Special Focus: Products LiabilityA Lifesaving Standard Long Overdue in Commercial Vehicles
By Lincoln Sieler, Friedman | Rubin, PLLP
This article was reposted from the June 2023 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.
https://www.trialnewsonline.org/trialnews/June_2023
Although commercial trucks are among the safest vehicles on the road per mile traveled because most of their miles traveled are on the highway, they are also the most dangerous vehicles to be involved in a collision with due to their massive size and weight. Collision avoidance technology, such as automatic emergency braking, lane departure warning, and adaptive cruise control, has been proven to significantly reduce the risk of accidents and improve road safety. These technologies use sensors, cameras, and other detection systems to monitor the vehicle’s surroundings and assist the driver in avoiding collisions or mitigating their impact. Unfortunately, such technology is still not standard on most commercial vehicles.
As a result, product liability litigation against manufacturers for failing to equip trucks and buses with collision avoidance technology has become a relatively new but rapidly expanding area of law in recent years. Manufacturers typically respond to such claims by arguing that plaintiffs’ lawyers are unfairly trying to hold them liable for failing to equip their vehicles with state-of-theart, cutting-edge technologies. But these technologies are quite mature and governmental agencies have been asking commercial vehicle manufacturers for years to make this technology standard on all new vehicles.
Collision avoidance technology has been commercially viable for decades
The development of collision avoidance technology in the commercial trucking industry has evolved significantly over the years to improve safety on the roads and mitigate the risks associated with driver errors when it is used.
1970s: early developments. The concept of collision avoidance technology started to emerge during the 1970s, primarily in the aviation and maritime industries. During this period, the basic concept of using radar systems to detect potential collisions was developed, although it was not yet applied to commercial trucks.
1980s: early adopters. In the 1980s, some truck manufacturers started to experiment with early forms of collision avoidance technology. These initial systems were primarily radar-based and could detect objects in front of the vehicle but were not yet capable of taking automatic corrective actions.
1990s: introduction of ABS. The 1990s saw the introduction of Anti-lock Braking Systems (ABS) in commercial trucks. While not a collision avoidance technology in itself, ABS improved the safety of commercial trucks and buses by preventing the wheels from locking up during braking, thereby maintaining steering ability and reducing stopping distances. This decade also saw the early development of more advanced driver assistance systems such as Automatic Emergency Braking (AEB), Electronic Stability Control (ESC), Adaptive Cruise Control (ACC) and Lane Departure Warning systems (LDW).
2000s: advancements in technology. The 2000s saw significant advancements in the more active collision avoidance technologies. Features like Adaptive Cruise Control (ACC), which automatically adjusts speed to maintain a safe distance from vehicles ahead, Electronic Stability Control (ESC), which reduces the risk of rollovers and loss of control, Automatic Emergency Braking (AEB) which detects potential collisions with pedestrians and cars, alerts the driver and automatically applies the brakes if the warning is not heeded, all began to be offered in commercial vehicles. These features, however, were often optional and limited to higher end models as manufacturers tended to use these technologies as a marketing tool for product differentiation.
2010s: broader introduction of Advanced Driver-Assistance Systems. This decade saw the introduction and maturation of ever more sophisticated Advanced Driver-Assistance Systems (ADAS). These systems use a combination of radar, cameras, and other sensors to detect potential hazards and to actually take corrective actions, such as automatic braking or lane-keeping assist. More major truck manufacturers started to offer these systems as optional features.
Government agencies have been begging manufacturers to make the technology standard
Since the late 1990s, government agencies have been asking manufacturers to make these safety features standard on all new commercial trucks and buses. For example, the National Transportation Safety Board (NTSB) held a Public Hearing in 1999 on Advanced Safety Technology Applications for Commercial Vehicles focusing on technologies that could reduce the number of commercial vehicle accidents.
In his opening remarks, the Chairman of the NTSB stated that a large percentage of truck crashes involved rear-end collisions that could have been mitigated or avoided with the use of collision warning and avoidance technologies that were commercially viable and available even then:
Rear-end collisions such as these comprise roughly 28 percent of all highway accidents reported annually, and the Trenton collision was the ninth accident at this interchange in one month. We are still investigating these accidents. However, we do know that advanced technologies available today may have prevented them from happening. If the trucks had been equipped with collision warning technology, the drivers would have received audible and visual warnings that the headway between their trucks and the vehicles in front of them was closing quickly, giving the drivers more time to react and perhaps avoid the accidents.
Or, if these trucks had been equipped with electronic braking systems, the brakes would have adjusted automatically and activated more quickly than air brakes, allowing the alerted drivers to stop their trucks in a fraction of the distance it would have taken to stop without this technology.
He went on to state that because these systems were so effective at preventing and mitigating collisions and injuries, many truck manufacturers and fleet owners were already making these safety features standard on all of their trucks:
I recently visited the manufacturer of a collision warning system and learned that several heavy truck fleets have made this equipment standard on newly purchased trucks, and the company estimates that they will sell more than 10,000 units this calendar year. In addition, they stated that a collision warning system is also standard equipment on newly purchased U.S. Army medium and heavy vehicles. The Army has at least 2,300 currently in its trucks, and has purchased 2,000 retrofit kits.
I also visited U.S. Xpress Enterprises, Inc. in Chattanooga, Tennessee. In 1996, this trucking company began installing a collision warning system in its vehicles. Eighty-five percent of their fleet, that’s over 4,000 trucks, currently has this important safety device, and the company is placing it in all newly purchased vehicles. I was pleased to learn that since installing this technology, the company’s rear-end accident rate has decreased by 75 percent, and costs due to accidents have decreased by two-thirds. The rest of the industry and DOT should take notice. The widespread use of this safety device would prevent injuries, save countless lives and, as demonstrated by U.S. Xpress’ experience, some millions of dollars each year.
Emphasis added. It bears repeating—these statements about the effectiveness, commercial availability and technological viability of these safety systems were made almost 25 years ago.
In the years following, numerous studies showed that human driving errors were inevitable and predictable, that such errors would lead to collisions, and that commercial vehicles would be less dangerous if they were equipped with forward collision warning systems. See, e.g., “Primary Pedestrian Crash Scenarios: Factors Relevant to the Design of Pedestrian Detection Systems,” https://www.iihs.org/api/datastoredocument/bibliography/1888, Jermakian, 2011; “Effectiveness of a Current Commercial Vehicle Forward Collision Avoidance and Mitigation Systems,” Woodroffe, 2013. https://saemobilus.sae.org/content/2013-01-2394/; and “Shiny-side Up: Advanced Crash Avoidance Technologies That Can Reduce Heavy Truck Crashes,” Univ. of Michigan Transp. Research Inst. USA, Blower, 2015 https://static.tti.tamu.edu/conferences/traffic-safety15/presentations/breakout-02/blower.pdf. Reasonable manufacturers should have been aware of these and the dozens of other similar studies demonstrating the effectiveness and viability of these safety systems.
In 2015, the NTSB issued a Special Investigation Report, The Use of Forward Collision Avoidance Systems to Prevent and Mitigate Rear-End Crashes, https://www.ntsb.gov/safety/safety-studies/Documents/SIR1501.pdf. That report examined and summarized the results of a three-year investigation by the NTSB into collisions involving passenger and commercial vehicles and examined then technically feasible and commercially viable collision avoidance technologies that would have aided in their prevention. It also recognized that the ordinary and foreseeable use of passenger vehicles and heavy trucks includes driver mistakes and negligence, and concluded that collision warning systems, particularly when paired with active braking, could substantially reduce the frequency and severity of rear-end crashes.
Most importantly, the report concluded by recommending that all manufacturers install forward collision avoidance systems as standard features on all newly manufactured passenger and commercial motor vehicles.
To passenger vehicle, truck-tractor, motorcoach, and single-unit truck manufacturers:
Install forward collision avoidance systems that include, at a minimum, a forward collision warning component, as standard equipment on all new vehicles. (H-15-8)
Id. (emphasis in original); see also https://www.ntsb.gov/safety/safety-studies/Pages/DCA14SS001.aspx.
To make sure that manufacturers were aware of this report, the Chairman of the NTSB then personally wrote to the CEOs of all major commercial vehicle manufactures, referenced the report and specifically asked them to install forward collision avoidance systems that include, at a minimum, a forward collision warning component, as standard equipment on all new trucks and buses. See, e.g., https://www.ntsb.gov/safety/safety-recs/recletters/H-15-008-009.pdf.
That same year, the NTSB also published a Safety Alert addressing the issue of deadly rear-end crashes in 2015:
Forward Collision Avoidance Systems Can Save Lives
The Problem
- Between 2012 and 2014, almost half of all two-vehicle crashes were rearend crashes. These crashes killed more than 1,700 people each year.
- A 2007 National Highway Traffic Safety Administration (NHTSA) study showed that 87 percent of rear-end crashes involved a driver failing to attend to the traffic ahead.
The Solution
- Considerable research on forward collision avoidance systems (CAS) in both passenger and commercial vehicles has shown that these systems can prevent or mitigate rearend crashes.
- Forward CAS typically consist of (1) collision warning that alerts a driver of the impending crash, and (2) autonomous emergency braking (also known as “crash imminent braking”) that automatically applies brakes.
- NHTSA is recommending the use of forward CAS.
- Broad deployment of forward CAS in all vehicles is necessary to reduce the severity of rear-end crashes.
https://www.ntsb.gov/Advocacy/safety-alerts/Documents/SA-046.pdf.
Two years later, the NTSB published its Most Wanted List of Transportation Safety Improvements. https://www.ntsb.gov/Advocacy/mwl/Documents/2017-18/MWL-Brochure2017-18.pdf. That 2017 report stated that driver errors were foreseeable, should be anticipated by manufacturers, and should be mitigated with the immediate implementation of collision avoidance technologies on their new vehicles:
Humans make mistakes, even in transportation. Transportation operators must always walk a demanding line of alertness and vigilance, but collision avoidance technologies can provide a lifesaving safety net. Technologies such as collision warning and autonomous emergency braking in highway vehicles … will result in fewer accidents, fewer injuries, and fewer lives lost.
These technologies are available today. They should be implemented today.
Manufacturers blame purchasers for not optioning vehicles with CAT systems
As was mentioned above, manufacturers that offer these systems often make the technology optional, and when a products case is brought against them, defend by blaming the purchaser for declining the option. This defense has two problems.
First, the NTSB has strongly condemned the practice of making safety systems optional and/or using them for “product differentiation,” i.e. using a feature to differentiate high-end vehicles from mid-range and lower-end vehicles:
The NTSB believes that not only should more automakers offer collision avoidance technologies as standard features in their vehicles, but that consumers should not have to purchase a luxury option package to get the safety benefits of these technologies. And he stated, Many manufacturers only offer this safety system within a luxury option package. But safety should be a basic feature rather than an option that we have to purchase and that only the wealthier buyer can afford.
Emphasis added. https://www.youtube.com/watch?v=CpRXnXcd-Qh8&t=17s.
Second, in Washington, manufacturers may not delegate their duty to design products that are reasonably safe. Anderson v. Dreis & Krump Manufacturing Corp., 48 Wn. App. 432, 440 (1987) (“a manufacturer cannot delegate to the buyer its responsibility to equip an otherwise dangerous machine with safety guards”); Wagner v. Beech Aircraft Corp., 37 Wn. App. 203, 209 (1984).
These cases are vigorously defended and must be properly screened
This article is not intended to be a thorough review of all the issues one can anticipate encountering in a product liability case alleging that a commercial vehicle is defective because a manufacturer failed to equip it with an advanced driver safety system. Rather, the intent is to bring about a wider awareness of the existence of these types of cases so that more practitioners can identify and investigate them as potential claims. These cases are vigorously and aggressively defended and should not be undertaken lightly but, under the right circumstances and with the right presentation, can be quite compelling to a jury.
Lincoln Sieler is an EAGLE member whose practice focuses on product liability, commercial vehicle collisions, and insurance coverage and bad faith at Friedman Rubin PLLC in Seattle. www.friedmanrubin.com. He is also a member of the Trucking Injury Law Group. www.truckinginjurylawgroup.com.
