Synopsis: This article contains various theories an attorney should look at when an injured party comes into the office. It covers a wide area of products with an emphasis on vehicle defects. The article should serve as a road map to review and analyze whether or not a client may have an enhanced injury case.
I. Introduction
Many attorneys, when faced with a client who has been injured in an automotive accident, will begin their case investigation by considering the potential liability of the party or parties who were involved in the accident. This is the obvious starting point for investigating a case involving an automotive collision, but it is by no means the end of the necessary investigation. Beyond asking who caused the accident, a responsible attorney must also ask who is responsible for the client's injuries. The answers to these two questions are not always the same. In many instances, a person's injuries, or a portion of a person's injuries, result not from the accident itself, but rather from the defective design or manufacture of the vehicle in which the person was an occupant. Such defects may result in a person sustaining more serious or severe injuries than would otherwise have occurred in the absence of such defects. Under these circumstances, the entities responsible for the design and manufacture of the vehicle may be liable for all or a portion of a person's injuries, regardless of whether they are responsible for causing the accident itself. Such cases are commonly referred to as enhanced injury cases.
Missouri courts have long recognized the ability of a plaintiff to recover for enhanced injuries, referring to the theory of recovery in such cases as the second collision doctrine,1 the "enhanced injury doctrine" or the "crashworthiness doctrine."2 Regardless of the terminology that is used by the courts, each of these labels refers to a theory of recovery in which the manufacturer of a product can be held liable for the defective design or manufacture of a product if that product enhances an injury beyond that which would have otherwise occurred as the result of the accident. The seminal case regarding recovery for enhanced injury is Larson v. General Motors Corp..3 In the intervening years, virtually all jurisdictions have adopted some form of the theory of recovery that was initially recognized in Larson. The first case applying Missouri law to recognize this theory of recovery was Polk v. Ford Motor Co..4 The first case in which a Missouri court recognized this theory of recovery was Cryts v. Ford Motor Co..5 This theory of recovery has since been further recognized in other Missouri cases, including Richardson v. Volkswagenwerk, A.G.;6 and McDowell v. Kawasaki Motors Corp., U.S.A.7
An enhanced injury case can be based on an underlying theory of negligence, strict liability, warranty or any other theory that could be pursued in a product liability action. Generally, the manufacturer will be jointly and severally liable for enhanced injuries, provided that the enhanced injuries are indivisible injuries. Examples of indivisible injuries include paraplegia, quadriplegia and death. Injuries are considered to be divisible when they are capable of apportionment among two or more tortfeasors. An example of divisible injuries would be a collision in which a person suffered collision injuries, such as a broken leg, and also suffered burns because of a fuel system defect. In that type of situation, the manufacturer might be responsible for the burns, while bearing no responsibility for the collision injuries. The issue of whether injuries are divisible has been addressed by several Missouri cases, including McDowell v. Kawasaki Motors Corp., U.S.A.;8 Barlow v. Thornhill;9 and Richardson v. Volkswagenwerk, A.G.10
When the injury that a person sustains in an accident does not seem proportionate to the nature of the accident, an attorney's suspicion level should increase. For example, if a vehicle occupant, wearing a seat belt, sustains severe injuries in a collision with a stationary object at 15 miles per hour, this should set off an alarm for the attorney reviewing the case. When such circumstances are present, an attorney should evaluate the possibility of pursuing an enhanced injury case. However, it is often difficult to properly assess the viability of an enhanced injury case if one lacks a body of general knowledge regarding the common mechanisms which cause enhanced injuries to occur.
Rather than analyzing the legal theories employed in enhanced injury cases, this article will examine some of the more common enhanced injuries that are associated with auto accidents, focusing specifically on the mechanisms that often cause such injuries. By dividing these various mechanisms of injury into general areas of product defect, this article will hopefully illustrate the factors that attorneys should consider in assessing potential enhanced injury cases. It would be rare, if not unheard of, for the client, rather than her counsel, to recognize the potential for an enhanced injury claim. More often a client will seek the assistance of an attorney in pursuing litigation against a negligent driver or in seeking to open the estate of a deceased spouse. Regardless of the context of the initial consultation, one should look carefully at the facts of how the death or injury occurred, and should consider possible claims for enhanced injuries.
II. Fuel System Integrity Vehicle Fire Cases
In the early 1970s, General Motors (GM) engineers proposed a standard that "fuel leaks should not occur in collisions which produce occupant impact forces below the level that would cause a fatality in the absence of fire."11 In other words, manufacturers have a duty to design vehicles so that drivers and passengers will not get burned in survivable collisions.
Despite the fact that automotive manufacturers have long been aware of the risk of fires associated with defective fuel systems, the incidence of vehicle fires has continued to be a serious problem. Indeed, statistics from the National Highway Traffic Safety Administration (NHTSA) confirm that vehicle fires are still a major problem in this country. These statistics include the following:
* 28,000 people were involved in vehicle fires between 1979 and 1986 an average of 29,000 per year;
* 88 percent of the survivors of accidents in which a post-collision fire occurred would have been less seriously injured if the vehicle fire had been prevented;
* Approximately 99 percent of the survivors of collisions involving a post-collision fire had burn injuries more severe than their impact-induced injuries; and,
* 26 percent of vehicle occupants whose death was caused by burns would have had no injuries, or only minor injuries, if the occupant had not been burned.12
Various studies have estimated deaths from vehicle fires at anywhere between 450 to 3,500 deaths per year.13
The continuing problem of a high incidence of vehicle fires may be attributed, in part, to the complexity of the fuel systems in modern vehicles. Most modern vehicles have fuel-injected engines. As a result, the fuel system consists of a number of components, including the fuel tank, three fuel lines, fuel pump(s), fuel line connectors, a fuel filler pipe, and a fuel cap. The three fuel lines include a feed or supply line which sends gasoline to the engine, a return line which returns unused gasoline to the fuel tank, and a vapor line. Most vehicles also have one or more in-tank electric fuel pumps. Each of these components is essential for a vehicle's overall fuel system integrity. If one of these components is defectively manufactured or designed, the risk of post-collision fire is greatly increased.
Any fuel leak creates a very high danger of fire in the event of a collision. Only three elements are required to create a post-collision fire: fuel, oxygen and an ignition source. Oxygen is readily available in any accident. Furthermore, during a collision there are numerous ignition sources. Thus, if a fuel leak occurs, the potential for a fire is substantial. Although the potential areas of defect in the modern fuel system are too numerous to catalogue in this article, there are several common causes for fuel leaks that often result in post-collision fires.
Fuel Lines
Fuel-injected engines require pressure in fuel lines that is sometimes as high as 60 pounds of pressure per square inch. Due to the high pressures found in modern fuel systems, even a small compromise in a fuel line can result in a large amount of fuel escaping from the fuel system. Failure in a line may be caused by the location or routing of the line. Failure in a line may also result from the use of inappropriate materials. The location and composition of fuel lines is critical to the overall fuel system integrity of a vehicle.
Fuel Pump
Most fuel-injected engines have electric fuel pumps located inside the fuel tank. It is critical that these pumps shut off in the event of a collision. If a fuel pump does not shut off following a collision, the pump will continue to circulate gasoline through the fuel system, providing a constant source of fuel for any resulting fire. There are many types of mechanisms that are used to shut off the fuel pump in the event of a collision. The type of mechanism used, and the location of that mechanism, may play a significant role in whether the fuel pump does, in fact, shut off following a collision.
Siphoning
It is possible for fuel to siphon from a fuel tank after a collision, providing a continuing source of fuel for a vehicle fire. Although manufacturers have known of the danger of fuel siphoning for many years, many manufacturers still do not incorporate anti-siphoning devices in their fuel systems. Post-collision siphoning occurs in the same manner that gas can be siphoned from the tank with a hose. Gas can siphon from the fuel system at a very high rate, providing a substantial amount of fuel for a vehicle fire. Recent tests indicate that gasoline will siphon at the rate of approximately three-quarters of a gallon per minute through a typical fuel line. While anti-siphoning devices are inexpensive, they are not incorporated on many vehicles presently on the highway.
III. Restraint Systems
The purpose of a restraint system is rather simple to keep the occupant within the vehicle and to allow the occupant to decelerate slowly and in a controlled fashion. The restraint system allows the occupant to ride down the collision and dissipate the original energy with the hope of preventing or minimizing the occupant's injuries. Even though the principles behind occupant restraint are well understood, a number of defects in design, manufacture and warning have been recognized by the automotive industry and exposed through litigation.
Lap Belt Only Seat Belt Syndrome or SBS
Seat Belt Syndrome, or SBS, is a phrase that was originally coined by the medical community in the late 1950s and early 1960s to describe injuries that physicians were seeing as a result of occupants wearing lap-belt-only restraints in frontal collisions. These injuries typically include: (1) severe abdominal injuries, (2) fractures of the lumbar spine, and (3) serious closed head and facial injuries. These injuries are primarily the result of the occupant's body jackknifing over the lap belt, at the waist, during the collision. Under such circumstances, the lap belt causes extreme force to be applied along the pelvis to the mid-section of the occupant. Securing the waist without securing the upper torso leads to increased head and neck velocities, which can cause serious head and neck injuries following either a head strike or inertial loading of the spine. A majority of these injuries can be prevented by the installation of an integrated three-point belt or other upper-torso restraint.
Passive Restraint Systems
A passive restraint system includes automatic shoulder harnesses in the front outboard positions with manual lap belts. Typically, due to the automatic nature of the shoulder harness, occupants will forget or fail to appreciate the necessity of wearing the lap belt. Subsequently, when they are involved in a collision, the automatic shoulder or passive belt fails to completely restrain their body. It is well known that occupants wearing such restraints suffer severe injuries ranging from decapitation to paraplegia, strangulation and liver lacerations.
Comfort Feature or "Window Shade"
Window shades are devices installed on the shoulder portion of a front lap/shoulder belt. A window shade is a tension-relieving device which allows slack to be introduced into the shoulder belt so as not to interfere with an occupant's movement in the vehicle. Unfortunately, some of these devices, when activated, fail to retract the belt after the occupant has leaned forward, causing slack to be permanently introduced into the system. The slack in the shoulder belt leads to added excursion by the upper torso during a collision, which can cause severe head, neck and chest injuries to the occupant. An occupant's body can act as if placed in a lap belt only. Another intrinsic problem with the window shade device is that the occupant may not even be aware that slack has been introduced into the shoulder belt due to the lay of the belt behind the occupant's shoulder.
Air Bags
The current debate regarding front seat air bags has been widely discussed within the media. Air bag injuries that foster litigation typically involve smaller occupants, including children, the elderly and small females, who are injured during the deployment of the air bag. Injuries can include head trauma, facial injury and neck injury. Air bags are set to be activated only at certain impact thresholds. Low-speed collisions which cause an unintended air bag deployment have proven to be one of the more common sources of enhanced injury.
Seat Back Failures
The restraint system consists of more than just seat belts and air bags. A restraint system also includes the seat and the seat back. The seat back is the most critical aspect of the restraint system during a rear impact. During a rear impact, the vehicle is thrown forward while the occupant is thrown toward the rear seat. If the seat back collapses under such a load, the occupant can be catapulted into the rear seat, causing severe cervical and head injuries. Seat back rigidity and strength must be sufficient to withstand foreseeable rear end collisions.
Submarining Cushions and Belt Angles
Submarining is a phenomenon that occurs when an occupant, during a frontal collision, slides under the lap belt portion of a restraint system as a result of defects in the design of the seat cushion and/or the belt. The occupant begins to move forward and downward during the collision, and if the seat cushion is not rigid enough to prevent the occupant from moving forward, the occupant will continue to slide underneath the belt, causing severe abdominal and lumbar spinal injuries. This movement can be prevented by properly designing the seat to include anti-submarining features, i.e. more rigid seats and seat ramps. Submarining can also be caused by improper lap belt anchorage angles which allow the belt to slide off the pelvis.
Front Release Buttons or Inertial Unlatching
Some belt restraint systems have front release buttons. These buttons may be inadvertently activated during a collision as a result of contact with the back side of the buckle and a solid part of the occupant's body or a child restraint system. These types of inertial unlatchings typically occur in side impact or rollover collisions. The occupant will experience injuries similar to those of an unrestrained passenger. There may be little to no forensic evidence that the occupant was belted at the time of the collision. This is typically the most significant hurdle in pursuing such a theory.
Reclining Seats
If an occupant is riding in a reclined seat at the time of a collision, it is likely that the occupant will slide or submarine under the belt and experience serious lower extremity injuries and injuries to the neck and head. A reclined seat back places the occupant out of position such that the restraint system is of little use.
IV. Rollover Accidents
It has been estimated that 20 percent of all accident fatalities result from rollover accidents. Often, rollover accidents involve neck and spine injuries that result from contact with the roof, or closed head injuries that are caused by ejection from the vehicle. There are three primary theories of defect that are involved in rollover cases: vehicle instability, roof crush and occupant ejection.
Vehicle Instability
Automobile manufacturers concede that a vehicle should not roll over on flat pavement. Vehicles must be designed to withstand sudden steering or turning maneuvers by a driver. These are foreseeable actions given normal driving conditions. The initial question in evaluating a rollover accident is why did the vehicle roll over in the first place? The first thing that must be determined is whether there was an external trip mechanism for the rollover. If there was a potential external source of the trip that caused the rollover, the defense will argue that the roll was inevitable. If there is no identifiable external trip mechanism, then it is possible that the rollover was due to the inherent instability of the vehicle.
Obviously, not all vehicles are inherently unstable. Some vehicles, however, are notable for their inherent instability. The most egregious examples of unstable vehicles on the market today are the Ford Bronco II, Suzuki Samurai, Jeep CJ-7, and Isuzu Trooper. A number of the popular sport utility vehicles have tested poorly in vehicle stability. The reason for their instability can be found in the basic laws of physics. The height of these vehicles, when compared with the track width, is such that the vehicles are prone to rollover during ordinary avoidance maneuvers. If a rollover accident involves one of these vehicles, and there is no trip mechanism, the potential for a vehicle instability case exists.
Roof Crush
A second potential theory is the inability of a vehicle's roof to withstand a rollover accident. This potential theory exists regardless of the mechanism for the rollover. Thus, the presence or absence of a trip mechanism is not determinative of liability. Roof crush cases generally involve neck or spine injuries that result from the occupant being crushed as the roof is compressed into the body of the vehicle. Defendants consistently argue that the injuries suffered in roof crush cases would have occurred regardless of the roof's strength. The typical argument is that the occupant suffered the head or neck injuries while being thrown into the roof prior to the roof being crushed. This is referred to as the occupant diving into the roof.
Occupant Ejection
Often, in a rollover accident, an occupant will be ejected from the vehicle. These ejections can cause severe injuries to the spinal cord, neck or head. These injuries often could have been prevented by adequate restraint systems or proper windows on the vehicle.
The first step in an ejection case is to determine whether the occupant was belted. This can be done by a biomechanical expert, who can examine the seat belt and determine whether there was any loading on the belt. An expert will examine the belt for load marks to determine whether there was any force exerted on the belt during the accident. An expert can generally determine whether the belt was being worn at the time of the ejection. If an ejection occurred despite the seat belt being worn, the restraint system may have been defectively designed. It is also possible that the seat belt simply failed during the accident. The phenomenon of inertial unlatching of seat belts was previously discussed. In addition, the vehicle should be examined for broken seat backs or other problems with the seat that could have led to the ejection.
Another theory in ejection cases applies when the occupant is thrown through a window. Safety glazing has been available to automobile manufacturers for decades. However, so far manufacturers have primarily limited the use of safety glazing to the windshield. Use of safety glass in windows other than the windshield could be an effective means of preventing numerous ejection injuries and deaths.
V. Summary
As enhanced injury theories become an increasingly viable basis for pursuing a cause of action against a product manufacturer, it will be very important for attorneys to recognize potential enhanced injury cases and to take appropriate steps to protect their client's interests concerning such claims. As a result, it is extremely important for an attorney to consider the possibility of enhanced injuries early in the case investigation process. In order to protect the client's interests, it is crucial that the attorney immediately secure and protect the product so that it can later be examined. The condition of the vehicle also must be documented as accurately as possible at the time of the accident. Photographs of the vehicle at the time of the accident, as well as photographs of the accident scene, are often critical evidence in an enhanced injury case. Statements from witnesses regarding issues such as seat belt usage and the manner of a rollover are also vital components of the investigation. In virtually all enhanced injury cases, the pre-filing investigation will make or break your case.
Endnotes
1 The term second collision doctrine derives its name from the second or injury-enhancing collision. For example, the first collision is between two vehicles, while the second collision is the collision between the occupant and the interior of the vehicle.
2 The term crashworthiness is defined as "the protection that a passenger motor vehicle affords its passengers against personal injury or death as a result of a motor vehicle accident."
3 391 F.2d 495 (8th Cir. 1968).
4 529 F.2d 259 (8th Cir. 1976).
5 571 S.W.2d 683 (Mo. App. E.D. 1978).
6 552 F.Supp. 73 (W.D. Mo. 1982).
7 799 S.W.2d 854 (Mo. App. W.D. 1990).
8 799 S.W.2d 854 (Mo. App. W.D. 1990).
9 537 S.W.2d 412 (Mo. banc 1976).
10 552 F.Supp. 73 (W.D. Mo. 1982).
11 National Highway Traffic Safety Administration, Engineering Analysis Report and Initial Decision that subject vehicles contain a safety-related defect, EA92-041 at 41 (Oct. 17, 1994) (quoting a report by GM engineers Ronald E. Elwell, Jim Steger and Paul Judson).
12 Susan C. Partyka, National Highway Traffic Safety Administration, Fires and Burns in Towed Light Vehicle Crashes 1-4 (1992).
13 General Motors Corp., Safety Research and Development Laboratory, General Motors and Fuel System Collision Fires, Environmental Activities Publication No. A-3177 (December, 1974).
Mr. Langdon is a partner in the Lexington law firm of Langdon, Emison, Kuhlman, & Evans, LLC, practicing in the field of products liability. He received his undergraduate degree from the University of Missouri with a B.S. in education in 1970 and a J.D. from the University of Missouri-Columbia in 1972.
1999, Robert L. Langdon