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Safety Is Not An Option
Collision avoidance technology is now cost-effective and generally reliable—yet automakers fail to make this life-saving technology standard. Learn about the potential claims and defenses in this emerging area of products litigation
November 2019A four-year-old child died when a 2014 Jeep Grand Cherokee rear-ended the vehicle she was riding in. A distracted driver in a 2012 Ford Fusion rear-ended an SUV, injuring three people in the backseat. A 2013 Ford F-150 pickup truck struck a mother and her two children as they were crossing a street with a walk signal. All of these vehicles were of a model year that could have had forward collision avoidance technology (FCAT) as a standard feature—and potentially avoided these injuries. But automakers have been treating critical safety features as “optional” equipment for years—at the loss of tens of thousands of lives.1
In FCAT’s simplest form, the manufacturer installs cameras, radar, or both, and programs the vehicle to emit a warning when it senses a collision danger ahead. The combination of camera and radar sensing allows superior recognition of vehicles and pedestrians and also helps to prevent lane departure. In more sophisticated iterations, the technology applies braking for forward collision dangers if the driver is not adequately responding to the warning signal (known as automatic emergency braking or AEB).
A 2019 study by the Insurance Institute of Highway Safety and the Highway Loss Data Institute concluded that forward collision warnings reduced front-to-rear crashes up to 27%, and warnings combined with automatic braking cut that number in half.2 A study of GM vehicles found that forward collision warnings and automatic braking combined reduced the risk of rear-end collisions with injuries by 64%.3 When FCAT includes pedestrian and bicyclist detection, “it is estimated that as many as 3,279 fatal and 37,000 injury on-road crashes potentially could be prevented or mitigated each year.”4
In 1996, the National Highway Traffic Safety Administration (NHTSA) conducted its first-ever cost-benefit analysis of forward collision warning, noting the “technical maturity and the availability” of this technology.5 The agency concluded that the technology’s benefits, in terms of lives saved and injuries avoided or mitigated, outweighed the cost when the cost fell below $1,500 (approximately $2,450 in 2019 dollars) per vehicle.6 Over the past 20 years, the cost of FCAT, including automatic emergency braking and lane departure prevention, has dropped to less than $250 per vehicle.7
Most automakers included FCAT features as options in some vehicles by the mid to late 2000s.8 However, they limited the technology to luxury models and top trim levels, a practice that continues today.9 The long delay in the introduction of these systems, coupled with the decision to treat safety as optional, means that millions of vehicles are on roadways without these features, and many millions more are still manufactured each year.10 The human and property costs are staggering. The National Transportation Safety Board (NTSB) concluded that just in 2011 and 2012, more than 2,200 lives could have been saved and nearly 1 million injuries prevented if manufacturers had made FCAT features standard across vehicle lines.11
Many plaintiff lawyers represent clients injured by an automaker’s decision not to equip its vehicles with standard collision avoidance safety features that have been available for more than a decade. When you review an auto crash case, investigate whether the lack of FCAT contributed to the crash and, if so, consider potential products liability claims against the vehicle manufacturer.
Safety Is Required
Eighty-seven years ago, Judge Learned Hand, troubled by the absence of radios on tugboats, held in The T.J. Hooper that “courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.”12
Subsequently, courts throughout the country have held that a manufacturer’s refusal to include a safety device on a product can make that product unreasonably dangerous.13 For example, in Bartholic v. Scripto-Tokai Corp., a child who found a butane lighter, the “Aim N Flame” made by the defendant, was able to ignite a child’s crib.14 The child’s clothing caught fire, resulting in serious injuries. His mother brought a products liability suit against the manufacturer, asserting that the lighter was unreasonably dangerous due to its failure to include a child-resistant device. The defendant maintained that its failure to include a safety device could not, as a matter of law, render it unreasonably dangerous, particularly since it already had a safety “on/off” switch.
The Colorado federal district court disagreed, stating that “it is well established that a failure to provide safety devices can form the basis for a design-defect claim under [Restatement (Second) of Torts] Section 402A.”15 It further noted that “defect” “does not mean a mere mechanical or functional defect but is anything that makes the product ‘unreasonably dangerous.’”16 Indeed, this is the rule throughout the country.17
Moreover, manufacturers cannot delegate their duty to manufacture reasonably safe products to the consumer. For example, in Bilotta v. Kelley Co.,18 a dock worker sustained severe injuries when a forklift fell on top of him after the “dockboard”—the platform between a dock and the truck being unloaded—failed. The dockboard manufacturer had designed a “panic stop” that would have prevented the dockboard from failing, but it did not install this as a standard feature. Instead, it was an option that could be purchased for an additional $200.
The Minnesota Supreme Court rejected the manufacturer’s claim that because the safety device was offered to the consumer, the manufacturer divested itself of responsibility for the unsafe dockboard. It explained “that a manufacturer may not delegate its duty to design a reasonably safe product” and that the cost and time associated with making the safety feature standard “should be a factor considered within the balancing approach given to the jury but should not provide an absolute defense for the manufacturer.”19 Other courts have affirmed this principle.20
Making an FCAT Products Claim
The defect claims addressed here are based on manufacturers’ failure to install FCAT features in their vehicles that likely would have avoided or mitigated the severity of a collision.21 These claims generally are based on strict liability and negligent design defect theories. We believe the best theory is a risk-benefit or cost-benefit theory focused on evidence that the quantifiable benefits of the systems reducing costly crashes, injuries, and fatalities far outweigh the cost of installing a full suite of FCAT features.
Retaining Experts
As with any auto defect case, you likely will need multiple experts, including an accident reconstructionist, a design engineer, and a biomechanical engineer. Engineering experts can describe the technological and financial feasibility of installing FCAT in a vehicle. Engineering, biomechanical, and reconstruction experts can use physical testing or computer modeling to show that the FCAT design would have prevented or reduced the crash forces so that the injuries or fatalities would have been avoided or mitigated.
A statistician can analyze and describe the government data that documents the number of crashes and crash types and perform statistical analyses to prove that the benefits of FCAT outweigh the costs. Marketing or other auto experts can evaluate the defendant’s marketing and product planning procedures and practices to determine why the manufacturer failed to install FCAT and, together with the engineer, rebut claims that it was not feasible. They also may be able to analyze the practices car companies have engaged in to limit FCAT to higher priced vehicles as part of a “product differentiation” strategy, in which the manufacturer already has “gotten it right” but limited this life-saving technology to more expensive models and trim levels.
Potential Defenses
Automakers have aggressively defended the failure to install FCAT claims on several grounds.
Federal preemption. Defendants argue that failure to install FCAT claims are preempted by NHTSA’s denial of rulemaking to require that manufacturers install certain types of automatic emergency braking.22 The agency noted that it already had “taken significant steps to incentivize the installation of these technologies in a way that allows for continued innovation and technological advancement.”23
Also, although FCAT safety systems long predated highly automated vehicle (HAV) technology, automakers assert that NHTSA’s statements about HAVs and the agency’s authority to establish safety standards for this technology were intended to preempt the entire field of technology that ultimately might be used as components in HAVs.24 Ironically, it appears to be the defense position that manufacturers can be liable for defective FCAT once installed in a vehicle but not for the decision to withhold FCAT entirely.
To date, only one appellate court has published a decision on preemption in relation to lack of FCAT. In Dashi v. Nissan North America, Inc.,25 the Arizona Court of Appeals held that a plaintiff’s claim that a 2008 Nissan Rogue was defective for lack of CAT was preempted by NHTSA’s decision not to regulate the matter, concluding that “NHTSA has abjured formal AEB standards at this time because it is convinced the technology is a game-changer for vehicle safety and wants to ensure that manufacturers have the breathing room to innovate until they get it right.”26 The Dashi court disregarded multiple statements and policy positions by both NHTSA and the NTSB for many years that encouraged the rapid installation of CAT features.27
The Dashi matter is being appealed to the Arizona Supreme Court. Further, the Dashi court did not address the current practice of product differentiation.28 In denying a rulemaking, NHTSA wanted to encourage innovation; it did not seek to encourage using FCAT for product differentiation to distinguish high-end models from lower end vehicles. Car company employees regularly try to explain that there is a long history and tradition of introducing new safety systems into luxury vehicles first and later migrating those systems to base model vehicles. However, the migration has been particularly slow with this technology, as NHTSA has emphasized.29
State of the art. Virtually all states have some form of the “state of the art” defense to products liability cases. Although there is some confusion over exactly what this defense covers, the majority view is that “state-of-the-art evidence [i]s the level of relevant scientific, technological and safety knowledge existing and reasonably feasible at the time of design.”30 “[S]tate of the art refers to what is technologically feasible.”31
Since some automakers have lagged in their technological development of these safety features, automakers argue that the technology cannot be “state of the art” until all or most automakers are using it. But an industry cannot lag in the adoption of new safety devices and use its own disregard as a defense.
Notably, in making the state of the art argument, automakers ignore the fact that independent suppliers develop and provide most of this technology. Manufacturers need only adapt their vehicles to their supplier’s equipment, much of which was already done for the electronic stability control features that NHTSA has required since 2011.32 We are unaware of any court that has ruled yet on this affirmative defense in the FCAT context.
No ‘duty’ to install the ‘latest’ safety features. Several automakers also have sought to reshape the state of the art defense into a “duty” argument.33 Specifically, automakers contend that “[a] manufacturer has no duty to make a product which incorporates only the ultimate in safety features.”34 But this argument conflates the concept of duty with breach. Since duty is typically a question of law to be decided by the court, defendants are trying to argue that they do not have a duty to install “the most recent technological advancements” to avoid a fact-laden inquiry, as FCAT is hardly the “latest” of safety features; it is only one that automakers have chosen to withhold.
The merits. Finally, automakers contend that vehicles lacking FCAT features are simply not defective. They catalog the well-designed aspects of their vehicles’ steering, braking, and other basic systems to establish that their vehicles are “safe” without adding FCAT features. The fallacy with this argument is that new safety systems would never be required, since the old systems are already “safe.” Automakers also emphasize the “high cost” of adding this technology to vehicles, claiming that each vehicle must be independently redesigned and calibrated and that there is an expense to retool factories. Thus, the automakers contend, the “risk-benefit” products liability test does not show the vehicles are defective.35
As noted above, NHTSA concluded in 1996 that the break-even cost point from a risk-benefit perspective was $2,450 in 2019 dollars. FCAT components now cost a fraction of that amount and are considerably better than the 1996 systems.
Automakers also contend that there are no “consumer expectations” regarding this technology because consumers aren’t aware of it, at least not until recently. “Under the consumer expectations test, the plaintiff may prove the existence of a defect by showing that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.”36 But consumer ignorance can be traced to automakers’ own decisions. In 2001, the NTSB directed automakers to educate the public and commercial drivers about FCAT.37
Automakers’ deliberate disregard of critical safety technology is unacceptable. As you review an auto collision case, ask yourself whether the collision could have been avoided or mitigated had these technologies been installed. If so, your clients may have another avenue for recovery because of a manufacturer’s decision to withhold or “option” feasible safety technology.
G. Lynn Shumway is the founder of Shumway Law Offices in Phoenix and can be reached at shumway@carsafetylaw.com. Brent Ghelfi is the founder of Ghelfi Law in Phoenix and can be reached at brentghelfi@ghelfilawgroup.com.
Notes
- See Charles M. Farmer, Ins. Inst. for Highway Safety, Crash Avoidance Potential of Five Vehicle Technologies 10 (June 2008) (“A forward collision warning/mitigation system could prevent up to 210,000 nonfatal injury crashes and 7,166 fatal crashes each year.”). Twenty automakers, representing 99% of the U.S. market, have agreed to make automatic emergency braking a standard feature by 2022. Ins. Inst. for Highway Safety, U.S. DOT and IIHS Announce Historic Commitment of 20 Automakers to Make Automatic Emergency Braking Standard on New Vehicles (Mar. 17, 2016), https://tinyurl.com/y49kwygj.
- Ins. Inst. for Highway Safety & Highway Data Loss Inst., Real-World Benefits of Crash Avoidance Technologies (June 2019), https://tinyurl.com/y2sd8ezz.
- Ins. Inst. for Highway Safety, GM Front Crash Prevention Systems Cut Police-Reported Crashes (Nov. 13, 2018), https://www.iihs.org/news/detail/gm-front-crash-prevention-systems-cut-police-reported-crashes.
- Jessica S. Jermakian & David S. Zuby, Ins. Inst. for Highway Safety, Primary Pedestrian Crash Scenarios: Factors Relevant to the Design of Pedestrian Detection Systems 2 (Apr. 2011), https://tinyurl.com/y6o6l2gq. Jermakian and Zuby’s estimate is lower than that of Farmer, supra note 1, but it remains significant.
- NHTSA Benefits Working Group, Preliminary Assessment of Crash Avoidance Systems Benefits 1-4 (Oct. 1996), https://tinyurl.com/y57nwj4b.
- Id. at 7-4.
- This is the authors’ knowledge from all sources, including manufacturers and suppliers.
- This is based on the authors’ review of hundreds of product brochures and depositions of automobile executives and engineers.
- Cf. Statement of Christopher Hart, Chairman of the Nat’l Transp. Safety Bd. (June 8, 2015), https://tinyurl.com/y5jh77ew (“Many manufacturers only offer this safety system within a luxury option package. But safety should be a basic feature rather than an option that we have to purchase and that only the wealthier buyers can afford.”) [hereinafter Hart Statement].
- See Phil LeBeau, New Report Shows How Many Accidents, Injuries Collision Avoidance Systems Prevent, CNBC (Aug. 23, 2017), https://www.cnbc.com/2017/08/22/new-report-shows-how-many-accidents-injuries-collision-avoidance-systems-prevent.html.
- Nat’l Transp. Safety Bd., Special Investigation Report: The Use of Forward Collision Avoidance Systems to Prevent and Mitigate Rear-End Crashes 16–17 (May 19, 2015).
- The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932).
- See, e.g., Lovell v. Marion Power Shovel Co., 909 F.2d 1088, 1091 (7th Cir. 1990); Fasolas v. Bobcat of N.Y., Inc., 128 N.E. 3d 627, 633 (2019); Fernandez v. Ford Motor Co., 879 P.2d 101, 110 (N.M. Ct. App. 1994) (“[A] manufacturer’s failure to incorporate into a product a safety feature or device may constitute a defective condition of the product.”) (quotation omitted).
- 140 F. Supp. 2d 1098 (D. Colo. 2000).
- Id. at 1107.
- Id. (quotation omitted).
- See, e.g., Pac. Indem. Co. v. Therm-O-Disc, Inc., 476 F. Supp. 2d 1216, 1226 (D.N.M. 2006) (“The failure to incorporate into a product an optional safety feature or device may constitute a defective condition of the product.”); Tabieros v. Clark Equip. Co., 944 P.2d 1279, 1297 (Haw. 1997) (“The failure of [a] manufacturer to equip its product with a safety device may constitute a design defect.”) (quotation omitted); see also Hammond v. Int’l Harvester Co., 691 F.2d 646 (3d Cir. 1982).
- 346 N.W.2d 616 (Minn. 1984).
- Id. at 624.
- See, e.g., Scott v. Dreis & Krump Mfg. Co., 326 N.E.2d 74, 85 (Ill. App. Ct. 1975).
- The authors have resolved three failure to install collision avoidance system cases for various reasons. Confidentiality terms in these settlements prevent us from commenting on them.
- See Sprietsma v. Mercury Marine, 537 U.S. 51, 65 (2002) (“It is quite wrong to view that decision [to not enact a regulation] as the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation.”).
- Fed. Motor Vehicle Safety Standards; Automatic Emergency Braking, 82 Fed. Reg. 8391, 8391 (Jan. 18, 2017), https://www.federalregister.gov/documents/2017/01/25/2017-01542/federal-motor-vehicle-safety-standards-automatic-emergency-braking.
- See Dashi v. Nissan N. Am., Inc., 445 P.3d 13 (Ariz. Ct. App. 2019); see also U.S. Dep’t of Transp., Preparing for the Future of Transportation: Automated Vehicles 3.0 (Oct. 2018).
- 445 P.3d 13.
- Id. at 23.
- In its 2016 policy statement on highly automated vehicles, NHTSA indicated that “States are responsible for determining liability rules for HAVs. States should consider how to allocate liability among HAV owners, operators, passengers, manufacturers, and others when a crash occurs.” Nat’l Highway Traffic Safety Admin., Federal Automated Vehicles Policy: Accelerating the Next Generation in Roadway Safety 45 (Sept. 2016), https://tinyurl.com/hq994ll. The 2017 follow up reiterated the role of the states in the evolution of automated vehicles, including for allocating liability and for insurance. See Nat’l Highway Traffic Safety Admin., Automated Driving Systems 2.0: A Vision for Safety (Sept. 2017), https://tinyurl.com/y87nzq3q.
- Opening Brief, Varela v. FCA, No. 1 CA-CV 19-0209 (Ariz. Ct. App.).
- Hart Statement, supra note 9.
- Potter v. Chi. Pneumatic Tool Co., 694 A.2d 1319, 1346 (Conn. 1997).
- Id. at 1347.
- See Fed. Motor Vehicle Safety Standards; Electronic Stability Control Systems, 76 Fed. Reg. 55829 (Sept. 9, 2011), https://tinyurl.com/y6gjopcv.
- Nissan specifically raised this claim in Dashi. However, the court of appeals did not address it, finding the preemption defense dispositive. 445 P.3d 13.
- Appellee Answer Brief, Dashi v. Nissan N. Am., Inc., No. 1 CA-CV 18-0389, at 40 (citing Raschke v. Carrier Corp., 703 P.2d 556, 558 (Ariz. Ct. App. 1985)).
- See, e.g., Walker v. Ford Motor Co., 406 P.3d 845, 850 (Colo. 2017); Gillespie v. Edmier, 2019 WL 3765285 (Ill. Ct. App. Aug. 7, 2019). There are three basic tests for evaluating whether a product is defective: “the consumer-expectations test, the risk-benefit test, and the regulatory-compliance test.” Kathryn Dix Sowle, Toward A Synthesis of Product Liability Principles: Schwartz’s Model and the Cost-Minimization Alternative, 46 U. Miami L. Rev. 1, 20 (1991). As there are no regulations squarely on point, this article addresses only the first two.
- Demara v. Raymond Corp., 221 Cal. Rptr. 3d 102, 110 (Cal. Ct. App. 2017) (quotation omitted).
- Nat’l Transp. Safety Bd., Special Investigation Report: Vehicle-and Infrastructure-Based Technology for the Prevention of Rear-End Collisions 39–40 (May 1, 2001), https://tinyurl.com/y4mwsugy.