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THE LONG ROAD TO AUTOMOTIVE SAFETY By Edward M. Ricci, Esq.
Introduction 
The recent controversy over full-sized General Motors pickup trucks manufactured from 1973 through 1987 highlights a major change in public attitude toward automotive crashworthiness. After 12 years of federal inaction, America is finally experiencing a re-awakening of safety consciousness. The change is refreshing. In Larson v. General Motors Corporation, 391 F.2d 495 (8th Cir. 1968), the doctrine of crashworthiness was first articulated in the common law. By December 1992 every state had adopted Larson. Manufacturers do have a duty to responsibly foresee the kinds of crashes in which their products will be involved and to provide reasonable safety to occupants in foreseeable collisions. 
From the advent of the motor vehicle until as recently as 1990, the Departments of Transportation of most states viewed motor vehicle collisions as an inevitable fact of life. Today, however, many states have formally rejected the use of the word "accident" and consciously adopted the word "crash" as the operative term for vehicle collisions. The change is not semantic. Rather, it reflects a significantly heightened awareness that crashes can be reduced in number and severity by proper design, construction and maintenance of highways, and by manufacturers' incorporation of state-of-the-art technology. This technology includes collision avoidance systems such as ABS brakes, radial tires and halogen head lamps, and crash protection features such as air bags, properly designed seats and seat belts, laminated window glass, side-intrusion protection and well designed fuel systems. Awareness of safety and technological advances can have a dramatic effect on saving lives. According to the National Safety Council, motor vehicle crashes still account for approximately 43,500 deaths and 1.6 million disabling injuries annually. The direct annual cost of crashes is about $96.1 billion.1 This article reviews the battles that have been fought with the auto industry over occupant safety, and concludes that the battle is far from over. Many important areas of automotive safety remain to be addressed, including the risks posed by light trucks and utility vehicles, poorly designed seat backs, and the widespread existence of lap-only seat belts in the rear seats of millions of automobiles. Although much has been accomplished, many important battles must be fought and won by American consumers before an acceptable level of safety is reached in the design of motor vehicles. Public debate over auto safety did not begin until the mid 1960s, when Ralph Nader's Unsafe At Any Speed -- the Silent Spring of auto safety -- catapulted the issue to the forefront of public attention. In Unsafe At Any Speed, the public learned for the first time of the auto industry's total disregard for the issue of safety in the design of the popular -- but lethal -- Chevrolet Corvair. As Nader brought auto safety issues into the public's consciousness, Congress began highly publicized hearings on auto safety. These hearings eventually led to the passage of the National Traffic and Motor Vehicle Safety Act and the Highway Safety Act of 1966. For the first time, these two laws called for the regulation of the transportation industry and the development and enforcement of Federal Motor Vehicle Safety Standards (FMVSS). The battle for improved crashworthiness moved to the courts in the 1970s. Accident victims fought for improved crashworthiness by suing manufacturers for injuries and deaths that would not have occurred if the vehicles involved had been properly designed, engineered and manufactured. The courts recognized during this battle that manufacturers were in the best position to know the inherent dangers associated with accidents and how best to protect vehicle occupants. Many lawsuits revealed the incredible fact that certain manufacturers had the technology available to produce a safer vehicle. But because of slightly higher costs and the fact that it was not required by law, the manufacturers chose to maximize their profits rather than incorporate safety technology in production vehicles. As a result, the law developed the concept of crashworthiness -- a duty to build a motor vehicle that provides reasonable occupant protection in foreseeable crashes. Manufacturers who fail to build a reasonably safe vehicle will be held accountable to accident victims and their families. The 1970s also saw the auto manufacturers take an activist role in trying to shape and delay the performance requirements for numerous proposed FMVSS. For example in a move that condemned thousands of victims to unnecessary injuries and death, the auto industry was able to convince legislators to exclude light trucks and utility vehicles from the requirements of passenger car safety standards. Yet, at the same time, the industry's advertising campaigns were trying to convince the public to buy more light trucks and utility vehicles, which could be driven like cars but also accommodate large families and business needs. In short, the industry was replacing the station wagon with pickup trucks, vans and utility vehicles. By the early 1980s, numerous cases had arisen where courts found that manufacturers lied under oath about safety defects in their vehicles. Further, the industry withheld critical data from the government. It used a cost/benefit analysis in an attempt to sway decision-makers from proposed safety standards. The early 1990s have seen progress in vehicle safety. Many cars now have standardized air bags and ABS brakes. However, even with these standard safety features, the auto industry still exposes vehicle occupants to unnecessary risks and needless injuries by ignoring design changes that would greatly enhance occupant safety. Safety belt performance plays a central role in the triad of crashworthiness: contain, maintain and restrain. A properly designed safety belt should restrain the occupants by preventing or minimizing their violent movement within the vehicle or from it, preventing or minimizing their risk of hitting damaging structures in the vehicle and making all interior structures as forgiving (energy managing), as possible in the event of impact. Historically seat belts have been the major component for accomplishing this crucially important piece of the crashworthiness triad. With the introduction of mandatory belt usage laws in most states during the 1980s, seat belt usage in America has risen from less than 10 percent to more than 50 percent. As a consequence of tens of millions of people now wearing their seat belts, numerous design flaws in seat belts have come to light. The most egregious of these defects are discussed below. Inertial Unlatching: Over 100 million cars in America have seat belts with the release button on the front face of the buckle. In some frontal collisions, rollovers and side impacts, the release mechanism can be inertially disengaged when the back of the buckle hits a hard part of the seat structure or of the human body such as the iliac crest of the pelvic bone or hip. While manufacturers deny the existence of the defect, crash test film in the public domain at the National Highway Traffic Safety Administration (NHTSA) clearly shows the belt unlatching in frontal collisions. Since 1990, there have been several landmark cases against American and Japanese manufacturers for this defect. The issue received national attention on September 9, 1992, when it was explored by CBS News. Excessive Slack: The Windowshade Effect: Prior to 1990 more than 100 million cars in the United States had front seat shoulder harnesses that incorporated what the manufacturers called a "tension relieving" device also known as a "windowshade." The windowshade is familiar to drivers and front seat passengers. While seated in a car fully belted, one would notice periodically that the shoulder harness would become slack and begin to droop. By tugging slightly downward on the belt, the retractor would activate and the belt would tighten back up against the body. However, the slack would be introduced again through normal body movements such as leaning forward to adjust the radio, etc. A loose belt is a grave hazard in a crash. According to NHTSA tests, even an inch of slack can substantially raise head injury force levels, and a few inches can largely eliminate the belt's effectiveness.2 Further, a slack belt can promote or allow ejection or severe submarining. The windowshade promotes slack both by encouraging the belt wearer to make the belt loose and by allowing slackness -- sometimes many inches of it -- to creep into the belt without the wearer's knowledge. Through public expose of this defect by the Institute for Injury Reduction, a Washington D.C. based consumer group in November 1988, the American manufacturers removed the feature from their 1990 models forward. The feature still exists on virtually all cars on the road manufactured through 1989 in the United States, thus leaving at risk hundreds of millions of American motorists. The result is shocking in light of the fact that two seat belt manufacturers and Japanese, German and French auto makers previously warned about the hazards of seat belt slack and slack-inducing devices.3 Door-mounted passive belts: In a well intentioned but poorly considered effort to increase seat belt usage, some manufacturers in the 1980s introduced belt systems with the outboard anchorage of the belts mounted in the structure of the door or door frame. This can be dangerous when a door unintentionally opens because it allows for the possibility of ejection. Only a well designed belt system will restrain the user from ejection through an open door. Car companies continue to equip new cars with door-mounted belt designs while doing nothing to correct the ones already on the highways or warn their owners about ejection hazards. Rear seat lap-only belts: In the late 1980s the severe danger of rear seat lap belts was first identified. Often, unbelted front seat occupants in frontal collisions survived with minor injuries while back seat passengers restrained by lap-only belts suffered paraplegia, head injury and, in some instances, death. Children are particularly susceptible to this danger. Their delicate muscular and skeletal structures, coupled with the frequencies of children seated in the back seats of cars, exposes them to rear lap belt injury. The news, however, came as no surprise to the auto manufacturers. They have been aware of the dangers of lap-only seat belts for more than 30 years. They have been told for years in both medical and engineering literature that lap-only belts would cause needless injuries in some crashes and that properly designed lap/shoulder belts would eliminate these hazards. Moreover, the dangers of lap-only belts have been confirmed in hundreds of tests. In 1967 a Ford engineer wrote in a confidential memo: [t]he 3-point diagonal shoulder belt system has been demonstrated to offer much greater protection to the vehicle occupant than does a single lap belt alone, since it prevents injuries from jackknifing . . . Injuries . . . involving 3-point systems would all have probably been much worse had the individuals been wearing . . . a lap belt only . . . Our conclusion . . . is that a properly worn, 3-point system clearly protects the occupant better than a lap belt only system.4 The National Transportation Safety Board (NTSB) concluded that: "lap belts may induce injury, ranging in severity from minor to fatal, to the head; spine; abdomen; intra-abdominal viscera, connecting tissue, and blood vessels; and intra-thoracic viscera, connecting tissue, and blood vessels. Such injuries may occur singly or in combination."5 As NTSB noted, these belts can cause head injury by allowing the upper torso to swing forward or allow for abdominal and spinal cord injury by overloading the lower torso with crash forces. Rear-belt use has increased since 1986; predictably and tragically, injuries have also climbed. Even NHTSA, which has failed to recall such belts or effectively promote the retro-fitting of rear lap-shoulder belts, has admitted to Congress that as many as 6,000 deaths and injuries per year could be prevented by the replacement of lap-only rear belts with lap-shoulder belts. One reason for the injury proliferation is that in crashes the lap belts often ride over the pelvis. By doing so, they violate a federal motor vehicle standard requiring the belt to "remain on the pelvis" in automobile crashes.6 This further increases the likelihood of severe abdominal and spinal cord trauma. As a consequence of adverse publicity from jury verdicts against American manufacturers, and through public exposure of this defect by automotive safety groups, NHTSA finally adopted a rule in 1988 requiring shoulder harnesses in the rear seat outboard positions for motor vehicles sold in the United States beginning with the 1990 model year. Unfortunately, the regulation does not require a shoulder harness in the rear center seat position, which is where most adults place small children because it provides the greatest protection in side impact collisions. Shoulder-Only Belts: For a long time a shoulder belt without a lap belt was widely recognized as an extremely hazardous design. In a 1970 study by a leading biomechanics expert, it was found that "the upper torso belt [alone] can produce a more serious injury than the lap belt... this type of strap can cause severe injuries to internal organs or the neck [when the wearer slides out of the belt]. Even a lap strap alone was considered preferable....7 The should-only belt design can be found on many older model vehicles still on the road today. Variations of the design are popular today with some U.S. and Japanese manufacturers, an example of which is the "automatic" shoulder belt and manual lap belt. The hazards of shoulder-only belt systems have prompted the European Economic Community to forbid the use of this design.8 Yet as recently as 1990 such belts were being sold in the United States and are still permitted under NHTSA standards. Each year about 1,200 people die in rear-end accidents, and many thousands more are seriously injured. A large number of these deaths and injuries are caused by the partial or total failure of the seat back systems that should be protecting occupants in rear-end impacts. In front-end crashes, the vehicle's forward movement is abruptly stopped. Seat belts and air bags keep the occupants from hurling forward. The safety objective of a seat back is to act as a restraint system in rear-end crashes. Just as a seat belt holds an occupant in the seat and restricts forward motion, the seat back restricts rearward motion in a rear-end crash. If a seat back stays in place, remaining upright while cushioning and containing the occupant's body, it acts like an effective seat belt or air bag. But if the seat back collapses, the occupant can be ejected, strike his/her head on the rear seat or floor, collide with another occupant or traumatically flex the upper spinal column over the top of the seat back. In real-world, rear-end crashes, at speeds as low as 12 mph, flimsy seat backs are failing to provide adequate restraint protection. Fully investigated "fender-bender" cases dramatically demonstrate that seat back failures in low impact accidents have resulted in inexcusably severe or fatal injuries. In 1971 NHTSA promulgated FMVSS 207, which calls for a static loading test for seats and seat backs. The test simply requires that an empty seat be attached to a pulley at the upper portion of the seat back and a static load applied 20 times the empty seat weight with minimal deflection. For example, an empty seat that weighs 10 pounds is only required to withstand a static load of 200 pounds before collapsing. As cars have become lighter to meet fuel economy requirements, so have their seats. This reduction in seat weight corresponds with the existing minimal level of protection provided by a grossly inadequate standard. As a consequence, a significant problem currently exists in the seat backs of most cars in America. Dynamic crash test standards are already applied to restraint performance in frontal impact, windshield performance in frontal impacts, fuel system integrity in rear impacts and many other crash modes. It is inexcusable that rear-crash performance of seats, seat backs and head restraints should be exempted from such standards. It is clear that the government must revise the 25-year-old FMVSS 207 standard to a realistic one that will provide adequate seat back strength in rear-end collisions. Other changes that must be made in seat backs include head rest and seat belt anchorages. Head rests must be high enough to provide meaningful protection. Many head rests are too short or collapse downward in collisions allowing the head and neck to hyper extend over the top of the head rest. Anchoring of seat belts on seat structures must also be promoted in order to assure that belts remain snugly around occupants throughout a crash. There are almost 100 million vehicles still on our nation's highways with unsafe fuel systems, unable to withstand reasonably foreseeable rear or side impacts without the risk of catastrophic fire. The issue over safe fuel systems has once again come to the fore with 1973-1987 GM pickup trucks that have fuel tanks mounted outside the frame rails. Perhaps because of the public outcry, the government is now asking GM to recall these pickup trucks, but neither the government nor the auto industry is making any effort to recall other vehicles with equally unsafe fuel systems. The risk is especially high among those people who, as a result of economic circumstances, drive older and smaller vehicles -- the same cars and trucks that generally have the most dangerous fuel systems. As motor vehicle manufacturers scrambled through the 1980s to achieve fuel economy, a need for lighter materials became an increasingly higher priority. One of the materials that has been incorporated into many motor vehicles is high strength, low alloy steel (HLS). It is lighter and stronger than comparable cold rolled steel. Certain structural components of motor vehicles still require the weight and substance of cold rolled steel. Where cold rolled steel and HLS are welded together, particularly in unitized structures, welds are often brittle and sometimes fail far below their load capacity. As a consequence in many moderate collisions, crush damage is excessive. In some instances cars crashing at moderate speeds are actually splitting in half. An increasing number of auto crashworthiness claims are being brought against motor vehicle manufacturers for defective welding of HLS to cold rolled steel. In order to achieve improved rust resistance, some manufacturers have incorporated galvanized steel into vehicles. Again, when galvanized steel is welded to traditional cold rolled steel and/or HLS, welding problems can develop with resultant excessive crush in moderate speed impacts. STEERING COLUMNS In an attempt to minimize driver injuries during frontal collisions, the federal government in 1968 required collapsible steering wheels and columns. The auto industry experienced no problems meeting the government's minimum standards as long as a driver hits a steering wheel exactly according to the test design, and the collapse mechanism performs as expected. But if the driver hits the wheel at a slightly different angle, the mechanism can cause serious or fatal injuries. This dangerous situation arises every time there is a frontal collision that is not exactly in line with the tests, or if a tilt steering wheel is adjusted to one of its many positions. Although some foreign manufacturers offer vehicles with steering wheels that collapse during off-center impacts, the majority of auto companies still only design for the minimum requirements. Throughout the 1970s and 1980s, many families replaced their station wagons with light trucks, vans and utility vehicles. Although passenger car occupant deaths decreased from 25,929 in 1975 to 25,113 in 1987 (a 3 percent decrease), light truck deaths increased during the same period from 4,332 to 6,935 (a 60 percent increase).9 Vans and utility vehicles do not have to meet basic car safety standards involving side impacts and roof strength. In addition, they are more likely to rollover than passenger cars. Most U.S. drivers are not experienced driving less stable, light trucks, vans and utility vehicles that have higher centers of gravity, shorter wheel bases, narrower tracts, stiffer suspensions and four-wheel drive. Over the last several years, numerous exposes have revealed the instability of utility vehicles such as the Jeep CJ-5 and CJ-7, the Isuzu Samurai and the Ford Bronco II. Similar problems have emerged recently in the Ford Aerostar van. While the steering, handling and stability characteristics are directly related to crash causation, there is also a lack of crashworthiness in the sliding door hardware, roof structure and rear liftgate supports and latches of these vehicles that increase the number and severity of injuries and deaths. Numerous cases have revealed that many of the sliding doors used on vans are fixed to the slide channel with cast aluminum hardware, which has no yield strength and fractures when its load capacity is exceeded. Consequently, the doors fall off rather than deform and the occupants are easily ejected. It has also been found that the rear liftgates, constructed of bulk fiberglass of some vans and utility vehicles, have shattered because of the inadequacy of the fiberglass. Additionally, in tests at relatively low speeds, rear liftgates pop open even when the vehicle is only struck at the front end. Although there has been progress in the design of passenger cars, the auto industry has been grossly negligent in failing to provide the same level of safety for occupants of light trucks, vans and utility vehicles. It is only recently that those vehicles have been required to comply with many of the FMVSS standards required of passenger cars. For example, it was not until the 1980s that impact protection from the steering wheel and its rearward displacement was ordered. Similarly, in 1991, head restraints became mandatory. For the same reason head restraints are important for passenger cars, there was an additional advantage of requiring the standard for pickup trucks. Often the back window in a pickup truck is close to the heads of the occupants. It presents a particular unyielding surface that might prevent whiplash, but instead cause a concussion or possibly fatal cuts and gashes if the rear window shatters. The government's exemption of these vehicles from many important safety standards is unjustified and against the public interest. Until these vehicles meet or exceed the FMVSS standards for passenger cars, innocent consumers will continue to be exposed to dangerous and unnecessary risks of injury or death. Motor vehicle safety has traveled a long road since the 1960s. Today, even the auto industry recognizes safety as an important marketing tool (it is now No. 2 on the list of priorities of new-car buyers)10. However, there are many significant changes that must be incorporated into motor vehicles before the public can be reasonably assured of crashworthy cars, trucks and vans. The road to auto safety still demands full front and rear-seat air bags, as is currently being offered in Japan by Nissan.11 Three-point shoulder/lap belts must be standard in all seating positions, including the rear middle seat. Roof structures must not collapse in rollovers. Occupants must not be maimed or killed in side impacts. Fuel systems must not fail in highway collisions and motorists must not be ejected or lacerated. Also, manufacturers must use laminated glass in side and rear windows. In summary the technology to save lives is available. It must be matched by the willingness of manufacturers to use it. We have not yet traveled all the way on the road to motor vehicle safety. ENDNOTES |
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