Over the past several decades, consumers have been bombarded with advertisements extolling the safety virtues of motor vehicles. In the 1980s, companies like Ford Motor Co. promised: ”Ford Motor Co.'s product safety philosophy requires that it design its products not only to meet or exceed all applicable laws and regulations, but also to advance the state-of-the-art wherever practicable.”

In 2010, Toyota made this promise: “Everyone deserves to be safe. No matter who you are or what you drive, everyone deserves to be safe.”

In 2016, Honda promised consumers that its: “collision mitigation braking system can alert you when a potential frontal collision with a vehicle or pedestrian is determined and reduce your vehicle speed when a collision is deemed unavoidable to help minimize collision severity.”

But, what happens when these promises, these representations, these design goals are not met? People are injured. It turns out that Ford did not then, and does not now, build all its model cars and trucks with the “state-of-the-art.” And Toyota has not equipped every model car and truck with the same safety features. Honda's CMBS does not always provide the warnings and braking needed to minimize collision severity. Likewise, many over-the-road trucks and motorcycles are sold without brake systems to help prevent skidding and crashes.

Broken promises, or the failure to equip, or the failure of a safety system to perform as promised, can lead to catastrophic injury or death and result in products liability litigation. Whether the action is pursued based on broken promises—i.e., “the consumer expectation theory of defect” or because of the manufacturer's failure to equip the product with an essential safety system—i.e., “the risk-utility definition of defect”—the practitioner must understand the underlying technical and legal elements of these claims.

Failure To Equip Litigation

Modern safety technology has placed the vehicle industry in a position requiring that it constantly evaluate the benefits versus costs in developing or subcontracting with suppliers to develop safety features essential to reduce the risk of accidents or ameliorate the chances for serious injuries in these accidents. Once these systems have been developed, each product manufacturer must then decide whether or not to add these features as standard equipment or to offer them as optional components. Time and time again, the vehicle industry has demonstrated their institutional reluctance to provide across-the-board safety improvements; instead, they have chosen to either include these features as standard devices only on their most expensive models or to offer these features with optional “packages” and charge consumers a huge mark-up. When the latter occurs, most often the uninformed consumer is never informed at the dealership of the availability of these add-on features (because dealers need to sell the vehicles in their inventory) or they are discouraged to obtain these features because of the added expense. Here are some prominent examples offered as options or only available on limited trucks, motorcycles, cars, SUVs and vans:

• Electronic stability control (ESC), traction control and ABS brakes on motorcycles.
• Optional integrated booster seats—built into the second row and which provide superior protection for kids—in cars, SUVs and vans.
• Rearview camera/rear obstacle detection system.
• Semi-autonomous crash mitigation radar/camera systems for cars, motorcycles and heavy-duty trucks to detect how far the front bumper is from approaching slow moving or stationary objects and to warn and apply the brakes to other cars.
• The blind-spot monitoring systems; these systems alert the driver when another car is in the vehicle's blind spot—changing lanes, backing up, etc. In some cases, if the driver ignores the alert and starts to change lanes, the car will make it harder to turn the wheel and sound an alarm.
• Rollover air bag curtains.

These circumstances raise a host of legal questions about liability when a consumer is injured because her vehicle did not have an available safety feature, including the following:

• Should a product manufacturer or the retailer be held liable (in negligence or strict liability) for marketing a vehicle without additional safety features offered as optional equipment?
• Should the product manufacturer or the retailer who decides to distribute some models with and others without a safety feature have a duty to provide consumers with sufficient information to make an informed decision before the purchase of the product?
• Under these circumstances, is strict liability an appropriate theory of liability or should this type claim require proof of negligence?

In 1982, the U.S. Court of Appeals for the Third Circuit affirmed a finding of defect because the product was marketed without an optional roll cage. The court observed that when a manufacturer sells one of its products with a safety device but not another, the question of defect is left to the jury. Providing ROPS as standard equipment on some products ” … reflects the manufacturer's judgment that skid loaders with a ROPS will not be unduly expensive or inconvenient to use, and that for safety's sake a loader tractor should come equipped with a ROPS. Without a ROPS, a loader tractor falls short of the optimal design; the defect is not cured because the removal of the safety device is specifically requested by the purchaser, see Hammond v. International Harvester, 691 F.2d 646, 651. In other words, evidence that a manufacturer markets optional safety features can, by their very existence, demonstrate a defective design when the product is furnished without this feature. Similarly, the New York appellate division recently affirmed a verdict of product defect and negligence against a rental company for failing to include as standard equipment an optional door to prevent ejection (front-end loader) during usage, as in Fasolas v. Bobcat of New York, 150 A.D. 147 (2017). And, if the product is deemed defective without the optional safety feature, one court has ruled that the fact that the consumer or the retailer ordered the product without the feature cannot serve as a defense, see Robinson v. International Harvester, 358 N.E. 2d 317 (Ill. App. 1976). Finally, one of the more interesting fact and legal issues is the culpability of a retailer or manufacturer for failing to fully inform the consumer of dangers associated with the product as sold without the optional safety device. In Brito v. County of Palm Beach, 753 So. 2d 109 (Fla. App. 1998), the court reversed summary judgment and held that the jury must decide whether or not the retailer is liable for failing to fully inform the consumer of the dangers associated with the sale and installation of oversized wheels on the Jeep—associated with an increased risk of a rollover. So too, shouldn't vehicle dealerships be obliged to tell consumers that—for example—they can buy a car with safety features that will save lives, rather than simply select a poorly equipped model that's sitting on the lot? Shouldn't a motorcyclist be told of the Honda or Yamaha motorcycle in the show room with ABS brakes as an alternative to buying a different model without this life-saving feature? See Pacific Indemnity v. Therm-O-Disc, 476 F. Supp. 2d 1216 (U.S. D. New Mexico 2006) (Strict liability on failure to equip). This theory of liability is akin to the duty to provide an informed consent in the medical malpractice context. Likewise, the manufacturer or retailer's failure to disclose information vis-à-vis a warning needed to minimize the risk of harm rests upon the product distributors' awareness of a flaw in the product or the omission of a safety feature resulting in the sale of a defective vehicle, see Inzerilla v. The American Tobacco, 2000 WL 34016364, *6 (N.Y.); Seeley v. Cincinnati Shaper, 606 A.2d 378, 384 (N.J. App. 1992) (Product suppliers have a duty to warn of a danger associated with a product's design or usage without an appropriate safety device—a point of operation guard.)

Broken Promises Litigation

The consumer expectation test (CTE) defines a “defective condition” as a condition that arises during normal use which is dangerous beyond the reasonable consumer's contemplation. In gauging whether a product's challenged condition is defective, it is germane to consider: the nature of the product, the identity of the user, the product's intended use and intended user and any express or implied representations by a manufacturer or seller relevant to assess the consumer's expectations. “The commercial advertising of a product will be the guiding force upon the expectations of consumers with regard to the safety of the product and is highly relevant to a formulation of what those expectations might be,” see Leichtamer v. American Motors, 424 N.E.2d 568, 578 (Ohio, 1981). Current market practices among vehicle manufacturers and retailers often include TV and print ad promises of safety features “unfulfilled.” For example: [Jeep Cherokee 2015 Owners' Manual, p. 47].

“The forward collision warning (FCW) system with mitigation provides the driver with audible warnings, visual warnings (within the EVIC/DID), and may apply a brake jerk to warn the driver when it detects a potential frontal collision. The warnings and limited braking are intended to provide the driver with enough time to react, avoid or mitigate the potential collision.”

• FCW monitors the information from the forward-looking sensors as well as the Electronic Brake Controller (EBC), to calculate the probability of a forward collision. When the system determines that a forward collision is probable, the driver will be provided with audible and visual warnings and may provide a brake jerk warning.
• If the driver does not take action based upon these progressive warnings, then the system will provide a limited level of active braking to help slow the vehicle and mitigate the potential forward collision. If the driver reacts to the warnings by braking and the system determines that the driver intends to avoid the collision by braking but has not applied sufficient brake force, the system will compensate and provide additional brake force as required.”

The 2015 Jeep system failed to live up to these promises. The NHTSA published a report which showed that at 12 mph, the Jeep was unable to stop before striking a stationary vehicle at 8 mph, and at 25 mph the Jeep struck the stationary vehicle at 18 mph. See, NTSB Special Investigation Report, NTSB/SIR-15/01 (2015), p. 29. The Subaru Legacy stopped completely without impact at both speeds. The failure of the product to perform as represented gives rise to the “consumer expectation-representation” approach to product defect—focusing on the images of a product that a manufacturer portrays about its safety, as in McCathern v. Toyota Motor, 985 P.2d 804 (Or. App. 1999).

Conclusions

The marketing of safe products should ordinarily include all the available safety features warranted to protect consumers from harm. When a manufacturer decides to make safety an option, then it takes the risk that it will be liable for harm caused by putting profits before safety. Further, when a retailer is aware of important safety features offered by the manufacturer, but not furnished as standard equipment, it seems incumbent on the retailer—with superior knowledge—to provide the consumer with necessary information to make an informed purchase. And, absent that information, the retailer may be exposed to liability. When companies tout the safety of their vehicles or develop safety features they know will lessen the risk of harm, common sense and traditional tort principles dictate that these features be incorporated into the finished product or authorize tort liability when unnecessary injury arises.

Larry E. Coben, a shareholder at Anapol Weiss, handles products liability cases at the firm.