I always have a mixture of cases going on at the time, and lately I’ve been spending a lot of time on automobile crashworthiness cases, including both structural integrity cases and airbag cases. The work reminded me to get back to a subject I’ve been meaning to write about for a while: the ins-and-outs of side-impact lawsuits against car manufacturers.
About one-third of occupant deaths occur in side impacts. These days, most cars have decent anti-intrusion measures (more on that in a minute), so much of this litigation now focuses on failures of side-impact airbags, and I’ll spend most time on those. They’ve been standard in the automotive industry since the early 2000s, and they go a long way towards reducing those deaths and serious injuries, particularly brain injuries, by protecting occupants’ heads from striking the windows or the pillars — so long as they actually work when needed.
The Basics of Crashworthiness, Intrusions, And “The Second And Third Collision”
To understand these side impact cases, we first need to cover some essentials. “Crashworthiness” refers to the ability of a vehicle to protect its occupants in the event of a crash. The NHTSA has a whole section of its website devoted to the issue.
Car manufacturers can be held liable where they used an inferior design despite the availability of safer, practical alternatives that would have better protected the injured person. Perhaps the most well-known crashworthiness lawsuits relate to SUV rollovers: those cases aren’t just a matter of the SUVs being unreasonably prone to rolling over, they also implicate the failure of the SUV to withstand the forces at work in a rollover. The technical term is “roof crush,” which is what happens if the pillars (the parts that hold up the roof, often called the A, B, and C pillars) and the window glass (which itself helps support the roof) aren’t strong enough to hold up the roof when the car is rolling or upside down. (See this report from Public Citizen for more on roof crush.)
You can see the benefits of 50 years of crashworthiness improvements — like airbags, 3-point seatbelts, and better structural integrity for the passenger compartment — in this amazing video produced for the 50-year anniversary of the Insurance Institute for Highway Safety, in which they crashed a 1959 Chevrolet Bel Air into a 2009 Chevrolet Malibu:
That particular crash is called a “moderate overlap frontal test,” which is specific to the IIHS, but not yet required under the federal NHTSA standards.
We’re off-topic here — this post is about side-impacts, and the video is a frontal impact — but it’s important to know all of that background to understand what else is going on in a car during an accident, and thus to understand what improvements like side airbags do in addition, and thus why they’re important.
In the video above, notice a critical difference between the 1959 Chevy and the 2009 Chevy: the 2009 model crumples around the occupant space, whereas the 1959 crumples into the occupant space. That’s referred to as “intrusion.” Anti-intrusion measures, like door bars and safety cages and other innovations developed first in racing, are the most important difference between modern cars and classic cars. All the seat belts and airbags in the world aren’t going to go a thing for people if there’s a serious “intrusion” into the passenger compartment.
As you can tell from that video, there was a time when even big, hulking vehicles like a Bel Air would allow significant intrusion in an accident. These days, you would reasonably expect any car made since the mid-1990s — when the bulk of the NHTSA standards were significantly improved — to withstand intrusion in the bulk of automobile accidents at or below a 40 miles-per-hour speed differential.
Assuming intrusion has been limited, the next issue relates to the forces experienced by the passenger, i.e. the acceleration and deceleration they experience, and the objects inside the car they might strike — like, for example, how a driver will impact the steering wheel in a frontal impact.
That impact — when an occupant, still moving with inertia at the speed the car was traveling, hits something in the car — is often called “the second collision.” There’s a “third collision,” too, when a person’s internal organs, particularly their brain, liver, spleen, and heart, keep moving due to their inertia. We’ll come back to those terms; you can read more about them here.
How Do We Tell If A Car Is “Unreasonably” Unsafe In A Side Impact Collision?
Car companies are held liable for selling cars that are unreasonably unsafe. But how do we say whether a car is “unreasonably” safe or not?
First, think of how you test a car’s safety in a crash. Over the past few decades, the National Highway Traffic Safety Administration (“NHTSA”) has issued, and improved over time, a variety of Federal Motor Vehicle Safety Standards and Regulations, known as the “FMVSS.” FMVSS 214, found in 49 C.F.R. § 571.214, has for nearly twenty years required car manufacturers simulate side-impact crashes on a particular car model by way of a test dummy seated in a car that is then hit by a “deformable movable barrier” which is supposed to simulate the front end/bumper of the oncoming car. There’s also another test involving a static barrier, and a new test as of 2009 involving a simulation of a car sliding into a pole.
The FMVSS 214 has requirements car manufacturers must meet — i.e., maximum levels of force allowed in certain accidents at a certain speed — but those standards are merely the minimum that a car manufacturer must do to sell the car in the United States. A car manufacturer can’t just barely meet the FMVSS 214 standards and avoid responsibility for preventable injuries, they’re required to use the reasonable design and manufacturing improvements of the day. Not necessarily “state of the art,” a loaded and ambiguous term, but rather the improvements that are reasonable and practical under the circumstances. The FMVSS 214 standards are just one of the ways that we measure how one car stacks up versus another.
The IIHS has its own side impact testing, which you can learn about here:
The FMVSS 214 moving barrier test, and the IIHS versions, produce a whole bunch of data about the forces in the crash, with measurements at the ribs, spine, and pelvis, that together form a composite number called the Thoracic Trauma Index (“TTI”). The FMVSS 214 test is phasing in — and the IIHS and car companies have used for years —another set of data for the head specifically that is compiled into the Head Injury Criteria (“HIC”). Together, the data helps us predict the injuries a real person would suffer in the accident; the TTI and HIC numbers are particularly important in figuring out the damage of the “second collision” and “third collision” we discussed above.
Mitigating Side Impact Traumatic Brain Injuries, Spinal Cord Injuries, And Deaths With Anti-Intrusion Measures
As I mentioned above, the biggest difference between cars today and cars from fifty years ago in side-impacts are the 3-point seatbelt and the anti-intrusion measures. When we look at a potential side-impact crashworthiness case, the first thing we do is examine the intrusion into the occupant space. There are a whole bunch of engineering improvements that can be used to reduce intrusion, such as:
- Strengthening the rocker and the floor pan with high-strength steel, rigid-foam, and other improvements to reduce bending and compression
- Install cross members in the floor pan and roof to add support, like how door bars work with pillars
- Ensure doors overlap with other structural components, to keep them from intruding inward
- Use laminated side-window glass, instead of tempered glass, because it can withstand greater forces
- Use wraparound seats with belts and pre-tensioners on them, to prevent passenger movement in an accident
- Add energy-absorbing foam in the interior
You can read about some more details here. All of those will help prevent the “first collision” from touching the passenger at all, reduce the forces at work in the “second collision,” and thereby also reduce the forces in the “third collision.”
The Types And Purposes Of Side Impact Airbags
Airbags are, of course, one of the great automotive safety innovations of the past fifty years. (Read about their history here.) “Frontal” airbags — the ones that deploy out of the steering wheel to protect the driver or out of the console to protect the front-seat passenger — dramatically reduce the injuries suffered by unbelted persons in a frontal impact, and significantly reduce the injuries suffered by many belted passengers. There’s a whole world of frontal airbag defect cases out there, but let’s put those aside for a separate post and move on to side impact airbags.
Assume a lower-speed case (say, under 50 miles-per-hour speed differential) without too much intrusion into the passenger cabin, one of the core issues becomes the injuries caused by the second collision — and if a side airbag would have reduced them. There are two main types of side airbags: the side torso airbag and the side curtain airbag.
The side torso airbag is very similar to the frontal airbag, with a round or rectangular shape. It inflates right next to your body to prevent you from impacting the door (or the door impacting you) with as much force, and thus it reduces the acceleration / deceleration in the accident, which is what typically causes the injuries.
The side curtain airbag fills up the space between the occupant’s head and the window. That provides two types of benefits: it prevents the occupant’s head from hitting the window (the causes of thousands of traumatic brain injuries every year), and it prevents the occupant from being ejected during an accident, which is common in rollovers, even if the passenger is belted (because the seat belt can fail or the passenger can be twisted out of it by the rolling).
Based on the available research, the side curtain seems to be the more important one by the numbers. Last year, a group of researchers combed through two crash injury databases and found that “occupants in vehicles with a deployed [side-impact airbag] designed to protect the head had a 30% lower risk of head injuries with an Abbreviated Injury Scale score of 2+.” The side torso airbags didn’t seem to help much. The IIHS has reached similar conclusions.
There are two main types of side airbag lawsuits: design defect cases, where the car could have had a side airbag but didn’t, and non-deployment cases, where the airbag failed to go off in a serious accident.
The First Theory Of Side Impact Airbag Lawsuits: The Lack Of A Side-Impact Airbag
Side-impact airbags are fairly new, compared to other crashworthiness technologies. The side torso airbags began with Volvo in the mid-1990s, and the side curtain airbags began with BMW (as the “Head Protection System”) in the late 1990s. In 1998, the NHTSA changed one of its safety standard (FMVSS 201, if you’re curious) to properly measure the benefit of side curtain airbags, and after that all the other manufacturers joined in, like Toyota, Honda, Ford, GM, Chrysler, and so on.
As the IIHS’s website shows, by 2001, just under a third of cars, trucks, and SUVs had as standard or optional equipment side-impact airbags that would protect the head. The design was thus clearly feasible, practical, and economically sensible — indeed, by 2004, more than half of all cars had head-only or head-and-torso side-impact airbags standard or available as an option.
Once you reach that point of widespread adoption, it’s hard for car companies to avoid crashworthiness claims, because there’s no good reason to avoid putting them on the car other than to save a couple bucks. Consumers want and expect each car to be similar in crashworthiness as the comparable cars of that price range and function. Indeed, the NHTSA reported in a study that “[Thoracic Trauma Index] improvements, torso bags and head-curtain air bags could have saved an estimated 2,934 lives in calendar year 2003 if every car and LTV [i.e., larger, heavier, taller vehicles] on the road had been equipped with them.”
One such example involves the 2003 Mitsubishi Eclipse. As a federal court recounted, “[w]ithout a [side torso] airbag, the 2003 Eclipse performed worse than its 2003 Chevy and Dodge sister platforms and worse than previous Eclipse models. Only with an airbag did the 2003 Eclipse show safety results closer to that of its sister platforms and its previous Eclipse models.” Aguirre v. Mitsubishi Motors N. Am., Inc., No. 3:11-cv-00225, 2012 U.S. Dist. LEXIS 140834, at *18 (M.D. Tenn. Sept. 28, 2012). In other words, due to the design of the 2003 Eclipse, it somehow did worse than other cars built on the same platform — a defect that could only be remedied by the inclusion of a side-impact airbag, but Mitsubishi only made the side-impact airbag optional, rather than standard.
Make no mistake, though: these “lack of a side-impact airbag” cases are very difficult, given difficulties in proving that the absence of the airbag made the car defective as compared to merely less safe.
The Second Theory Of Side Impact Airbag Lawsuits: The Failure Of An Airbag To Deploy
These are the most common cases. In these cases, the car was equipped with a side-impact airbag, but it failed to deploy, typically for one of three main reasons.
First, it could be a simple electrical wiring failure. Most of these failures aren’t like the wire faults you see in homes. Rather, they’re design errors. For example, in many cars, the wiring for the airbag is configured in a way that the wire can be severed before the airbag sensors detect the rapid change in movement, preventing the airbag from ever being trigger. Other times, specialized pieces like the “clock spring,” which is the device that allows the wheel to turn while still maintaining an electrical current, are broken, and there’s no way to tell until an accident occurs. Every couple of months there’s another major manufacturer recalling cars for some sort of wiring problem, often one relating to the wiring in the seat or the door (because those parts move).
Second, it could be an airbag sensor failure. Sometimes, the airbag sensors themselves, which are supposed to detect rapid acceleration or deceleration, are broken. Other times, the sensors work, but the computer programming is defective; e.g., sometimes the airbag control module simply fails to process the data correctly, and sometimes the airbag is set at too high a threshold before deploying. Finally, in many cars, the manufacturer has skimped on costs by not installing enough sensors, so that none of the sensors is able to detect how severe the accident truly is.
Third, sometimes the airbag fails. In these cases, the sensors detected the crash, the control module commanded the airbag to deploy, but the airbag didn’t deploy. These problems are typically caused by some sort of quality control problem at the manufacturer — e.g., something’s wrong with the sodium azide (NaN3) or potassium nitrate (KNO3) in the airbag itself. In 2012, for example, Honda and Acura recalled a variety of models because “An incorrect propellant mixture was prepared when manufacturing the initiator component of the side-curtain airbag inflator.”
Summing Up Side-Impact Crashworthiness Lawsuits
All of the above is, of course, a simple overview — the cases themselves are far more complicated. The car companies set aside millions of dollars to defend these cases, coordinate with one another and exchange information, and have hundreds of engineers on speed-dial ready and willing to say anything to help them.
These cases are also enormously expensive. I’ve never seen a crashworthiness case pursued where the plaintiff’s lawyer spent less than $150,000. Usually, it’s more like $250,000 or more — and you might end up losing before trial, at trial, or on appeal, after investing all that money and thousands of hours of attorney time. As a consequence, these cases typically aren’t worth pursuing unless the plaintiff suffered severe, permanent injuries or death. Anything less than a traumatic brain injury or spinal cord injury is unlikely to produce the sort of settlement or damages award that will make the case worth the injured person’s time and the lawyer’s investment.