Llewellyn, Memphis,
Tennessee, for the appellee, Metrotrans Corporation.

James Branson Summers, Heather Webb Fletcher, and Kirk Caraway, Memphis, Tennessee,
for the appellee, Budget Rent A Car Systems, Inc.

                                        OPINION

                              I. Facts and Procedural History
       On March 18, 1998, a 60,000-pound concrete truck owned by Horn Lake Redi-mix
(“Horn Lake”) collided with a shuttle bus at an intersection near the Memphis International
Airport, spinning the back of the bus into a light pole. Clifton Lake (“Lake”), an attorney
from Chicago, had arrived at the airport that morning and was one of two passengers on the
shuttle bus at the time of the accident. As a result of the collision, he was thrown through
one of the side windows of the bus and suffered a traumatic brain injury. The owner of the
bus, The Memphis Landsmen, LLC (“Landsmen”), operated a rental car business through a
franchise with Budget Rent A Car Systems, Inc. (“Budget”), and used the bus to shuttle
passengers between its rental car facility and the airport. The bus was manufactured in
October of 1995 by Metrotrans Corporation (“Metrotrans”). Its windows were manufactured
by Hehr International, Inc. (“Hehr”).

      In 1999, Lake and his wife, Charleen Lake (collectively, the “Plaintiffs”), filed a
complaint in federal court against Horn Lake, Landsmen, Metrotrans, and Hehr, seeking
damages on theories of negligence and strict liability. When Metrotrans, in response to the

                                             -2-
complaint, alleged comparative fault on the part of Budget, the Plaintiffs amended their
complaint to add Budget as a defendant, arguing that Landsmen had acted as the agent of
Budget. The joinder of Budget divested the federal court of subject matter jurisdiction and
led to the dismissal of the complaint without prejudice.1 After settling their claim with Horn
Lake, the Plaintiffs commenced this case on October 18, 2000, by filing a complaint against
Metrotrans, Landsmen, Budget (collectively, the “Defendants”), and Hehr. The trial court
granted summary judgment in favor of Hehr, dismissing Hehr from the litigation.

       In their complaint, as amended, the Plaintiffs asserted a cause of action for common
law negligence against each of the Defendants, contending that the driver of the bus failed
“to exercise ordinary and reasonable care” in his operation of the bus, and claiming that
Landsmen, as the driver’s employer, was vicariously liable. The Plaintiffs alleged that
Metrotrans was negligent in the manufacture and sale of a bus without passenger seatbelts,
and that Landsmen was negligent for purchasing and using such a bus “when seatbelts were
offered as an option . . . and could have been installed in the vehicle for a relatively small
cost.” The Plaintiffs claimed negligence on the part of Budget based on a franchise theory
of agency, asserting that “Landsmen acted . . . as either the actual or apparent agent of
[Budget]” in purchasing and using the bus. The Plaintiffs also claimed that Budget acted
negligently in creating “corporate specifications” for franchisees that did not include
passenger seatbelts for shuttle buses.

        The Plaintiffs also asserted a cause of action for strict liability against each of the
Defendants under the Tennessee Products Liability Act of 1978 (“Products Liability Act”),
Tenn. Code Ann. §§ 29-28-101 to -108 (2000 & Supp. 2006), which provides, in pertinent
part, that the “manufacturer or seller of a product” may be liable for injuries caused by the
product if it is “determined to be in a defective condition or unreasonably dangerous at the
time it left the control of the manufacturer or seller.”2 Id. § 29-28-105(a). The Plaintiffs



        1
         Federal subject matter jurisdiction in the case had been premised on the diverse citizenship of the
parties. Because Budget, like the Plaintiffs, qualified as a citizen of Illinois, the addition of Budget as a
defendant precluded the continued exercise of diversity jurisdiction. See 28 U.S.C. § 1332 (2006).
        2
          The Products Liability Act defines the term “defective condition” as “a condition of a product that
renders it unsafe for normal or anticipatable handling and consumption.” Id. § 29-28-102(2). The term
“unreasonably dangerous” means that

        a product is dangerous to an extent beyond that which would be contemplated by the
        ordinary consumer who purchases it, with the ordinary knowledge common to the
        community as to its characteristics, or that the product because of its dangerous condition
        would not be put on the market by a reasonably prudent manufacturer or seller, assuming
                                                                                              (continued...)

                                                    -3-
maintained that the bus was in a defective condition and was unreasonably dangerous
because it lacked passenger seatbelts, had side windows made of tempered glass rather than
laminated glass, and used a perimeter seating arrangement instead of rows with forward-
facing seats. The Plaintiffs sought recovery under the Products Liability Act, claiming that
Metrotrans, in conjunction with Landsmen and in reliance on the corporate specifications
established by Budget, had developed an unsafe design.

       Each of the Defendants moved for summary judgment, arguing, among other things,
that Federal Motor Vehicle Safety Standard (“FMVSS”) 205 preempted the claim based on
the material used in the window glass and that FMVSS 208 preempted the claim based on
the lack of passenger seatbelts. See 49 C.F.R. §§ 571.205, .208 (1995). The trial court
granted partial summary judgment as to the products liability claims against Landsmen and
Budget,3 but otherwise denied the motions by each of the Defendants, including the
assertions of preemption. In August of 2008, the case proceeded to trial, which extended
over a three-week period.

        At trial, Wayne McCracken, a mechanical engineer specializing in motor vehicle
accident reconstruction, testified that the bus had a Gross Vehicle Weight Rating (“GVWR”)
of 11,500 pounds, whereas the concrete truck weighed approximately 60,000 pounds.
According to McCracken, a witness for the Plaintiffs, the bus was traveling through an
intersection at approximately twenty-eight miles per hour when the driver of the concrete
truck, which was traveling in the opposite direction at approximately ten miles per hour,
failed to yield as he attempted to make a left turn, thereby causing the collision. McCracken
testified that the concrete truck hit the driver side of the bus near the rear wheels, causing the
bus to spin in a counterclockwise direction until the passenger side of the rear of the bus
struck a light pole. McCracken further indicated that he understood from the information
made available to him that Lake had been seated in one of the inward-facing seats on the
driver side of the passenger compartment.4 McCracken explained that a person sitting in that

        2
         (...continued)
        that the manufacturer or seller knew of its dangerous condition.

Id. § 29-28-102(8).
        3
         The trial court ruled that the Plaintiffs could not recover damages from Landsmen or Budget on a
products liability theory because they had not manufactured or sold the bus or any of its components.
        4
         During his testimony, McCracken stated that the information he reviewed included photographs
of the accident scene, deposition testimony, and witness statements, including a statement by the other
passenger on the bus. While the other passenger did not testify, he provided a statement indicating that Lake
had been seated across from him at the time of the accident. The statement, while reviewed by McCracken,
                                                                                               (continued...)

                                                    -4-
location would have taken on the velocity of the bus as it spun and would be forced towards
the windows on the passenger side upon impact with the light pole.

        Dr. Brian Frist, a medical examiner with expertise in auto-collision occupant
kinematics, which involves the study of occupant motion during a crash, testified that as a
result of the accident, Lake suffered a traumatic brain injury that left him with impaired
cognitive functioning. According to Dr. Frist, the injury likely occurred when Lake was
ejected from the bus and his head struck a cement divider on the street. While conceding that
it was “possible, though not probable,” that Lake’s brain injury resulted from an impact with
the interior of the bus prior to his ejection or from an impact with the window glass during
his ejection, Dr. Frist opined that Lake would not have sustained a traumatic brain injury had
he not been thrown from the bus.

       Dr. Carl Evan Nash, a physicist specializing in automotive safety, testified that the bus
provided inadequate safeguards against occupant ejection in three ways: first, the bus had a
seatbelt for the driver but was not equipped with passenger seatbelts; second, the bus had
perimeter seating, meaning that it had seats along the sides and rear of the bus that faced
toward the center; and, third, the bus contained tempered glass rather than laminated glass
in the side windows. Dr. Nash explained that a perimeter seating configuration was
problematic because, unlike a forward-facing configuration, it did not offer
“compartmentalization,” which Dr. Nash defined as the construction of seats in a manner
designed to contain occupants in the event of an accident. He explained the difference
between tempered and laminated glass as follows:

        [T]empered glass has been subjected to a heat treatment to make it extremely
        resistant to breaking. However, there’s a lot of stress that’s built up in the
        glass in that process, so that when it breaks, it totally shatters into very small
        pieces such that the glass itself is not likely to harm a person, but it no longer
        forms a barrier in the window opening.

        ....

               Laminated glass by contrast has two layers of glass separated by a very
        strong plastic layer, and it’s all glued together, and when laminated glass
        breaks, the plastic [layer] in the center continues to act as a barrier through
        which ejection becomes difficult.



        4
         (...continued)
was not disclosed to the jury.

                                               -5-
        Dr. Nash testified that because of these characteristics, the bus offered inadequate
protection from occupant ejection—a major issue given that an occupant who is ejected
during an accident is approximately four times likelier to suffer severe or fatal injuries than
an occupant who is contained inside the vehicle. Dr. Nash concluded that Lake would not
have been ejected if he had been wearing a seatbelt and that he “almost certainly” would not
have been ejected if the bus had been equipped with side windows made of laminated glass.
Dr. Nash acknowledged that all components of the bus—including its seatbelts, window
glass, and seating configuration—were in compliance with the applicable federal regulations,
and he conceded that a 60,000-pound concrete truck traveling at around ten to twelve miles
per hour would generate roughly twenty times as much force as a 3000-pound automobile
going the same speed.

        Several witnesses testified as to Lake’s physical, emotional, and economic injuries,
as well as to his wife’s loss of consortium and companionship. The Plaintiffs’ two adult
children offered testimony, as did two of Lake’s former colleagues and several medical and
economic experts. Although Lake had no recollection of the accident, he was able to testify
as to the nature of his injuries and their effects.

        Landsmen called a single witness, Bill Shultz, who had worked as the General
Manager for Landsmen at the time the company purchased the bus in 1995 and at the time
of the accident in 1998. Shultz, who was responsible for purchasing the bus and had
knowledge of the general practices in the rental car industry, testified that at the time
Landsmen purchased the bus, all rental car businesses in the country used shuttle buses that
had perimeter seating without passenger seatbelts. Shultz further testified that he was
unaware of any previous accident involving a rental car shuttle bus as serious as the one in
this case. According to Shultz, the corporate office for Budget had recommended the 1995
model manufactured by Metrotrans because it was believed to be the best on the market. On
cross-examination, Shultz explained that while Budget recommended the 1995 Metrotrans
model, Budget exerted no control over what type of bus Landsmen purchased and had no
authority to override any purchasing decision by Landsmen.

        Terri Hobbs, as Executive Vice President at Metrotrans, was responsible for the sale
of the bus to Landsmen. She testified that representatives from Budget had collaborated with
Metrotrans in developing the specifications that Budget used in making recommendations
to its franchisees regarding which shuttle buses to use. According to Hobbs, Landsmen
purchased the bus in question based upon Budget’s recommended specifications. She
testified that she had provided Landsmen with advertising material indicating that seatbelts
were offered as an option on the 1995 model purchased by Landsmen; she pointed out,
however, that passenger seatbelts were not included in Budget’s specifications and were not



                                              -6-
standard for shuttle buses in the rental car industry. Hobbs likewise testified that a majority
of the buses sold to rental car businesses included a perimeter seating arrangement.

        At the close of the proof, each of the Defendants renewed their motions for a directed
verdict, which had previously been denied when the Plaintiffs rested their case. The trial
court granted Budget’s motion on the issue of agency and also granted a directed verdict on
the issue of the bus driver’s negligence, ruling that the evidence was insufficient as a matter
of law to demonstrate that the bus driver either caused or contributed to Lake’s injuries. The
trial court denied the remaining motions for a directed verdict.

        After finding that the Plaintiffs had suffered damages in the amount of $8,543,630,
the jury assessed 100% of the fault to Horn Lake and concluded that none of the Defendants
were at fault for the injuries to the Plaintiffs.

      On appeal to the Court of Appeals, the Plaintiffs presented twelve issues. Lake v.
Memphis Landsmen, L.L.C., No. W2009-00526-COA-R3-CV, 2010 WL 891867, at *3
(Tenn. Ct. App. Mar. 15, 2010) (“Lake I”).5 In response, Budget raised a single


       5
           As restated by the Court of Appeals, the twelve issues were as follows:

       1.        Whether the trial court erred in denying the [Plaintiffs’] Motion for New Trial or
                 to Alter or Amend the Judgment?

       2.        Whether the trial court erred in failing to charge the jury as to the specific effect a
                 finding of fault on the part of non-party, Horn Lake, would have on the ultimate
                 outcome?

       3.        Whether the jury’s verdict was contrary to the weight of the evidence and the trial
                 court, as “thirteenth juror[,]” should have set the verdict aside?

       4.        Whether the trial court erred in permitting Horn Lake to be placed on the verdict
                 form?

       5.        Whether the trial court erred in granting partial summary judgment to Memphis
                 Landsmen and Budget on the products liability claim?

       6.        Whether the trial court erred in granting Budget a directed verdict on the Lakes’
                 claims of agency?

       7.        Whether the trial court erred in admitting evidence of compliance with government
                 standards?

                                                                                                  (continued...)

                                                      -7-
issue—“[w]hether the trial court erred by failing to grant a directed verdict to Budget on the
issue of whether Budget owed a legal duty to the [Plaintiffs]”—and Metrotrans presented
three issues, one of which was whether the trial court should have found that the Plaintiffs’
claims were preempted by federal law.6 Id.

         The Court of Appeals held that FMVSS 205 and 208 preempted the Plaintiffs’ claims
based on the use of tempered glass in the side windows and the failure to provide passenger
seatbelts. Id. at *4-11. Having determined that preemption precluded recovery on these
claims, the Court of Appeals observed that the Plaintiffs’ only remaining cause of action was
based on the use of perimeter seating. Even though the Defendants did not present as an
issue the trial court’s denial of the Defendants’ motions for a directed verdict as to the
perimeter-seating claim, the Court of Appeals chose to address that ruling sua sponte in order
“to fully adjudicate” the matter, concluding that there was no evidence that Lake was seated
at the time of the accident and that, in consequence, the Plaintiffs had not established that the
perimeter seating configuration caused Lake’s injuries. Id. at *12-13. Having determined
that the Plaintiffs’ seatbelt and window-glass claims were preempted and that the evidence

        5
         (...continued)
        8.       Whether the trial court erred in admitting a letter from former [National Highway
                 Traffic Safety Administration] general counsel dated August 19, 1992 into
                 evidence?

        9.      Whether the trial court erred in denying admission into evidence a letter dated
                December 17, 1996, from then acting [National Highway Traffic Safety
                Administration] chief counsel to Attorney Donna Oshiro of Hawaii?

        10.     Whether the trial court erred in denying the [Plaintiffs’] motion in limine to
                preclude evidence of Mr. Lake’s alcohol use and its possible effects on his brain
                injury?

        11.     Whether the trial court erred in admitting into evidence a series of letters that were
                made exhibits to Dr. Helge Frank’s deposition?

        12.     Whether all of the above errors, singularly or in combination, constituted error
                which materially prejudiced the [Plaintiffs] and more probably than not affected the
                judgment or resulted in prejudice to the judicial process?

Id.
        6
           The other two issues raised by Metrotrans, as restated by the Court of Appeals, were (1) “[w]hether
the trial court should have granted a directed verdict against the [Plaintiffs] based on the use of tempered
glass in the windows,” and (2) “[w]hether the trial court should have charged the jury as to the rebuttable
presumption that a product which complies with government standards is not unreasonably dangerous, as
provided in [Tennessee Code Annotated section 29-28-104].” Id. at *4.

                                                     -8-
was insufficient as to their seating-configuration claim, the Court of Appeals found it
unnecessary to address any of the remaining issues. Id. at *13.

       Subsequent to Lake I, the United States Supreme Court issued its ruling in Williamson
v. Mazda Motor of America, Inc., 131 S. Ct. 1131 (2011), which specifically addressed when
federal motor vehicle regulations preempt tort claims arising under state law. In an order
issued on March 24, 2011, this Court granted the Plaintiffs’ application for permission to
appeal from the decision in Lake I “for the purpose of remanding the case to the Court of
Appeals for reconsideration in light of the United States Supreme Court’s opinion in
Williamson.” On remand, the Court of Appeals found that its preemption analysis in Lake
I was “not disturbed by the Williamson decision.” Lake v. Memphis Landsmen, L.L.C.,
W2011-00660-COA-RM-CV, 2011 WL 5022790, at *1 (Tenn. Ct. App. Oct. 21, 2011)
(“Lake II”). Further, the Court of Appeals declined to revisit its determination that the
Defendants were entitled to a directed verdict on the perimeter-seating claim. Id. at *7-8.
We granted the Plaintiffs’ application for permission to appeal from Lake II in order to
consider the preemptive effect of FMVSS 205 and 208 and the viability of the perimeter-
seating claim.

                                        II. Analysis
       The issues addressed in this appeal are, first, whether the Plaintiffs’ claims premised
on the lack of passenger seatbelts in the bus and the material used in the window glass are
preempted by federal law; and second, whether the evidence is sufficient to support the claim
based on the seating configuration.

                                    A. Preemption
       Preemption involves a question of law that is subject to de novo review on appeal.
Leggett v. Duke Energy Corp., 308 S.W.3d 843, 851 (Tenn. 2010) (quoting Friberg v. Kan.
City S. Ry. Co., 267 F.3d 439, 442 (5th Cir. 2001)). The Defendants urge this Court to
affirm the determination of the Court of Appeals that FMVSS 208 preempts the seatbelt
claim and that FMVSS 205 preempts the window-glass claim. The Plaintiffs contend that
neither claim would conflict with the purposes and objectives of the federal regulations
governing passenger seatbelts and window-glass materials in buses and, therefore, neither
claim is subject to preemption.

                              1. Principles of Preemption Law
        The legal basis for the doctrine of preemption is the Supremacy Clause of the United
States Constitution, which mandates that the “Constitution, and the Laws of the United States
which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Pursuant to the Supremacy

                                             -9-
Clause, a law enacted by Congress may preempt an otherwise valid state law, rendering it
without effect. Leggett, 308 S.W.3d at 853. Consistent with this principle, a federal
regulation promulgated by an agency pursuant to its congressionally delegated authority may
preempt a state tort suit. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 886 (2000); MCI
Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 482 (Tex. 2010) (citing City of N.Y. v. FCC,
486 U.S. 57, 63-64 (1988)).

       The United States Supreme Court has identified two fundamental principles that must
guide any preemption analysis. First, no matter what type of preemption is at issue, “the
purpose of Congress is the ultimate touchstone.” Wyeth v. Levine, 555 U.S. 555, 565 (2009)
(quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). Second, in conducting any
preemption inquiry, courts must “start with the assumption that the historic police powers of
the States were not to be superseded by [federal law] unless that was the clear and manifest
purpose of Congress”—particularly when the federal law in question pertains to “a field
which the States have traditionally occupied.” Id. (quoting Medtronic, 518 U.S. at 485)
(internal quotation marks omitted); see also Leggett, 308 S.W.3d at 854; Morgan v. Ford
Motor Co., 680 S.E.2d 77, 83 (W. Va. 2009) (“Preemption of topics traditionally regulated
by states—like health and safety—is greatly disfavored in the absence of convincing
evidence that Congress intended for a federal law to displace a state law.”).

        Courts recognize both express preemption, which occurs when Congress explicitly
dictates that a federal law supplants contrary state law, and implied preemption, which
typically falls into one of three categories: (1) field preemption, (2) direct conflict
preemption, or (3) “purposes and objectives” conflict preemption.7 Leggett, 308 S.W.3d at
853. “Field preemption occurs when federal regulation of a field is ‘so pervasive as to make
reasonable the inference that Congress left no room for the States to supplement it.’” Id. at
854 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). Direct conflict
preemption arises from “an inescapable contradiction between state and federal law—for
example, ‘where it is impossible for a private party to comply with both state and federal
law.’” Id. at 853 (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372-73
(2000)). Purposes and objectives conflict preemption—the only category of preemption at
issue in this appeal—occurs when a state law “‘stands as an obstacle to the accomplishment
and execution of the full purposes and objectives’ of a federal law.” Williamson, 131 S. Ct.
at 1136 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).




        7
          Courts interchangeably refer to this latter type of preemption as “purposes and objectives”
preemption, “frustration-of-purpose” preemption, and “obstacle” preemption. See, e.g., Geier, 529 U.S. at
873-74; id. at 908 n.22 (Stevens, J., dissenting).

                                                  -10-
        In order to determine whether a state law impermissibly conflicts with the purposes
and objectives of a federal regulation, courts must look to the regulation’s “history, the
promulgating agency’s contemporaneous explanation of its objectives, and the agency’s
current views of the regulation’s pre-emptive effect.” Id. As the United States Supreme
Court has cautioned, courts must remain mindful “that it is Congress rather than the courts
that preempts state law”; in keeping with this principle, courts must guard against implied
preemption analysis devolving into a “freewheeling judicial inquiry into whether a state
statute is in tension with federal objectives.” Chamber of Commerce of U.S. v. Whiting, 131
S. Ct. 1968, 1985 (2011) (quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 111
(1992) (Kennedy, J., concurring in part and concurring in judgment)) (internal quotation
marks omitted); see also Wyeth, 555 U.S. at 604 (Thomas, J., concurring in judgment only)
(concluding that “broad evaluations of the ‘purposes and objectives’ embodied within federal
law” result in “the illegitimate—and thus, unconstitutional—invalidation of state laws”).

                       2. Preemptive Effect of FMVSS 205 and 208
        The federal regulations pertaining to motor vehicle safety stem from the National
Traffic and Motor Vehicle Safety Act of 1966 (the “Safety Act”), 15 U.S.C. §§ 1381–1431
(1988) (current version at 49 U.S.C. §§ 30101–30183 (2006)). “The purpose of [the Safety
Act] is to reduce traffic accidents and deaths and injuries resulting from traffic accidents.”
49 U.S.C. § 30101. To achieve this objective, Congress has delegated to the Secretary of
Transportation the authority to “prescribe motor vehicle safety standards,” id. § 30111(a),
which are defined as “minimum standard[s] for motor vehicle or motor vehicle equipment
performance,” id. § 30102(a)(9).8 The Secretary of Transportation has delegated this
rulemaking authority to the National Highway Traffic Safety Administration (“NHTSA”),
49 C.F.R. § 1.95(a) (2012), which promulgated both of the regulations at issue in this
instance: FMVSS 205 and 208. See id. §§ 571.205, .208. Keeping in mind the principles
of preemption discussed above, the key question in this appeal is whether these motor vehicle
safety standards preempt the Plaintiffs’ seatbelt and window-glass claims.

                        a. FMVSS 208 and Passenger Seatbelts
      FMVSS 208 “specifies performance requirements for the protection of vehicle
occupants in crashes.” 49 C.F.R. § 571.208, S1. The purpose of FMVSS 208, according to

        8
           The Safety Act contains an express preemption clause, which prohibits states from enacting any
standard that differs from a federal motor vehicle safety standard that is “applicable to the same aspect of
performance of a motor vehicle or motor vehicle equipment.” Id. § 30103(b)(1). The Safety Act also
contains a saving clause, however, which provides that “[c]ompliance with a motor vehicle safety standard
. . . does not exempt a person from liability at common law.” Id. § 30103(e). Reading these provisions
together, the United States Supreme Court has clarified that the saving clause exempts state law tort suits
from express preemption but does not preclude application of ordinary preemption principles. See Geier,
529 U.S. at 868-69, 874.

                                                   -11-
its own text, “is to reduce the number of deaths of vehicle occupants, and the severity of
injuries, by . . . specifying equipment requirements for active and passive restraint systems.”
Id. § 571.208, S2. Throughout its history, the standard has remained silent on the issue of
passenger seatbelts with regard to the category of the vehicle at issue here—buses with a
GVWR greater than 10,000 pounds.9

        The original version of FMVSS 208 contained provisions applicable to all buses
manufactured on or after January 1, 1972, requiring either a “complete . . . protection system”
or a “belt system,” but this requirement applied only to the driver, not passengers. See id.
§ 571.208, S4.4.1. In 1973, NHTSA issued a notice “propos[ing] a new motor vehicle safety
standard to require buses to have passenger seats that are stronger, higher, and less hostile
on impact than present seats.” Bus Passenger Seating and Crash Protection, 38 Fed. Reg.
4776, 4776 (Feb. 22, 1973). The proposed standard mandated seatbelts and other seating
specifications for all seating positions in all buses. Id. at 4776-77. After studying the issue
for over a year, NHTSA withdrew the proposed new standard, citing cost concerns and
statistics indicating that seating improvement would not substantially reduce injuries in
intercity and transit buses, largely because, according to surveys, few passengers in those
types of buses would use seatbelts if provided. School Bus Passenger Crash Protection, 39
Fed. Reg. 27,585, 27,585 (July 30, 1974). In light of these considerations, NHTSA
concluded that the passenger seatbelt requirement and the other proposed seating
requirements were not necessary “because of the adequacy of th[e] seating as presently
designed.” Id. NHTSA opted instead to propose a different set of seating requirements to
apply exclusively to school buses, which were eventually adopted. See id.; see also 49
C.F.R. § 571.222 (2012).

        In 1988, NHTSA proposed a rule that would require “manufacturers to install
lap/shoulder belts in all forward-facing rear outboard seating positions in passenger cars,
light trucks, multipurpose passenger vehicles (e.g., passenger vans and utility vehicles), and
small buses.” Occupant Crash Protection, 53 Fed. Reg. 47,982, 47,982 (Nov. 29, 1988). In
its notice of the proposed rule, NHTSA emphasized the extensive research “show[ing] that
lap belts in the rear seat are effective in preventing deaths and reducing injuries,” and it
further concluded that lap-and-shoulder belts in rear seating positions, including the
passenger seats of small buses, would bring about increased safety benefits. Id. at 47,984.
The proposed rule was adopted in 1989. Occupant Crash Protection, 54 Fed. Reg. 46,257,
46,257 (Nov. 2, 1989) (codified at 49 C.F.R. § 571.208, S4.4.3 (2012)). In considering
whether to adopt this rule, however, the agency specifically exempted large buses from
consideration. Id. at 46,261; Occupant Crash Protection, 53 Fed. Reg. at 47,987. As a result,


        9
          For ease of reference, we will hereinafter refer to buses with a GVWR greater than 10,000 pounds
as “large buses” and buses with a GVWR of 10,000 pounds or less as “small buses.”

                                                  -12-
the version of FMVSS 208 in effect at the time the bus at issue was manufactured—like the
current version—requires either a complete protection system or a seatbelt for the driver but
does not require passenger seatbelts for large buses. See 49 C.F.R. § 571.208, S4.4.2.1–.2,
S4.4.3.1.

        Not surprisingly, the Plaintiffs and the Defendants advance differing interpretations
of the history of FMVSS 208 as well as NHTSA’s explanations for not imposing a passenger
seatbelt requirement for large buses.10 The Defendants assert that the requirement of a
seatbelt only for the driver position in large buses is tantamount to “an explicit statement that
passenger seatbelts are not required,” reflecting a “conscious decision” by NHTSA “not to
require seatbelts in passenger seats” based upon the determination that large buses are safe
without passenger seatbelts. The Defendants also draw our attention to a letter dated August
19, 1992, in which NHTSA’s Chief Counsel, Paul Jackson Rice, opined that FMVSS 208
would preempt proposed legislation under consideration in New York that would have
imposed a passenger seatbelt requirement for large buses. This opinion was based on Rice’s
assessment that “NHTSA [had] expressly determined that there is not a safety need for safety
belts or another type of occupant crash protection [in passenger] seating positions.” The
Plaintiffs, on the other hand, dispute the notion that NHTSA has interpreted FMVSS 208 to
preempt state tort suits and argue that prohibiting passenger seatbelts is not a significant
regulatory objective of FMVSS 208.

        In support of their respective contentions, the parties rely upon a series of United
States Supreme Court decisions addressing the preemption of state tort claims by federal
regulations. The Defendants, like our Court of Appeals, rely heavily upon Geier, a 2000
decision in which the Supreme Court concluded that the 1984 version of FMVSS 208
preempted a state law tort claim premised on the failure of an auto-manufacturer to equip the
plaintiff’s vehicle with an airbag. 529 U.S. at 864-65. At issue in Geier was a portion of
FMVSS 208 that required manufacturers to equip their vehicles with “passive restraint
systems,” but at the same time permitted manufacturers “to choose among different passive
restraint mechanisms, such as airbags, automatic belts, or other passive restraint technologies
to satisfy that requirement.” Id. at 878. The key feature of the regulation requiring
preemption was that the passive restraint standard “deliberately sought variety—a mix of

        10
            In support of their respective arguments about the history of the regulations and the agency’s
explanation of the relevant objectives, the parties cite extensive material postdating the manufacture of the
bus at issue. Consistent with United States Supreme Court precedent, we will limit our consideration of these
issues to the version of the regulations in effect in October of 1995, when the bus was manufactured. See,
e.g., Williamson, 131 S. Ct. at 1134, 1137-39 (limiting consideration of regulatory history and agency
explanation of objectives to the version of the applicable regulation in effect at the time of manufacture);
Geier, 529 U.S. at 864, 875-83 (same). Of course, more recent materials may be relevant in regard to the
agency’s current views of the preemptive effect of its regulations.

                                                    -13-
several different passive restraint systems.” Id. The Court emphasized that NHTSA had
rejected a strict airbag requirement in favor of preserving manufacturer choice as to passive
restraints because of “safety concerns (perceived or real) associated with airbags,” high
production costs, and negative public perception. Id. at 878-79. The Court in Geier applied
the preemption bar, concluding that a rule of state tort law imposing a duty to install an
airbag “would have required manufacturers of all similar cars to install airbags rather than
other passive restraint systems, such as automatic belts or passive interiors. It thereby would
have presented an obstacle to the variety and mix of devices that the federal regulation
sought.” Id. at 881.

        The Plaintiffs rely primarily on two subsequent United States Supreme Court
decisions that cautioned against an overly broad application of the ruling in Geier. In the first
such case, Sprietsma v. Mercury Marine, the Court concluded that a Coast Guard regulation,
which did not require propeller guards on boat motors, did not implicitly preempt a state law
tort claim alleging negligence on the part of a manufacturer for failing to install such a guard.
537 U.S. 51, 64-68 (2002). The regulatory history in Sprietsma indicated that the Coast
Guard had considered adopting a rule requiring propeller guards but had ultimately decided
“to take no regulatory action.” Id. at 65. The Coast Guard’s reasons for not requiring
propeller guards included the high cost of retrofitting existing boats, the lack of a universally
acceptable guard for “all boats and motors,” and data suggesting that “propeller guards might
prevent penetrating injuries but increase the potential for blunt trauma caused by collision
with the guard.” Id. at 61. The Court rejected the manufacturer’s attempt to equate the Coast
Guard’s decision not to adopt a propeller-guard requirement with a policy against propeller
guards, explaining that “[i]t is quite wrong to view th[e] decision [not to require propeller
guards] as the functional equivalent of a regulation prohibiting all States . . . from adopting
such a regulation.” Id. at 65. Distinguishing Geier, the Court further observed that the Coast
Guard’s stated reasons for not adopting a propeller guard requirement

       reveal[] only a judgment that the available data did not meet the . . . “stringent”
       criteria for federal regulation. The Coast Guard did not take the further step
       of deciding that, as a matter of policy, the States and their political
       subdivisions should not impose some version of propeller guard regulation,
       and it most definitely did not reject propeller guards as unsafe. The Coast
       Guard’s apparent focus was on the lack of any “universally acceptable”
       propeller guard for “all modes of boat operation.” But nothing in its official
       explanation would be inconsistent with a tort verdict premised on a jury’s
       finding that some type of propeller guard should have been installed on this
       particular kind of boat equipped with respondent’s particular type of motor.
       Thus, although the Coast Guard’s decision not to require propeller guards was



                                              -14-
       undoubtedly intentional and carefully considered, it does not convey an
       “authoritative” message of a federal policy against propeller guards.

Id. at 66-67 (emphasis added) (footnote omitted).

        The Plaintiffs also rely upon the 2011 decision in Williamson, which involved a tort
claim alleging that a minivan occupant died in an accident because her rear inner seat was
equipped with only a lap belt instead of lap-and-shoulder belts. 131 S. Ct. at 1134. At issue
was a different provision of the same version of FMVSS 208 applicable in this case, which
permitted auto manufacturers to choose between lap belts and lap-and-shoulder belts for rear
inner seats. Id. The Court recognized the similarity of the preemption question in Geier,
noting that as in that case, FMVSS 208 left manufacturers with a choice that would be
restricted by a verdict imposing liability; however, the Court ultimately distinguished Geier,
concluding that “manufacturer choice was an important regulatory objective” in Geier,
whereas the choice between lap belts and lap-and-shoulder belts at issue in Williamson was
not “a significant regulatory objective.” Id. at 1137. The Court reasoned that, in contrast to
the extensive regulatory history showing a deliberate preservation of manufacturer choice in
Geier, the choice between seatbelts permitted under FMVSS 208 had nothing to do with
consumer acceptance, safety concerns, or an interest in assuring a mix of various devices.
Id. at 1137-38. Rather, the primary reasons for allowing manufacturers to choose between
lap-only and lap-and-shoulder belts were the high cost associated with lap-and-shoulder belts
and their potential interference with exit and entry due to “‘stretch[ing] the shoulder belt
across the aisleway.’” Id. at 1138 (alteration in original) (quoting Occupant Crash
Protection, 54 Fed. Reg. at 46,258). Justice Sotomayor wrote a separate concurring opinion
“to emphasize the Court’s rejection of an overreading of Geier that has developed since that
opinion was issued.” Id. at 1140 (Sotomayor, J., concurring). In her concurrence, Justice
Sotomayor explained that

       the mere fact that an agency regulation allows manufacturers a choice between
       options is insufficient to justify implied pre-emption; courts should only find
       pre-emption where evidence exists that an agency has a regulatory
       objective—e.g., obtaining a mix of passive restraint mechanisms, as in
       Geier—whose achievement depends on manufacturers having a choice
       between options. A link between a regulatory objective and the need for
       manufacturer choice to achieve that objective is the lynchpin of implied
       pre-emption when there is a saving clause.

Id. (emphasis added).




                                             -15-
       Several other jurisdictions have addressed and rejected the purposes and objectives
category of implied federal preemption in the context of the failure to install seatbelts in large
buses. See, e.g., Soto v. Tu Phuoc Nguyen, 634 F. Supp. 2d 1096, 1106-07 (E.D. Cal. 2009);
Doomes v. Best Transit Corp., 958 N.E.2d 1183, 1190-91 (N.Y. 2011); MCI, 329 S.W.3d
at 494-95.11 In accord with the rationale in these holdings, it is our view that FMVSS 208
does not preempt the Plaintiffs’ claim based on the failure to provide passenger seatbelts.

        As with the Coast Guard regulation in Sprietsma and the motor vehicle safety standard
in Williamson, the history of FMVSS 208 indicates a decision not to require passenger
seatbelts in large buses but does not suggest a regulatory policy forbidding states from
imposing such a requirement. Prior to the manufacture of the bus at issue, NHTSA only
once, from 1973 to 1974, considered adopting a passenger seatbelt requirement for large
buses, and its reason for abandoning the proposed rule was that, in view of surveys
suggesting that few passengers on intercity and transit buses would use seatbelts, the safety
benefits of installing passenger seatbelts did not justify the cost. See School Bus Passenger
Crash Protection, 39 Fed. Reg. at 27,585; see also MCI, 329 S.W.3d at 491 (“NHTSA simply
determined that the cost of installing seatbelts was not justified given the low usage rates.”).
In the late 1980s, NHTSA considered and eventually adopted a requirement for passenger
lap-and-shoulder belts in several categories of vehicles, including small buses; large buses,
however, were specifically excluded from consideration. Of note, the decision to exclude
large buses from consideration had to do with the inherent differences between large buses
and other types of vehicles, and did not reflect any determination that passenger seatbelts
would be unsafe in large buses. See Occupant Crash Protection, 54 Fed. Reg. at 46,261;
Occupant Crash Protection, 53 Fed. Reg. at 47,987. To the contrary, NHTSA’s notice of the
proposed rule touted the efficacy of seatbelts in “preventing deaths and reducing injuries,”
with no distinction as to the type of vehicle involved. Occupant Crash Protection, 53 Fed.
Reg. at 47,984.

        In short, the regulatory history of FMVSS 208, like the history of the Coast Guard
regulation in Sprietsma, demonstrates a determination by NHTSA that the relevant
data—including costs and potential safety benefits—did not warrant a passenger seatbelt
requirement for large buses. NHTSA did not, however, take “the further step of deciding
that, as a matter of policy,” states should not be permitted to impose a passenger seatbelt
requirement. Sprietsma, 537 U.S. at 67. In contrast to the regulation in Geier, there is


        11
           The Defendants have cited two unpublished decisions reaching the opposite conclusion as to this
issue. See Surles v. Greyhound Lines, Inc., No. 4:01-CV-00107, 2005 WL 1703153, at *4-6 (W.D. Tenn.
July 20, 2005) (holding that a claim premised on a need for passenger seatbelts in large buses conflicts with
the finding of NHTSA that there is no such safety need); Schunck v. Del. Transit Corp., No. 06C-07-008,
2007 WL 1748647, at *3 (Del. Super. Ct. June 1, 2007) (same).

                                                    -16-
nothing to indicate that NHTSA based its decision not to require passenger seatbelts in large
buses on any concern about the safety of passenger seatbelts or the need to preserve
manufacturers’ choice to opt for other comparable safety measures. In consequence, the
history of FMVSS 208 and NHTSA’s stated reasons for not requiring passenger seatbelts in
large buses weigh in favor of upholding the presumption against preemption of a claim based
upon the failure to install seatbelts.

        NHTSA’s current views of the preemptive effect of FMVSS 208 further counsel
against preemption. In this regard, the Defendants’ reliance on the 1992 letter by NHTSA’s
former chief counsel is misplaced. As noted by the Texas Supreme Court, “The letter of
NHTSA’s chief counsel in 1992 is unremarkable insofar as it concludes that the Safety Act
would preempt nonidentical New York legislation—the Act’s express preemption clause
compels such a conclusion.” MCI, 329 S.W.3d at 492 (emphasis added) (citing 49 U.S.C.
§ 30103(b)(1)). Moreover, the primary rationale expressed in the letter is that NHTSA had
determined that there was “not a safety need” justifying a passenger seatbelt requirement for
large buses. There is a critical distinction, however, between an agency determination that
there is no need to adopt a safety requirement and an agency determination that states should
not be permitted to adopt such a requirement, as was the case in Geier. See Soto, 634 F.
Supp. 2d at 1102-03 (“[A]n agency decision that a proposed requirement should not be
implemented may result in the preemption of state law, while a determination that a
requirement need not be enacted . . . will not.”).

        Furthermore, a more recent indicator of NHTSA’s view as to the preemptive effect
of FMVSS 208 is contained in the brief for the United States submitted in Williamson, which
was signed by officials in the Department of Transportation and NHTSA, as well as the
United States Solicitor General12 at that time, Elena Kagan.13 The brief cited our Court of
Appeals’ decision in Lake I as one of several decisions that erroneously accorded preemptive
effect to FMVSS 208 based on an overly broad reading of Geier, which conflicted with the
agency’s view that a regulatory decision not to implement a safety requirement because of
cost or feasibility is insufficient to trigger federal preemption. See Brief for the United States
as Amicus Curiae at 15, 20-21, Williamson, 131 S. Ct. 1131 (No. 08-1314), 2010 WL
1653014. In our assessment, the United States’ amicus brief in Williamson must be read as
expressing the agency’s view that FMVSS 208 does not preempt claims such as the
passenger seatbelt claim brought by the Plaintiffs in this case. While not determinative, the
agency’s “thorough understanding of its own regulation” and “‘unique[] qualifi[cation]’ to


        12
         The United States Solicitor General is authorized to express the views of federal agencies as to
the preemptive effect of their regulations. See Sprietsma, 537 U.S. at 68; Geier, 529 U.S. at 883-84.
        13
             On August 7, 2010, Elena Kagan was sworn in as a Justice of the United States Supreme Court.

                                                   -17-
comprehend the likely impact of state requirements” require that we give due weight to its
views on the preemptive effect of the regulation at issue. Geier, 529 U.S. at 883 (quoting
Medtronic, 518 U.S. at 496).

       In summary, the history of seatbelt regulation under FMVSS 208, NHTSA’s
explanation of its objectives, and the agency’s views on the preemptive effect of the
regulation compel the conclusion that FMVSS 208 does not preempt the Plaintiffs’ claim
premised on the lack of passenger seatbelts.

                       b. FMVSS 205 and Window-Glass Materials
        A more difficult question is whether the Plaintiffs’ claim as to the Defendants’ use of
tempered rather than laminated glass in the side windows of the bus is preempted by FMVSS
205, which “specifies requirements for glazing materials for use in motor vehicles.” 49
C.F.R. § 571.205, S1. FMVSS 205 serves three purposes: “to reduce injuries resulting from
impact to glazing surfaces, to ensure a necessary degree of transparency in motor vehicle
windows for driver visibility, and to minimize the possibility of occupants being thrown
through the vehicle windows in collisions.” Id. § 571.205, S2. The version of FMVSS 205
in effect at the time the bus in this case was manufactured incorporates the American
National Standards Institute’s “‘Safety Code for Safety Glazing Materials for Glazing Motor
Vehicles Operating on Land Highways’ Z-26.1-1977, January 26, 1977, as supplemented by
Z26.1a, July 3, 1980” (“ANSI Z26.1”). Glazing Materials, 49 Fed. Reg. 6732, 6732-34 (Feb.
23, 1984). ANSI Z26.1—and by extension FMVSS 205—allows several types of glazing
materials, including laminated glass, which may be used anywhere in the vehicle, and
tempered glass, which may be used anywhere except for the windshield. See Morgan, 680
S.E.2d at 87 & n.10 (discussing the glazing requirements of ANSI Z26.1). In reference to
the different glass materials permitted under ANSI Z26.1, the standard recognizes that “[o]ne
safety glazing material may be superior for protection against one type of hazard, whereas
another may be superior against another type. . . . [N]o one type of safety glazing material
can be shown to possess the maximum degree of safety under all conditions.” Id. at 87.

        In 1988, NHTSA issued two notices announcing that it was considering new
requirements to reduce the risk of ejections in crashes; both notices addressed the suitability
of requiring laminated glass or other advanced glazing in side windows. Withdrawal of
Advance Notices of Proposed Rulemaking, 67 Fed. Reg. 41,365, 41,366 (June 18, 2002)
(citing Side Impact Protection—Light Trucks, Vans, and Multipurpose Passenger Vehicles,
53 Fed. Reg. 31,716 (Aug. 19, 1988); Side Impact Protection—Passenger Cars, 53 Fed. Reg.
31,712 (Aug. 19, 1988)). Of note, these proposed requirements did not apply to large buses.
Side Impact Protection—Light Trucks, Vans, and Multipurpose Passenger Vehicles, 53 Fed.
Reg. at 31,716 (noting that new requirements were only considered for “trucks, buses and
multipurpose passenger vehicles with a [GVWR] of 10,000 pounds or less”). The comments

                                             -18-
received on the proposed requirements raised several issues, including the high cost of
laminated glass and “whether this material would actually increase injuries to belted
occupants due to head injury, neck loading, and lacerations.” Withdrawal of Advance
Notices of Proposed Rulemaking, 67 Fed. Reg. at 41,366.

        In 1992, following a mandate from Congress to address concerns over rollover
protection, NHTSA issued a planning document that outlined various potential approaches
to reduce rollover-related injuries and fatalities, including a section concerning the possibility
of mitigating the risk of ejection by imposing stricter requirements for side window glass.
Id. (citing Planning Document for Rollover Prevention Rulemaking, 57 Fed. Reg. 44,721
(Sept. 29, 1992)). The comments on the 1992 planning document were similar in substance
to the comments on the 1988 proposals, presenting, among other concerns, high cost and “the
potential for additional contact injuries.” Id. In 1995, at the time Metrotrans manufactured
the bus at issue here, NHTSA was in the process of considering the proposed standards and
approaches in the 1988 rulemaking notices and the 1992 planning document, including the
possibility of requiring laminated glass in side windows to protect against ejection.14 See id.

       The Defendants compare the history of FMVSS 205 to the passive restraint regulation
at issue in Geier, emphasizing that FMVSS 205 offers manufacturers a choice regarding
which type of glass to use in side windows. The Defendants argue that to limit this choice
by requiring laminated glass would frustrate FMVSS 205’s purpose of reducing injuries from
impact to glazing surfaces, given the increased probability of neck injury upon impact with
laminated glass. In response, the Plaintiffs aver that any safety tradeoff between minimizing
ejection risk and minimizing neck injuries does not amount to a significant regulatory
objective or purpose and does not, therefore, implicate federal preemption.

        Each of these arguments has prevailed in similar cases before courts in other
jurisdictions, which are split on the question of the preemptive effect of FMVSS 205. Two
state supreme courts have determined that tort suits based on the negligent use of tempered
glass were preempted by FMVSS 205. In Morgan—a decision that predated Williamson by
two years—the Supreme Court of Appeals of West Virginia concluded that FMVSS 205
preempted a tort claim arising from an accident in which a 1999 Ford Expedition rolled over,

        14
            In a 2002 notice that postdated the events in this case, NHTSA decided to terminate its
consideration of a requirement for laminated glass or other types of advanced glazing in side windows. The
reasons given by NHTSA for its decision included the high cost of laminated glass and other advanced
glazing, the increased risk of impact neck injuries for belted occupants, and the advent of other, potentially
preferable ejection mitigation systems, such as side air curtains. See id. at 41,366-67. While we do not
consider the 2002 notice to be part of the history of the version of FMVSS 205 applicable in this case, we
note this development because, as explained below, it has factored significantly in other courts’ analyses in
similar cases.

                                                    -19-
causing the partial ejection of one of the occupants through a side window made of tempered
glass. 680 S.E.2d at 81. The court expressed the view that Geier was “flawed,” but
nevertheless relied upon that decision as binding precedent in holding that the tort claim
impermissibly conflicted with NHTSA’s decision not to mandate laminated glass in side
windows—a decision based in part on the agency’s concern over “a slightly increased risk
of neck injuries.” Id. at 94. Similarly, in Priester v. Cromer, the South Carolina Supreme
Court held that FMVSS 205 preempted a tort claim seeking damages for the death of the
occupant of a 1997 Ford F-150 pick-up truck who was ejected through a tempered glass side
window during a rollover accident. 697 S.E.2d 567, 571 (S.C. 2010). When the United
States Supreme Court granted certiorari and remanded the case for reconsideration in light
of Williamson, the South Carolina Supreme Court reaffirmed its prior decision. Priester v.
Cromer, 736 S.E.2d 249, 260 (S.C. 2012). As in Morgan, the South Carolina court focused
on the choice of materials for side window glass permitted under FMVSS 205, finding that
the “increased risk of injury to belted passengers” in vehicles with laminated glass side
windows precluded a state tort rule that would effectively require laminated glass. Id. at 260.

        Other courts have declined to give preemptive effect to FMVSS 205. In O’Hara v.
General Motors Corp., the Fifth Circuit Court of Appeals determined that the objectives of
FMVSS 205 were not in conflict with a tort claim seeking damages for injuries sustained by
an occupant of a 2004 Chevrolet Tahoe who was partially ejected during a rollover accident.
508 F.3d 753, 762-63 (5th Cir. 2007). Analogizing FMVSS 205 to the Coast Guard
regulation in Sprietsma, the Fifth Circuit reasoned that NHTSA had not rejected laminated
glass as unsafe, but rather had decided to allow several options for side window glass in
keeping with the function of FMVSS 205 as a “minimum safety standard,” the purposes of
which were not inconsistent with a state law tort rule imposing a more demanding standard.
Id. at 763. In MCI, the Texas Supreme Court likewise found that FMVSS 205 did not
preempt claims by passengers of a large bus who were ejected through side windows made
of tempered glass during an accident in which the bus tipped onto its side and slid across a
highway into a ditch. 329 S.W.3d at 479-80. In reaching this conclusion, the Texas court
observed that unlike the passive restraint regulation in Geier, which deliberately sought to
preserve a mix of options in furtherance of a significant regulatory objective, FMVSS 205
fell short of demonstrating a “positive desire to preserve the use of tempered glass in
windows by forbidding contrary state regulation.” Id. at 497.

       Upon consideration of the decisions on both sides of this issue from other jurisdictions
and the decisions of the United States Supreme Court, we conclude that FMVSS 205 does
not preempt that portion of the Plaintiffs’ claim based upon the use of tempered glass side
windows. Initially, we note that the decisions giving preemptive effect to FMVSS 205
placed significant weight on NHTSA’s 2002 notice announcing its decision to terminate
consideration of a requirement for laminated glass or other types of advanced glazing in side

                                             -20-
windows;15 as noted, however, that decision was not part of the regulatory history of the
version of FMVSS 205 in effect at the time Metrotrans manufactured the bus at issue here
in 1995.

        Looking to the regulatory history of the version of FMVSS 205 in effect in 1995, there
is no indication that the primary concern raised by the Defendants—the increased risk of
impact neck injuries associated with laminated glass—motivated NHTSA’s decision to give
manufacturers the option of installing side windows made of tempered glass rather than
requiring laminated glass. Moreover, while one of the objectives of FMVSS 205 is “to
reduce injuries resulting from impact to glazing surfaces,” as several courts and NHTSA
have noted, the increased risk of impact neck injury associated with laminated glass applies
primarily to belted occupants. See, e.g., Priester, 736 S.E.2d at 260 (noting “the additional
risk of neck injury that advanced glazing imposes upon belted passengers” (emphasis
added)); Withdrawal of Advance Notices of Proposed Rulemaking, 67 Fed. Reg. at 41,366
(noting the concern that laminated glass may “actually increase injuries to belted occupants”
(emphasis added)). The problem with the Defendants’ position is that the bus at issue did
not have passenger seatbelts. Thus, the concern that laminated glass may be more dangerous
for belted passengers does not apply under the circumstances of this case, and the Plaintiffs’
claim does not stand as an obstacle to the regulatory objective of reducing injuries caused by
impact with glazing surfaces.

        Nor are we persuaded by the Defendants’ reliance on the statement from ANSI Z26.1
that “no one type of safety glazing material can be shown to possess the maximum degree
of safety under all conditions.” This explanation for giving manufacturers options as to
materials for glazing surfaces is highly analogous to the Coast Guard’s statement in
Sprietsma that no single propeller guard was “universally acceptable” for “all modes of boat
operation.” Sprietsma, 537 U.S. at 67. The Court’s assessment of that statement in
Sprietsma applies with equal force here: “[N]othing in [the] official explanation would be
inconsistent with a tort verdict premised on a jury’s finding that some [particular] type of
[window glass] should have been installed on this particular kind of [bus].” Id. For example,
while FMVSS 205, through its incorporation of ANSI Z26.1, generally provides
manufacturers with the option of installing side windows made of tempered glass, it would
not be inconsistent with the purposes of FMVSS 205 for a jury to conclude that a bus that
does not protect against ejection with seatbelts or compartmentalized seating should be
equipped with side windows made of laminated glass. In fact, such a conclusion would be
entirely consistent with FMVSS 205’s objective of “minimiz[ing] the possibility of occupants
being thrown through the vehicle windows in collisions.” 49 C.F.R. § 571.205, S2.



       15
            See, e.g., Priester, 736 S.E.2d at 257-60.

                                                     -21-
        Furthermore, the regulatory history of FMVSS 205 more closely resembles the
seatbelt regulation in Williamson than the passive restraint regulation in Geier. The factors
that led the Court in Geier to conclude that manufacturer choice was a significant regulatory
objective are largely absent here. As explained by the Texas Supreme Court, the regulation
at issue in Geier “emphasize[d] the choice among options as an important and integral part
of the overall safety scheme,” whereas FMVSS 205 “merely narrows the range of
manufacturers’ choice of glazing materials from potentially unlimited to a short list.” MCI,
329 S.W.3d at 497-98. Therefore, while FMVSS 205 provides manufacturers with a choice
as to window-glass material, there is no evidence of “a regulatory objective . . . whose
achievement depends on” that choice. Williamson, 131 S. Ct. at 1140 (Sotomayor, J.,
concurring). Finally, as with the passenger seatbelt claim discussed previously, we attach
considerable weight to the statement in the amicus brief of the United States in Williamson,
expressing the agency’s view that our Court of Appeals’ holding in Lake I, giving preemptive
effect to FMVSS 205, constituted a misapplication of Geier. See Brief for the United States
as Amicus Curiae at 20-21, Williamson, 131 S. Ct. 1131 (No. 08-1314), 2010 WL 1653014.
Based upon our consideration of FMVSS 205’s “history, the promulgating agency’s
contemporaneous explanation of its objectives, and the agency’s current views of the
regulation’s pre-emptive effect,” Williamson, 131 S. Ct. at 1136, we conclude that FMVSS
205 does not preempt the claim of the Plaintiffs based on the use of tempered, rather than
laminated, glass.

                   B. Directed Verdict on Seating-Configuration Claim
        The final issue we address is the sua sponte determination by the Court of Appeals
that the trial court erred by failing to grant the Defendants a directed verdict as to the
Plaintiffs’ seating-configuration claim because of the lack of evidence that Lake was seated
at the time of the accident. The Court of Appeals concluded that the perimeter seating
configuration, even if unsafe, did not cause Lake’s injuries because the alternative
configuration of forward-facing rows would only protect seated occupants from ejection.

       “A motion for a directed verdict may be made at the close of the evidence offered by
an opposing party or at the close of the case.” Tenn. R. Civ. P. 50.01. Appellate courts must
conduct a de novo review of a trial court’s ruling on a motion for a directed verdict, applying
the same standards that govern the trial court’s determination. Brown v. Crown Equip.
Corp., 181 S.W.3d 268, 281 (Tenn. 2005) (citing Gaston v. Tenn. Farmers Mut. Ins. Co., 120
S.W.3d 815, 819 (Tenn. 2003)). For a directed verdict to be appropriately granted, the
evidence must be “susceptible to only one conclusion.” Id. (citing Childress v. Currie, 74
S.W.3d 324, 328 (Tenn. 2002)). If “reasonable minds could . . . differ as to the conclusions
to be drawn from the evidence,” the motion must be denied. Eaton v. McLain, 891 S.W.2d
587, 590 (Tenn. 1994). On appeal, courts must take the strongest legitimate view of the



                                             -22-
evidence in favor of the non-moving party, disregarding all countervailing evidence. Brown,
181 S.W.3d at 281; Gaston, 120 S.W.3d at 819.

        The Plaintiffs brought causes of action for negligence and products liability based on
the perimeter seating configuration used in the bus in which Lake was injured. As noted by
the Court of Appeals, see Lake I, 2010 WL 891867, at *12, both of these causes of action
require the Plaintiffs to establish, among other things, that the conduct complained of—in
this instance, the use of perimeter seating—was the cause in fact of the Plaintiffs’ injuries.
See Wilson v. Americare Sys., Inc., No. M2011-00240-SC-R11-CV, 2013 WL 658078, at
*5 (Tenn. Feb. 25, 2013); Brown, 181 S.W.3d at 282. In order to show causation in fact, “[i]t
is not necessary that the defendants’ act be the sole cause of the plaintiff’s injury, only that
it be a cause.” Wilson, 2013 WL 658078, at *5 (alteration in original) (quoting Hale v.
Ostrow, 166 S.W.3d 713, 718 (Tenn. 2005)). Cause in fact is ordinarily a question for the
jury, id. at *6, and, as with other factual questions, jurors are entitled “to use their common
sense and to rely upon their life experiences in evaluating” the issue, Terry v. Plateau Electric
Coop., 825 S.W.2d 418, 423 (Tenn. Ct. App. 1991).

        The direct and circumstantial evidence presented at trial demonstrated that Lake was
one of two passengers on the shuttle bus at the time of the collision. Neither passenger,
therefore, was forced to stand due to a lack of available seating. The bus was traveling a
distance of over two miles from the airport to Budget’s rental car facility, and a significant
portion of the route consisted of large, busy roads with a speed limit of fifty miles per hour.
Lake was familiar with the route, as he had taken it several times during his frequent business
trips to Memphis. While Wayne McCracken, the Plaintiffs’ accident reconstruction expert
witness, conceded that he was not present during the accident and had no first-hand
information regarding Lake’s position, his testimony indicated that Lake’s ejection from one
of the passenger side windows of the bus was consistent with his being seated in one of the
inward-facing seats on the driver side at the time of the collision.

       Taking the strongest legitimate view of this evidence in favor of the Plaintiffs, we
cannot conclude that it is “susceptible to only one conclusion.” Brown, 181 S.W.3d at 281.
To the contrary, a reasonable juror, drawing upon his or her common sense and life
experiences, could have inferred that Lake had opted to sit in one of the many available seats
on the shuttle bus during the trip to the rental car facility.

        While the parties do not dispute the evidence discussed above, which we have deemed
sufficient to avoid a directed verdict, they dispute whether the fact that Lake was seated may
be established by McCracken’s testimony that, based upon the information made available
to him regarding the accident, he had ascertained where Lake was seated at the time of the
collision. The Defendants assert that this testimony by McCracken must have been based on

                                              -23-
the statement made by the only other passenger on the bus, which had been provided to
McCracken during the course of his investigation of the accident.16 The Defendants contend
that McCracken’s “reliance [on the other passenger’s statement] could not establish as a fact
that Lake was seated, or otherwise make the hearsay statement admissible as fact.”

       Tennessee Rule of Evidence 703 allows an expert to base “an opinion or inference”
on facts “of a type reasonably relied upon by experts in the particular field,” even if the facts
are not admissible. The rule further provides that “[f]acts or data that are otherwise
inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference
unless the court determines that their probative value in assisting the jury to evaluate the
expert’s opinion substantially outweighs their prejudicial effect.” Tenn. R. Evid. 703; see
also Shipley v. Williams, 350 S.W.3d 527, 559 (Tenn. 2011) (“Rule 703 allows an expert
witness to develop an opinion based on facts or data that are inadmissible, but the rule
instructs courts to disallow an expert’s opinion based on facts or data that ‘indicate a lack of
trustworthiness.’” (quoting Tenn. R. Evid. 703)).

       In this instance, there is no dispute that McCracken was entitled to rely upon the
witness statement by the other passenger in developing his opinion. While McCracken
indicated that the passenger’s statement was among the materials he had reviewed, the
statement was not disclosed to the jury, meaning that the trial court was not required to
balance the probative value of the statement against its prejudicial effect. See Tenn. R. Evid.
703. The Defendants now insist that McCracken’s testimony that he had ascertained where
Lake was seated must have been derived from the witness statement and therefore constitutes
inadmissible hearsay; however, they did not present a hearsay objection at trial, which
“forecloses consideration of the issue on appeal.” State v. Coker, 746 S.W.2d 167, 173
(Tenn. 1987) (refusing to consider improper admission of hearsay evidence on appeal where
there had been no objection at trial), overruled on other grounds by State v. West, 19 S.W.3d
753, 756 (Tenn. 2000); see also State v. Walker, 910 S.W.2d 381, 386 (Tenn. 1995). In
addition, McCracken testified that he had achieved an understanding of where Lake was
seated based on all “the information that [he] had,” without specifying that his understanding
was based solely on the statement of the other passenger. Because McCracken’s testimony
as to where Lake was seated could have been based in part upon the other evidence at his
disposal, including the accident photographs and his calculations regarding the ejection, we
decline to exclude from consideration his testimony that he had ascertained where Lake was
seated at the time of the accident, which bolsters the conclusion that the evidence was
sufficient to establish causation.



       16
           As noted, in the statement, which had been reviewed by McCracken but was not disclosed to the
jury, the other passenger clearly indicated that Lake was seated at the time of the accident.

                                                 -24-
                                         III. Conclusion
        In summary, the relevant indicators of regulatory intent fail to demonstrate that the
Plaintiffs’ state law tort claims stand as an obstacle to the purposes and objectives of FMVSS
205 or 208. We conclude, therefore, that these federal regulations do not implicitly preempt
the Plaintiffs’ claims premised on the lack of passenger seatbelts and the use of tempered
glass in the side windows of the bus. We further conclude that the evidence was sufficient
to establish causation as to the Plaintiffs’ claim premised on the use of perimeter seating.
The judgment of the Court of Appeals is reversed, and the case is remanded to the Court of
Appeals to decide the remaining issues raised but not determined in the initial appeal. Costs
are adjudged against Metrotrans, Landsmen, and Budget, for which execution may issue if
necessary.




                                           _________________________________
                                           GARY R. WADE, CHIEF JUSTICE




                                             -25-
