Spotting the Potential Auto Product Liability Case

by Brenden P. Leydon

So you get a call from a grieving family member whose loved one was just killed in a one car motor vehicle accident, in which the car they were driving struck a tree. You do your due diligence and determine that said tree has no assets or insurance (oaks in particular are known to be quite shady). Thereafter, you tell the potential client there is no one from whom recovery is possible and close your file. If this is your standard practice, you also should consider putting your own liability carrier on notice, as you may be overlooking a very significant potential recovery for your client.

While a liability claim against another driver may be obvious, all attorneys should take a few basic steps to gather and preserve the evidence critical to evaluating whether an automaker or component part manufacturer has contributed either to the cause of the incident or the resulting injuries. Essentially, any time there is a catastrophic injury or death in a motor vehicle accident, you should review a checklist to explore if there is a potential auto product liability case, and make sure critical evidence is not lost before this analysis can be made.

I. Secure the vehicle, inspect the scene.

The first step in the process is to secure the vehicle. Pursuing such a case without the vehicle makes it much more difficult and complicated, and in some cases impossible. Whenever you are notified about a catastrophic motor vehicle injury, do what you can to make sure the vehicle is secured so it can be inspected to determine a potential claim. Typically, if it is not still in the client’s control, the vehicle will be in possession of the owner’s insurance company. Be sure to notify them of the claim and the fact that the vehicle needs to be stored as potential evidence. Many insurance adjusters, recognizing a potential subrogation benefit, will cooperate with preserving the vehicle. However, you can’t simply assume such preservation without confirming it in writing with the adjuster. Also, depending on the nature of the case, consider whether you need the vehicle to be in covered storage to avoid corrosion or other damage to sensitive electronics or other parts.

In incidents involving two or more vehicles, to the extent possible, the same steps should be taken to secure the other vehicle(s) involved in the collision. Information taken from the vehicles can be invaluable to an accident reconstructionist in determining crucial factors such as closing speed, Delta V, and the orientation of impact. Even if it turns out there is no viable product liability case, being able to track down the vehicle for inspection, including event data reporter (“EDR”) download, can also be of great value in a motor vehicle liability case.

Sometimes, by the time you are contacted the vehicle is no longer with the client or the insurance carrier. At this point you may need the services of a private investigator to try to track the vehicle down. Another trick that sometimes works is simply googling the VIN from the police report, which sometimes leads to finding the car at a salvage lot.

In addition to locating and preserving the vehicle, it is also advisable to visit the accident scene. Although the police often do a thorough job documenting the scene of a major accident, it is important to remember that law enforcement agencies investigate incident scenes with an eye toward possible criminal violations, not a civil lawsuit. Also, law enforcement officials are limited in their training and in resources available to complete a thorough evaluation of an incident scene. Thus, when you receive a call about a potential case, it is important to pay an immediate visit to the incident scene, whether it is you or an investigator trained in documenting evidence for automobile products liability lawsuits.

Oftentimes, items such as tire treads, glass deposits, side mirrors, luggage racks, tail lamp covers, and even items thrown from inside a vehicle may be present for a period of time after an incident. Knowledge of the exact location of this type of evidence can be a tremendous aid to an accident reconstructionist in re-creating an incident sequence.

Another area to button down as early as possible is interviewing first responders and other witnesses. Even in catastrophic cases, memories fade as times passes. As a result, officers, eyewitnesses, EMTs, and other potential key witnesses should be interviewed, and, in some instances, asked to sign affidavits. This should be done while a case is being evaluated so that a record is made while facts are still fresh in the witnesses’ minds. Witnesses also become harder to find as time goes by, and they may carry with them key evidence concerning accident reconstruction, as well as irreplaceable damage evidence, such as evidence of the conscious pain and suffering of a decedent.

Tracking down officers that work odd hours and locating witnesses that live out of town, or even out of state, can be extremely time-consuming and frustrating. Nonetheless, key facts that could make or break a case should be locked down in order to properly evaluate a potential products liability case. Some promising cases may justify the employment of a trained investigator to secure these important facts.

Other issues to look for early in evaluating a case are seat belt use, alcohol use and cell phone use. If your client was not wearing their seat belt, or was drinking or using their cell phone at the time of the accident, these can be extremely prejudicial facts to a jury. They are not necessarily disqualifying factors, as many times such information can be kept out by a motion in limine. (See, e.g. Connecticut General Statutes §14-100a(c)(3), which provides that “Failure to wear a seat safety belt shall not be considered as contributory negligence nor shall such failure be admissible evidence in any civil action.”) However, if these issues will be part of your case you need to be aware of them early on and consider them when deciding whether to take the case in first place and how to proceed if you do take it.

II. Research the vehicle/product in question.

You now know what happened to the vehicle your client was in at the time of the incident. Next, you need to gather some basic information to help determine how and why the incident happened. Get as much vehicle specific information as you can. While information such as make, model, and year of an incident vehicle have likely been obtained during earlier steps, the vehicle identification number (the “V.I.N. number”), is located (1) inside the driver’s door jamb; (2) on the placard just inside the front windshield on the dashboard on the driver’s side; and (3) usually in the police report. Other specific information such as the names of component part manufacturers (often stamped into the component part itself) and, with respect to tires, the D.O.T. and serial number can also help in your initial evaluation of a potential product defect claim.

As discussed below, this information can be run through several databases to determine whether similar incidences have occurred, and whether an automaker has done anything to remedy a related problem. This information is also important so that a V.I.N. history can be run on a vehicle. The V.I.N. history can provide clues and leads necessary to determine the maintenance and incident history of an automobile, which may lead to clues of what caused the collision.

Oftentimes, a potential defect in an automobile or its component part is obvious. Other times, it is necessary to research the potential existence of a defect that may have caused an incident, or contributed to the injuries suffered as a result. Many experts and consulting firms monitor newspapers, websites, and television for complaints, incidents, and trends that might develop regarding a particular defect. Hiring such experts or firms at the evaluation phase of a case, however, may not, be cost efficient.

An alternative to hiring an outside source to research the existence of a particular defect is the National Highway Traffic Safety Administration’s (NHTSA) complaints and recall databases. NHTSA, an arm of the United States Department of Transportation, maintains a database of all complaints and recall notices it receives on its easily searchable website (www.nhtsa.gov). Persons can search for recalls, owner notification programs, dealer service bulletins, and instances of other incidents and complaints by vehicle make, model, and year. Sometimes simply googling the issues also turns up reports of similar problems in the vehicle that others have had.

III. Some established defects to look for.

There are many categories of automotive defects, and the landscape is constantly changing. The list that follows is by no means exhaustive. It does, however, contain many of the most common automotive defects:

  1. Stability and Handling
    1. Handling defects
    2. Rollover propensity
    3. Acceleration and brake defects
    4. “Hydro boost” defects
    5. Power steering failure
    6. Wheel, axle, and ball joint failure
    7. Non-ESC (Electronic Stability Control) cases
  2. Crashworthiness
    1. Occupants injured on interior
    2. Side impact design
    3. Roof crush
    4. Lack of/Improper head restraints
  3. Restraint system failure
    1. Inertial seatbelt unlatching or inadvertent release
    2. Seatbelt spool-out/retractor cases
    3. “Energy Management” loop cases
    4. Seatback failure
    5. Airbag failure
    6. Overly aggressive airbag/inadvertent deployment
    7. Non-laminated glass
    8. Side curtain airbags
  4. Fire cases
    1. Post-collision fuel fed fires
    2. Electronic or other caused fires
  5. Tire tread separation
  6. Park-to-reverse cases
  7. Brake shift interlock cases
  8. Power window child injuries

In many cases, multiple theories of liability are pled in a single automotive products case. For example, in a rollover one might allege defects regarding handling, stability, lack of Electronic Stability Control, roof crush, lack of side curtain airbags and restraint system failure. Furthermore, an accident sequence can initiate with a failed tire, raising the issue of tire defect.

Stability

Stability defect allegations typically are coupled with allegations of handling defects. For cars in which ESC was technologically available, handling and stability may be pled as a defect with ESC as the safer alternative design. “Stability” is based on the likelihood that a car will roll over, and depends on factors such as center of gravity and width of wheelbase. Vehicles that are flat and low to the ground are more stable and less prone to rolling over than an SUV that has a 3-inch lift added to it. As is probably clear to all readers, stability issues are more common with SUVs, trucks and vans than with passenger cars.

Handling

“Handling” refers to how a vehicle will react to a driver’s steering input in a foreseeable crash avoidance scenario. This is often couched in terms of the vehicles propensity for “understeer” or “oversteer.”

In very basic terms, understeer is when the front tires plow straight regardless of steering inputs. Most people have experienced that when tires are packed with snow or mud, especially front wheel drive vehicles. Sometimes no matter what steering inputs are present the car will continue to plow straight ahead. This can be associated with excess “play” in a steering wheel.

Alternatively, oversteer is what happens when a small steering input can cause the vehicle to fishtail. Most people have experienced oversteer in wet or icy road conditions. When there is less friction between the road and the tires, drivers will sometimes experience the loss of the rear end and will fishtail even though their steering inputs would not have led to the loss of control on a dry road.

Excessive understeer or oversteer can lead to a driver losing the ability to control the vehicle. Oversteer and understeer problems most commonly occur when some precipitating event changes the characteristics of a vehicle’s handling. For example, when a tire tread separation occurs, it is common that a vehicle that is prone to understeer can become prone to oversteer after the tire event, or vice versa.

Electronic Stability Control

Electronic Stability Control (ESC) is one of the most innovative automotive safety systems to date. ESC is a generic term for computerized systems designed to improve a vehicle’s handling. Though auto manufacturers call their ESC systems by different names, they are all based on the same or similar technology.

ESC can significantly reduce the risk of losing directional control in a vehicle. It does this by comparing a driver’s intended direction with the vehicle’s response to the driver’s steering inputs. By braking certain wheels as needed and decreasing engine power, ESC ensures that a car does not lose control and maintains the path the driver intends. Studies have confirmed that the accident rates among vehicles with ESC are significantly less that those without the system.

ESC is typically pled as a safer alternative design for an allegation that a vehicle is defective due to poor handing and/or stability. ESC can only be pled as a safer alternative design for vehicles made after a certain year. Consequently, you need to ensure that ESC was technologically and economically feasible when your vehicle was manufactured before alleging that it should have been equipped with ESC.

Acceleration Defects

Defects in a vehicle’s acceleration system are often difficult to detect and prove, but they are among the most dangerous defects. There have been a number of recalls resulting from accelerator design and manufacturing defects that cause sudden unintended – and uncontrollable – acceleration. One of the most high-profile sudden acceleration defects resulted in the recent Toyota investigation and recall. Issues with uncontrolled acceleration can be caused by mechanical failures such as pedal entrapment or electronic/computer systems failures.

Brake Failure

Brake failure can lead to some of the most serious automobile crashes. The failure can be caused by design or manufacturing defects, component part failure, damage to the hydraulic brake lines, poor maintenance, or faulty repairs. Numerous automotive recalls have been issued regarding defects that either have caused loss of power brakes or loss of any braking whatsoever. When a commercial vehicle suffers brake failure, vehicle maintenance records can provide critical evidence.

Power Steering Failure

Loss of steering can be caused by a jammed steering lock, a failure in the mechanical steering linkage, or a variety of other component part failures, many of which have been the subject of recalls.

Wheel, Axle, and Ball Joint Failure

When a defective axle either breaks or separates from a wheel during operation it invariably causes the driver to lose control of the vehicle. Likewise, a failure of the lower ball joint, which connects the control arm to the steering knuckle, causes one corner of the vehicle to drop to the pavement. Numerous automotive recalls have been issued regarding wheel, axel, and lower ball joint failures, some of which have been purely metallurgical, and others of which have been based on design or manufacturing defects. Cheap, poorly manufactured after-market rims have likewise been shown to crack, shatter, or otherwise fail dangerously during use, with disastrous results.

Side Impact Design

The concept of vehicle crashworthiness is based upon the premise that certain types of collisions commonly occur and are therefore foreseeable. Thus, when a vehicle occupant is injured or killed in a side impact with another vehicle or a fixed object, it raises the issue of whether the vehicle provided sufficient protection. This often involves issues regarding thickness and tensile strength of the steel used in the frame and chassis, interior padding, and the absence of side airbags. Gaps in the vehicle frame can also greatly diminish protection in side collisions.

Roof Crush

Automobile manufacturers have known for decades that vehicles roll over in reasonably foreseeable accidents. With the rise in popularity of SUVs, vans, and pick-up trucks, the number of people who are susceptible to vehicles rolling over has increased significantly over the last 20 years. However, despite the fact more people are affected by rollovers, most vehicle manufacturers have not increased the strength of the roofs in their SUVs, vans, or pick-ups.

Roof crush, or “loss of occupant survival space,” creates many problems for occupants in the vehicle. First, it rapidly reduces the space in the vehicle for the occupant, increasing the risk that the occupant will receive a spinal cord compression injury. Second, roof deformation does not happen straight down but rather downward and inward toward the occupant. This significantly increases the likelihood that a properly belted occupant will be partially ejected from the vehicle during a roll sequence. Typically the force of the roll coupled with the glass shattering out of the window, the roof crushing down and inward, and the seatbelt not properly securing the occupant to the seat will result in the occupant having his or her head and/or arm and shoulder ejected out of the vehicle during the roll. 

Occupant Containment

Occupant containment refers to a variety of measures a manufacturer can take to ensure that a properly restrained occupant stays in the vehicle during a roll sequence. Through the use of a stronger/reinforced roof, side-curtain airbags, laminated glass, and a variety of seatbelt configurations and systems, a car manufacturer could all but guarantee that a properly restrained occupant would not get any part of his body out of a vehicle during a rollover. All means of occupant containment should be fully investigated when a rollover results in an occupant being partially or fully ejected during a roll sequence.

Seat Belts

Seatbelts have a variety of moving parts; thus, there are many categories of seatbelt defects. The following are just the most common seatbelts issues. Do not overlook the possibility that other parts of a seatbelt may have failed if the facts warrant investigation into seatbelt defects.

1. Latch Failure

A seatbelt buckle should never unlatch inadvertently. The only time it should unlatch is when the user chooses to unlatch it by pushing whatever apparatus is required to disengage the latch. Sometimes a buckle will disengage on its own. Sometimes a latch plate will fail to securely lock into the buckle and will pull out with little or no effort. These are just two examples of some of the more common latch defects. Inertial unlatching, false latching, and inadvertent unlatching are the most commonly encountered buckle defects.

Inertial Unlatching. Inertial unlatching is a situation in which a latch plate will release out of the buckle during a collision. This is commonly a result of an external force applied to certain components of the seatbelt. Allegations of inertial unlatching have been around since the 1970s and were initially dismissed as not credible by car manufacturers. Subsequently, evidence of inertial unlatching has made it a real issue and a viable defect claim. This defect has been identified in seatbelt systems in which the buckle is housed in a rigid stock secured to the vehicle’s frame. With force to the bottom of the stock, the latch plate can be released from the buckle. A newer cause of inertial unlatching that is showing up is caused by failing to mitigate the force of the pretensioner firing.

False Latching/Partial Engagement. False latching, sometimes referred to as partial engagement, occurs when the latch plate looks, feels and sounds like it is secured in the buckle but is not securely locked in place. Chrysler’s Generation 3 seatbelt buckles,installed in many Chrysler products from 1993-2003, were especially susceptible to false latching due to the spacing and structure of their buckles. These buckles were laid out in a way that a user could fully insert the latch plate into the buckle but miss the entire locking mechanism and therefore, never secure the buckle. Likewise, the TRW RNS 4G buckle, which was installed in hundreds of thousands of Ford vehicles, was recalled because it would appear latched when in fact it was only partially engaged. A post collision analysis of the buckle can often indicate if false latching is a concern.

Inadvertent Release. Inadvertent unlatching can be caused by flying debris or flailing limbs contacting the buckle release button during a rollover or other collision. These scenarios are foreseeable in a collision and seatbelt buckles are intended to stay latched even in the presence of flying debris, hands, and elbows contacting the buckle release button. Some buckles are better than others at preventing inadvertent deployment. Chrysler’s Generation 3 seatbelt buckles again were especially susceptible to inadvertent unlatching. If there is a basis for believing that your occupant was belted before the accident, but during the accident scenario became unbuckled, one should investigate the possibility of inadvertent unlatching. Depending on the vehicle in question, the vehicle’s EDR may provide insight on this issue.

When a seatbelt latch fails, it is possible the police report will state that the occupant was not wearing a seatbelt. This may be corroborated by first responders and witnesses. As discussed above, latches can fail and occupants can appear unbelted after an accident. It is essential to thoroughly analyze the seatbelts, examine medical records, and interview all witnesses to see if there is any evidence of belt usage and the possibility of seatbelt failure. Do not dismiss a case for lack of seatbelt use without investigating the seatbelt issues discussed above.

2. Retractor Spooling

“Spooling” or “spool out” occurs when an excess amount of webbing is introduced into a seatbelt during a collision or rollover event because of a defect in the retractor. This can happen for many reasons. Regardless of the reason, the seatbelt should not spool out and fail to keep an occupant properly restrained during a collision or rollover event. If post-collision the seatbelt is found with excess slack in the belt, carefully consider and analyze the possibility of a spooling defect. Also, if an occupant hit the windshield or appears to have moved out of position while properly restrained, consider the possibility of spooling.

Spooling refers to what a person can actually see post-collision. Through pictures or post-collision vehicle inspection, the presence of too much webbing in the belt can be identified. The reasons for this cannot be identified by a cursory examination of a vehicle. The actual seatbelt defects in spooling situations are typically only identified through the use of a properly qualified expert familiar with the issues. With spooling, although the fact that it happened can be identified, the cause typically is out of view in the seatbelt retractor.

Fuel Tanks

One of the most notorious automotive product defects that made its way into the living rooms and minds of Americans was the exploding Ford Pinto gas tank. The video on the news of a Ford Pinto exploding after a rear-end collision brought automotive safety issues into the public forefront. It was also one of the first automotive defect cases litigated on a large scale throughout the nation. While the Pinto cases centered in the 1970s, post-collision fuel-fed fires still occur and are still sometimes the result of defectively designed automobiles.

As the name suggests, post-collision fuel-fed fires are characterized by a collision and a subsequent fire. These are different from post-collision engine fires, and engine fires should be ruled out when evaluating a possible fuel tank fire. Fuel tank fires are caused by an excess amount of gasoline being released from the tank, or where the filler neck enters the tank, as a result of a collision. This can occur because the gas tank is not properly guarded and is punctured as a result of a collision. It can also occur when a collision causes the filler neck to be pulled out of the tank thereby releasing an excess amount of gasoline. The origin of these fires will be located around the fuel tank.

Seatback Failures/Seat Design Cases

Unless it is a very high speed accident, a seatback should maintain its rigidity throughout an accident sequence. Failure to do so is a defect. Seatback cases typically are associated with rear-end or front end collisions. Seatback failures happen when a force causes the apparatus holding the seat upright to fail allowing the seat to collapse rearward. When the seatback collapses, the occupant kinematics are such that the seat acts as a ramp sending the occupant forcefully toward the rear of the vehicle. Injuries commonly associated with seatback failure include paraplegia, quadriplegia, and death as a result of a broken neck or back.

The importance of seat rigidity in rear-impact crashes has been known for many years. Studies show the industry has been well aware of the need for properly designed seatbacks since at least as early as the 1960’s. In 1968, after conducting an extensive test program of rear-impact collisions, researchers concluded that rigid seatbacks assure more effective support of the occupant during rear-end collisions, provided that the seatback support is high enough to resist rearward movement of the head. Conversely, a seat that yields rearward places the motorist in a semi-reclined posture that can likely cause injury. Injuries to the head and neck caused by seatback failure have been documented in engineering and scientific literature. These injuries are exacerbated by poor seatback construction, including poorly designed headrests.

Lack of Head Restraints

Properly functioning headrests are essential to driver and passenger safety. They prevent hyperextension or flexion of the neck and upper torso during collisions. Still, many manufacturers do not provide headrests on their seats, most often on back seats. The injuries caused by lack of headrests include spinal fractures, concussion, brain damage, paralysis, and death. The Insurance Institute for Highway Safety has released a study outlining rear crash protection in cars, focusing on seat head restraints. The study applies ratings to tested vehicles, and concluded that two out of every three models rated marginal or poor. In fact, only 22 of 75 cars tested received a “good” rating.

Child Car Seat Cases

Automobile accidents are the number one killer of children under the age of 16 in the United States. One of the causes of this shocking statistic is the fact that many of the child car seats on the market are defectively designed or contain defective instructions for use. Since 1990, over 20 types of car seats – literally millions of child car seats – have been recalled due to safety issues. Millions of others should be recalled, but won’t be. These defects range from issues with the buckles and harnesses to design of the plastic components to the type of padding used. If the straps are designed to fit too loosely, the seat will not restrain a child during an accident. Additional problems pertain to the instructions supplied with the seats. Not all car seats work in all cars, and many of them have directions that are difficult to follow.

Airbags

Air bag cases generally fall into three categories: an airbag can fail to deploy; an airbag can deploy in an unreasonably dangerous manner; and/or, the vehicle may not be equipped with airbags at all, though they were available to the manufacturer.

1. The Absent Airbag

Even when airbag technology has been available to a manufacturer for several years, a carmaker may opt to install it only as a costly option on some vehicles, instead of as standard safety equipment. This flies in the face of assertions by consumer and safety advocates that safety should never by an option. It also contradicts many automotive advertisements, such as the Saturn ad claiming, “The Rich Don’t Deserve to Be Safer.”

2. Failure to Deploy

A potential failure to deploy case involves an airbag failing to deploy in a collision that should have caused deployment. The science regarding when an airbag should deploy is complex, but at first glance, an attorney should be able to tell whether the airbag deployed or not. The next step, after identifying a potential case, is determining if the collision itself was of the type that should trigger the airbag system to deploy. This will often require an accident reconstruction to determine the velocity and angle of the collision as well as the specifics of when the vehicle’s bags should deploy. After it is determined that the speed and angle were within deployment range, the reason for non-deployment must be investigated.

There are a variety of reasons for non-deployment, such as defective sensors relaying the data to trigger deployment or a defective mechanism to deploy the bag.

3. Dangerous Deployment

Conversely, sometimes an airbag will deploy but in a way, or with such force, that makes it unreasonably dangerous and defective. These bags are typically defective by design. Oftentimes, these are identified by injuries that seem severe or unforeseeable for the type of collision that has occurred.

When evaluating a defective airbag case, there are many things to keep in mind. The first generation of airbags were introduced to the market with such urgency that they were installed in cars without adequate safety testing. This led to many bags that deployed with significantly too much force and/or directly in the occupants face. It is important, therefore, to determine what generation airbag the vehicle uses when evaluating an airbag case.

Tires

Tire defect cases are a special subgroup of automotive products liability. Tire defects provide an independent product liability cause of action against the tire manufacturer, and if they are original equipment on a vehicle, they will support a claim against the vehicle manufacturer as well.

The Ford/Firestone litigation of a few years back brought the issue of tire defects into the forefront of public knowledge. Until then, people did not know a tire could simply fail in the normal course of use. The Ford/Firestone litigation was based on claims of design defects in Firestone tires. Most tire cases before and after the Ford/Firestone litigation have been based on claims of manufacturing and design defects.

A tread separation, oftentimes referred to as a tire “delamination” or tire “detread,” usually involves the bottom layer of steel belts separating from the second layer of steel belts and outside tread. A large strip of tread (and sometimes accompanying smaller pieces) separating from the tire while in use often identifies a tread separation. A delamination will significantly decrease a person’s ability to control the vehicle and may result in a collision or rollover.

As tires age, they become more susceptible to tread separation. Even when a tire is unused and sitting on a rack, the aging process makes a tread separation more likely. For this reason, the current owner’s manuals on Ford vehicles urge the owner not to mount a tire on a vehicle if the tire is six years old or older. Notwithstanding this industry-wide knowledge of the hazards of tire aging, we still see aged tires being mounted on vehicles. This presents yet another risk to the consumer and another potential cause of action against parties that continue to sell aged tires and parties that mount them on vehicles.

Brake-Shift-Interlock and Park-to-Reverse Cases

Brake-shift interlock failure and the park-to-reverse defect have caused countless vehicle rollaway accidents and deaths. One example involves a child inadvertently shifting a stopped car into “drive” or “neutral,” causing it to roll away. Another involves a driver inadvertently putting a running car into “park” and the transmission hydraulics shifting it into “reverse,” again causing it to roll. These tragedies can be prevented by incorporating vehicle safeguards into designs, including brake-shift interlock.

Power Window Child Injuries

A power window injury occurs when a child has his or her head out the window of a parked car and accidentally leans on the window switch. The glass moves up forcefully, choking the child. There are three types of power window switches: rocker switches, toggle switches, and lever switches. Rocker and toggle switches are inherently more dangerous than others if they are mounted horizontally on the door’s armrest. Rocker switches move the glass up when you press one end of the switch and down when you press the other end. Toggle switches work when pushed forward or pulled back. Either of these can inadvertently raise the window when a child steps of leans on them.

In spite of safer alternatives, which are common in Europe, American auto manufacturers have been slow to improve power window safety, and auto reverse features have only been required on American cars that have auto/one-touch-up windows and remotely controlled windows. As Clarence Ditlow, Director of the Center for Auto Safety, says, “[i]f garage doors can have a reversing sensor, power windows should.” In response to a petition by various safety groups, in April 2006 the National Highway Traffic Safety Administration decided to ban power window rocker and toggle switches from U.S. manufactured vehicles. Automakers must now equip passenger vehicles with lever switches. Still, millions of cars with unsafe power window switches remain on the road.

Newer defects on the horizon

With the advent of newer technology, vehicles are generally getting safer. However, that does not mean everything is always working perfectly. New technologies in “crash avoidance” are approaching essentially a driverless car. While this is great when the systems are all working properly, it can be catastrophic when there is a breakdown. Undoubtedly, these technologies, which may have the effect of lulling a driver into a sense of security, will lead to serious injuries if the technologies fail. 

Conclusion

As discussed, in nearly any death or catastrophic injury case involving a motor vehicle accident, it is worthwhile investigating whether there is a viable auto defect claim. This does not mean there always is one, and often there is not. However, failing to investigate in the first case may mean overlooking an opportunity for obtaining fair compensation for your seriously injured client. These cases are very difficult and expensive to pursue and are vigorously defended by the industry, so even when there is a clear defect they might not be viable, unless your client has suffered severe injuries.

Brenden P. Leydon is a partner with Tooher Wocl & Leydon LLC in Stamford. He handles automobile and other product liability cases, as well as other cases involving serious injuries.