Jerry and I were talking this morning. He had this question. . . even if an underride crash victim is at fault for the crash occurring, don’t they deserve a second chance at life? Do we really approve of an unnecessary/preventable death sentence for their mistake?

For the most part, from what I can see, victims of truck underride crashes, are the ones who bear the brunt of the problem. Even if some of them might be the cause of the crash occurring in the first place, do they not deserve a second chance to make up for their mistake?

Are we unwilling to pay to protect them from the second deadly collision which occurs due to inadequate or non-existent underride guards? Or is the Death by Underride Sentence —  meted out to them by the regulators and manufacturers —  acceptable to society?

Does a driver of a passenger vehicle get the punishment of a Death Sentence for rear-ending another passenger vehicle? Should they? Well, that’s basically what often happens when a car rear-ends a truck.

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

I just found out about a case, in 2000, where a Texas jury found “a trailer defective for not being equipped with side underride guards. Stated another way, a jury has now said manufacturers should equip trailers with something that the government does not require and the customer does not want.”

This article also states, “Between 1953 and 1998, when the current rear underride requirements were implemented, the National Highway Traffic Safety Administration (NHTSA) studied the issue multiple times. One of the questions that needed to be addressed was the potential benefit of such a device. In announcing that rear underride (but not side underride) would be required on trailers, NHTSA estimated that rear guards would save between nine and 19 lives per year (The Federal Register, Jan 24, 1996). How many lives would a side underride guard save annually? We don’t know, but accident research statistics indicate the incidence of side underride is substantially lower than rear impacts.”

The article also commented on the dilemma which the trailer manufacturers found themselves in:

• “Trailer manufacturers take seriously their responsibility to put safe products on the roadways. But after this verdict, we wonder if they are feeling as trapped as a cardboard ballot on Election Day. Only time will tell if the industry is really stuck or if this case is just a dimpled chad.”
• “In the absence of a federal regulation mandating side underride guards, trailer manufacturers are going to find it extremely difficult to produce a trailer that the Laredo jury would not consider defective.”

According to the article,

To sell a trailer equipped with side underride guards, a trailer salesperson would have to accomplish the following:

– Convince the customer the safety benefits would be worth perhaps an additional $1,000 cost per trailer and an increase in tare weight of between 800 and 1,000 pounds.

– Keep the customer from thinking in terms of how competitive trucking is today and that such a cost or weight penalty would put him at a competitive disadvantage.

– Prove that the height of the guard is just right – low enough to keep out cars and high enough to clear railroad crossings and other obstructions.

– Show that the guard is strong – but not too strong. NHTSA rear underride research in the 1970s concluded rear guards should absorb energy by being weak enough to yield – yet strong enough to stop the car. But we can’t simply apply the rear underride requirements to a side guard because crash dynamics of side underride are completely different from rear impacts. Should the guard be strong enough to withstand glancing blows as was the case in the Maravilla accident, or must it absorb the full impact of a broadside crash at a highway intersection? This is a key point since there are no objective standards, and juries have the right to second-guess engineers and federal regulators.[Note: See my posts on the topic of SIDE GUARDS–Side Guard Posts]

– Point out that maintenance of guards hung along the length of the trailer will be no problem.

– Demonstrate how the side underride guard can coexist with sliding tandems. Prove that it will not create a safety hazard by interfering with routine brake inspections and maintenance, tire replacement, or landing gear operation.

Did I read that right? Convince the customer the safety benefits would be worth perhaps an additional $1,000 cost per trailer. . .  Here we go again, Profit takes Priority over Human Life.

Somehow I can’t seem to feel sorry for them because I know that their problems can be resolved. I hope that they will listen to what is discussed at the Underride Roundtable; it might just help them out of a hard spot. Win/Win.

The National Transportation Safety Board stated this in 2014: “Collisions with the sides of tractor-trailers resulted in about 500 deaths each year and that many of these deaths involved side underride.” NTSB Issues Recommendations to Correct Safety Vulnerabilities Involving Tractor-Trailers

And here is another case from 2006,

Lead counsel Chip Ferguson stated, “The Jury in this case has sent a strong message by rendering the largest verdict ever in this type of case.  They not only found that the Lufkin Industries’ trailer was defective but they also found that the United States government’s safety regulations were inadequate to protect the public from an unreasonable risk of injury and death.  This verdict mandates that both industry and the government fix the problem, and make our roads safer.”  Noting that trailer manufacturing is a multi-billion dollar industry, Ferguson added, “We have an industry that creates $10 billion every year in revenues.  It is time for them to use those resources for something other than lobbying and politicking.  It is time for them to pool those resources to make us safer.”

Co-counsel Chris Coco added, “Lufkin Industries and the entire trailer manufacturing industry knew about the dangers of side under-rides for decades.  Rather than testing and developing solutions, they chose to ignore it, to do nothing.  They used their influence to purchase de-regulation, all at the expense of victims like Kelleigh Falcon.  Her life was ruined because of this.  Her family was torn to shreds because of this.  Lufkin Industries, the entire industry and our government all have her blood on their hands.  It is time for them to clean up this mess.”

And here is a third case, which seems to support the legal obligation of trailer manufacturers to protect occupants of other vehicles which collide with them:

• Background. Maribel Quilez-Bonelli (Quilez) was killed when the hood of her 2004 Jeep Liberty under-rode a dump truck that was stopped in the left lane of an expressway while municipal employees did maintenance work in the area. Quilez apparently realized at the last minute that the truck ahead of her was not moving and she swerved to avoid a collision. However, the driver’s side of her Jeep impacted the truck and the truck’s bumper penetrated the driver’s side roof and windshield of the Jeep, striking Quilez in the face and head. Relatives of Quilez filed a product liability action against Ox Bodies, Inc. and Truck Bodies & Equipment Int’l, Inc., the companies that designed and manufactured the dump body of the truck, claiming that the company failed to properly design or manufacturer the dump truck’s rear guard. The defendants moved for summary judgment or judgment on the pleadings, arguing that the crashworthiness doctrine did not apply in Puerto Rico and that Quilez’s negligent design claim was barred by Puerto Rico law.
• The court then explained that Larsen has been interpreted to mean that manufacturers must be held to a reasonable duty of care in the design of their vehicles in accordance with the state of the art to minimize the effects of the foreseeable hazards of collisions and impacts. The court noted that rear-end collisions are common and the danger of under-ride accidents was well known to truck manufacturers and had been for decades.. . .The better rule, according to the court, and the one favored by the Restatement (Third) of Torts: Products Liability was to hold manufacturers to a reasonable duty of care in the design of rear bumpers so as to minimize the effects of accidents to those who collide with its vehicles.
• Given that foreseeability is the “linchpin” for determining duty in a negligence claim and having determined as part of the crashworthiness analysis that accidents involving other vehicles were foreseeable, the court could not determine, as a matter of law, that Quilez’s negligent design claim was barred by Puerto Rico law.

If cases like these have had favorable outcomes for the plaintiffs, then why have they not made a noticeable impact on the regulation and manufacture of truck underride guards? That is what I would like to know.