Products Liability & Defective Vehicles

Products Liability Claims In Motor Vehicle Wrecks

by Douglas B. Abrams

I. Introduction

Defects in various types of motor vehicles account for an extraordinary number of injuries and deaths across North Carolina. Equally tragic is the failure of many of those victims to have their safety rights properly protected. In some situations, the defect itself causes the wreck. In others, the defect accounts for the injuries sustained by the victim.

The major vehicle manufacturers are remarkable for their arrogance toward their customers and the safety of the public. Time and time again, the manufacturers argue that specific safety devices are wholly unnecessary at the same time that their own engineers have begun readying their safety devices for next year’s model.

This paper will discuss practical issues related to a variety of vehicle related lawsuits; however, the paper will not discuss in detail substantive issues of law as it relates to products liability.

II. Analysis Of Specific Cases

A. Rollovers And Instability

Thousands of lawsuits have been brought against the manufacturers of Sport Utility Vehicles. The vehicles have suffered from a wide variety of defects. The Ford Bronco II has been the subject of many hundreds, if not over one thousand, lawsuits. The Bronco II is a blueprint design for a vehicle which will rollover during emergency maneuvers. The design defect in the Ford Bronco II begins with what is referred to as its design package. The Ford Bronco II is two narrow, too short, and too high to be a safe vehicle. Design engineers refer to this design package by what is now as a stability ratio — t/2h. T/2h refers to the tread width of the vehicle divided by twice the height of the vehicle. The higher the stability index, the more stable the vehicle becomes.

However, the design defect of the Bronco II is not limited to the height, width, and length of the vehicle. Ford marketers decided that the Ford Bronco II should use twin I-beam suspension in order to have a marketing point to differentiate the Ford Bronco II from its competition. This decision was made despite the fact that traditional short-long arm suspension systems allowed the manufacturer to make a much safer vehicle more cheaply. The effect of the twin I-beam system was to destabilize the Ford Bronco II during emergency maneuvers, such as avoiding children in the road.

The issues to consider in a case involving a Ford Bronco II include:

(1) Was the vehicle on the roadway itself when it flipped?

(2) What was the speed of the Ford Bronco II when it flipped?

(3) What size tires did the Ford Bronco II have at the time?

(4) Did the tires on the Ford Bronco II debead during the emergency maneuver?

(5) Was the driver responding to an on road emergency?

(6) What skid marks were left in the roadway?

The essential issue in Sport Utility Vehicle Rollovers is why car manufacturers would ever manufacture for sale a vehicle which they knew would rollover on dry pavement as a result of a friction roll. Cars simply should not rollover during emergency maneuvers. However, in the zeal for profit over safety, car manufacturers rushed to outdo their competition in making their vehicles look sporty, rather than focusing on how to accomplish an anesthetically pleasing vehicle which would not be a death trap for consumers who purchase them.

Computer technology has existed since approximately 1983 which allows manufacturers to run computer simulations of their prototypes to determine whether or not their vehicles will roll over on flat dry pavement. Remarkably, vehicle manufacturers continue to manufacture unsafe Sport Utility Vehicles even when their own computer models demonstrate the lack of safety of the vehicles.

The Suzuki Samurai and the Isuzu Trooper II have been the subject of numerous lawsuits, for reasons similar to the lawsuits brought against Ford Motor Company. Moreover, despite the knowledge that Sports Utility Vehicles, such as the Bronco II, the Trooper and the Samurai, were highly unstable, the manufacturers often undersigned the roofs. Thus, the vehicles would often fail the manufacturer’s internal requirements with respect to roof integrity, known as roof crush.

In handling a rollover case, it is essential that the vehicle be obtained and stored safely. Furthermore, obtaining pictures of the site at an early date is also quite important. An early accident reconstruction should also be performed. In many cases, a computer animation of the wreck sequence will also be necessary. Additionally, the tires of the Sports Utility Vehicle should be analyzed. General Tire had thousands of tires which were placed on Sports Utility Vehicles which would debead during road use.

B. Seat Back And Seat Belt Failures

Virtually every car manufacturer has placed dangerous and defective seats in their cars. Hundreds and hundreds of people each year are killed or maimed as a result of the defective design of car seats. In particular, these seats fail during front, rear, or side impacts. The seats may bend back and the driver or passenger thrown either into the rear compartment or out of the vehicle entirely. These defects have resulted in many hundreds of lawsuits. The car manufacturers were well aware of this defect. The Government required all vehicles to meet certain minimum standards to prevent gas tank explosions during rear impacts. During these tests, rams were used to strike vehicles. The results were often filmed or videotaped. These films show crash test dummies being ejected as a result of seats and seat belts breaking. Most of the major manufacturers were involved in a program known as the Experimental Safety Vehicle (ESV) Project. During this project, seats and seat belts were used which did not break on rear impact. Despite the knowledge obtained from this testing, manufacturers refused to incorporate safe seats into the design of their cars. Recently, General Motors has indicated that some models of its 1997 vehicle year will incorporate a variation of safer seat.

Questions to Consider in Seat Back Failure Cases include:

1. Did the Plaintiff contribute to or cause the wreck?

2. What speed did the collision occur?

3. Was the plaintiff wearing a seat belt?

4. Is the car properly stored?

5. Are all vehicles in the wreck stored or accessible?

6. What photographs are available of the scene?

7. What was the angle of impact?

8. What injuries did other passengers in the car receive?

9. What injuries did occupants of other cars involved in the wreck receive?

C. Sudden Acceleration

Numerous models of vehicles have suffered from sudden acceleration. Hundreds of incidents each year have occurred in which vehicles will go into wide open throttle without operator intervention. The Jeep Cherokee Laredo has had very significant problems with sudden acceleration.

Despite the wide number of reported incidents, the manufacturers have routinely denied that a car can suddenly accelerate. The depositions of expert witnesses have had at least an amusing side to them as otherwise intelligent engineers try to explain how someone floors their Abrakes@ to get out of a parking lot.

In handling the sudden acceleration case, eye witnesses are a critical element of the case. In many cases, independent eye-witnesses have reported that the vehicle continued to have wide open throttle even after the driver left the vehicle. Other cases have reported wide open acceleration, with brake lights flashing. The exact cause of the sudden acceleration is subject to discussion. Some engineers believe that stray electricity can affect the onboard computer. Other engineers continue that mechanical binding of the cruise controls is the cause.

Patents have been available for years which had an interlock between the brake and park. This type of device protects against a driver misapplying the accelerator. An important area of discovery in sudden acceleration involves discovery of the component supplier’s records for computer chip repairs or returns. Generally, the supplier of the computer chip has testing devices for determining whether or not the computer chips received from their suppliers are functioning properly.

Questions to Consider in Sudden Acceleration Cases include:

1. What witnesses are there to the wreck itself?

2. Is the car stored?

3. What photographs of the scene are available?

4. Has the car had a previous history of sudden acceleration?

5. Have other cars of the same model had problems with sudden acceleration?

6. What records are available on recalls of the cruise control or throttle body?

7. What other similar cases exist?

D. Fuel-Fed Fires

With the advent of electronic fuel injection systems, car manufacturers initially failed to provide protection against electronic fuel-fed fires. In some cars, the fuel injectors would continue to supply fuel to the engine as long as the key to the engine was on. Other fuel injection systems did not protect against drainage from the fuel injectors after a crash occurred. In both situations, persons trapped in cars have been killed or received terrible burns due to these defective designs. Many lawsuits have occurred over this design defect.

Questions to Consider in a Fuel-Fed Fire Case:

1. Is the car stored?

2. What witnesses are available to establish the time period between the wreck and the fire?

3. What was the speed of the wreck?

4. What injuries are related to the fire?

5. Was the victim conscious during the fire?

6. How was the victim removed from the car?

7. What other lawsuits exist involving the same vehicle?

III. Investigation And Preparation Of A Products Liability Case

{Much of this Section is taken from an earlier paper I wrote. I have not cited myself}

A. Check-List For Preliminary Investigation

The preliminary investigation of the case should begin with consideration of the following factors, among others:

1. Knowledge by the client of the product before its purchase or use;

2. The Plaintiff’s use of the product prior to the incident;

3. The Plaintiff’s reliance on any advertisements or literature before the purchase;

4. Whether the Plaintiff was aware of any representations or statements as to the product’s use or quality contained in the product’s labeling or on its package;

5. The purchase history of the product [who, where, what, when, and how was the product acquired];

6. Whether a number of competing products were available, and why the Plaintiff selected the particular product;

7. Whether the intended use of the product was disclosed to the seller;

8. An exact description of the package and the product itself;

9. Whether the product itself and a facsimile product are available;

10. The make, model and serial number of the product;

11. Whether the original container, including packaging is still available;

12. A description of the use of the product after the injury and its present condition;

13. Photographs or printed representations of the product;

14. The path of distribution of the product from the date of its manufacture to the date of the incident; and

15. The use of the product by any prior or subsequent owners.

B. Sources Of Information Concerning Defective Products

Sources of information concerning defective products include:

1. The American Trial Lawyers Association (ATLA), 1050 31st Street, N.W., Washington, D.C. 20007 (1-800-424-2727).

2. The Consumer Products Safety Commission, 5401 Westbard Avenue, Washington, D.C. 20207.

3. The National Highway Traffic Safety Commission, 400 Seventh Street, S.W. Washington, D.C. 20590 (1-800-424-9393).

4. The National Safety Council, 444 N. Michigan Avenue, Chicago, Illinois 60611 (312-527-4800).

5. AIEG (Attorneys Information Exchange Group), 402 Office Park Drive, Suite 200, Birmingham, Alabama 35223 (205) 803-4000.

The State and Federal OSHA programs often have extensive information concerning specific products. These OSHA libraries should be consulted when investigating a potential products liability case. The ATLA Exchange is perhaps the most useful source of information available with respect to other similar incidents and initial collection of product information. The ATLA Exchange is consistently the most cost efficient process for beginning the investigation into a products liability claim.

IV. Establishing The Standard Of Care

The essential steps in establishing the products liability claim are to examine and understand the appropriate standard of care for each entity whose actions could have prevented the injury. Governmental standards and regulations are an important resource for establishing this standard of care. OSHA regulations are generally recognized as establishing minimum standards of care for manufacturers, repairers, or installers of products or machinery. Moreover, OSHA publications often further explain safety requirements. Similarly, ANSI standards frequently discuss minimum recognized industry standards.

Industry Association Publications or pamphlets may also provide essential information in defining the standard of care. Additionally, a manufacturer’s advertising history demonstrates the Defendants’ knowledge concerning a product.

The use of safety standards and codes in the engineering and design of products for use in an industrial environment, like evidence of custom and usage in an industry, may be admissible upon a number of issues. First, voluntarily adopted safety codes are admissible to prove the Defendant violated those codes; and that such a violation constitutes negligence. Wilson v. Lowe’s Asheboro Hardware, Inc., 259 N.C. 660, 131 S.E.2D 501 (1963). The voluntary adoption of a safety code as the guide to be followed for protection of the public is at least some evidence that a reasonably prudent person would adhere to the requirements of the Code. Wilson v. Lowe’s Asheboro Hardware, Inc., 259 N.C. 660, 666, 131 S.E.2D 501 (1963). See Also Stone v. Proctor, 259 N.C. 633, 131 S.E.2D 297 (1963). In many cases involving industrial or agricultural accidents, previous ANSI standards and Textile Safety Codes may be acknowledged by the defendants. These standards are further admissible under the Federal Rules of Evidence, and its variations as adopted by the States. Rule 803(18) of the Federal Rules of Evidence provides an exception to the hearsay rule for “learned treatises”. Rule 803(18) provides:

Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied by him in direct examination, statements contained in published treatises, periodicals on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

This rule makes the statements contained in the treatises substantive evidence. See Commentary to the Federal Rules of Evidence, Rule 803(18). In Johnson v. William C. Ellis & Sons Iron Works, 609 F.2d 820 (5th Cir, 1970) (on rehearing) the Fifth Circuit thoroughly analyzed the impact of the Federal Rules of Evidence on the question and emphasized the following points, 609 F.2d at 822-823:

We have held that safety codes and standards are admissible when they are prepared by organizations formed for the chief purpose of promoting safety because they are inherently trustworthy and because of the expense and difficulty involved in assembling at trial those who have compiled such codes.

Frazier v. Continental Oil Co., 5 Cir. 1978, 568 F.2d. 378, 382; Muncie Aviation Corp. v. Party Doll Fleet, Inc., 5 Cir. 1975, 519 F.2d. 1178, 1183; accord, David v. Fox River Tractor Co., 10 Cir. 1975, 518 F.2d. 481; Wallner v. Kitchens of Sara Lee, Inc., 7 Cir. 1969, 419 F.2d. 1028; Boston and Maine Railroad v. Talbert, 1 Cir. 1966, 360 F.2d. 286. These rulings remain the law of the circuit for they determine the effect that safety codes and like publications meet the criteria of Part 24. Our prior decisions concerning such materials were not overturned by the adoption of the Federal Rules of Evidence, for there is nothing in the Rules that conflicts with them; indeed our opinion in Frazier v. Continental Oil Co., 5th Cir., 1978, 568 F.2d. 378, was released subsequent to the adoption of the Federal Rules of Evidence and parts of that opinion relied on the Rules. See, Id., at 383.

The Federal Rules of Evidence establish a clear procedure for the admission of this type of evidence. See generally, Abbot, 58 A.L.R.2d. 148 (1974); Comment, Admissibility of Safety Codes, Rules and Standards in Negligence Cases, 47 Tenn. L. Rev. 581, 587 (1970). See also, Shears v. Pardonnet, 80 Mich.App. 358, 364, 263 N.W.2d 30 (1977) (judgment reversed on failure of trial court to permit safety standards into evidence and cases cited thereat).

An important basis for the admission of these treatises, articles, or pamphlets for substantive purposes is to establish the knowledge of the Defendant concerning the dangers of a certain product. See Wilson v. Lowe’s Asheboro Hardware, Inc., 259 N.C. 660, 131 S.E.2D 501 (1963). This use of such treatises, standards, articles or pamphlets has been acknowledged in cases throughout the United States. See Grubaugh v. City of St. Johns, 82 Mich.App. 282, 289, 266 N.W.2d 791 (1978) (Manual of Uniform Traffic Control Devices Admissible); Sparks v. Ferro Equipment Co., 28 Mich.App. 285, 288, 194 N.W.2d 220 (1970) (held, publications of Machinery Dealers National Association admissible in punch case for cross-examination of defendant’s employee). See also: Palmer v. Pacific Indemnity Co., 74 Mich.App. 259, 267-268, 254 N.W.2d 52 (1977) (held, admissible of insurance pamphlets and other documents introduced to support expert witness testimony as to customary practices among Michigan insurance agents not an abuse of discretion); Weiss v. Ford Motor Co., 64 Mich.App. 519,527,236 N.W.2d 124 (1974) (held, union campaign circular admissible to show “awareness of and acquiescence in” the motivation of another to act in deprivation of plaintiff’s civil rights); Coger v. Mackinaw Products Co., 48 Mich.App. 113,210 N.W.2d 124 (1973) (USA B.11 Code; USDOL Labor Bulletin, No. 197 admitted). Cf. Thompson v. Essex Wire Co., 27 Mich.App. 516, 183 N.W.2d 818 (1970).

The necessary predicate for admissibility is:

1. proof of existence of the document prior to the date of the occurrence;

2. proof of general use among the class of persons interested in the matters which they contain;

3. proof of availability;

4. relevance.

See also: Depree v. Nutone, Inc., 422 F.2d 534 (6th Cir., 1970).

V. Proof Of Similar Occurrences

The occurrence of other similar incidents is admissible for a number of purposes. This evidence may be the most probative of any information submitted to the jury. As a general rule, evidence of other similar incidents is admissible to prove the dangerous condition of the product, to rebut an argument that the failure of the product as described was “impossible”, and to show notice by the Defendant. See McCormick, Evidence, 4th ed., p. 476; Dockery v. World of Mirth Shows, Inc., 264 N.C. 406, 142 S.E.2d 29 (1965). Often Defendants attempt to refute information concerning SUBSEQUENT incidents on the basis that such later incidents are irrelevant. This contention was considered and rejected by the North Carolina Supreme Court in Tennessee Carolina Transportation, Incorporated v. Strick Corporation. See Tennessee Carolina Transportation, Incorporated v. Strick, 286 N.C. 235, 210 S.E.2d 181 (1974). In Strick, the Defendant sought to introduce hardness tests taken some six years after the products’ manufacture. The North Carolina Supreme Court held that the Court committed prejudicial error in excluding this testimony. Strick, 286 N.C. at ___, 210 S.E.2d at 185. In rejecting the argument that time restrictions would apply as a matter of law, the Strick Court asserted “While this [six year period] is a significant lapse of time, we think the hardness of metal is such a constant, immutable characteristic that such a lapse of time is greatly diminished in significance, and that the tests were improperly excluded.” Strick, 286 N.C. at ___, 210 S.E.2d at 185. Accordingly, in the preparation of products liability cases for the Plaintiff, obtaining information concerning prior and subsequent incidents has great significance.

The actual proof of prior and subsequent incidents can be accomplished through a combination of (1) Request for Production; (2) Request for Admissions, and (3) depositions. With respect to depositions, use of 30(b)(4) and 30(b)(6) depositions may be of great assistance in establishing the knowledge of the Defendant concerning the prior and subsequent events. The attorney should have the Defendant describe in detail the investigation into the facts of each incident by the Defendant and the steps taken by the Defendant to prevent future incidents. Almost invariably, the only investigation by the Defendant will be conducted by legal counsel in connection with defense of the case. This evidence then establishes that the Defendant is solely interested in avoiding responsibility rather than using scientific inquiry to analyze its product.

VI. Other Sources Of Information For Products Liability Cases

The basic requirements for the same or similar products can often be located in Trade Association Standards. These standards can be obtained in a number of different ways. The product itself may contain a statement that it complies with certain ANSI (American National Standards Institute) provisions. Literature related to the product may also make reference to the Trade Association Standards. Other sources for this information includes:

1. The Accident Prevention Manual for Industrial Operations, 8th Ed., National Safety Council, 444 North Michigan Avenue, Chicago, Illinois 60611.

2. Lawyers Desk Reference, Lawyers Cooperative.

3. American National Standards Institute (ANSI); 1430 Broadway; New York, New York 10018.

VII. Conflicts Of Laws And The North Carolina Statute Of Repose

North Carolina’s statute of repose often will not apply to breach of warranty cases. Boudreau v. Baughman, 322 N.C.331, 368 S.E.2d 849 (1988)(“Appropriate relations” test applies to breach of warranty claims.”); Terry v. Pullman, 92 N.C.App. 687, 376 S.E.2d 47 (1989)(State with the “most significant relationship to the transaction and the parties” will have its substantive law apply).

Under North Carolina’s conflict of laws rules with respect to breach of implied warranty, as contrasted with claims based in negligence, the lex loci delicti [law of the place where the injury occurs] rule has been replaced. For breach of warranty claims, the courts must analyze which State has the most significant relationship to the matters in controversy. Id. at 690-691, 376 S.E.2d at 49-50. Under the analyses adopted by Terry the following factors should be considered, among others:

(a) the needs of the interstate and international systems;

(b) the relevant policies of the forum;

(c) the relevant policies of other interested states and relative interests of those states in the determination of the particular issue;

(d) the protection of justified expectations;

(e) the basic policies underlying the particular field of law;

(f) curtaining, predictability and uniformity of result; and

(g) ease in determination and application of the law applied.

Id. at 690-691, 376 S.E.2d at 49-50. As the Terry Court noted, with respect to policies of the forum and other states, “the state where the accident occurred has a greater interest in having its law apply in a tort case than in a breach of warranty action where the sale and distribution occurred elsewhere.” Id. at 693, 376 S.E.2d at 50 (emphasis added). The Terry Court further reasoned that “Businesses have a justifiable expectation that the law of the state where the goods were sold and distributed will govern the warranties they impliedly or expressly extend.” Id. at 693, 376 S.E.2d at 51. In this case, the same analysis applied by the Court in Terry would require this Court to apply the substantive law of Arizona. Id.

The approach taken in Terry is entirely consistent with the reasoning in Boudreau v. Baughman, 322 N.C.331, 368 S.E.2d 849 (1988). The Boudreau decision contains a detailed analysis of North Carolina’s conflicts of laws rules with regard to breach of warranty. Id. In Boudreau, the North Carolina Supreme Court discussed the application of conflicts of law rules for warranty claims and the factors governing which State’s substantive law will be applied in breach of warranty claims. Id. (“‘Appropriate relations’ test applies to breach of warranty claims.”)

Therefore, in cases in which an out-of-state resident happens through North Carolina and is injured by a defective product, the application of conflicts of laws rules may result in the application of another’s state’s laws, including comparative fault. One can only wonder at the absurdity of other state’s caring more about its residents injured in North Carolina than the Legislature and Judiciary of North Carolina caring about its own consumers.

VIII. Conclusion

Compared to all other states, North Carolina’s products liability laws provide the least amount of protection to its citizens. The tragic consequences of these regressive laws touch virtually every family at some time or another. However, equally tragic is the failure of some citizens to have their valid products liability claims pursued. In the arena of defective products involving cars and trucks, too often the victims are inaccurately informed about the safety rights which they do have in this State. Hopefully, North Carolina law will progress to the twentieth century before the twenty-first century.