T he HONORABLE JOHN B. JONES, United States District Judge for th e * 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’s 1 dismissal of her strict liability, negligence, and breach of warranty claims against-2-

Hyu ndai Motor Company and Hyundai Motor America, Inc. The district cour t concluded that Minn. Stat. § 1 69.685, 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 ro ad 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 beca use, in the words of Carlson’s Amended Complaint, “when the doorframe bent out it eliminated any effectiv e passenger restraint.” Carlson suffered serious injuries. In 1996, she brought thi s act ionin Minnesota state court, seeking substantial damages. The non-residen t 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 an d door frame that caused Carlson to be ejected during the accident, resulting i n substan tially greater injuries than had she remained in the vehicle. For example , Paragraph XI of Carlson’s Amende d Complaint alleges that Hyundai Motor Company is strictly liable bec ause “[t]he defective and unreasonably dangerous condition of the passiv e seat belt system and door frame and the vehicle were the direct cause of th e injuries and damage sustained by plaintiff.”
The statute in question, Minn. Stat. § 169.685, subd. 4, provides that “[p]roof of the use o r failure to use seat belts . . . or proof of the installation or failure o f install ation of seat belts . . . shall not be admissible in evidence in any litigatio n involving personal injuries or property damage resulting from the use or operation of
an y motor vehicle.” This statute was enacted in 1963, before Minnesota court s recogni zed crashworthiness as a theory of common law liability. In Olson v. For d Motor Co. , 558 N.W.2d 491 (Minn. 1997), the Minnesota S upreme Court held that the-3-

statute applies to crashworthiness claims and effectively bars all such claims that are premised upon allegedly defective seat belt systems. Rely ing upon Olson and the contemporaneous Minnesota Court of Appeal s decision in Schlotz v. Hyundai Motor Co. , 557 N.W.2d 613 (Minn. Ap p.), cert. denied , 118 S. Ct. 80 (1997), defendants mo ved to dismiss this action as barred by § 169.685, subd. 4. After the Governor of Minnesota vetoed a bill that would have materiall y amended the statute, the district court granted this motion. The court explained tha t Carlson’ s claim of a defective seat belt system is barred under Olson because, “I f Carlson cannot offer evidence of how her seat belt was installed in the car and that she wore it during the accident, then s he cannot prove that a defective seat belt caused her injuries.” The cour

t further held that Carlson’s claim of a defective door and window fram e are also barred by the seat belt gag rule because, “Nowhere in her Amende d Complaint does Carlson state that a d efect 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 wer e intertwinedwith the allegations that the car was defectively designed, manufactured, and otherwise dangerously deficient.” However, Carlson argues, the court abused its discr etion by dismissing her claims without inviting her to amend the complaint t o 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 fi le a second amended complaint, either before or after the court grante d 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 move d to amend and submitted a proposed amended pleadi ng. See Oliver v. Resolution Trust-4-

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 Car lson had properly preserved this issue in the district court, w e conclude that her proposed second amended complaint must be rejected as futile. See Williams v. Little Rock Mun. Wa ter Works , 21 F.3d 218, 225 (8th Cir. 1994) (“Good
reas on to deny leave to amend exists if the amendment would be futile.”). Carlso n 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 ejecti on of Jodi Carlson. The seat belt mechanism was no t si gnificantly related to the creation of this hole. If she had had her sea t be lt 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 crashworthin ess case is whether the vehicle design as a whole evidences the manufacturer’s failure to use reasonable care to prevent auto acciden t injuri es. See O’Grady, Minnesota’s Seat Belt Evidence Gag Rule: Antiquated an d Unfair in Crashworthiness Cases , 15 W M
. M ITCHELL L. R EV
. 353, 367-69 ( 1989), and cases cited. The s eat 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 int roducing evidence that the seat belt system was installed, in use, and failed t o prevent her ejection. If Carlson cannot prove that the seat belt system failed of it s essen tial crashworthiness purpose, then she cannot prove that Hyundai failed to us e rea sonable 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 , 55 8 N.W.2d at 498, the alleged defects in the Hyundai seat belt system and door frame-5-

were inseparably intertwined in causing Carlson’s increased injuries. In thes e circumstances, any am ended complaint attempting to separate the two alleged defects
so as to prevent application of § 169.685, subd. 4, to bar Carlson’s claims would b e futile. Finally, Carlson argues the district court erred in dismissing defendant Hyundai Motor Co mpany because that Korean company was never served and thus the cour t lacked personal jurisdiction to grant a judgment in its favor. We disagree. Carlso n failed to ra

ised this issue in the district court and therefore may not raise it on appeal. Moreo ver, Hyundai Motor Company voluntarily appeared in the district court an d joi ned in defendants’ Rule 12(b)(6) motion to dismiss without contesting the court’ s personal j urisdiction, 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. . . a n 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 jurisdictio n

by voluntarily appearing and is entitled to the res judicata effect of th e 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 allege d 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 th e 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-6-

resu lting from the use of a motor vehicle.’” Olson v. Ford Motor Co. , 558 N.W.2 d 491, 494 (Minn. 1997) (quoting Swelbar v. L ahti , 473 N.W.2d 77, 79 (Minn. Ct. App. 19 91)). Five years after the legislature enacted the seat belt gag rule, this cour t recog nizedthe crashworthiness doctrine, which imposes liability for injurie s exacerbated, rather than c aused, 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 th e manufac turer

to liability for the entire damage, but the manufacture r shou ld be liable for that portion of the damage or injury caused by th e defectiv e design over and above the damage or injury that probabl y would have occurred as a result of the impact or collision absent th e defective design.
Id. at 503. In Mitchell v. Volkswagenwerk, AG , we elaborated: [T]he extent o f the manufacturer’s liability depends upon whether or not the i njuries involved are divisible such that the injuries can be clearl y separat ed and attributed either to the manufacturer or the origina l tortfeasor. If the manufacturer’s negligence is found to be a substantial factor in causing an indivisible inj ury such as paraplegia, death, etc., then absent a reasonable b asis to determine which wrongdoer actually caused the harm, the defendants should be treated as joint and se veral tortfeasors. 669 F.2d 1199, 1206 (8 Cir. 1982) (citing Mat hews 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 efficac y 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. 199 8), 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 Olso n came out almost a full month after Schlotz , yet did not even refer to Schlotz and it s expansive interpretation of the seat belt gag rule. I therefore do not believe that th e Minnesota Supreme Court would adopt the view endorsed by the majority. -7- the Minnesota legislature formally ended the debate by enacting legislation requiring seatbelt use. See Minn. Stat. Ann. § 169.686 (West Supp. 1999). The Minnesot a 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, th e legislature intended to strike a balance between car crash victims and aut o manufacturer s. See id. Contrary to the majority’s holding, there is no evidenc e sugge sting that the legislature intended the seat belt gag rule to preclude al l
cras hworthiness claims when a passenger is thrown from a vehicle and allege s structural defect. In fact, by construing the seat belt gag rule so broadly, the majority 2 ignores th e balance struck by the legislature and, instead, virtually immunizes aut o ma nufacturers from crashworthiness claims as long as seat belts were installed in the vehicle.
Here, Carlson wishes to a

mend her complaint to assert that the opening created when the roof of h er car peeled off during the crash stated a cause of action under the crashworthiness doctrine. She argues that she would have been thrown from th e veh icle regardless of whether she was wearing a seat belt. The majority asserts tha t since Carlson cannot introduce evidence stating that the seat belt s ystem was in use and failed to prevent ejection and since “the alleged defects i n the Hyundai seat belt system and door frame were insepa rably intertwined in causing Carlson’s increased injuries,” she “cannot prove that Hyundai failed to use reasonable care to prevent acciden t injuries in its vehicle design as a whole.” I do not read “as a whole” so narrowly norI concede that, absent the se at belt gag rule, knowing whether a passenger was 3 wearing her seat belt may be relevant in determining whether her injuries wer e exacerbat ed by the defective design or manufacture of the vehicle. It is possible , however, that a design defect would exa cerbate injury regardless of whether a seatbelt mechanism exists or is in use. -8- do I see the logical or legal necessity in raising t he 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 t han a federal court of appeals sitting in a diversity act ion, is the proper body to determine whether an auto manufacturer exercise d
re asonable 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.
Unde r these circumstances, I disagree with the majority’s conclusion tha t Ca rlson’s proposed second amended complaint must be rejected as futile and woul d
re mand the case so the district court could entertain her motion to amend he r complaint. Accordingly, I respectfully dissent. A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.