Improving safety with head injury protection.

Under new regulations, all new cars soon will be equipped with upper interior head protection. But millions of motorists still risk injury and death in vehicles without this technology.

Head injury protection for motor vehicle occupants consists primarily of foam or other energy-absorbing material under the trim of the vehicle's interior. A few vehicles provide this protection through a side air bag, which is stored inside the car's doors, or through an inflatable side curtain, which runs along the side rail above the doors. Both types of protection are designed to shield occupants from injuries caused when their heads strike the upper interior of a vehicle.

Unfortunately, most vehicles on the road today do not provide this type of protection. Regulations adopted in 1995 set new federal performance standards for upper interior head injury protection, but these will not be effective for all vehicles until September 2002.

The new standards subject many more upper interior impact zones to regulation. In addition, the new rules, unlike the existing ones, are performance standards mandating how much energy must be absorbed to provide minimal head protection. Thus, the new standards are a long overdue safety advance. However, it remains to be seen whether the new standards will prove to be adequate.

Since 1967, the Department of Transportation's National Highway Traffic Safety Administration (NHTSA) has set minimum standards for auto performance known as the Federal Motor Vehicle Safety Standards (FMVSS). These have often fallen short of providing occupants with reasonable crash protection. The agency has delayed mandating minimum standards for upper interior head injury protection, even though head impacts with the upper interior components of vehicles remain the leading cause of head injury for nonejected occupants killed in crashes.(1)

NHTSA estimates that 2,430 people are killed each year when an occupant's head strikes the upper interior structure of a vehicle. These impacts result in nearly 60,000 occupant injuries every year, 4,070 of which are serious--rated 3 or higher on the abbreviated injury scale (AIS).(2) The AIS is used to rank the severity of injuries from minimal (AIS 1) to fatal (AIS 6).

FMVSS 201, the standard pertaining to head impacts for passenger cars, took effect on January 1, 1968, and specified performance requirements for the instrument panel, seat backs, sun visors, and armrests only.(3) It took NHTSA another 27 years--until August 18, 1995--to adopt performance standards that require head protection for the upper interior components of all passenger cars, multipurpose vehicles, trucks, and buses with a gross vehicle weight of 10,000 pounds or less (light vehicles).(4) However, these standards may be phased in over several years. They will be fully effective for cars manufactured after September 1, 2002.(5)

A few manufacturers have already adopted protective measures. For example, the Volvo S80, in addition to a standard side air bag providing protection for the torso of the driver, has a standard inflatable side curtain designed to protect the heads of the driver and rear passenger in a severe side-impact or rollover crash. On July 23, 1999, in a NHTSA side-impact crash test, the Volvo S80 became the first vehicle to get the highest rating--five stars--for both the driver and rear passenger. A five-star rating means little chance of serious injury.

Nevertheless, millions of vehicles will continue to be sold until the new head protection standards become fully effective in September 2002. In the meantime, the vast majority of the nation's automotive fleet will continue to lack meaningful head injury protection. This has implications for litigation whenever crash injuries include serious head injuries.

Under the new performance criteria for the upper interior components of all light passenger vehicles, an occupant's head must be protected when it strikes pillars, side rails, headers, or the roof during a crash, including rollovers.(6) Manufacturers are required to conduct dynamic impact tests that simulate an occupant's head hitting certain "impact zones" on a vehicle's upper interior.(7) [See illustration.] The test requires a head form to hit a target location at 15 mph and not exceed a head injury criteria (HIC) score of 1,000. (HIC is NHTSA's ranking of the severity of head injuries based on acceleration readings obtained from a dummy's head. A number of federal standards impose an HIC limit of 1,000.(8))

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NHTSA estimates that the increased costs associated with the new requirements will be only $33 per passenger car and $51 per light truck. The agency estimates that annually the new standard will prevent 873 to 1,192 fatalities and will reduce in severity 675 to 975 AIS-2 to AIS-5 head injuries. NHTSA concludes that 244 to 334 fatalities and 189 to 273 AIS-2 to AIS-5 injuries will be avoided every year in rollovers.(9)

The main safety standard that addresses roof deformation, or roof crush, is FMVSS 216, which was adopted in 1971. The new head protection standard makes no reference to roof crush. But head protection and roof crush can be related issues. In some cases, the lack of adequate head protection may combine with significant roof crush to cause the plaintiff's injuries. If there is extensive roof crush and the injuries are to the head or brain, the plaintiff's defect theory might include both the absence of adequate head impact protection and inadequate roof strength. If the roof crush is not significant, the case is probably best presented on the theory of inadequate head impact protection only.(10)

NHTSA delays

On September 25, 1970, nearly three years after promulgating the initial head impact standard, NHTSA proposed to require padding as a force-distributing material on door pillars, roof interiors, and front headers.(11) This proposal specified that

* each roof interior be covered with at least 1/4 inch of padding,

* the contactable surface of each A- and B-pillar be covered with at least 1/2 inch of padding, and

* each front header be covered with at least 1/2 inch of padding.

However, NHTSA failed to enact this proposal and terminated it in 1979.(12)

In the mid-1980s, the agency noted that a significant number of injuries and fatalities resulted from head impacts with upper interior vehicle components. It began a research program to support upgrading FMVSS 201 to provide occupant protection in these impacts.(13) On August 19, 1988, NHTSA published an advanced notice of proposed rulemaking that included improved head impact protection.(14)

In support of new performance criteria, the agency noted that almost half of all fatalities in passenger car side impacts occur as a result of head injuries, and many occur due to head impacts with interior components such as the pillars and side rails.(15) NHTSA described three techniques to reduce the severity of many head injuries and in some cases prevent them:

* padding the A-, B-, and C-pillars; roof rail components; and window frames with hard rubber and high-density foam;

* eliminating sharp edges and thin-edge design features; and

* reducing stiffness of the areas where head impacts are most likely to occur.(16)

However, it took an act of Congress, the NHTSA Authorization Act of 1991,(17) to force the agency to address several vehicle safety subjects, including improved head impact protection in passenger cars.(18) This legislation eventually led to the 1995 amendments to FMVSS 201.

Industry inaction 

The automotive industry has a history of resisting federally mandated interior head protection, even though manufacturers have long been aware of the danger and have known how to prevent or reduce the risk.

For example, in the mid- to late 1960s, both General Motors Corp. and Ford Motor Co. developed a metal air gap design intended to reduce the risk of head injury. The design incorporated an air gap in certain interior components to provide additional crush space and energy absorption. In fact, GM used this design in the roof support pillars of a number of its vehicles.(19)

In 1972, GM's final report on its Experimental Safety Vehicle stated that the inner and outer panels of the roof were separated by a 2 1/2-inch air gap. It explained that the design could limit deceleration forces on occupants by as much as 15 gs.(20)

In the mid-1970s, Chrysler foresaw the need for upper interior head protection.(21) In 1974, Chrysler's director of automotive safety, Roy Haeusler, wrote, "We will ... need to cushion those interior surfaces most likely to be hit by the head of the belt-wearing occupant, including particularly the A-, B-, C-pillars; the roof rails; and the headers."(22) A 1977 Chrysler internal memo titled "Projections and Recommendations Relative to 1990 Product" states, "There will be interior energy-absorption criteria for roof rails, side panels, and upper A-pillar and headers."(23)

In the mid-1970s and 1980s, General Motors continued research into energy-absorbing padding of the A-pillars and other upper interior components and developed technological and economically feasible designs.(24) Yet none of these designs found its way into production vehicles.(25) In the late 1980s and early 1990s, research into energy-absorbing padding of upper interior components showed that padding could reduce the risk of head injury.(26)

In 1993, following notice of the proposed amendment to FMVSS 201, various parts manufacturer proposed designs for energy-absorbing upper interior components. These designs used foam, deformable honeycomb, tubing, material trim, and sheet-metal absorbers.(27)

Another design alternative to minimize the risk of head injury from contact with interior components, as demonstrated by the Volvo S80, is a dynamic head protection system.(28) This is essentially an air bag installed in the side rail or A-pillar. In addition to protecting against head injury, these devices mitigate ejection from the vehicle, protect against intrusion of objects into the passenger compartment, and protect against impacts with windows.(29) FMVSS 201, as amended, permits but does not require the installation of a dynamic head protection system.(30)

Currently, only a few 1999 and 2000 vehicles have upper interior head protection. Even fewer have air bag systems like the one in the Volvo S80. Thus, it remains to be seen whether the new performance standards will be adequate.(31)

Litigation

There are relatively few reported decisions in cases alleging a vehicle was defective for failure to have energy-absorbing upper interior padding. One is DePaepe v. General Motors Corp., in which the plaintiff alleged he was rendered a quadriplegic when his head hit a sun visor that did not have sufficient padding. Although a jury trial resulted in a favorable verdict for the plaintiff, subsequently the Seventh Circuit Court of Appeals reversed the jury's decision on other grounds.(32)

The car was a 1984 Buick Regal, and GM covered the visors with nylon backed by polyurethane foam. GM argued that this complied with the original version of FMVSS 201, which was in effect when the car was manufactured, and asked that the jury be so instructed.

The district court ruled that the standard as written was deficient because it merely required the use of "energy-absorbing material" without setting forth any performance standards. In the court's view, the regulation failed to answer the critical question: How much energy must the visor absorb? The court ruled the regulation invalid and declined GM's request for a jury instruction.

The Seventh Circuit disagreed, holding that the regulation was a valid, albeit minimal, design standard. General Motors had complied with the standard as a matter of law and was entitled to a jury instruction to that effect. A properly instructed jury could, nevertheless, conclude that the design was defective.

Performance standards that were lacking when DePaepe was decided have now been issued by NHTSA. Ironically, however, the new standards do not apply to sun visors --nor to instrument panels, seat backs, interior compartment doors, or armrests. With respect to these components, FMVSS 201 remains unchanged: It requires padding but does not indicate how much energy the padding must absorb.

Manufacturers have been given considerable leeway in implementing the new standards. For competitive reasons, many manufacturers have decided to showcase safety, and they can be expected to exceed the minimum standards. This might subject other automakers to criticism, notwithstanding their compliance with the standards. Although evidence of compliance is admissible, it is not conclusive, and a jury may nevertheless conclude that the design is defective.

The 1995 amendment to FMVSS 201 to require upper interior head protection is a major step forward in automotive safety, as illustrated by the Volvo S80's performance in NHTSA's side-impact crash test. Unfortunately, the benefits will not be fully realized for vehicles manufactured before September 1, 2002.

Many millions of new vehicles will continue to be sold without this important protection, needlessly exposing drivers and passengers to the risk of severe head trauma and brain injuries.

Notes

(1.) See Federal Motor Vehicle Safety Standards; Head Impact Protection, 60 Fed. Reg. 43,031, 43,032 (Aug. 18, 1995) (codified at 49 C.F.R. [subsections] 571,572, 589).

(2.) Id.

(3.) Initial Federal Motor Vehicle Safety Standards, 32 Fed. Reg. 2408, 2413 (Feb. 3, 1967) (codified at 49 C.F.R. [sections] 571); Federal Motor Vehicle Safety Standards; Head Impact Protection, 60 Fed. Reg. 43,031, 43,033.

(4.) Federal Motor Vehicle Safety Standards; Head Impact Protection, 60 Fed. Reg. 43,031, 43,032.

(5.) Id. at 43,047-43,049; see also HELEN A. RYCHLEWSKI & P. MICHAEL MILLER II, A GENERAL DISCUSSION ON INTERIOR DESIGN ALTERNATIVES IN RESPONSE TO FMVSS 201--UPPER INTERIOR HEAD PROTECTION (Soc'y of Automotive Engineers Paper No. 982348, Sept. 1998).

(6.) Federal Motor Vehicle Safety Standards; Head Impact Protection, 60 Fed. Reg. 43,031; see also WILLIAM A. PREININGER ET AL., A COMPARATIVE STUDY OF ENERGY ABSORBING FOAMS FOR HEAD IMPACT ENERGY MANAGEMENT (Soc'y of Automotive Engineers Paper No. 980972, Feb. 1998).

(7.) Federal Motor Vehicle Safety. Standards; Head Impact Protection, 60 Fed. Reg. 43,031, 43,032.

(8.) Id. at 43,033, 43,034.

(9.) Id. at 43,047.

(10.) In other cases, the inadequate design or performance of the vehicle's restraint system may also be part of the problem.

(11.) Occupant Protection in Interior Impact, 35 Fed. Reg. 14,936-14,940 (1970) (codified at 49 C.F.R. [sections] 571).

(12.) Federal Motor Vehicle Safety Standards; Head Impact Protection, 60 Fed. Reg. 43,031, 43,033; see also Five-Year Plan for Motor Vehicle Safety and Fuel Economy Rulemaking, Calendar Years 1980-1984, 44 Fed. Reg. 24,591 (Apr. 26, 1979) (codified at 49 C.F.R. ch. V).

(13.) Federal Motor Vehicle Safety Standards; Side Impact Protection--Passenger Cars, 53 Fed. Reg. 31,712, 31,716 (Aug. 19, 1988) (codified at 49 C.F.R. [sections] 571); see also Federal Motor Vehicle Safety Standards; Head Impact Protection, 58 Fed. Reg. 7506, 7507 (Feb. 8,1993) (codified at49 C.F.R. [subsections] 571,572).

(14.) Federal Motor Vehicle Safety Standards; Side Impact Protection--Passenger Cars, 53 Fed. Reg. 31,712, 31,716.

(15.) Id.

(16.) Id.

(17.) Pub. L. No. 102-240, 105 Stat. 2081 (1991).

(18.) Federal Motor Vehicle Safety Standards; Head Impact Protection, 58 Fed. Reg. 7506, 7608.

(19.) See Donald Friedman & Keith D. Friedman, Light Truck and Van (LTV) Rollover Safety, 1993 Soc'y of Automotive Engineers International Truck and Bus Meeting and Exposition (Nov. 1993), at 5; see also Submission of Don Friedman to Docket 92-28, Notice 2, Upper Interior Head Protection, FMVSS 201 (Apr. 1993); Thomas Flanagan, General Motors Internal Report, Passenger Compartment Energy Absorption for Automotive Vehicles, Fisher Body Central Engineers Activities (Feb. 1, 1967).

(20.) GENERAL MOTORS EXPERIMENTAL SAFETY VEHICLE FINAL REPORT (DOT/HS/800659, June 30, 1972). Ford Motor Co., in its Experimental Safety Vehicle program, also incorporated "shock-absorbing foam material" in the center body pillar and roof rail trim. See FORD EXPERIMENTAL SAFETY VEHICLE FINAL REPORT 64 (DOT/OS/ 20005, Apr. 1973) (prepared for Nat'l Highway Traffic Safety Admin.). Also, Chrysler, in its Research Safety Vehicle, "deemed it necessary that energy-absorbing trim be applied to the A- and B-pillars and roof rails for improved occupant head protection in impacts." See 1 CALSPAN/CHRYSLER RSV, PHASE III, FINAL DESIGN REPORT 91 (DOT HS-7-01551, Dec. 1979).

(21.) See PREININGER ET AL., supra note 6; RYCHLEWSKI & MILLER, supra note 5.

(22.) Roy Haeusler, Presentation, Automotive Safety Improvements Needed in Future Vehicles (Jan. 18, 1974).

(23.) Chrysler Intercompany Correspondence, L.L. Baker, Manager, Automotive Safety, to E.D. Hines, Chief Engineer, Auto Safety and Security (Feb. 22, 1977).

(24.) See Donald Friedman, Final and Summary Comments, FMVSS 201 Head Impact Protection, Docket No. 92-28, Notice 3 (Nov. 30, 1993).

(25.) See Friedman & Friedman, supra note 19, at 5.

(26.) See DONALD FRIEDMAN, NAT'L RESEARCH COUNCIL, NAT'L ACADEMY OF SCIENCES, POTENTIAL IMPROVEMENTS IN OCCUPANT PACKAGING TO OFFSET VEHICLE WEIGHT REDUCTION (July 1991); Donald Friedman & Keith D. Friedman, Roof Collapse and the Risk of Severe Head and Neck Injury, 13th Experimental Safety Vehicle Conference, No. 914;6-0-11 (Nov. 4, 1991); Donald Friedman & Keith D. Friedman, An Alternative Analysis of Rollover Head and Neck Injury Data, 19th International Workshop on Human Subjects and Human Subjects in Biomedical Research (Nov. 1991); Friedman & Friedman, supra note 19.

(27.) See PREININGER ET AL., supra note 6; RYCHLEWSKI & MILLER, supra note 5.

(28.) See Occupant Crash Protection; Occupant Protection in Interior Impact & Head Impact Protection, 62 Fed. Reg. 45,172, 45,202 (Aug. 26, 1997) (codified at 49 C.F.R. [sections] 571).

(29.) See id. at 45,203.

(30.) See Federal Motor Vehicle Safety Standards; Head Impact Protection, 63 Fed. Reg. 41,451 (Aug. 4, 1998) (codified at 49 C.F.R. [sections] 571).

(31.) A list of 1999 models with these and other safety features is available on NHTSA's Web site at www.nhtsa.dot.gov/cars/testing/NCAP/SafeFeat/!pg2. htm (visited Oct. 13, 1999).

(32.) DePaepe v. General Motors Corp., 141 F.3d 715 (7th Cir.), cert. denied, 119 S. Ct. 617 (1998).

James J. Murphy practices with Murphy, Gillick, Wicht & Prachthauser in Milwaukee, Wisconsin. The author wishes to thank Thadd J. Llaurado and M. Josef Zimmermann, attorneys at his firm, for their assistance in preparing this article.