Monthly Archives: July 2015

Does a vehicle manufacturer bear responsibility for death and injury caused by a safety defect in their product?

After writing a post yesterday,  http://annaleahmary.com/2015/07/who-should-bear-the-responsibility-for-deaths-injuries-due-to-known-safety-defects/,  I have been wrestling with this question:

Does a vehicle manufacturer bear responsibility for death and injury caused by a safety defect in their product:

  • ever?
  • and, especially do they do so when it is publicly known (in the engineering realm) that there is a solution to the problem which could — if implemented — prevent death and horrific injury?

Or, are they protected by following the letter of the law — which likewise might have been negligent to require the best possible protection?

Furthermore, if they do bear responsibility, then what price should they pay for negligence to act on that knowledge in a timely fashion?

I have been trying to look at it every which way and not merely as the mother of two daughters, AnnaLeah (forever 17) and Mary (forever 13), who happened to get killed by a truck underride crash in which the underride guard met current federal standards, and possibly even the Canadian standards, but did not make use of safer known technology and did not withstand the crash.

Before & After PhotosI am plagued by so many questions:

  • Did the manufacturer’s act of omission contribute to Mary’s and AnnaLeah’s deaths? (omission: http://tinyurl.com/o2z6meb )
  • If so, why are they not being held responsible for such a heinous action? (heinous: http://tinyurl.com/ncak6o2 )
  • What consequences should they pay for their negligence?
  • Can it be considered criminal negligence? (criminal: http://tinyurl.com/p5syqnl )
  • Can a charge of manslaughter be applied? (manslaughter: http://tinyurl.com/nl6ms8l )
  • Is the manufacturer excused from responsibility for their deaths because it was not technically illegal (they abided by the letter of the law)?
  • If current and future research shows beyond a shadow of a doubt that safer underride prevention systems can, in fact, be put in place on trucks, can truck manufacturers be freed from responsibility to implement such technology due to supposed “unreasonable” costs? (A frequent reason for less-than-adequate rules to be issued — if issued at all.)
  • Do informed regulators who do not write into law the safest possible technology bear any responsibility?
  • Do informed truck purchasers who do not buy trucks with the safest possible technology (even if not required by law) bear responsibility?
  • I even have to ask myself if I am taking the chance of sabotaging our goal of seeking stronger federal standards by raising these controversial, potentially-inflammatory questions.

So you see, I am not struggling with easy questions. But you have to admit, don’t you, that they are questions with life & death implications.

WarsawINFilmPhotographer_MIMemoria_Film_063WarsawINFilmPhotographer_MIMemoria_Film_082

 

This question of manufacturer criminal liability is addressed in a New York Times editorial today (July 21, 2015):

“The Senate bill also falls well short of addressing important issues raised by recent scandals involving defects in General Motors’ ignition switches and Takata airbags. While it would raise the maximum fine that the National Highway Traffic Safety Administration can levy against automakers that do not promptly disclose defects to $70 million from $35 million, that increase is a pittance for companies that make billions in profits. And by not proposing criminal liability for executives who knowingly hide the life-threatening dangers of their products, the bill simply sidesteps the issue of individual accountability.”

http://www.nytimes.com/2015/07/21/opinion/a-senate-bill-that-makes-roads-and-railroads-less-safe.html?partner=rssnyt&emc=rss&_r=1

From my morning reading: “The mouth of the righteous utters wisdom, and his tongue speaks justice. The Law of his God is in his heart; his steps do not slip.” Psalm 37:30-31

Who should bear the responsibility for deaths & injuries due to known safety defects?

Should there be criminal penalties for cases in which persons are killed as a result of known safety defects in vehicles?

What is a “safety defect” anyway?

http://resources.lawinfo.com/personal-injury/products-liability/toyota-recall/what-is-a-safety-related-motor-vehicle-defect.html “The United States Code for Motor Vehicle Safety (Title 49, Chapter 301) defines motor vehicle safety as “the performance of a motor vehicle or motor vehicle equipment in a way that protects the public against unreasonable risk of accidents occurring because of the design, construction, or performance of a motor vehicle, and against unreasonable risk of death or injury in an accident, and includes nonoperational safety of a motor vehicle.” A defect includes “any defect in performance, construction, a component, or material of a motor vehicle or motor vehicle equipment.” As reported by the Office of Defects Investigation ( www-odi.nhtsa.dot.gov) a “safety defect” is defined as a problem that exists in a motor vehicle or item of motor vehicle equipment that:

  • poses a risk to motor vehicle safety, and
  • may exist in a group of vehicles of the same design or manufacture, or items of equipment of the same type and manufacture.”

 

If there is a known safety defect and no attempt is made to correct the problem and someone dies or is seriously injured as a result, who should be held responsible for this and what price should they have to pay?

Some have written about this topic:

 

When I read the above article this morning, it reminded me of things said by Michael Lemov–in his book, Car Safety Wars; 100 Years of Technology, Politics, and Death, which chronicles interesting quotes and facts concerning the history of vehicle safety defects and their impact on matters of life and death:

  • “Enforcement should be strengthened to include criminal penalties, because drivers, Nader said, already face criminal penalties for reckless driving and similar offenses.”
  • p. 92, “…the miniscule amount that senator Robert Kennedy (New York) established the industry spent for automotive safety, in comparison to its billions in annual profits (less than one percent it turned out). Or the large number of ‘dealer recalls’ for defects (478 in 1965), many of which the manufacturers had not told car owners anything about.”
  • p. 92, “…the Johnson administration’s ensuing decision to ask Congress for the passage of the first federal motor vehicle safety law in history.”
  • p. 92, “President Johnson had included a statement on the motor vehicle safety issue in his 1966 State of the Union message to Congress–and to the millions of Americans listening that January evening. Johnson spoke mostly about the two overriding issues of the day–the administration’s ‘War on Poverty’ and the quagmire of the bloody, seemingly endless Vietnam War. In his ten-page State of the Union address the President devoted just two sentences to highway safety. He called for the nation to ‘arrest the destruction of life and property on our highways.’ And he said he would propose a Highway Safety Act to ‘end this mounting tragedy.”
  • p. 92-93, “The President’s transportation message released in early March 1966 further spelled out the administration’s traffic-safety plan. It forcefully stated the need for legislation on vehicle design-safety, placing it squarely in the forefront of the public’s consciousness: Last year, the highway death toll set a new record. The prediction for this year is more than 50,000 persons will die on our streets and highways–more than 50,000 useful and promising lives will be lost, and as many families stung by grief. The toll of Americans killed in this way since the introduction of the automobile is truly unbelievable. It is 1.5 million–more than all the combat deaths suffered in all our wars. . . No other necessity of modern life has brought more convenience to the “American people–or more tragedy–than the automobile. . . the carnage on the highways must be arrested. . . we must replace suicide with sanity and anarchy with safety.
  • p. 95, “Despite all the rhetoric, the main issue was relatively simple. How extensive should the new federal authority be to set enforceable national motor vehicle safety standards? That power was central to the proposed law. It was delegated in the administration’s bill to the inexperienced, business-friendly Department of Commerce. Ultimately it was to be transferred to the as yet nonexistent Department of Transportation. . . In handing off the issue to his senior colleague Magnuson, Senator Ribicoff was specific in his recommendations. Ribicoff repeated the gruesome statistics of rising deaths and injuries. He asked: Could it be that we have reached the point where we simply accept the highway toll as an ordinary fact of life? Is this one of the prices we must pay for the privilege for living in a modern, technological society? I hope not. We must concern ourselves with more than the causes of accidents.
  • p. 95, “Ribicoff endorsed the decades-old position of doctors, accident investigators, and university researchers, which had long been ignored by the manufacturers and the safety establishment: ‘We must look beyond the accident to the cause of the injury that results. I am speaking, of course, about the so-called second collision, the often lethal battering which the occupants of a vehicle incur as the result of even a minor crash.’
  • p. 95, “And Ribicoff challenged one of the key arguments of the manufacturers: ‘The automobile industry seems inclined to believe that the American public will not buy a safe car. In fact, some spokesmen for the industry have stated that safety doesn’t sell, and that they have no choice if they want to stay in business but to give the public what the public wants.'”
  • p. 95, “But Ribicoff argued that the public and the press were now ‘aroused’ and had finally grasped the ‘significance of the second collision’–and presumably the need for federal vehicle standards as a means of preventing the deaths and injuries ‘that inevitably result from accidents.'”
  • p. 95, “. . .Ribicoff said: ‘We believe the president’s highway safety bill can be and should be strengthened and improved.'”
  • p. 97, “Nader followed with a laundry list of defects in the proposed administration bill:
  • “It should ensure that motor vehicle safety standards applied to pedestrian safety.
  • “The federal standards should include their technical or engineering basis, so they could be evaluated by independent experts and the public[these technical specifications might be deemed trade secrets by the carmakers].
  • “The bill should make government issuance of the standards within one year, mandatory [not discretionary as provided in the administration’s bill].
  • “Court review should be broadened to include a right to sue for ‘affected parties’ and a right of review by ‘consumers and insurers.’
  • “The production of prototype ‘safe cars’ should be mandated.
  • “Vehicle manufacturers should be required to submit annual performance [crash] data, showing how well their cars were performing in actual use.
  • “All car-maker communications with their dealers regarding safety should be submitted to the government and be made public.
  • “Enforcement should be strengthened to include criminal penalties, because drivers, Nader said, already face criminal penalties for reckless driving and similar offenses.”
  • Car Safety Wars book cover

“‘. . . get the auto industry more proactive. Everybody is reactive, even NHTSA.'”

“Mark Rosekind, the federal government’s chief auto safety official in metro Detroit this week to deliver the opening address at the Automated Vehicles Symposium in Ann Arbor on Tuesday, said he wants the agency to work on preventing tragedies, not just react to them.

“. . . ‘ I don’t mind telling you that I also think one of our agendas clearly — because I keep talking about this — is to try to get the auto industry more proactive. Everybody is reactive, even NHTSA.'”

http://www.freep.com/story/money/cars/auto-leadership/2015/07/20/nhtsa-rosekind-detroit-ignition-switch-general-motors/30412571/

Sounds good to me.

IMG_20140508_114515_341

“California Senate endorses rule targeting CDL ‘diploma mills'”

Good to see stronger CDL laws proposed for California. The truck driver in our crash got his CDL in California. These rules might have prevented our crash if they had been in place sooner. Hopefully, they will save many lives by ensuring better training for CDL truck drivers.

7/17/2015
“California Senate endorses rule targeting CDL ‘diploma mills'”
By Keith Goble, Land Line state legislative editor

“A bill halfway through the California statehouse would put in place a new rule to help ensure that aspiring truck drivers get the proper training before heading out on the road.”

– See more at: http://www.landlinemag.com/Story.aspx?StoryID=29438#.Va17SflViko

Rebekah photo of crash

http://annaleahmary.com/2014/07/our-crash-was-not-an-accident/

Remembering Mary & AnnaLeah in a Patchwork Quilt of Memories

Last night (late), I finished the patchwork quilt which I have been sewing by hand out of squares of material from AnnaLeah’s and Mary’s clothes–mostly from the last few years of their lives.

A friend, and her family, lovingly started the project for me the summer after we lost the girls. Then, last summer, I begged her to let me take it over. Hours of cutting and organizing and stitching have released and focused the pain and love and laughter and grief and anger in a healing way.

So it is a bittersweet feeling to be done with it. It will be good to be able to use it. But I am not quite ready to let go of the energy which went into that project. Good thing! because I have a box of squares all ready to sew a second quilt — ensuring that if it wears out, I will not have to worry about losing an irreplaceable treasure of memories.

Quilt 052

 

Here are some photos of AnnaLeah and Mary in some of the clothes which I used to make the squares: https://www.facebook.com/media/set/?set=a.867770979972084.1073741957.464993830249803&type=3

 

Here is a glimpse of the project in progress:

Who loses when there is a truck underride crash?

Who loses when there is a truck underride crash? Well, of course, the smaller vehicle’s driver and/or passengers (and their loved ones) are the most obvious victims of a truck underride crash. But does anyone else lose when an underride crash occurs?

How about the truck driver, who was not necessarily the one causing the crash but might lose some wages by being off the road in the aftermath? Or, how about the owner of the truck (trailer) who now has a damaged vehicle? Calling them victims makes sense.

But how about the company which manufactured the truck/trailer? Do they lose out on this deal? No. They are not impacted by a failed underride guard on a vehicle which they produce. However, I hope that that will not stop them from voluntarily jumping on the bandwagon and taking the lead to improve safety.

In fact, in 2014, we wrote to numerous companies in the trucking industry–asking them to voluntarily manufacture or purchase trucks with the safest possible underride protection. We are getting ready to send another letter out to them–letting them know what is happening in underride research efforts, which makes this a manageable request.

trailer manufacturer letter template January 2014

Some trailer manufacturing companies have been voluntarily taking steps to improve their underride guards. IIHS reports on their progress in this October 2014 Status Report:  http://www.iihs.org/externaldata/srdata/docs/sr4907.pdf

For more information on what is happening around the globe to improve underride standards, especially side underride guards, see this article by Andy Young, a truck driver/owner/attorney and chair of the American Association for Justice Truck Litigation Group’s Underride Committee (that’s a mouthful!):

Piercing-The-Passenger-Compartment

I hope to see a future where the trucking industry goes beyond compliance and voluntarily leads the way to providing the best possible protection by means of more effective underride prevention systems–rear, side, and frontal–on all applicable vehicles.

Please join us in encouraging them to do so.

gertie 2946

“On the Road: Routine Taps Performance Brings Town to a Halt”

Day is done, gone the sun
From the lakes, from the hills, from the sky
All is well, safely rest
God is nigh.

Fading light dims the sight
And a star gems the sky, gleaming bright
From afar, drawing near
Falls the night.

Thanks and praise for our days
Neath the sun, ‘neath the stars’, ‘neath the sky’
As we go, this we know
God is nigh.

TAPS
words: Horace Lorenzo Trim
tune: Daniel Butterfield

May His peace that passes all understanding guard your hearts & minds. . .                              no matter what you are going through.

GWMemorial-12

(Photo courtesy The Karths: http://www.thekarths.com/blog/)

Celebrating Progress in Underride Guard Rulemaking: Advance Notice of Proposed Rulemaking on Single Unit Trucks (SUTs)

The current federal standards for truck and trailer crash protection do NOT currently include Single Unit Trucks (SUTs). These types of trucks are not required to have any rear underride guards. Yet, research has shown that there are many deaths due to smaller vehicles colliding with the rear end of SUTs.

Examples of SUTs are dump trucks, garbage haulers, concrete mixers, tank trucks, trash trucks, and local delivery trucks.

Today, NHTSA issued an advance notice of proposed rulemaking (ANPRM) for SUTs–the first step of a larger agency initiative to upgrade the standards for truck and trailer underride crash protection. This is very good news!

As soon as it gets published in the Federal Register, we will be asking people to put in their two cents worth online through a 60-day Public Comment Period.

http://www.nhtsa.gov/About+NHTSA/Press+Releases/2015/nhtsa-truck-underride-anprm-july2015

Straight Truck Advance Notice of Proposed Rulemaking nhtsa 3715[1]:

This announcement is about protecting more drivers and passengers,” said U.S. Transportation Secretary Anthony Foxx. “These vehicles are essential to transportation system, and we have a duty to the traveling public to take every opportunity to strengthen truck safety.”

 

This 79 page document spells out the details , ANPRM-underride-SUT-July2015 :

SUMMARY:

NHTSA is issuing this ANPRM following a July 10, 2014 grant of a petition for rulemaking from Ms. Marianne Karth and the Truck Safety Coalition (petitioners) regarding possible amendments to the Federal motor vehicle safety standards (FMVSSs) relating to rear impact (underride) guards. The petitioners request that NHTSA require underride guards on vehicles not currently required by the FMVSSs to have guards, notably, single unit trucks, and improve the standards’ requirements for all guards, including guards now required for heavy trailers and semitrailers.

Today’s ANPRM requests comment on NHTSA’s estimated cost and benefits of requirements for underride guards on single unit trucks, and for retroreflective material on the rear and sides of the vehicles to improve the conspicuity of the vehicles to other motorists. Separately, NHTSA plans to issue a notice of proposed rulemaking proposing to upgrade the requirements for all guards.

DATES: You should submit your comments early enough to ensure that the docket receives them not later than [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].

I have been told that it could take a few days, a week, or even longer to get published in the Federal Register. But when it does, we will most certainly inform you and ask you to make a public comment. Instructions will be provided.

Here is a photo of a Single Unit (or Straight) Truck which we saw on the road during one of our road trips recently. Note the rather wimpy (voluntary) underride guard.

Trip North May 2015 035Right now (without a requirement for SUT underride guards), whether they realize it or not, these trucks are “getting away with murder.”* We hope that this is the first step toward bringing that tragic and preventable situation to an end.

*”The killing of another person without justification or excuse, especially the crime of killing a person with malice aforethought or with recklessness manifesting extreme indifference to the value of human life.”(Is it “manifesting extreme indifference to the value of human life” to not do something which in fact could be done to prevent horrific injury or death?)

 http://www.thefreedictionary.com/Getting+Away+with+Murder

“To escape punishment for or detection of an egregiously blameworthy act. http://idioms.thefreedictionary.com/get+away+with+murder

We know all too well what an underride crash can result in:

IMG_4465

June 2013 article on straight trucks: http://www.truckinginfo.com/channel/safety-compliance/news/story/2013/06/ntsb-says-straight-truck-safety-not-receiving-enough-attention.aspx

 

Please note that this is only the beginning of a lengthy rule making process. But we are in this for the LONG HAUL and hope to see this advance in a timely manner to the end goal of safer trucks on the road. Here is a description of the regulatory process:

Regulatory Dashboard  http://www.reginfo.gov/public/jsp/Utilities/faq.jsp#dashboard

Q.    What is Reginfo.gov and the Regulatory dashboard and what information does it display?

A.     Reginfo.gov displays regulatory actions and information collections currently at OIRA for review. The Regulatory dashboard is a component of that site that provides an up-to-date and easy-to-read graphical representation of regulatory actions currently under review. The dashboard displays these regulatory actions by agency, length of review, economic significance, and stage of rulemaking.

Q.    What are the different types of significant regulatory actions currently displayed on the dashboard that undergo OIRA review?

A.    They are:

  • Notice  –  These are documents that announce new programs (such as grant programs) or agency policies.
  • Pre-rule (or advance notice of proposed rulemaking)  –  Agencies undertake this type of action to solicit public comment on whether or not, or how best, to initiate a rulemaking. Such actions occur prior to the proposed rule stage.
  • Proposed rule  –  This is the rulemaking stage in which an agency proposes to add to or change its existing regulations and solicits public comment on this proposal.
  • Final rule  –  This is the last step of the rulemaking process in which the agency responds to public comment on the proposed rule and makes appropriate revisions before publishing the final rule in the Federal Register to become effective.
  • Interim Final Rule  –  These interim rules are typically issued in conformity with statutory provisions allowing agencies to publish a final rule that becomes effective soon after publication, without going through the proposed rule stage. The “good cause” exception in the Administrative Procedure Act allows agencies to bypass public notice and comment on a rule when it would be impracticable, unnecessary, or contrary to the public interest. This process typically allows for public comment after the rule is published so that the agency still has an opportunity to consider public input and revise the rule accordingly.
  • Direct Final Rule  –  These rules are similar to interim final rules, except that there is no comment period after publication, on the ground that they are uncontroversial. Such rules are categorized simply as “final rules” for display purposes on the dashboard.

 

 

What you need to know about LONGER & LARGER Trucks. . .

The Facts on Longer Trucks

“Proposals to allow longer trucks on our nation’s roadways will jeopardize safety, further damage our infrastructure, produce greater unfunded costs, and create a less efficient multimodal freight system. ”

Read more here: Truck Size Fact Sheet – TSC 2015

 

Support the Wicker Amendment:

  • The Wicker (MS-R) amendment calls for a rulemaking on Double 33 tractor trailers.
  • This will allow the Department of Transportation to conduct further research and evaluate whether Double 33s are safe for America’s roads.
  • It is important to gather all the relevant data and conduct the proper analysis before any increase has been decided on, as opposed to what happened in the Appropriations Committee a few weeks ago.

Support Sen. Bill Nelson’s bill, the Motor Vehicle Safety Act of 2015 (S. 1743), and Sen. Booker’s bill, the Truck Safety Act (S. 1739):

  • S. 1743 and S. 1739 advance safety, and look to address dangerous gaps and omissions in current laws and rules which result in 4,000 people killed in truck crashes on our roads every year.

Oppose Sen. Thune’s bill, S. 1732, the “Comprehensive Transportation and Consumer Protection Act of 2015”:

  • S. 1732 impedes and delays progress in making our roads and highways safer, and contains numerous dangerous provisions.

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Truckers Need More Areas to Park & Rest

With truck crashes and fatalities on the increase over the last few years, and with more trucks on the road, there are many problems which need to be addressed, including the lack of enough parking areas for truckers to stop and rest.

“The trucking industry is well aware of the parking problems. Kevin Burch, president of Jet Express in Dayton and 2nd Vice Chairman of the American Trucking Associations, said drivers often are caught in the middle between the push to keep the wheels rolling and the need to abide by the rules of the road.

‘We are in a perfect storm of regulation of drivers’ circadian rhythm, if you will,’ he said. ‘The rest is important, but you’ve got to have a place to park.’

With 80 percent of all goods delivered by semi-trucks, Burch said retailers want products delivered on time but do not want to allow truckers to park on site.

‘These truckers have to have rest, so where do they go?’ Burch said. ‘The truck stops are full. The rest stops are full. The shopping centers have no parking. It is a big problem that no one seems to care about.’”

http://www.mydaytondailynews.com/news/news/big-rigs-have-fewer-places-to-park-for-the-night/nmyCq/?source=ddn_skip_stub#a55eb4c5.3554830.735793