The advancement of collision avoidance technology opens new areas to find compensation for seriously injured plaintiffs.

On July 14, 2019, a truck plowed into stopped traffic in Indianapolis, igniting a fiery crash that involved numerous vehicles and resulted in multiple fatalities. It happened before on April 26, 2019, near Denver; Nov. 14, 2018, in Berks County and Oct. 12, 2018, near Harrisburg. The headlines and collisions were nearly identical. Each collision, involving a distracted driver, could have been avoided or mitigated with existing safety technology.

Although existing safety systems have the demonstrated ability to save the lives of motorists and pedestrians, and the technology has been around for many years, these systems are optional or not available in many vehicles. We know these safety systems work. They are standard in some vehicles. The question is, can the auto manufacturer be held liable for failing to equip all its vehicles with this safety technology?

Safety Systems in Motor Vehicles

The installation of even the most basic safety systems in motor vehicles took decades. Seat belts were a known technology long before they were common in vehicles. Lap seat belts were introduced in 1950. Three-point safety belts were introduced by Volvo in 1958. These systems were not standard until Congress acted in 1966 and passed the National Traffic and Motor Vehicle Act that required automakers to put seat belts in every car they built. Motor Vehicle Safety Standards, 49 USC Chapter 301, took effect in 1968. The National Highway Transportation Safety Administration (NHTSA) estimates seat belts decreased the number of crash fatalities in a car by 45% and serious injuries by more than 50%.

The implementation of airbags evolved along a similar timeline. A "safety cushion assembly for automotive vehicles" was patented by John Hetrick in 1953. He sent sketches of the device to major automobile manufacturers. He received no response. Ford and GM began installing air bags in select vehicles during the 1970s, but experts questioned whether airbags could cause more problems than they solved. The industry fought efforts to make airbags required equipment. As airbag technology improved, manufacturers increasingly installed them. By the time the Intermodal Surface Transportation Efficiency Act of 1991 was passed, airbags were a fairly common feature in vehicles. Beginning in 1998, manufacturers were required to install airbags in all passenger vehicles they manufactured. NHTSA estimates that airbags saved more than 50,000 lives between 1987 and 2017. In frontal crashes, airbags reduce driver fatalities by 29%. The combination of an airbag plus a lap and shoulder belt reduces the risk of death in frontal crashes by 61%.

For good reason, it is now impossible to purchase a new automobile without these safety devices. The law's response to the failure to include these mechanical safety devices was the crashworthiness doctrine that holds a manufacturer responsible for the enhanced injury caused by the failure to have these devices.

Technological advancements in microchip processing, radar and visual tracking have resulted in safety systems more revolutionary than seat belts and airbags. Safety systems like sea tbelts, airbags, force-absorbing collapse and side impact beams are mechanical solutions designed to protect occupants within the vehicle in the event of a crash. Modern accident avoidance systems prevent the crash from ever happening.

Newer safety systems include forward collision avoidance technology, lane departure warnings, blind spot detection and back-up cameras. According to a 2019 study, forward collision warning systems with autobrake decreased rear-end collisions with injuries by 56%; lane departure warning technology decreased single vehicle sideswipe and head-on crashes with injury by 21%; and blind spot detection reduced lane-change crashes with injuries by 23%.

Frontal collision avoidance technology (FCAT) with automatic braking is arguably the most obvious and effective of this lifesaving technology. FCAT utilizes a system of cameras, radar or lasers that scan the road ahead, detect a potential forward collision with an object, warn the driver and apply the braking system to decelerate the vehicle to avoid or mitigate a collision. While manufacturers experimented with collision avoidance systems since the late 1950s, significant advances did not occur until the mid-1990s. The technology began appearing in earnest between 2004–2012 as manufacturers introduced the technology into their higher-end luxury models. Current systems vary in cost and capability. The cheapest and simplest are camera-based and generally can stop the vehicle before impact at low speeds. More sophisticated systems can avoid collisions at higher speeds. According to the U.S. Department of Transportation, the cost for an FCAT system in a heavy truck is reportedly between $2,500 and $4,000.

Safety Should Not Be Optional

The National Transportation Safety Board estimated that almost half of all two-vehicle crashes involved a rear-end collision, claiming about 1,700 lives per year and causing 500,000 injuries. NTSB Special Investigation Report PB2015-104098, May 19, 2015. As many as 1.9 million total crashes each year could be mitigated or prevented if all vehicles were equipped with forward-collision systems. If a certain safety technology is known and proven to decrease the likelihood of a violent collision by as much as 56%, shouldn't that safety system be mandatory in all vehicles?

Courts have long recognized that safety is required, and courts and juries get a say in deciding if a product was safe. In Webb v. Zern, 220 A.2d 853 (Pa. 1966), the Pennsylvania Supreme Court adopted Section 402A of the Restatement of Torts Second. It reads pertinent part: "One who sells any product in a defective condition unreasonably dangerous to the user or consumer … is subject to liability for physical harm thereby caused to the ultimate user or consumer … if … it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold." Two years after its adoption of Section 402A, the Supreme Court held that "lack of proper safety devices can constitute a defective design for which there may be recovery." Bartkewich v. Billinger, 247 A.2d 603, 605 (Pa. 1968). In Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014) the Supreme Court reaffirmed that Restatement 402A governs products liability cases in Pennsylvania.

In Hammond v. International Harvester, 691 F.2d 646 (3^rd Cir. 1982), Hammond was killed while using a  Harvester skid load tractor that was supplied without a roll-over protective structure and side screens (ROPS). ROPS would prevent the driver from leaning or falling out of the operator's seat area. ROPS were available on this model tractor. Hammond's employer purchased one tractor with ROPS and one without ROPS. Had the tractor used by Hammond been equipped with ROPS, that safety feature would have prevented his death. In the subsequent products liability action, the jury decided that the tractor was defective in design without the inclusion of the optional ROPS. On appeal, the court observed, when a manufacturer sells one of its products with the safety device but not another, the question of defect is for the jury to decide. "The very existence of a safety device which was produced by the manufacturer, and which would probably protect the operator from serious injuries, is itself strong evidence that a tractor lacking such a device is not equipped with every element necessary to make it safe for use."

Today, whether the lack of safety devices renders a product defective in design is a question of fact for the jury, to be determined under either the consumer expectation or risk-utility standards defined by the Supreme Court in Tincher v. Omega Flex. See also Morello v. Kenco Toyota Lift, 142 F. Supp. 3d 378 (E.D.PA.2015) (Product may be defective for not including a safety accessory as standard equipment). The risk-utility theory focuses on the quantifiable benefits and abilities of modern safety systems to reduce crashes and injuries in exchange for the marginal cost of installing the life-saving technology. The consumer expectation theory will focus on the consumers' awareness of the benefits of modern safety systems like FCAT, which in turn can translate to the increased likelihood the consumer would find that in the absence of modern safety systems a product failed to perform as safely as they would have expected.

Case Assessment

When evaluating automobile collision cases today, the lawyer needs to investigate not only why the collision occurred and whether the injuries were enhanced by some feature of the vehicle, but also, whether current technology would have prevented or mitigated the crash. In the initial assessment of whether a case presents a claim for lack of a safety system, the answers to the following questions should be affirmative. Had the vehicle been equipped with a particular safety system, would the collision and injuries have been avoided or mitigated? Did the safety technology exist when this vehicle was produced? Was the vehicle preserved and is it available for inspection? Are damages catastrophic? Do you have the resources to make the substantial labor and financial investment to pursue the claim? Additional considerations include whether the client was also at fault for the collision or was the client purely a victim. A thorough understanding of the details and mechanics of the collision should be developed in advance of incurring significant costs for the multiple experts these cases require. The lawyer must also learn the capabilities and limitations of the technology in order to advise the client whether to proceed with a claim.

The Preemption Defense

Naturally, the manufacturer will challenge a crashworthiness claim on its merits and argue that the absence of the safety system did not render the vehicle defective or unsafe. But, before even getting to the merits of the case, the plaintiff will first have to overcome the federal preemption defense.

In 1992, Alexis Geier was injured in an accident while driving a 1987 Honda Accord that did not have a driver's side airbag. She sought damages under District of Columbia tort law, claiming that Honda was negligent, and the vehicle was defective because it was not equipped with a driver side airbag. Pursuant to its authority under the National Traffic and Motor Vehicle Safety Act of 1966, the Department of Transportation had promulgated Federal Motor Vehicle Safety Standard (FMVSS) 208, which required auto manufacturers to equip some but not all of their 1987 vehicles with passive restraints. In Geier v. American Honda Motor, 529 U.S. 861 (2000), the Supreme Court held that Geier's "no airbag" claim conflicted with the objectives of FMVSS 208 and was therefore preempted by the act.

To date, the only published decision to address preemption of a defect claim for the lack of FCAT is Dashi v. Nissan North America, 445 P.3d 13 (Ariz. Ct. App. Div. 1 2019). There, a 2008 Nissan Rogue collided with Antea Dashi while she was performing a u-turn. She sued Nissan to assert state common-law tort claims, and alleged that the collision would not have occurred if the Nissan had been equipped with then available automatic emergency braking, forward collision warnings and crash imminent braking. Unlike the circumstances in Geier, the NHTSA had not engaged in rulemaking to require manufactures to install automatic emergency braking. Rather, NHTSA and DOT had refused to promulgate safety regulations that would require all light vehicles to utilize three established and proven [AEB] technologies as standard equipment. The court in Dashi nonetheless held that her claim was preempted by the NHTSA's decision to forego regulation. The court reasoned that NHTSA had concluded there was room for improvement in braking system technologies before the federal government settled on a definitive formal standard; driver safety would be best served if NHTSA had regulatory space to use non-rulemaking tools rather than to prematurely cement a definitive AEB standard and manufacturers would have regulatory space to choose between alternative AEB systems. Allowing her claims to proceed, the court reasoned, would stand as an obstacle to the accomplishment and execution of the NHTSA's full purposes and regulatory objectives. Notably, the court did not address manufacturer's product differentiation as seen in Hammond v. International Harvester. The Dashi decision is currently being appealed to the Arizona Supreme Court.

The Future

Notwithstanding a successful preemption defense, defect claims for lack of modern safety systems may offer injured victims an avenue of recovery that is often overlooked or seems too herculean a task. In March 2016 a coalition of 20 automakers agreed with the NHTSA and the IIHS to make collision avoidance systems with automatic emergency braking standard on almost all new cars by September 2022. The industry coalition reportedly accounts for 99.6% of all new vehicles sold in the United States. As of 2019, based on reporting by the 20 manufacturers in the industry coalition, approximately half of new vehicles are currently equipped with FCAT. The widespread deployment of the modern safety systems is encouraging. Nonetheless, the reality is that half of new vehicles are not equipped. The issue is not one of lag time between invention and implementation. When new safety technology is implemented in one model vehicle but not another, it is an issue of product differentiation. Avoidable collisions will continue to occur. And, when the manufacturer makes safety optional, the manufacturer risks that it will be liable for those avoidable collisions.

James R. Ronca is a shareholder at Anapol Weiss. He represents people injured in complex car and truck collisions and construction accidents and has taught hundreds of seminars for state and national bar and trial lawyer associations. He also co-authored the most widely referenced book on motor vehicle and automobile personal injury practice in Pennsylvania. Contact Ronca at 215-735-1130 or via email at [email protected].

Ryan D. Hurd is a partner at the firm where he represents individuals who have suffered catastrophic personal injuries from motor vehicle accidents, workplace accidents and defective products. Contact him at 215-735-1130 or via email at [email protected].