THE BROWN LAW FIRM Safety Is Not an Option Lee Brown Anjulie Ponce The Brown Law Firm 750 N. St. Paul Street, Suite 1680 Dallas, Texas 75201 (214) 624-3400 [email protected] [email protected] Safety Is Not an Option | 1 © The Brown Law Firm, 2012 Safety Is Not an Option The management of American car manufacturers like Ford, General Motors, and Chrysler are increasingly using safety devices like electronic stability control, side airbags, and rollover airbags as expensive options on their vehicles in the United States, while making them standard safety devices on other markets around the world. But safety devices like stability control and airbags differ from traditional revenue generating options for manufacturers like leather seats and CD players, as a consumer’s life can literally depend on whether the safety features are equipped with the vehicles. Safety should not be delegated from the manufacturer to the consumer, especially where manufacturers are utterly failing to provide consumers enough information to make an informed decision about whether the options are needed. Accordingly, unsuspecting consumers – not surprisingly – routinely reject the expensive options, thereby subjecting them, their families, and subsequent purchasers to the unknown and extreme risks of the defective vehicles. I. VEHICLES WITH OPTIONAL SAFETY FEATURES ARE DEFECTIVELY DESIGNED A product is defectively designed when the forseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or another distributor, and the omission of the alternative design renders the product not reasonably safe.1 A vehicle without standard safety features such as electronic stability control, side airbags, or rollover airbags is defective because it is unreasonably dangerous. The risks associated with vehicles that are not equipped with these safety devices are well chronicled, as detailed below, as are the benefits of the safety devices, which do not increase the risk of other injuries or impede the utility of the vehicles. A cursory review of the data collected and tests performed by the car manufacturers, National Highway Traffic Safety Administration (“NHTSA”), and Insurance Institute for Highway Safety (“IIHS”) of vehicles with and without the safety devices demonstrates (1) the severity of injuries and deaths caused by loss-of-control, side-impact, and rollover accidents, and (2) the benefits of these safety features and how they prevent or minimize these injuries and deaths. Having these safety options become standard in vehicles is clearly a safer alternative design, and thus manufacturers in other markets like Europe, have already implemented the safety devices as standard features. U.S. citizens deserve the same level of safety as Europeans, and they should be fairly compensated for the unnecessary harm caused by unreasonably dangerous products. II. WHY IS SAFETY OPTIONAL IN THE UNITED STATES? The three most prevalent areas where manufacturers have offered life saving devices as optional features are electronic stability control (“ESC”), side airbags, and rollover airbags. ESC 1 RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 2 (1998) (common law definition of design defect). Safety Is Not an Option | 2 prevents or significantly reduces the risk of an accident occurring. Side and rollover airbags prevent or reduce the risk of injury from when the accident occurs. The use of these systems dramatically reduces the risk of injury and death to consumers without impairing the vehicle’s utility in any way. And all the designs are and have been technologically and economically feasible, as manufacturers have developed and fine-tuned each system for their vehicles. Yet manufacturers have chosen to make these safety devices optional, not standard, features. 1. Electronic Stability Control Loss of control accidents present a serious problem on American roadways, leading to a high number of injuries and deaths every year. Looking at data from 2000 to 2005, NHTSA estimated that about 1,000,000 minor to severe injuries annually were attributable to crashes that could have been affected by ESC, with around 458,000 of those injuries occurring in single- vehicle crashes.2 Furthermore, 27,680 people were killed annually in crashes that could have been affected by ESC, with over half of the fatalities (15,191 deaths) occurring in single-vehicle crashes.3 ESC protects occupants by improving the control of a vehicle and thereby significantly reducing the risk of an accident from occurring, by using sensors to monitor whether a driver is about to lose control of his vehicle and braking systems.4 The sensors continuously monitor how well a vehicle is responding to a driver’s steering wheel input.5 When a vehicle strays from its intended line of travel, ESC automatically brakes individual wheels to keep the vehicle under control.6 2 72 Fed. Reg. 17236, 17241 (Apr. 6, 2007). 3 Id. 4 Ins. Inst. for Highway Safety, Update on Two Effective Safety Features: Electronic Stability Control, STATUS REPORT, June 13, 2006, at 3, available at http://www.iihs.org/externaldata/srdata/docs/sr4105.pdf. There are various names for ESC, depending on the manufacturer, including Electronic Stability Program, Stability Track, or Active Handling. Id. at 3. 5 Id. 6 Id. Safety Is Not an Option | 3 7 The first patent on the operating principles of ESC was awarded in 1959. ITT-Teves offered brake based electronic yaw stability control systems as early as 1988. Mercedes demonstrated the system to journalists in 1994 on a working prototype vehicle. In 1995, ESC was first introduced on some Mercedes Benz S Class models. Over the next two years BMW, Cadillac, and Lexus followed suit. In 1997, Nissan and Honda introduced ESC on the Japanese market only, as an option on the Cima and Accord models, respectively. In 2003, ESC/RSC was standard on the Volvo XC90. By 2005, ESC was standard equipment on some mainstream U.S. market vehicles such as the Hyundai Sonata, Scion xB, and Buick Lucerne, but remained optional or non-existent for many other vehicles. Car manufacturers have made a slow and reluctant transition to offering ESC on their vehicles. For example, while Ford introduced ESC on the European Ford Focus in 1999,8 it was not available on any of its American vehicles until the 2001 model year, offering ESC as an option on the Ford Focus and Ford Windstar.9 In 2005, Ford made ESC standard on the Explorer, Mercury Mountaineer, Lincoln Aviator, and Lincoln Navigator.10 But it still remained non-existent or only an option on its other vehicles. So while 55% of passenger vehicle models had ESC as standard or optional, less than 25% of Ford’s model vehicles were equipped with ESC, whether standard or optional.11 Not until 2009, did Ford even offer ESC on its popular selling F-150.12 In 2007, NHTSA passed FMVSS 126 for passenger vehicles, in response to the high number of loss-of-control and rollover accidents, mandating manufacturers to install ESC as 7 Q&A: Electronic Stability Control, INS. INST. FOR HIGHWAY SAFETY, http://www.iihs.org/research/qanda/esc.aspx. 8 Safety Research and Strategies, Inc., A Brief History of Electronic Stability Controls and their Applications, VEHICLE AND PRODUCT SAFETY, http://www.safetyresearch.net/2004/07/01/54/ (last visited Sept. 20, 2012). 9 Ford Motor Company’s Third Supplemental Responses to Plaintiffs’ First Request for Production, Response to Request to Produce 9, Moore v. Ford Motor Co., No. 2-07CV-309 TJW (E.D. Tex., Dec. 17, 2007) (on file with authors). 10 Jeff Plungis and Eric Mayne, Cars: GM, Ford Target rollovers, USA TODAY, Nov. 12, 2004, http://www.usatoday.com/money/autos/2004-11-12-suvs_x.htm (last visited Sept. 1, 2012). 11 Supra source cited note 4. 12 Introducing the New F-150, 2009 Ford F-150 brochure (2008) (on file with authors); compare Vehicles with ESC - 2009, SAFERCAR.GOV, http://www.safercar.gov/Vehicle+Shoppers/Resources/Vehicles+with+ESC+-+2009, with Vehicles with ESC - 2008, SAFERCAR.GOV, http://www.safercar.gov/Vehicle+Shoppers/Resources/Vehicles+with+ESC+-+2009. Safety Is Not an Option | 4 standard equipment in all vehicles under 10,000 GVWR rating for the 2012 Model Year.13 Thus, manufacturers that had been reluctant to standardize ESC on their own accord, have now been forced to meet the requirements of 126 since September 1, 2011.14 But manufacturers have not been required to recall their prior vehicles without standard ESC systems, leaving these defective vehicles on our American roads for unsuspecting consumers. The proven benefits of electronic stability control are significant. NHTSA estimates that ESC will prevent over 67,466 to 90,807 crashes, prevent 156,000 to 238,000 minor to critical injuries, and save 5,300 to 9,600 lives annually, once all light vehicles are equipped with ESC.15 IIHS similarly reported that when comparing the fatal crash risk between the same vehicles models, with and without ESC, there was a 30% reduction in fatal crash risk for vehicles equipped with ESC systems.16 These substantial benefits of ESC would translate into economic savings of between $376,000,000 and $535,000,000.17 Not only are there these extensive benefits, but the cost to equip a vehicle with ESC system is considerably low. Most of the major components required for ESC, such as the anti- lock brake hydraulic unit, anti-lock brake (ABS) computer, and wheel sensors, are already present on current vehicles. The only additional components required for ESC are some supplementary sensors, typically a yaw rate sensor, a lateral acceleration sensor, a steering angle sensor, and additional software for the anti-lock brake controller. NHTSA estimates that that the average cost to implement ESC on vehicles, in accordance with FMVSS 126, is only $58, as most vehicles are already equipped with ABS.18 Despite these demonstrable benefits, car manufacturers looked to their own interests in deciding not to standardize ESC on their vehicles prior to FMVSS 126.