Kia to recall more than 193,000 vehicles over fuel hose issue that can cause engine fires

The AP (2/27) reports Kia is “recalling more than 193,000 cars and minivans in yet another move to fix nagging problems that could cause engine fires.” The “largest of two U.S. recalls released by the government Thursday covers nearly 142,000 2013 and 2014 Optima midsize cars.” Kia “says a fuel hose can deteriorate and crack due to engine heat. The hoses can leak and cause fires.” The AP adds, “The second recall covers about 51,000 2011 and 2012 Sedona minivans.” 

NTSB concludes investigation of March 2018’s Tesla Model X crash

In continuing coverage, the Menlo Park (CA) Almanac (2/27, Forestieri, 51K) reports that during its meeting Tuesday, the NTSB concluded that 38-year-old Walter Huang “died from a high-speed crash because his Tesla Model X’s Autopilot driving system steered the car into a median on Highway 101 in Mountain View in 2018.” The Menlo Park Almanac reports that the “findings citing the crash’s probable cause...place significant blame on Tesla for shortcomings in the electric car company’s partially autonomous driving system.” According to the Menlo Park Almanac, the findings “also point to driver complacency as a significant factor in the crash – he was likely playing a video game at the time – along with larger concerns that car manufacturers are marketing and selling autonomous features without adequate testing and clear disclosure of the limitations.”

CRASH AVOIDANCE TECHNOLOGIES AND HEAVY TRUCKS

The Problem and the technologies to prevent crashes

Large trucks with gross vehicle weight rating of more than 10,000 pounds drove approximately 280 billion miles on U.S. roads in 2015 and were involved in a total of over 400,000 crashes, which resulted in 116,000 injuries and 4,067 deaths. Advances in vehicle safety technology provide the opportunity to prevent substantial numbers of these crashes, injuries, and deaths. Examples of such technologies include braking systems designed to shorten a truck’s stopping distance, systems that warn the driver if the truck begins to drift out of its lane, and systems that can detect when a crash is imminent and automatically apply the brakes if the driver fails to do so.

Automatic Emergency Braking and Forward Collision Warning

Forward Collision Warning, (FCW) the most passive of the front crash avoidance technology, which uses camera, radar, and/or laser equipment for object recognition and speed detection, and alerts the driver via visual, audio, or haptic warning to apply the brakes when the relative speed between the tractor trailer and object in the road presents a risk of impending collision.

Automatic Emergency Braking, (AEB) the most active of the front crash avoidance technology, which automatically engages the full braking potential of a tractor trailer to either completely prevent a frontal collision or slow the rig down to mitigate severity when an imminent collision is detected. AEB is a camera-based or radar-based system that utilizes object recognition and speed detection to determine whether the relative speed between a vehicle and object in the road presents a risk of impending collision.

Automatic Emergency Braking (AEB) technology is a proven highway safety technology that could and will save countless lives and prevent injuries.  Unfortunately, after years of study and successful use by leading motor carriers, this technology has yet to be required for commercial motor vehicles.  As the public endures continued delays to require equipment that is readily available, families across the nation have had to pay the ultimate price.

NHTSA estimates that current generation AEB systems can prevent more than 2,500 crashes each year and that future generation systems could prevent more than 6,300 crashes annually. Every year a full implementation of AEB is delayed, research estimates that 166 people will unnecessarily die and another 8,000 individuals will suffer serious injuries. In a September 2018 study, NHTSA found that AEB systems have an incremental cost to the end user of $70.80-$316.18.

Lane Departure Assist Systems

Additionally, Lane Assist systems, including such technology as Lane Departure Warning (LDW), Lane Keeping Assist (LKA), and Lane Centering Assist (LCA), are all designed to promote lateral safety. LDW is a camera-based system that provides a driver with visual, audio, or haptic (involving a vibrating steering wheel or seat) warning when the driver’s truck unintentionally crosses a road lane marking or the edge of the road. LKA is also a camera-based system and is designed to utilize electronically powered steering to provide counter-steering torque to assist the driver in moving back into the center of the lane. LCA is essentially an LKA system, except that its purpose is to continually assist the driver in keeping the truck in the center of the lane.

Electronic Stability Control (ESC)

Active vehicle safety system that automatically intervenes when there is a high risk of directional instability that could lead to loss of vehicle control or rollover. Supports the driver in maintaining directional control of the vehicle when encountering slippery road conditions or taking an evasive action.  Assists the driver in reducing the risk of rollover while in a curve or taking evasive action.  Reduces the chances of a jack-knife and drift-out condition through selective braking of the tractor and trailer.

Marketing Practices in the Over-the-Road Industry

There are about a dozen major manufacturers of over-the-road medium and heavy-duty trucks sold in the United States. Often called “semi-tractors,” “semi-trucks,” or “Series 8 trucks,” the primary companies are Navistar (International Harvester), Peterbilt, Kenworth, Volvo, Freightliner LLC (Daimler Trucks North America) and Mack. The majority of the new tractors sold in this country are purchased by dealerships or retail/leasing companies who then market these vehicles across the country to individual truckers and small to mid-size trucking companies via multi-year leasing and service contracts. Examples of these are Rush Truck Center, Penske Truck Rental, and GLS Leasco.

The marketing of these trucks ordinarily involves providing fleet purchasers with a huge listing of standard equipment and literally dozens and dozens of alternative optional equipment ranging from different type frames, brake systems, drivelines, engines, fuel tanks, wheels, tires, suspensions, and — over the past 15 years — a host of “driver assistance systems”. By 2015, another major safety systems supplier, Meritor Wabco, had furnished several vehicle manufacturers with its “OnGuardActive” system, which included Adaptive Cruise Control, Collision Mitigation System (CMS) and Distance Alert.

Legal Duty

Ordinarily, consumers who suffer serious or catastrophic injuries from faulty products file suit in strict liability and/or negligence. How do these legal principles apply to a product sold without safety components or with features only available as an option for an added price? In 2006, the Wisconsin appellate court was asked to address both of these questions in Mahner v. Rew Motors, Inc., 298 Wis. 2d 247 (App. Wis. 2006)(Unpublished Disposition). The plaintiff was injured while operating a skid steer loader with a low profile bucket purchased by his employer.

The manufacturer offered this equipment with a spill guard as an option. The purchaser was unaware of this safety option because the manufacturer failed to provide any information of its availability.

Mahner was injured when some timber fell out of the bucket and struck his legs. While the trial court granted summary judgment, the appellate court reversed, holding in pertinent part that the absence of the guard was sufficient evidence to allow a jury to decide defect based upon Wisconsin's version of strict liability. Further, the Court stated: “The question here -- under a theory of negligent failure to inform the purchaser of the available guard -- is whether some injury was foreseeable given Rew's failure to inform its loader purchasers of an available spill guard. If the harm was not foreseeable, Rew had no duty. Moreover, because the test focuses on the foreseeability of harm based on an act or omission, the fact that Steinmetz came to be aware of the guard after his purchase is not dispositive.” Therefore, the Court ruled that the plaintiff could pursue both strict liability and negligence counts.

An Illinois appellate court looked at this issue from a slightly different perspective. In Robinson v. International Harvester Co., 70 Ill. 2d 47 (1978), the manufacturer of a Pay Loader sold to the Plaintiff's employer was ordered without an available/optional rollover occupant protection system (“ROPS”).

The manufacturer brought an action for indemnification based on the employer's decision to not buy this optional safety system. The Court held that if the product was defective for not including a ROPS, then the manufacturer could seek indemnification from the employer who failed to purchase and install the necessary safety devices to the purchaser.

The U.S. Third Circuit Court of Appeals considered this issue in construing Pennsylvania law. In Hammond v. International Harvester Co., 691 F.2d 646 (3rd Cir. 1982) the Court affirmed the jury verdict, finding the product defective without the inclusion of an optional ROPS. The Court observed that when a manufacturer sells one of its products with this safety device but not another, the question of defect is left to the jury. Providing ROPS as standard equipment on some products:

“…reflects the manufacturer's judgment that skid loader with a ROPS will not be unduly expensive or inconvenient to use, and that for safety's sake a loader tractor should come equipped with a ROPS. Without a ROPS, a loader tractor falls short of the optimal design; its design is legally defective and the defect is not cured because the removal of the safety device is specifically requested by the purchaser.”

In other words, evidence that a manufacturer markets optional safety features can, by its very existence, demonstrate a defective design when the product is furnished without this feature.

The New York Appellate Division affirmed a verdict of product defect against the product manufacturer and a negligence verdict against the rental company for failing to include an optional door to prevent ejection product (front-end loader) during usage as standard equipment.  Fasolas v. Bobcat of New York, Inc., 150 A.D. 3d 147 (NY App. 2017). See also, Morello v. Kenco Toyota Lift, 142 F. Supp. 3d 378 (E.D.Pa. 2015) (finding that product may be defective for not including a safety accessory as standard equipment); Pacific Indem. Co. v. Therm-O-Disc, Inc., 476 F. Supp. 2d 1216 (U.S. D. New Mexico 2006); Skyhook Corp. v. Jasper, 560 P.2d 934 (N.Mex. 1977) (overruled on other grounds).

The marketing of safe products should ordinarily include all of the available safety features warranted to protect consumers from harm. When a manufacturer decides to make safety an option, it takes the risk that it will be liable for harm caused by putting profits ahead of safety.

Are there CAT Features that Are Retro-Fittable and Is there a Duty?

Some courts have recognized a post-sale duty to recall or remedy a product based on evidence that the product may endanger the public. Noel v. United Aircraft Corp., 342 F.2d 232 (3rd Cir. 1964).

Other courts have imposed a duty to remedy a latent defect that comes to the manufacturer’s attention when that defect makes the product inherently dangerous. Smith v. Selco Products, Inc., 385 S.E. 2d 173 (N.C. 1989); Kozlowski v. John E. Smith's Sons Co., 275 N.W.2d 915 (Wis. 1979).

The failure to recall a discovered defect may even warrant punitive damages. Reed v. Ford Motor Co., 679 F.Supp. 873 (S.D. Ind. 1988).

Other courts have declined to impose a duty to retrofit absent evidence the product was defective or the defendant voluntarily undertook at duty to retrofit.  Ostendorf v. Clark Equipment Co., 122 S.W. 3d 530 (Ky. 2003); Tabieros v. Clark Equipment Co., 944 P.2d 1279 (Hawaii 1997). But others acknowledge post-sale duties. Eg., Bell Helicopter Co. v. Bradshaw, 594 S. W. 2d 519 (Tex. Civ. App. 1979); Readenour v. Marion Power Shovel, 719 P. 2d 1058 (Az. 1986); Hernandez v. Badger Const. Equip. Co., 28 Cal. App. 4th 1791 (1994).

But, what if the defendant is not the manufacturer and instead is the truck fleet company that is marketing to sell or lease vehicles and that company is aware of retro-fittable CAT systems?

Mobile-eye (“Mobileye Advance Driver Assistance System”), Bendix (Wingman Fusion) and Meritor Wabco (“On-Guard”) have marketed Forward Collision Warning systems that can be easily retrofitted. And, in fact, both Penske Truck Leasing and UPS have initiated the retrofitting of their Class 8 trucks with CMS. https://www.truckinginfo.com/142881/ups-to-retrofit-class-8-trucks-with-collision-mitigationtechnology; https://www.pensketruckleasing.com/resources/industry-resources/driver-tech/

Conclusion

Crash Avoidance Technologies and Collision Avoidance Systems in heavy trucks are here and evolving with every new model year. Will they end the millions of injuries and thousands of deaths? That is yet to be seen. But what you now know is what these technologies are and what they do and potential legal theories available to victims of heavy truck crashes.