SUV suits follow-up

by Ted Frank on December 13, 2006

Some follow-up observations about the Ford Bronco $31 million verdict post.

1. South Carolina is one of the few states that has the pure form of the doctrine of “joint and several liability”, under which any deep-pocket defendant is 100% liable even if they’re only found 1% at fault. Thirty-seven states have enacted some limits on this, but South Carolina has not. Such a legal system creates incentives to find the deepest pocket and attach a shred of fault to them so that they are held entirely responsible for the consequences of others.

2. I’ve read several plaintiffs’ briefs arguing for upholding similar verdicts, as well as submissions made to NHTSA arguing that certain vehicles are “too prone” to roll over. They essentially come down to requests to ban SUVs: every SUV faces accusations of being “too prone to roll over.”

SUVs are designed to have high clearance to traverse rugged terrain. This raises the center of gravity and affects the handling: it’s a known tradeoff of the laws of physics. There are a wide variety of tests of varying degrees of scientific merit one can use to suggest a vehicle is “too prone” to roll over, and plaintiffs have the benefit of cherry-picking which tests to apply to which vehicles. You’ll find lots of lawyers complaining that the Bronco II allegedly responded poorly in “J-turn tests”, where the steering wheel is turned 330 degrees in one third of a second and held there for another 4.67 seconds. Ford designed the Explorer to pass the J-turn test to take away this claim, and the trial lawyers started using different methodologies to claim that the Explorer was too prone to roll over.

Empirically, however, the Bronco doesn’t roll over more than several other SUVs on the market, which is why NHTSA, in both the Bush I and Clinton administrations, refused to recall the Bronco when the plaintiffs’ bar asked it to. When I say Ford was held liable for producing an SUV, I’m not spinning: it was because it was held liable for producing an SUV.

Moreover, a vehicle should be viewed in totality: an auto that is more likely to roll over may be safer in other particulars that more than compensate for that increased propensity. So I question the premise. One can’t change the rollover propensity without creating a different vehicle entirely. The vehicle should be viewed holistically, and holistically, the Bronco is a safe car when used as designed.

Perhaps we as a society would be better off taking the nanny-state step of banning SUVs, forbidding people from wildnerness driving because too many drivers don’t know how to drive SUVs in highway conditions, but that’s a decision that not only would end the American auto industry, but should be made other than by a 12-person jury of laypeople. This vehicle rolled over because the driver drove off the road.

3. The ultimate cost is borne not by Ford, but by the rest of us: lawsuits like this add $500 to the price of every American car. You and I can’t go to the car manufacturer and get a cheaper car by promising not to be as stupid a driver as this one was. So careful drivers are subsidizing careless ones.

4. It’s unlikely that the $500 applies equally to expensive and cheap cars, but not in the manner you think: (1) the less expensive car is more likely to be driven longer and more often and with more carpooling passengers; (2) less likely to have expensive top-of-the-line safety features that haven’t yet become standard and thus more likely to be sued over the lack of those features; and (3) more likely to be sold in such a volume that trial lawyers have put together a cheap package targeting the vehicle for lawsuit in the hopes of achieving economies of scale by targeting a lot of potential plaintiffs. (There will never be a mass tort for a Rolls Royce, for example—not enough of them are sold.) Note that the plaintiffs’ bar puts profits before people: they look at the costs and benefits of bringing suit, and target the most profitable vehicles to sue over, rather than the most dangerous ones, which is why the Ford Pinto is notorious and the VW Beetle (whose designers were so inconsiderate to write their memos in German instead of cheap-to-analyze English), which killed people at a much higher rate, is remembered with fond nostalgia.

So average liability is, if anything, higher for cheap cars than expensive cars; the $500 figure (which comes directly from the president of Chrysler) is probably higher for cheap cars and lower for expensive cars, and perhaps close to zero for the Rolls.

{ 7 comments }

1 Amsterdamsky 12.13.06 at 12:18 pm

I think your polonium argument really addresses this. It’s a bandwagon effect from the previous attention and successful suits. I find it hard to believe that a gas guzzling 1950′s technology monster of a car like an Explorer fares worse in a collision that say a Renault Clio or a Fiat Panda but they can show neglegence because Ford never fixed the “problems” after the earlier suits and the Explorers are already associated with rollovers from the Firestone tire blowout/rollovers. Some women flipped her Explorer on highway 8 in San Diego in clear weather with no traffic and was awarded something like $300 million last year. I would be curious what survivors benefits for US military people are? Maybe 1/10,000 of that?

[We posted on the San Diego lawsuit in 2004; I have a piece coming out for the AEI Liability Outlook shortly on this case. -- TF]

2 dwight Meredith 12.13.06 at 1:07 pm

The link to the $500 per car figure is to a statement by the head of Chrysler when annoucing his support of tort reform.

How was the figure calculated? What was included and excluded from his calculations? Is there some better evidence to support the claim?

[This is discussed in more detail in this post, including by Jim Copland in the comments section. -- TF]

3 Baumann 12.13.06 at 1:42 pm

You want to talk about cars having a bad rap for no reason… I own a Corvair.

4 Amy Alkon 12.13.06 at 8:32 pm

Moreover, a vehicle should be viewed in totality: an auto that is more likely to roll over may be safer in other particulars that more than compensate for that increased propensity. So I question the premise. One can’t change the rollover propensity without creating a different vehicle entirely. The vehicle should be viewed holistically, and holistically, the Bronco is a safe car when used as designed.

This is a very smart argument. People need to take personal responsibility for their purchase decisions. A Volvo station wagon lacks something in style, but when I was investigating auto safety for a piece I was writing on SUVs, a California insurance investigator told me it was the safest car on the road. You want safe, it’s not a big secret which cars rate highest. You want to hedge your bets, fine. You pay for it; don’t pass the costs on to the rest of us.

5 Deoxy 12.14.06 at 10:37 am

“don’t pass the costs on to the rest of us.”

Heresy! BLASPHEMY!!! BURN HER!

Heh, “don’t pass the costs on to the rest of us.” That’s funny. I almost thought you were serious about that for a second there.

[/lawyer]

6 Colin P. Varga 12.14.06 at 1:10 pm

“You pay for it; don’t pass the costs on to the rest of us.” We all helped to pay for the SUV’s. Remember a few years ago, “If you buy now certain tax incentives may apply.” Every SUV has some of your tax dollars in it. Personal responsibility in driving a car/truck should be paramount, but there is also the psychological effect of surrounding the driver with a ton of steel, a more powerful engine, and a sales pitch saying that the driver will own the road. Reason should rule but the psychology behind advertizing works on some people.

7 tim king 12.15.06 at 6:31 pm

You have to look at the basis for holding these manufacturers liable. Read http://www.ecovitality.org/newfiles/SUV.pdf , which is Howard Latin’s (Rutgers Law prof) argument for holding the manufacturers liable… It is a very well written article with some good policy and law arguments for holding the manufacturers liable.

[Latin's article is on a completely different topic: he creatively argues for holding SUV manufacturers liable even for accidents where a bad SUV driver injures a passenger in another car or a pedestrian, in effect banning SUVs through litigation. Again, society can choose to ban SUVs (and there are perhaps good arguments for safety regulations requiring consistent bumper heights), but the judicial system is the wrong place to achieve this change. Latin does not address any of the points I raise (except to essentially argue that all SUVs are unsafe in the rollover context, which effectively proves my point about the position of the plaintiffs' bar); the words "driver error" do not appear in the article. -- TF]

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