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.