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
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
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.
Today, I watched some of the live streaming of NHTSA’s conference, Driving Behavioral Change in Traffic Safety. As I listened to the various speakers and panel discussions, many thoughts and questions went through my mind. . .
The basic question is: What will it take to make a significant reduction in the number of people who die on our roads?
It will take all of us working together.
It will take facing the problem head on.
It will take acknowledging that there is a problem–and the full extent of it.
It will take recognizing that we are all a part of the problem.
It will take talking about it openly.
It will take understanding that crash deaths are not just an expected risk of driving on the road but are to a great extent preventable.
It will take accepting that risky driver behavior is not a personal right but a violation of other people’s right to be protected from reckless behavior.
It will take calling risky driver behavior what it is: RECKLESS.
It will take classifying a vehicle as a weapon and reckless driver behavior as an act of violence.
It will take enacting laws that prohibit a full range of reckless driving behaviors and then enforcing those laws with stiff consequences.
It will take understanding that changing personal behavior is not the only way to reduce crash deaths and learning how to work with others who are addressing vehicle and environment risk factors.
It will take recognizing and embracing that preventing crashes from happening is not the only thing which needs to be addressed but that we can also reduce the severity of those crashes so that death is not the end result.
It will take manufacturers and employers and consumers and law enforcement and engineers and countless others to recognize how their individual decisions and actions contribute to not just crash statistics but to the unnatural ending (or saving) of life for people with names and faces and hopes and dreams and other people who care about them whose lives will be changed forever.
And it will take us all realizing that someday soon one of those names and faces could very well be ourselves or someone whom we love and will miss dreadfully. And that it could have been prevented.
It will take listening to the hundreds of thousands of families who have lost loved ones due to traffic crashes and apologizing, as a society, for letting them down–for not addressing it as the priority it should be. Bringing healing and hope that their frustrations and anger and grief are being heard and that their petitions for change are being taken seriously. Giving them a voice and channeling their zealous energy in positive ways which can in fact be a powerful tool for changing the future and moving us more surely Toward Zero Crash Deaths, Serious Injuries, and Fear of Traffic.
And beyond that, I firmly believe that, in order to move as a nation Toward a Vision of Zero Crash Deaths, it will take take a commitment to a National Vision Zero Goal and a coordinated endeavor of government, private industry, workers of every skill imaginable, and informed citizens. Anything short of this will be disjointed and less effective, which translates into — not simply unmet project goals but — people dying. It is not an impossible dream but it will require sacrifice and will be well worth the effort.
I kept writing down ideas as they came to me during the various presentations and discussions and emailing them to the event coordinator. I did not hear my questions being addressed. But I am going to record them (in their raw intensity) here:
After losing my 2 youngest daughters, AnnaLeah (17) and Mary (13), due to a truck underride crash on May 4, 2013, I have been calling for a National Vision Zero Goal (along with over 20,000 Vision Zero Petition Signers):
Set a National Vision Zero Goal (it is not listed as an issue on whitehouse.gov)
Establish a White House Vision Zero Task Force
Sign a Vision Zero Executive Order to authorize Vision Zero Rulemaking Policies
These are the questions which I have been sending to the event coordinator today:
What are you doing to address the reality (which I learned in 1979 at the University of Michigan/School of Public Health,Health Behavior/Health Education) that fear is not always the best motivator? The attitude that “it will never happen to me”?
Will the addition of more and more technology for collision avoidance give people the false idea that they don’t have to pay as much attention, i.e., counteract attempts to focus on driver behavior?
How about an equivalent of Volunteer Firefighters? Can we train and deputize citizens to pull over unsafe drivers?
For motor vehicle-related injury prevention. What about Second Collision problems? Like auto safety defects or truck UNDERRIDE deaths and serious injuries? Is the Task Force addressing this? What role could they play to prevent these preventable deaths?
Not only does traffic safety involve the driver, vehicles, and environmental factors, but it does so in three phases–pre-event, event, and post event. Every one of these factors can be addressed to prevent or reduce the severity of the event. Remember Dr. Haddon’s matrix which Adrian Lund (IIHS) shared (similar to this one, Haddon Matrix) (also, see Care for Crash Victims):
How about requiring driver training programs to set up volunteer coaches or mentors for drivers with permits to aid parents in this vital life skill development?
How about change DMV written tests for driver license and renewal? Ours in NC was FULL of numbers and statistics regarding DUI consequences . How about make it more graphic and stick-in-the mind friendly? I spent my time preparing for it by memorizing numbers.
Take a tip from 1954 and Jimmy Stewart. Start training at elementary level only update it to use the technology that the youngest generation is immersed in: https://www.youtube.com/watch?v=Uj9Iuxw2_wk
How about design electronic games to raise awareness and teach safe driving behavior?
How about clear up the confusion about whether Marijuana IMPAIRS driving?
How can we find ways to remind people that driving choices can lead to forever results? Find ways to touch not only the head but the heart.
Never Come Back Once a loved
one becomes a motor vehicle crash statistic, it will be too late–they will
How about using interactive learning methods of raising awareness?
When I interviewed my 9 and 6 year-old grandchildren about how they thought underride guards could be stronger, they showed amazing awareness and creativity.
Put people in situations where they are faced with thinking through the results of driving choices and also purchase of safe equipment and increase their demand for affordable safer vehicles from the automotive industry.
In group settings. In game apps. Make use of church youth groups to address these issues.
REQUIRE phone manufacturers to advertise safe driving behavior
Why not set a National Vision Zero Goal to raise American awareness?
People need to know that Death by Motor Vehicle is a preventable problem but it will take us all to work together to defeat it.
They should be just as concerned, if not more, about the Violent Weapon of Destruction that is put into the hands of drivers everywhere 24/7.
What about the use of more electronic road signs to alert drivers to upcoming traffic situations? And more things like rumble strips?
People need to know that they are not in control so that their driving behavior reflects that knowledge.
Use Cass Sunstein’s idea for example for phone usage. Default Setting. Turned off when in a moving vehicle. Not sure if that is technologically possible but something like that.
Default RULE/traffic law. If caught texting or talking on cell phone while driving, get a point on record.
Set up a Consequence. Have their TICKET posted on social media.
Loss of Reputation/Respect.
ILLUSION OF CONTROL
Make salient and visible How can we give visibility nationally and locally the extent of the Traffic Safety Problem?
Electronic signs on highway to alert drivers to traffic conditions
Choice architecture: use existing social groups to create localized indication of traffic safety norms, church youth groups, MOPS groups, Preschool parent groups LET them hear from families of crash victims. Give these people visibility.
Can we get TRAFFIC SAFETY as an issue on whitehouse.gov?
Can we get President Obama to set a Vision Zero Goal, establish a White House Vision Zero Task Force which would include an interdisciplinary group, and sign a Vision Zero Executive Order?
Why not set up Community Vision Zero Activist Groups?
Are there strategies raising awareness about MICROSLEEP?
MAKE IT A NATIONAL Vision Zero Goal!!!! Apply the resources.
Put a face to the problem!!!!! Let the victims and their families be honored and remembered on a regular basis. We are ALL vulnerable.
Create a National Vision Zero Goal using social media and modern technology.
I know someone who could design immersive reality simulation models to show immediate negative consequences of reckless driver behavior choices (as suggested by Dr. David Abrams).
Could this group of people gathered together in Washington at this conference please, please, please call upon President Obama to set a National Vision Zero Goal, establish a Vision Zero Task Force, and sign a Vision Zero Executive Order? If he does not do those things, who else will lead us in such a United Effort? Without such a vision, the people will indeed perish.
When we met with DOT policy officials on March 4, we found that we were in agreement on a very important perspective regarding crash fatality causes and solutions: What we need to be addressing is not one thing or another, e.g., improve underride guards OR develop crash avoidance technology. No, no, no. It is not a case of either/or. It is definitely both/and!
Our crash was not an accident and many factors were involved in what came about that day. They all need to be addressed.
My heart is broken and anything less than genuine pursuit of every avenue for safety advancement only serves to deepen the pain.
AnnaLeah, Mary, Marcus, and Vanessa, Spring 2012, Grafa Park, Midland, Texas
Weeping Willow Memories: Mary and AnnaLeah enjoyed a spring-like day in the winter of 2009 at Grafa Park in Midland, Texas. The branches of a weeping willow tree became the setting for the unleashing of their imagination. (Preserved for us by their sister, Susanna Karth)
Well, now I have found out about an interesting requirement for regulatory rulemaking related to safety standards.
“National Technology Transfer and Advancement Act The National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104– 113, Section 12(d) (15 U.S.C. 272), directs agencies to use voluntary consensus standards in regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standard bodies, such as SAE. NTTAA directs agencies to provide Congress explanations when they decide not to use available and applicable voluntary consensus standards.” TRANSPORTATION RESEARCH CIRCULAR E-C117 The Domain of Truck and Bus Safety Research
Now here’s a question: How would the National Technology Transfer and Advancement Act be interpreted and applied in the case of underride regulatory standards?
First, let’s look at an example related to seat belt assembly compliance testing:
The agency identified an ISO technical report (TR 1417-1974) and an SAE International standard (J384, Rev. JUN94) that have testing recommendations for vehicle seat belt anchorages. Both recommend the use of body blocks, similar to those currently specified in FMVSS No. 210, for applying the required test loads. The alternative strategy the agency is now considering in this SNPRM would continue the use of the FMVSS No. 210 body blocks. Accordingly, the alternative strategy employing the current body blocks is consistent with the ISO report and SAE standard. However, NHTSA has tentatively determined that the ISO report and SAE standard, among other matters, do not specify the positioning of the body blocks referenced in both with sufficient specificity to achieve the goals of this rulemaking. Thus, NHTSA has decided to base this SNPRM on the existing FMVSS No. 210 body blocks rather than explore using new ones, and to develop possible test procedures that make clear how the body blocks are to be positioned during FMVSS No. 210 compliance testing. Federal Motor Vehicle Safety Standards: Seat Belt Assembly Anchorages
Now, let’s look at what the current proposed underride rule for rear impact protection on trailers says:
This NPRM proposes to adopt requirements of CMVSS No. 223, as discussed later in this section. NHTSA’s consideration of CMVSS No. 223 accords with the principles of NTTAA, in that NHTSA is considering an established, proven standard, and has not had to expend significant agency resources on the same safety need addressed by CMVSS No. 223. Rear Impact Guards, Rear Impact Protection,
So, does this mean that NHTSA is choosing to adopt an existing underride standard (Canadian’s rear underride standard) rather than explore existing or future research, or standards from other countries, which might prove that stronger, more effective guards could be manufactured and thus save more lives?
Pourquoi? What would qualify as “available and applicable voluntary consensus standards”? Is this an attempt to avoid having to provide Congress, through OMB, with an explanation? If so, would they have to give an explanation for:
Why they decide to use standards not already being implemented elsewhere? OR
Why they decide not to use proven underride technology?
And what does ” inconsistent with applicable law or otherwise impractical” mean? Is this an insurmountable barrier? For example, does “impractical” refer to the cost/benefit analysis restrictions of Executive Order 12866 which we are asking to be addressed with a Vision Zero Executive Order?
I’m confused. Can this Technology & Transfer Act allow us to make use of advances in technology? Can we not move beyond what someone else has already used as a regulatory standard? Why would we settle for less than the best?
Here’s to hoping this question can get addressed and that the upcoming Underride Roundtable at IIHS on May 5, 2016, will serve as a “voluntary consensus standard body” to clearly and definitively delineate state-of-the-art technical voluntary consensus standards to provide the best possible underride protection in the whole wide world!
And call it the Dragon Underride Protector in honor of my son (who suggested that name and who, as a passenger, endured the same truck/car crash as his sisters and witnessed their deaths due to underride) and in memory of his sisters, AnnaLeah (forever 17) and Mary (13).
If you have not already signed the petition, it will remain open until a Vision Zero Rulemaking Policy is adopted. So sign here: Save Lives Not Dollars: Urge DOT to Adopt a Vision Zero Policy. Then share the petition with someone who has not yet heard about it.
Then, contact President Obama online and ask him to read the Vision Zero Petition Book, which was delivered to him at the White House yesterday.
(Note: When the Contact Form asks you for a Subject, click on Transportation.)
The Public Comment was asking for NHTSA to extend underride protection to the sides of trucks and mentioned that it was the original intent of the underride rulemaking in 1969. This is what the Federal Highway Administration said at that time,
It is anticipated that the proposed standard will be amended, after technical studies have been completed, to extend the requirement for underride protection to the sides of large vehicles.
Imagine! In 1969.
And NHTSA said this, in response to our petition request in 2014 to add side guards:
By initiating rulemaking to consider enhancing related safety standards, this notice grants the part of the petition for rulemaking submitted by Ms. Marianne Karth and the Truck Safety Coalition (Petitioners) requesting that the agency improve the safety of rear impact (underride) guards on trailers and single unit trucks. Based on the petition, available information, and the agency’s analysis in progress, NHTSA has decided that the Petitioners’ request related to rear impact guards merits further consideration. Therefore, the agency grants the Petitioners’ request to initiate rulemaking on rear impact guards. NHTSA is planning on issuing two separate notices—an advanced notice of proposed rulemaking pertaining to rear impact guards and other safety strategies for single unit trucks, and a notice of proposed rulemaking focusing on rear impact guards on trailers and semitrailers. NHTSA is still evaluating the Petitioners’ request to improve side guards and front override guards and will issue a separate decision on those aspects of the petition at a later date.
This was the original intent of NHTSA rulemakers in the 1969 NPRM, Docket No. 1-11; Notice 2.
Imagine. . . when I was 13 years-old in 1969, DOT was doing proposed rulemaking on underride and “anticipated that the proposed Standard will be amended, after technical studies have been completed, to extend the requirement for underride protection to the sides of large vehicles.”
And what has happened between now and then? Certainly not any mandated, and very little voluntary, side guard protection on trucks.
UPDATE, August 21, 2020: Perry Ponder who made this Public Comment and has invented the AngelWing side guard, recently submitted another Public Comment to NHTSA.
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.
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).
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):
(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.)
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:
Set a National Vision Zero Goal.
Establish a White House Vision Zero Task Force to guide us in achieving that goal as a nation.
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.
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.
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.
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.
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.
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 DOTAndy 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)
We arrived back home tonight after an intense two days of meetings in Washington, DC. We shared the highlights with family members who had not gone with us. But I am still sorting out how it went and will write a more in-depth report tomorrow.
Emotions were continuously at the surface–
from the compassion of policy officials as I shared with them how this morning I had reached in the pocket of my coat, which I had forgotten was once Mary’s, and unexpectedly discovered a folded piece of paper which was Mary’s sermon notes taken by her on a Sunday in March 2013–not too many weeks before the crash
to the numerous times when I would speak out with strong conviction about an area of traffic safety which needed to be understood and addressed.
Meeting with Senator Johnny Isakson (R-GA)
All in all, I am exhausted but thankful for those who joined with us and for the opportunity to have delivered 20,000+ signatures to government officials with the hope that they will heed our petition and act with compassion and wisdom.
