Tag Archives: manufacturer liability

Imagine an Executive Order propelling us toward zero crash deaths. What are we waiting for?

The refusal of the federal government (White House and legislators) to respond to my requests for Vision Zero Rulemaking is negligent and indicative of a less-than-wholehearted commitment to a Vision of Moving Toward Zero Crash Deaths and Serious Injuries.

It’s a simple conclusion to arrive at: the lack of Vision Zero Rulemaking is responsible for the blocking and delay of many safety measures. If those safety measures had been implemented in a timely and compassionate fashion, countless lives would have been saved.

Who should we hold responsible?

Some posts related to that life & death question:

  1. Who should bear the responsibility for deaths & injuries due to known safety defects?
  2. Does a vehicle manufacturer bear responsibility for death and injury caused by a safety defect in their product?
  3. Each time a layer of apparent deception is peeled away, I am incensed at what seems like betrayal.
  4. What IS the government’s Vision Zero policy? Zero Deaths or Zero Jail Time?
  5. When will we figure out that somebody’s getting away with murder?
  6. Will the Road to Zero (Crash Deaths) include significant criminal penalties for corporate negligence?
  7. “Anton Yelchin’s Death Highlights a Known Issue With Jeeps”. . . NY Times & Care for Crash Victims
  8. Actor’s Death is Latest Example of Need for a National Vision Zero Goal & Traffic Safety Ombudsman
  9. “Power of Presidents to Protect People” (Legal Reader)
  10. Political Record on Vehicle Violence; #RepublicanConvention Theme: Make America Safe Again. Really?
  11. As Ralph Nader is inducted into the Automotive Hall of Fame, are cars “still unsafe at any speed”?
  12. “Power of People to Protect People” Lou Lombardo, Legal Reader
  13. “Money At Root of Takata’s Tragic History”
  14. Draft Dem. Platform: “Ensure Health & Safety…Gun Violence Prevention” But NOT Vehicle Violence
  15. Party Platforms Strangely Silent: Gun violence gets attention, though toll lower than vehicle violence
  16. Careless Attitudes Can Contribute to Unnecessary Deaths
  17. Is Cost/Benefit Analysis Appropriate for Life & Death Matters? Were their lives worth saving?
  18. Somebody, please get me an audience with President Obama to respond to my Vision Zero Petition!
  19. Truck Trailer Manufacturers Ass’n “Reminds” NHTSA: Side Guards Are “Not Cost-Effective” Says Who?
  20. What if trucking industry campaign contributions went toward safety research & implementation instead?
  21. Side Underride Deaths Need To Be Addressed Now; To do otherwise would be negligent & unconscionable.
  22. Imagine an Executive Order propelling us toward zero crash deaths. What are we waiting for?

Imagine an Executive Order propelling us toward zero crash deaths. What are we waiting for?

Once Meek Agency Flexes its Muscles. . . Likely to Face Pushback Under Trump

Will we figure out how to do more than just slap the wrist of manufacturers that put consumers at risk? Including vulnerable victims of vehicle violence?

See what is happening with the Consumer Product Safety Commission:

The Consumer Product Safety Commission is trying to change its image, one civil penalty at a time.

For decades, the federal agency largely was seen as a doormat with few resources and a toothless enforcement record. But over the past few years, under its chairman, Elliot Kaye, the CPSC has dramatically increased the penalties imposed on wayward companies, including multi-million dollar settlements with firms accused of failing to make timely disclosures of product hazards. . .

“He [Kaye] is trying to make sure that companies which previously had been including civil penalty potential as part of the cost of doing business now are at least more discouraged from doing that,” said Commissioner Robert Adler, an ally of Kaye on the commission.

But with the November 8 election of Donald Trump, who has vowed to cut business regulations, the amped up penalties could come under tough scrutiny. Kaye declined an interview request, apparently to avoid drawing the ire of Republican congressional critics with oversight of the CPSC budget, and of the incoming Trump administration. In a written statement, Kaye said the penalty policy was “intended to deter behavior that can put the safety of consumers at risk” and praised “the outstanding legal work and integrity displayed by our Office of the General Counsel.”

 Once Meek Agency Flexes its Muscles, But Likely to Face Pushback Under TrumpFair Warning, By Brian Joseph on December 15, 2016

Life & Death

Will the Road to Zero (Crash Deaths) include significant criminal penalties for corporate negligence?

Lou Lombardo talks about Center for Auto Safety Comments on VW Diesel Scandal Settlement:

Dear Care for Crash Victims Community Members:

“CAS Staff Attorney Michael Brooks:

“It is great news that VW diesel owners can now be reimbursed, and that Volkswagen must begin to repair the environmental damage their emissions deception caused.  However, automakers will not change their illegal behavior unless the government pursues significant criminal penalties against executives who take or condone such actions.  We look forward to news of federal criminal charges against the VW executives who participated in this fraud on the American public.”

Safe Climate Campaign Director Dan Becker:

“The government did a good job preventing further harm from VW’s diesel fraud. Most heavily polluting diesels will be removed from the road and cannot be resold unless fixed. Other automakers must learn from this scandal that they dare not disable pollution controls, lie to the government or fleece consumers. Those lessons will be reinforced when the government brings criminal charges against VW officals who perpetrated this fraud.””  See

http://www.autosafety.org/cas-statement-on-volkswagen-15-billion-emissions-settlement/

In fact, my Vision Zero Goals include holding manufacturers LIABLE for their actions, as spelled out in my drafted Presidential Memorandum for the Establishment of a White House Vision Zero Task Force:

Section 3. Action Plan.

(a) Within 90 days of the date of this memorandum, the Task Force shall develop and submit proposals and recommendations to the President for a National Vision Zero Goal. This will include specific strategies for moving toward the reduction of crash deaths and serious injuries. It will also outline specific strategies for establishing national traffic safety standards which are proven to reduce crash deaths and which could then be adopted, as is, by every state. These strategies will ensure that the following will occur:

(i) address the problem of traffic safety in a coordinated manner, including the following concerns: road design and conditions; all kinds of enforcement issues to be pro-active in preventing crashes; handling of traffic safety when crashes occur; driver fatigue— acknowledging the scope, extent, and gravity of Driving While Fatigued (DWF) as a reckless behavior both for truck drivers and drivers of light vehicles, and adjusting the legal system to reflect this reality; all kinds of distracted and impaired driving; automotive safety defect issues and their resolution as a high priority issue in a timely manner; and other problems as deemed appropriate, including the need for manufacturers to be held liable for deaths due to their criminal negligence and for DOT to act with the necessary authority to issue and enforce Vision Zero safety regulations which impact not only vehicle occupants but also Vulnerable Road Users.

1a85etNext 4 years

Ralph Nader Conference Highlights Tort Law Benefits & Tort Reform’s Assault on Right to Day In Court

I just got back from a Ralph Nader Conference (Breaking Through Power) in DC on Tort Law (September 29). I was privileged to participate as a “Tort Victim” on a panel moderated by Harvey Rosenfield (Consumer Watchdog). Other panel members were Susan Vento, Todd Anderson, and Laura Gipe-Christian.

dc-september-2016-004

Tort Law or Torts, I learned, is the law of compensation for wrongful inflicted injuries and was in existence long  before it was ever practiced here in our country. And tort law has three purposes:

  1. Compensation
  2. Disclosure
  3. Deterrence (therefore making us safer)

I also found out about the assault on tort law or “tort reform” which has convinced the American public that a system of law had somehow broken and needed to be fixed. This battle for the mind has fostered an attitude of cynicism and skepticism in jurors with the subtle messages about (fill in the blank, answers at the bottom of the post):

  1. Frivolous ________________
  2. Runaway ________________ and
  3. Greedy (or ambulance-chasing) __________________

But actually, the result has been that those who have been wrongfully injured find themselves less compensated and all of us are less safe because it diminishes accountability.

In fact, once a person becomes a victim, tort reform makes them a victim all over again–this time of a system that was meant to help the victim but has been sabotaged to leave them even more vulnerable. And I can give you two examples of this:

  1. During the lunch break, I had the opportunity to speak with a member of the audience who was there because, as a nurse midwife, she was interested in what would be said about medical malpractice. She said that what was being presented made a lot of sense. But she then told me about what she sees as victims of the focus on medical malpractice: pregnant women who are too often forced into C-sections (or other medical procedures not of their choosing) due to fear on the part of doctors of being sued. Yet, this is a case, perhaps, of the kind of PR which was mentioned; we have been led to believe that frivolous lawsuits in this area have skyrocketed and resulted in things getting out of control. Is this so?
  2. The second example is out of my own experience. One of the presenters mentioned that too often victims cannot find trial lawyers who are willing to take their case — on a contingency basis — due to the risk of not being able to recover their costs and the concern about whether the case will be successful or be limited by caps on compensation. We have tried multiple times to get someone to take our case without success. By this time, statutes of limitations pose an additional barrier. The end result is just like I was told this week: compensation to victims is barred; disclosure is prevented; and deterrence of future actions is limited. In our case, tort reform, thereby, could have contributed to a situation which allows ongoing opposition and resistance by the industry and regulators to doing whatever it would take to end Preventable Death by Truck Underride. On May 4, 2013, I hit Double Jeopardy! A victim twice over. What will it take to break through this travesty?

Folks, this is a problem. Could it be that tort reform is just one more of the culprits that bear the responsibility for the circumstances that led to my daughters’ deaths in a truck underride crash? If the many layers of leadership in the trucking industry, government regulation, and law enforcement had been held more accountable and liable in the past, might there have been a greater likelihood that AnnaLeah and Mary would still be alive today?

I’ll probably never know for sure. But I can venture a calculated guess. And I can do whatever is within my power to make sure that things get better for someone else.

Here’s to the realization of my dream of a nationwide network of mobilized traffic safety community advocacy groups to educate and empower citizens to take back their right to a day in court as one more strategy to help us realize the vision of moving toward zero preventable deaths and serious injuries from vehicle violence.

 

(And just in case you need the answers to the quiz: lawsuits, verdicts, and lawyers.)

 

 

CBA Victim Cost Benefit Analysis Victim

2 crash deathsCar Safety Wars

If only

Instead of like this:

IMG_4465Underride Roundtable May 5, 2016 033 Underride Roundtable May 5, 2016 032

Truck Underride Timeline by IIHS at the Underride Roundtable, May 5, 2016

As always, I am after the truth of the matter and I hope that you are, as well.

marys-vbs-photo-craft

VBS craft by Mary in Michigan, Summer of 2007

As Ralph Nader is inducted into the Automotive Hall of Fame, are cars “still unsafe at any speed”?

Lou Lombardo reports on Ralph Nader’s upcoming induction into the Automotive Hall of Fame in Detroit. He raises important questions about whether more needs to be done to reduce the ongoing traffic safety problems. . .

Dear Care for Crash Victims Community Members:

 

Achievements

Last year, Clarence Ditlow reported the achievements since publication of Unsafe at Any Speed to include the saving of an estimated 3.5 million lives (many millions more Americans were saved from suffering serious injuries).  See
http://www.thenation.com/article/on-50th-anniversary-of-ralph-naders-unsafe-at-any-speed-safety-group-reports-auto-safety-regulation-has-saved-3-5-million-lives/

Honor


Today according to Corporate Crime Reporter:

“Auto safety advocate Ralph Nader will be inducted into the Automotive Hall of Fame next month at the Cobo Center in Detroit Michigan.”

More Needed

Currently every average day nearly 100 people in America die from vehicle violence.

Every average day nearly 400 people in America suffer serious injuries from vehicle violence.

Every average day nearly $2 Billion in losses result from vehicle violence in America.


See http://www-nrd.nhtsa.dot.gov/Pubs/812013.pdf


One need addressed by Law Professor Rena Steinzor is in an article last year in the Harvard Law & Policy Review titled

(Still) “Unsafe at Any Speed”:
Why Not Jail for Auto Executives?
Lou
National Vision Zero Goal
Crash Deaths

“Safety Advocates Say Fatal Car Seat Failures Are ‘Public Health Crisis’” #VisionZero

LOS ANGELES (CBSLA.com) — Safety advocates say automakers and regulators have acted with “criminal” negligence in failing to remedy a long-acknowledged auto safety flaw that watchdogs say has played a role in hundreds of deaths, creating a “public health crisis.”

At issue are car seats that malfunction and collapse backward when a car is rear-ended. The impact of the crash and collapsing seat can cripple or kill drivers, as well as passengers in the back seat, in many cases, children. . .

See the entire article and newscast here: Safety Advocates Say Fatal Car Seat Failures Are ‘Public Health Crisis’

In my opinion, a Vision Zero Executive Order, if signed by President Obama, could end the kind of Cost/Benefit Analysis which allows for the excuse that “not enough people die,” from an automotive defect, to justify taking action on deadly automotive defects. See why here:

Sign our Vision Zero Petition hereSave Lives Not Dollars: Urge DOT to Adopt a Vision Zero Policy

 

Each time a layer of apparent deception is peeled away, I am incensed at what seems like betrayal.

Our particular crash was, of course, due to the failure (for whatever reason) of a truck driver to maintain lane and hitting our car so that we went backwards under another truck. I, and my son in the front seat with me, survived that crash. But, because the underride guard failed to do its intended job, Mary and AnnaLeah (in the backseat) experienced an untimely and unnatural end to their lives.

My question is: Should someone be held accountable for the failure of that federally-required piece of equipment which resulted in two deaths? Is the manufacturer liable to prevent someone from being killed when they collide with a truck? And, mind you, expecting them to do so would not be some pie-in-the-sky kind of expectation. It has been proven that protection is possible from much worse circumstances than are currently required.

Every time another layer of apparent deception is peeled away, I am incensed anew at what seems like betrayal.  How many times have decisions been made over a span of decades that have deliberately blocked a strengthening of protection against truck underride? How many people have looked the other way? Surely this is not just a case of ignorance on the part of all persons involved.

The Judicial third branch of the government has provided little hope for ensuring that the truck/trailer manufacturer will be held responsible for the failure of their product, upon collision with it, to prevent horrible, unnecessary death. I was reminded of that unfortunate reality again, when we were in Washington to deliver the Vision Zero Petition, as the topic came up again related to our crash.

In fact, upon a simple search of the internet, I found this example of the difficulty of pinning liability upon the manufacturer:

Defendant . . . avers that despite the truth of these facts, it owed no duty to persons such as plaintiff’s decedent who crash into the rear of its trailers. . . . maintains that there is no duty to design, manufacture and sell a trailer which is “accident-proof” that is, able to protect “invaders” or “trespassers” who run into the trailer and later seek legal redress  U.S. District Court for the Middle District of Alabama – 816 F. Supp. 1525 (M.D. Ala. 1993) March 26, 1993.

What?! So there you have it. At least some manufacturers are willing to fight for their right to avoid ethical responsibility for designing their product to be safe to travel around.

Few have been able to bring about a successful judgment against manufacturers, although some have tried: See Beattie v. Lindelof, 633 N.E.2d 1227 (Ill. App. Ct. 1994); Mieher v. Brown, 301 N.E.2d 307 (Ill. 1973), but cf. Harris v. Great Dane Trailers, Inc., 234 F.3d 398 (8th Cir. 2000) (Arkansas law); Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777 (3d Cir. 1992) (Pennsylvania law); Rivers v. Great Dane Trailers, Inc., 816 F. Supp. 1525 (M.D. Ala. 1993);Worldwide Equipment, Inc., v. Mullins, 11 S.W.3d 50 (Ky. Ct. App. 1999); Detillier v. Sullivan, 714 So.2d 244 (La. Ct. App. 1998); Quay v. Crawford, 788 So.2d 76 (Miss. Ct. App. 2001);Garcia v. Rivera, 553 N.Y.S.2d 378 (N.Y. App. Div. 1990); Hagan v. Gemstate Mfg., Inc., 982 P.2d 1108 (Or. 1999); Great Dane Trailers, Inc. v. Wells, 52 S.W.3d 77 (Tex. 2001).

In one case, a court reasoned that:

the manufacturer is obliged to secure the occupants of only its vehicle from that foreseeable harm: the manufacturer does not owe a duty to protect those who collide with its vehicle. See Mieher, 301 N.E.2d at 308-10; but see id. at 310-11 (Goldenhersh, J. dissenting) (arguing that the duty of care should extend to prevent unreasonable risk to occupants, other drivers, and pedestrians).

In my mind, the question remains: Does the manufacturer owe travelers on the road the duty to exercise reasonable care in designing its motor vehicle?

One author takes a look at this question:

Does a vehicle manufacturer owe a duty to design a vehicle with which it is safe to collide? The Illinois Supreme Court said no in the case of an underride accident, where one vehicle rear-ended a truck and proceeded unimpeded under its bed. The decision unleashed an ongoing debate over the concept of “enhanced injury,” where a manufacturer can be liable for defects in its vehicle that cause injuries over and above those that would have occurred from the accident but for a defective design. Illinois vehicle manufacturers have no duty to protect non-occupants who collide with their vehicles

As it stands, it appears to me that, in general, the manufacturing community is prone to protect themselves from legal impunity rather than protect travelers on the road. I would welcome the opportunity to hear differently.

So, how then do we bring about a more responsible solution to this solvable underride problem? In addition to considering how we might impact each of the three branches of our government, we have also sought for, and encouraged, voluntary action on the part of truck/trailer manufacturers–which has met with some limited success. For the most part, the manufacturers tend to take a wait-and-see attitude–particularly when NHTSA is in the midst of rulemaking–rather than take the initiative to simply go ahead and design a guard which is capable of preventing deadly underride in real life crashes.

I am thankful for the upcoming Underride Roundtable because these questions need to be addressed, once and for all. And I, for one, am unwilling to sit by and watch another underride rule be compromised so that travelers on the road continue to unwittingly play a game wherein too many people will inevitably be dealt a card with a Death by Underride sentence written all over it.

I hope that, this time around, the truth of the matter will be fully revealed and all will agree upon a comprehensive solution which offers the best possible protection. I don’t want any more people to needlessly lose their lives or suffer the unrelenting grief (complicated by anger and helpless frustration) which families like mine undergo.

31 Picture 54647 Mary's braids 006

We need the “Leverage” team to fight corporate & governmental injustices of preventable crash deaths.

My kids introduced me to Leverage a few weeks ago. So, lately, my husband and I have been watching episodes of the program nightly with them.

This is a description of the television series: Leverage is an American television drama series, which aired on TNT from December 7, 2008, to December 25, 2012.[2] The series was produced by Electric Entertainment, a production company of executive producer and director Dean Devlin. Leverage follows a five-person team: a thief, a grifter, a hacker, and a retrieval specialist, led by former insurance investigator Nathan Ford, who uses their skills to fight corporate and governmental injustices inflicted on ordinary citizens.

Last night, after watching a couple of episodes, I was thinking about our nation’s careless negligence of, and seeming indifference to, the senseless, preventable crash deaths which occur every day. It made me wish that the Leverage team could join us in taking on the hard-to-pin-down conglomeration of traffic safety factors*–many of which could be overcome or prevented and which result in the devastation of individual and family lives. Changed forever. No coming back.

*Underride crashes are a prime example of a problem which can be solved, but for which no one has truly been held responsible/liable/accountable for decades.

Mary (13) wrote a letter to herself a few weeks before the crash that took her life. She intended to read her letter 10 years later in 2023. One of the things she wrote was that she hoped to be famous someday; she didn’t know how, she just did.
 
A Leverage movie drawing attention to the widespread problem of traffic safety deaths (especially due to manufacturing defects) could highlight Mary’s and her sister AnnaLeah’s untimely end to their lives. And she would get her wish.

@DeanDevlin

Timothy Hutton, Gina Bellman, Christian Kane, Beth Riesgraf, and Aldis Hodge

Dear Leverage team,

I am asking you to champion a National Vision Zero Goal and Strategy to reduce crash deaths and serious injuries. Traffic safety is of great interest to me following the deaths of my two youngest daughters, AnnaLeah (17) and Mary (13), due to a truck underride crash on May 4, 2013.

My kids introduced me to Leverage a few weeks ago. So my husband and I have been watching it nightly with them. Last night, when I was getting ready for bed, I was thinking as usual about the frustrations of corporate negligence and indifference to the senseless, preventable crash deaths which occur every day. It made me wish that your Leverage team could join us in taking on the Goliath which ignores the problem and perpetuates the devastating impact on individual and family lives.

Since our horrific crash, my family and I have become vocal advocates for highway safety improvement, including a petition signed by 11,000+ people which we took to DC on May 5, 2014. Following that meeting with NHTSA and FMCSA, a rulemaking was initiated in July 2014 to study the need to improve rear underride protection on tractor-trailers, as well as additional proposed rulemaking in July 2015 for underride protection on Single Unit Trucks.

We are not stopping at that but are collaborating with the Insurance Institute for Highway Safety and the Truck Safety Coalition to plan an Underride Roundtable to be held at the IIHS’s crash testing facility in Ruckersville, Virginia, on May 5, 2016. We hope that by bringing together the trucking industry, regulatory officials, law enforcement, attorneys, truckers, engineers, and safety advocates, we can bring about more effective underride protection. http://annaleahmary.com/2015/10/underride-roundtable-save-the-date-may-5-2016/

In addition, we believe that it is not enough to seek improvement through rulemaking but that there needs to be an overhaul of how rulemaking is handled. In light of that, we have launched a Vision Zero Petition online to request that DOT/OIRA approach highway safety rulemaking with a Vision Zero policy. http://www.thepetitionsite.com/417/742/234/save-lives-not-dollars-urge-dot-to-adopt-vision-zero-policy/

Furthermore, we think that the regulatory approach to highway safety rules should not be strangled by cost/benefit restraints that hold up human life and health dollar for dollar against corporate profit and economic stability. That is why we are asking you to back our petition to President Obama for a Vision Zero Executive Order which would modify President Clinton’s Executive Order 12866 and pave the way for stronger safety measures to be established in a more timely manner.

Please let me know at your earliest convenience if this is a cause which you can champion.

In memory of AnnaLeah & Mary–who occupy our thoughts daily,

Marianne Karth

http://annaleahmary.com/

Rebekah photo of crash

Contact me at: marianne@annaleahmary.com

Safety is not a priority 002Who are no more with photo

Don’t get me wrong; I’m not looking for vengeance or ruin. I’m looking for justice  — for accountability in matters of personal and corporate actions which can make the difference between life and death for someone and can ravage someone else’s life. . . forever.

Nothing will ever, ever bring AnnaLeah and Mary back in this life. No way, can’t happen. Not in this life, but only in the life to come. (Hang in there.) And that hurts so freakin’ bad. Every single day.

But I know that more, much more, can be done to ensure that other people don’t go through the same (and thankfully they will never really realize it). And there are forces that are working against our attempts to  truly make saving lives matter more than saving money. Hard to believe, right?

Whereas I feel powerless right now to bring about lasting, far-reaching change, I know that it does not depend on me. And so I am hoping that all the right pieces will fall in place at the right time to open eyes to the truth and a better way to protect ourselves and our families.

We need all engineers and federal officials concerned with public health to take the professional Hippocratic Oath “Do No Harm”.

This post is from a recent demand for accountability from Care for Crash Victim’s Lou Lombardo entitled, “Seat Back Failures: Who Has The Power? & Who Has the Responsibility?”:

Dear Care for Crash Victims Community Members:

Please watch this excellent video and report by CBS News on Seat Back Failures.

The failures of both government and industry to protect the public from foreseeable tragedies – for decades – are described.  See

http://www.cbsnews.com/news/seat-back-failures-injuries-deaths-auto-safety-experts-demand-nhtsa-action/

The Center for Auto Safety has documented the efforts by citizens that were ignored over decades.  Profits were placed ahead of people decade after decade.  See

NHTSA Urged to Warn Parents of Seatback Collapse Dangers to Children in Rear Seats & How to Reduce Risk While Keeping Children in Rear

March 9, 2016
(202)328-7700

The Center for Auto Safety (CAS) today petitioned the National Highway Traffic Safety Administration (NHTSA) to “take action to protect children riding in the rear seats of vehicles from the risk of being killed or severely injured when struck by a collapsing front seatback in a rear-end crash.” The petition asks NHTSA to warn parents as follows:

If Possible, Children Should Be Placed In Rear Seating Positions Behind Unoccupied Front Seats. In Rear-End Crashes, The Backs Of Occupied Front Seats Are Prone To Collapse Under The Weight Of Their Occupants. If This Occurs, The Seat Backs And Their Occupants Can Strike Children In Rear Seats And Cause Severe Or Fatal Injuries

As the petition states, “The problem underlying the need for the warnings sought by petitioner is, of course, the poor performance of seatbacks in rear-end crashes, and of serious inadequacy of the federal motor vehicle standard, FMVSS 207, which specifies minimum seat and seatback crash performance levels.” Attached to the petition is a timeline, “Collapsing Seatbacks And Injury Causation: A Timeline Of Knowledge,” which summarizes “the history of manufacturer and NHTSA inaction to ensure that in rear-end crashes, front seats provide adequate protection not only for their occupants but for people in the rear seats behind them.”

Separately, the Center filed a detailed analysis of lawsuits, police reports and litigated cases that shows the dangers of seat back collapse are far greater than what the agency recognizes because seat back collapse is not captured by the FARS database on which the agency has relied for all too long to deny there is a seatback collapse danger.  FARS does not provide any information on seat back collapse.  Out of 64 seat back collapse death and injury crashes, the Center only found 2 where the police report referenced seat back collapse.

For many years NHTSA has urged parents to place children in the rear seats of cars because of the risk that in the front seat, they might be injured by inflating airbags in frontal crashes. But the “unintended consequences” of this policy, the petition notes, has been to “expose them to another kind of hazard – that of being struck or crushed when the back of a front seat occupied by an adult collapses rearward… Until cars on the American highway are equipped with adequately strong front seats and seatbacks, children in rear seats behind occupied front seats will continue to be in danger of death or severe injury from front seatback failures in rear-end impacts.”

The petition reports on the results of an analysis of NHTSA data by Friedman Research Corp. Done at the Center’s request, the analysis shows that over the twenty-four year period 1990-2014, nearly 900 children seated behind a front-seat occupant or in a center rear seat died in rear impacts of 1990 and later model-year cars.

As the Timeline shows, NHTSA has frequently been alerted to the hazards of weak designs and inadequate federal performance standards for seats and seatbacks. “Papers published by the Society of Automotive Engineers as early as 1967 described the need for adequate of front-seat crashworthiness in graphic and alarming terms. A poorly designed car seat ‘becomes an injury-producing agency during collision,’ said one. Another stated, ‘…a weak seatback is not recognized as an acceptable solution for motorist protection from rear end collisions.’” 

In 1974, the petition notes, NHTSA announced its intention to develop a new standard “covering the total seating system” and requiring dynamic rear-impact crash testing. But thirty years later, in 2004, it abandoned the plan, saying it needed “additional research and data analysis” and leaving in place the woefully weak requirements of FMVSS 207, a standard which has not been upgraded since its adoption in 1967. In a research study of 30-mph rear crashes done one year earlier which is not cited in the rulemaking termination, NHTSA researchers warned of the danger to children placed in rear seats at NHTSA’s recommendation. “Further, fatalities and injuries to rear child occupants due to seat back collapse of the front seat in rear impacts have also been reported. This is especially of concern since NHTSA recommends to the public that children of age 12 and under should be placed in the rear seat.”

In its conclusion, the petition states that warning parents of the hazards of front seatback collapse to children in rear seat is an essential measure “made necessary by the continued absence of a federal motor vehicle safety standard requiring that cars be equipped with adequately protective front seats.”  The agency “can take most of the requested steps on its own, without time-consuming rulemaking, and should do so promptly,” the petition notes. 

#     #     #

CAS Petitions NHTSA to Warn Parents of Seat Back Failure Dangers to Children in Rear Seats

CAS Letter to NHTSA Administrator Rosekind

Collapsing Seat Backs and Injury Causation: A Timeline of Knowledge

Friedman Study: Child Fatalities in Rear Impacts

NHTSA Seat Back Rulemaking History

Clarence Ditlow, Executive Director, Center for Auto Safety, 1825 Connecticut Ave NW #330, Washington DC 20009

For information on Who was responsible, see http://www.careforcrashvictims.com/assets/CFCV-MonthlyReport-March2014.pdf

and http://www.nytimes.com/2014/10/29/opinion/weak-oversight-deadly-cars.html

We need all engineers and federal officials concerned with public health to take the professional Hippocratic Oath “Do No Harm”.

Lou

Safety is not a priority 002

Safety: I do not think that word means what you think it means.

Delivery of a Vision Zero Petition to Washington; What I have learned in our battle for safer roads

I  am having a difficult time getting this post started. I shared about it briefly here and Russell Mokhiber graciously shared our story as well. Now I want to give a more in-depth report of our trip to Washington, DC, on March 3 and 4 to deliver over 20,000 Vision Zero Petitions. I want to be able to report that I am hopeful about the impact of our Vision Zero Petition. But I am mostly frustrated and angry.

There were some encouraging meetings with legislative offices. But there were no commitments, no promises of action to be taken. Traffic safety is not high on their list of priorities. And, despite the almost 33,000 traffic crash deaths in our country each year, Traffic Safety/Vision Zero is not even on the list of Issues on whitehouse.gov.

During our time in Washington, after sharing the story of our crash time after time, we got into a discussion with someone who has observed and testified about the underride crash problem countless times. We actually ended up, as a result, getting hold of some photos of the underride guard which failed to guard our car from riding under the trailer in front of us when another truck hit us and spun us around and hit us again backwards into that truck. We had not previously seen those photos.

And they were disturbing–adding fuel to the fire of my frustration at the utter lack of genuine responsibility on anyone’s part to protect us from Death by Underride. And that includes the three branches of our government: Legislative; Executive/Administrative; and Judicial.

In fact, while we were in Washington on March 3 and 4, we made the rounds of the Legislative branch–visiting with Senator Johnny Isakson (R-GA) as well as staff of several other legislators.  I am not putting much stock in them taking immediate positive action to advance traffic safety. But we have knocked on those doors and appreciate the time they took to listen to us. We will continue to follow up with our contacts and ask them to stand up with us for safety.

Washington Vision Zero Petition photos 009Meeting Senator Johnny Isakson

Additionally, we have petitioned the Executive branch–both through President Obama and the White House, as well as the administrative arm of DOT/NHTSA. Though, of course, I think that the problem needs to be addressed inter-departmentally to acknowledge and address traffic fatalities and serious injuries as a public health and labor problem, as well as transportation, through a White House Vision Zero Task Force.

We delivered the 20,000+ Vision Zero Petition signatures both in the form of the Vision Zero Petition Book to each DOT policy official with whom we met and via a binder with all of the signatures and the letter to Secretary Foxx (the latter printed for us by the Care2 Petition Site).

Washiington Vision Zero Petition photos 013

 

We also left them with copies of the Vision Zero Petition Book 2016 to deliver to:

  • President Obama at the White House
  • Director Donovan, Office of Management & Budget (OMB)
  • Secretary Foxx, Department of Transportation
  • Administrator Rosekind, National Highway Traffic Safety Administration (NHTSA)
  • Administrator Darling, Federal Motor Carrier Safety Administration (FMCSA).

With President Obama’s copy of the Vision Zero Petition Book, we enclosed a letter which our granddaughter had decided that she wanted to write to the president when she saw the stack of books at our house and asked what we were going to do with them. Here is her letter (dictated to me):

Vanessa's Letter to President Obama

(I thought it was interesting that Vanessa’s drawings of her aunts had no mouths. In fact, it is all-too-true that they cannot speak up on their own behalf. Also, she wanted to see photos of AnnaLeah and Mary to make sure that she got their hair and eye color correct.)

              “Our grandma wants to make the roads safer.” Remembering 2 girls in the aftermath of a truck crash

We talked with DOT policy officials about our petition in which we pleaded, along with over 20,000 other individuals, that they address the extensive traffic safety and public health problem of crash fatalities and serious injuries. At an average of 33,000 crash deaths each year, Death by Motor Vehicle is one of the leading causes of death. We requested that they adopt a Vision Zero Rulemaking Policy and that they seek such authority from the White House through action from President Obama, whom we are asking to:

  1. Set a National Vision Zero Goal.
  2. Establish a White House Vision Zero Task Force to guide us in achieving that goal as a nation.
  3. Sign a Vision Zero Executive Order to ensure that DOT can adopt Vision Zero rulemaking policies, which would allow them to issue and enforce rules and safety standards that genuinely protect human life.
DOT Policy Officials Group Photo March 4, 2016
Blair Anderson, Byron Bloch, Andy Young, Bryna Helfer, Jerry Karth, Marianne Karth, John Lannen, Isaac Karth

Included in our Petition Letter to Secretary Foxx was our request that they apply such a rulemaking policy specifically in two ways–which will address two safety problems of particular concern to us, as well as set the stage for more effectively addressing countless other traffic safety issues. These are the three petition requests:

1. Change rulemaking policy to move away from a cost/benefit model and adopt a more humanistic, rational Vision Zero safety strategy model which will impact all DOT safety regulations;

2. Apply Vision Zero principles initiating rulemaking to require forward collision avoidance and mitigation braking on all new large trucks; and

3. Apply Vision Zero principles by requiring crash test-based performance standards for truck side and rear underride guards.

Due to the circumstances of our crash, we have a particular interest in promoting the improvement of underride protection on trucks so that–upon the collision of a smaller vehicle with a truck–the geometrical mismatch of the two does not lead to the smaller vehicle riding under the truck so that the truck itself intrudes into the passengers’ survivable space. In simple terms, our goal is to bring an end to what should be survivable crashes but which all-too-often lead to horrific injuries and tragic death.

It is our observation and conclusion, based upon investigation into the facts that, whether DOT is actually hampered by a previous Executive Order (12866) or merely assumed to be so, NHTSA generally issues rules that are less stringent than what existing technology has shown to be possible (read that: weak and ineffective).

It was for that reason that we have petitioned for a Vision Zero Executive Order and specifically discussed with DOT policy officials, on March 4, 2016, the preferable means of analyzing the pros and cons of a proposed rule through Cost Effectiveness Analysis (CEA) vs the more-commonly used Cost Benefit Analysis (CBA)–which assigns an economic value to human life.

For a better understanding of this regulatory analysis process, see the enlightening Public Comment on the NPRM for Rear Underride Guards on Trailers by Jerry Karth.

It is our hope that the White House, along with DOT, will seriously consider our petition (Letter to President Obama from the Karth Family & thousands of petition signers) with all of its accompanying documentation of the need for change and act accordingly.

At least it appeared to me that DOT intends to keep their promise to deliver the Petition Books for us. At the end of our meeting, they asked me to sign each book with a personal message to the recipient. I gladly did so, asking them to consider our petition for the sake of AnnaLeah and Mary.

Marianne signing Vision Zero Petition Books at DOT Marianne signing Vision Zero Petition Books at DOT 2

Speaking of AnnaLeah and Mary. . . this gets me back to my earlier reference to our particular crash, which was, of course, due to the failure (for whatever reason) of a truck driver to maintain lane and hitting our car so that it went backwards under another truck. Because the underride guard failed to do its intended job, Mary and AnnaLeah experienced an untimely and unnatural end to their lives.

My question is: Should someone be held accountable for the failure of that federally-required piece of equipment which resulted in two deaths? Is the manufacturer liable to prevent someone from being killed when they collide with a truck? And, mind you, expecting them to do so would not be some pie-in-the-sky kind of expectation. It has been proven that protection is possible from much worse circumstances than are currently required.

IMG_4462AnnaLeah and Mary

Yet, the Judicial third branch of the government has provided little hope for ensuring that the truck/trailer manufacturer will be held responsible for the failure of their product, upon collision with it, to prevent horrible, unnecessary death. I have been reminded of that unfortunate reality again this week as the topic came up again related to our crash.

In fact, upon a simple search of the internet, I found this example of the difficulty of pinning liability upon the manufacturer:

Defendant . . . avers that despite the truth of these facts, it owed no duty to persons such as plaintiff’s decedent who crash into the rear of its trailers. . . . maintains that there is no duty to design, manufacture and sell a trailer which is “accident-proof” that is, able to protect “invaders” or “trespassers” who run into the trailer and later seek legal redress  U.S. District Court for the Middle District of Alabama – 816 F. Supp. 1525 (M.D. Ala. 1993) March 26, 1993.

What?! So there you have it. At least some manufacturers are willing to fight for their right to avoid ethical responsibility for designing their product to be safe to travel around.

Few have been able to bring about a successful judgment against manufacturers, although some have tried: See Beattie v. Lindelof, 633 N.E.2d 1227 (Ill. App. Ct. 1994); Mieher v. Brown, 301 N.E.2d 307 (Ill. 1973), but cf. Harris v. Great Dane Trailers, Inc., 234 F.3d 398 (8th Cir. 2000) (Arkansas law); Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777 (3d Cir. 1992) (Pennsylvania law); Rivers v. Great Dane Trailers, Inc., 816 F. Supp. 1525 (M.D. Ala. 1993); Worldwide Equipment, Inc., v. Mullins, 11 S.W.3d 50 (Ky. Ct. App. 1999); Detillier v. Sullivan, 714 So.2d 244 (La. Ct. App. 1998); Quay v. Crawford, 788 So.2d 76 (Miss. Ct. App. 2001); Garcia v. Rivera, 553 N.Y.S.2d 378 (N.Y. App. Div. 1990); Hagan v. Gemstate Mfg., Inc., 982 P.2d 1108 (Or. 1999); Great Dane Trailers, Inc. v. Wells, 52 S.W.3d 77 (Tex. 2001).

In one case, a court reasoned that:

the manufacturer is obliged to secure the occupants of only its vehicle from that foreseeable harm: the manufacturer does not owe a duty to protect those who collide with its vehicle. See Mieher, 301 N.E.2d at 308-10; but see id. at 310-11 (Goldenhersh, J. dissenting) (arguing that the duty of care should extend to prevent unreasonable risk to occupants, other drivers, and pedestrians).

In my mind, the question remains: Does the manufacturer owe travelers on the road the duty to exercise reasonable care in designing its motor vehicle?

One author takes a look at this question:

Does a vehicle manufacturer owe a duty to design a vehicle with which it is safe to collide? The Illinois Supreme Court said no in the case of an underride accident, where one vehicle rear-ended a truck and proceeded unimpeded under its bed. The decision unleashed an ongoing debate over the concept of “enhanced injury,” where a manufacturer can be liable for defects in its vehicle that cause injuries over and above those that would have occurred from the accident but for a defective design. Illinois vehicle manufacturers have no duty to protect non-occupants who collide with their vehicles

As it stands, it appears to me that, in general, the manufacturing community is prone to protect themselves from legal impunity rather than protect travelers on the road. I would welcome the opportunity to hear differently.

So, how then do we bring about a more responsible solution to this solvable underride problem? In addition to considering how we might impact each of the three branches of our government, we have also sought for, and encouraged, voluntary action on the part of truck/trailer manufacturers–which has met with some limited success. For the most part, the manufacturers tend to take a wait-and-see attitude–particularly when NHTSA is in the midst of rulemaking–rather than take the initiative to simply go ahead and design the best possible protection.

We have worked with the Insurance Institute for Highway Safety (IIHS) and the Truck Safety Coalition (TSC) to bring all interested parties together in an Underride Roundtable this Spring when, on May 5, 2016, we will attempt to cooperatively address this problem–for the sake of all travelers–in memory of those who have already lost their lives needlessly and for those of us who are vulnerable to being the next potential victim of a “roving guillotine.”

In fact, when we were in Washington this week, we met at IIHS with some of the members of the planning group for the Underride Roundtable (Russ Rader, IIHS; John Lannen, TSC, Andy Young, truck litigation attorney/truck driver/truck company owner; Jerry, Isaac, and myself)–taking the opportunity to get some work done in person. One of the ideas, which we were throwing around when brainstorming about how to shape our Panel Discussion, was the need for creating Best Practices for Underride Protection and re-visiting the issue on an ongoing basis.

Byron Bloch had joined us for the meeting. One suggestion he made, during our Roundtable planning meeting, was that IIHS, who is well-known for that crash rating safety program for the automotive industry, develop a 5-Star Crash Rating Program for truck/trailer manufacturers as well.

That idea has grabbed our attention. After all, the IIHS crash testing  of various major trailer manufacturers prior to our crash and continuing in the years following, was a source of revelation to us about the extent of the underride problem and the reality that it was/is a solvable problem.

Furthermore, as I continue to observe the crash testing of passenger vehicles, no matter how safe those vehicles are manufactured, their crashworthiness features are compromised and prevented from going into action when the vehicle collides with a larger vehicle and rides under it. In other words, auto safety improvements are compromised due to a truck safety flaw.

How about a cycle be set up–Jerry suggested this morning–for crash testing of trucks/trailers to assess the success of advances in underride protection? This would provide a means of reliable, comparative, and ongoing feedback to the manufacturers, as well as the buyers of  trailers and single unit trucks, government officials, researcher engineers, safety advocates, attorneys, crash reconstructionists, injury prevention specialists, and travelers on the road.

I ask the question again: How will we address this problem of Death by Underride?

Due to the complexity of the issue, no one is currently held accountable, responsible, or liable for preventing these deaths which occur upon collision of a passenger vehicle with a larger commercial motor vehicle. Remember, we are not talking here about who was to blame for the collision occurring in the first place.

Can we possibly find our way to work together in our great nation through the Executive, Legislative, and Judicial branches of our government–in a cooperative, concerted effort with private industry, research engineers, safety advocates, and the insurance industry– to bring about the best possible protection for We the People?

Can we agree to share the costs of what the solution will require so that the burden of the problem is shifted from the victims, who experience life needlessly cut short or devastatingly changed by horrific injuries, and their families who are faced with unexpected, traumatic, too-often-bitter, and unending grief?

Right this minute, I must admit, I am discouraged right along with the many others who have tried to bring about change for decades. Nonetheless, I choose to remain hopeful that this is not insurmountable and that we are well on our way to victory as we continue to shed light on traffic safety problems and call for truth, justice, and mercy to prevail.

Jerry, Marianne, and Isaac in front of DOT
Jerry, Marianne, and Isaac in front of DOT
Andy Young, Marianne Karth, Jerry Karth, John Lannen
Andy Young, Marianne Karth, Jerry Karth, John Lannen

(Note: All viewpoints expressed above are mine alone and are not meant to imply agreement by any individuals who may have been mentioned. Whether the analysis of the issues at hand are accurate–or unfairly tainted by the emotions of this grieving mother–are left to the reader to ferret out. Marianne Karth, March 6, 2016)