Mayhem on wheels: millions of people drive all-terrain vehicles for recreation and utility purposes, but accidents are common and safeguards are lacking. Here's how to traverse the legal terrain.

This summer, several hundred people are likely to be killed and tens of thousands injured and maimed in all-terrain vehicle (ATV) accidents. Worse, up to a third of the victims will be children under 16 years old. (1)

According to U.S. Consumer Product Safety Commission (CPSC) reports, this summer's toll is predictable, as ATV casualty counts have skyrocketed since 1998, when a 10-year-old consent decree between the CPSC and leading ATV manufacturers expired. Indeed, the commission estimates that annual ATV deaths have nearly doubled since then, to more than 700 in 2004. Injuries requiring emergency room treatment have doubled as well, to more than 136,000 per year. (2)

ATVs were first marketed in the 1970s as motorized, tricycle-like, off-road recreational and light-utility machines. Casualties began to add up in the 1980s, and in 1988, the CPSC consent decree banned the sale of three-wheel ATVs and imposed voluntary standards on the industry for marketing, safety training, warnings, and advertising.

In the 1990s, four-wheel ATVs became more popular, and more than 7 million are now reportedly in use. Annual ATV sales exceed 800,000 units, funding a multibillion-dollar industry. (3)

According to the CPSC, the growth in ATV popularity did not trigger a statistically significant increase in casualties until 1998, when the consent decree expired. Since then, statistically significant casualty count increases have been tabulated each year, and the CPSC reports that the increased casualties cannot be solely explained by the increase in ATV use.

Several factors probably account for the apparent correlation between the consent decree's expiration and the spikes in ATV injuries and deaths. First, the ATV industry put its advertising pedals to the floor beginning in 1998. According to data published by the Consumer Federation of America (CFA), ATV advertising expenditures went up at least 6.5 times from 1996 to 2001. (4) The ad campaigns hyped performance, speed, and competition, factors that probably appeal to younger, less careful ATV users.

Second, the horsepower, speed, and acceleration capabilities of four-wheel ATVs also increased dramatically in the late 1990s, with many new aggressive racing machines debuting after the consent decree expired. Many new manufacturers--who were not bound by the consent decree in the first place--entered this expanding market.

Finally, perhaps most important, even the consent decree did not deal with the fundamental design questions relating to the four-wheel ATVs' stability, handling, and control. Instead, the consent decree and the industry's voluntary standards focused mainly on rider behavior and encouraged training and warnings as defenses against children riding ATVs and other behavior that caused casualties.

Thus, while it is accurate to say that the ATV manufacturers complied with the consent decree, it is also valid to conclude that a greater danger lurked within the machines' design. Such design problems were exposed by the post-consent decree boom in casualties, fueled by the explosive growth in high-powered, high-speed ATVs entering the market without corresponding design enhancements for safety or restrictions on their sales for use by children or less-experienced riders.

Perceiving an epidemic of danger to children, in October 2002, the CFA joined the American Academy of Pediatrics and other organizations to file a petition asking the CPSC to ban all ATVs that are sold for use by children under 16. (5) Late last year, partly in response to that petition, the CPSC commissioners unanimously voted to investigate the ATV safety crisis and consider regulatory action. (6)

Although the number of casualties continues to grow, and despite this new regulatory activity, few lawsuits have been filed over ATV accidents. This discrepancy may be due to the perception that the 1988 consent decree effectively solved the ATV problem and that four-wheel ATVs are presumably safe, thus defying products liability scrutiny. But this is not so.

The industry defines a four-wheel ATV as "any motorized off-highway vehicle 50 inches (1,270 mm) or less in overall width, with an unladen dry weight of 600 pounds (275 kg) or less, designed to travel on four low-pressure tires, having a seat designed to be straddled by the operator and handlebars for steering control, intended for use by a single operator and no passenger." (7) ATVs fit into four categories:

* general-use models, intended for general recreational and utility use

* sports models, intended for recreational use by experienced operators

* utility models, intended for farm and other work-related use

* youth models, intended for recreational off-road use by children under 16, with adult supervision. (8)

The industry's benign ATV definitions belie the dangers posed by these vehicles. In fact, most ATVs are dangerously unstable at any speed and on any terrain. They can flip over without warning, injuring even the most experienced rider. Despite tobacco-like warnings found in owner's manuals and posted on all new ATVs, (9) these dangers strike suddenly and violently, without giving the victim a chance to consider warnings or avoid injury.

The stability problem is compounded by the fact that the industry has built bigger, faster, more powerful ATVs since 1998 to attract thrill-seeking customers. Some of these machines provide no rider restraint or protection and can exceed 70 mph and accelerate to 45 mph in 6.5 seconds or less.

They have aggressive names, such as "Raptor," "Predator," "Cannibal," and "Warrior," and they are marketed for speed and racing competition--in theory, only for highly experienced riders. Yet these ATVs are offered to the general public, with safety training and buyer screening for suitability left to the discretion of dealerships. With few exceptions, states neither regulate nor require rider licensing or safety-training as a condition of ATV use. (10)

Within this chaotic, booming, unregulated market of a product capable of causing much mayhem, products liability theories are plentiful.

Defective design

Most ATVs are inherently unstable, although feasible alternatives exist. Design-defect stability cases involve one of four scenarios: rearward pitch-over (usually accompanied by sudden acceleration or deceleration, such as when the rider tries to go up a hill or puts on a rear brake when descending a hill backward); forward pitch-over (an end-over-end flip); loss of control followed by a sideways rollover (often when turning sharply); or some combination of a rollover and pitch-over crash.

In assessing such cases, it is important to remember that the stability of ATVs, like that of SUVs, is ruled by the laws of physics. Yet there are no regulatory requirements for ATV stability. The industry's voluntary standards recommend only a minimal, easy-to-meet static measurement--with the ATV standing still and no driver in it--of pitch stability (the ability to resist flipping end over end, forward or rearward), and no standard at all for roll stability (the ability to withstand a sideways rollover). (11)

As is the case with SUVs, however, engineers have found that static stability calculations based on the vehicle's length, width, and center of gravity are easy to measure, and they are excellent predictors of pitch and roll stability. (12) Yet, the industry refuses to use such measures as a basis for improving safety. Instead, its lawyers and hired experts argue that the importance of rider skill in shifting weight to control the ATV, coupled with the ATV's sensitivity to rider weight shifts, prohibitively complicates such mathematical design work. (13)

Three recent cases have shown that merely increasing the track width (distance between the wheels from left to right), lengthening the wheelbase (distance between the wheels from front to rear), and lowering the center of gravity are enough to prevent an ATV from flipping over.

Case 1: Rearward flip-over. On Father's Day, 54-year-old Michael received a brand-new, state-of-the-art ATV helmet as a gift from his son. Over the past year, Michael had stored his son's 350cc sport ATV on his small rural farm and ridden it a few times to haul livestock feed and for other similar chores. Michael liked the ATV's utility, but he never considered using it for its intended purpose: high-energy sports activities.

Celebrating the new helmet, however, Michael and his son decided to take turns climbing a small, 28-degree hill leading to the front yard of the family home. The hill was about 50 feet long, and the son climbed it easily. When it was Michael's turn, he petered out about 10 feet from the crest of the hill and began slowly riding the ATV backward down the hill.

It is unclear whether Michael applied a rear brake or whether the ATV hit a rock or bump, but the ATV suddenly flipped backward and crushed him to death.

In the litigation that followed, engineers for the plaintiff determined that simply lengthening the wheelbase by roughly six inches would have prevented the machine from flipping over backward. (14) The engineers modified an exemplar ATV to show that the stability could be improved with virtually no increase in cost and no loss of speed or utility. These findings are typical in rearward flip-overs.

Case 2: Forward flip-over. On a clear, unseasonably warm winter day, 36-year-old Steve was returning from his outpost in the woods where he served as a hunting guide for wild-game enthusiasts. He was operating a 400cc four-wheel-drive utility ATV and had loaded the rear cargo rack with a box containing a hunting dog. The load was within the manufacturer's recommended weight limits.

While Steve was traveling at a low speed, one of the straps securing the cargo came loose and wrapped around the unguarded rear axle, which locked up all four wheels. The ATV suddenly and violently pitched forward, pinning Steve and fracturing his neck, leaving him quadriplegic.

In assessing the accident, engineers determined that placing a guard over the rear axle would have prevented the strap from getting caught, avoiding the crash. (15) They also found that the front wheels' sudden locking in unison with the rear wheels was a design defect that easily could have been mitigated by a front-to-rear differential-type device. This device would have allowed the front wheels to keep rolling and the driver to control the ATV's direction (a very desirable characteristic when going downhill) after the rear wheels locked up.

As in Michael's case, merely lengthening the wheelbase a few inches would have prevented the ATV from flipping over. Again, the design changes recommended by the engineers were easy to conceive and cheap to implement, and did not impair the ATV's utility.

Case 3: Sideways rollover. Dennis was a 48-year-old postal worker, a dedicated family man who was highly respected in his community. One Christmas, his wife and daughter gave in to his request for one of the new 500cc racing sport ATVs. Dennis was an experienced motorcycle rider who adapted well to the ATV.

On New Year's Day, however, Dennis got into a drag race at an approved ATV park. Suddenly, without warning, Dennis's vehicle veered to the right at about 40 mph. It flipped over sideways, and Dennis was thrown out of his seat. He suffered severe brain damage despite wearing a helmet and all the recommended safety gear.

Engineers discovered that Dennis's ATV had a manufacturing defect: The right front brake-caliper mounting bolts were loose, allowing just enough wobble for the brake pads to have interfered with the brake disc. (16) While the brake interference caused the sudden loss of control, the ATV's lack of stability proved catastrophic. The engineers determined that widening the track of the ATV just a few inches would have prevented it from rolling over when it hit the limit of its control. As with SUVs, widening the track gives the operator a chance to "slide out" of a sideways loss of control, while a narrower track dooms the ATV to flip over.

In each case, the ATV rider was sober, mature, and wearing proper safety gear--and operated the ATV within its intended scope. While Michael was inexperienced, the other two drivers were seasoned ATV riders. In each case, relatively simple design changes would have added adequate margins of safety to prevent the accidents.

Defective parts

ATVs typically cost less than $8,000, so parts and assemblies are often undersized, untested, and under-engineered. But their failure can be catastrophic. All too often, the failure of a defective component part will cause or contribute to what otherwise looks like a typical ATV loss-of-control accident.

Sometimes the failure of defective parts is not obvious. In Dennis's case, for example, the loose, defective brake-caliper mounting bolts were not discovered until a few weeks after the crash, upon close forensic examination.

There is ample evidence of component part failures that cause loss of control and crashes and are due to manufacturing defects. The CPSC Web site publishes dozens of ATV recalls involving defective parts--with their consequential risk to the unwary user of loss of control and injury or death. (17)

Among the more infamous component part failures are stuck throttles, inadequate welds on critical control parts, steering components that separate due to flimsy fasteners, and loose screws in transmission components that allow sudden rear-wheel lock-up and loss of control. (18)

When evaluating an ATV loss-of-control crash, it is important to carefully inspect the vehicle and understand the crash sequence. Sometimes, a telltale broken part explains the rider's sudden loss of control, but defects like stuck throttles, bad brakes, and malfunctioning drive-train components are often concealed, and their failure may not be evident on first inspection. Take care to avoid unnecessary disassembly of the offending part, to minimize the risk of a spoliation claim.

ATV manufacturers do a fairly good job of reporting manufacturing defects under CPSC rules, but they do little to follow up on recall notification to ATV owners. If the offending ATV was recalled for a manufacturing defect that may have played a role in the crash, discovery of the manufacturer's recall notice and of compliance history may be fruitful.

Failure to warn or guard against hazard

Because ATVs are fraught with danger, warnings are inadequate to prevent injuries. Don't overlook the possibility of making a claim for the manufacturer's failure to warn or guard against a foreseeable hazard.

The warnings in ATV literature are often confusing, and sometimes overwhelming in their number and complexity. This information does little to prepare riders for the sudden loss of control that marks most ATV accidents that cause injury.

If your client behaved contrary to a warning, take a close look at its language and your client's ability to read and understand it--and then to timely perceive danger and perform the recommended countermeasure. In Michael's case, for example, the owner's manual cautioned against backing down a hill. But the manufacturer's warnings expert conceded that in emergencies like Michael's, ATV riders often cannot recall and act on information that is buried in an owner's manual loaded with many cautionary instructions. (19)

Engineers are trained to assess whether identifiable hazards can reasonably be guarded against. ATV hazards are plentiful and guards minimal. Most manufacturers have exercised common sense when it comes to guarding moving parts of the drive train from rider contact, but many fall short when it comes to thoughtful risk-avoidance and guarding analysis.

In Steve's case, for example, the ATV manufacturer guarded the axles of some four-wheel-drive ATVs from interference by foreign objects, but--inexplicably--it failed to guard the axles of the make and model Steve was riding. This failure clearly was a cause of the devastating accident.

Since the cost of guarding axles and other moving parts against foreseeable interference or misuse is negligible compared with the benefit of avoiding the hazard, this theory may serve well as a basis for manufacturer liability.

Dealer negligence

In many ATV cases, a potential defendant is the dealer whose negligence may have contributed to the injury. Dealers often fail to provide required safety information, screen buyers for suitability, and correctly recall or repair a defective ATV.

The brunt of the responsibility for communicating safety messages and warnings to consumers falls on ATV dealers, but few are interested in the buyer's ATV-driving experience or qualifications. In one news expose, for example, 9 out of 10 dealers willingly offered to sell high-powered adult-only ATVs to actors who said they were purchasing the vehicle for a 14-year-old child to use. (20)

In your case, check whether the dealer has met the standard of care in communicating safety information about the vehicle.

Dealers are the conduit through which mandated recall and other safety repairs and service are performed. If the ATV crash in question involves a failed component part or an inexplicable loss of control, scrutiny of dealer service records, including communications with the manufacturer, may illuminate the real problem.

In Dennis's case, for example, the dealer received notice by fax of the brake-caliper manufacturing defect in his machine the Friday before Christmas, near closing time. Although the dealer insisted that it had made the repair before Dennis picked up his ATV a day or so later, the evidence clearly showed otherwise. The dealer's failure to perform the recall repair was, therefore, a direct cause of the mechanical failure that caused Dennis to lose control and suffer catastrophic injury.

Case management

As with automotive products liability cases, it is important to get possession of the crashed vehicle and to document conditions at the accident scene as soon as possible. Even more so than in auto cases, ATV accidents often are poorly documented at the scene. This is mainly because ATV accidents typically happen off-road, in locations where conventional accident investigation and reconstruction procedures may not work well. The sooner reconstruction can be documented by a trained expert, the better.

Although eyewitness accounts of ATV accidents are notoriously unreliable, they, too, should be documented early in the case-evaluation process. Emergency personnel probably will have underreported witness observations, and frequently no witness statements are available at all.

Once you have documented the facts of the accident and understand its dynamics as much as possible, carefully research the model involved for evidence of any mechanical defects that may have caused or contributed to the crash. Case histories on file with the CPSC contain many reports of manufacturing defects in critical control parts and systems.

Once litigation begins, prepare for a long haul. Typically, the ATV manufacturers band together and say their products comply with all relevant--though voluntary--safety standards. They always blame the driver for some type of mistake or bad behavior, ff possible, they will seize upon language, however remote, in the owner's manual or point-of-sale safety literature to point out rider misconduct or poor parental guidance as a factor.

However, you should have no trouble finding hundreds of other similar incidents from the manufacturer's warranty and injury claim files. With hundreds of thousands of casualties each year, no manufacturer can credibly claim it has not heard of the type of crash that occurred in your case. These other similar incidents can be a mother lode of support when it comes to persuading the court or jury to look critically at the ATV.

Until the CPSC and state governments require licensing, training, and rider age restrictions--as well as design standards for ATV stability, control systems, and hazard guards--the trial lawyer's quest for justice on behalf of injured riders will be an important way to advance ATV safety.

Notes

(1.) U.S. CONS. PROD. SAFETY COMM'N, 2004 ANNUAL REPORT OF ALL-TERRAIN VEHICLE (ATV) DEATHS AND INJURIES (Sept. 28, 2005), available at www.cpsc.gov/LIBRARY/ FOIA/FOIA05/brief/atv2004.pdf (last visited June 22, 2006).

(2.) Id.

(3.) CONS. FED. OF AM. ET AL., ATV SAFETY CRISIS: AMERICA'S CHILDREN AT RISK 8 (2002), available at www.consumerfed.org/pdfs/ Final_ATVReport Links.pdf (last visited June 22, 2006).

(4.) Id. at 9.

(5.) Petition Requesting Ban of All-Terrain Vehicles for Use by Children Under 16 Years Old, 67 Fed. Reg. 64353 (Oct. 18, 2002). See also CONS. FED. OF AM. ET AL., supra note 3, at 19. The Consumer Federation of America Web site provides helpful facts about ATV casualties, at www.consumerfed.org/pdfs/ATV-Safety-Facts. pdf (last visited June 22, 2006). The American Academy of Pediatrics (www.aap.org) and the American College of Emergency Physicians (www.acep.org) have subscription-based sites, but they also provide good information.

(6.) All Terrain Vehicles; Advance Notice of Proposed Rulemaking; Request for Comments and Information, 70 Fed. Reg. 60031 (Oct. 14, 2005), available at www.cpsc.gov/BUSINFO/ frnotices/fr06/atvl.pdf (last visited June 23, 2006). This notice contains a concise history of ATV regulatory effort, epidemiology, and ATV manufacturing and sales data. At press time, the Consumer Product Safety Commission was considering implementing new guidelines. (71 Fed. Reg. 32,307 (Cons. Prod. Safety Comm'n June 5, 2006) .)

(7.) ANSI/SVIA 1-2001, The American National Standard for Four Wheel All-Terrain Vehicles: Equipment, Configuration, and Performance Requirements (2001).

(8.) Id.

(9.) Like tobacco products, every ATV is papered with bold, colorful exclamations of danger associated with use. Stickers and manuals contain statements warning against use by children, carrying passengers, use without training or safety gear, and more. The words "death" and "injury" appear so often in almost every case the manufacturer can argue that the operator assumed the risk of such dangers.

(10.) SPEC. VEH. INS'T. OF AM., STATE ALL-TERRAIN VEHICLE REQUIREMENTS (2005), available at www.atvsafety.org/InfoSheets/ATV_ Chart_2005-May.pdf (lastvisited June 23, 2006). The SVIA is the ATV industry trade association that provides information about ATVs to the public.

(11.) ANSI/SVIA 1-2001, supra note 7.

(12.) Robert R. Wright et al., Stability and Maneuverability Problems of ATVs, SOC'Y AUTO. ENG'RS PAPER NO. 911944 (1991); Robert R. Wright et al., A Safer ATV, SOC'Y AUTO. ENG'RS PAPER NO. 911945 (1991).

(13.) Id.

(14.) This case has been settled under a confidentiality agreement. Plaintiffs' names have been changed in these examples.

(15.) Litigation is ongoing in this case.

(16.) This case has been settled under a confidentiality agreement.

(17.) U.S. CONS. PROD. SAFETY COMM'N, ATV SAFETY RECALLS, available at www.cpsc. gov/cgi-bin/recalldb/prod.asp (click on "All Terrain Vehicles"; recalls are sorted by date) (last visited June 23, 2006).

(18.) Id.

(19.) See Marc Green, Human Error vs. Design Error, TRIAL, June 2006, at 60.

(20.) Good Morning America: Rough Ride: Adult-Sized ATVs Pose Dangers to Children (ABC News broadcast, Nov. 8, 2002), cited in CONS. FED. OF AM., ATV SAFETY CRISIS: AMERICA'S CHILDREN STILL AT RISK (2003), available at www.consumerfed.org/pdfs/atv-safety-crisis2003-final-all.pdf (last visited June 23, 2006).

LARRY SETCHELL practices law with Helsell Fetterman in Seattle.