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BAD DESIGNS, LETHAL PROFITS: THE DUTY TO
PROTECT OTHER MOTORISTS AGAINST SUV
COLLISION RISKS
HOWARD LATIN* AND BOBBY KASOLAS**
INTRODUCTION ............................................................................................. 1161
I. THE SUV MANUFACTURER’S DUTY TOWARD OTHER MOTORISTS .. 1168
A. Foreseeability as the Basis for the Manufacturer’s Duty.......... 1170
B. Seller Status as the Basis for the Manufacturer’s Duty............. 1172
C. Previous “Bystander” Case Precedents.................................... 1174
D. Case Precedents Cited in the de Veer Trial Court Opinion ...... 1176
E. The California Court of Appeal Decision in the de Veer Case . 1180
1. Legal Custom and Evidence of Recent Improvements........ 1181
2. Judicial Risk-Utility Balancing ........................................... 1184
3. Crashworthiness and Bystander Protection ......................... 1187
II. DANGEROUS SUV DESIGN FEATURES AND SAFER ALTERNATIVES .. 1194
A. Rollover Crashes ....................................................................... 1195
B. SUV Overriding Crashes ........................................................... 1201
C. Level-Plane Crashes.................................................................. 1207
1. Frame Rigidity and Vehicle Deformation ........................... 1207
2. SUV Mass and the Behemoth Models................................. 1211
D. Claims of Lost SUV Utility ........................................................ 1214
CONCLUSION................................................................................................. 1221
APPENDIX A – de Veer Trial Court Opinion ................................................. 1225
APPENDIX B – de Veer Appellate Court Opinion.......................................... 1229
INTRODUCTION
In this era of active products liability litigation and frequent media coverage
of product safety issues, it is surprising that one kind of product-related
accident has caused thousands of avoidable deaths and injuries but has
received virtually no legal attention. This Article focuses on a major public
safety issue that can only be described as a products liability mystery: Sport
Utility Vehicles (“SUVs”) are probably the most dangerous products (other
than tobacco and alcohol) in widespread use in the United States. Many design
defect suits have been brought against SUV manufacturers for selling
*
Professor of Law and Justice John J. Francis Scholar, Rutgers University School of
Law, Newark, N.J.
**
J.D. 2002, Rutgers University School of Law.
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unreasonably dangerous vehicles that failed to protect their own occupants
from harm.1 Yet, there has been almost no legal attention devoted to the
dangers of defective SUV designs for the occupants of other vehicles in
collisions with SUVs.
High collision fatality risks for other motorists arising from crashes between
SUVs and passenger cars have been thoroughly documented: One statistical
study by the National Highway Traffic and Safety Administration (“NHTSA”)
derived from 1999 data concluded that SUV designs were causing nearly 1000
“unnecessary deaths a year in other vehicles.”2 Another NHTSA study found
that midsize SUVs, such as the Chevrolet Blazer and Nissan Pathfinder, were
three times as likely to kill other motorists in a collision as large passenger cars
of approximately the same weight.3 A study by a prominent traffic-safety
statistician commissioned by NHTSA concluded that Ford Explorers killed ten
passenger car occupants for every 1,000 crashes reported to police between
1991 and 1997, while competing midsize SUVs, such as the Jeep Grand
Cherokee, Toyota 4Runner, and Chevy Blazer, killed five to seven car
occupants for every 1,000 collisions between these SUVs and passenger cars.4
In comparison, the fatality rate for multi-vehicle crashes among passenger cars
was six-tenths of a death per 1,000 collisions.5 In other words, the Ford
Explorer was more than a dozen times more likely to kill the occupants of
other vehicles in collisions during this seven-year period compared to the
fatality rate in crashes among passenger cars. With regard to side-impact
1
See, e.g., Clay v. Ford Motor Co., 215 F.3d 663 (6th Cir. 2000) (affirming jury verdict
of $7 million for design defect claim brought by plaintiffs injured in rollover accident);
Watkins v. Ford Motor Co., 190 F.3d 1213 (11th Cir. 1999) (reversing summary judgment
for manufacturer because question of fact existed as to whether the manufacturer acted with
wanton disregard for life in its design of its SUV); Heath v. Suzuki Motor Corp., 126 F.3d
1391 (11th Cir. 1997) (affirming jury verdict in favor of manufacturer); Goulah v. Ford
Motor Co., 118 F.3d 1478 (11th Cir. 1997) (affirming jury verdict in favor of manufacturer);
In re Ford Motor Co. Bronco II Prod. Liab. Litig., 982 F. Supp. 388 (E.D. La. 1997)
(granting summary judgment in favor of manufacturer); Livingston v. Isuzu Motors, 910 F.
Supp. 1473 (D. Mont. 1995) (affirming jury verdict of over $2 million for plaintiff in
rollover accident); Ford Motor Co. v. Ammerman, 705 N.E.2d 539 (Ind. Ct. App. 1999)
(affirming an award of $4.4 million in compensatory damages and $13.8 million in punitive
damages); Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47 (Mo. 1999) (reversing a
verdict in favor of plaintiff); McCathern v. Toyota Motor Corp., 985 P.2d 804 (Or. Ct. App.
1999) (affirming jury award of $7.65 million); AM. L. PROD. LIAB. 3d § 97:26 (2002)
(summarizing numerous design defect rollover cases).
2 See Keith Bradsher, Carmakers to Alter S.U.V.’s to Reduce Risk to Other Autos, N.Y.
TIMES, Mar. 21, 2000, at A1 [hereinafter Bradsher, Carmakers to Alter].
3 See Joseph B. Treaster & Keith Bradsher, 2 Insurers Raising Liability Coverage on
Bigger Vehicles, N.Y. TIMES, Dec. 2, 2000, at A1.
4 Keith Bradsher, High Fatality Rate Found in Cars that Crash With Explorers, N.Y.
TIMES, Feb. 14, 2001, at C7 [hereinafter Bradsher, High Fatality Rate].
5 Id.
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crashes, research conducted by the Insurance Institute for Highway Safety
(“IIHS”) found that when a large SUV, such as a Chevrolet Suburban, hits the
side of an average-size car, the car driver is forty-eight times more likely to die
than the driver of the SUV.6 The IIHS concluded that the occupants of a car
hit in the side by another passenger car were approximately seven times more
likely to die than occupants in the encroaching auto, but the fatality rate was
twenty-six times higher when a car was broadsided by an SUV or pickup
truck.7 Based on IIHS and NHTSA evidence of striking disparities in SUV
collision risks for occupants of other vehicles, some of the nation’s largest auto
insurance companies have begun to raise their liability insurance premiums for
SUVs.8
Despite the thousands of motorists in other vehicles killed or injured each
year as a result of arguably defective SUV designs, we have not found a single
law review article or treatise focusing on this serious public safety problem,
and we have identified only one case holding that SUV manufacturers have
“no duty” to protect the passengers in other vehicles. The absence of legal
attention to high SUV collision risks is especially puzzling because, as
explained in Part II, the judicially-determined defective design characteristics
that caused many fatal rollover accidents for occupants of SUVs have also
been primarily responsible for many unnecessary deaths and injuries of people
in other vehicles. For every additional SUV on American roads, the collision
fatality risk for other motorists increases by more than if any other kind of
passenger vehicle had been purchased instead.
Despite ample evidence that SUVs are much more dangerous than passenger
cars in crashes with other vehicles, we have found no judicial or academic
assessments of the specific design attributes that make SUVs more lethal.
Perhaps one reason for the legal vacuum surrounding SUV collision hazards is
that many people may believe these risks result from the inherent
characteristics of SUV designs, specifically their large size and weight, which
cannot be eliminated without losing the main attractions of SUV ownership. If
this view were correct, the excess deaths associated with SUV collisions might
be regarded as effectively “unavoidable.”
However, this Article demonstrates that the inherent characteristics of SUVs
are not the primary reason for their disproportionate collision risks. IIHS
statistics, for example, show that for every million registered cars weighing
6
See INSURANCE INST. FOR HIGHWAY SAFETY, STATUS REPORT: CRASH COMPATIBILITY,
HOW VEHICLE TYPE, WEIGHT AFFECT OUTCOMES, Feb. 14, 1998, at 10 [hereinafter IIHS,
VEHICLE TYPE & WEIGHT); David Holtzman, Protect Us From SUVs and Ourselves,
BOSTON GLOBE, Aug. 29, 1999, at E1.
7 INSURANCE INST. FOR HIGHWAY SAFETY, STATUS REPORT: PUTTING THE CRASH
COMPATIBILITY ISSUE IN PERSPECTIVE, Oct. 30, 1999, at 7 [hereinafter IIHS, PERSPECTIVE].
8 See Treaster & Bradsher, supra note 3 (discussing announcements from Allstate
Insurance Company and Progressive Insurance Group that they have begun raising the cost
of liability insurance for large, high-riding vehicles).
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between 3,500 and 3,999 pounds, the collision fatality rate for motorists in
other passenger cars is forty-five deaths; but in collisions between cars and
SUVs of the same sub-two-ton weight class, the fatality rate among motorists
in other vehicles rises to seventy-six deaths per million.9 At an auto industry
conference in 1999, a General Motors safety engineer acknowledged that when
passenger vehicles are struck in the side, the stiffness, height, width, and
curvature of the striking vehicle’s front end are each more important than the
striking vehicle’s weight.10 Although SUV size and weight are important risk
factors, we believe safer SUVs could have been produced at any time during
the past two decades and these safer SUV designs could have avoided many
multi-vehicle collision fatalities with little or no reduction in product utility.
The SUV design history discussed below suggests that the SUV manufacturers
simply did not care and did not try, until recently, to reduce collision dangers
for drivers in other vehicles.
A second possible explanation for the lack of legal attention to SUV
collision risks is that some lawyers may believe SUV manufacturers do not
owe a legal duty of precaution to the occupants of other vehicles. In de Veer v.
Morris,11 the only pertinent case we have located, Judge Pluim of the Superior
Court of Los Angeles issued an unpublished two-page opinion granting
summary judgment to defendants on the ground that SUV manufacturers have
“no duty” to protect the occupants of other vehicles.12 This judicial opinion
described the plaintiff’s claim as follows:
[P]laintiff argues that liability should be imposed because there is a duty
upon manufacturers of a class of vehicles (sport utility vehicles - SUV) to
design their vehicles to be crash worthy compatible with the design of
another class of vehicles (2nd class) so that their SUVs do not invade the
occupant compartment area of another vehicle (2nd class) upon broadside
collisions. In other words, the height and stiffness of the bumper of a
SUV must be lowered to meet the doors of a passenger vehicle.13
Some parts of a motor vehicle are better able to absorb crash forces and
withstand collision impacts than other vehicle areas: The plaintiff’s claim
undoubtedly was that the SUV should have struck the stronger steel frame
beneath the car doors, not the car doors themselves. However, the court’s
opinion did not discuss the structural designs of either the SUV or the victim’s
car.14 Instead, the judge granted summary judgment on the basis of “no duty”
9
IIHS, PERSPECTIVE, supra note 7, at 3.
Keith Bradsher, Study Cites Fatal Design of Sport Utility Vehicles, N.Y. TIMES, Mar.
2, 1999, at A12 [hereinafter Bradsher, Fatal Design].
11 de Veer v. Morris, No. GC 020209, slip op. (Cal. Super. Ct. Mar. 28, 2000) (reprinted
in this Article as “Appendix A”).
12 Id. at 1-2.
13 Id. at 2.
14 See id.
10
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without addressing any of the plaintiff’s design defect arguments.15 Indeed,
Judge Pluim only cited a handful of judicial decisions he thought relevant to
the duty question. He then granted summary judgment without offering any
legal analysis of the existence or contours of a products liability duty to protect
other motorists.16 The California Court of Appeal nonetheless affirmed the de
Veer summary judgment in another unpublished opinion.17
Shortly after the de Veer case was dismissed by the trial court, the New York
Times published an article on SUV collision risks in response to a public
acknowledgment by the Ford Motor Company that its SUV designs were not
as safe for other motorists as they could be, and that Ford intended to improve
its SUV crashworthiness in the future to protect people in other vehicles.18
The Times story quoted Professor John Coffee’s opinion that: “There isn’t any
clear duty by Ford to other motorists, they owe a duty to their customers.”19
The Times article also quoted Professor Roger Henderson observing: “If I were
the Ford Motor Company, I wouldn’t treat this very cavalierly, but at this point
in the development of tort law they have the better argument.”20
Can there be “no duty” when a product kills thousands of foreseeable
accident victims every year? Neither the de Veer trial court and appellate
opinions nor these academic commentators explained that the legal effect of
finding SUV manufacturers have “no duty” to minimize collision risks would
be to preclude any judicial assessment of the magnitude of SUV hazards, the
availability of safer alternative designs, the costs of improved safety, and all of
the other factual and legal policy issues normally considered in products
liability decisions. In effect, a “no duty” treatment is a judicial determination
that potential accident victims have no right to be free from a specified type of
risk regardless of how great that risk may be or how effectively the risk creator
could avoid the danger. In the SUV collision risk context, a “no duty”
treatment would preclude the courts from determining whether any given SUV
design was defective, no matter how dangerous the vehicle might be for other
motorists and how easily the dangers could be reduced.
Part I of this Article shows that modern products liability doctrines clearly
do impose a legal duty on SUV manufacturers to provide reasonable safety
precautions for potential collision victims. The products liability duty is based
either on the foreseeability of SUV collision hazards or on the manufacturer’s
marketing of new products intended for sale to consumers. As the statistics
15
See id.
See id. For our critique of the trial court’s holding and analysis, see infra Part I.D.
17 de Veer v. Land Rover, No. B141538, slip op. (Cal. Ct. App. Aug. 14, 2001) (reprinted
in this Article as “Appendix B”), aff’g de Veer v. Morris, No. GC020209, slip op. (Cal.
Super. Ct. Mar. 28, 2000). For our critique of this appellate decision, see infra Part I.E.
18 Keith Bradsher, S.U.V. Suits Still Face Long Odds, N.Y. TIMES, Mar. 30, 2000, at C1
[hereinafter Bradsher, S.U.V. Suits].
19 Id.
20 Id.
16
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cited above demonstrate, high SUV collision risks are unquestionably
foreseeable. SUV collision risks arise directly from the specific design
attributes chosen by the manufacturers of these dangerous products. Many
legal precedents impose precautionary duties on motor vehicle manufacturers
to protect “bystanders,” specifically including the occupants of other vehicles,
against harm from defective vehicle designs. Many legal precedents also
require that vehicle designs be reasonably “crashworthy” in order to minimize
the losses from motor vehicle collisions. Thus, Part I shows after an extensive
analysis of the factors relevant to a determination of legal duty in the
automotive context that the de Veer “no duty” judicial decisions and the
academic comments quoted above were wrong. The absence of SUV
collision-damages litigation is not the result of any doctrinal limitations
imposed by current products liability law, but rather it is a perplexing
consequence of the failure of products liability attorneys to bring suit on behalf
of thousands of SUV collision victims.
Part II of this Article examines interrelated SUV design choices that have
contributed to high SUV collision risks and would certainly be subject to
judicial risk-utility balancing in design defect litigation. Part II also identifies
SUV design alternatives that could have significantly reduced the collision
risks at modest cost. While vehicle size and weight are relevant design factors
in some cases, crucial design choices could have been modified to reduce SUV
collision risks substantially over the entire period of increasing SUV
production. We believe the SUV manufacturers rushed to cash in on this
rapidly expanding, high-profit market with little attention to the safety
implications of their vehicle designs for SUV occupants and even less attention
to the safety of motorists in other vehicles. This indifference to high SUV
collision risks allowed the manufacturers to reap billions of dollars in SUV
profits while thousands of motorists with no feasible way to protect themselves
were unnecessarily killed or injured.21
Another partial explanation for the lack of legal attention to SUV collision
risks may be their low level of salience. Millions of SUVs and more millions
of passenger cars are driven on American roads every day, and automotive
crashes have become a commonplace occurrence. These accidents are seldom
deemed “newsworthy” by the media and are typically disregarded by the
general public. It is true that the danger of Firestone tire failures leading to
fatal Ford Explorer rollovers was among the most highly-publicized productsafety stories of the past decade, and many Firestone tire-related rollover
lawsuits have been filed in recent years. However, one media critique of SUVs
noted that rollover accidents involving Firestone tires on Ford Explorers have
caused about 300 deaths since 1990, while nearly 12,000 occupants of SUVs
21
See KEITH BRADSHER, HIGH & MIGHTY: SUVS—THE WORLD’S MOST DANGEROUS
VEHICLES AND HOW THEY GOT THAT WAY 81-92 (2002) [hereinafter BRADSHER, HIGH &
MIGHTY] (describing the high profits reaped by the auto industry despite devoting little
attention to the safety hazards of SUVs).
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have been killed by rollovers resulting from other hazardous SUV design
features.22 The Firestone tire problem may have held the public’s attention for
some time, but the far larger number of SUV occupant deaths from other
causes has never been comparably topical. SUV collision risks for motorists in
other vehicles are even less salient because no particular model or type of car
is predictably involved in multi-vehicle crashes with SUVs. Instead, these
collision hazards are random and unavoidable from the perspective of
passengers in other vehicles. Because there has been so little media coverage
and so few organized public protests about SUV collision risks, it is not
entirely surprising that there has been very little legal attention focused on this
public safety issue.
In comparison to the extensive products liability litigation on design defect
hazards for SUV occupants, the virtual absence of litigation or other legal
responses on SUV collision risks for motorists in other vehicles appears
mystifying and unjust for several reasons:
SUV occupants have some choice about the degree of risk to which they
are exposed and they also enjoy whatever tangible or psychological
benefits are derived from SUV use. In contrast, the occupants of other
motor vehicles cannot choose to avoid SUV collision risks except at the
unacceptable cost of giving up driving, and they do not enjoy any of the
benefits of SUV ownership.
SUV collision damages impose inefficient externality costs on other
motorists and all of society. The SUV users do not bear the full social
costs of frequent SUV collision fatalities and injuries either through
products liability damages or higher vehicle prices incorporating other
people’s collision losses. As in most externality contexts, the failure to
internalize SUV collision damages on either the SUV manufacturers or
SUV buyers means that too many SUVs will be purchased and too many
SUV collision harms will occur.
The failure to impose products liability damages for SUV design defects
resulting in excessive collision losses creates a “reverse Robin-Hood”
effect. SUV buyers are typically affluent people who normally could
afford to purchase slightly more expensive vehicles that provide greater
safety for other motorists. In contrast, the random victims of SUV
collisions will be distributed across the entire income range, including
many poor people who cannot afford the costs of buying an SUV or other
expensive vehicle that provides them with greater personal safety. It does
not appear equitable to encourage affluent people to purchase vehicles
that impose substantial uncompensated losses on poor people and on
other drivers who choose not to buy SUVs for aesthetic, safety, or
22
See Frontline: The Hidden History of the SUV (PBS television broadcast, Feb. 21,
2002), materials available at http://www.pbs.org/wgbh/pages/frontline/shows/rollover/
(accessed Oct. 13, 2002) (on file with the authors).
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environmental reasons.
The only practicable way for drivers to try to protect themselves against
SUV collision hazards is to purchase equally massive SUVs or trucks if
they can afford these “defensive” vehicles. The dangerousness of SUVs
in multi-vehicle crashes has contributed to the widespread public
misperception that SUVs are safer for their own occupants in crashes
than are other categories of passenger vehicles,23 and this misperception
has helped increase SUV sales. SUV manufacturers probably gained a
larger share of the automotive market precisely because they did not
minimize the dangerousness of their vehicles in crashes with other
vehicles. This increased SUV market share and associated profits is
surely not an equitable reward for the failure of SUV manufacturers to
reduce preventable collision fatalities for other motorists.
We are not indiscriminately attacking SUV ownership. Rather, the critical
issue is whether SUVs should have been designed to provide reasonable safety
for other motorists in multi-vehicle crashes. The same design defect products
liability doctrines applied to SUV collision hazards for SUV occupants should
also be applied to protect other motorists against SUV collision risks. This
treatment would not entail any radical or revolutionary expansion of products
liability law, but rather it would be a logical application of existing doctrinal
law and legal policies to an accident context in which defective product
designs have caused many thousands of preventable deaths and injuries while
the SUV manufacturers remained wholly immune from tort liability. This
perplexing products liability immunity is not socially efficient, it is not fair to
potential collision victims in other vehicles, and it is not consistent with current
products liability treatments of other widely-used but dangerous products.
I.
THE SUV MANUFACTURER’S DUTY TOWARD
OTHER MOTORISTS
The duty to protect others against harm from tortious misconduct is a
fundamental cornerstone of tort law and modern products liability law.24 One
23
SUVs have a lower fatality rate than passenger cars only in multi-vehicle crashes, not
in single-vehicle crashes. See infra text accompanying notes 219-22.
24 As this Part will explain, the duty to protect others under a negligence standard arises
from the foreseeability of the risks created, and this duty is breached when an actor fails to
take reasonable care in light of the foreseeable risks. Strict liability standards are applied in
a grab-bag of contexts—contaminated foodstuffs, wild animals, mislabeled poisons,
pollution dispersion, non-ordinary uses of real property, and abnormally dangerous activities
such as blasting or transporting hazardous materials. Products liability has undoubtedly
been the most important and controversial area of strict liability in the past half-century.
The themes unifying disparate strict liability doctrines are that they usually apply to
relatively dangerous activities in which one category of actors is charged with primary
responsibility for avoiding or mitigating accident losses, and the potential accident victims
are entitled to something more in comparison with the negligence standard: more
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need not review the entire history of products liability doctrines during the past
century to recognize the general responsibility placed on manufacturers to
protect potential accident victims by marketing reasonably safe, not perfectly
safe, products. For example, in the first explicit strict products liability
decision, Justice Traynor of the California Supreme Court observed that the
new doctrine’s purpose “is to insure that the costs of injuries resulting from
defective products are borne by the manufacturers that put such products on
the market rather than by the injured persons who are powerless to protect
themselves.”25
If the courts rule that manufacturers owe “no duty” to accident victims in a
particular product-use context, this treatment would preclude any judicial
determination of whether the product at issue is “defective” or “unreasonably
dangerous.” The “no duty” treatment would also release manufacturers from
any responsibility to consider the causes, dimensions, or prevention of accident
losses in the specific product-related context. Given the historical evolution
and precautionary policies underlying products liability law,26 depriving
accident victims of the opportunity to prove their injuries were caused by a
defective product must be an extraordinary rather than normal doctrinal
treatment. Manufacturers choose the design attributes of their products and it
is difficult to conceive why these deliberate design choices should be immune
from judicial evaluations of whether the product design is adequately safe or
unreasonably dangerous. Thus, the default products liability norm is, and
should be, that manufacturers do have a duty to market reasonably safe
products. Consistent with this background understanding, manufacturers
contending that they do not owe a duty of reasonable precaution to people
injured by their products should be required to meet a very strong burden of
persuasion.
Can SUV manufacturers really have “no duty” to minimize the hazards their
vehicles impose on other motorists? If this legal treatment were adopted,
manufacturers could market SUVs constructed like Sherman tanks or medieval
battering rams with no regard for the impacts these vehicles would have on the
safety of other drivers. Some of the SUV behemoth models on the market
today are not that far away in size and weight from these hypothetical
examples. If SUV manufacturers owe no duty with respect to the safety of
motorists in other vehicles, they could equip their vehicles with cowcatchers to
push inconvenient vehicles off the road or with rotating wheel-knives last seen
precaution, more favorable treatment of the burden of proof or sufficiency of the evidence,
more easily-obtained loss spreading. The duties imposed on the defendants in strict liability
contexts are correspondingly more demanding in some way than under a negligence
standard.
25 Greenman v. Yuba Power Prod., Inc., 377 P.2d 897, 901 (Cal. 1962).
26 The most famous statement of the legal and social policies underlying strict products
liability was written nearly six decades ago by Justice Traynor of the Supreme Court of
California in Escola v. Coca-Cola Bottling Co. of Fresno, 150 P.2d 436 (Cal. 1944)
(Traynor, J., concurring); see also RESTATEMENT (SECOND) OF TORTS § 402A cmt. c (1965).
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in Ben Hur and Mad Max: Beyond Thunderdome. Some consumers would
doubtless be happy to buy these innovative SUV models. These imaginative
examples are useful to emphasize that at some point, SUV manufacturers must
be subject to a legal duty to consider the safety effects of their products on
people in other vehicles.
There is no need to dwell on such fanciful SUV designs because several of
the most common design characteristics of SUVs have been strikingly
deficient from a safety perspective. As one example, most automobile
manufacturers have incorporated crush zones or crumple zones into their cars
to absorb collision energy before it penetrates the passenger compartment.27
The redesign of auto frames to absorb or deflect deadly collision forces has
been among the most important vehicle safety improvements of the decade. At
the same time, the manufacturers marketed SUVs with high ground-clearance,
upward-tilting frames, and other design attributes ensuring that these SUVs
were likely in both frontal and broadside collisions to override the crush zones
built into passenger cars. In other words, the manufacturers were improving
the safety of their passenger cars through the adoption of crush zones while the
same manufacturers designed their SUVs to miss the cars’ crush zones and to
smash into the cars’ passenger compartments during multi-vehicle collisions.
For nearly two decades, SUV manufacturers designed their SUVs to bypass the
structural safety improvements the very same manufacturers were adding to
many of their automobile models, with predictably deadly consequences for
the car occupants. Yet, this design criticism would be legally irrelevant if SUV
manufacturers really have “no duty” to adopt reasonable precautionary
measures protecting potential accident victims in other vehicles.
With reference to products liability doctrinal requirements, two central
factors, the foreseeability of the product dangers and the status of the product
seller, dominate all judicial treatments of product-related duties.28
A.
Foreseeability as the Basis for the Manufacturer’s Duty
In MacPherson v. Buick Motor Co.,29 one of the landmarks of common law
jurisprudence and certainly the most influential products liability decision,
Judge Cardozo discarded centuries of privity restrictions and based the
imposition of tort liability on the foreseeability of the life-threatening danger if
the product was negligently made, the foreseeability that the product would be
used by others than the purchaser, and the foreseeability that the product would
be used without further tests or inspections.30 Judge Cardozo made the role of
27
See IIHS, VEHICLE TYPE & WEIGHT, supra note 6, at 8-9.
This statement applies to design defect considerations. The courts have imposed all
sorts of dubious duty formulations in the context of product warnings and instructions. See
generally Howard Latin, “Good” Warnings, Bad Products, and Cognitive Limitations, 41
UCLA L. REV. 1193 (1994).
29 111 N.E. 1050 (N.Y. 1916).
30 Id. at 1053.
28
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foreseeability in defining the contours of the negligence tort duty equally clear
in his famous Palsgraf decision a dozen years later.31 Every American law
student since that time has read: “The risk reasonably to be perceived defines
the duty to be obeyed, and risk imports relation; it is risk to another or to others
within the range of apprehension.”32 Thus, the hazard must be foreseeable and
the class of potential victims must be foreseeable.
The occupants of other vehicles involved in collisions with SUVs
unquestionably meet both of these requirements, which means that the SUV
manufacturers do have a duty under negligence law to exercise reasonable care
with regard to the risks they have created. During the fifty years between
MacPherson and the common law transition to strict products liability in most
jurisdictions, the courts expanded negligence doctrines in various ways
favorable to plaintiffs,33 but the foreseeability of harm has remained a
fundamental element in prima facie negligence cases.
The MacPherson opinion emphasized that the duty established by the court
was a tort duty in no way derived from any contractual relationship:
We have put aside the notion that the duty to safeguard life and limb,
when the consequences of negligence may be foreseen, grows out of
contract and nothing else. We have put the source of the obligation where
it ought to be. We have put its source in the law.34
This emphasis on a products liability duty imposed by law contradicts any
assertion that manufacturers owe a precautionary duty to their customers but
not to other motorists. Why should SUV customers have a more favorable
legal position if the products liability duty does not arise from a contractual
relationship? When the tort duty stems from the foreseeability of harm to
motorists, there is no reason why SUV manufacturers would have any less
responsibility to consider the safety of the occupants of other vehicles who
predictably and inevitably will be imperiled by collisions with defectively
designed SUVs.
The equitable argument for imposing a products liability duty on SUV
manufacturers to protect motorists in other vehicles appears unusually
compelling because, from the perspective of the auto companies, it is
31
Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928).
Id. at 100.
33 In the MacPherson decision, Judge Cardozo imposed liability only when the negligent
product was dangerous to “life and limb,” used by a person other than the purchaser, and
used without new tests or inspections. MacPherson, 111 N.E. at 1053. In succeeding
decades, the courts eliminated these additional restrictions and brought negligent products
liability doctrine into conformance with other negligence doctrines, in which foreseeability
of the risks and failure to take reasonable care in light of the risks are the only core doctrinal
elements. Moreover, the courts began to allow widespread use of the res ipsa loquitur
presumption to establish the existence of product defects. See, e.g., Escola v. Coca-Cola
Bottling Co. of Fresno, 150 P.2d 436 (Cal. 1944).
34 MacPherson, 111 N.E. at 1053.
32
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inevitable on an actuarial basis that thousands of cars involved in collisions
with SUVs will be produced by the same motor vehicle manufacturers. Ford
Explorers will crush Ford Escorts, and Chevy Blazers will mangle Chevy
Impalas. The occupants of vulnerable passenger cars are just as much the
manufacturers’ customers as the SUV purchasers. Yet, this occasional
consanguinity should not be regarded as essential because the products liability
duty does not emerge from any contractual relationship with the vehicle
manufacturer. The requirement for privity in the consumer products liability
context has been universally abandoned in American jurisdictions. The crucial
tort duty factor is that the motorists in other vehicles involved in collisions
with SUVs are equally foreseeable accident victims, if not more so, than the
SUV occupants.
B.
Seller Status as the Basis for the Manufacturer’s Duty
Virtually all jurisdictions now impose a products liability duty on
manufacturers to market reasonably safe products because the manufacturer is
a commercial seller of new products to consumers. Section 402A(1) of the
Restatement (Second) of Torts, for example, states: “one who sells any product
in a defective condition unreasonably dangerous to the user or consumer or to
his property is subject to liability . . . .”35 The Section subsequently limits this
provision to “any person engaged in the business of selling products for use or
consumption.”36 This strict liability duty applies to sellers of new products
without regard to the foreseeability of product risks. The usual rationale for
this treatment has been that liability for defective products should be imposed
because the product was marketed to consumers who relied on the
manufacturer’s experience and competence to provide adequate product safety.
The important point is that the transition to one form or another of strict
products liability in nearly all American jurisdictions was intended to provide
more protection for product-related accident victims than the prior negligence
standard by imposing a duty that holds manufacturers liable for defective
products because the manufacturers sold unsafe products to the public. The
transition from negligence doctrine to strict products liability should strengthen
the conclusion that SUV manufacturers do have a duty to consider the full
spectrum of product-related hazards, and this precautionary duty requires them
to reduce collision risks when they can reasonably improve SUV safety.
The recently published Restatement (Third) of Torts provides that a product
“is defective in design when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the adoption of a reasonable alternative
design by the seller . . . .”37 The precautionary duty is still put on the
manufacturer because it is a seller of new products to consumers, but this
design-defect liability standard reverts to the negligence requirement that the
35
36
37
RESTATEMENT (SECOND) OF TORTS § 402A(1) (1965).
Id. § 402A, cmt. f (1965).
RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 2(b) (1998).
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product risks must be foreseeable. The Restatement (Third) Reporters argued
that it is both unfair and inefficient to expect manufacturers to prevent
unforeseeable harms, but they never tried to explain why it would be fairer or
more efficient to impose the costs of unforeseeable product-related harms on
innocent accident victims.38 However, in a context in which the product risks
are entirely foreseeable, which is certainly true of SUV collision risks, the new
Restatement provides: “One engaged in the business of selling or otherwise
distributing products who sells or distributes a defective product is subject to
liability for harm to persons or property caused by the defect.”39 When
product risks are foreseeable for a class of potential victims, as they are in the
context of SUV collision risks, there is no intimation in the Restatement
(Third) that the manufacturer owes any greater precautionary duty to its
customers than to other foreseeable victims.
Under the Second Restatement and Third Restatement provisions and under
current products liability doctrines in every jurisdiction, whether based on
strict liability, implied warranties, or negligence standards, product sellers
must provide reasonable safety for foreseeable accident victims in light of
foreseeable product risks. Privity is neither required nor legally relevant. We
have not found any exceptions to this general treatment, which places a broad
precautionary duty on product manufacturers. This duty applies squarely to
the SUV context, in which both the collision risks and likely collision victims
are completely foreseeable, and in which the manufacturers are wholly
responsible for the dangerous designs of the SUVs they have sold. The fact
that foreseeability is no longer required in many strict liability jurisdictions in
no way reduces a manufacturer’s accident-prevention duty when foreseeability
is actually present.
One might argue that SUV manufacturers cannot control the vehicle designs
or driver behavior of other vehicles on the road, and therefore the injuries of
other motorists may be “too remote” from the SUV designs. This argument is
not at all persuasive because in most instances the SUV manufacturers do
design and produce the passenger cars, and as experts in the automotive field
they should certainly be expected to understand the interactions between their
SUV designs and the designs of other common motor vehicles. The motorists
in other vehicles are not only foreseeable victims and largely helpless victims,
but they are the foreseeable victims at highest risk if an SUV is designed
defectively in ways that unreasonably endanger other vehicles.
38 See Howard Latin, The Preliminary Draft of a Proposed Restatement (Third) of Torts:
Products Liability–Letter, 15 J. PROD. & TOXICS LIAB. 169, 177 (1993) (arguing that the
Reporters never explained or justified their contention that strict products liability for
unknowable latent risks would be grossly unfair to manufacturers, considering that the
alternative treatment would place the burden of unforeseeable risks on helpless productrelated accident victims).
39 RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. §1 (1998).
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Previous “Bystander” Case Precedents
In addition to these general products liability principles and legal doctrines
protecting other motorists when automotive crash injuries can reasonably be
avoided, the majority of jurisdictions addressed and resolved this precise issue
decades ago. The Restatement (Second) strict products liability duty was
applied on behalf of “the ultimate user or consumer”40 but the Restatement
expressly offered “no opinion as to whether the rules stated in this Section may
not apply . . . to harm to persons other than users or consumers.”41 Within a
few years, many courts held that the Restatement doctrines or their own
products liability standards do apply to “bystanders” injured by accidents
arising from product defects.42 Most of these products liability “bystander”
cases involved automobile accidents and most of the bystanders were the
injured occupants of other vehicles.
The settled law in the vast majority of jurisdictions, possibly all,43 is that
automobile manufacturers owe a duty of reasonable safety to all foreseeable
bystanders including motorists in other vehicles. The only novel aspect in the
present context is that usually the design defect or manufacturing defect
threatening bystanders also threatens the occupants of the vehicle causing the
accident. That is exactly the case where an SUV rollover resulting from a
defective product design causes injuries to SUV occupants and also to the
occupants of other vehicles in a multi-vehicle crash. However, in the broader
context this Article is addressing, the essence of the design defect claim is the
manufacturer’s failure to provide reasonable safety for motorists in other
vehicles in the predictable event of SUV collisions, whether or not the
deficient design characteristics also imperil the occupants of the SUVs. We
see no reason why this distinction should in any way diminish the
manufacturer’s responsibility to other motorists, the foreseeable “bystanders”
who will be killed or injured unnecessarily if SUV designs fail to take their
safety into account.
40
RESTATEMENT (SECOND) OF TORTS § 402A(1) (1965).
Id., caveat (1).
42 Elmore v. Am. Motors Corp., 451 P.2d 84, 89 (Cal. 1969) (holding that the public
policy that protects the driver and passenger should also protect the bystander); Giberson v.
Ford Motor Co., 504 S.W.2d 8, 12 (Mo. 1974) (adopting strict liability in tort for bystanders
injured by defectively designed products); Paglia v. Chrysler Corp., 298 N.E.2d 622, 624
(N.Y. 1973) (holding that the manufacturer of a defective product may be held strictly liable
for the injuries of an innocent bystander); Darryl v. Ford Motor Co., 440 S.W.2d 630, 633
(Tex. 1969) (holding that strict liability in tort was applicable to a bystander injured by a
defective product); Valk Mfg. Co. v. Rangaswamy, 537 A.2d 622, 631 (Md. Ct. Spec. App.
1987) (adopting strict liability in tort for bystanders injured by defectively designed
products and citing other jurisdictions that have also done so), rev’d in part on other
grounds, Montgomery County v. Valk Mfg. Co., 562 A.2d 1246 (Md. 1989).
43 See, e.g., Valk, 537 A.2d at 631 (noting a “massive and essentially unanimous
movement toward an expanded coverage for bystanders”).
41
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The leading bystander case is Elmore v. American Motors Corp.,44 decided
by the Supreme Court of California more than thirty years before the de Veer
“no duty” summary judgment. The court observed:
If anything, bystanders should be entitled to greater protection than the
consumer or user where injury to bystanders from the defect is reasonably
foreseeable. Consumers and users, at least, have the opportunity to
inspect for defects and to limit their purchases to articles manufactured by
reputable manufacturers and sold by reputable retailers, where as the
bystander ordinarily has no such opportunities. In short, the bystander is
in greater need of protection from defective products which are
dangerous, and if any distinction should be made between bystanders and
users, it should be made, contrary to the position of the defendants, to
extend greater liability in favor of the bystanders.
A [defective automobile] constitutes a substantial hazard on the
highway not only to the driver and passenger of the car but also to
pedestrians and other drivers. The public policy which protects the driver
and passenger of the car should also protect the bystander, and where a
driver or passenger of another car is injured due to defects in the
manufacture of an automobile and without any fault of their own, they
may recover from the manufacturer of the defective automobile.45
In summarizing previous strict products liability decisions, the court in
Elmore emphasized that the doctrine “may not be restricted on a theory of
privity of contract” or on “the theory that no representation of safety is made to
the bystander.”46 Instead, the court held that strict products liability “has been
based on the existence of a defective product which caused injury to a human
being.”47 If the de Veer “no duty” judgment were correct, the bystander would
have no opportunity to show that the SUV causing the injury was “defective.”
The de Veer holding was completely antithetical to the reasoning of the
California Supreme Court in Elmore and virtually every other court that has
considered the bystander issue in the past three decades.
As one other example of a products liability duty extended to protect
bystanders, in 1973 the Court of Appeals of New York observed in Paglia v.
Chrysler Corp.48 that “erosion of the citadel of privity has been proceeding
apace and even more rapidly in other jurisdictions, all with the enthusiastic
support of text writers and the authors of law review articles as evidenced by
44
451 P.2d 84 (Cal. 1969).
Id. at 89.
46 Id. at 88.
47 Id. at 88-89. After citing several influential California strict products liability cases,
the court continued the quoted passage by noting: “we did not limit the rules stated to
consumers and users but instead used language [applicable] to human beings generally.” Id.
48 298 N.E.2d 622 (N.Y. 1973).
45
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an extensive literature.”49 Then, the Court of Appeals concluded that:
[T]he bystander, the nonuser, is even worse off than the user—to the
point of total exclusion from any opportunity either to choose
manufacturers or retailers or to detect defects. We are accordingly
persuaded that from the standpoint of justice . . . responsibility should be
laid on the manufacturer, subject to the limitations we set forth.50
Elmore and Paglia were both auto safety cases in which the bystander
victims were passengers in other vehicles, as the great majority of automotive
bystander cases have been. These legal precedents could not be more directly
on point with regard to SUV collision risks. From the perspectives of accident
deterrence, loss spreading, economies of scale in safety engineering, public
reliance on vehicle safety, fairness, justice, predictability—in light of every
policy consideration relevant to modern products liability law—there is
absolutely no rationale for imposing a lesser duty on manufacturers to provide
reasonable safety for collision victims in other vehicles than for the occupants
of the vehicles they have produced. The alternative “no duty” treatment would
allow SUV manufacturers to sell millions of dangerous vehicles that create
excessive risks for millions of motorists in other vehicles. At the same time,
the manufacturers would not be subject to accountability for the defective
conditions in their vehicles. This treatment would not be consistent with
current strict products liability doctrines or with the negligence law and
policies articulated by MacPherson nearly a century ago.51 Any SUV “no
duty” treatment would clearly undermine the holdings of all of the automotive
bystander cases.
D.
Case Precedents Cited in the de Veer Trial Court Opinion
There is little point in beating to death a superficial two-page opinion that
has not been published and was never intended to be. It may nevertheless be
useful to consider the precedents Judge Pluim cited in support of his view that
“the real issue in this case is one of duty.” 52 In denying the existence of a
strict products liability duty, the judge cited Dreisonstok v. Volkswagenwerk,
A.G.53 and Maneely v. General Motors Corp.54 In denying a negligence duty,
the judge cited Ballard v. Uribe,55 Edwards v. California Sports, Inc.,56 and
Rowland v. Christian.57 The Rowland decision is California’s leading
49
50
51
52
53
54
55
56
57
Id. at 626.
Id. at 627.
MacPherson v. Buick Motor Co., 111 N.E. 1050, 1053 (N.Y. 1916).
de Veer v. Morris, No. GC 020209, slip op. at 1 (Cal. Super. Ct., Mar. 28, 2000).
489 F.2d 1066 (4th Cir. 1974).
108 F.3d 1176 (9th Cir. 1997).
715 P.2d 624 (Cal. 1986).
254 Cal. Rptr. 170 (Cal. Ct. App. 1988).
443 P.2d 561 (Cal. 1968).
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authority on the general scope of the negligence duty, and we believe Rowland
clearly points in the opposite direction from Judge Pluim’s holding.58
Dreisonstok involved a single-car accident in which the driver of a VW
microbus lost control and crashed into a telephone pole at more than forty
miles per hour.59 The Fourth Circuit’s opinion followed the influential
decision in Larsen v. General Motors Corp.,60 which expanded the definition
of “intended vehicle use” to include accident collisions and held that auto
manufacturers have a duty to make their vehicles reasonably crashworthy.
Dreisonstok quoted Larsen’s caveat that
an automobile manufacturer is under no duty to design an accident-proof
or fool-proof vehicle . . . , but such manufacturer is under a duty to use
reasonable care in the design of its vehicle to avoid subjecting the user to
an unreasonable risk of injury in the event of a collision.61
Unfortunately, the de Veer trial court opinion seemed oblivious to the
second half of this passage. The Fourth Circuit Court of Appeals opinion in
Dreisonstok emphasized the particular design characteristics and functions of a
microbus and held that a court “may not impose on the manufacturer the duty”
to make this type of vehicle as safe as standard automobiles designed in a
different way to serve a different purpose.62 The court concluded: “There was
no evidence in the record that there was any practical way of improving the
‘crashability’ of the vehicle that would have been consistent with the peculiar
purposes of its design.”63
The Dreisonstok opinion acknowledged that, under Larsen, manufacturers
do have a general duty to make their vehicles reasonably crashworthy, but held
that the plaintiffs had failed to show the VW microbus was unreasonably
dangerous in light of its purpose or was more dangerous than similar minivans
on the market.64 It is one thing to find there is “no duty.” It is quite another to
hold that there is a duty of reasonable safety but the plaintiffs had failed to
prove Volkswagen breached its duty. This judicial treatment does not support
the “no duty” summary judgment issued by Judge Pluim in de Veer, where a
different type of vehicle and a different set of design features were involved.
Indeed, Judge Pluim’s unqualified “no duty” conclusion would preclude a
plaintiff from ever showing that any SUV should have been designed in a safer
58 For a discussion of the Rowland court’s duty analysis, see infra text accompanying
note 72.
59 Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir. 1974).
60 391 F.2d 495 (8th Cir. 1968).
61 Dreisonstok, 489 F.2d at 1070 n.11 (quoting Larsen v. General Motors Corp., 391 F.2d
495, 502 (8th Cir. 1968)).
62 Id. at 1075 (comparing luxury cars with economy cars, and convertibles with sedans,
and holding that different designs serve different purposes and therefore cannot be held to
equal standards of safety).
63 Id. at 1074.
64 Id.
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manner to minimize collision hazards.
The injured plaintiffs in Maneeley were riding in the cargo bed of a pickup
truck when the truck’s driver fell asleep and crashed the vehicle into a palm
tree.65 The Ninth Circuit held that the manufacturer had no duty to warn
because the dangers of riding in the back of a pickup truck are open and
obvious.66 The court further held that the manufacturer had no duty to install
passenger seats and seat-belts in the cargo bed because this would substantially
change the purpose and functions of a pickup truck.67 The court described
California’s design defect doctrine and held that the plaintiffs’ suggested
alternative design did not establish a defect under this doctrine:
Appellants seek to redesign the pickup truck to provide protective seats,
seatbelts, and occupant packaging. This alternative design would
transform the cargo-hauling pickup truck into just another passengercarrying vehicle and would eliminate its utility in carrying cargo. On the
other hand, the gravity and the likelihood of the danger posed by the
current design is minimal, because the danger is generally known to the
public and can be avoided by proper use of the cargo bed.68
None of these vehicle design factors apply in the SUV collision-risk context,
in which potential collision victims cannot reasonably protect themselves.
Both Dreisonstok and Maneeley recognized that manufacturers do have a duty
to provide reasonably safe vehicle designs. The judicial analyses of the
particular vehicles and circumstances at issue in those cases cannot be
determinative for SUVs, which entail an entirely different set of circumstances
and which threaten a different and much larger class of potential accident
victims. Both courts dismissed plaintiffs’ proposed alternatives—designing a
VW microbus with front-end protections equal to a standard passenger car, or
adding seats and seat-belts to a pickup truck’s cargo bay—on the basis of their
own lay person’s knowledge and common sense. In contrast, judges are
unlikely to understand the technical choices involved in SUV designs that
create excessive collision risks for other motorists, and judges could not say as
a matter of law that SUV designs are reasonably safe or unsafe. Nothing in
either strict liability decision cited by the de Veer trial court opinion is
inconsistent with an SUV manufacturer’s duty to provide reasonable safety for
motorists in other vehicles, and neither case supports Judge Pluim’s blanket
dismissal of the complaint against the SUV manufacturer in the de Veer case.
The inebriated plaintiff in the Edwards case climbed over a fifty-inch-high
retaining wall in a sports arena and then fell fifteen feet into a tunnel.69 The
court recognized that the arena owner did have a duty to provide reasonable
65
66
67
68
69
Maneeley v. General Motors Corp., 108 F.3d 1176 (9th Cir. 1997).
Id. at 1179-80.
Id. at 1181.
Id.
Edwards v. Cal. Sports, 254 Cal. Rptr. 170 (Cal. Ct. App. 1988).
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safety to patrons, and then held as a matter of law that the retaining wall was
sufficient to protect people from injury if they took reasonable care of
themselves.70 Thus, the court concluded that the arena owner did have a duty
to provide reasonable safety measures, but the owner did not have a duty to
take excessive precautionary measures or to prevent all accidents.71 The only
similarity this case has with the two automotive decisions discussed above is
that all three opinions in effect said the defendants had “no duty” to provide
perfect safety, when they meant that the defendants did not breach their duty to
provide reasonable safety. This is an important semantic distinction because
many courts have said that manufacturers are not “insurers” and have “no
duty” to make their products completely safe. However, this kind of statement
does not conflict with the overwhelmingly dominant rule that manufacturers do
have a duty to sell reasonably safe products.
The Ballard and Rowland cases both dealt with the duties of landowners to
provide reasonable safety for people on their premises, and these decisions
have no relevance for the SUV issue except that they provide general
discussions of the factors underlying the creation of legal duties in contexts in
which negligence law is applicable. Rowland is the leading California case,
and its list of relevant duty considerations has been cited many times:
[T]he major ones are the foreseeability of harm to the plaintiff, the degree
of certainty that the plaintiff suffered injury, the closeness of the
connection between the defendant’s conduct and the injury suffered, the
moral blame attached to the defendant’s conduct, the policy of preventing
future harm, the extent of the burden to the defendant and consequences
to the community of imposing a duty to exercise care with resulting
liability for breach, and the availability, cost, and prevalence of insurance
for the risk involved.72
The de Veer opinion cited Rowland but did not analyze any of these
Rowland “duty” factors. In our opinion, these factors clearly support the
imposition of a duty of reasonable precaution on SUV manufacturers. Serious
injuries to the occupants of other vehicles are definitely foreseeable. On an
actuarial level, many deaths are certain to occur if the vehicles are improperly
designed from a safety perspective. If the SUV design is unreasonably
dangerous, the connection between this deficiency and plaintiffs’ injuries
would be very close. The desirability of future deterrence is obvious in a
context where thousands of avoidable deaths and injuries may occur annually.
The blameworthiness would be high if the manufacturers could have prevented
many fatalities over many years but unreasonably did not. Sales of SUVs have
been very profitable and the manufacturers doubtless could have afforded to
include improved safety for other motorists in SUV designs. In contrast, the
70
71
72
Id. at 171-72.
Id.
Rowland v. Christian, 443 P.2d 561, 564 (Cal. 1968).
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burdens to society from the lack of reasonable vehicle safety have been both
high and unfair.
It is mystifying how any jurist could analyze the various Rowland factors
and fail to conclude that SUV manufacturers owe a duty of reasonable safety to
foreseeable collision victims. The analysis and case precedents cited in this
Part all indicate that SUV manufacturers are subject to the duty of providing
reasonable safety for other motorists under both strict products liability and
negligence doctrines. California was the very jurisdiction that pioneered the
imposition of strict products liability, thereby placing a somewhat greater
responsibility for product safety on manufacturers than under the previous
negligence standard. And yet the de Veer trial court opinion ignored every
influential California Supreme Court precedent in its decision that the SUV
manufacturer had “no duty” to make its vehicle reasonably safe for other
motorists. We do not believe a “no duty” defense by an SUV manufacturer
could rationally prevail on doctrinal, fairness, or social efficiency grounds.
E.
The California Court of Appeal Decision in the de Veer Case
The plaintiff in the de Veer case was seriously injured when a 1988 Range
Rover SUV crashed into the side of her 1992 Saab 900s and penetrated the
passenger compartment.73 De Veer claimed that she suffered enhanced injuries
because the SUV’s bumper was too high, the frame was too stiff, the SUV had
no energy-absorbing structures, and the SUV did not include “systems that
reduce the likelihood of overriding another vehicle.”74 In a ten-page
unpublished opinion, the California Court of Appeal affirmed the trial court’s
summary judgment against the plaintiff because it uncritically accepted the
defendant’s characterizations that SUVs have “higher ground clearance for offroad performance, and a stiffer chassis and greater mass (or weight) than
passenger cars to enable them to carry bigger and heavier cargo.”75 The court
noted that the Range Rover’s “bumper height, stiffness coefficient, and weight
are comparable to similar SUV makes and models.”76
The primary conclusions reached by the appellate court were that SUV
manufacturers have no legal duty to provide crashworthiness protections for
bystanders including motorists in other vehicles,77 that “de Veer seeks to
impose liability on Land Rover [the manufacturer] because the Range Rover is
an SUV,”78 and that the SUV design was not defective because its front end
73
de Veer v. Land Rover, No. B141538, slip op. (Cal. Ct. App. Aug. 14, 2001)
(unpublished opinion), aff’g de Veer v. Morris, No. GC020209, slip op. (Cal. Super. Ct.
Mar. 28, 2000).
74 Id. at 2-3, 7.
75 Id. at 2; see id. at 7, 9.
76 Id. at 2; see id. at 9.
77 See id. at 5, 9.
78 Id. at 8.
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must be “higher, stiffer, and heavier than a passenger car to enable it to
perform off road and carry heavy cargo . . . .”79 The Range Rover, as with all
SUVs, possesses features, under attack by de Veer, so that it can accomplish
what it is designed to do.”80 The court then declined “to impose a standard of
care in which the SUV manufacturer must alter the inherent characteristics of
its product in order to make it crash compatible with passenger cars.”81
In our view, the court of appeal conclusion that the collision risks created by
Range Rovers and other SUVs arise from “inherent characteristics” of SUV
designs ignored the plaintiff’s expert testimony, usurped the proper function of
the jury, and was unquestionably wrong as a factual finding. In reaching its
no-duty, no-defect, no-liability holding, the court of appeal made several
palpable legal errors and disregarded virtually all of the products liability
policies articulated by the California Supreme Court.
1.
Legal Custom and Evidence of Recent Improvements
With regard to whether the Range Rover’s design could be found defective,
the court of appeal disparaged82 the plaintiff’s expert testimony in three
paragraphs of critical importance:
[De Veer’s expert] states that the front end of the Range Rover is “very
high, and this was unnecessary for the function or performance of a sport
utility vehicle.” While federal regulations require passenger car bumpers
to be brought within a specified range, there is no similar regulation
imposed on SUVs. Thus, SUV bumper heights vary, but are generally
higher than passenger cars. De Veer’s expert does not say that Range
Rover’s bumper height was higher than similar SUV makes and models,
or increased the risk of directly striking a passenger car occupant, as it did
here. His objection to the higher bumper heights addresses the problem
with utility vehicles as a class, not the Range Rover.
De Veer’s expert states that there are ways to reduce the bumper height of
the Range Rover and still maintain the same ground clearance for offroad performance. He points to the Mercedes Benz SUV that has a
bumper height equivalent to passenger cars. The Range Rover is not
defective because some of its competitors are now manufacturing SUVs
with lower bumpers. De Veer’s expert does not name any 1988 model
SUV with a bumper height equivalent to a passenger car . . . .
With respect to vehicle stiffness, de Veer’s expert states that “[t]he
79
Id. at 9.
Id.
81 Id. at 10 (emphasis added).
82 The court of appeal prefaced the three paragraphs quoted here by claiming that: “For
the most part, de Veer’s expert’s declaration contains vague, speculative, and conclusory
statements.” Id. at 6-7.
80
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suspension and chasis [sic] of the 1988 Range Rover does not have to be
designed as it was, in order to carry big and heavy cargo or to tow trailers
and boats.” He describes several alternative designs, but he does not
name one other SUV of similar make and model that employed the
alternative design in 1988 or does so now. Nor does de Veer’s expert
discuss the economic feasibility of these designs.83
We contend that until the past few years no SUV manufacturer incorporated
any “crashworthy” safety features in their vehicles to reduce the dangers from
multi-vehicle collisions.84 All of the manufacturers were callously indifferent
to the thousands of deaths and injuries their vehicles were causing in collisions
with passenger cars. The uniform absence of SUV protections against high
collision risks in 1988 does not exonerate any SUV manufacturer from liability
if their vehicles could have been made safer at reasonable cost when they were
put into the stream of commerce. The insistence of the court of appeal on
evidence comparing the Range Rover against other 1988 SUVs seems to create
a new category of legal custom that would insulate any SUV from liability if
all of the competing models in a given year lacked adequate safety features.
This treatment of legal custom is a clear misapplication of California law.
In the leading American case on custom, Judge Learned Hand wrote: “[A]
whole calling may have unduly lagged in the adoption of new and available
devices . . . . Courts must in the end say what is required; there are precautions
so imperative that even their universal disregard will not excuse their
omission.”85 The most commonly cited California Supreme Court decision on
custom similarly observed: “In determining negligence, the standard is due
care, and such standard is not fixed by custom, . . . and custom, while it may
assist in determination of what constitutes due care, is never a substitute for
due care.”86 The principle that industry custom is admissible but not binding
on the determination of reasonable care is so well-established that we were
unable to find any California Supreme Court case more recent than 1972 in
which this issue was raised.87 In sum, the safety features of other SUVs in
1988 would be relevant to the issue of whether the Range Rover design was
defective, but the vehicle design could not be found legally acceptable solely
on the rationale that no other SUV in 1988 had a safer design.
The plaintiff’s expert submitted evidence that recent Mercedes SUVs have
lower bumpers to reduce the likelihood of overriding passenger cars without
sacrificing off-road performance and cargo capacity, but the court rejected this
evidence on the ground that no SUV in 1988 had incorporated equivalent
83
Id. at 7.
See infra text accompanying notes 223-33; BRADSHER, HIGH & MIGHTY, supra note
21, at 198-203.
85 The T. J. Hooper v. Northern Barge Corp., 60 F.2d 737, 739 (2d Cir. 1932).
86 Owen v. Rheem Mfg. Co., 187 P.2d 785, 786 (1947); see Pauly v. King, 284 P.2d 487
(Cal. 1955).
87 See Gyerman v. U. S. Lines Co., 498 P.2d 1043, 1051 (Cal. 1972).
84
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design features. This judicial treatment reflects another legal error. Although
post-accident safety improvements by the defendant ordinarily cannot be
introduced for the purpose of showing that defendant’s behavior was
unreasonable, subsequent improvements are admissible to show that a safer
product design could have been adopted in the past.88 The California Supreme
Court has held that the evidentiary exclusion of subsequent improvements by a
manufacturer is not required in strict products liability cases, where the issue is
the defectiveness of the product and not the culpability of the manufacturer.89
In a related opinion, the California Supreme Court observed that in products
liability litigation the admission of evidence of subsequent improvements
would encourage “distributors of mass-produced goods to market safer
products.”90 The California Court of Appeal further held that evidence of
subsequent safety improvements by a third party, not the defendant, would be
admissible under any circumstances even without the California Supreme
Court’s special rule in products liability cases.91 These rulings apply directly
to the plaintiff’s attempted use of safety improvements in Mercedes SUVs to
show that the 1988 Range Rover could have been made in a safer way without
losing significant utility.
Technically, the court of appeal in the de Veer case did not exclude the
expert’s testimony; the court simply disparaged and ignored this testimony
because the expert did not point to any 1988 SUVs with comparably low
bumpers. Yet, the major purpose of submitting evidence of subsequent
improvements is to show that better safety features could have been used in
earlier SUV models but had not been. The expert testimony on recent safety
improvements by Mercedes was a direct refutation of the court’s mistaken
conclusion that high SUV collision hazards arise from “inherent” design
requirements of this type of vehicle. However, the court of appeal was
adamant that the Range Rover risks were inherent in all SUVs, and its de novo
imposition of summary judgment prevented a jury from considering any of
plaintiff’s expert evidence on potentially safer alternatives to the 1988 Range
Rover design.
In the same vein, the court refused to give any credence to the safer
alternative suspension designs described by the plaintiff’s expert because “he
does not name one other SUV of a similar make and model that employed the
alternative design in 1988 or does so now.”92 The appellate court was again
mistaken in insisting that there must be industry adoption of potential safety
measures before these proposed alternatives can be regarded as credible. The
court’s rejection of safer design alternatives presented by a qualified expert
because these alternatives had not been adopted by any SUV manufacturer
88
89
90
91
92
See Ault v. Int’l Harvester Co., 528 P.2d 1148, 1150-53 (Cal. 1974).
See id.; Schelbauer v. Butler Mfg. Co., 673 P.2d 743, 747 (Cal. 1984).
Schelbauer, 673 P.2d at 747.
See Magnante v. Pettibone-Wood Mfg. Co., 183 Cal. App. 3d 764, 767-68 (1986).
de Veer v. Land Rover, No. B141538, slip op. at 7 (Cal. Ct. App. Aug. 14, 2001).
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would insulate a laggard industry from the need to improve the safety of their
dangerous products.
We have not found any jurisdiction, including California, in which a
qualified expert is precluded from identifying feasible safety improvements
even if no firm in the relevant industry has adopted those design features. The
industry practice is relevant and admissible, but so is expert testimony that the
industry could have adopted safer designs. The plaintiff’s expert witness in the
de Veer case presumably was qualified by education and experience to present
proposed alternative designs. In contrast, the three appellate judges were not
automotive experts, and they evidently accepted as gospel the fallacious
premise that high SUV collision risks are inherent and cannot practicably be
reduced. As a result of embracing this fallacy, the court affirmed a summary
judgment that prevented the jury from weighing the Range Rover design
against plaintiff’s expert testimony and examples of recent safety
improvements that might have been adopted in 1988 or earlier. The California
Court of Appeal panel, without knowing anything about the wide range of
design alternatives potentially available to reduce SUV collision risks, decided
that they should make the critical determination on SUV non-defectiveness
rather than allowing the plaintiff to develop her full case before a jury.
The plaintiff chose not to appeal the summary judgment to the California
Supreme Court and the de Veer litigation has consequently ended. Yet, the
treatments discussed here will be important in future products liability actions
brought against SUV manufacturers on the grounds of excessive collision
risks. Part II of this Article describes numerous SUV design problems and
safer alternative designs that could have reduced collision hazards arising from
mismatches between SUV and passenger car characteristics. Part II also
identifies a number of safety improvements adopted by SUV manufacturers in
the past few years; indeed, nearly every SUV manufacturer seems to have done
something to reduce SUV collision risks by some degree. Based on the large
volume of SUV design information now readily available, we do not believe
any future court could conclude that SUV collision risks are inherent or
inescapable. Expert evidence about SUV design alternatives and recent safety
improvements, such as lower and stronger bumpers, lower and more flexible
structural frames, better independent suspensions, and inclusion of effective
crush zones, should be admissible and powerful proof that the designs of older
SUVs and many current SUVs could have been made appreciably safer for
motorists in other vehicles at modest cost with little loss in utility.93
2.
Judicial Risk-Utility Balancing
The heart of design defect litigation is the judicial risk-utility balancing
process (RUB) comparing the risks and benefits of the product as it was
marketed by the manufacturer or seller in contrast to the probable risks and
benefits of the product if it had incorporated alternative safety features. The
93
See supra text accompanying note 88.
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plaintiff must normally show the product was “defectively designed” or
“unreasonably dangerous” because the proposed alternative designs would
have made the product significantly safer without prohibitive cost increases or
substantial lost utility. The RUB process is used by the great majority of
American courts to determine if a product design is legally acceptable or
unreasonably dangerous. In Barker v. Lull Engineering Co.,94 for example, the
California Supreme Court identified five general factors relevant to the RUB:
[T]he gravity of the danger posed by the challenged design, the likelihood
that such danger would occur, the mechanical feasibility of a safer
alternative design, the financial cost of an improved design, and the
adverse consequences to the product and to the consumer that would
result from an alternative design.95
In Cepeda v. Cumberland Engineering Co.,96 the New Jersey Supreme Court
chose substantially the same criteria but divided them into a list of seven RUB
factors: the usefulness and desirability of the product, the safety aspects or
risks of the product, the availability of safer substitutes, the availability of an
alternative design that would eliminate the unsafe character of the product
without impairing the product’s usefulness or making it too expensive, the
user’s ability to avoid the danger by exercising due care in the use of the
product, the user’s awareness of the product’s dangers and their “avoidability,”
and the manufacturer’s loss-spreading ability.97 Several jurisdictions have not
explicitly accepted risk-utility balancing and instead use some form of
“consumer expectations” test. However, the various factors these courts
consider in determining whether an objective reasonable consumer would
“expect” a safer product are usually very similar to the customary RUB
factors.98
In practice, the RUB process very rarely compares the overall utility of a
product against its aggregate risks. In the great majority of design defect cases,
the plaintiff submits a proposed safer alternative design that allegedly should
have been incorporated into the product. Then the court must weigh and
balance the risks of the product as it was made by its manufacturer against the
94 573 P.2d 443 (Cal. 1978). California is one of the few jurisdictions in which the
courts imposed the burden of proof on the product manufacturer to prove its product was not
defective. See id. at 455-56.
95 Id. at 455.
96 386 A.2d 816 (N.J. 1978), overruled on other grounds, Suter v. San Angelo Foundry
& Mach. Co., 406 A.2d 140 (N.J. 1979).
97 Id. at 826-27. The Cepeda opinion quoted from John W. Wade, On the Nature of
Strict Tort Liability for Products, 44 MISS. L.J. 825, 837-38 (1973), which first articulated
this seven-part test.
98 See, e.g., Clay v. Ford Motor Co., 215 F.3d 663 (6th Cir. 2000) (affirming verdict on
the basis that the jury could have found a design defect under either the consumer
expectations test or the risk-utility balancing test); McCathern v. Toyota Motor Corp., 985
P.2d 804 (Or. Ct. App. 1999).
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likely risks, costs, and benefits of the product if the safer alternative design had
been adopted. In effect, the RUB compares the design of the product put into
the stream of commerce against the potentially safer product design the
plaintiff contends should have been adopted.99 The product’s overall utility
may outweigh its risks by a thousand times, but its design can nonetheless be
found defective if an alternative design would have reduced the risks at a
reasonable cost without significantly reducing the product’s benefits.
In the famous Ford Pinto case, for example, the court did not compare the
utility of the Pinto or of compact automobiles generally against the overall
hazards presented by the Pinto.100 Rather, the court compared the risk of
having the Pinto’s gas tank placed in a vulnerable position at the rear end of
the vehicle against the reduced risk from putting the gas tank in a more
protected position.101 The utility of the Pinto was hardly discussed because the
safer alternative design would not have diminished the Pinto’s automotive
benefits. Thus, the critical issues in design defect litigation are ordinarily the
dangerousness of the product design in question and the availability of
technically and economically practicable safer alternatives.
This is a crucial point in the context of the de Veer case. The court of appeal
essentially treated SUV utility as if it were an on/off switch:
The law does not impose an obligation on automobile manufacturers to
make homogenous vehicles, but takes into account, in determining
liability, the unique designs of a vehicle. . . . [A]ccepting de Vere’s theory
of liability fails to consider the unique features of a special class of
vehicles that are designed to perform off road and carry more and heavier
cargo.102
In the RUB process, the lost utility associated with an alternative design is
evaluated and balanced along with all other relevant factors. In many
instances, such as in the Ford Pinto case, improved vehicle safety would not
have entailed any lost utility and therefore the product’s utility was not a
material factor in the balancing process. In the de Veer case, the plaintiff’s
expert claimed that the Range Rover design could have been modified to
increase the vehicle’s safety for other motorists without reducing SUV
utility.103 Yet, the court ignored these statements and evidently assumed that
reducing SUV collision risks would be wholly incompatible with retaining the
special utility it ascribed to SUVs. In light of the SUV safety improvements
made by manufacturers in recent years without sacrificing significant utility,
99
See, e.g., Soule v. General Motors Corp., 882 P.2d 298 (Cal. 1994).
Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757 (Cal. Ct. App. 1981) (upholding
judgment for plaintiffs in defective design action based on consumer expectations
instruction, and holding that the reasonableness of the product itself, not the reasonableness
of the manufacturer’s conduct, is the jury’s proper focus under strict liability).
101 Id.
102 de Veer v. Land Rover, No. B141538, slip op. at 9 (Cal. Ct. App. Aug. 14, 2001).
103 See id. at 7.
100
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the court of appeal’s binary characterization was wholly untenable. Only
product utility that would actually be lost through the adoption of safer
designs, not the entire utility of the product, should be considered in a court’s
RUB calculus. It is difficult to believe that the de Veer court of appeal thought
all SUV utility would have to be sacrificed to reduce SUV collision risks, but
this is exactly how the court’s opinion was written.
Part II describes a number of improvements in the safety of SUV designs
that manufacturers have voluntarily adopted in recent years. Most of these
recent design changes could have been made in 1988 or earlier, and none of
these changes has required a reduction in SUV performance.104 In other
words, inspection of recent SUV safety changes suggests that SUVs could
have been made appreciably safer more than a decade ago with very little lost
utility and very minor costs in comparison with SUV prices. Yet, the court of
appeal in the de Veer case treated safety for other motorists and SUV utility for
users as mutually incompatible.
Moreover, if reducing high SUV collision risks to a significant extent did
require the loss of a considerable measure of SUV utility, the RUB process
would balance the dimensions of the lost utility against the increased safety
benefits. There is absolutely no suggestion in Barker,105 the leading California
case on products liability and risk-utility balancing, that reducing product
utility would always outweigh improving product safety. The court of appeal
in its de Veer opinion quoted the Barker explanation of the RUB process,106
and then the de Veer court proceeded to treat “the unique features of a special
class of vehicles” as utterly sacrosanct without regard to the preventable risks
these SUV features were creating.
3.
Crashworthiness and Bystander Protection
The court of appeal in de Veer refused to impose a products liability duty on
SUV manufacturers to protect “third parties or nonusers when the design
defect is not the cause of the accident.”107 The court rejected the plaintiff’s
claim, as the court interpreted it, that “automobile manufacturers are liable for
enhanced injuries unless they make vehicles that are crash compatible. . . . In
essence, de Veer seeks not only a crashworthy vehicle but a fail-proof one.”108
The court’s “fail-proof” red herring, which was not supported by any quoted or
paraphrased statement by plaintiff reported in the opinion, suggests that the
court of appeal viewed the phrase “crash compatible” as another on/off switch.
According to the court’s interpretation, SUVs could only become crash
compatible by eliminating all of the “inherent characteristics” that enable
SUVs to provide their distinctive performance benefits. This artificial
104
105
106
107
108
See infra text accompanying notes 260-61.
573 P.2d 443 (Cal. 1978).
de Veer v. Land Rover, No. B141538, slip op. at 5-6.
Id. at 4-5.
Id. at 5.
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dichotomy failed to recognize the many variations and gradations in
crashworthiness protections that diverse SUV designs could incorporate.
Because the appellate court apparently concluded that SUV designs inherently
could only provide either crash compatibility or SUV performance, rather than
a reasonable balance of both, the court mistakenly eliminated the legal duty for
SUV manufacturers to provide any safety for motorists in other vehicles.
The court’s denial of the SUV manufacturers’ products liability duty toward
the occupants of other vehicles is wholly incompatible with the automotive
safety principles established by previous California Supreme Court decisions.
To be specific, the court of appeal treatment conflicted with the California
Supreme Court crashworthiness doctrine, the bystander doctrine, and the
doctrine imposing strict liability for any foreseeable accident victim injured by
a defective product. The de Veer appellate opinion cited most of the leading
California products liability cases that established these doctrines, but the court
of appeal did not make any attempt to explain its “no duty” finding in light of
the legal holdings and policy discussions in these California Supreme Court
cases. In essence, the cases cited by the court of appeal provide absolutely no
support for the restrictive treatment of duty imposed in de Veer, and most of
these decisions clearly cut in the opposite direction.
The court of appeal tried to draw a distinction by claiming that plaintiff’s
injuries allegedly resulted “from a design defect that had no causal relationship
to the accident.”109 And later in the opinion, the court similarly claimed that
the bystander doctrine does not apply “when the design defect is not the cause
of the accident.”110 These statements completely misconstrue the basis for the
crashworthiness doctrine in California and other states. The legal cause of the
enhanced injury in these cases is the “second collision,” the one resulting from
the failure of the vehicle to provide reasonable protection against injuries from
crashes. It is wholly irrelevant in crashworthiness doctrine whether the design
defect causing the “second collision” had anything to do with causing the
initial crash, and in most cases it did not.
In the famous Larsen case, the design defect was the vulnerability of the
steering column to rearward displacement, hitting the driver with excessive
force, but the steering column did not cause the head-on collision.111 In Cronin
v. J.B.E. Olsen Corp.,112 the leading California crashworthiness decision, the
design defect was a hasp that broke loose after a collision and allowed trays in
a bread truck to slide forward and injure the driver; the hasp and trays had
nothing to do with causing the crash. In Daly v. General Motors Corp.,113 the
design defect in question was a car door latch that allegedly allowed the driverside door to fly open as a result of the crash, but the door latch had nothing to
109
110
111
112
113
Id. at 1.
Id. at 5.
Larsen v. General Motors Corp, 391 F.2d 495, 497 (8th Cir. 1968).
501 P.2d 1153 (Cal. 1972).
575 P.2d 1162 (Cal. 1978).
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do with causing the crash. In the 1994 Soule case,114 the left front wheel broke
loose as a result of crash forces and smashed the floorboard under the
plaintiff’s feet, but the errant wheel was not the cause of the initial accident.
The court of appeal opinion in de Veer cited Cronin, Daly, and Soule,115 but
none of the California Supreme Court crashworthiness or second-collision
decisions said one word supporting the de Veer opinion’s requirement that the
design defect causing the enhanced injuries must somehow be linked to the
cause of the original accident. To the contrary, these California Supreme
Court decisions all approved the imposition of damages based on design
defects causing enhanced injuries in crashworthiness contexts in which the
alleged design defects did not have any causal connection to the original crash.
Another California Supreme Court decision cited by the de Veer opinion
emphasized the scope of the crashworthiness doctrine: “[In Cronin we] upheld
a verdict in favor of the plaintiff and against the manufacturer of the truck
declaring that liability rested not on the basis that the hasp caused the collision
but only that its defectiveness was a substantial factor contributing to [the
plaintiff’s] injuries.”116 The Soule decision similarly stated: “Because traffic
accidents are foreseeable, vehicle manufacturers must consider collision safety
when they design and build their products. Thus, whatever the cause of an
accident, a vehicle’s producer is liable for specific collision injuries that would
not have occurred but for a manufacturing or design defect in the vehicle.”117
This established crashworthiness treatment is the exact opposite of the causallink requirement the de Veer court of appeal imposed in its unpublished
opinion.
Both the trial court and appellate court in de Veer apparently found
persuasive the defendant’s argument118 that if SUVs are defective unless they
are crash compatible with passenger cars, then “heavy trucks would be
defective unless crash compatible with buses, and both would be defective
unless crash compatible with pickup trucks, vans, and SUVs.”119 This
assertion again reflects the court’s binary on/off misconception that vehicles
are either perfectly crashworthy or not crashworthy at all.
A manufacturer cannot be held liable for the inadequate crashworthiness of
its vehicle unless the design is found to be defective. The vehicle design
cannot be found defective unless the jury concludes that the design’s risks
outweigh its benefits in comparison with an alternative design incorporating
improved safety features at a feasible cost. The RUB analysis will include
consideration of the varying purposes, risks, benefits, design characteristics,
114
See Soule v. General Motors Corp., 882 P.2d 298 (Cal. 1994).
de Veer v. Land Rover, No. B141538, slip op. at 3-5 (Cal. Ct. App. Aug. 14, 2001).
116 Horn v. General Motors Corp., 551 P.2d 398, 401 (1976) (citing Cronin v. J.B.E.
Olson Corp., 501 P.2d 1153, 1157 (1972)) (emphasis added).
117 Soule, 882 P.2d at 303 (emphasis added).
118 See BRADSHER, HIGH & MIGHTY, supra note 21, at 185.
119 de Veer v. Land Rover, No. B141538, slip op. at 5.
115
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available safety measures, and costs associated with different types of vehicles.
Because the circumstances will vary for each of the categories of vehicles
mentioned by the de Veer opinion, the RUB analysis and the relative weights
assigned to disparate factors may also differ. A design element found
defective in the context of one type of vehicle may be found acceptable in
another type of vehicle after consideration of all the relevant factors.
Unlike the other categories of vehicles the court of appeal cited, many
millions of SUVs are driven exclusively on highways for the purpose of
ordinary passenger transportation. This is overwhelmingly the most common
use of SUVs. The RUB analysis would take this typical SUV usage into
account in evaluating the high collision risks created by SUVs. The RUB
would also consider the “unique” benefits of SUVs emphasized by the de Veer
opinion. On the basis of the RUB process, the jury would determine whether a
given SUV was reasonably safe or unreasonably dangerous. A critical flaw in
the de Veer appellate court’s analysis is that it failed to distinguish between
reasonable crashworthiness, the ultimate issue examined in the RUB, and
perfect crashworthiness. Products liability law has never required perfect
vehicle safety, but it also has never insulated unreasonably dangerous vehicles
from liability on the ground that no vehicle could achieve perfect safety.
If a bus or truck crashed into another vehicle because its brakes were
inadequate in relation to its weight and common uses, the vehicle’s design
would doubtless be judged defective. If the bus or truck were involved in a
highway accident and exploded in flames that engulfed several passenger
vehicles because its gas tank was located in an excessively vulnerable position,
the design should be found defective on crashworthiness grounds just as if the
vehicle were a Ford Pinto.120 The utility of the bus or truck would not be a
relevant issue in the RUB process if the gas tank could have been made safer at
a minimal cost without reducing the vehicle’s utility. Under the de Veer
court’s “no duty” treatment, however, a bus, truck, or SUV would not owe a
duty of crashworthiness to the occupants of passenger cars, and the
manufacturer would therefore not be liable for collision damages even if the
gas tank at issue was made of tin or paper-mâché. The court of appeal’s
holding that SUV manufacturers do not owe any duty of crashworthiness safety
to other motorists because SUVs cannot be perfectly crash compatible with
passenger cars is legally and logically indefensible.
With regard to design defect suits brought by bystanders, including
motorists in other vehicles, the de Veer opinion rejected plaintiff’s citation to
Elmore121 on the spurious ground that there was no link between the secondcollision design defect and the cause of the initial accident.122 Moreover, the
court completely ignored the policies articulated in Elmore and other bystander
120 For another crashworthiness case involving allegedly defective placement of a
vehicle’s gas tank, see Self v. General Motors Corp., 116 Cal. Rptr. 575 (1974).
121 See Elmore v. Am. Motors Corp., 451 P.2d 84, 89 (Cal. 1969).
122 de Veer v. Land Rover, No. B141538, slip op. at 4-5.
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cases. There is no reason to repeat our previous discussion of the leading
bystander treatments123 except to quote again part of Elmore’s conclusion:
If anything, bystanders should be entitled to greater protection than the
consumer or user where injury to bystanders from the defect is reasonably
foreseeable . . . . The public policy which protects the driver and
passenger of the car should also protect the bystander, and where a driver
or passenger of another car is injured due to defects in the manufacture of
an automobile and without any fault of their own, they may recover from
the manufacturer of the defective automobile.124
The court of appeal in de Veer noted that the plaintiff did not submit any
case citations in which the crashworthiness doctrine had been extended to
bystanders.125 Then the court cited a few decisions, including Daly, in which
the victims of enhanced injuries had been occupants of vehicles involved in
single-car crashes, not bystanders.126 None of these decisions said anything
about whether the crashworthiness doctrine should or should not apply to
bystanders because there were no bystander litigants in those cases. We have
no idea why the court cited these cases unless it was attempting to support its
statement that: “An automobile manufacturer has a legal duty to design its
vehicles for the safety of the occupants in an accident.”127 Immediately
following this statement, the court cited the Doupnik case128 in which a
drunken driver’s car rolled over in a single-car accident and the defective roof
collapsed on him. When a judicial opinion involving a single-car accident
never even mentions the possible liability claims of non-existent bystanders, it
seems fair to say that this decision provides no legal authority supporting the
de Veer court’s conclusion that the crashworthiness doctrine does not apply to
bystanders.
In the absence of cases directly on point, the most appropriate course is to
look at the legal policies underlying strict products liability doctrines in
California and jurisdictions with similar liability laws. Certainly, Elmore and
the other leading bystander cases cut in favor of imposing design defect
liability because of the typical helplessness of the bystanders at risk from
defective SUV designs. Given the statistics that show SUVs kill and injure
thousands of motorists in other vehicles every year, it would be hard to point to
any other mechanical product in America that threatens as many bystanders
with serious harm. In the context of holding that automotive crashes are a
normal occurrence and manufacturers must design their vehicles to provide
reasonable protection for foreseeable accident victims during these crashes,
123
See supra text accompanying notes 44-51.
Elmore, 451 P.2d at 89.
125 de Veer v. Land Rover, No. B141538, slip op. at 5.
126 See id.
127 Id. at 4.
128 See id. (citing Doupnik v. General Motors Corp., 225 Cal. App. 3d 849, 859 (Cal. Ct.
App. 1990)).
124
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Cronin noted that:
Although a collision may not be the “normal” or intended use of a motor
vehicle, vehicle manufacturers must take accidents into consideration as
reasonably foreseeable occurrences involving their products. The design
and manufacture of products should not be carried out in an industrial
vacuum but with recognition of the realities of their everyday use.129
This statement that “manufacturers must take [foreseeable] accidents into
consideration” is precisely the opposite of the De Veer “no duty” holding that
excludes any need for manufacturers to consider the safety of thousands of
foreseeable accident victims in other vehicles every year. It is rather surprising
that the de Veer appellate opinion quoted this same passage.130 The “realities”
of everyday SUV usage are that millions of SUVs are driven as ordinary
passenger vehicles, creating serious collision risks for all of the passenger cars
on the highways, while the use of SUVs for off-road driving is miniscule
compared to their typical use for highway driving.131 Other motorists, the
bystanders at greatest risk, are “in reality” exposed to avoidable SUV hazards
every day on the rationale that a very small percentage of SUV owners might
very occasionally use their vehicles for off-road driving. In light of these
“realities” of everyday use, we believe the de Veer decision makes absolutely
no sense. The potential “lost utility” from reducing SUV collision risks ought
to be compared in a judicial RUB against the potential reduction in collision
risks, but this RUB analysis is precisely what the de Veer summary judgment
foreclosed.
Many California cases have followed Barker132 in holding that a product
design may be found defective if it embodies “excessive preventable danger”
as determined when a jury concludes that the product’s risks outweigh the
design’s benefits after conducting the RUB.133 None of these cases held that
only some foreseeable accident victims should be protected against product
designs that create excessive preventable danger, while millions of other
foreseeable accident victims should be excluded from legal recourse.
Cronin observed: “Although the seller is not responsible for all injuries
involving the use of its products, it should be liable for all injuries proximately
caused by any of its products which are adjudged ‘defective’.”134 Daly
explained that strict products liability “was created judicially because of the
economic and social need for the protection of consumers in an increasingly
129
Cronin v. J.B.E. Olsen Corp., 501 P.2d 1153, 1157 (Cal. 1972) (citations omitted).
de Veer v. Land Rover, No. B141538, slip op. at 4.
131 See infra text accompanying notes 255-57.
132
Barker v. Lull Engineering Co., 573 P.2d 443, 454 (Cal. 1978).
133 See, e.g., Soule v. General Motors Corp., 882 P.2d 298, 305-06 (Cal. 1994); Hansen
v. Sunnyside Prod., Inc, 55 Cal. App. 4th 1497, 1512 (1997); Buccery v. General Motors
Corp., 60 Cal. App. 3d 533, 545 (1976).
134 Cronin, 501 P.2d at 1162 (emphasis added).
130
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complex and mechanized society.”135 Then Daly quoted the famous passage
from Greenman stating that the purpose of strict products liability is “to insure
that the costs of injuries resulting from defective products are borne by the
manufacturer that put such products on the market rather than by the injured
persons who are powerless to protect themselves.”136 Motorists in passenger
cars are perfect examples of consumers who are powerless to protect
themselves against SUV collision risks resulting from defective designs.
In the Buccery decision, also cited by the de Veer appellate opinion, the
court stated: “A motor vehicle manufacturer is required to foresee that . . .
accidents will occur, including high speed collisions between vehicles.
Because of this possibility he is required to design his vehicle to minimize
unreasonable risks of injury and death.”137 Buccery did not suggest that this
legal protection should apply to all foreseeable victims of motor vehicle
crashes except for the millions of motorists endangered by SUV collision risks.
Finally, Barker, California’s leading products liability decision, stated that
courts will impose liability on manufacturers if “the trier of fact concludes that
the product’s design is unsafe to consumers, users, or bystanders.”138
To summarize these California products liability precedents and policies, the
California courts have held that any foreseeable accident victim should be
protected against “excessive preventable danger.” Barker and Elmore stated
that bystanders are entitled to compensation for accident losses from defective
products. Cronin observed that manufacturers should be liable for “all
injuries” proximately caused by defective products. Greenman emphasized
that consumers who are powerless to protect themselves should not have to
bear accident losses from defective products. Several California opinions,
including Cronin, Soule, Horn, and Buccery held that automotive
crashworthiness doctrines apply to any preventable enhanced injuries and do
not require that the design defect causing the “second collision” play any role
in the initial collision. The California Court of Appeal panel in the de Veer
case cited all of these leading California Supreme Court and Court of Appeal
decisions, and yet it completely ignored their specific holdings and their
determinations about the purposes and scope of products liability doctrines. In
light of these legal precedents and in light of the great hazards for other
motorists from defectively designed SUVs, the de Veer court’s “no duty”
judgment is clearly insupportable.
We have not devoted this much attention to criticizing the California Court
of Appeal decision in de Veer simply to rehash a completed case that in our
opinion was unjustly dismissed as a result of improper judicial reasoning. All
of the same legal and factual issues will doubtless be raised again in future
products liability actions focusing on excessive SUV collision risks, and
135
136
137
138
Daly v. General Motors Corp., 575 P.2d 1162, 1166 (Cal. 1978).
Id. (quoting Greenman v. Yuba Power Prod., Inc., 377 P.2d 897, 901 (Cal. 1962)).
Buccery v. General Motors Corp., 60 Cal. App. 3d 533, 546 (1976).
Barker, 573 P.2d at 457 (emphasis added).
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defense counsel will almost certainly be pushing the same invalid arguments
that dominated the trial court and appellate court decisions in the de Veer case.
II.
DANGEROUS SUV DESIGN FEATURES AND SAFER ALTERNATIVES
In September of 2002, Keith Bradsher, the former New York Times Bureau
Chief in Detroit, published High & Mighty: SUVs—The World’s Most Dangerous
Vehicles and How They Got That Way, a book highly critical of the design
choices made by SUV manufacturers that created excessive collision risks for
the occupants of other vehicles.139 After discussing the facts surrounding the
de Veer case, Bradsher observed:
Men and women like Diana De Veer are being needlessly maimed and
killed every day by stiff, high-riding SUVs that slide over cars’ bumpers
and sturdy door sills, slamming into passenger compartments. What
makes these deaths especially disgraceful is that many researchers
pointed out in the 1970s and early 1980s that it would be lethal to ever
design vehicles that were especially stiff and had high front ends. Yet,
automakers ignored this research until the later 1990s, helping millions of
Americans switch from low riding cars with fairly soft front ends to tall,
stiff SUVs.140
This passage makes clear Bradsher’s view, which we share, that SUV
collision risks are primarily the result of explicit design choices by the
manufacturers. This Part of the Article describes many hazardous design
choices that have contributed to the high collision risks of SUVs. It is
important to emphasize from the outset of this discussion that these were
deliberate design choices made by SUV manufacturers, not immutable
necessities. The SUV manufacturers could have chosen to adopt alternative
design features that would have saved thousands of lives, but they chose not to
make the safer choices.
Many consumers regard SUVs as desirable products, and no one could argue
that these vehicles lack any social value. However, recognition of consumer
utility does not suggest that the SUV models marketed in the past two decades
have been reasonably safe for their occupants or for other motorists. This
determination would depend largely on whether the SUVs could have been
made significantly safer at reasonable cost, which in turn depends on a RUB
analysis of dangerous SUV design characteristics and the existence of safer
alternative designs that could reasonably have reduced SUV collision risks.
One way of organizing this assessment is to look at three different modalities
or etiologies of SUV collisions that endanger the occupants of other vehicles:
rollover crashes, overriding crashes, and level-plane crashes between SUVs
and passenger cars.
139
140
BRADSHER, HIGH & MIGHTY, supra note 21.
Id. at 169.
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Rollover Crashes
Many judicial decisions have found SUV designs defectively dangerous for
their occupants because the vehicles have been unduly prone to rollover
accidents. The central premise of this sub-section is that exactly the same kind
of design-defect analysis should apply when motorists in other vehicles are
injured as a direct result of SUV rollovers. This is the typical bystander case in
which a type of vehicle design endangers its users as well as foreseeable
bystanders. If an injured SUV driver or passenger could bring a successful
products liability case based on the vehicle’s vulnerability to rollovers, the
occupants of other vehicles injured by the same rollover crashes resulting from
the same defective SUV design characteristics should be able to win the same
kind of design defect cases.
There are numerous SUV defects to challenge in accident contexts where
SUV rollovers have directly killed or injured motorists in other vehicles. The
earliest SUVs had crude passenger compartments attached to the steel frames
and underbodies of pickup trucks. The manufacturers marketed these rugged
but uncomfortable utility vehicles to sportsmen or other buyers who wanted a
substantial off-road driving capability. These initial SUVs were not meant to
be operated primarily on highways in the same manner as other passenger
vehicles. Within the next few years, however, the SUV manufacturers
discovered or created a broader market demand for these multi-purpose
vehicles. By the early 1980s, the manufacturers began offering SUVs, notably
the Ford Bronco II and Chevy Blazer, equipped with more luxurious and
attractive passenger compartments that were nevertheless still anchored to
pickup truck platforms.141
The result of this fusion of different vehicle types, sometimes called a
design “compromise,”142 was an SUV with the high ground clearance, frame
rigidity, and narrow track width (the distance between each pair of wheels) of a
pickup truck combined with a heavier, higher passenger compartment that
raised the vehicle’s center of gravity to an unsafe degree.143 When the SUVs
were filled with passengers and cargo, the additional weight was carried
predominantly above the center of gravity and therefore compounded the
vehicle’s instability.144 These frequently unstable “off-road” vehicles were
141
For chronologies of the early development of SUVs, see Frontline: The Hidden
History of the SUV (PBS television broadcast, Feb. 21, 2002); BRADSHER, HIGH & MIGHTY,
supra note 21, at 3-42.
142 Keith Bradsher, Study of Ford Explorer’s Design Reveals a Series of Compromises,
N.Y. TIMES, Dec. 7, 2000, at A1 [hereinafter Bradsher, Study of Ford Explorer].
143 See, e.g., Clay v. Ford Motor Co., 215 F.3d 663 (6th Cir. 2000) (discussing the high
center of gravity and “geometry of the vehicle”); McCathern v. Toyota Motor Corp., 985
P.2d 804 (Or. Ct. App. 1999) (discussing the risks from narrow track width and high center
of gravity); BRADSHER, HIGH & MIGHTY, supra note 21, at 149-65.
144 Michael Winerip, What’s Tab Turner Got Against Ford?, N.Y. TIMES MAG., Dec. 17,
2000.
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increasingly driven on roads and highways as if they were normal passenger
cars. Many thousands of SUV users were subsequently killed or seriously
injured when their vehicles overturned during emergency maneuvers.
The large number of SUV rollover deaths and injuries in the past two
decades was not primarily a consequence of vehicle weight and size, but rather
was caused by specific design choices combining a rigid frame, narrow track
width, high ride-height, and a high center of gravity. Another persistent SUV
design problem involved reliance on comparatively stiff suspension systems.
A stiff suspension may be useful for maintaining high ride-height and roadclearance during relatively slow off-road driving, but the same suspension
design can be unacceptably dangerous for rapid highway driving and quick
reactions under emergency conditions.
For example, Ford chose to use the Twin I-Beam suspension in the Bronco
II and in later Explorer models despite contrary recommendations by some of
the Company’s own safety engineers.145 In addition to stiffness that generally
increased the likelihood of a rollover during sharp turns or other evasive efforts
in driving emergencies, the Twin-I Beam suspension was prone to “jacking.”
One expert witness in a rollover case explained jacking by noting that: “in a
hard turn, this suspension will cause the front end of the vehicle to rise and the
track width to decrease, making the vehicle taller and narrower and elevating
the center of gravity.”146 Another rollover-case opinion described jacking as
having “two effects: (1) the tires will move inward under the vehicle, causing
the vehicle to become narrower, and (2) the front of the vehicle moves up,
making the vehicle taller. As a result, stability decreases instantaneously.”147
Both of these judicial decisions found that jacking may have contributed to
rollovers in particular accident settings, and they also found the SUV designs
defective for the purpose of ordinary highway driving.
All of these dangerous characteristics were known and largely ignored by
the SUV manufacturers from the inception of their successful efforts to massmarket SUVs as general-purpose passenger vehicles. In affirming a punitive
damages award in Ford Motor Company v. Ammerman, the Indiana Court of
Appeals presented a particularly detailed description of the design and
development process leading to the introduction of the Bronco II.148 The court
emphasized that Ford had ignored the safety warnings and recommendations of
its own engineers and had cancelled live driving tests because of the known
145 See Clay, 215 F.3d at 668-71 (discussing the drawbacks of Twin I-Beam suspension
and finding that the Ford engineers suggested various changes that would have reduced the
chance of rollovers, but these recommendations were ignored by the company); Ford Motor
Co. v. Ammerman, 705 N.E.2d 539, 546 (Ind. Ct. App. 1999) (finding that Ford engineers
recommended an alternative suspension design that would have lowered the Bronco II’s
center of gravity).
146 Clay, 215 F.3d at 668.
147 Ammerman, 705 N.E.2d at 546 (citation omitted).
148 Id. at 545-49.
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dangers for its professional test-track drivers.149 Ford nevertheless pushed
ahead with Bronco II production to meet a pre-determined market date in order
to avoid losing market share to the Chevy Blazer and other competitors.150
The Ammerman opinion observed: “It is apparent to this court that Ford was
motivated by profits rather than safety when it put into the stream of commerce
a vehicle which it knew was dangerous and defective.”151 The court also
reached a typical punitive damages conclusion: “Ford showed ‘utter
indifference’ or conscious disregard of the rights of others.”152
As of 1995, Ford had settled more than 300 Bronco II rollover cases for over
$113 million,153 and products liability judgments in other rollover cases
imposed compensatory and punitive damages awards against Ford.154 Yet,
Ford had hardly begun to correct rollover-related design deficiencies by 1995,
and its best-selling SUV model, the Explorer, continued to experience a high
incidence of rollovers. In describing the 1990 transition from the Bronco II to
the Ford Explorer, a New York Times article paraphrased the comments of
Stephen Ross, the director of Ford’s Explorer development team:
Instead of a whole new design, which would be far too costly, [Ford]
would simply bolt a roomy passenger cabin, stocked with leather seats
and other family-friendly amenities, to the underbody of the existing
Ranger pickup truck. The plan’s crowning beauty was that the new
vehicle could be built on the Ranger assembly line, using many of the
same robots and auto parts.155
A story by another reporter documented that the Explorer prototypes failed
Ford’s own safety tests. Ford’s own engineers again recommended safety
improvements that were ignored in order to market the Explorer at an earlier
date.156 The result was a dangerous vehicle with a high center of gravity and
erratic stability leading to many rollover accidents.157 This story also noted in
2000 that “a recently published federal safety scorecard gives a fully loaded
Explorer the worst rollover rating, one star out of a possible five stars.”158 The
149
See id.
See id. (reviewing the history of the design and introduction of the Bronco II).
151 Id. at 562.
152 Id. at 556 (citation omitted).
153 Winerip, supra note 144.
154 See, e.g., Clay v. Ford Motor Co., 215 F.3d 663, 666 (6th Cir. 2000); Ammerman, 705
N.E.2d at 546.
155 Bradsher, Study of Ford Explorer, supra note 142.
156 See Winerip, supra note 144, at 12.
157 See Ammerman, 705 N.E.2d at 545; see also Bradsher, Study of Ford Explorer, supra
note 142 (explaining that SUVs are more prone to rollovers than cars and minivans due to
their higher center of gravity); Winerip, supra note 144, at 3 (reporting that the safety tradeoff for higher “command seating” is a higher center of gravity making rollovers more
likely).
158 Winerip, supra note 144, at 4.
150
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reporter concluded, “Ford engineers who developed the Explorer were trying
to make the very same safety changes as the Ford engineers who developed the
Bronco II a decade earlier—widening the vehicle and replacing the front-end
suspension—but they, too, were overruled for cost reasons.”159 For two
decades, Ford marketed SUVs that were unreasonably vulnerable to rollovers,
and many of these vehicles are still on the roads.
Ford’s SUVs are certainly not the only motor vehicles in this category to
have high rollover risks.160 Until a few years ago, virtually every SUV was
based on a pickup truck platform with high ride-height, narrow track-width,
poor stability during emergency maneuvers, and the other safety disadvantages
of this hybrid vehicle design. However, Ford has been the SUV sales leader
and the most common defendant in rollover litigation. Instead of redesigning
the Explorer to reduce rollovers, Ford decided to equip its most popular SUV
model with relatively small, low-pressure tires that would reduce the vehicles’
road-height and center of gravity to some degree. These lower-inflation tires
were subject to constant heat from road friction and provided little margin of
safety under emergency conditions. Nevertheless, Ford chose to rely on this
low-inflation tire-based rollover prevention scheme and subsequently replaced
higher-quality Goodyear tires with Firestone tires as a cost-cutting measure.161
The delamination of Firestone tires under ordinary highway driving conditions
became perhaps the most widely-publicized product safety story of the past
decade. However, many readers may not realize that the Firestone tire
problem was largely confined to Explorers and was a result of Ford’s decision
to utilize smaller tire-size and lower tire-inflation pressure in response to the
SUV rollover problem rather than to make structural design changes to reduce
Explorer rollover risks.162
This overview of SUV rollover risks has a twofold purpose. First, it should
help to show that SUV safety hazards arise from a combination of specific
design choices, rather than from the inherent attributes of the vehicle. Indeed,
159
Id. at 14.
See, e.g., Livingston v. Isuzu Motors, 910 F. Supp. 1473 (D. Mont. 1995); Rodriguez
v. Suzuki Motor Corp., 996 S.W.2d 47 (Mo. 1999); McCathern v. Toyota Motor Corp., 985
P.2d 804 (Or. Ct. App. 1999).
161 Keith Bradsher, Ford Chose Tires Now Being Recalled to Reduce Risk of Rollover,
Document Shows, N.Y. TIMES, Aug. 20, 2000, at A24 [hereinafter Bradsher, Tires]
(reporting that an internal company document demonstrates that Ford considered using
higher pressure tires than the Firestone tires but decided against it due to rollover concerns);
Winerip, supra note 144, at 13 (explaining that Ford refused a Goodyear price increase in
1996 and subsequently began equipping Explorers exclusively with Firestone tires to keep
SUV costs down).
162 See BRADSHER, HIGH & MIGHTY, supra note 21, at 303-38 (providing a
comprehensive discussion of Firestone tire problem); Keith Bradsher, Expert Says Car
Weight Was Key in Tire Failures, N.Y. TIMES, Feb. 3, 2001, at C2 [hereinafter Bradsher,
Car Weight] (weight of the Ford Explorer affected how quickly cracks spread throughout
the Firestone tires); see also sources cited supra note 161.
160
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there are so many vehicle design alternatives that it is difficult to designate any
particular characteristic as inherent. Second, most of the design characteristics
responsible for rollover risks to SUV occupants—high vehicle ride-height,
high center of gravity, rigid structural frames, and inflexible suspensions—are
also dangerous for motorists in other vehicles. In this regard, one statistician
consultant to NHTSA found that the design of the Explorer caused almost as
many collision fatalities to people in other vehicles each year as the sum of all
tire-related deaths of Explorer occupants during the past decade.163
The availability of safer alternative designs can be demonstrated using
recent SUV model changes that have reduced vehicle rollover hazards.
Perhaps the most widespread and fundamental change is that many SUV
manufacturers have begun in the past few years to market smaller, lighter,
lower-riding SUVs based on automobile structural platforms rather than pickup
truck frames. This change reduced the ride-height, center of gravity, and frame
rigidity of the new SUVs.164 Even truck-based SUVs have reduced the
likelihood of rollovers in various ways: In 1998, General Motors decreased the
ride-height of its Silverado pickup truck by lowering the position of the frame
rails by two inches. GM then made the same change to its Suburban and
Tahoe SUVs, which are based on the Silverado truck platform.165 Ford
lowered the ride-height of the 2002 Explorer by two inches while actually
increasing the vehicle’s ground clearance through the adoption of an improved
suspension system.166 A March, 2000 story in the New York Times listed nine
American SUV models that had lowered the steel rails in their SUVs’
163 See Bradsher, High Fatality Rate, supra note 4 (reporting on the work of Dr. Hans
Joksch of the University of Michigan).
164 See, e.g., Keith Bradsher, Domination, Submission and the Chevy Suburban, N.Y.
TIMES, Mar. 23, 1997, at D1 [hereinafter Bradsher, Domination]; Sport Utility Special 2001,
CONSUMER REPORTS SPECIAL ISSUE, Apr. 16, 2001, at 31, 52, 69, 72, 85, 90, 110 (reporting
design and performance specifications for the BMW X5, Ford Escape, Hyundai Sante Fe,
Lexus RX300, Mazda Tribute, and Subaru Forester).
165 See Steven Wilmsen, Auto Makers Working on Safer SUV Designs, BOSTON GLOBE,
Mar. 22, 2000, at D1 (reporting that GM’s 1998 design modifications to the Chevy
Suburban made it two inches lower and 250 pounds lighter); GENERAL MOTORS CORP., 1999
GMC SILVERADO PRESS KIT: THE BIGGER, FASTER, STRONGER, AND SMARTER SILVERADO
STARTS WITH A NEW FRAME (1999), available at http://media.gm.com/chevy/99chevy/
silverado/prodinfo/desmanu.htm (accessed Nov. 10, 2000) [hereinafter 1999 GMC
SILVERADO PRESS KIT]; GENERAL MOTORS CORP., 1999 GMC SUV PRESS KIT: THE
ORIGINAL FULL SIZE SUVS ARE STILL THE BEST 1-3 (1999), available at
http://media.gm.com/chevy/press/99kits/tah_subkit/features.htm (accessed Nov. 10, 2000).
166 See Keith Bradsher, Changes in Ford Explorer Aim at Protecting Other Motorists,
N.Y. TIMES, Aug. 4, 2000, at C1 [hereinafter Bradsher, Changes in Ford Explorer]
(reporting that the 2002 Ford Explorer will have a one inch increase in ground clearance
while the entire vehicle will ride substantially lower); FORD MOTOR CO., 2002 EXPLORER
MEDIA INFORMATION 1-4 (2000) [hereinafter 2002 EXPLORER MEDIA INFORMATION].
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underbodies and also made the frames lighter and less stiff.167 Another partial
trend was for some manufacturers to design new SUVs from the ground up as
distinctive vehicles, rather than basing them on existing truck or auto
platforms. In 1998, for example, Daimler Benz introduced the Mercedes MClass SUVs with many safety improvements for both SUV occupants and
motorists in other vehicles.168 In 2002, Ford finally stopped manufacturing the
Explorer on a pickup-truck frame and created a separate design package for the
new Explorer.
Improvements in recent vehicle designs can frequently be used to show the
availability of safer alternatives at the time when the manufacturers chose more
hazardous designs. In one rollover case brought against Toyota, for example,
the court cited the testimony of plaintiff’s expert “that the design of the 1996
4Runner—which was lighter, had a wider track width, and a lower center of
gravity than the 1994 4Runner—achieved a substantially increased degree of
stability.169 Toyota conceded that the design changes made in the 1996 model
could have been incorporated into the design of the 1994 4Runner.”170 The
Oregon Court of Appeals affirmed a judgment for plaintiff because there was
“sufficient evidence from which a jury could find that the 1996 4Runner
design was a safer practicable design available at the time that Toyota
manufactured the 1994 4Runner.”171 We do not know why Toyota chose to
produce a somewhat safer SUV model in 1996 before the American “Big
Three” manufacturers devoted any serious attention to the SUV rollover
problem. However, in the past few years nearly all SUV manufacturers have
done something to make their SUVs less prone to rollover hazards, and most of
these changes, such as reducing ride-height, increasing track-width, and using
fully independent suspensions,172 undoubtedly could have been incorporated
167 See Keith Bradsher, Carmakers to Alter, supra note 2, at C4 (reporting that the 2000
Chevy Suburban, Tahoe, and GMC Yukon, the 2001 Ford Explorer, and the 2002 Ford
Expedition, Lincoln Navigator, Chevy Blazer, GMC Envoy and Oldsmobile Bravada have
lowered the steel rails in their underbodies).
168 See Dina El Boghdady, Car Safety Focus Shifts: Once Obsessed With Dangers of
Sport Utility in Crashes, Feds Now Look to Make Autos Safer, DETROIT NEWS, Nov. 11,
1999, at A1; Keith Bradsher, Sport Vehicles Can be Built to be Safer, Insurers Say, N.Y.
TIMES, July 8, 1999, at A16 [hereinafter, Bradsher Insurers] (reporting that the Mercedes
has a relatively soft front end which absorbs energy during collisions, reducing damage to
the other vehicles); DAIMLER-BENZ CO., 2001 M-CLASS PRESS KIT 29 (2001) [hereinafter
2001 M-CLASS PRESS KIT] (showing a picture of an M-Class’s front bumper meeting the
front bumper of a Mercedes sedan at almost the same height).
169 McCathern v. Toyota Motor Corp., 985 P.2d 804, 808 (Or. Ct. App. 1999).
170 Id. at 808.
171 Id. at 817.
172 See, e.g., Ford Motor Co. v. Ammerman, 705 N.E.2d at 539, 546 (Ind. Ct. App. 1999)
(“Ford did have safer choices, and its own engineers recommended the use of a MacPherson
strut which lowers the center of gravity.”); McCathern, 985 P.2d at 817; BRADSHER, HIGH &
MIGHTY, supra note 21, at 198-203.
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into SUV designs from the first time these vehicles were marketed to the
public.
There is no need here to identify every specific design defect that plaintiffs
have proved in rollover litigation against SUV manufacturers. Hundreds of
successful rollover cases have been brought by injured occupants of SUVs, and
the same design defects should lead to successful products liability actions by
SUV rollover victims in other vehicles. If a pedestrian is hit and killed when
an SUV rolls over as a result of a defective design, the victim’s estate would
surely have a strong products liability case against the SUV manufacturer.
There is no doctrinal reason why rollover victims in other vehicles, who are
lawful bystanders as much as the pedestrian, should have any weaker products
liability case.
B.
SUV Overriding Crashes
For motorists in other vehicles, the most dangerous characteristic of SUVs is
their propensity to override the strongest, most protective structures of
passenger cars and to transfer excessive crash energy directly to the passenger
compartments of the other vehicles.173 As NHTSA has noted, SUVs “exhibit a
wide variation in ride height and are, in general, much higher than passenger
cars. Variation creates a mismatch in structural load path in frontal impacts
and sometimes enables [an SUV] structure to override a car door sill and more
readily strike vehicle occupants in side impact collisions.”174 SUVs impose
excessive collision damage because the height differential creates a mismatch
between their structures and the protective structures of vehicles with lower
ride-heights.175 In frontal collisions or collisions on a tangent, SUVs often
override a passenger car’s front bumper and frame, driving the engine or other
relatively soft metal components into the passenger compartment.176 In frontal
173
See IIHS, PERSPECTIVE, supra note 7, at 7-11 (discussing the problem of “geometric
mismatch” in front-to-side collisions); IIHS, VEHICLE TYPE & WEIGHT, supra note 7, at 8-11
(discussing “crash incompatibility” generally and “geometric mismatch” in particular); U.S.
NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., OVERVIEW OF VEHICLE COMPATIBILITY/LTV
ISSUES 4 (1998) [hereinafter NHTSA, OVERVIEW]; U.S. NAT’L HIGHWAY TRAFFIC SAFETY
ADMIN., THE AGGRESSIVITY OF LIGHT TRUCKS AND VANS IN TRAFFIC CRASHES 10-18 (1998)
[hereinafter NHTSA, AGGRESSIVITY]; Keith Bradsher, Light Trucks, Heavy Risk: A Special
Report; A Deadly Highway Mismatch Ignored, N.Y. TIMES, Sep. 24, 1997, at A1
[hereinafter Bradsher, Light Trucks] (reporting that mismatch accidents account for the
majority of deaths in two-car crashes, and eighty percent of these deaths are in cars).
174 NHTSA, OVERVIEW, supra note 173, at 4.
175 See IIHS, VEHICLE TYPE & WEIGHT, supra note 7, at 8-9 (exploring the problem of
collisions involving vehicles with the main “energy absorbing” elements at different
heights); NHTSA, AGGRESSIVITY, supra note 173, at 15; NHTSA, OVERVIEW, supra note
174, at 4.
176 See IIHS, VEHICLE TYPE & WEIGHT, supra note 7, at 10 (finding that in front-to-front
crashes between cars and SUVs, the car occupants are four times more likely to die than the
SUV occupants); Bradsher, Changes in Ford Explorer, supra note 166 (reporting that Ford
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collisions between large SUVs and passenger cars, the SUV can ride up onto
the car’s hood and crush it,177 striking the base of the windshield and causing
devastating damage to the car’s passenger compartment and its occupants.
This height differential is even more lethal in side-impact collisions.178 The
sill areas below the doors of a passenger car are part of the vehicle’s frame and
are much stronger than the doors themselves, which are usually two thin metal
sheets around a hollow space with very little capability to absorb the forces of
a collision.179 When a passenger car strikes another car in the side, its bumper
and frontal structure ordinarily impact on the other car’s door sill area.180 In
comparison, SUVs regularly override the car door sill and strike the passenger
car in the middle of its doors.181 In these broadside accidents, the SUV’s frontend penetrates the car’s passenger compartment with lethal consequences.182
Based on these SUV scenarios, one study by British researchers concluded that
up to seventy-five percent of the excess collision damage caused by SUVs is
due to their ride-height differential.183
There is relatively little variation in the bumper heights of passenger cars
because NHTSA imposes an automobile bumper-height standard.184 SUVs, in
contrast, are regulated as light trucks and are not required to meet any bumper
standard. Some SUVs, such as the Ford Expedition, have bumpers so high
above the ground that their bottom height exceeds the top height of many car
bumpers: overriding is inevitable given this bumper height differential. With
regard to side-height variations, NHTSA found that the rocker panel height of
lowered the Explorer’s frame rails and inverted the frame horns to reduce its propensity to
override); Keith Bradsher, Ford Adds Bars to Make a Large Sport Utility Vehicle Safer,
N.Y. TIMES, Feb. 27, 1999, at A8 [hereinafter Bradsher, Ford Adds Bars] (reporting that Ford
added horizontal steel bars under the front and back bumpers of the Excursion to reduce
override propensity).
177 See IIHS, VEHICLE TYPE & WEIGHT, supra note 6, at 8-10 (discussing the dynamics of
front-to-front override collisions).
178 See IIHS, PERSPECTIVE, supra note 7, at 7 (finding that occupant death is seven times
more likely to occur in a side-struck passenger car than in a striking passenger car, but
occupant death is twenty-six times more likely to occur in the side-struck passenger car than
in a striking SUV or pickup); NHTSA, AGGRESSIVITY, supra note 173, at 15.
179 See IIHS, PERSPECTIVE, supra note 7, at 7 (concluding that weak side-structure and
“limited crush space” account for the greater “vulnerability of occupants in side-struck
vehicles”); IIHS, VEHICLE TYPE & WEIGHT, supra note 6, at 9 (explaining that lack of “crush
space” on the side-struck vehicle combined with height mismatch and the greater stiffness
of SUV front ends make such collisions particularly devastating).
180 See IIHS, VEHICLE TYPE & WEIGHT, supra note 6, at 9 (explaining that door sill areas
are stronger and provide more protection to passenger car occupants than the car doors when
struck).
181 Id.
182 See id. at 10; NHTSA, AGGRESSIVITY, supra note 173, at 15.
183 Bradsher, Ford Adds Bars, supra note 176.
184 See NHTSA, AGGRESSIVITY, supra note 173, at 15.
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average cars is almost 200 millimeters (eight inches) lower than the rocker
panels of the measured SUVs.185 NHTSA concluded that these height
discrepancies “readily permit the SUV to override any side structure in a car
and directly strike the car occupant.”186 When an SUV overrides a car bumper
or door sill, neither vehicle’s primary crush zones absorb the crash energy,
thereby “diminishing effective energy absorption.”187 This incompatibility in
effect creates a more severe crash for the occupants of other vehicles because
their crush zones do not efficiently absorb collision forces.188
It is important to stress that this common SUV design characteristic, high
ride-height, contributes to frequent SUV rollovers and to frequent SUV
overriding of other vehicles during collisions. If this characteristic is found
defective in rollover litigation because there were safer alternative designs, the
same conclusion should be reached in the overriding collision context. The
main factors that determine ride-height are the position of the frame rails in an
SUV, the suspension that maintains vehicle stability when the wheels hit a
depression or obstruction, and the size of the wheels and tires. The frame rails
support the passenger compartment, engine, transmission, and other heavy
components.
Before addressing the relevance of these structural design factors for the
creation of SUV overriding hazards, it may be helpful to envision a “Big Foot”
truck that has vertical columns several feet high positioning the frame far
above the axles, a suspension holding the frame reasonably level as the “Big
Foot” is intentionally driven over other trucks and cars, and huge tires mounted
on large wheel rims. The “Big Foot” design was adapted from a pickup truck
platform expressly to override and crush other vehicles as a form of
entertainment. The consequence of most common SUV designs, which were
also adapted from pickup truck designs, is that nearly all SUVs until recently
have been little “Big Foots” with similar, though less extreme, attributes of
high frame rails, stiff suspensions, and relatively large wheels. The
manufacturers may not have intended SUVs to override other passenger
vehicles, but that has happened repeatedly, predictably, and fatally for two
decades during multi-vehicle collisions between SUVs and cars.
High ride-height is not the only SUV design characteristic that contributes to
fatal overriding in multi-vehicle crashes. As noted above, “jacking” resulting
from excessively rigid vehicle suspensions increases the SUV ride-height in
emergency turns or panic stops and increases the corresponding likelihood of
overriding during multi-vehicle collisions.189 Another dangerous SUV design
characteristic contributing to overriding is frame horn curvature. Most SUVs
185
See id.
Id.
187 IIHS, PERSPECTIVE, supra note 7, at 9.
188 Id. (explaining that the crush zones of the striking vehicle are “stiffer” than the sidestruck vehicle’s doors).
189 See supra text accompanying notes 146-47 (discussing the dynamics of “jacking”).
186
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were based on pickup truck designs in which the main structural frame consists
of two parallel steel rails running the length of the vehicles. These frame rails
are connected by rigid steel cross-bars supporting the engine, passenger
compartment, and other components. Frame horns are the “foot long segments
of the frame rails in front of the front cross-bar” that ordinarily “curve up
slightly to just behind the bumper or the grille” of the SUV.190
The intended function of upward-curved frame horns is a mystery, but their
consequences for collision hazards endangering other vehicles are not. Skis,
ice-skate blades, sleds, and toboggans have upward-curved front surfaces to
carry them up and over obstructions without catching and spilling their users.
The effect of frame horn upward-curvature is similarly to override obstructions
and consequently to exacerbate SUV overriding of other vehicles during
collisions.191 We have not found any purpose for frame horn curvature except
to enable SUVs to override obstructions, though perhaps the SUV designers
were thinking of off-road bumps in the ground rather than the bumpers and
other protective structures of passenger vehicles.
Two kinds of safer alternative design features could have reduced SUV
overriding propensities and the many collision fatalities overriding has caused.
The first set of design features is precisely the same as the safer designs
intended to reduce SUV rollover risks: lower ride-height, redistribution of
SUV structural components to lower the vehicle’s center of gravity, and more
flexible suspensions.192 These design features would increase the safety for
SUV occupants and also the safety of the occupants of other vehicles. In
contrast, the second type of alternative design features could have been
specifically directed at reducing SUV overriding problems.
Some recent SUV designs have included safety features meant to overcome
the disparities in ride-height between SUVs and cars. For example, starting in
1999, Ford began equipping its behemoth Excursion SUV model193 with a
hollow steel beam, called “the blocker beam,” for the express purpose of
preventing overrides.194 The blocker beam is mounted six inches below the
190
Bradsher, Changes in Ford Explorer, supra note 166; see BRADSHER, HIGH &
MIGHTY, supra note 21, at 200-01.
191 Bradsher, Changes in Ford Explorer, supra note 166 (reporting that frame horns
contribute to the overriding of car bumpers and door sills).
192 See supra text accompanying notes 164-72 (discussing design modifications that
reduce rollovers). As one illustration, a New York Times story reported:
Automakers plan to mount the stiffest, heaviest, most dangerous parts of sport utilities’
frames lower in the vehicles without affecting their ground clearance. This will require
suspension changes, including adjustable-height suspensions in some models that will
automatically lower the vehicles’ bodies except when four-wheel drive is engaged at
very low speeds.
Bradsher, Carmakers to Alter, supra note 2.
193 The Ford Excursion SUV weighs about 7700 pounds, more than three times the
weight of an average passenger car. See Winerip, supra note 144.
194 See Bradsher, Changes in Ford Explorer, supra note 166 (reporting that Ford did not
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frame of the Excursion behind the front bumper, and its main function is to
meet the other car’s frame directly during a collision. The blocker beam will
engage the other vehicle’s bumper, or the side sill in a broadside crash, because
it has been placed at the same height off the ground as the other vehicle’s
frame. The hollow blocker beam is also designed to bend backwards at its
brackets and to crumple in order to absorb some of the crash energy.195 In its
new full-size Sequoia SUV, Toyota installed similar “impact-absorbing hollow
bars below the bumpers to keep it from overriding cars in collisions.”196
Mercedes has adopted a comparable feature among a number of safety
innovations. As part of a new SUV design introduced in the late 1990s to
increase the safety for passengers of M-Class SUVs and for people in other
vehicles, Mercedes included “below and behind” the front bumper “a hollow,
horizontal tube that amounts to a second bumper at the same height as a car
underbody. This tube and two hollow steel boxes behind it are designed to
crush during crashes, absorbing energy that might otherwise be transmitted to
either vehicle’s occupants.”197 Again, the key element is incorporation of a
horizontal bar, beam, or tube that meets the other car’s frame during a frontal
or broadside collision. This structural feature reduces the chance of the SUV
overriding the other vehicle’s frame, imparting lethal crash energy to the
passenger compartment. In a similar safety-oriented redesign, the 2000 Chevy
Suburban and GMC Yukon XL were equipped with lower-mounted bumpers
less prone to override the front-ends of other vehicles.198 There is no reason to
doubt that these kinds of simple structural protective measures could have been
included in every generation of SUVs from the first one to the present at little
expense. But they were not included until recently, and there are millions of
SUVs in use today that possess no safety features to protect against overriding
other vehicles.
With regard to the frame horn curvature problem, the frame horns in Ford’s
2002 Explorer model have been inverted to curve slightly downward. Ford’s
Director of Mid-Size SUVs noted that this reversal required “some engineering
use the “BlockerBeam” system on the Explorer because Ford lowered the whole frame over
two inches in 2000); Bradsher, Ford Adds Bars, supra note 176 (discussing the
implementation of the BlockerBeam system on the Ford Excursion); FORD MOTOR CO.,
2000 MODEL YEAR INNOVATIONS DEMONSTRATE FORD COMMITMENT TO INCREASED SAFETY,
SECURITY, AND CONVENIENCE 5 (2000), available at http://media.ford.com/article_
display.cfm?article_id=2697 (accessed Sept. 1, 2002) [hereinafter FORD MOTOR CO., 2000
MODEL YEAR INNOVATION] (explaining that the “BlockerBeam” system prevents smaller
cars from “sliding underneath the front end” of the SUV).
195 See Bradsher, Ford Adds Bars, supra note 176 (reporting that the “hollow steel beams
are designed to bend and absorb energy in a crash”); FORD MOTOR CO., 2000 MODEL YEAR
INNOVATION, supra note 194 (discussing the BlockerBeam’s energy absorbing function).
196 Bradsher, Carmakers to Alter, supra note 2.
197 Bradsher, Car Weight, supra note 162; see also 2001 M-CLASS PRESS KIT, supra note
168.
198 Bradsher, Carmakers to Alter, supra note 2.
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changes in the front end of the vehicle” and yet was “fairly easy to
manufacture because factory robots make roughly the same welds as before but
with the front segments inverted.”199 General Motors has also inverted its
frame horns and added “crush caps” to the frame rail ends to serve as crush
zones that absorb collision forces.200 Again, these design alternatives could
have been implemented at any time during the past twenty years, and there are
now millions of SUVs on the roads that have dangerous upward-curving frame
horns for little discernable reason. Until very recently, the SUV designers
simply were not devoting any attention to the safety of motorists in other
vehicles, though we believe they should have been. Even as simple a factor as
upward-pointing or downward-pointing frame rail horns could make a critical
difference for some collision fatalities.
It is seldom possible to determine precisely why safety improvements are
incorporated into motor vehicles: Does this happen because of increased
consumer “demand” for safety, competitive pressures when one manufacturer
introduces a safety innovation and advertises it, fear of products liability
judgments or NHTSA regulation, creation of technically better or cheaper
production methods, or managerial changes in a company that may give safety
a higher priority? For fifteen to twenty years, no SUV manufacturer made
significant efforts to remedy the dangerous design features that contributed
greatly to SUV rollovers and overriding of other vehicles in collisions with
SUVs. Since the late-1990s, almost all of the SUV manufacturers have done
something to improve SUV safety, though not necessarily enough to make
their vehicles reasonably safe for ordinary highway driving conditions.201
The manufacturers’ past and current failures to produce SUVs with safer
feasible designs have caused thousands of preventable fatalities and countless
other accident losses. Moreover, millions of these unreasonably dangerous
vehicles are still on the roads and will doubtless cause many unnecessary
deaths and injuries in the future. Given this background, the absence of any
SUV products liability litigation based on excessive SUV collision risks is
truly perplexing.
SUV overriding problems contributing to their high broadside collision risks
199
See Bradsher, Changes in Ford Explorer, supra note 166 (paraphrasing comments by
Ford’s Director of Mid-Size SUV’s, Dale E. Claudepierre). Mr. Claudepierre was quoted in
the article as stating, “We gave up nothing by flipping them [the rail horns] upside down,”
and “that really puts it [the new Explorer] at the height of a Taurus.” Id.
200 See 1999 GMC SILVERADO PRESS KIT, supra note 165, at 2.
201 According to Keith Bradsher:
Yet, even with all these steps, SUVs will remain deadlier than cars. Even when SUVs’
frame rails are lower, they are still heavier and stiffer than cars. They still have
minimal crumple zones. And they still have hoods that are too tall. Joksch [the
University of Michigan statistician contracted by NHTSA] estimates that the steps
announced by automakers so far will eliminate no more than a third of the extra deaths
caused by SUVs.
BRADSHER, HIGH & MIGHTY, supra note 21, at 203.
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should have been addressed in the de Veer case in which an SUV overrode the
door sill of a passenger car and seriously injured the car’s occupant. We do
not believe any judge could properly conclude as a matter of law that SUV
manufacturers have “no duty” to make these dangerous vehicles reasonably
safe or that the particular SUV at issue was reasonably safe. There is a
substantial likelihood that many courts would conclude after a comprehensive
RUB analysis that nearly all older SUVs were defective due to the absence of a
blocker beam, lower bumpers, inverted frame horns, or other inexpensive
design features specifically intended to reduce SUV overriding. The SUV
manufacturers, as experts in the automotive field, should have known and
undoubtedly did know about the overriding dangers resulting from their
vehicle designs, and yet until recently they did absolutely nothing to minimize
these collision hazards. We see no reason why recent design improvements
that may or may not be found legally adequate for current SUV models should
negate or excuse the long period of manufacturer indifference to collision risks
for other motorists created by older SUV models that will remain on American
roads for years to come.
C.
Level-Plane Crashes
This discussion examines SUV collision risks that result from “ordinary”
highway crashes in which rollovers and overriding are not involved. In this
accident context, SUV size and weight do become more important risk factors,
and it may not be as easy to identify specific SUV design inadequacies and
safer alternative designs as in the rollover and overriding collision contexts.
Nevertheless, there are several technical and social policy considerations that
could support more difficult design defect cases based on the excessive level of
damages SUVs impose in accidents where different types of vehicles collide
on a relatively level plane.
1.
Frame Rigidity and Vehicle Deformation
The pickup truck frames used as platforms for all SUVs until a few years
ago, and still used for many SUVs, have a considerably higher degree of
structural stiffness than the frames of passenger cars, presumably to facilitate
cargo hauling, towing, and off-road driving.202 This SUV frame rigidity
creates significant dangers for the occupants of other vehicles. In a highimpact collision, the two parallel frame rails that form the central supports of
most SUVs may act like spears penetrating the other car’s body and passenger
compartment. For example, one newspaper story on SUV dangers noted: [A]s
federal regulators have warned, vehicles with very stiff frames are likely to
202 See, e.g., Bradsher, Changes in Ford Explorer, supra note 166 (observing that Ford’s
new Explorer model has lowered stiff “frame rails” without compromising its “off-road
performance”); Bradsher, Light Trucks, supra note 173; Wilmsen, supra note 165; 1999
GMC SILVERADO PRESS KIT, supra note 165, at 3 (stating that new Chevy SUVs are built on
their Silverado pickup platform).
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pierce deeply into other vehicles during collisions.”203
SUV frame stiffness can have harmful effects in a collision even without
any lethal penetration into the other vehicle’s passenger compartment.
NHTSA defines stiffness as “the ability of a structure to resist deformation
within its elastic range of behavior.”204 Another way to define stiffness is the
amount a vehicle’s crush zones will actually crumple—this is known as the
“maximum vehicle dynamic crush.”205 The point of a crush zone is to absorb
collision energy before it impacts on the passenger compartment and injures
the occupants.206 When an SUV frame is designed with a stiff frame-rail
structure, it does not crush very much and therefore does not absorb much of
the energy in a collision. Instead, most crash energy transfers to the other
vehicle, causing excessive “deformation.”207
SUV frame stiffness is not an inherent characteristic; rather, it is a direct
result of specific design choices. The IIHS found that vehicle “stiffness is not
uniform either vertically or horizontally.”208 Some areas of the front-end
structure are stiffer than others, and the precise area of the front end that hits
another vehicle affects the damage the striking vehicle will do.209 NHTSA has
conducted similar studies showing that the stiffer a vehicle frame is and the
less its structures crush in collisions, the more dangerous it is to motorists in
other vehicles.210 SUVs generally have fewer crush zones than passenger
cars,211 which exacerbates the hazards associated with greater SUV frame
stiffness in collisions with other vehicles. The danger worsens when the stiffer
vehicle is also much heavier because the extra mass transfers additional crash
energy to the other vehicle.212
A central facet of the SUV overriding problem is that the SUVs fail to
engage the crush zones of other vehicles and instead penetrate into more
vulnerable areas. In this level-plane collision context, in contrast, the common
design deficiency is the inadequacy of the SUV’s own crush zones. In head-on
203
Bradsher, Insurers, supra note 168.
BRIAN T. PAR ET AL., NHTSA, THE NEW CAR ASSESSMENT PROGRAM: HAS IT LED TO
STIFFER LIGHT TRUCKS AND VANS OVER THE YEARS? 5 (1999) [hereinafter NHTSA, NEW
CAR ASSESSMENT].
205 See id. at 5-7.
206 See IIHS, VEHICLE HEIGHT & WEIGHT, supra note 6, at 8 (crush zones absorb crash
energy while allowing the passenger compartment to remain intact).
207 See id; NHTSA, OVERVIEW, supra note 173, at 4; NHTSA, AGGRESSIVITY, supra note
173, at 12-17.
208 IIHS, PERSPECTIVE, supra note 7, at 10.
209 See id. (stating that “uniform front-end stiffness may be more important than overall
stiffness in improving vehicle compatibility”).
210 See NHTSA, NEW CAR ASSESSMENT, supra note 204, at 5-7.
211 See IIHS, VEHICLE TYPE & WEIGHT, supra note 6, at 9; Bradsher, Carmakers To
Alter, supra note 2 (“SUVs have fewer impact-absorbing ‘crumple zones’ than cars.”).
212 See IIHS, VEHICLE TYPE & WEIGHT, supra note 6, at 8 (in two-vehicle crashes, the
lighter vehicle’s occupants “typically would experience greater forces”).
204
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collisions between vehicles when there is a substantial imbalance in mass, “the
heavier [vehicle] will drive the lighter one backwards.”213 This results in the
lighter vehicle experiencing more force, which leads to a “more severe crash”
and more severe injuries for the car occupants.214 Although greater vehicle
mass provides added protection for SUV drivers, it does so by damaging and
deforming the other vehicle.215 Crushing the other vehicle allows the SUV to
conserve momentum216 and in effect turns the other vehicle into the SUV’s
external crush zone. Car occupants are subjected to greater risk because the
SUV imparts more energy to the car in a collision,217 and yet smaller passenger
vehicles have less mass and fewer protective structures to absorb crash
energy.218 In short, the common SUV design incorporating rigid structural
frames without effective crush zones turns the other vehicle in a multi-vehicle
crash into an external crush zone that absorbs SUV collision forces, at fatal
cost to the other car’s occupants.
Consider the overall safety of SUVs for their occupants. Despite their
relatively large size and weight, SUVs do not have significantly lower
occupant death rates than passenger cars in single-vehicle accidents.219 The
majority of accident deaths for SUV occupants result from rollovers,220 and
rollovers occur much more frequently in SUVs than in passenger cars.221
However, the stiff frame and typical lack of SUV crush zones can often be
fatal design factors for SUV occupants as well as motorists in other vehicles.
When an SUV hits a wall, tree, bridge abutment, or other unyielding structure
in a single-vehicle crash, the rigid SUV frame usually does not absorb enough
of the crash forces, which would then be transferred to the SUV’s passenger
compartment with lethal effects.222 From the perspective of SUV occupants,
213
Id.
Id.
215 See NHTSA, RELATIONSHIP OF VEHICLE WEIGHT TO FATALITY AND INJURY RISK IN
MODEL YEAR 1985-93 PASSENGER CARS AND LIGHT TRUCKS 11 (1997) [hereinafter NHTSA,
VEHICLE WEIGHT].
216 NHTSA, AGGRESSIVITY, supra note 173, at 9.
217 Id.; see IIHS, VEHICLE TYPE & WEIGHT, supra note 6, at 8-10; see also IIHS,
PERSPECTIVE, supra note 7, at 2-11 (analyzing the impact of vehicle geometry and weight on
crash compatibility).
218 See IIHS, PERSPECTIVE, supra note 7, at 6; IIHS, VEHICLE TYPE & WEIGHT, supra
note 6, at 9.
219 See BRADSHER, HIGH & MIGHTY, supra note 21, at xv, 128; Bradsher, High Fatality
Rate, supra note 4.
220 See IIHS, VEHICLE TYPE & WEIGHT, supra note 6, at 4; NHTSA, OVERVIEW, supra
note 173, at 2-15; Bradsher, Changes in Ford Explorer, supra note 166 (stating that
rollovers are “responsible for three-fifths of all deaths in sport utilities”).
221 See IIHS, VEHICLE TYPE & WEIGHT, supra note 6, at 4 (stating that utility vehicles are
far likelier to be involved in rollover crashes than are cars); NHTSA, OVERVIEW, supra note
173.
222 See IIHS, VEHICLE TYPE & WEIGHT, supra note 6, at 8 (without adequate crush zones,
214
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the absence of adequate crush zones may be a design defect affecting SUV
crashworthiness in single-vehicle crashes. Yet, in multi-vehicle crashes the
SUVs often use the other vehicles as energy-absorbing crush zones. The only
highway collision setting in which SUV occupants are substantially safer than
passenger car occupants is in multi-vehicle crashes when an SUV and a car
collide.
The victims of SUV collision damages may have a valid products liability
case based at least in part on the failure of the SUV to incorporate feasible
crush zones. Adequate SUV crush zones could absorb some of the collision
forces that would otherwise threaten passenger car occupants in multi-vehicle
crashes. Many recent changes in SUV designs can be used as evidence that
older SUV designs could have been made significantly more crashworthy for
other motorists. Nissan, for example, recently modified its 2001 Pathfinder by
adding a reinforced bumper “with the goal of spreading the force of an impact
over a wider area of the struck vehicle.”223 Although the Pathfinder retained
its rigid steel frame rails, the purpose of this innovation is to allow the other
vehicle’s crush zones to absorb more crash energy and to reduce the collision
impact before the SUV “underbody’s steel rails make contact.”224 We doubt
that a comprehensive judicial RUB analysis would find this recent Pathfinder
change to be a sufficient design response to the high collision risk problem, but
it should be clear that Nissan and other SUV manufacturers could have
adopted broader, stronger bumpers at any time.
Many SUV design changes could have mitigated frame stiffness and
inadequate crush zone problems. The substitution of auto platforms for pickup
truck platforms in a number of newer SUVs has been accompanied by the use
of softer unibody-construction frames.225 Manufacturers have made the steel
frame rails in some truck-based SUVs thinner, lighter, and less stiff.226 Ford
reduced the weight and stiffness of its recent SUV frames by drilling
“portholes” in the front areas of the frame rails, which allows the frame rails to
crumple more easily in crashes.227 In its 2002 Explorer model, Ford finally
not enough crash energy will be absorbed by a vehicle’s energy-absorbing structures); Eliot
Lim, Why Do SUVs Suck?, at http://home.attbi.com/~eliot_www/suvsuck.html.
223 Bradsher, Carmakers To Alter, supra note 2.
224 Id.
225 See Sport Utility Special 2001, supra note 164, at 13-14, 31, 32, 90 (describing the
transition to unibody-construction frames in recent SUV models); see also NHTSA,
OVERVIEW, supra note 173, at 4.
226 Bradsher, Carmakers To Alter, supra note 2 (noting that several SUV manufacturers
have lowered or plan to lower the steel rails in their SUVs’ underbodies, making them
lighter and less stiff in the process); Wilmsen, supra note 165 (observing that some SUV
manufacturers have lowered and lightened their vehicles’ frame rails while not sacrificing
ground clearance).
227 See Bradsher, Changes in Ford Explorer, supra note 166 (stating that by drilling
holes in the Explorer’s frame rails, they “will crumple slightly during high-speed crashes,
absorbing some of the force of an impact”); 2002 EXPLORER MEDIA INFORMATION, supra
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abandoned the Ranger pickup truck platform and designed a new SUV body
that includes more effective crush zones at the front-end of the Explorer.228
General Motors added “crush caps” to the ends of its frame rails to make them
better able to absorb crash energy.229 GM claimed the crush caps were only
part of a redesigned front end for its pickup trucks and SUVs that is able to
absorb thirty-five percent more crash energy than previous models.230 The
Mercedes M-Class SUVs have a front crush zone that “helps the entire frame
absorb and re-direct the energy from [a] frontal impact [and helps] reduce
some of the forces experienced by other vehicles in a collision.”231 Almost all
of the M-Class structure is relatively soft and deformable to absorb crash
energy except for the strong, rigid passenger compartment.232 Mercedes also
lowered the SUV frame and made the bumper almost the same height off the
ground as passenger car bumpers.233
The expanded crush zones that have recently been incorporated into some
SUVs will share collision energy with the other vehicles in a multi-vehicle
crash, thereby helping to protect other motorists. At the same time, these crush
zones will protect SUV occupants in single-vehicle crashes when they hit a
structure more rigid than their vehicle is. In the same vein, the recent SUV
design changes that have been aimed at reducing rollover problems will
increase the safety of both SUV occupants and motorists in other vehicles.
Thus, the safety improvements we contend should have been incorporated into
SUVs many years ago to protect foreseeable victims in other vehicles would
also for the most part have increased the safety of SUV occupants.
2.
SUV Mass and the Behemoth Models
Vehicle weight and size are only partly inherent factors in SUV designs.
Manufacturers have been able to reduce SUV weight in a variety of ways that
are often motivated by fuel efficiency and pollution regulation rather than by
safety considerations.234 For example, in 1998 General Motors pioneered a
note 166, at 17 (showing a photo of the holes drilled into Ford’s new “porthole in frame
design”).
228 See Bradsher, Changes in Ford Explorer, supra note 166 (explaining that the new
Explorers no longer use the Ranger platform and have also been designed with less stiff
frame rails); 2002 EXPLORER MEDIA INFORMATION, supra note 166, at 5.
229 See 1999 GMC SILVERADO PRESS KIT, supra note 165, at 2 (stating that the Chevy
Suburban and GMC Yukon XL SUVs are based on the full-size Silverado pickup truck
platform).
230 See id.
231 2001 M-CLASS PRESS KIT, supra note 168, at 28.
232 Bradsher, Light Trucks, supra note 173; 2001 M-CLASS PRESS KIT, supra note 168, at
28.
233 See 2001 M-Class Press Kit, supra note 168, at 29 (showing a picture of an M-Class’s
front bumper meeting the front bumper of a Mercedes sedan at almost the same height off of
the ground).
234 See Bradsher, Carmakers To Alter, supra note 2 (citing engineers who contend that
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construction process that allows the frame of its SUV to weigh approximately
twenty-seven percent less than previous SUV models. This lighter body
construction is possible because fewer welds and pieces are required and more
complex shapes can be created during the process.235 Ford has used an “allaluminum hood and V-8 Engine block” as well as “a magnesium cross-beam”
to reduce the weight of its 2002 Explorer by 90 pounds.”236 To increase the
“crushability” of an SUV frame in the event of a crash, some manufacturers
now produce truck-based SUV models with lighter frame rails.237 Another
important factor in reducing the mass of many SUVs in recent years has been
the adoption of a “car-like underbody” using lighter and thinner frame rails.238
It should be clear that a wide range of design elements contribute to SUV
characteristics. The designs of “behemoth” SUVs with unusually heavy
weight and large size are the result of deliberate manufacturer choices rather
than inescapable necessities.
Behemoth SUVs are the most dangerous SUVs for passengers in other
vehicles in all collision contexts—rollovers, overriding, and level-plane
crashes—because of the imbalance in mass and resulting higher crash
forces.239 Some SUV behemoths weigh three times as much as average
passenger cars. Yet, one 1997 newspaper story observed that behemoths were
the fastest growing category of SUV sales,240 and “sport utility vehicles are
becoming a lot heavier, and potentially more deadly, as buyers choose more
powerful engines and amenities like air-conditioning and plusher interiors.
The latest Chevy Suburbans, for example, are a half-ton heavier than the 1985
model.”241 Not to be outdone, in the late 1990s Ford introduced the Excursion
weighing a ton more than the Suburban.242 The IIHS found that when a
behemoth SUV, such as a Suburban, collides with an average-size passenger
car, the car driver is forty-eight times more likely to die than the driver of the
SUV.243 Behemoth SUVs create deadly collision risks for other motorists, and
some SUV design changes were made “to improve fuel economy, ride and handling”); Keith
Bradsher, It’s a Hybrid in Sport Utility Clothes: A Car-Based Light Truck, It Obeys the Fuel
Rules, and It Helps Make Money, N.Y. TIMES, Sep. 15, 1999, at C1 [hereinafter Bradsher,
Hybrid] (reporting that SUV manufacturers have developed fuel-efficient light trucks to
meet fleet-average Federal emissions requirements).
235 See 1999 GMC SILVERADO PRESS KIT, supra note 165, at 1-2 (describing the process
called “hydroforming,” which uses high-pressure hydraulics to shape steel parts).
236 2002 EXPLORER MEDIA INFORMATION, supra note 166, at 5.
237 See Bradsher, Carmakers To Alter, supra note 2.
238 Id.
239 See Bradsher, SUV Suits, supra note 18; NHTSA, VEHICLE WEIGHT, supra note 215.
240 Bradsher, Light Trucks, supra note 173.
241 Id.
242 The Ford Excursion weighs about 7700 pounds, Winerip, supra note 144, while the
Chevy Suburban weighs about 5600 pounds, Sport Utility Special 2001, supra note 164, at
39.
243 IIHS, VEHICLE TYPE & WEIGHT, supra note 6, at 10; see also Holtzman, supra note 6.
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every increase in behemoth weight is certain on an actuarial basis to increase
the danger.
It was settled law long before Judge Learned Hand’s famous BPL formula in
Carroll Towing244 that the extent of precautionary efforts required to meet the
legal standard of “reasonable care” depends on the potential severity of the
foreseeable risks. It should not be controversial to say that a reasonable person
would take greater precautions when holding an atom bomb than a tulip. The
proportionality of the care required in relation to the expected harm remains a
core principle of negligence and an equally central factor in the risk-utility
balancing process that determines whether a given product design is defective
under strict products liability doctrines. The safety precautions provided by
the behemoth SUVs, however, have not conformed to this established legal
principle because their higher collision risks have never been accompanied by
proportionately greater safety measures.
We are not contending that excessive weight alone would necessarily be the
basis for a successful design-defect suit against a behemoth SUV
manufacturer, but high vehicle weight should be treated as a hazardous design
characteristic in combination with other potentially defective features such as
vehicle road-height, brakes, suspensions, tires, and inadequate crush zones.
The central products liability issue should be whether SUV manufacturers have
made their behemoth models relatively safer in proportion to the increased
dangers they impose on other motorists. We believe the SUV manufacturers
have not tried to improve behemoth safety commensurate with their greater
collision risks. The manufacturers certainly have not begun to incorporate
every available safety feature affordable by the affluent purchasers of most
behemoths. Indeed, we have found nothing indicating that the manufacturers
have devoted any significant attention to the higher collision risks created by
their behemoth models.
The manufacturers would undoubtedly argue that many consumers want to
buy large SUVs and the incorporation of additional safety features would raise
vehicle prices and somewhat limit their affordability. Yet, consumer demand
is not the only reason for the rapid increase in SUV behemoth weight. A 1999
New York Times article on the relationship between light trucks, the usual SUV
classification, and federal fuel-efficiency rules noted that the regulations
require light-truck fleets to meet considerably more lenient fuel efficiency
standards than the standards imposed on cars.245 However, as sales of larger
SUVs have grown, the auto companies have had increasing difficulty
complying with the mandated fuel-efficiency averages even for light trucks.246
To circumvent these regulations, “G.M. redesigned its four-wheel-drive Chevy
Suburbans to make them too large to be counted as light trucks; they ceased to
244
245
246
United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
Bradsher, Hybrid, supra note 234.
See id.
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be included in any gas mileage averages at all.”247 By increasing the
Suburban’s size and weight, GM was able to reduce its private regulatory
compliance costs while imposing higher costs on society in the form of
increased fatality risks for other motorists, increased air pollution emissions,
and increased fuel consumption.248
It is hard to imagine a clearer example of a deliberate externality than this
one—an anti-social, risk-creating business decision that may warrant punitive
damages if a court determines that the Suburban is not a reasonably safe
vehicle. There is no reason to believe the larger behemoth Ford Excursion, or
any behemoth, is significantly better. The larger the SUV, the greater are the
externalities it imposes on society. Behemoth SUVs consume more gasoline,
emit more air pollutants, and kill a disproportionate number of motorists in
other vehicles. These harmful effects all entail externalities because SUV
purchasers and SUV manufacturers do not bear the full social costs of their
activities that inflict damages on others. SUVs are unlike the great majority of
products, whose buyers or users obtain most of the benefits, pay most of the
costs, and are subjected to most of the product hazards. To this point, neither
SUV purchasers nor the manufacturers that ultimately produce, market, and
profit from these dangerous vehicles have had to pay for the higher risks SUVs
impose on other motorists or for the other externalized costs these vehicles
impose on society.
Under these externality conditions, we believe the indisputable fact that
some consumers do want to purchase behemoth SUVs at a relatively lower
price does not offer persuasive support for the failure of the SUV
manufacturers to include as many safety features as feasible in their most
hazardous SUV models. Other alternative designs or substitute products, such
as smaller, lighter SUVs, station wagons, and double-cab pickup trucks, could
perform similar high-load carrying functions while potentially reducing the
severe collision risks and other externalities of the behemoth models. The fact
that many people do want to buy comparatively less expensive behemoths is
not much of an argument against increasing SUV safety as long as the
behemoth purchasers are unwilling to pay for the higher collision and pollution
risks these vehicles impose on other motorists.
D.
Claims of Lost SUV Utility
The overall social utility of SUVs will be irrelevant to the judicial RUB
analysis when safer alternative designs could have reduced the SUV collision
risks at reasonable cost without sacrificing the benefits that users derive from
these vehicles. If SUV users would receive as much or more utility despite
adoption of a safer practical vehicle design, the benefits would not be
247
Id.
See BRADSHER, HIGH & MIGHTY, supra note 21, at 61-80 (providing a thorough
explanation of why some behemoth SUVs became larger).
248
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significantly lost while the SUV dangers would be reduced. This is the
essential comparative finding of nearly all successful design-defect litigation.
Many safer SUV design features have been described in this Section, all of
them recently adopted in one SUV model or another, and most of these safer
design features could have been incorporated into SUVs any time during the
past two decades. Automotive engineers may also be able to identify safer
design alternatives that are feasible but have not yet been adopted by any
manufacturer in any SUV model. Whether any given SUV’s design is
acceptably safe or defective in light of reasonably available and affordable
design alternatives would have to be adjudicated in a particularized judicial
RUB process.
Given the variety of indisputably safer designs that could have been
incorporated into past and current SUV models, the manufacturers would seem
to have only a few potential defenses against design-defect cases based on
excessive preventable SUV collision risks. Once the products liability duty on
manufacturers to sell SUVs providing reasonable safety for other motorists is
recognized, the manufacturers’ most likely defense claims will be that the
proposed safer designs would deprive SUV users of some measure of utility or
that the proposed safer designs would cost “too much.” A short discussion of
these possible claims should be useful in an Article that is arguing for
increased products liability litigation and other forms of legal attention devoted
to SUV collision risks.
The first possible defense claim is that increasing the safety of other
motorists from SUV collision risks might reduce the safety of SUV occupants.
One 1999 newspaper story reported that SUV manufacturers contend they
“have been reluctant to make changes that they say might endanger occupants
of sport utility vehicles in an effort to protect occupants of the vehicles
involved in accidents with them.”249 It is by no means clear that a safety tradeoff in this context should favor SUV purchasers instead of motorists in other
vehicles who have just as much entitlement to be safe of the roads and who
seldom create comparably serious collision risks for others. However, this
safety trade-off contention is not at all credible because in most instances the
alternative design changes that would improve the safety of motorists in other
vehicles would also improve the safety of SUV occupants. This conclusion
directly applies to elimination of the dangerous design characteristics that
cause SUV rollovers and to the incorporation of better crush zones into SUVs,
which would protect SUV passengers in single-vehicles crashes as well as
helping to protect both SUV users and other motorists in multi-vehicle crashes.
We believe most SUV users would have gained utility in the form of greater
safety for themselves, rather than lost utility, if the manufacturers had adopted
reasonable design features from an early date to safeguard other motorists. As
support for this proposition, the IIHS conducted a test of seven recent SUV
249
Bradsher, Insurers, supra note 168.
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models by crashing them into concrete barriers at forty miles per hour.250 The
SUVs that received the best ratings in terms of protecting their own occupants
were constructed with “soft front ends that were designed to bend and absorb
energy during a crash.”251 Instead of having conventionally stiff frames like
the other SUVs tested, these vehicles concentrated rigid structural materials
only around the passenger compartment.252 The IIHS explained that the design
features affording the greatest protection for SUV passengers were exactly the
kind of design implementations that would also reduce the probability of
severe injuries to other motorists in collisions with SUVs.253
A second possible defense claim is that SUV design modifications necessary
to improve safety for other vehicles, such as reducing high ride-height, stiff
suspensions, rigid frame rails, and narrow track-width, would reduce SUV
utility for off-road driving.254 This contention is unpersuasive for two reasons.
First, the manufacturers know that SUVs have been driven primarily on
highways where these design features are dangerous. One newspaper story
reported: “the Big Three [auto makers] found in a joint 1995 study that only 13
percent of sport utility vehicles were driven off road.”255 This industry study
conceded that eighty-seven percent of SUV drivers never take their vehicles
off the road, and many of the other thirteen percent of SUV owners may take
their vehicles off-road only rarely. Moreover, an SUV marketing study
commissioned by the automobile industry found that some of the people who
claimed they use their vehicles for off-road driving admitted that “their idea of
off-road driving is to travel on any dirt or gravel road, even if the road is
smoothly graded.”256 Ford’s top SUV marketing manager was quoted in
Bradsher’s book as saying: “the only time those SUVs are going to be off-road
is when they miss the driveway at 3 a.m.”257
To an overwhelming extent, SUVs are driven as passenger vehicles on
ordinary highways, and they should therefore be reasonably safe for highway
driving. No sensible legal policy would exempt SUV manufacturers from
providing adequate safety for the far more common on-road driving on the
rationale that safer alternative designs would somehow interfere with very rare
off-road usage.
In another report, industry executives claimed that “even if most buyers do
not use the four-wheel drive very often, they derive satisfaction from knowing
it’s there.”258 Chrysler’s market research director was quoted as saying: “You
250
251
252
253
254
255
256
257
258
See id.
Id.
Id.
Id.
See Bradsher, Light Trucks, supra note 173.
Id.; see BRADSHER, HIGH & MIGHTY, supra note 21, at 113.
BRADSHER, HIGH & MIGHTY, supra note 21, at 113.
Id.
Bradsher, Domination, supra note 164.
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don’t ask how often, because it doesn’t matter—you get to be Superman for a
day.”259 In our opinion, it does “matter” that thousands of avoidable deaths
have resulted from unnecessarily hazardous SUV designs rationalized on the
ground that some users could imagine themselves driving off-road someday.
The manufacturers knew their SUVs were driven primarily on roads, and they
marketed the SUVs as multi-purpose vehicles that could be driven safely on
roads. Thus, if courts find an SUV design is not reasonably safe for normal
highway driving purposes, alleged consumer satisfactions from the unrealized
potential for off-road driving should certainly not be deemed sufficient
“product utility” to outweigh the increased social benefits from safer vehicle
designs.
The other reason why any defense claim of lost off-road driving utility
should be disregarded is that the recent safety improvements made by SUV
manufacturers have uniformly been accompanied by the promise that off-road
performance would not be impaired.260 Ford and GM both produced new SUV
designs in the past two years that lowered the frame rails and ride-height of
their vehicles without reducing the effective ground clearance or off-road
performance. Some SUV models have adopted variable suspensions, raising
the vehicle ride-height only when actually driving under rough off-road
conditions.261 We have not found a single instance where the manufacturers
indicated that their recent safety improvements were made at the expense of
decreased off-road capacities. If the SUV manufacturers continue to market
their newer, safer vehicles as off-road-capable, and if they could have
implemented most recent design changes many years ago, there is little basis
for any claim that SUVs could not have provided greater safety without
sacrificing off-road performance utility.
A third possible defense claim could be that reducing the ride-height,
weight, and size of SUVs would reduce some of the psychological benefits that
consumers derive from owning SUVs. The Chrysler spokesman’s “you get to
be Superman for a day” comment above is one example of alleged
psychological utility from SUV ownership.262 Why do people buy SUVs?
Many studies have found SUV owners derive psychological satisfactions from
feelings of empowerment, control, or relative invulnerability that SUV
occupants experience when they look down at smaller vehicles on the
highways. For example, Nissan’s director of North American design observed
that an SUV customer may feel: “When I’m in this car, I’m in command of my
259
Id. (quoting Mr. David P. Bostwick).
See, e.g., McCathern v. Toyota Motor Corp., 985 P.2d 804, 817 (Or. Ct. App. 1999)
(finding sufficient evidence that safer design alternatives to a Toyota 4Runner “did not
interfere with its sport utility functions in any way”).
261 See Sport Utility Special 2001, supra note 164, at 83-84 (describing the Lexus
LX470).
262 See supra text accompanying note 259.
260
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future.”263 An automotive design and marketing consultant at Arthur D. Little
contended that some men buy SUVs because they feel “their masculinity has
been taken away, and compensate by buying powerful machines, while women
are enjoying flaunting the power they’ve achieved.”264 An auto industry
historian from the University of Michigan described SUVs as “real-life Tonka
toys for 40-year-olds” and said buyers “like to be seen with them in their
driveways.”265 A reporter writing about Ford Explorer products liability
litigation noted that an SUV’s “elevated ‘command seating’ gives the owner a
king-of-the-road, doobie-doobie-doo conceit and has proved popular with a
broad class of well-to-do consumers, from good old boys hauling their ChrisCrafts fishing to soccer moms taking the fifth grade C.Y.O. champs out for
pizza.”266 Then this reporter explained that the trade-off for “command
seating” is a higher center of gravity and a much greater risk of the vehicle
rolling over in accidents.267
It is largely a tautology to say that consumers experience psychological
satisfaction from any product they choose to purchase. Economists seldom
attempt to look within the “black box” of consumer preferences, but this effort
must be made by courts if losses in psychological utility are asserted as a
reason why SUVs have been designed without ensuring reasonable safety for
their occupants and other motorists. People may have many reasons for buying
SUVs: erroneous feelings that they are significantly safer in these vehicles than
in passenger cars, feelings that expensive SUVs demonstrate their high
financial status, desires to take advantage of the versatility offered by these
hybrid vehicles, fantasies about off-road adventuring, and feelings of
empowerment and invulnerability associated with the “command seating”
perspective.268 Yet, more than any other dangerous product with the possible
exception of handguns, SUVs provide psychological utility for their purchasers
and users only at the expense of corresponding disutility for foreseeable, nonconsenting accident victims and for millions of drivers in other vehicles on the
highways.
The utility arising from feelings of consumer empowerment that accrue to
affluent purchasers of SUVs must be weighed against the feelings of
powerlessness and vulnerability that other motorists are just as likely to
experience. Moreover, SUVs often obstruct the sight-lines of other motorists
on the highways and leave less road space available for emergency maneuvers,
which means an SUV may increase accident hazards as well as feelings of
vulnerability for other motorists even if the SUV is not directly involved in a
multi-vehicle collision. Absent successful products liability litigation or
263
264
265
266
267
268
Bradsher, Domination, supra note 164 (quoting Mr. Jerry Hirshberg).
Id. (quoting Mr. John Wolkonowicz) (internal quotations omitted).
Id. (quoting Dr. David L. Lewis) (internal quotations omitted).
Winerip, supra note 144.
Id.
See BRADSHER, HIGH & MIGHTY, supra note 21, at 96-97, 106.
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government regulation, SUV buyers are legally entitled to increase the
collision risks to other drivers for their own convenience and psychological
satisfactions. This inequality has always been true when affluent people chose
to buy larger, heavier cars, but the problem has been compounded by SUVs
because their design characteristics are much more dangerous to other drivers
than the designs of comparably heavy passenger cars.
This SUV collision-risk accident context resembles the game-theory
“Prisoner’s Dilemma:” SUV occupants can enjoy feelings of “command
seating,” empowerment, and invulnerability only because other motorists are
not equipped with equally large and dangerous vehicles. If neither or both
parties choose to buy SUVs, they will be equally situated in a general sense.
However, if one party purchases an SUV and the other does not, the SUV
buyer benefits from greater feelings of “empowerment” while the other party
feels a “lack of empowerment” or “sense of vulnerability” exacerbating the
increased collision risks for which SUV owners do not provide compensation.
The only way the potential accident victim can reach a degree of parity in
“empowerment” is to buy an SUV of her own, thereby leaving the victim class
and joining the collision risk-externalizer class. Under these circumstances,
we believe it would be improper for a court to include in its RUB analysis any
alleged utility derived from positive psychological feelings of SUV users
without also including at least equal disutility experienced by other motorists
exposed to SUV collision risks.
In this discussion of SUV design characteristics, we have shown that many
safer alternative designs were available that would have reduced SUV collision
risks for motorists in other vehicles. The improved designs for the most part
would have increased the safety of SUV occupants as well as the safety of
other drivers. The various design improvements described here have all been
adopted in recent models, most improvements could have been incorporated
into SUV designs from their inception, and none of these improvements would
have substantially reduced the functionality of SUVs. The only remaining
essential issue appears to be whether the manufacturers could have afforded to
increase the safety of their SUV models significantly.
Many courts have held that a proposed alternative design must be
economically practicable in order to be “reasonable.”269 There is no general
consensus on what the term “practicable” means in specific cases, but the
courts may refuse to accept safer alternative designs that are substantially more
expensive in comparison with the original design and that would prevent many
consumers from purchasing the redesigned product. This cost-comparison is
part of the overall risk-utility balancing process, and courts will normally take
into account the severity of product risks and the extent of the safety benefits
from the proposed alternative design in deciding how much greater
269
E.g., McCathern v. Toyota Motor Corp., 985 P.2d 804, 816 (Or. Ct. App. 1999)
(stating that the reasonableness of alternative designs depends in part on economic
practicability).
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expenditure on additional safety would be reasonable.
There are several reasons why SUV manufacturers would have difficulty
arguing that they could not have afforded to improve SUV safety for
foreseeable accident victims in other vehicles. First, all of the safety
improvements described above have already been adopted by one or more of
the SUV manufacturers on their own initiative. It is doubtful that any
automaker would have voluntarily included safety features so expensive that
increased costs and higher prices would cut into its SUV sales. Second, some
important safety improvements would not have been very expensive according
to the manufacturers’ own records.270 Third, the manufacturers’ ability to bear
higher safety costs depends in large part on whether they can pass on these
costs to product buyers. Typical SUV purchasers are affluent people who
usually can afford to pay more for safety, and the costs of improved safety
would normally be only a small fraction of the high SUV prices consumers
have been paying. Fourth, as a matter of social policy, it would appear
equitable to require SUV buyers to pay more to reduce the collision risks from
their vehicles because the foreseeable collision victims do not obtain any of the
presumed benefits of using SUVs or of purchasing these vehicles at a lower
price.
Finally, the auto manufacturers have made extraordinary profits from SUV
sales over the past two decades. One newspaper article indicated that: “while
Ford made less than $1,000 on the average sedan, the profit on an Explorer
was nearly $8,000.”271 Some larger, fancier SUVs, have profit margins of up
to $15,000.272 Another recent article revealed that SUVs accounted for half of
Ford’s total profits in the late 1990s.273 Given the high profit margins, it will
be very difficult for SUV manufacturers to claim they could not have afforded
to provide greater safety for collision victims while the companies were
reaping literally billions of dollars in SUV profits.
In a sense we have come full circle from our discussion of products liability
duties after the end of the privity era. Ever since MacPherson, manufacturers
have not been allowed to market unsafe products on the rationale that buyers
may want to purchase less safe products at lower prices. Products liability law
imposes reasonable, not maximum, safety standards that manufacturers cannot
ignore by claiming reasonable safety would cost “too much.” We have shown
that inadequate SUV safety has caused thousands of avoidable collision
fatalities while SUV manufacturers knowingly marketed these profitable but
unreasonably dangerous vehicles without making any effort until recently to
270
See Ford Motor Co. v. Ammerman, 705 N.E.2d 539, 546, 562 (Ind. Ct. App. 1999).
Bradsher, Study of Ford Explorer, supra note 142.
272 See BRADSHER, HIGH & MIGHTY, supra note 21, at 83-85; Bradsher, Hybrid, supra
note 234 (DaimlerChrysler receives profits of up to $15,000 for its larger SUVs); Bradsher,
Light Trucks, supra note 173 (Ford receives profits of as much as $14,000 for its largest
SUVs).
273 Winerip, supra note 144.
271
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provide a reasonable degree of safety for other motorists. Thus, products
liability litigation in the future based on SUV collision risks may well entail
the imposition of punitive as well as compensatory damages.
CONCLUSION
For years, automobile company officials insisted that SUV collision risks
resulted primarily from SUV weight and size, and could not be reduced
without compromising the utility of this category of vehicles.274 Until late
1998, for example, Ford’s CEO claimed nothing could be done about the
dangers of SUVs for other motorists.275 Ford did not concede until May of
2000 that SUV design factors were responsible for a significant proportion of
the collision losses.276 The New York Times reported: “after bitterly denying
for three years that the design of sport utility vehicles made them unusually
deadly to other motorists, auto industry officials now say that their designs
cause up to half the extra deaths, and are swiftly making changes.”277 The fact
that SUV manufacturers have recently begun making some safety-related
improvements to reduce SUV collision risks, not necessarily sufficient ones, is
not a legitimate excuse for two decades of indifference and denial. As recently
as 1997, for example, Ford’s Director of Vehicle Systems Engineering
conceded that crash compatibility with other vehicles was not an active part of
the SUV design process.278
The automobile industry does not have a strong tradition of emphasizing
vehicle safety or other forms of social responsibility. The industry fought
against mandatory installation of airbags for two decades, resulting in tens of
thousands of unnecessary deaths.279 They have fought against mandatory sideimpact protections. They have fought against fuel-efficiency standards and
tighter emissions limitations. They have fought against strong front-bumper
standards. They have tried with considerable success to emasculate NHTSA280
and to delay or undermine many EPA initiatives. They have ignored severe
SUV collision hazards until recently and they are still ignoring the on-going
collision hazards created by millions of dangerous SUVs built before any
274
See Bradsher, Fatal Design, supra note 10; Bradsher, Ford Adds Bars, supra note
176; Winerip, supra note 144.
275 Bradsher, Changes in Ford Explorer, supra note 166, at C1.
276 See id.
277 Bradsher, Carmakers To Alter, supra note 2.
278 Bradsher, Light Trucks, supra note 173.
279 See JERRY L. MASHAW & DAVID HARFST, THE STRUGGLE FOR AUTO SAFETY (1990)
(chronicling the history of the automobile industry’s efforts to minimize safety regulation).
280 See Winerip, supra note 144 (“In 1995, Representative Oxley [of Ohio] worked handin-hand with Chrysler to limit NHTSA’s recall powers.”); Frontline: The Hidden History of
the SUV (PBS television broadcast, Feb. 21, 2002) (noting that during the Reagan
administration NHTSA lost its aggressive investigatory and regulatory initiative because of
the administration’s pro-auto industry stance).
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significant safety innovations were adopted. Products liability litigation based
on SUV collision risks would be an expensive and uncertain way to try to
induce the auto industry to devote more attention to automotive safety issues in
the future, but litigation now appears to be the most realistic legal response
available.
Some commentators, though only a small minority of torts scholars,
advocate the imposition of “true” strict products liability on an “enterprise
liability” rationale.281 These enterprise-liability proponents contend that
improved accident prevention, information collection, loss-spreading, fairness,
consistency, and institutional efficiency would result if product manufacturers
knew that they would be liable for all harms caused by their products and
could not seek to escape products liability—while imposing the losses on
accident victims—through litigation tactics and uncertainty about the
desirability of alternative designs. Space constraints preclude a thorough
exploration of this subject here, but it is worth noting that SUV collision risks
present a powerful example of a billion-dollar accident context in which
enterprise liability would be well worth considering.
SUV collision losses involve thousands of avoidable deaths and injuries
externalized on other motorists who cannot readily “vote” for greater safety
with their dollars. There are a myriad vehicle design options that courts may
be required to consider in a RUB analysis of SUV collision risks, and yet
courts cannot possess nearly as much technical or economic expertise as SUV
manufacturers. Why should any judge or jury be expected to determine
whether a reasonably safe SUV would, or would not, override the door sill
areas of a vulnerable passenger car, as in the de Veer case? How can a judge
distinguish between SUV “utility” derived from the ego-gratification of
behemoth ownership and productive utility related to some legitimate
consumer need? A limited number of large, profitable companies dominate the
industry and undoubtedly could afford to investigate SUV safety alternatives in
detail if they were made responsible for all SUV-related accident losses,
subject only to a proximate causation requirement. The automakers could also
create efficient loss-spreading compensation or insurance systems for accident
victims if they were suitably motivated. Enterprise liability would appear to
offer major advantages in this widespread accident context in comparison with
expensive, often inconclusive, design defect litigation under current products
liability law or with NHTSA regulation that has accomplished very little in the
281 See, e.g., Steven P. Croley & Jon D. Hanson, Rescuing the Revolution: The Revived
Case for Enterprise Liability, 91 MICH. L. REV. 683 (1993); Jon. D. Hanson & Douglas A.
Kysar, Taking Behavioralism Seriously: A Response to Market Manipulation, 6 ROGER
WILLIAMS U. L. REV. 259 (2000); Jon D. Hanson & Kyle D. Logue, The First-Party
Insurance Externality: An Economic Justification for Enterprise Liability, 76 CORNELL L.
REV. 129 (1990); Howard A. Latin, Problem-Solving Behavior and Theories of Tort
Liability, 73 CALIF. L. REV. 677 (1985). But see James A. Henderson, Jr. & Jeffrey J.
Rachlinski, Product-Related Risk and Cognitive Biases: The Shortcomings of Enterprise
Liability, 6 ROGER WILLIAMS U. L. REV. 213 (2000).
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past three decades.
At this time, the prospect of products liability litigation appears to be the
strongest practical incentive-shaping legal mechanism society has available to
promote improved automotive safety. There is no need to recapitulate the
many safer alternative designs identified in Part II that could and should have
been adopted long ago, nor the SUV manufacturers’ indifference for two
decades to the deaths and injuries their vehicles have been causing. As long as
SUV manufacturers and SUV purchasers do not bear the losses from excessive
SUV collision hazards, there is no reason to expect that market forces will
produce a sufficient level of SUV safety for motorists in other vehicles. Given
the serious social-cost externalities involved in SUV collision risks, some form
of effective legal intervention appears desirable and necessary. Products
liability litigation is no panacea and it cannot resurrect the dead, but high
damages awards for preventable SUV collision losses might make the
automobile industry consider the constellation of available and practicable
SUV safety choices they have largely been ignoring.