Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘autos’

Nannyism watch: Canada mulls speed governors

“Canadian auto regulators are testing a system that would enforce speed limits by making it harder to push down the car’s gas pedal once the speed limit is passed, according to a newspaper report. The system being tested by Transport Canada, the Canadian equivalent of the U.S. Department of Transportation, uses a global positioning satellite device installed in the car to monitor the car’s speed and position. If the car begins to significantly exceed the speed limit for the road on which it’s travelling the system responds by making it harder to depress the gas pedal, according to a story posted on the Toronto Globe and Mail’s website.” (“Device stops speeders from inside car”, CNNMoney, Dec. 4). Kaimipono Wenger at Concurring Opinions (Dec. 4) says the idea “seems wrong on so many levels it’s hard to list them all” and should not necessarily be viewed as pro-safety, since speeding in some circumstances — say, on rural roads in an emergency on the way to a hospital — can be vital to life and limb.

The government of Great Britain looked at the idea a few years ago (“Go slow — like it or not”, BBC, Oct. 23, 1998; “‘Spy in the sky’ targets speeders”, BBC, Jan. 4, 2000). A 2002 research paper (PDF) funded by the U.S. Department of Transportation on New England traffic recommended speed governors as the “most effective way of achieving speed compliance” (p. 4). Last year a Gallup poll for NHTSA (PDF) found that the idea was generally not popular with the public, commanding only 35 percent support (pp. 11, 64); Eastern, female, Hispanic and black respondents were relatively favorably disposed. Back on Oct. 26, 1999 we took note of a report that trial lawyers were taking a look at trying to get courts to hold automakers liable for not installing speed governors on vehicles.

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Deep pocket files: Motor Coach Industries I-35 bus crash trial

A Temple church group chartered a bus from Central Texas Trails Inc. on Valentine’s Day 2003 to attend a Christian music concert in Dallas. It was raining when charter-bus driver Johnny Cummings approached an Interstate 35 traffic jam too fast, lost control of his tour bus, crossed a median, swerved into oncoming traffic, and collided with an SUV, killing five of his passengers. Cummings and the charter company declared bankruptcy, so 19 injured bus passengers and survivors sued Motor Coach Industries, the bus manufacturer, for its failure to include three-point seatbelts on its 1996-manufactured bus. The bus met federal safety standards, NHTSA has found that seatbelts on tour buses do not “enhance overall occupant protection,” and no tour buses sold in the US have seatbelts, but a McLennan County jury awarded $17.5 million anyway. Judge Jim Meyer allowed Houston attorney Thomas Brown to argue that a jury vote for the plaintiffs was a vote for the cause of safety. A second trial with a second set of plaintiffs from the bus accident remains to be scheduled. (Matt Joyce, “Jury awards bus crash victims $17.5 million”, Waco Tribune-Herald, Nov. 4).

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Blogosphere on sleeping driver lawsuits – Melahn Parker, Lance Hall, and Joan Hall-Edwards v. Ford

John Hawkins, Craig Newmark, Haje Jan, David Svendsen, GM InsideNews, RightNation and their commenters aren’t impressed with the jury’s decision. Neither is the Henderson Daily Dispatch editorial board.

We covered the case Nov. 17.

Amazingly, a jury awarding $61 million in a ludicrous case like this is so “dog-bites-man” these days that there’s been no next-to-no follow-up press coverage, other than a Miami Herald profile of the plaintiff, Joan Hall-Edwards, that might as well have been a press release from the attorney; the story makes no effort to question whether the driver is to blame for falling asleep or losing control when he swerved after waking up from hitting the rumble strips or Hall for not wearing his seatbelt properly. (Susannah A. Nesmith, “Jury: Ford must pay for teen’s death”, Miami Herald, Nov. 18).

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Another Florida driver falls asleep

Amazingly, our Nov. 17 report wasn’t even the first time this year a Florida jury held Ford liable for millions because a driver fell asleep.

28-year-old Tami Martin was a passenger in her mother’s Ford Aerostar, but her mother fell asleep at the wheel and plowed into the back of an ambulance. The mother walked away from the accident, but Martin was reclining in her seat with her feet against the dashboard. So, though the airbag deployed, it did not provide protection. Martin jackknifed over the seatbelt, damaging her vertebrae and spinal cord, leaving her a paraplegic. Martin sued Ford for not putting the “Do not recline your seat in a moving vehicle” warning more prominently on the windshield visor next to the airbag warnings; Ford had made the warning in the owner’s manual, but Martin felt that insufficient because she didn’t read the manual. (Of course, if every potentially fatal injury in the owner’s manual is placed on the windshield visor, then the visor looks like the owner’s manual and doesn’t provide any warning at all.)

A Jacksonville jury has held Ford liable for $16.95 million. You’ll be pleased to know it’s “not about the money,” as supposedly demonstrated by Martin’s willingness to surrender half her award if Ford follows Martin’s preferences about warnings (which, of course, will lead to other lawsuits). The offer is considerably less generous than it sounds if Martin’s attorney, Robert Langdon, thinks she has a substantial chance of losing on the appeal Ford plans to take (plaintiffs frequently settle for a fraction of a verdict for precisely this reason), but at least one press account breathlessly and gullibly reports it as generous. (News4Jax, “Jacksonville Jury Awards $17 Million in Reclining Seat Case”, Nov. 18; Kyle Meenan, “Lawsuit Winner May Reject Millions”, First Coast News, Oct. 24; Pittsburgh Tribune-Review editorial, “Driving & sleeping”, Oct. 29). Special quote for H.M.D.: “‘I knew God would use me to reach other people,’ Martin said.” Overlawyered is proud to assist in God’s mission: read your owner’s manual, don’t recline your seat while in a moving vehicle, and don’t fall asleep while driving.

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Driver falls asleep: jury blames Ford to tune of $61M

In 1997, Melahn Parker fell asleep while driving a 1996 Ford Explorer at highway speeds; the SUV crashed, killing 17-year-old passenger Lance Crossman Hall, who was ejected because he was reclining in the front seat, thus preventing his seat-belt from restraining him. Parker was charged with careless driving, but a Miami jury viewed the accident as Ford’s fault, and awarded $61 million in damages yesterday, $60 million in pain and suffering. The plaintiff, Joan Hall-Edwards’s, Hall’s mother, has thus won a marvelous windfall in that her son was killed by a careless driver instead of by a means where she would have no deep pocket to seek lottery-style damages.

Ford will appeal. “This tragic accident occurred when the driver of the vehicle fell asleep at the wheel while traveling at highway speeds. Real-world experience and testing show that the Explorer is a safe vehicle, consistently performing as well as or better than other vehicles in its class,” Ford spokeswoman Karen Shaughnessy said.

Hall-Edwards’s attorney was Bruce Kaster, who complained that Ford blamed defective Firestone tires for what he called Explorer handling problems. This is a curious complaint, because Kaster calls himself “the nation’s foremost authority on tires and their defects,” has brought several lawsuits against Firestone, and has reserved the domain name “tirefailures.com” for his law firm. On his site, Kasten complains that Ford models don’t have the same features as the more expensive Volvo models made by Ford’s subsidiary. Is it really to be considered a “defect” if an inexpensive car has fewer safety features than a more expensive car? Are consumers not permitted to make the decision for themselves how safe a car to purchase?

No doubt there will be further details than what the AP has provided so far, and we’ll update as more becomes known. (Jennifer Kay, “Ford Ordered to Pay $61M in SUV Accident “, AP, Nov. 16).

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Driving 55: profits before people?

The San Francisco Chronicle publishes an experiment (via Romenesko) recommending that people drive 55 mph on 70 mph-limit highways to save gas. What does this recommendation have to do with product liability? Well, it provides an interesting cost-benefit study. Read on.

1) We’ll leave aside the fact that one can’t do a legitimate comparison of gas savings by driving one way on the first leg of a round trip and the other way on the return leg. I get much better mileage driving into Washington, DC than on my return trip because the first leg is downhill and the second leg is uphill. Let’s just assume that it’s a level trip each way.

2) The author saved 2.1 gallons on a 200-mile drive. At $3/gallon, that’s $6.30 in savings—except it took him an extra 49 minutes to make the drive. Do you really value your time at less than an after-tax $8/hour? (Halve that if you’re driving with a passenger who’s also losing 49 minutes.) The article doesn’t mention the opportunity cost. The financial benefit actually ranges from tiny to negative.

3) The article does mention the safety issue. Getting passed 830 times (several times a minute) versus 94 times has to substantially increase the risk of a collision, especially given the article’s tales of being subjected to tailgating.

4) There’s a social cost externality from driving slow—you’re slowing down the drivers around you (wasting their time), and increasing their risk of a collision.

5) One might protest that there’s a social cost to gasoline usage that’s not reflected in the price of gasoline. But that’s an argument for raising the gas tax (and to stop complaining about alleged “gouging” at the gas pump), rather than for measures that crowd the roads and make driving more inconvenient.

In sum, the Chronicle and the 55 Conservation Project are making a recommendation that doesn’t really save that much (if anything) in the way of money, can substantially inconvenience others, and, most of all, make the roads more dangerous.

What’s the liability reform tie-in? Well, note that automobile companies have been hit with millions of dollars of product liability verdicts for design decisions less risky and more cost-saving than what the Chronicle and 55 Conservation Project are proposing here. (E.g., Mar. 21, Mar. 7, Dec. 21). And (as should be the case) no one thinks that these two institutions, or the drivers that unilaterally adopt their recommendation to needlessly drive slower than the prevailing traffic, should be held liable for the foreseeable consequences of the recommendation or its adoption.

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Radio: “Small Business Advocate”

I was a guest on Jim Blasingame’s national radio program “The Small Business Advocate” this morning, discussing auto lease liability, indemnity clauses in contracts and other topics (listen/ his archive of law-related shows). For more on the $20 million verdict against Budget Rent-a-Car, see Feb. 2; for more on the recent enactment of a federal law overriding New York’s, see Aug. 4.

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No driver partitions in Greyhound buses? That’ll be $8 million

On Oct. 3, 2001, a mentally disturbed passenger from Croatia produced a box cutter and began slashing the driver of a Greyhound bus traveling between Nashville and Chattanooga, Tenn. In the ensuing crash six passengers including the attacker were killed. Now, in one of many lawsuits proceeding from the incident, a jury has decided that Greyhound should pay $8 million to Sharon Surles, a Saginaw, Mich. woman severely disabled by the crash. On what theory, you ask, was the large intercity bus company negligent for not preventing the crazed attack?

[Plaintiff’s attorney Andrew Berke of Chattanooga] said that in the four years before the crash, Greyhound had at least 43 incidents of a passenger attempting to assault a driver or grab the steering wheel of a moving bus.

“Despite the prevalence of attacks, Greyhound never did anything to protect its drivers,” Berke said.

He said a Greyhound executive in 1997 had asked the manufacturer if they could “put protective barriers” between drivers and passengers.

(“Bus crash after driver cut prompts $8M verdict”, AP/Nashville Tennesseean, Aug. 12; Ian Berry, “Woman wins $8 million in bus crash”, Chattanooga Times & Free Press/MSNBC, undated). Forty-three incidents of assault over four years amounts to a rate of ten per year, not necessarily an impressive crime wave given that Greyhound is the dominant player in intercity bus transport and carried more than 21 million people last year. Moreover, the quote from the lawyer includes no intimation that any of the earlier assaults in fact led to crashes or serious harm to passengers. The best detail, however, is the one portraying the company as culpable because one of its execs once asked about the practicability of driver partitions after which no one seriously pursued the idea. If you’d like an ultra-conservative, cover-your-behind culture to grow up in a big company, just plant the idea that the employee who goes around asking questions about possible different ways of doing things is setting you up for grief down the road after some adverse lawyer portrays the inquiry in question as a smoking gun.

Attorney Berke told the AP that the giant bus company is now moving toward the use of driver barriers, but it’s hardly surprising that such steps would have been rejected in the security climate that preceded the fall of 2001. Drivers of New York City taxis, who are exposed to a far greater risk of passenger crime than drivers of Greyhound buses, widely dislike their city-required partitions of yellowing Plexiglas and tend to leave them open during daytime rides at least, according to a recent article in the New York Times (Sewell Chan, “Taxi Partitions, Born of Danger, May Be Set for a Makeover”, Aug. 9). It’s not even intuitively clear that driver partitions will on net reduce crime on buses, since one of drivers’ key safety duties is to keep order among passengers. What will happen the first time one passenger on a Greyhound bus assaults another while the driver, immurred behind his partition, either doesn’t notice what’s going on or can’t make his authority felt? Do you think the company might get sued then too? (via Day on Torts, who predictably takes the other side of the question).

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One more Winnebago thought: the Ford Pinto lawsuit urban legend

Kudos to John Cole, who evaluated the evidence and withdrew his endorsement of the LA Times story.

One of his commenters protests: “I’ve certainly heard [the Winnebago case] presented as true.” Well, no doubt. That’s the nature of urban legends. The point is that the Winnebago story isn’t a motivating force behind tort reform. The major tort reform advocates aren’t using the Winnebago story (and, in fact, have done much to refute it). Policymakers aren’t enacting tort reform in response to the Winnebago story.

In contrast, what about urban legends that support the litigation lobby? For example, how about the myth that the Ford Pinto was unusually dangerous and the related myth that Ford valued a human life at $200,000 in deciding not to make a design change? It’s a thirty-year-old tale, trumpeted by Mother Jones magazine and the mainstream media, repeated endlessly (including by Ralph Nader and in a talk I heard by Jonathan Turley, quoted in the LA Times story), used in law school textbooks—but it’s utterly false. Unlike the Winnebago story, a google search for “ford +pinto +lawsuit” turns up no refutations on the front page (though maybe this new page will turn up in the future). Rather, one gets such links as a Daily Kos poster using the Ford Pinto case to argue against class action jurisdictional reform, even though the latter has nothing to do with the former. These things are perhaps impossible to measure, but how can anyone possibly think that the false Winnebago story has had more of an impact on the tort reform debate than the false Ford Pinto story? Where’s Myron Levin on this one?

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