General Practice, Solo & Small Firm DivisionMagazine
Volume 17, Number 6
TORT & INSURANCE PRACTICE
RIGHT UNDER YOUR NOSE SPOTTING PRODUCT LIABILITY SUITS HIDDEN WITHIN YOUR ROAD WRECK CASE FILES
By Lee Tarte Wallace
Product liability cases usually arrive disguised as ordinary road wreck cases, and it is up to you to determine whether the case should also be a product liability case. Your case warrants further investigation if it has any of the following characterizing features. (Remember, not every road wreck case that has one of these features is a good product liability case.)For seat belts:
• The client’s seat belt came unlatched during the wreck. Don’t rely on the accident report in determining whether your client was belted. If a person’s seat belt fails, the emergency personnel arriving on the scene conclude that the person must not have been wearing a belt.
• The client was wearing her belt, but the belt did not hold her in place in her seat.
• The client was small and was injured where the seat belt ran across her neck or upper chest. Some seat belts are hung too high, so that they cut across the necks of women, children, or smaller men.
• In a car with an automatic shoulder belt and a manual lap belt, the person was wearing only the automatic belt and suffered injuries to the body parts nearest this belt. When the automatic belt slides across the person wearing it, many people assume that they are "belted" and never realize that they need to fasten the lap belt in order to make the restraint system effective. These cases are generally characterized by severe chest or neck injuries, including decapitation.
For air bags:
• In a frontal collision at more than a few miles per hour, the air bags did not deploy. Airbags are not designed to deploy in every possible situation, but they should deploy in a frontal crash. New cars may also be equipped with air bags designed to deploy in side impacts.
• An air bag deployed for no reason and caused the client to wreck.
• An air bag deployed during a wreck or for no reason, and severely injured the client. Some air bags deploy so fiercely that they become missiles aimed at the chest, head, and face of the person they are supposed to protect.
Regarding how the vehicle held up:
• A fire occurred, whether in the engine or around the gas tank. Fires generally warrant investigation, particularly in a low-speed collision or in the absence of a collision.
• After the wreck, the seats were out of their normal positions. For example, you may find that the seat backs on one or both front seats are pushed or reclined backwards toward the back seat.
• During a rollover, the roof crushed downward toward the heads of the passengers in the vehicle. Roofs should be designed to stand up in a rollover.
• The "occupant space" where the people in the vehicle sit was severely compromised, especially in a situation where extensive damage was unexpected. One measuring stick for determining whether the vehicle suffered excessive crush is to compare it to the vehicle that collided with your vehicle.
• The client (or decedent) was ejected from the vehicle. Sometimes witnesses will note that after the accident a door or hatchback was standing open or a window or windshield had come out of the vehicle.
• Bolts sheered off or otherwise failed to hold during the collision. If the bolts fail, key pieces of the vehicle may come loose during the collision, or the vehicle may be crushed excessively.
• The client was in a conversion van that failed to hold up in the collision.Regarding how the vehicle handled in the wreck:
• The vehicle rolled over, particularly while it was on the road. Because of their designs, some vehicles are more likely to roll over than others.
• A tire caused or contributed to the wreck because it blew out or for some other reason. Tires that fail while a car is proceeding down the road can cause the driver to lose control of the car.
Many of the best cases are ones where any lay person can see that something strange occurred to the vehicle or the occupants (e.g., a vehicle broke in half in a low-speed collision). If what happened seems odd to you, it will probably seem odd to a jury. What to look out for. Certain factors can make it difficult to successfully bring a product liability suit. Give these factors particular thought before you take a case.
• Drinking/drug use. Consider what effect drinking or drug use by a driver or by your client will have on the jury’s view of the case.
• "At fault" driver. Everyone, including car manufacturers, knows that cars crash. Under the legal doctrine of "crashworthiness," manufacturers are responsible for building vehicles that can stand up to reasonably foreseeable uses, which include reasonably foreseeable crashes. None-theless, manufacturers continue to blame drivers for the accidents in order to absolve themselves of blame. Give thought to how the jury will perceive a driver who was at fault for the collision.
• Excessive speed. Manufactur-ers can be counted on to argue that "speed kills." Ask yourself how effective that argument will be in your case.
• Preemption issues. When the federal government makes a law, states cannot undermine that law by passing their own, different laws. In essence, the federal law "trumps" the state law. Manufacturers usually argue that auto product liability suits should be dismissed because the state tort law is preempted by the federal regulations. Usually, these arguments lose, but consider this issue before you file your case.
• Statute of repose. Statutes of repose are akin to statutes of limitations. They provide that a person cannot sue a manufacturer for a defective product that is more than a certain number of years old, or that was first sold more than a certain number of years ago.
• Damages too low to justify case expense outlay. For a variety of reasons, product liability cases are enormously expensive to bring. Case expenses often run between $250,000 and $1 million. You must scrutinize the damages to see whether they will justify the outlay of expenses you are about to make.
If you have a product liability case:
• Preserve the vehicle intact.
• Do not settle the insurance part of the case yet. You need to examine all of the facts before you settle out some defendants.
• Automobile products have lengthy histories. Has this vehicle been recalled or investigated by the NHTSA for a similar problem? Have other vehicles had similar problems?
• Know the manufacturer. Has the manufacturer had similar problems with other vehicles? Have the manufacturer and its experts and employees made statements in other cases that may be useful to you here?
• Get the key documents about the defect or the manufacturer that have been produced in other litigation.
• Know the standard defenses manufacturers use and whether those defenses apply to your case.
• Count the cost. Product liability cases are enormously expensive. Determine whether you have the funds yourself or will need help.
• Hire experts who truly know the field.
Lee Tarte Wallace is a partner with the firm of Butler, Wooten, Overby, Pearson, Fryhofer & Daughtery in Atlanta, Georgia.
This article is an abridged and edited version of one that originally appeared on page 61 of The Brief, Spring 2000 (29:3)