                 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.
