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 If a loved one, husband, wife or other  family member suffered a wrongful death from a defective or recalled truck, suv, car or other motor vehicle you may be entitled to compensation. If your truck, SUV  or car went out of control, rolled over one time or multiple times, and / or the  seat belt failed resulting in death  or catastrophic injury you may be entitled to compensation and justice. If a victim died as a result of a defective airbag, the victim’s family may be entitled to compensation and justice. A victim or his family can file a negligence and strict products liability lawsuit.

Here are five recognized crashworthiness principles in the automobile industry throughout the world. They are as follows:

(1)        Maintain survival space;

(2)        Provide proper restraint throughout the entire accident;

(3)        Prevent ejection;

(4)        Distribute and channel energy; and

(5)        Prevent post-crash fires.

When the National Highway Traffic Safety Administration (NHTSA) created the Federal Motor Vehicle Safety Standard (FMVSS) in the late 1960s, the preamble to the safety standards included the above definition of crashworthiness. Crashworthiness safety systems in a vehicle must work together like links in a safety chain. If one link fails, the whole chain fails. Vehicle manufacturers have known for decades and have admitted under oath that there is a distinction between the cause of the accident versus the cause of the injury. Indeed, vehicle manufacturers have known for decades that crashworthiness is the science of preventing or minimizing injuries or death following an accident through the use of a vehicle’s various safety systems.

The rich do not deserve to be safer…

General Motors has stated in the past that, “The rich don’t deserve to be safer…Isn’t it time we realized safety is not just for the pampered and privileged? Safety is for all.” Volvo has stated that it has a goal that no one is killed or injured in a Volvo vehicle by the year 2020 and that the technology to make this a reality is basically known today. FCA, however, has not put safety first and in 2015 was fined by the government – and admitted – that it has failed to comply with the Motor Vehicle Safety Act’s requirements in three areas: “effective and timely recall remedies, notification to vehicle owners and dealers and notifications to NHTSA. FCA’s actions have put the public at risk. “Fiat Chrysler’s pattern of poor performance put millions of its customers, and the driving public, at risk,” NHTSA Administrator Mark Rosekind said. “This action will provide relief to owners of defective vehicles, will help improve recall performance throughout the auto industry, and gives Fiat Chrysler the opportunity to embrace a proactive safety culture.”

Minimum performance standards

While there are minimum performance standards which an automaker is supposed to meet before selling a vehicle in the U.S. (the FMVSS) These minimum standards do not adequately protect the public. Joan Claybrook, former head of NHTSA (1977-1981) and formerly President of Public Citizen (1982-2008), now a member of its board, wrote to all major vehicle manufacturers in a letter dated November 28, 1980, including Fiat and Chrysler, among other things, that “Our Federal safety standards are and were intended by Congress to be minimum standards. The tragedy is that many manufacturers have treated the standards more like ceilings on safety performance rather than floors from which to improve safety. For example, there are many safety standards which apply only to passenger cars, yet some manufacturers have not applied them to light trucks and vans without a Federal requirement to do so.”

SUV death toll

Ms. Claybrook also testified before the Senate Committee on Commerce, Science and Transportation on February 26, 2003, the following: “The growing death toll from SUVs is so significant that a recent federal study found that fatalities in rollover crashes in light trucks, a category which includes SUVs, threatens to overwhelm all other reductions in fatalities on the highway, an astonishing fact when we consider that air bags are now a requirement for new vehicles and seat belt use keeps going up.”

Despite the unconscionably high death toll, rollovers are actually highly survivable crashes, because forces in the collision are far lower than those in many other types of highway crashes. Race car drivers, who wear five point belts and drive vehicles with strong crash protections, often walk away from severe crashes that would be deadly in other vehicles because of superior crashworthiness designed into their vehicles. This survivability means that rollovers are primarily dangerous due to poor vehicle design. Safety belts and seat structures are not made to keep occupants in place during a crash.

Deadly collisions caused by defective airbags and seatbelts

It was and is entirely foreseeable to, and well-known to vehicle manufacturers that deadly collisions caused by defective airbags and seatbelts on occasion could take place during the ordinary and normal use of the vehicle. Given all of this, manufacturers are aware of these facts and are under a duty not only to work on increased safety systems for their vehicles through their own research and development, but they are also under a duty to investigate and find out what other automakers are doing with regard to effective safety systems and apply those to their own vehicles. Many moto failed in this regard.

2007 Dodge truck

In addition, a manufacturer cannot utilize safer safety systems and/or technology in other countries, such as Europe, Australia, or Japan, and not offer those safer technologies in the vehicles it sells to consumers in the U.S. For example the 2007 Dodge truck was equipped with a manual transmission and recalled for at least two steering defects. In addition, this  Dodge Ram 1500 truck was not equipped with side-curtain/rollover airbags although other makes and/or models were at the time of its manufacture. Further, if the seatbelt fails, which along with the lack of proper airbags, may cause a victim to sustain fatal injuries.

It would be Notable,  if another vehicle involved in a crash also rolled over, but all occupants/ passengers survived. Victims involved in these types of accidents must establish that the victim would have survived the crash but for the defective nature of the vehicle he was driving. Family members of  a victim killed in a crash often have questions when their loved one is pronounced dead at the scene but  the occupants of the other vehicle lived. In these circumstances, it is especially suspicious if both motor vehicles involved in the crash rolled over.

If an operator lost control of the truck, struck another vehicle, went airborne, and rolled over at least two or three times, a fatality could occur and person could be pronounced dead at the scene. A crucial fact would be whether the driver was properly seated and properly wearing the available 3-point seat belt. Despite a driver properly wearing his seatbelt, the motorist may sustain fatal injuries if the vehicle failed to protect him because the vehicle violated several crashworthiness principles.

Factors that could cause a  rollover motor vehicle wreck to be fatal:

  • seatbelts failed in one or more manners
  • partially ejected from the vehicle during the rollover.
  • head hit the window pane of the driver’s side window and door, leaving the victim with an enormous gash on his forehead, among other fatal injuries.
  • The evidence establishing that the deceased was outside the occupant compartment, also called “occupant excursion,” which would not have happened but for a seatbelt failure and lack of the seatbelt coupling occupants to their seats.
  • There are bumps, dents, and scarring on the driver’s side door that are not just from the rolling action
  •  At some point during the accident and/or rollover sequence, restraints failed and the victim went out of the window partially.
  • Lack of side curtain/rollover airbags, causing death from “blunt force trauma”

Medical examiner proof to establish compensatory damages

  • Was the victim live and conscious during the accident sequence until his head was crushed?
  • Extensive list of injuries to the Decedent which would have been extremely painful. He had lacerations, abrasions, contusions (bruises) about the head including the nose, eyelids, and left ear. There was subscapular (scalp) hemorrhage over the left parietal bone of the skull. The skull showed extensive fracturing including a wide type I hinge fracture. There was diffuse subarachnoid hemorrhage of the brain and no epidural or subdural hemorrhage.
  • The brain and cerebellum revealed lacerations and numerous contusions. There were bruises to the left side of the neck, the left side of the chest, and the left arm. There was a fracture of the left humerus. Bruising and bleeding do not happen if one has already died.

Rollover accidents should be highly survivable

Rollover accidents are reported in medical and engineering literature as being highly survivable and less lethal events than head on or side impact collisions if the individual is secured with a seat belt and not ejected from the vehicle. Side curtain or rollover airbags can also provide additional protection from life-threatening injuries even when seatbelts fail. Without these safety mechanisms in the vehicle and working properly, occupant excursion can be experienced with individuals partially or completely ejected from a vehicle. Partially ejected individuals may have their heads or the upper portion of their bodies extend out doors or windows, allowing them to be crushed by the vehicle and then reenter the vehicle.

Seatbelt is primary means of restraint

In some cases, the evidence may establish that  the victim was wearing his seatbelt at the time the accident sequence began. During the course of the crash event, the webbing  could extend from the retractor and allow the victim’s  upper body and head to become partially ejected. In a motor vehicle, for rollover events, the seatbelt is the primary means of restraint for the occupant (because there are no rollover or side curtain airbags). Thus, the partial loss of the restraint system could allow a victim to become partially ejected.

A force limiter within the subject seatbelt system allows additional webbing to be introduced to the shoulder belt portion of  the victim’s restraint system. This additional webbing becomes slack during rollover events and allows the excessive excursion of the victim.

As the a crash sequence unfolds and the truck rolls over and over, the seatbelt can become loose and looser and the victim’s upper body and head could hit more and more surfaces until he is finally killed. This type of accident death experience is analogous to being stoned to death. It was as if a victim was an item of laundry in a dryer being tumbled over and over again against hard surfaces. But in all likilihood the deceased would have been alive and conscious during at least the first part of it. He would have experienced severe pain and mental anguish as he realized that he was going to die.  Victims often suffer  painful injuries, mental anguish, and ultimately death in the car and truck accidents.  Many of these fatal collisions could be prevented had the subject vehicle been equipped with a properly designed and functioning restraint system and equipped with a side curtain or rollover airbag.

Strict Liability cause of action

Many victims allege that the vehicle manufacturer designed, manufactured, and/or sold the applicable motor vehicle with design, manufacturing, and/or marketing defects. Victims assert that their injuries or their loved ones death occurred because the vehicle in question was not reasonably crashworthy and not free of other defects, such as steering defects, which would make an accident unavoidable. Victims assert that seatbelt defects  make surviving a accident more difficult. Victims allege that a vehicle was not reasonably fit for unintended, but clearly foreseeable, accidents with the seatbelt defects. It was not reasonably fit and safe to be driven given its steering and seatbelt defects which made it unsafe under the best of circumstances.

Automobile accident victims and their surviving family  assert that car makers  make the decision(s) as to which safety systems to install on a vehicle and which to omit, thereby lessening the safety of the vehicle unnecessarily and unjustifiably. The vehicle manufacturer may decide not to recall the vehicle in a timely fashion – or at all – for the steering and safety belt defects. Defendant further made the decision(s) not to notify owners and drivers of the vehicle as to these defects.

Victims often assert that the manufacturer knew or should have known of a safer alternative design which would have prevented  the victim’s untimely and avoidable death, such as coupling occupants to the seat, using a five-point restraint system, and providing side curtain or rollover airbags, among other things as set forth in this article.

Marketing Defect and Failure to Warn 

Victims allege that the manufacturer was fully aware of the risks associated with the motor vehicle and consciously made the decision to not warn of the dangers associated with this vehicle or how to avoid them.  Victims often allege the following:

  • There was an unreasonable risk in the intended or reasonably foreseeable use of the vehicle in that the defects resulted in an unexpected loss of steering, unexpected failure of the restraint system, insufficient restraint system, which could cause injury or death;
  • There defects – and their attendant risks of harm or death – were known or should have been known by  the vehicle manufacturer.
  • The vehicle maker failed to adequately warn drivers of the above risks, failed to adequately instruct drivers as to how to avoid the dangers, or both.

 

Design & Manufacturing Defects

Victims or their surviving family members (spouse, son / daughter, father/ mother)often allege that the vehicle manufacturer designed, manufactured, and/or sold the Subject Vehicle, with one or more design and/or manufacturing defects, more particularly set forth in the preceding paragraphs and as follows in this non-exhaustive list:

  • The vehicle had one or more steering defects;
  • The vehicle violated crashworthiness principles (failure to maintain survival space, failure to prevent ejection, etc.);
  • The vehicle failed to provide proper restraint;
  • The vehicle failed to provide side curtain or rollover airbags;
  • The vehicle failed to provide any type of side tube airbags;
  • The vehicle failed to provide ejection mitigation glass/non-tempered glass;
  • The vehicle failed to provide rollover activated pretensioner devices;
  • The vehicle failed to provide ABTS/integrated seatbelt restraint which would couple occupants to the seat and avoid occupant excursion during a rollover event;
  • The vehicle permitted partial ejection or driver excursion; and
  • Other vehicles sold by Defendant have rollover activated side curtains, rollover activated pretensioners, ejection mitigation glass/non-tempered glass, doors with Bowden cables, doors with electric latches, and/or ABTS/integrated restraints.

 

Victims also allege that: The vehicle was not properly tested or subjected to rigorous engineering analysis:

  • Specifically, the vehicle was not subjected to rollover testing;
  • The vehicle did not undergo simulated accident scenarios;
  • The vehicle and its components were not subjected to FEM finite modeling, LSDYNA, MADYMO or other finite element analysis to study rollover performance, restraint performance in rollovers, and ejection mitigation in rollovers; and
  • Lack of proper design FMEA in developing the automobile, suv or truck; and
  • Lack of proper design validation in the truck or motor vehicle;

 

Unreasonably Dangerous – The manufacturing defects, marketing defects, or both, rendered the Subject Vehicle, unreasonably dangerous by making the automobile dangerous to an extent beyond that which would be contemplated by the ordinary consumer with the knowledge common to the community as to its characteristics. The vehicle manufacturer was aware of the unreasonably dangerous nature of the vehicle but failed to recall or otherwise warn drivers  or the general public of the danger. The design defects, or any of them, rendered the Subject Vehicle unreasonably dangerous as designed, considering the utility of the automobile and the risks involved in its use.

The design, manufacturing, and/or marketing defects, or any of them, were producing causes of  the victim’s injuries and damages. It was entirely foreseeable to, and well-known by the manufacturer that incidents involving its automobiles, would on occasion take place during the normal and ordinary use of said automobiles.

Vehicle was in this defective condition

The Subject Vehicle was in this defective condition at the time it left the possession or control of Defendant. The Subject Vehicle reached the consumers without substantial change to the condition of the seatbelt restraint system or steering components. The manufacturer designed, manufactured, marketed, distributed, and sold the Subject Vehicle to be unreasonably dangerous and defective within the meaning of Section 402A Restatement (Second) Torts in that the Subject Vehicle were unreasonably dangerous as designed, marketed, manufactured, or any of them. Specifically, the Subject Vehicle contained a seatbelt and steering system that were defective, inferior and inadequately designed, marketed, and manufactured, that resulted in unexpected loss of steering and seatbelt performance, and the Subject Vehicle also lacked side curtain/rollover airbags. The manufacturer consciously made the decision to not warn consumers of some or all of these defects. The vehicle manufacturer also did not ensure that the vehicle owner was notified of the defects.

The manufacturer determined when it would recall the defective vehicles, if at all, and for what defects. It determined the scope of the recall(s), if any, and how consumers would be notified. This process was defective as well.

Negligence

Here are some common negligence allegations promulgated in these types of cases:

  • Th manufacturer was negligent in the design, manufacture, assembly, marketing, testing, recalling, and/or warning of the Subject Vehicle.
  • In designing a vehicle, efforts should be made by manufacturers to identify potential risks, hazards, and/or dangers that can lead to serious injury or death.
  • Once potential risks, hazards, and/or dangers are identified, then the potential risks, hazards, and/or dangers should be eliminated if possible.
  • If the potential risks, hazards, and/or dangers cannot be eliminated, then they should be guarded against.
  • If the potential risks, hazards, and/or dangers cannot be guarded against, then they should at least be warned about.

A company that does not conduct a proper engineering analysis that would help it to identify potential risks, hazards, and/or dangers that could seriously injure or kill someone is negligent. Manufacturers may know about advanced safety features used in Europe, Australia, Japan, and other countries and chose not to offer those safety features to American consumers.

Wrongful Death

The surviving family members may file a lawsuit based on wrongful death  The survivors must establish that the acts and/or omissions and negligence of  manufacturer were the producing, direct, and/or proximate cause of the deceased’s death.

COMPENSATORY DAMAGES

As a proximate result of  the manufacturer’s action or inaction the victim suffered and incurred:

  1. Pecuniary losses incurred due to the death of Decedent in the past and in the future. “Pecuniary losses” means the loss of care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value, excluding loss of inheritance, the Plaintiff would, in reasonable probability, have received from Decedent had he lived;
  2. Loss of companionship and society in the past and in the future that in reasonable probability will be sustained due to the loss of Decedent. “Loss of companionship and society” means the loss of the positive benefits flowing from the love, comfort, companionship, and society that the victim, would, in reasonable probability, have received from the Decedent had he lived;
  3. Mental anguish that Plaintiff has suffered in the past and with reasonable probability will suffer in the future due to the death of Decedent. “Mental anguish” means the emotional pain, torment and suffering experienced by the survivors because of the death of Decedent;
  4. Pain and mental anguish experienced by  the victim during the accident sequence and prior to his death; and

Resources:

[1]https://books.google.com/books?id=osUDAAAAMBAJ&pg=PA81&lpg=PA81&dq=Isnt+it+time+we+realized+safety+is+not+just+for+the+pampered+and+privileged?&source=bl&ots=ocopwcTBK5&sig=NICgBR9WhVj-kuA7DDotYSZTxYc&hl=en&sa=X&ved=0ahUKEwi6r9zGk4jPAhUFdT4KHcFIC64Q6AEIIDAB#v=onepage&q=Isnt%20it%20time%20we%20realized%20safety%20is%20not%20just%20for%20the%20pampered%20and%20privileged%3F&f=false

[2] http://docplayer.net/3736910-Volvo-vision-2020-anders-eugensson-director-governmental-affairs-volvo-car-corporation-volvo-vision-2020.html

[3] http://www.nhtsa.gov/About+NHTSA/Press+Releases/2015/nhtsa-fiat-chrysler-enforcement-action-07262015

[4] See a copy of the letters at this link: http://mvhap.org/mvhappdfs/laprestraint.nhtsa.claybrook.let.11.28.80.pdf

[5] https://www.citizen.org/documents/JC_SUV_testimony.pdf (Emphasis in original.)