California Personal Injury Law Case Notes : California Personal Injury Lawyer & Attorney : Kristine Meredith : The Danko Law Firm : Car Accidents & Product Liability

The popularity of ATVs has grown tremendously over the years, reaching 9.5 million vehicles in 2007. Accordingly, the rate of traumatic brain and spinal injuries resulting from ATV accidents has also risen, especially in children. Between 1982 and 2007, nearly 9000 riders died in ATV accidents and approximately 40% of them were children under age 16. Currently, ATV federal standards are lax, requiring manufacturers to limit speed capabilities for all youth-sized models. Recently, researchers recommended ATVs designed for children should have both size and weight limitations for riders. Confirming what may appear obvious, a recent study conducted by ER physicians and mechanical engineers, concluded that children, due to their size and weight, are at considerable risk of injury when operating an ATV. The researchers state: “mechanical differences and proportional safety risks that are present on adult-sized ATVs used by youth. Current child-sized ATV stratifications determined using regulated engine speed may not be enough to mitigate risks associated with the size and weight of these vehicles.”

According to auto safety experts at Safety Research & Standards Institute, the importation and sales of three-wheeled ATVs was banned in 2009 and the U.S. Consumer Product Safety Commission has required manufacturers to file and implement voluntary action plans. These plans include commitments to provide safety information and guidelines regarding the appropriate age for child and adult-sized machines. The manufacturers also consented to instruct dealers not to market adult machines to child riders and to monitor dealers under-cover to ensure that dealers are complying.

California’s ATV laws are also lax. The laws require riders to wear helmets and minors to be supervised by their parent/guardian or an authorized adult. The laws also restricts children from riding on public land unless the child rider is taking a safety training course; or riding while supervised by an adult who has a safety certificate. No California laws currently restrict the speed or size of the ATV a child may ride. Given the findings of the most current research, manufacturers should increase efforts to educate riders about the safety risks present when children ride adult-sized ATVs.
 

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Last month Judge Swigert, of Florida, overturned a jury verdict in Ford’s favor.  The judge decided that that Ford had systematically concealed more than 30 years of data related to the problem of electromagnetic interference (EMI) and unintended acceleration (UA). The Judge’s 51-page decision lists Ford’s bad acts which include:

• lying to NHTSA,
• destroying evidence that EMI caused UA, and
• misleading its own experts.

Because of its fraud, Ford will have to face a new trial in which the jury decides only the amount of compensatory and punitive damages Ford should pay Mrs. Simpson, a Ford owner who was left permanently paralyzed by the UA of her Aerostar. The Safety Record Blog recounts how Judge Swigert detailed Ford’s concealment here.

Judge Swigert's decision undermines the foundation of Ford’s UA defense and spotlights NHTSA's inability to properly investigate consumer complaints. While the decision focuses on Ford’s malfeasance, the criticisms set forth in the opinion also undercut many theories that other car manufacturers, including Toyota, rely upon today.
 

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Who is more impaired – a drunk driver or a driver conversing on a hands-free phone? According to a University of Utah study and the National Highway Traffic Safety Administration (NHTSA), it’s the driver conversing on the hands-free phone.

The University of Utah study  showed that when controlling for driving conditions and time on task, cell-phone drivers exhibited greater impairment than intoxicated drivers. The study found that compared with undistracted drivers motorists who talked on handheld or hands-free cell phones:

• Drove slightly slower
• Resumed normal speed after breaking more slowly, and
• Were more likely to crash

In fact, three study participants rear-ended the pace car. All were talking on cell phones. None were drunk.

Further, the NHTSA has indicated that hands-free cell use causes a cognitive distraction that impairs a driver’s performance. Drivers are less likely to pick up on visual and audio cues that are necessary to avoid an accident. This makes hands-free cell use just as dangerous as handheld cell use.
 

Distracted driving is dangerous. Don’t be lulled into a false sense of security by hands-free cell use. There is no meaningful difference between handheld and hands-free cell use while driving.
When a driver is rear-ended, it may be important to consider whether the second driver was impaired or distracted. While the police officer who responds to the scene will evaluate the second driver’s sobriety, he may not ask about cell phone use. If cell phone use may be an issue, the victim’s attorney should take steps to obtain the second driver’s cell phone records.
 

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A parent can sometimes be liable for the harm his or her minor child causes to others.

Here are some situations in which, in California, a parent is automatically liable:

• When the parent has signed  the child’s driver’s license application, and the child’s driving hurts someone (but the parent’s liability is limited to $15,000 per person and $30,000 per incident);
• When the child drives the parent’s car with the parent’s permission, regardless of whether the parent has signed the license application (liability limited to $15,000 and $30,000 per incident);
• When the child hurts someone with a firearm supplied by a parent (liability limited to $30,000 per victim and $60,000 per incident); and
• When the child willfully injures someone (liability limited to $37,100).

In the situations listed above, the parent is liable even though he or she was acting responsibility. But if the parent was not acting responsibility, his or her liability for the harm the child causes will be unlimited. Thus, a parent will be liable for the full amount of the harm  the child causes in the following situations:

• When the parent provides the child alcohol and the child harms someone as a result;
• When the parent entrusts a car, weapon, or other dangerous instrumentality to a child who the parent should have known was not experienced enough to use it safely; and
• When the parent fails to properly supervise or control a child who the parent knew, due to the child’s prior misconduct, could harm others.

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Does the recent NASA report spell trouble for the plaintiffs' attorneys in the Toyota Unintended Acceleration Litigation?

No. Electronic malfunction was not the sole theory relied upon by victims of unintended acceleration. The strategy in most product defect litigation is (1) identify an aspect of the products design that caused the injury; and (2) show that there was a reasonably feasible alternative design that would have prevented the injury. If the victims can prove those two things, then the product was defective.

Here, Toyota has identified at least two known aspects of the vehicle's design that can cause SUA: (1) floor mat interference with the throttle pedal; and (2) “sticky” throttle pedals. Safety advocates, industry experts, and (yes) plaintiffs in Toyota suits have identified a third: electronic malfunction.

All three of the possible design issues could have been prevented by Toyota installing a brake override system. Regardless of which design problem is ultimately proven responsible for SUA, the brake override system solves the problem.

Toyota could have implemented a brake override system for less than $1 per vehicle, but it didn’t. 

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Your tire is losing air. You drive to the gas station and learn you've "picked up a nail." The guy says he can fix the tire in 10 minutes with a "plug." He doesn't even have to take the tire off the rim. Ten bucks. Wow. Sounds pretty good. And what's the worse thing that can happen if it doesn't work? It'll leak again, right?

Actually, an improper patch or plug repair can cause the tire tread to peel off the tire. That, in turn, can cause the vehicle to become uncontrollable, leading to the most dangerous type of accident there is -- a rollover. And it happens more often than you'd think.

The weak part of the tire is where the steel belts bond with the tire's shoulder. An improper "on the wheel" repair can allow moisture to get to the steel belts and weaken the bond. That's what causes the detread. The three things to remember are:

1. No on-the-rim repairs. The tire must be dismounted so that the tire can be properly inspected and sealed against moisture. If the guy at the garage says he can fix the tire without taking it off the rim, he isn't doing you a favor. He is putting you and your family at risk.

2. No repairs near the shoulder. The shoulder of the tire is the weakest part.  So only those holes in the middle of the tire can be repaired.  If you pick up a nail near the shoulder, you need a new tire.

3. If you decide to get a new tire, the new tread must go on the rear axle. Installing the new tread on the front axle can lead to a loss of control and rollover for reasons unrelated to tread separation.

Gas station mechanics are supposed to know better. That's their job. But many don't.

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What, exactly, does the the widely publicized NASA report say about whether Toyota's unintended acceleration problems are caused by faulty electronics? According to DOT Secretary Ray LaHood, the NASA report concludes that there is "no electronic-based cause for unintended high-speed acceleration."

But the consumer group Safety Research & Strategies, Inc. does not believe the NASA engineers go that far.  It quotes the report:

Due to system complexity which will be described and the many possible electronic software and hardware systems interactions it is not realistic to prove that the ETCSi cannot cause UAs. Today’s vehicles are sufficiently complex that no reasonable amount of analysis or testing can prove electronics and software have no errors. Therefore, absence of proof that the ETCSi caused a UA does not vindicate the system.”

In effect, NASA leaves itself some wiggle room by saying: We cannot prove that the electronic system caused the errors; but the lack of proof does not mean the system is error-free.

Looks as though consumers will need turn to plaintiffs' attorneys to identify the cause of the defective acceleration system.
 

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When a car shopper asks for a list of "must - have" safety features, I always mention air conditioning. That usually gets a chuckle.

How is an air-conditioner a safety feature? Simple. Half the people killed in rollover accidents were ejected -- often through an open window. When windows are kept closed, occupants have a better chance of staying inside the vehicle, and survival rates go up considerably. But you can't expect people to keep windows closed if the car doesn't have an effective air conditioner.

What about seat belts? Don't they keep people in the car? Less often than you might think. In fact, seat belts fail to do their job in about 20% of the rollover accidents. Even when they do prevent ejection, occupants are better off with the windows closed. When the windows are open, arms tend to dangle out and get crushed between the rolling vehicle and the pavement. Heads can hit the pavement too, causing catastrophic or fatal injuries.

Now the National Highway Traffic Safety Administration has weighed in. NHTSA isn't quite mandating air conditioning. But beginning in 2013, manufacturers must take steps to keep occupants and their body parts inside the vehicle when the vehicle rolls over.  Even when the windows are open.  NHTSA is leaving it to the manufacturers to figure out how to accomplish this objective.  But it expects that manufacturers will use new side curtain airbags that will completely cover the window openings.

When that happens, air conditioning will be a safety feature no more.

The new NHTSA rule is here. 

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A vehicle spins out on a wet road or highway. It crosses the median divide and ends up in oncoming traffic. If the vehicle is an SUV or van, it may even roll.

The driver wasn't speeding. And the road may have been perfectly straight. So what happened? Just another hydroplaning accident? Driver error? Maybe.

But maybe not. Perhaps improper tire installation made the vehicle uncontrollable.

"Tire Placement" Is Crucial to Safety

A vehicle's front tires tend to wear out faster than the rear. When a consumer buys two new tires, he or she may ask the installer to put them on the front, and leave the older tires where they are.

That may seem like the sensible thing to do. But the tire shop is supposed to know better. Under no circumstances are the new tires supposed to go on the front. It doesn't matter whether the vehicle is front-wheel drive, rear-wheel drive, or all-wheel drive. The best tread is always supposed to go on the back.

It sounds counter-intuitive. But if the rule is not followed, and the better tread is placed on the front axle, the vehicle can easily "swap ends" when it hits a puddle. Especially if the driver taps on the brakes. And that can lead to a serious accident.

Tire Manufacturers Agree

Skeptical? Here's what the tire manufacturers say:

Goodyear: “When you select a pair of replacement tires in the same size and construction as those on the car, we recommend you put them on the rear axle.“

Dunlap: “When you select a pair of replacement tires in the same size and construction as those on the car, we recommend you put them on the rear axle.”

Michelin: “A pair of new tires should go in back.”

BF Goodrich: “. . whenever only two tires are replaced, the new ones should be put on the rear. The new tires, with deeper tread, may provide better grip and water evacuation in wet driving conditions.”

Most consumers don't know that new tires are always supposed to go on the back. But tire installers and sellers do. Or at least they are supposed to. That's their job. 

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By now, most drivers know how dangerous rollovers are. According to the National Highway Traffic Safety Administration, they make up only 3% of all accidents, but account for 31% percent of all traffic vehicular fatalities.

One reason rollovers are so dangerous is that, when a vehicle rolls over, its roof can crush down on the occupants, causing head injuries, paraplegia and death.

Windshields Keep the Roof Up

The surprise is that, in today's vehicles, the windshield is engineered to provide much of the stiffness necessary to keep the roof from collapsing.  In fact, some experts say that the windshield accounts for up to 60% of the cabin's structural integrity in a rollover.

If It Isn't Installed Right, It Won't Stay In

If the windshield pops out of the frame in a rollover accident, it can't do its job of holding the roof up. Sometimes, an improperly installed windshield will pop out on the first roll, allowing the roof to crush down on the second. That's why, when someone is killed in a rollover that should have been survivable, experienced accident investigators want to know about the windshield: Did it stay in the frame as it was supposed to? Or did it pop out? If it popped out, was it the factory original windshield or had the windshield been replaced at some point after the vehicle left the factory?

Because of the demands on the windshield, field replacement of a cracked or broken windshield has become a tricky procedure. For example, if an installer doesn't wear disposable gloves when handling the replacement windshield, oils from his hands can contaminate the bonding surface. The process of "gluing" the windshield into place is also critical. Even if everything else is done right, the bond's strength can be compromised if the car is left outside in the sun with the windows rolled up. Or if the car's owner is allowed to drive off with the car too soon. Any resulting imperfection in the bond will allow the windshield to pop out in an accident.

The Danger Is Real

The National Glass Association has studied NHTSA's crash data. It won't say exactly how many of the deaths in NHTSA's database resulted from improper windshield installation, but it concedes that "a measurable percentage of those fatalities occur when an improperly replaced windshield does not remain firmly bonded to the vehicle during a crash."

Of course, consumers are not in a position to inspect a windshield bond, or to otherwise ensure that the installation was done right.  But the expert installers know how important the job is, and they are supposed to get it right. There's no question that, because of the way today's cars are designed, it can mean the difference between life and death.

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Unintended or sudden acceleration problems have been around for years. From the beginning, car manufacturers have always wanted to blame the driver.  As long ago as the late 1980"s, manufacturers reported that "Startled and confused drivers hit the wrong pedal.” 

It’s no real surprise, then, that Toyota blames “driver error” for the recent spate of reported unintended acceleration cases involving its vehicles. It relies on preliminary findings from the National Highway Transportation Safety Administration that unintended acceleration cases may be due to what NHTSA calls “pedal misapplication”.

The problem with NHTSA’s findings are that they rely on data from a car's “EDR”, or event data recorder. An EDR is a device similar to the “black box” found on airplanes. But while the black box on an airplane is highly accurate, the EDRs installed in cars are not. They simply can’t be relied on, especially when it comes to unintended acceleration cases.

Here’s why relying on EDR data would give a false picture of what's behind cases of unintended acceleration:

• Before 2007, EDRs did not capture pre-crash data. Since unintended acceleration is always a pre-crash event, the EDR is worthless for unintended acceleration cases in cars older than three years.
• 95% of unintended acceleration cases are low speed events . Even the new EDRs, however, are not activated in low speed accidents.
• In the rare high-speed unintended acceleration case, the entire power reserve in the air bag control module capacitor may be called upon to deploy the air bags, leaving none for the recorder and no data is stored.  Instead, the data is lost.
• Unlike the aircraft Black Box data, EDR data has not been scientifically validated.

Toyota has admitted in other cases that the data from its EDRs are not reliable and should be kept out of court. If Toyota doesn’t trust the data from its own EDRs, why should we?
 

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Event Data Recorders (EDRs) have been in cars since at least 1997. They are similar to the“black box” found on airplanes. The EDR in a vehicle is usually part of the vehicle restraint system and records information generally related to accidents. Some EDRs continuously record data and others are activated by crash-like events.

Manufacturers are not required to install EDR’s in the cars they manufacturer. But they do anyway. Ford, GM, Chrysler/Daimler and Toyota include them on most  models. 

In 2006, NHTSA set minimum standards for manufacturers who install EDRs.  The manufacturers must comply with those standards for EDR's installed on or after September 1, 2012. The NHTSA standards will require that the following data be recorded:  speed, engine throttle position, brake use, measured changes in forward velocity (Delta-V), driver safety belt use, airbag warning lamp status and airbag deployment times.

Currently, some manufacturers shroud the quantity and quality of EDR data in secrecy. For example, no one, other than Toyota, knows exactly what data Toyota’s EDRs record, what data is retrieved, and how it is processed and analyzed to produce a report.  Sean Kane of Safety Research and Strategies sheds some light on the murky subject of EDRs in his report found here.  All this will change in 2012, when NHTSA will require manufacturers to make their EDR data publicly available.

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Governor Schwarzenegger has signed a bill into law that will allow adults who serve alcohol to minors to be held accountable for their actions.  Under the new law, adults who serve alcohol to those under the legal drinking age of 21 can be sued for any injuries or death that result from the intoxication.  Surprisingly, before the law was passed, adults who served minors in their homes were immune from civil liability.

 As discussed here, trial attorneys and Mothers Against Drunk Driving  teamed up to sponsor this bill aimed at protecting everyone from the harmful consequences of under-age drinking.

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Assuming that car rental agencies provide safe and well-maintained vehicles, drivers often choose to rent a car for a long road trip rather than put the miles on their own car. Renters trust the rental agency to provide safe vehicles because that’s their business. That’s the service customers are paying for in daily rates. Apparently that assumption may be wrong and the trust misplaced. Sometimes rental agencies seek to push cars off the lot, even when they know the cars have problems with tires, brakes or steering.

In 2004, the Houck sisters were returning to Santa Cruz from their mother's home in Ventura when their rented PT Cruiser crossed the grass median and hit a southbound big rig and burst into flames. Both were killed in the crash.

The girls had rented the Cruiser from Enterprise Rent a Car in SF. What the girls didn't know when they signed for the car was that, a month earlier, Daimler Chrysler recalled 435,000 PT Cruisers manufactured from 2002 through 2005. That recall included the Cruiser that Enterprise provided them. The reason for the recall was that the power steering hose could leak, resulting in a fire.

Nor did Enterprise tell the girls that it had ignored the recall, renting it out to four previous customers without ever getting the necessary repairs completed.

When experts concluded Rachel Houck lost steering ability because of a power-steering fluid leak, the girls' parents sued Enterprise seeking to hold the company responsible for the accident.

Mark Matias, the manager of Enterprise's Northern California area testified that before the accident, he was not aware the PT Cruiser had been recalled. Furthermore, he said the Enterprise corporate philosophy was "you've got to keep booking, because you don't know when you are going to get a car back. But then of course, you run short on vehicles, and if all you have are recalled vehicles on the lot, you rent them out. It was a given. The whole company did it."

His statement explained his understanding of the policy: If a priority recall appears on the computer screen in the rental office, the employee is required to write the word "recall" on a Post-it note and place it on the key in an area designated for non-rentals, but nothing prevents an employee from renting out that vehicle.

A jury disapproved of Enterprise's business practices and returned a verdict against Enterprise and in favor of the girls' parents in the amount of $15 million. Given the Houck family tragedy, hopefully Enterprise, along with other rental agencies will reconsider renting a recalled car and strive to meet the renter’s expectation of safety.
 

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Serving alcohol to minors is illegal. But strangely parents do it or permit it to happen in their home. Stranger still, the law doesn't allow civil recourse against the parent when a teen is killed or injured as a result of the alcohol the parent served. That may soon change.

The Consumer Attorneys of California and Mothers Against Drunk Driving have teamed up to deter underage drinking and hold parents accountable for serving alcohol to minors . They are co-sponsors of the narrowly-crafted Teen Alcohol Safety Act of 2010. It is aimed at adding California to the large preponderance of states that impose potential "social host" liability on adults who knowingly provide alcohol to minors who are subsequently injured or killed as a result of this lack of parental care.

The Senate has signed the bill.  It's now on the governor's desk. If he signs it, it will become law and no longer will parents be immune from liability when they serve alcohol to minors.

Thank you fellow trial attorneys!  

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There's no longer any debate.  Tires older than six years should be discarded and replaced, even if they otherwise appear to be in good condition with plenty of tread.  In fact, they should be tossed out  even if they've never been used.  That's because tires older than six years are prone to "detreading."  Detreading is a type of tire failure where the tread peels from the tire much like the skin may peel from a banana.

Detreadings are more dangerous than flats or blow-outs.  Some vehicles, including SUV's, can become uncontrollable after a detreading and can roll over, especially if it's a rear tire that fails.

One need look no further than the vehicle's owner's manual for guidance.  Almost all the car manufacturers now warn to replace tires after six years, regardless of condition.  That includes Volvo, Nissan, Toyota, BMW, and even Ford. In fact, Ford posted a warning on its website: 

Tires degrade over time, even when they are not being used. It is recommended that tires generally be replaced after 6 years of normal service. Heat caused by hot climates or frequent high loading conditions can accelerate the aging process.  

Until recently, the tire manufacturers argued that tires were good for at least 10 years.  Maybe even indefinitely if they had adequate tread. It's only now that the tire makers agree that the "six-year" rule should be followed.

What gives?  Wouldn't a tire manufacturer want consumers to toss out tires sooner, so that they could sell more?

No.

Tire manufacturers make tires in batches and then store them until needed. That' means the tire you buy at a tire store as "new" may be up to 10 years old.   Sometimes even older.  If buyers began rejecting those tires, tire manufacturers would have to change their whole way of making and distributing their product to get them to market and sold while still "fresh."

Consumer groups have argued that tire makers should stamp the year of manufacturer on the outside tire sidewall, so the consumer would have no trouble telling how old the tire is.  Or at the very least, tire shops should be required to advise customers when the new tire they are buying isn't exactly "new." 

Tire makers and tire shops resist.  They say the code containing the tire's date of manufacture is stamped on the inside sidewall for anyone to see.  But the problem with that is the coded information is hard to find and is, well, in code.      

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California's "financial responsibility" law requires that all motorists carry a minimum level of liability insurance in case they cause an accident. That includes an accident that hurts a cyclist. The problem is that the minimum coverage ($15,000) is enough to cover minor injuries only. If any hospital stay is involved, the minimum coverage is unlikely to be enough. The majority of accidents involving a bicycle and a car send the cyclist to the hospital. Cyclists are thus placed at particular financial risk by "underinsured" motorists. 

If the cyclist owns a car, he can protect himself by purchasing "Uninsured/Underinsured" coverage.  The benefits of this coverage applies whether the driver who caused the accident is uninsured, or insured but carries an inadequate amount to cover the injuries. The coverage will apply even though the cyclist was on his bicycle and not in his car.  Thus, in the appropriate case, the cyclist's UM/UIM coverage will step in and compensate the injured cyclist, up to the amount of the cyclist's coverage limits.

For the cyclist to take advantage of the UM/UIM coverage, the cyclist may not accept a settlement from the driver without first obtaining his insurer's permission. If the cyclist does accept a settlement, the UM/UIM may refuse to pay the cyclist's claim.

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Spinal cord injuries can result from a spectrum of causes: compression of the space around a disk, fractures of a vertebra (cervical, thoracic or lumbar), or a disk "blown" or crushed by a fall. The spinal cord can be injured or severed by a gunshot or by a knife wound. But the leading cause of spinal cord injuries is, by far, motor vehicle accidents (MVAs).

 Often, the MVA victim is concerned about whether a pre-existing condition will make a difference in his case. Generally, it will.

The person whose negligence causes an MVA is responsible only for the harm that results from that particular accident. That means that, if the victim had a pre-existing injury, the victim is entitled to compensation only for the extent to which the accident made the victim's condition worse.

Sometimes the victim had no pain from his pre-existing condition, but the condition made him more susceptible to being injured. Then the "eggshell plaintiff" rule applies. The rule provides that it is no defense that a pre-existing neck or back condition made the victim more susceptible to injury. The wrongdoer who caused the MVA must fully compensate the victim. It makes no difference that another victim without the pre-existing condition might not have suffered any injury at all. The "eggshell plaintiff" is entitled to be fully compensated for the injuries he suffered in the accident, even if the careless driver had no way of knowing the victim's condition was so fragile.

The victim’s pre-existing condition plays an important part in the evaluation of spinal cord injury cases. Sometimes, sorting out what injuries were pre-existing from those that were not can be exceedingly difficult. Because of that, the cases are best handled by attorneys experienced in analyzing medical evidence and in presenting that evidence to a jury.

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Proposition 213 became law in 1996.  That law says that an uninsured driver who is injured in an auto accident  may not recover certain damages due her, even though the accident was entirely the fault of the other driver.  The damages the innocent driver is prohibited from collecting are her non-economic damages, which include pain and suffering.

The insurance companies passed Prop 213 to save money and maximize profits at the expense of the driver who was not at fault in an accident. The only exception: an uninsured driver my collect damages for pain and suffering if the negligent driver who caused the accident is later convicted of drunk driving.

By its terms, Prop 213 applies to those uninsured drivers who were actually at the wheel when they were struck by another driver.  But courts have  applied this law broadly to keep compensation from drivers who weren't even in their cars when the accident took place.  For example, courts have ruled that Prop 213 deprives uninsured drivers of the right to be compensated for the injuries even if they were outside their parked car when they were run down. 

Given the harsh results, it is important  that all drivers carry liability insurance on their cars and trucks.

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