Are children caught in the seat of disaster?

Although child restraint systems have been improved and government regulations tightened, children continue to be killed or injured in child seats that are defective or improperly installed.

Despite President Clinton's pleas to keep children under 12 secured in the back of cars where they are safest and despite current laws, the number of children injured and killed in traffic accidents remains frighteningly high.(1) Nearly 2,800 children under 15 are killed annually in crashes.(2) Forty percent of children under 5 are improperly restrained in child safety seats,(3) while as many as 90 percent of child restraints are not installed correctly.(4)

Child restraint systems have been improved and government regulations have been tightened over the past 20 years. Nevertheless, defective restraints, improper warning labels, and the industry's failure to effectively educate parents on proper use of restraints continue to result in needless injuries and deaths.

Federal agencies have created regulations for both child restraint and car manufacturers to follow, and every state today requires use of restraints for children under 40 pounds. Awareness programs have been developed to help train parents on the proper use of child restraints, and innovations are making the restraints both easier to use and safer. Despite changes in legislation, education, and technology, manufacturers still fail to address some basic safety issues.

There are five primary types of child restraints: infant restraints, convertibles, forward-facing restraints, booster seats, and built-in seats. Typically, infant-only seats are made for babies who are under one year or who weigh less than 20 pounds. The seats are rear-facing to protect a baby's vulnerable neck from neurological damage during a frontal crash.

The second type of restraint, convertibles, can be placed in a rear-facing position for babies weighing between 7 and 20 pounds, or in a front-facing position for toddlers weighing 20 to 40 pounds. Their front shields fool many parents into believing convertible seats are stronger than other types of seats, but these restraints can pose a danger to very small infants. The shield is too high for optimal fit and holds the shoulder straps away from the body so the harness cannot fit snugly.(5) Most manufacturers are now replacing these shields with a five-point harness system.

The third type, forward-facing or toddler seats, is generally recommended for children over one who weigh between 20 and 45 pounds. In an accident, if parents have placed children under 20 pounds in this type of seat, and faced it forward, cervical spinal cord injury can result. This is because the baby's head at this age is large and heavy in proportion to the body, and the neck is relatively weak. If the child is riding forward-facing, the head could snap forward on impact, possibly causing injury.

The fourth type, the booster seat is generally made for children 35 to 60 pounds. These seats are a good solution for kids who have outgrown convertible or toddler seats. Although older booster models did not provide much protection, newer upright versions using adult seat belts are generally safer.(6)

Built-ins, the last type of restraints, are so called because they are integral seats that fold down to form child seats with harnesses. These are generally no safer than regular properly installed safety seats for children over 20 pounds; they are just more convenient.

Types of defects

An estimated 3 million child restraints are sold in the United States in retail stores or loaned through "seat loaner" programs every year.(7) Although most child restraints provide some protection, many defective restraints enter the U.S. market and cause injury or death due to structural and buckle design defects, inadequate warnings, incompatibility with the vehicles they are placed in, and webbing defects.

Last summer, EvenFlo recalled 1.4 million of its Champion child seats due to a defective adjuster mechanism that can cause the harness straps to loosen during a crash. It also recalled its Sidekick booster restraint because it did not meet head injury criteria.(8) Another manufacturer, Britax, recalled nearly 13,000 Freeway model 101s last year due to defective buckles.(9)

To determine whether a child restraint is considered defective, the type of crash--side-impact, rear-end, or frontal--must be determined. The change in a vehicle's speed and the force produced by the impact will cause both the child and restraint to move. The amount of movement reduced or prevented by the restraint directly affects the degree of injury.

Poor structural and buckle designs cause many head injuries and fatalities. Many restraints allow excessive movement of the head, which can impact an inadequately padded restraint or car interior. Slack in the shoulder harness (rear- or forward-facing seat) or excessive reclining of a rearfacing infant seat can lead to a child's forward motion and potential head injuries.

Also, defectively designed buckles that fail to latch properly can cause a child to be ejected from the seat and the vehicle itself. Further, many manufacturers do not test a multiple-position restraint in all the positions it can be in during an accident.

It is not necessary to prove that a child restraint allowed excessive head movement or that the buckle was defective in order to prove a defect. In a 1992 Alabama case, the parents of a six-year-old who died of massive internal injuries in a car crash proved the injuries were caused by a defective child seat that failed to distribute the crash force evenly and concentrated the crash force on the child's abdomen.(10)

Manufacturers have also been liable for defective warnings and poorly worded instructions. This is the primary cause of parents' confusion and often leads to improper installation. The National Highway Traffic Safety Administration (NHTSA) says improper installation is responsible for nearly 200 deaths of children annually.(11)

Recent user trials conducted in the United States showed high levels of dissatisfaction with conventional means of attaching child restraints in vehicles.(12) NHTSA's Consumer Complaint Hotline receives an average of 50 calls a day from people asking for help in installing child seats. When an article appears in the media about incompatibility problems between child restraints and vehicle seats, calls usually increase to more than 500 a day.(13)

Many child restraints do not properly fit in today's smaller cars. The industry has known for several years that in small cars with incompatible restraints, a child's head can collide with the seat back in front of the child in a low speed collision.

Webbing failure is another defect in child restraints. Under Federal Motor Vehicle Safety Standard (FMVSS) 213, webbing on car seats must be at least 1.5 inches wide.(14) Most manufacturers barely comply with this standard. The problem is that webbing narrower than this is subjected to a phenomenon known as "roping"--the webbing curls or folds over itself When this occurs, the webbing will not properly restrain the child, in addition to increasing the chances of catastrophic fracture of the child seat This is a particular problem with the new five-point harness systems.

Legislation and testing

Manufacturer recalls and standardized design specifications have been enforced primarily with the tool of legislation.(15) Federal regulation of child restraints has increased over the last 20 years, but many argue that legislation is both too slow in coming and already outdated when it goes into effect.

As early as 1972, the child restraint industry was aware that many child seat systems performed poorly in crash tests. The tests showed only 5 of 100 child restraint devices to be acceptable, and only one device was rated "good."(16) These early restraints hooked over automobile seats.

The ineffectiveness of these restraints coupled with the number of children killed annually in car accidents led NHTSA to create FMVSS 213, which established a standardized test for child restraint systems.(17) It required manufacturers to test the performance of seats under the stress of a 1,000 pound pull and to determine the movement of a child dummy in a 30 mph sled test.

Unfortunately, this testing has limited applicability; the test does not examine the durability of restraints for children under 50 pounds in front-impact crashes in bucket-type seats of smaller, modern cars. The test also fails to consider how the restraints perform in rear-impact rollover, side-impact, and skidding accidents.

In addition, the test does not apply to compact cars, nor does it test the effect of loose belts or inadequate seat bottom stiffness.(18) More comprehensive and dynamic testing was discussed as early as 1974, but by 1978 the Juvenile Products Manufacturers Association overcame the demand for better testing.(19)

In 1981, FMVSS 213 was changed to require dynamic load testing on child restraints, but this was a self-certifying standard: The manufacturers were only required to certify to NHTSA that the restraints met the minimum performance criteria. Manufacturers were also required to label the date of manufacture, issue warnings on improper installation, and publish a statement of compliance with the federal standard.

Since 1989, several new additions to FMVSS 213 have strengthened the testing criteria, but these regulations still fall short of stringent European requirements that simulate dynamic crashes with various masses and points of impact.(20)

Education

The number-one problem with child restraints--improper installation--has not been solved. The horrifying statistic indicating 90 percent improper installation points to the industry's continuing failure to provide a proper and clear set of instructions. Many advocates argue that a focus on improving education as well as strengthening legislation is the key to reducing child restraint injuries.

The root of parental confusion is that there are more than 100 models of child restraints and hundreds of adult seat-belt and child safety restraint combinations. Each seat is installed and operated differently.

The original federal regulations for child restraints were enacted to comply with simple two-piece, adjust-it-yourself straps and buckles. But since then, adult belt designs have radically changed. Many adult seat belts and child restraints simply do not fit together, so instruction on installation is worthless. Solutions such as the built-in child restraints offered by Ford, General Motors (GM), and Chrysler can help solve the problem of improper installation.

Through manufacturer miscommunication and mispromotion,(21) parents continue to put rear-facing restraints in front passenger seats with air bags. At least 12 children have died in rear-facing infant restraints due to air bag deployment.(22) A possible reason for this misuse of restraints is that parents driving alone feel they need to closely supervise the child.

But educating parents on the correct use of child restraints has reduced the number of motor vehicle fatalities involving infants by as much as 70 percent and toddlers by as much as 50 percent.(23) However, continuing widespread parental confusion despite increased education has led many safety advocates to believe that a possible solution is a uniform federal standard for child restraints.

Current legislation has made some headway toward clarifying the confusion. Addressing the number-one concern of the Blue Ribbon Panel NHTSA commissioned in 1995--the incompatibility of restraints with vehicle seats--the Department of Transportation has proposed that all new cars, light trucks, and vans be required to have uniform attachment points in standard locations that would match the attachment points on child restraints. TWo concepts are competing for this universal attachment system, ISOFIX (ISO stands for International Standards Organization) and UCRA (uniform child restraint anchorage).

The ISOFIX concept is a 4-point rigid system. Four sturdy braces mounted on the bottom of a child restraint attach to a metal bar in the seat frame via latches. This concept is supported by Volvo and other European car manufacturers.

Motivated by economics, U.S. car and child restraint manufacturers, however, oppose ISOFIX. Led by GM, these manufacturers have created an alternative known as UCRA. This system consists of two lower anchorages near the bight line (the meeting point of the seat back and cushion) and an upper tether anchorage.

Although there is agreement that a universal attachment system is necessary, no consensus has been reached as to which type should prevail. Even if one system is adopted, the proposal might take as long as two years to go into effect and will only apply to new vehicles.(24)

Both manufacturers and legislatures agree that the top tether is key in preventing injuries. Both Canada and Australia have recognized its importance in preventing head and chest movement, especially in low-velocity crashes. Since 1989, the CANFIX system has required tethers on all child seats sold in Canada and tether anchorages in all cars sold in Canada. The country has also had a more stringent requirement for head excursion and chest acceleration criteria.(25)

Australia's CAUSFIX system has similar requirements. Thus, it is not surprising that the injury rate for children in child restraints is significantly lower in Canada and Australia than in the United States.(26)

In addition to the universal attachment system, new legislation in the United States will allow car dealers and mechanics to disable one or both air bags after giving car owners safety information and having them sign a release, and applying new, larger warning labels.(27)

Innovations

State-of-the-art technology, especially in the area of air bags, has the potential to reduce child restraint injuries further. Although many parents know that passenger air bags and rear-facing child restraints do not mix, some continue to place their children up front Air bags, designed to protect an adult in a crash, deploy at a rate of 200 miles an hour. Federal and auto officials suspected as early as 1969 that air bags could injure or kill small children. In 1984, NHTSA officials looked into concerns that children four and under might be vulnerable to injuries from air bags.(28)

The child restraint manufacturers have known of this hazard since at least the early 1990s. Children in restraints have received fatal head injuries due to the force of air bag deployment.(29) Now, technology has been developed to allow a child restraint in the front passenger seat without fear of harm from the air bag. The rear seat however, is still the safest place for children.(30)

NHTSA has considered implementing several types of "smart" air bags to detect, whether by a weight or proximity sensor, when a child is present and de-activate the air bag automatically. This technology has been available for more than three years, but for many of the auto manufacturers, cost not technology, is the issue.(31)

While NHTSA works on new regulations, several major car manufacturers, including Mercedes-Benz, BMW, and Porsche, are now developing their own "intelligent" air bag systems. Cutoff switches, so far permitted only in vehicles with no back seat, are another way to deactivate the air bag. Their use might be expanded to all cars as long as larger warning labels are placed in the vehicles. Ford has developed a key-initiated shut-off system in which a red light comes on to let parents know when the air bag is disengaged.

Also, new retractors on car seat belts allow conversion from ELR (emergency locking retractors that lock up only after impact begins) to ALR (automatic locking retractors that are locked as soon as the seat belt is buckled and thus before impact begins). These are more compatible with child restraints and reduce the movement of restraints in accidents.

Litigation 

It should come as no surprise to a trial lawyer that child restraint cases are complex, expensive, and time-consuming. Attorneys must use a methodical approach in exhausting possible avenues of litigation and sources of compensation. It is essential to conduct a complete and extensive crash investigation and accident reconstruction, determine the type and extent of defects, and identify all possible defendants, including component part manufacturers.

The preliminary investigation should include interviewing the parents, eyewitnesses, paramedics, and emergency room personnel. Witnesses can testify as to the speed and position of the cars, the exact location of the child restraint in the car, the position of the restraint before impact, and any lateral movement of the restraint.

Statements from paramedics are often crucial because they may have removed the child from the vehicle. They have firsthand knowledge about whether the child was removed with the restraint or whether the child was ejected from it. Further, they can determine where the child's body struck the interior of the car as well as establish the extent of the child's suffering.

Determining the type and extent of injury is important to uncovering the defect in the restraint. Experts can be crucial in determining causation and damages. It is important to have the child restraint examined by an expert as soon after the accident as possible. This includes researching the history of the restraint involved in the accident to determine whether a retailer might be responsible for reselling a product without proper warnings or injury-preventing accessories. A new exemplar model should be obtained to determine, with the help of human factors and warnings engineers, whether ample warnings were supplied to the purchaser.

The attorney should make every effort to retain all vehicles involved in the accident or at least that of the victim. This preserves it for later use by an accident reconstruction expert to determine the point of the child's impact with the interior. Also, the vehicle can be used as evidence in a videotaped deposition.

Photographs can help an accident reconstructionist determine the forces in, and the nature of, the collision. In addition, computer simulations can, with proper data, re-create the dynamic forces that affected the vehicle and restraint Inspection of the vehicle must be painstakingly thorough, including examination of the windshield; dashboard; and seat back for evidence of blood, saliva, and tissues.

Reconstruction experts can also defuse a defense argument that the collision was not survivable regardless of whether the child was properly restrained. In addition, an engineer specializing in structure and design of child restraints can aid in high-lighting possible defects.

Biomechanical experts can demonstrate that defects in the restraint caused the child's injuries. Using an analysis of the kinematics of both the child and the restraint during the collision, along with the medical information, a biomechanical expert can testify as to whether the child would have been able to survive the accident. Other experts might include neurologists and experts on damages.

In evaluating the case, the attorney needs to identify all potentially responsible parties. Depending on the jurisdiction and facts, potential defendants can include the manufacturers of the restraint and vehicle, the seller of the restraint and the negligent third-party driver. The manufacturer of the buckle or belt may also be a defendant in the lawsuit.

As stated earlier, child restraint manufacturers have been held liable for structural and buckle defects. Automobile manufacturers can be held liable because of ineffective labeling and warnings and loose or defective seat belts. Cases involving automakers, however, are fundamentally about defects in the seat belts and not about the child restraint Some cases, however, involve both. In one case involving allegedly defective built-in child restraints, Chrysler is the manufacturer of both the restraint and vehicle.(32)

Recent changes in some state laws have started to protect third-party drivers and sellers of car seats from liability.(33) Many states have altered their strict liability statutes to protect retail sellers unless they personally inspected the merchandise. In many states, therefore, a retail seller is not a viable source of recovery. In addition, some states are eliminating or revising joint and several liability.

Defenses

In addition to being aware of recent developments in tort law to successfully prove causation and damages, an attorney must face the onslaught of defense arguments, including contributory negligence, product misuse, and federal pre-emption.

Contributory fault and product misuse are strong arguments for the defense. Besides recent changes in state laws protecting retail sellers from liability, changes in state laws have affected plaintiff recovery when the defense can prove contributory negligence. Rather than adhering to straight comparative fault, some states have eliminated recovery altogether for anyone found more than 50 percent at fault.

Using the NHTSA statistic that 90 percent of child restraints are improperly used, defense attorneys argue the product misuse defense. Further, these attorneys are all too willing to prove the issue of contributory negligence if another passenger in the car with the child was not properly restrained. Unrestrained occupants can exert a large amount of force in a collision, and the defense may be able to argue that the child was injured not because the restraint was defective but because the child was struck by an unrestrained passenger.

Three possible solutions exist for these arguments. First, strong witnesses should testify that the family religiously used the restraint and correctly followed instructions on its use, even on short trips. Attorneys should also emphasize the importance the family placed on others wearing seat belts.

Second, and more important, it is likely that a foreseeable misuse was so common that a reasonable manufacturer should have used an alternative design or warned the consumer sufficiently. Companies irresponsibly choose to cut comers to make the restraint cheaper to manufacture or easier to use rather than prevent foreseeable misuse.

The very statistic of 90 percent parental misuse that defense attorneys might use can be turned around to highlight that such a large number shows a systematic failure of manufacturer labeling, design, and instructions.

For example, many parents, in concern for the comfort of their child, add padding, such as a headrest or wrap the infant in a blanket before buckling the safety seat straps. These items may spread the shoulder straps apart, allowing the baby to be ejected in a crash. In many cases, this foreseeable misuse was not warned against by the manufacturer.

Further, despite the frequency of recalls, manufacturers often make little effort to reach current owners and users. Generally, only purchasers who completed and returned registration cards will be notified of a recall.

Third, the attorney should investigate whether the hospital where the child was born provided information about safety restraints, or whether it provided restraints on loan. Reused restraints that have been cleaned with harsh chemicals may have had the instructions removed, thus making the hospital potentially liable for failure to provide or ensure adequate warnings.

Another defense argument is federal preemption. Defense attorneys are likely to seek a summary judgment by raising preemption. The starting point in the analysis is the underlying statute: the National Traffic and Motor Vehicle Safety Act and, in particular, FMVSS 213. A careful look at congressional intent and recent decisions will show whether defective child restraint claims brought in state courts are pre-empted expressly, implicitly by occupying the field, or implicitly through conflict between state and federal regulation.

Clearly, the purpose of the act was to reduce the number of deaths and injuries on U.S. roads. Any common law that furthers this goal cannot be held inconsistent with congressional intent.

Further, FMVSS 213 is a performance standard, not a design standard. Therefore, child restraint cases involving design defects should not be preempted by the regulation. More important, the preemption argument has been rejected by at least three courts.(34)

Changes in legislation, state common law, and state-of-the-art technologies have made litigating these cases complex. The well-prepared attorney is rewarded by helping a family that has suffered a terrible tragedy.

The ultimate goal is avoidance of these losses in the first place. Perhaps President Clinton's plea for the safe transportation of children can be realized through a combination of strong, innovative legislation and zealous advocacy.

Notes

(1.) President Clinton, in a radio address at the White House just after swearing in Rodney E. Slater as the nation's 13th Secretary of Transportation on Feb. 14, 1997, announced a proposed rule mandating a uniform child safety seat attachment system. U.S. Dep't of Transportation (News Release), President Clinton Unveils Child Seat Attachment System to Make Installation Safer Easier, Feb. 15, 1997. Current laws include 49 C.F.R. [sections] 571.213 (1997), 49 C.F.R. [sections] 571.208 (1997), and Federal Motor Vehicle Safety Standards, 62 Fed. Reg. 7858 (1997) (to be codified at 49 C.F.R. [sections] 571).

(2.) U.S. Dep't of Transportation (News Release), Top Safety Agency Urges Parents to Develop Safe Motoring Habits During Child Passenger Safety Week, Feb. 11, 1997.

(3.) U.S. Dep't of Transportation (News Release), Secretary Slater Cautions Motorists to Drive Safely During Peak Travel Season, Aug. 21, 1997.

(4.) Sandy Jones, The Latest on Safety Seats and AirBags, MOTHERING, Sept. 22, 1997, at 36.

(5.) NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., BUCKLE UP KIDS: CHILD PASSENGER TRAUMA PREVENTION, INSTRUCTOR'S MANUAL 42 (1994 & Update 1996); see also id.

(6.) NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., supra note 5, at 39-40.

(7.) Jones, supra note 4.

(8.) EvenFlo Recalls About 1.4 Million Seats That Do Not Comply with Safety Standard, Prod. Liab. Daily (BNA), at 1 (July 28, 1997).

(9.) Britax Recalls Freeway Child Seats to Correct Possible Noncompliance, Prod. Liab. Daily (BNA), at 1 (June 26, 1997).

(10.) Wirkkala v. Century Prods., No. 91-M7-P-SP (Ala., Mobile County Cir. Ct. 1992); see also Arthur Boda & Joseph W. Moch, Litigating Defective Child Safety Seat Cases in New York, N.Y. ST. B.J., Dec. 1994, at 20, 26.

(11.) Laura Meade Kirk, Top Tether Keeps Toddler Car Seat from Pitching Forward on Impact, PROVIDENCE J.-BULL., Oct. 22, 1997, at 2H.

(12.) GENERAL MOTORS CORP., AN EVALUATION OF THE USABILITY OF TWO TYPES OF UNIVERSAL CHILD RESTRAINT SEAT ATTACHMENT SYSTEMS (1996); see also Federal Motor Vehicle Safety Standards, 62 Fed. Reg. 7858, 7859 n. 1 (1997).

(13.) 62 Fed. Reg. 7858, 7859 (1997).

(14.) 49 C.F.R. [sections] 571.213 S5.4.1(c) (1997).

(15.) 49 C.F.R. [sections] 588.2 (1997).

(16.) Joseph W. Moch & Shawn D. Wiersma, Seat Suits: Techniques for Pursuing a Child Restraint Case, PROD. LIAB. L. & STRATEGY, May 1996, at 1; see also Thelin, Child Car Restraints, EXPERTS-AT-LAW, May-June 1990, at 23.

(17.) 49 C.F.R. [sections] 571.213 (1997).

(18.) Donald H. Slavik, Motor Vehicle Restraints for Young and Old, TRIAL, May 1997, at 60.

(19.) Carla L. Harcourt, Child Restraint Litigation, TRIAL, Apr. 1995, at 32, 33.

(20.) J.C. BASTINAASE & J. MALTHA, CHILD RESTRAINTS LEGISLATION IN EUROPE (Nr. 83651, Research Institute for Road Vehicles TNO, Delft, Neth. 1983).

(21.) Until at least October 1996, one major manufacturer sold rear-facing infant restraints in cartons showing the product being used in the front passenger seat and only changed the design after being sued for the air-bag deployment death of a child restrained in the same manner as depicted on the package. Jordan v. Kolcraft Enters., No. 97-0036 CA 04 (Fla., Dade County Cir. Ct. filed Jan. 6, 1997).

(22.) Daniel McGinn & Daniel Pederson, A Life or Death Choice? NEWSWEEK, Oct. 20, 1997, at 41.

(23.) U.S. Dep't of Transportation, supra note 1.

(24.) Federal Motor Vehicle Safety Standards, 62 Fed. Reg. 7858, 7858-7897 (1997).

(25.) Id. at 7861.

(26.) Australia Fed. Office of Road Safety, Airbag Information 2-3 (1997) http://www.dot.gov.au/programs/fors/airbags/airbag.htm.

(27.) Federal Motor Vehicle Safety Standards, 62 Fed. Reg. 960 (1997).

(28.) U.S. knew of air-bag dangers, records say, MIAMI HERALD, Nov. 22, 1996, at 4A.

(29.) 49 C.F.R. [sections] 571.208 54.5 (1997).

(30.) 49 C.F.R. [sections] 571.213 S5.6.1.1 (1997); see also National Highway Traffic Safety Admin., Questions and Answers Regarding Air Bags 3 (1997) http:// www.nhtsa.dot.gov/people/injury/airbags/airbagga. html; National Safety Council, Air Bag Safety Campaign (last updated Dec. 17, 1997) http://www.nsc. org/airbag.htm.

(31.) NHTSA Warned to Depower Air Bags 18 Months Ago, BRIEF NOTES, Jan. 1997, at 1.

(32.) Weaver v. Chrysler Corp., 172 F.R.D. 96 (S.D.N.Y. 1997).

(33.) Moch & Wiersma, supra note 16.

(34.) Amrhein v. Quaker Oats Co., 752 F. Supp. 894 (E.D. Mo. 1990); Welsh v. Century Prods., Inc., 745 F. Supp. 313, 316 (D. Md. 1990); Wohl v. Spalding & EvenFlo Cos., 901 P.2d 929 (Or. Ct. App. 1995), review denied, 909 P.2d 162 (Or. 1996).

John Elliott Leighton is a partner with Leesfield, Leighton, Rubio & Mahfood in Miami and Key West, Florida. He thanks Sagi Kfir for his help in preparing this article.