The HONORABLE JOHN B. JONES, United States District Judge for the

*

District of South Dakota, sitting by designation.

The HONORABLE RICHARD H. KYLE, United States District Judge for the 1

District of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-3103

___________

Jodi Michaelle Carlson, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Hyundai Motor Company; Hyundai *

Motor America, Inc., *

*

Defendants - Appellees. *

___________

Submitted: June 10, 1998

Filed: January 15, 1999

___________

Before LOKEN and HEANEY, Circuit Judges, and JONES, District Judge. *

___________

LOKEN, Circuit Judge. 

In this diversity action, Jodi Michaelle Carlson appeals the district court’s1

dismissal of her strict liability, negligence, and breach of warranty claims against
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Hyundai Motor Company and Hyundai Motor America, Inc. The district court

concluded that Minn. Stat. § 169.685, subd. 4, known colloquially as the seat belt gag

rule, bars these claims. We affirm.

In April 1995, Carlson was a passenger in a Hyundai Excel automobile that left

the road and rolled over. Though she was wearing a seat belt and a shoulder harness

anchored to the door frame, Carlson was thrown from the vehicle through an opening

in the upper rear portion of the front passenger door because, in the words of Carlson’s

Amended Complaint, “when the doorframe bent out it eliminated any effective

passenger restraint.” Carlson suffered serious injuries. In 1996, she brought this

action in Minnesota state court, seeking substantial damages. The non-resident

defendants removed.

All of Carlson’s claims are premised upon a crashworthiness theory -- that the

Hyundai vehicle had a defectively designed and manufactured seat belt system and

door frame that caused Carlson to be ejected during the accident, resulting in

substantially greater injuries than had she remained in the vehicle. For example,

Paragraph XI of Carlson’s Amended Complaint alleges that Hyundai Motor Company

is strictly liable because “[t]he defective and unreasonably dangerous condition of the

passive seat belt system and door frame and the vehicle were the direct cause of the

injuries and damage sustained by plaintiff.” 

The statute in question, Minn. Stat. § 169.685, subd. 4, provides that “[p]roof

of the use or failure to use seat belts . . . or proof of the installation or failure of

installation of seat belts . . . shall not be admissible in evidence in any litigation

involving personal injuries or property damage resulting from the use or operation of

any motor vehicle.” This statute was enacted in 1963, before Minnesota courts

recognized crashworthiness as a theory of common law liability. In Olson v. Ford

Motor Co., 558 N.W.2d 491 (Minn. 1997), the Minnesota Supreme Court held that the
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statute applies to crashworthiness claims and effectively bars all such claims that are

premised upon allegedly defective seat belt systems. 

Relying upon Olson and the contemporaneous Minnesota Court of Appeals

decision in Schlotz v. Hyundai Motor Co., 557 N.W.2d 613 (Minn. App.), cert. denied,

118 S. Ct. 80 (1997), defendants moved to dismiss this action as barred by § 169.685,

subd. 4. After the Governor of Minnesota vetoed a bill that would have materially

amended the statute, the district court granted this motion. The court explained that

Carlson’s claim of a defective seat belt system is barred under Olson because, “If

Carlson cannot offer evidence of how her seat belt was installed in the car and that she

wore it during the accident, then she cannot prove that a defective seat belt caused her

injuries.” The court further held that Carlson’s claim of a defective door and window

frame are also barred by the seat belt gag rule because, “Nowhere in her Amended

Complaint does Carlson state that a defect in the door frame alone caused her injuries.

Thus, as alleged, all of Carlson’s claims are dependent upon evidence of her use of the

car’s seat belt, and the joint failure of it and the door frame to prevent her from being

ejected from the car.” 

On appeal, Carlson concedes the district court (1) appropriately dismissed her

seat belt allegations, and (2) “correctly concluded that the seat belt allegations were

intertwined with the allegations that the car was defectively designed, manufactured,

and otherwise dangerously deficient.” However, Carlson argues, the court abused its

discretion by dismissing her claims without inviting her to amend the complaint to

assert independent claims based upon the allegedly defective door and window frame.

This contention was not properly preserved. Carlson did not ask the district court for

leave to file a second amended complaint, either before or after the court granted

defendants’ motion to dismiss her amended complaint. A district court does not abuse

its discretion in failing to invite an amended complaint when plaintiff has not moved

to amend and submitted a proposed amended pleading. See Oliver v. Resolution Trust
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Corp., 955 F.2d 583, 585 (8th Cir. 1992); Clayton v. White Hall Sch. Dist., 778 F.2d

457, 460 (8th Cir. 1985).

Even if Carlson had properly preserved this issue in the district court, we

conclude that her proposed second amended complaint must be rejected as futile. See

Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 225 (8th Cir. 1994) (“Good

reason to deny leave to amend exists if the amendment would be futile.”). Carlson

argues she has a viable claim independent of the allegedly defective seat belt system

because, during the accident:

the door frame was caused to deform causing an opening which allowed

the ejection of Jodi Carlson. The seat belt mechanism was not

significantly related to the creation of this hole. If she had had her seat

belt on she would have been ejected and if she had not had her seat belt

on she would have been ejected. Accordingly, there is no reason to refer

to the seat belt mechanism in this case. 

However, the issue in a crashworthiness case is whether the vehicle design as a whole

evidences the manufacturer’s failure to use reasonable care to prevent auto accident

injuries. See O’Grady, Minnesota’s Seat Belt Evidence Gag Rule: Antiquated and

Unfair in Crashworthiness Cases, 15 WM. MITCHELL L.REV. 353, 367-69 (1989), and

cases cited. The seat belt gag rule does not bar evidence by Hyundai that its seat belt

system was designed to prevent passengers from being ejected from the vehicle during

accidents. But while that evidence is admissible, § 169.685, subd. 4, bars Carlson from

introducing evidence that the seat belt system was installed, in use, and failed to

prevent her ejection. If Carlson cannot prove that the seat belt system failed of its

essential crashworthiness purpose, then she cannot prove that Hyundai failed to use

reasonable care to prevent accident injuries in its vehicle design as a whole. In other

words, like the seat belt system and seat back at issue in Schlotz, and the airbag and

seat belt system discussed by Justice Page in his concurring opinion in Olson, 558

N.W.2d at 498, the alleged defects in the Hyundai seat belt system and door frame
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were inseparably intertwined in causing Carlson’s increased injuries. In these

circumstances, any amended complaint attempting to separate the two alleged defects

so as to prevent application of § 169.685, subd. 4, to bar Carlson’s claims would be

futile.

Finally, Carlson argues the district court erred in dismissing defendant Hyundai

Motor Company because that Korean company was never served and thus the court

lacked personal jurisdiction to grant a judgment in its favor. We disagree. Carlson

failed to raised this issue in the district court and therefore may not raise it on appeal.

Moreover, Hyundai Motor Company voluntarily appeared in the district court and

joined in defendants’ Rule 12(b)(6) motion to dismiss without contesting the court’s

personal jurisdiction, thereby waiving that issue. See Fed. R. Civ. P. 12(h)(1).

“Because the requirement of personal jurisdiction represents first of all an individual

right . . . an individual may submit to the jurisdiction of the court by appearance.”

Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,

703 (1982). In this case, Hyundai Motor Company consented to the district court’s

jurisdiction by voluntarily appearing and is entitled to the res judicata effect of the

court’s judgment in its favor.

The judgment of the district court is affirmed.

HEANEY, Circuit Judge, dissenting.

From this day forward, passengers thrown from a vehicle due to an alleged

structural defect are precluded from pursuing crashworthiness claims under Minnesota

law. In my view, this result is mandated by neither the seat belt gag rule nor the

decisions of the Minnesota Supreme Court. Accordingly, I respectfully dissent.

The Minnesota seat belt gag rule, enacted in 1963, precludes introduction of any

evidence pertaining to seat belt use or nonuse in a suit involving “‘personal injury
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resulting from the use of a motor vehicle.’” Olson v. Ford Motor Co., 558 N.W.2d

491, 494 (Minn. 1997) (quoting Swelbar v. Lahti, 473 N.W.2d 77, 79 (Minn. Ct. App.

1991)). Five years after the legislature enacted the seat belt gag rule, this court

recognized the crashworthiness doctrine, which imposes liability for injuries

exacerbated, rather than caused, by defective design or manufacture of a vehicle. See

Larsen v. General Motors Corp., 391 F.2d 495, 502 (8 Cir. 1968). In Larsen, we held th

that an automobile manufacturer "is under a duty to use reasonable care in the design

of its vehicle to avoid subjecting the user to an unreasonable risk of injury in the event

of a collision." Id. at 502. We explained: 

Any design defect not causing the accident would not subject the

manufacturer to liability for the entire damage, but the manufacturer

should be liable for that portion of the damage or injury caused by the

defective design over and above the damage or injury that probably

would have occurred as a result of the impact or collision absent the

defective design.

Id. at 503. In Mitchell v. Volkswagenwerk, AG, we elaborated: 

[T]he extent of the manufacturer’s liability depends upon whether or not

the injuries involved are divisible such that the injuries can be clearly

separated and attributed either to the manufacturer or the original

tortfeasor. If the manufacturer’s negligence is found to be a substantial

factor in causing an indivisible injury such as paraplegia, death, etc., then

absent a reasonable basis to determine which wrongdoer actually caused

the harm, the defendants should be treated as joint and several tortfeasors.

669 F.2d 1199, 1206 (8 Cir. 1982) (citing Mathews v. Mills, 178 N.W.2d 841 (Minn. th

1970)). 

When the seat belt gag rule was enacted, there “was still considerable debate as

to the efficacy of seat belts as a safety device.” Olson, 558 N.W.2d at 495. In 1986,
While the court of appeals’ decision in Schlotz may suggest a contrary result, 2

we are not bound by that decision, see Horstmyer v. Black & Decker, Inc., 151 F.3d

765, 773-74 n.10 (8 Cir. 1998), and I do not read it as a final statement of the law by th

Minnesota’s highest court. In fact, the Minnesota Supreme Court decision in Olson

came out almost a full month after Schlotz, yet did not even refer to Schlotz and its

expansive interpretation of the seat belt gag rule. I therefore do not believe that the

Minnesota Supreme Court would adopt the view endorsed by the majority.

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the Minnesota legislature formally ended the debate by enacting legislation requiring

seat belt use. See Minn. Stat. Ann. § 169.686 (West Supp. 1999). The Minnesota

Supreme Court has noted that the legislature may not have solely intended “to protect

a plaintiff from being penalized for contributory negligence for failure to wear a seat

belt” by enacting the seat belt gag rule. Olson, 558 N.W.2d at 495. Instead, the

legislature intended to strike a balance between car crash victims and auto

manufacturers. See id. Contrary to the majority’s holding, there is no evidence

suggesting that the legislature intended the seat belt gag rule to preclude all

crashworthiness claims when a passenger is thrown from a vehicle and alleges

structural defect. In fact, by construing the seat belt gag rule so broadly, the majority 2

ignores the balance struck by the legislature and, instead, virtually immunizes auto

manufacturers from crashworthiness claims as long as seat belts were installed in the

vehicle. 

Here, Carlson wishes to amend her complaint to assert that the opening created

when the roof of her car peeled off during the crash stated a cause of action under the

crashworthiness doctrine. She argues that she would have been thrown from the

vehicle regardless of whether she was wearing a seat belt. The majority asserts that

since Carlson cannot introduce evidence stating that the seat belt system was in use and

failed to prevent ejection and since “the alleged defects in the Hyundai seat belt system

and door frame were inseparably intertwined in causing Carlson’s increased injuries,”

she “cannot prove that Hyundai failed to use reasonable care to prevent accident

injuries in its vehicle design as a whole.” I do not read “as a whole” so narrowly nor
I concede that, absent the seat belt gag rule, knowing whether a passenger was 3

wearing her seat belt may be relevant in determining whether her injuries were

exacerbated by the defective design or manufacture of the vehicle. It is possible,

however, that a design defect would exacerbate injury regardless of whether a seatbelt

mechanism exists or is in use. 

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do I see the logical or legal necessity in raising the seat belt issue to determine whether

Hyundai was negligent in the design of the vehicle. In short, the facts of each car

3

crash will vary, and the jury, rather than a federal court of appeals sitting in a diversity

action, is the proper body to determine whether an auto manufacturer exercised

reasonable care in the design or manufacture of a vehicle. It is entirely inappropriate

for this court to decide the issue as a matter of law. 

Under these circumstances, I disagree with the majority’s conclusion that

Carlson’s proposed second amended complaint must be rejected as futile and would

remand the case so the district court could entertain her motion to amend her

complaint. Accordingly, I respectfully dissent.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.