AUTO PRODUCTS LIABILITY – CRASHWORTHINESS SETTLEMENT
Rollover Crashworthiness – 1998 Chevrolet S-10 Pick-up
Jaime D. Jackson, Esquire recently settled a case against General Motors involving a pickup truck that rolled over one and a half times in the middle of the roadway, yet the roof structure of the truck collapsed downward into the occupant space, compressing the driver’s head and neck against his chest, resulting in positional asphyxiation. Plaintiff alleged that the design of the vehicle’s roof structure was too weak, allowing it to collapse downward onto the occupant’s head and upper body, restricting his ability to breathe, resulting in positional asphyxiation. Extensive drop testing was performed to prove that when dropped from a height of only fifteen inches, the roof structure catastrophically collapsed into the occupant space, yet when simple reasonable alternative designs were made to the roof structure, such as strengthening the metal and adding reinforcements, again when the vehicle was dropped from fifteen inches, there was less than an inch intrusion into the occupant space. Plaintiff contended that the roof should have been strong enough to maintain its shape and not collapse into the occupant seating area. This concept is known as a safety cage or a non-encroachment zone. As part of a vehicle’s structural support system a roof creates a “non-encroachment zone” or “survival space” that should protect occupants in a crash. Vehicles should be designed to maintain their structural integrity in a rollover and the roof should not collapse downward or inward onto the occupant, striking them where it may cause a significant brain injury, spinal cord injury or death. Mr. Jackson has handled several rollover crashworthiness cases involving sport utility vehicles and pickup trucks, obtaining successful recoveries for clients and their families.
Tuesday, December 29, 2009
Crashworthiness Cases and Automobile Defects
CRASHWORTHINESS CASES
Is Your Auto Case Really A Crashworthiness Case?
A Crashworthiness and Automobile Defect Overview
Jaime D. Jackson, Esquire[1]
' An uncle driving his nephew to a movie was struck head on by a driver coming the other way that hydroplaned and crossed the road. The young boy in the rear seat was paralyzed. The family’s lawyer knew to look beyond the insurance on the opposing vehicle, and to screen the case for potential product liability issues.
' A young man driving his vehicle waiting in traffic was rear ended, his seatback collapsed, projecting him into the rear seat where he became a quadriplegic. His lawyer knew to look beyond the insurance coverage, and to screen the case for potential product liability issues.
' A family driving to visit grandparents was rear ended by a tractor trailer. The vehicle burst into flames killing everyone in the vehicle. The family’s lawyers knew to look beyond insurance coverage, and to screen the case for potential products liability issues.
' A gentleman driving his pickup truck swerved to miss an animal on the roadway, the truck rolled over in the middle of the roadway and the roof crushed down on his head and spine rendering him a quadriplegic. His lawyer knew to look beyond the family’s own insurance, and to screen the case for potential products liability issues.
In each of these cases, the families were fortunate enough to come to attorneys who knew that it is imperative to screen every catastrophic injury case for products liability issues. In each, the primary defendant was identified as a result.
The Duty to Screen. This is not just an extra service you provide to your clients – this is what the law requires. We all understand our duty as lawyers to identify all potential defendants and claims. This includes manufacturers of products that may have contributed to your client’s injury. See the appendix attached.
Every Catastrophic Injury Auto Wreck Case Should Be Screened for Product Liability Issues. You can do the screening, using guides like this, or there are many experienced product liability attorneys who will screen your cases for free. If you screen every case involving death, paralysis, or severe head injury, chances are most will not present product liability issues. In that case, the screening process will result in a memo or letter in your file showing that you addressed the issue. In some cases, however, this screening process will identify the leading defendants, a physically remote but responsible cause of your client’s loss.
Not Just Car Wreck Cases. This paper is intended to assist in screening auto accident cases for product issues. However, other types of catastrophic injury cases should also be screened for products issues. For example:
' Work Place Injuries. Often result in incomplete compensation, due to the worker’s compensation system. However, where work place machinery is involved, a product liability suit is often possible, and is often your client’s only hope for recovering full and fair damages. Even where the negligence of a co-worker is a cause of the injury, a product may be a cause as well.
' Home Injuries. Can also be product related. A recent electrocution case involving the death of a father and son was found to involve a product that lacked an important safety feature that could have prevented this tragedy. Another recent case involved an injury due to a dangerous toy. Actions of this nature not only provide your client a chance of more complete recovery of damages, they also motivate manufacturers to produce safer products in the future.
Clues. While all catastrophic injury auto accident cases should be screened for potential product liability issues, certain situations particularly call out for further inquiry:
' Minor and Severe Injuries in the Same Accident. When different people involved in the same accident receive very different injuries, with only some severely injured, it is important to take a closer look and determine why. Did one occupant seatbelt not lock promptly? In a rollover, did the roof fail over one occupant’s head? Did the occupant seatback collapse? The cause may, or may not, be due to a product failure.
' Was a Belted Occupant Severely Hurt in a Situation Where Crash Testing Shows the Accident to Be Survivable Without Catastrophic Injury? Like comparing to other occupants, comparing what happened to an accident victim to what happened to crash test dummies in a similar impact may show that something went wrong in the accident.
' Was Someone Hurt Doing Everything Right? Was your client belted but hurt anyway? Did your client in his SUV simply steer to avoid an obstacle but rolled over? This may provide a clue to a vehicle problem contributing to injury.
' Did Something Break or Not Operate as Expected? Did the airbag fail to go off in a serious impact, or did it go off in a minor impact causing more harm than if it had not deployed? Is a belt or seat part broken? Did the roof crush into the occupant survival space? Did the seatback lay down flat? Did a tire fail? In many meritorious product cases, there is no visually obvious failure, but if there is one, that component certainly requires a closer look.
' Did Someone End Up Where They Should Not Have Been? Was a belted occupant ejected? Did a belted occupant strike an interior component that should have been out of reach if the belt worked correctly? Did a front seat occupant end up in the back seat, due to seatback failure?
Crashworthiness – How Your Car Should Protect You. One kind of auto product liability case arises when a vehicle fails to provide reasonable crash protection. In a crashworthiness case, there is almost always some person at fault for the accident – perhaps even your client. However, since the 1960’s, the courts have recognized the duty of auto makers to provide reasonable crash protection even where someone else causes the accident.[2]
Crashworthiness cases involve the allegation that a defendant manufacturer failed to take precautions to reduce the likelihood of injuries resulting from a foreseeable collision. This type of liability has been variously referred to as "crashworthiness," "enhanced injury," and "second impact or collision." The vehicle is defective if it is designed or manufactured in such a way that the injuries the occupant sustained in a collision are greater than injuries one would normally expect in that type of collision.
Legally, crashworthiness was first recognized in Pennsylvania in Kupetz v. Deere & Co., Inc., 644 A.2d 1213 (Pa. Super. 1994.) The court recognized that recovery is allowed against the manufacturer for any injuries attributable to a product defect over and above those injuries caused by the initial or first collision. This is true even though the injury causing defect was not the cause of the initial collision or accident.
Crashworthiness requires protection from the potentially injurious forces created in an impact. Typically, safe designs seek to distribute the accident forces over time and distance, and by directing those forces away from the more vulnerable parts of the body like the central nervous system and toward “harder targets” such as the clavicle and pelvis. Auto makers should build crashworthiness into their design using the following long-recognized techniques. Defects often result from a decision to forego a design that would accomplish one of these well established occupant protection goals.
1. Minimize Intrusion. Occupant survival space should be maintained by keeping the car structure out of the vehicle interior. Crush zones are used at the front and rear of the vehicle to absorb impact forces, but substantial crush should end where the occupant compartment begins. Roofs should be strong enough to not collapse in highway speed rollover accidents.
2. Effective Restraint System. The seatbelt should fit right and engage promptly. An occupant must be firmly restrained to benefit from the “ride-down” the crush zones provide. In a rollover, good restraint is necessary to keep the occupant from loading into the roof or going out the window.
3. Prevention of Ejection. People ejected in accidents are much more likely to be hurt or killed. Good seatbelts are a necessary start. Door latches should stay latched. Retentive glazing or side curtain airbags can also prevent complete or partial ejection.
4. "Friendly Interiors." Even with good restraint, occupants can contact parts of the vehicle interior. Hard surfaces should be padded, and steering columns should collapse to absorb accident forces. Of course, a well designed airbag can provide the ultimate friendly interior.
5. Fuel System Integrity. An occupant should not survive a crash only to perish in the subsequent fire. With good design of the entire fuel system including fuel tank location, fuel line routing, and secure connections most accidents should not cause a car to burst into flames (Hollywood notwithstanding).
CSI-ing the accident. Product failures are identifiable through examination of the forensic evidence at the scene and the vehicle, and through technical research. Screening typically involves some or all of the following elements. Auto product litigators often work with investigators and engineers that can quickly and economically review the evidence in these categories. All inspections should, of course, be non-destructive and should not alter the evidence in any way.
· Preliminary Accident Reconstruction. A review of the accident photos and accident report should allow a good understanding of what happened, and application of a few formulas can even render a ballpark estimation of speeds involved.
· Vehicle and Scene inspection. Forensic examination of this key evidence may be needed to reconstruct what went on, including what happened inside the vehicle. A trained observer can identify forensic evidence on a seatbelt indicating whether the belt was worn and whether it held tight. They can locate “witness marks” where occupants contacted the vehicle interior. Event data recorders – like airplane “black boxes” – may contain important crash and pre-crash information on speed, brake and throttle application, restraint usage, and airbag function or malfunction. Good practitioners disagree as to whether the event data recorder can or should be downloaded without having the potential defendant present. It has been my practice to always notify the potential defendant and allow them an opportunity to attend.
· Biomechanical analysis. The accident reconstruction and forensic inspections are reviewed with the medical records to determine the mechanism of injury – how specifically the injury occurred.
· Defect investigation. Technical literature, manufacturer documents produced in other cases, government reports, other incidents, and other sources of information are reviewed to identify known or suspected vehicle defects.
· Legal research. The law of the jurisdiction must be reviewed to make sure it will support a claim in the circumstances presented, and to identify proper defendants (e.g. just the vehicle manufacturer, or also the dealership and the manufacturer of any defective component parts). Legal research is also needed to assess whether a claim involving a particular defect will be preempted by federal law if the vehicle complied with an applicable federal regulation. This is rare, but does occur with certain defects.
Evidence collection and preservation. While the investigation is taking place, it is important to preserve all key evidence. The accident vehicle needs to be maintained in its immediate post-accident condition to the extent possible.[3] Scene evidence such as tire marks or roadway damage must be documented while they are fresh. Witness recollections should be recorded, preferably through sworn statements. All entities responding to the accident scene should be contacted to obtain any resulting paperwork, including notes as well as final reports and photos in the police or emergency responder files. Identify any news media that responded to the scene, and try to obtain their documentation of the accident.
Common defects. The following is a partial list of commonly encountered injury causing defects, which may assist you or a consulting lawyer in identifying whether the vehicle itself may have contributed to your client’s injuries, so that the major defendant in your car wreck case is not overlooked.
Post-Collision, Fuel-Fed Fires. Vehicle manufacturers have a duty to the public to design vehicles that will not create a fire hazard in survivable collisions. In the early 1970's, a General Motors engineer indicated that GM should be designing their vehicles so that if the occupants survive the collision, they should not be burned in a post-collision, fuel-fed fire. There are several common fuel system defects that can cause fuel leaks which result in post-collision fires:
' Fuel tanks may be punctured and leak in an accident;
' Fuel lines may be compromised - the location and composition of the fuels lines is critical to the overall fuel system integrity of a vehicle;
' Most fuel-injected engines have electric fuel pumps. It is critical that these pumps shut off in the event of a collision; and
' It is possible for fuel to siphon from a fuel tank after a collision, providing a continuing source of fuel for a vehicle fire. This potential hazard can be eliminated with check valves or anti-siphoning devices.
Air Bags. Air bags are supposed to be fully inflated before the passenger falls into it during a crash. Serious injuries occur when air bags, which can travel at speeds up to 200 mph, hit occupants prior to full inflation. There are numerous low-speed impacts where an air bag may deploy when it is unnecessary. Safer air bags include air bags with higher deployment thresholds, less aggressive air bags, tethers, better sensors, and adjustable or dual-stage inflators.
Rollover. Recent Government surveys indicate that pick-ups and sport utility vehicles (SUVs) have a rollover rate that is 2 to 3 times higher than the average passenger car. 80% of all deaths in single vehicle crashes of SUVs involve rollovers. The technology of electronic stability control, (ESC), has been around for years; yet numerous cars today still lack ESC.
Rollover Crashworthiness. Although rollovers may look dramatic on TV, they are relatively non-severe events as the energy of the crash is dissipated over a longer period of time. People in a crashworthy vehicle should not be catastrophically injured in a rollover event. The following are a few items to look for in a rollover:
' Roof Crush. As part of a vehicle's structural support system, a roof creates a "non-encroachment zone" or "survival space" that should protect occupants in a crash. If a roof crushes substantially in an accident, the occupants may suffer disabling head or neck injuries.
' Seatbelt Slack. Despite wearing their seatbelt, occupants may be partially or fully ejected or allowed to slam into the roof in a rollover.
' Belt Unlatching. Some seatbelt designs are subject to release in an accident.
' Lack of Ejection Protection. Laminated side window glass can keep occupants from being ejected, as can rollover activated side curtain airbags.
Seat Belts. When a seat belt works properly, it is undisputably the most important safety device in an automobile. When it works poorly or completely fails to work, the seat belt can cause serious injury and even death. When an occupant is killed or seriously injured in a car accident, despite wearing his/her seat belt, it is reasonable to ask "why."
Unfortunately, millions of vehicles on the road have defective seat belt systems that are incapable of providing reasonable protection in otherwise survivable accidents. Many of these defects have been known to the auto industry for many years, including inertial unlatching and false latching, torn or ripped webbing, retractor failure, window shade devices and poor seat belt geometry. Two of the more notorious defects are the lap-only belt designs and door-mounted and other automatic belt systems. Although the benefits of utilizing a lap and shoulder belt have been known for decades, shoulder belts were not included in the rear seats of most U.S. cars until the late 1980's. Lap-only belts can lead to fatal or catastrophic injuries, including head and spinal cord and other internal injuries.
Door-mounted and other automatic belt systems pose a slew of safety risks, including occupant ejection when the door opens during a crash, and severe spinal cord injuries when an occupant with an automatic shoulder belt forgets to put the manual lap belt on.
Tire Failure. This has been a problem for years, but has come under increased scrutiny recently due to the Firestone debacle. Tire failures, separations and blow-outs are foreseeable events that occur on a daily basis. However, a tire will often fail to do its job due to a manufacturing or design defect long before the tread on the tire has worn out. The most common form of failure is tread separation, predominately found on steel-belted radials; the most common type of tire today. Some tire designs are more prone to tread separation than others.
Seats/Seat Backs. As a direct result of weak and defective designs of automobile seats and their components, such as seat backs, recliner mechanisms, and seat tracts, thousands of otherwise preventable injuries occur each year in rear-impact collisions. The seat is essentially an occupant restraint. Much like the seatbelt system prevents an occupant from moving forward in a frontal collision, the seat should perform the same function in a rear impact collision, and prevent the occupant from striking the interior of the vehicle or being ejected. Seats and their components suffer a variety of failure modes in rear-impact collisions including breakage of seat adjustors, breakage of folding seatback locks and supports, or separation of the anchorage from the vehicle.
Child Safety Seats and Booster Seats. Many of the devices sold in toy stores and baby shops are not up to the task of protecting children in crashes. Every year, hundreds of children suffer serious and often fatal injuries in automobile accidents, even though they were restrained in child safety seats or booster seats. Many of these injuries and deaths could have been prevented. Most of these could have survived the accidents without any serious injuries if they had been properly restrained and well designed, well built, and properly installed child safety seats or booster seats. Some common problems with child safety seats relate to manufacturing defects, including defectively manufactured plastic shelves, harnesses and accessories. Common design defects in child seats generally relate to shell design and buckle and latch design, inadequate padding and harness design, just to name a few.
“Black Box” Technology. Almost all late-model vehicles are equipped with a type of crash data recorded. They have become sometime known as “black boxes” because of the well-know devices on-board airplanes. Basically, the module or sensor system is tied into the airbag module and monitors the status of the vehicle just before and during a crash. The device can record such helpful information as whether the occupant was belted, timing of airbag deployment, delta V (change in velocity) braking, and even engine RPMs. It is important to note that each vehicle involved in the accident may have such a device and record useful information in a crash.
Many manufacturers have ignored vehicle crashworthiness, relying on inadequate government standards. When there is a motor vehicle accident and the resultant injuries are more severe than one would expect, given the facts of the accident, then the possibility of crashworthiness does exist. If the injuries are significant, it is important to do a thorough investigation to determine whether or not those injuries were the result of a defect in the design or manufacture of the vehicle, as opposed to the natural consequences of the accident or collision.
Jaime D. Jackson, Esquire
Atlee, Hall & Brookhart, LLP
8 North Queen Street
Lancaster, PA 17601
(717) 393-9596
e-mail: jdjackson@atleehall.com
website: www.atleehall.com
[1] Jaime D. Jackson, Esquire; Atlee, Hall & Brookhart, LLP, 8 North Queen Street, Lancaster, PA 17601; telephone number: (717) 393-9596; e-mail: jdjackson@atleehall.com; website: www.atleehall.com
[2] The crashworthiness doctrine was first recognized in Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968). Since then, it has been adopted by nearly every state; including Pennsylvania. Kupetz v. Deere & Company, Inc., 435 Pa. Super. 16, 644 A.2d 1213 (1994); Stecher v. Ford Motor Company, 571 Pa. 312, 812 A.2d 553 (2002)
[3] See sample spoliation letter attached.
Is Your Auto Case Really A Crashworthiness Case?
A Crashworthiness and Automobile Defect Overview
Jaime D. Jackson, Esquire[1]
' An uncle driving his nephew to a movie was struck head on by a driver coming the other way that hydroplaned and crossed the road. The young boy in the rear seat was paralyzed. The family’s lawyer knew to look beyond the insurance on the opposing vehicle, and to screen the case for potential product liability issues.
' A young man driving his vehicle waiting in traffic was rear ended, his seatback collapsed, projecting him into the rear seat where he became a quadriplegic. His lawyer knew to look beyond the insurance coverage, and to screen the case for potential product liability issues.
' A family driving to visit grandparents was rear ended by a tractor trailer. The vehicle burst into flames killing everyone in the vehicle. The family’s lawyers knew to look beyond insurance coverage, and to screen the case for potential products liability issues.
' A gentleman driving his pickup truck swerved to miss an animal on the roadway, the truck rolled over in the middle of the roadway and the roof crushed down on his head and spine rendering him a quadriplegic. His lawyer knew to look beyond the family’s own insurance, and to screen the case for potential products liability issues.
In each of these cases, the families were fortunate enough to come to attorneys who knew that it is imperative to screen every catastrophic injury case for products liability issues. In each, the primary defendant was identified as a result.
The Duty to Screen. This is not just an extra service you provide to your clients – this is what the law requires. We all understand our duty as lawyers to identify all potential defendants and claims. This includes manufacturers of products that may have contributed to your client’s injury. See the appendix attached.
Every Catastrophic Injury Auto Wreck Case Should Be Screened for Product Liability Issues. You can do the screening, using guides like this, or there are many experienced product liability attorneys who will screen your cases for free. If you screen every case involving death, paralysis, or severe head injury, chances are most will not present product liability issues. In that case, the screening process will result in a memo or letter in your file showing that you addressed the issue. In some cases, however, this screening process will identify the leading defendants, a physically remote but responsible cause of your client’s loss.
Not Just Car Wreck Cases. This paper is intended to assist in screening auto accident cases for product issues. However, other types of catastrophic injury cases should also be screened for products issues. For example:
' Work Place Injuries. Often result in incomplete compensation, due to the worker’s compensation system. However, where work place machinery is involved, a product liability suit is often possible, and is often your client’s only hope for recovering full and fair damages. Even where the negligence of a co-worker is a cause of the injury, a product may be a cause as well.
' Home Injuries. Can also be product related. A recent electrocution case involving the death of a father and son was found to involve a product that lacked an important safety feature that could have prevented this tragedy. Another recent case involved an injury due to a dangerous toy. Actions of this nature not only provide your client a chance of more complete recovery of damages, they also motivate manufacturers to produce safer products in the future.
Clues. While all catastrophic injury auto accident cases should be screened for potential product liability issues, certain situations particularly call out for further inquiry:
' Minor and Severe Injuries in the Same Accident. When different people involved in the same accident receive very different injuries, with only some severely injured, it is important to take a closer look and determine why. Did one occupant seatbelt not lock promptly? In a rollover, did the roof fail over one occupant’s head? Did the occupant seatback collapse? The cause may, or may not, be due to a product failure.
' Was a Belted Occupant Severely Hurt in a Situation Where Crash Testing Shows the Accident to Be Survivable Without Catastrophic Injury? Like comparing to other occupants, comparing what happened to an accident victim to what happened to crash test dummies in a similar impact may show that something went wrong in the accident.
' Was Someone Hurt Doing Everything Right? Was your client belted but hurt anyway? Did your client in his SUV simply steer to avoid an obstacle but rolled over? This may provide a clue to a vehicle problem contributing to injury.
' Did Something Break or Not Operate as Expected? Did the airbag fail to go off in a serious impact, or did it go off in a minor impact causing more harm than if it had not deployed? Is a belt or seat part broken? Did the roof crush into the occupant survival space? Did the seatback lay down flat? Did a tire fail? In many meritorious product cases, there is no visually obvious failure, but if there is one, that component certainly requires a closer look.
' Did Someone End Up Where They Should Not Have Been? Was a belted occupant ejected? Did a belted occupant strike an interior component that should have been out of reach if the belt worked correctly? Did a front seat occupant end up in the back seat, due to seatback failure?
Crashworthiness – How Your Car Should Protect You. One kind of auto product liability case arises when a vehicle fails to provide reasonable crash protection. In a crashworthiness case, there is almost always some person at fault for the accident – perhaps even your client. However, since the 1960’s, the courts have recognized the duty of auto makers to provide reasonable crash protection even where someone else causes the accident.[2]
Crashworthiness cases involve the allegation that a defendant manufacturer failed to take precautions to reduce the likelihood of injuries resulting from a foreseeable collision. This type of liability has been variously referred to as "crashworthiness," "enhanced injury," and "second impact or collision." The vehicle is defective if it is designed or manufactured in such a way that the injuries the occupant sustained in a collision are greater than injuries one would normally expect in that type of collision.
Legally, crashworthiness was first recognized in Pennsylvania in Kupetz v. Deere & Co., Inc., 644 A.2d 1213 (Pa. Super. 1994.) The court recognized that recovery is allowed against the manufacturer for any injuries attributable to a product defect over and above those injuries caused by the initial or first collision. This is true even though the injury causing defect was not the cause of the initial collision or accident.
Crashworthiness requires protection from the potentially injurious forces created in an impact. Typically, safe designs seek to distribute the accident forces over time and distance, and by directing those forces away from the more vulnerable parts of the body like the central nervous system and toward “harder targets” such as the clavicle and pelvis. Auto makers should build crashworthiness into their design using the following long-recognized techniques. Defects often result from a decision to forego a design that would accomplish one of these well established occupant protection goals.
1. Minimize Intrusion. Occupant survival space should be maintained by keeping the car structure out of the vehicle interior. Crush zones are used at the front and rear of the vehicle to absorb impact forces, but substantial crush should end where the occupant compartment begins. Roofs should be strong enough to not collapse in highway speed rollover accidents.
2. Effective Restraint System. The seatbelt should fit right and engage promptly. An occupant must be firmly restrained to benefit from the “ride-down” the crush zones provide. In a rollover, good restraint is necessary to keep the occupant from loading into the roof or going out the window.
3. Prevention of Ejection. People ejected in accidents are much more likely to be hurt or killed. Good seatbelts are a necessary start. Door latches should stay latched. Retentive glazing or side curtain airbags can also prevent complete or partial ejection.
4. "Friendly Interiors." Even with good restraint, occupants can contact parts of the vehicle interior. Hard surfaces should be padded, and steering columns should collapse to absorb accident forces. Of course, a well designed airbag can provide the ultimate friendly interior.
5. Fuel System Integrity. An occupant should not survive a crash only to perish in the subsequent fire. With good design of the entire fuel system including fuel tank location, fuel line routing, and secure connections most accidents should not cause a car to burst into flames (Hollywood notwithstanding).
CSI-ing the accident. Product failures are identifiable through examination of the forensic evidence at the scene and the vehicle, and through technical research. Screening typically involves some or all of the following elements. Auto product litigators often work with investigators and engineers that can quickly and economically review the evidence in these categories. All inspections should, of course, be non-destructive and should not alter the evidence in any way.
· Preliminary Accident Reconstruction. A review of the accident photos and accident report should allow a good understanding of what happened, and application of a few formulas can even render a ballpark estimation of speeds involved.
· Vehicle and Scene inspection. Forensic examination of this key evidence may be needed to reconstruct what went on, including what happened inside the vehicle. A trained observer can identify forensic evidence on a seatbelt indicating whether the belt was worn and whether it held tight. They can locate “witness marks” where occupants contacted the vehicle interior. Event data recorders – like airplane “black boxes” – may contain important crash and pre-crash information on speed, brake and throttle application, restraint usage, and airbag function or malfunction. Good practitioners disagree as to whether the event data recorder can or should be downloaded without having the potential defendant present. It has been my practice to always notify the potential defendant and allow them an opportunity to attend.
· Biomechanical analysis. The accident reconstruction and forensic inspections are reviewed with the medical records to determine the mechanism of injury – how specifically the injury occurred.
· Defect investigation. Technical literature, manufacturer documents produced in other cases, government reports, other incidents, and other sources of information are reviewed to identify known or suspected vehicle defects.
· Legal research. The law of the jurisdiction must be reviewed to make sure it will support a claim in the circumstances presented, and to identify proper defendants (e.g. just the vehicle manufacturer, or also the dealership and the manufacturer of any defective component parts). Legal research is also needed to assess whether a claim involving a particular defect will be preempted by federal law if the vehicle complied with an applicable federal regulation. This is rare, but does occur with certain defects.
Evidence collection and preservation. While the investigation is taking place, it is important to preserve all key evidence. The accident vehicle needs to be maintained in its immediate post-accident condition to the extent possible.[3] Scene evidence such as tire marks or roadway damage must be documented while they are fresh. Witness recollections should be recorded, preferably through sworn statements. All entities responding to the accident scene should be contacted to obtain any resulting paperwork, including notes as well as final reports and photos in the police or emergency responder files. Identify any news media that responded to the scene, and try to obtain their documentation of the accident.
Common defects. The following is a partial list of commonly encountered injury causing defects, which may assist you or a consulting lawyer in identifying whether the vehicle itself may have contributed to your client’s injuries, so that the major defendant in your car wreck case is not overlooked.
Post-Collision, Fuel-Fed Fires. Vehicle manufacturers have a duty to the public to design vehicles that will not create a fire hazard in survivable collisions. In the early 1970's, a General Motors engineer indicated that GM should be designing their vehicles so that if the occupants survive the collision, they should not be burned in a post-collision, fuel-fed fire. There are several common fuel system defects that can cause fuel leaks which result in post-collision fires:
' Fuel tanks may be punctured and leak in an accident;
' Fuel lines may be compromised - the location and composition of the fuels lines is critical to the overall fuel system integrity of a vehicle;
' Most fuel-injected engines have electric fuel pumps. It is critical that these pumps shut off in the event of a collision; and
' It is possible for fuel to siphon from a fuel tank after a collision, providing a continuing source of fuel for a vehicle fire. This potential hazard can be eliminated with check valves or anti-siphoning devices.
Air Bags. Air bags are supposed to be fully inflated before the passenger falls into it during a crash. Serious injuries occur when air bags, which can travel at speeds up to 200 mph, hit occupants prior to full inflation. There are numerous low-speed impacts where an air bag may deploy when it is unnecessary. Safer air bags include air bags with higher deployment thresholds, less aggressive air bags, tethers, better sensors, and adjustable or dual-stage inflators.
Rollover. Recent Government surveys indicate that pick-ups and sport utility vehicles (SUVs) have a rollover rate that is 2 to 3 times higher than the average passenger car. 80% of all deaths in single vehicle crashes of SUVs involve rollovers. The technology of electronic stability control, (ESC), has been around for years; yet numerous cars today still lack ESC.
Rollover Crashworthiness. Although rollovers may look dramatic on TV, they are relatively non-severe events as the energy of the crash is dissipated over a longer period of time. People in a crashworthy vehicle should not be catastrophically injured in a rollover event. The following are a few items to look for in a rollover:
' Roof Crush. As part of a vehicle's structural support system, a roof creates a "non-encroachment zone" or "survival space" that should protect occupants in a crash. If a roof crushes substantially in an accident, the occupants may suffer disabling head or neck injuries.
' Seatbelt Slack. Despite wearing their seatbelt, occupants may be partially or fully ejected or allowed to slam into the roof in a rollover.
' Belt Unlatching. Some seatbelt designs are subject to release in an accident.
' Lack of Ejection Protection. Laminated side window glass can keep occupants from being ejected, as can rollover activated side curtain airbags.
Seat Belts. When a seat belt works properly, it is undisputably the most important safety device in an automobile. When it works poorly or completely fails to work, the seat belt can cause serious injury and even death. When an occupant is killed or seriously injured in a car accident, despite wearing his/her seat belt, it is reasonable to ask "why."
Unfortunately, millions of vehicles on the road have defective seat belt systems that are incapable of providing reasonable protection in otherwise survivable accidents. Many of these defects have been known to the auto industry for many years, including inertial unlatching and false latching, torn or ripped webbing, retractor failure, window shade devices and poor seat belt geometry. Two of the more notorious defects are the lap-only belt designs and door-mounted and other automatic belt systems. Although the benefits of utilizing a lap and shoulder belt have been known for decades, shoulder belts were not included in the rear seats of most U.S. cars until the late 1980's. Lap-only belts can lead to fatal or catastrophic injuries, including head and spinal cord and other internal injuries.
Door-mounted and other automatic belt systems pose a slew of safety risks, including occupant ejection when the door opens during a crash, and severe spinal cord injuries when an occupant with an automatic shoulder belt forgets to put the manual lap belt on.
Tire Failure. This has been a problem for years, but has come under increased scrutiny recently due to the Firestone debacle. Tire failures, separations and blow-outs are foreseeable events that occur on a daily basis. However, a tire will often fail to do its job due to a manufacturing or design defect long before the tread on the tire has worn out. The most common form of failure is tread separation, predominately found on steel-belted radials; the most common type of tire today. Some tire designs are more prone to tread separation than others.
Seats/Seat Backs. As a direct result of weak and defective designs of automobile seats and their components, such as seat backs, recliner mechanisms, and seat tracts, thousands of otherwise preventable injuries occur each year in rear-impact collisions. The seat is essentially an occupant restraint. Much like the seatbelt system prevents an occupant from moving forward in a frontal collision, the seat should perform the same function in a rear impact collision, and prevent the occupant from striking the interior of the vehicle or being ejected. Seats and their components suffer a variety of failure modes in rear-impact collisions including breakage of seat adjustors, breakage of folding seatback locks and supports, or separation of the anchorage from the vehicle.
Child Safety Seats and Booster Seats. Many of the devices sold in toy stores and baby shops are not up to the task of protecting children in crashes. Every year, hundreds of children suffer serious and often fatal injuries in automobile accidents, even though they were restrained in child safety seats or booster seats. Many of these injuries and deaths could have been prevented. Most of these could have survived the accidents without any serious injuries if they had been properly restrained and well designed, well built, and properly installed child safety seats or booster seats. Some common problems with child safety seats relate to manufacturing defects, including defectively manufactured plastic shelves, harnesses and accessories. Common design defects in child seats generally relate to shell design and buckle and latch design, inadequate padding and harness design, just to name a few.
“Black Box” Technology. Almost all late-model vehicles are equipped with a type of crash data recorded. They have become sometime known as “black boxes” because of the well-know devices on-board airplanes. Basically, the module or sensor system is tied into the airbag module and monitors the status of the vehicle just before and during a crash. The device can record such helpful information as whether the occupant was belted, timing of airbag deployment, delta V (change in velocity) braking, and even engine RPMs. It is important to note that each vehicle involved in the accident may have such a device and record useful information in a crash.
Many manufacturers have ignored vehicle crashworthiness, relying on inadequate government standards. When there is a motor vehicle accident and the resultant injuries are more severe than one would expect, given the facts of the accident, then the possibility of crashworthiness does exist. If the injuries are significant, it is important to do a thorough investigation to determine whether or not those injuries were the result of a defect in the design or manufacture of the vehicle, as opposed to the natural consequences of the accident or collision.
Jaime D. Jackson, Esquire
Atlee, Hall & Brookhart, LLP
8 North Queen Street
Lancaster, PA 17601
(717) 393-9596
e-mail: jdjackson@atleehall.com
website: www.atleehall.com
[1] Jaime D. Jackson, Esquire; Atlee, Hall & Brookhart, LLP, 8 North Queen Street, Lancaster, PA 17601; telephone number: (717) 393-9596; e-mail: jdjackson@atleehall.com; website: www.atleehall.com
[2] The crashworthiness doctrine was first recognized in Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968). Since then, it has been adopted by nearly every state; including Pennsylvania. Kupetz v. Deere & Company, Inc., 435 Pa. Super. 16, 644 A.2d 1213 (1994); Stecher v. Ford Motor Company, 571 Pa. 312, 812 A.2d 553 (2002)
[3] See sample spoliation letter attached.
Wednesday, December 16, 2009
Monday, November 9, 2009
Toyota Sudden Acceleration Problems
Toyota cases ignored
Safety investigators dismissed numerous reports of sudden acceleration, then said data were lacking.
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Bulent Ezal said his Camry suddenly accelerated before it plunged off a Pismo Beach cliff in 2007, killing his wife. (Pismo Beach Police Department / May 3, 2007)
Related
Graphic: Nothing to see here, folks
Prius damage
Toyota is sued over concerns of sudden acceleration
Multimedia
Discuss: Have you experienced sudden acceleration in a Toyota?
By Ralph Vartabedian and Ken Bensinger
November 8, 2009
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More than 1,000 Toyota and Lexus owners have reported since 2001 that their vehicles suddenly accelerated on their own, in many cases slamming into trees, parked cars and brick walls, among other obstacles, a Times review of federal records has found.The crashes resulted in at least 19 deaths and scores of injuries over the last decade, records show. Federal regulators say that is far more than any other automaker has experienced.Owner complaints helped trigger at least eight investigations into sudden acceleration in Toyota and Lexus vehicles by the National Highway Traffic Safety Administration in the last seven years. Toyota Motor Corp. recalled fewer than 85,000 vehicles in response to two of those probes, and the federal agency closed six other cases without finding a defect.But those investigations systematically excluded or dismissed the majority of complaints by owners that their Toyota and Lexus vehicles had suddenly accelerated, which sharply narrowed the scope of the probes, the Times investigation revealed.Federal officials eliminated broad categories of sudden-acceleration complaints, including cases in which drivers said they were unable to stop runaway cars using their brakes; incidents of unintended acceleration lasting more than a few seconds; and reports in which owners did not identify the possible causes of the problem.NHTSA officials used the exclusions as part of their rationale to close at least five of the investigations without finding any defect, because -- with fewer incidents to consider -- the agency concluded there were not enough reported problems to warrant further inquiry. In a 2003 Lexus probe, for example, the agency threw out all but one of 37 customer complaints cited in a defect petition. It then halted further investigation, saying it "found no data indicating the existence of a defect trend."Meanwhile, fatal crashes involving Toyota vehicles continued to mount.In a written statement, the NHTSA said its records show that a total of 15 people died in crashes related to possible sudden acceleration in Toyota vehicles from the 2002 model year and newer, compared with 11 such deaths in vehicles made by all other automakers.The Times located federal and other records of 19 fatalities involving Toyota and Lexus vehicles from the same model years in which sudden or unintended acceleration may have been a factor, as well as more than 1,000 reports by owners that their vehicles had suddenly accelerated. Independent safety expert Sean Kane, president of Safety Research and Strategies, said he has identified nearly 2,000 sudden-acceleration cases for Toyota vehicles built since 2001.Other experts say the numbers may be far higher, pointing to a 2007 NHTSA survey of 600 Lexus owners that found 10% complained they had experienced sudden acceleration.Most sudden accelerations did not result in a crash, but there were notable exceptions. Bulent Ezal, a retired engineer, plunged 70 feet off a Pismo Beach cliff into the Pacific Ocean surf. He was hospitalized with minor injuries, but his wife of 46 years was killed."By the time they pulled me out, the tide was about to cover the car," Ezal said.He said his 2005 Camry had suddenly accelerated in a parking lot.In its research, The Times examined thousands of federal defect investigation records, complaints filed with NHTSA by Toyota and Lexus owners, lawsuits against the company, and reports by independent safety experts and local police agencies.Toyota has been under a spotlight since Aug. 28, when off-duty California Highway Patrolman Mark Saylor and three members of his family died in a Lexus ES 350 that accelerated to more than 100 mph and crashed in San Diego County.Toyota has blamed the Saylor crash on an incorrectly installed floor mat that jammed the accelerator pedal. The company announced a recall of 3.8 million vehicles in September and is designing a fix aimed at preventing sudden acceleration caused by floor mats.The recall affects the following Toyota models: the 2007-2010 Camry, the 2004-2009 Prius, the 2005-2010 Avalon, the 2005-2010 Tacoma and the 2007-2010 Tundra, as well as the 2007-2010 Lexus ES 350 and the 2006-2010 Lexus IS 250 and IS 350.Last week, the NHTSA called the issue a "very dangerous problem" and said the remedy remains to be determined.The agency declined a request for interviews, but issued a statement defending its past actions, saying its officials have continuously monitored Toyota vehicles for potential defects and that many of the reports of sudden acceleration involved only momentary surges of engine power that did not result in any loss of vehicle control."NHTSA takes every allegation of safety problems seriously and that is why we read every consumer complaint within one business day of its receipt," the agency said. "In the case of complaints about sudden acceleration in Toyota vehicles NHTSA moved very quickly to respond to them."
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single page
Safety investigators dismissed numerous reports of sudden acceleration, then said data were lacking.
1
2
3
next
single page
Bulent Ezal said his Camry suddenly accelerated before it plunged off a Pismo Beach cliff in 2007, killing his wife. (Pismo Beach Police Department / May 3, 2007)
Related
Graphic: Nothing to see here, folks
Prius damage
Toyota is sued over concerns of sudden acceleration
Multimedia
Discuss: Have you experienced sudden acceleration in a Toyota?
By Ralph Vartabedian and Ken Bensinger
November 8, 2009
Share
Text Size
More than 1,000 Toyota and Lexus owners have reported since 2001 that their vehicles suddenly accelerated on their own, in many cases slamming into trees, parked cars and brick walls, among other obstacles, a Times review of federal records has found.The crashes resulted in at least 19 deaths and scores of injuries over the last decade, records show. Federal regulators say that is far more than any other automaker has experienced.Owner complaints helped trigger at least eight investigations into sudden acceleration in Toyota and Lexus vehicles by the National Highway Traffic Safety Administration in the last seven years. Toyota Motor Corp. recalled fewer than 85,000 vehicles in response to two of those probes, and the federal agency closed six other cases without finding a defect.But those investigations systematically excluded or dismissed the majority of complaints by owners that their Toyota and Lexus vehicles had suddenly accelerated, which sharply narrowed the scope of the probes, the Times investigation revealed.Federal officials eliminated broad categories of sudden-acceleration complaints, including cases in which drivers said they were unable to stop runaway cars using their brakes; incidents of unintended acceleration lasting more than a few seconds; and reports in which owners did not identify the possible causes of the problem.NHTSA officials used the exclusions as part of their rationale to close at least five of the investigations without finding any defect, because -- with fewer incidents to consider -- the agency concluded there were not enough reported problems to warrant further inquiry. In a 2003 Lexus probe, for example, the agency threw out all but one of 37 customer complaints cited in a defect petition. It then halted further investigation, saying it "found no data indicating the existence of a defect trend."Meanwhile, fatal crashes involving Toyota vehicles continued to mount.In a written statement, the NHTSA said its records show that a total of 15 people died in crashes related to possible sudden acceleration in Toyota vehicles from the 2002 model year and newer, compared with 11 such deaths in vehicles made by all other automakers.The Times located federal and other records of 19 fatalities involving Toyota and Lexus vehicles from the same model years in which sudden or unintended acceleration may have been a factor, as well as more than 1,000 reports by owners that their vehicles had suddenly accelerated. Independent safety expert Sean Kane, president of Safety Research and Strategies, said he has identified nearly 2,000 sudden-acceleration cases for Toyota vehicles built since 2001.Other experts say the numbers may be far higher, pointing to a 2007 NHTSA survey of 600 Lexus owners that found 10% complained they had experienced sudden acceleration.Most sudden accelerations did not result in a crash, but there were notable exceptions. Bulent Ezal, a retired engineer, plunged 70 feet off a Pismo Beach cliff into the Pacific Ocean surf. He was hospitalized with minor injuries, but his wife of 46 years was killed."By the time they pulled me out, the tide was about to cover the car," Ezal said.He said his 2005 Camry had suddenly accelerated in a parking lot.In its research, The Times examined thousands of federal defect investigation records, complaints filed with NHTSA by Toyota and Lexus owners, lawsuits against the company, and reports by independent safety experts and local police agencies.Toyota has been under a spotlight since Aug. 28, when off-duty California Highway Patrolman Mark Saylor and three members of his family died in a Lexus ES 350 that accelerated to more than 100 mph and crashed in San Diego County.Toyota has blamed the Saylor crash on an incorrectly installed floor mat that jammed the accelerator pedal. The company announced a recall of 3.8 million vehicles in September and is designing a fix aimed at preventing sudden acceleration caused by floor mats.The recall affects the following Toyota models: the 2007-2010 Camry, the 2004-2009 Prius, the 2005-2010 Avalon, the 2005-2010 Tacoma and the 2007-2010 Tundra, as well as the 2007-2010 Lexus ES 350 and the 2006-2010 Lexus IS 250 and IS 350.Last week, the NHTSA called the issue a "very dangerous problem" and said the remedy remains to be determined.The agency declined a request for interviews, but issued a statement defending its past actions, saying its officials have continuously monitored Toyota vehicles for potential defects and that many of the reports of sudden acceleration involved only momentary surges of engine power that did not result in any loss of vehicle control."NHTSA takes every allegation of safety problems seriously and that is why we read every consumer complaint within one business day of its receipt," the agency said. "In the case of complaints about sudden acceleration in Toyota vehicles NHTSA moved very quickly to respond to them."
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Thursday, November 5, 2009
Wednesday, November 4, 2009
Monday, August 31, 2009
Chrysler to cover liability
After taking a closer look at the viability of the new Chrysler Group, the reinvigorated automaker has decided to once again accept legal responsibility for vehicles purchased prior to June, 2009. Chrysler states in a press release: PRESS RELEASEChrysler Group To Expand Accepted Product Liability ClaimsDecision reflects confidence in viability of the companyAuburn Hills, Mich. - In a letter sent today to Members of Congress, Chrysler Group LLC announced that the company will accept product liability claims on vehicles manufactured by Chrysler LLC (now OldCarco LLC) before June 10, 2009, and involved in accidents on or after that date. On June 10, 2009, Chrysler Group purchased substantially all of the assets of Old Carco."We know a lot more about the viability of our business today than when we purchased Old Carco's assets in its bankruptcy proceedings several months ago," said John Bozzella, Senior Vice President, External Affairs & Public Policy, Chrysler Group LLC. "While Chrysler Group still faces challenges, we are confident that the future viability of the company will not be threatened if we accept these claims."OldCarco filed for bankruptcy protection on April 30, 2009. Following many complex and lengthy hearings, the bankruptcy court approved the sale of substantially all of OldCarco's assets to a newly formed company, Chrysler Group LLC. As part of the bankruptcy court-approved purchase, Chrysler Group had agreed to assume liability only for cars sold by Chrysler Group. As a result of today's announcement, Chrysler Group's approach is consistent with that taken by General Motors as part of its bankruptcy process."We want our customers to feel comfortable and confident buying, driving and enjoying one of our vehicles," Bozzella said. "Chrysler Group vehicles meet or exceed all applicable federal safety standards and have excellent safety records."
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