Motor vehicle restraints for young and old.

Children and elderly passengers are frequently at risk when they travel, even if a vehicle is equipped with air bags or seat belts. Until now, designers have generally developed safety systems that best protect full-statured adults.

A great deal of negative publicity surrounding the dangers of air bags to children, small adults, and the elderly has called into question the effectiveness of the devices. It has also possibly tarnished the image of the trial lawyers and safety experts who led the fight to improve passenger vehicle safety systems.

This article examines the history of child restraints and the problems associated with protecting nonstandard occupants of various ages, shapes, and sizes.

Protecting children in passenger vehicles has been a subject of research and debate for almost three decades. The earliest child seats were simple chairs that hooked over the back of a vehicle's front seat. They were flimsy and provided little or no protection in a crash.

Early research demonstrated that these devices should be strong enough to withstand the forces generated by a child's body during a crash. The devices also need to be adequately secured to prevent them from becoming loose missiles in a crash. These findings led to the development of the first true child safety seats--the General Motors LW Seat and the Ford Tot-Guard. These seats, which were secured using an automobile's lap belt, were tested using child-size dummies to prevent ejection in crashes with a barrier impact equivalent of 30 miles per hour (mph).

The success of the LW Seat and the Tot-Guard spurred the federal government to adopt Federal Motor Vehicle Safety Standard (FMVSS) 213 for child restraint devices, which set minimum performance requirements for child safety seats. (49 C.F.R. 571.213 (1995).) A 30 mph sled test was used to determine the movement of the child dummy in a simulated crash.

Data from these tests have only limited application today, primarily because of the primitive nature of the child dummies that were used. In addition, the child safety seat was evaluated in a bench seat from what would now be considered a very large car. The dummy's head was allowed to move forward 32 inches, a calculation based on measurements of the distance between a car's front and rear seats. The assumption was that at that distance, the dummy's head would not contact the seat in front of it. The downsizing of modem cars, especially with regard to rear seat areas, has made these performance criteria unrealistic. Today, all that FMVSS 213 does is keep the very worst seats off the market.

Even so, many child seats are recalled each year for failing to comply with the standard. Until recently, there was no method of registering seat ownership, so there was little chance that manufacturers could recall seats by notifying individual purchasers. Recent amendments to the standard require that a registry be kept, but compliance depends on the buyer filling out and mailing in the response card included with each new seat.

Other upgrades to the standard permit the use of integrated child seats, which are built into the vehicle seat. Chrysler, Ford, General Motors (GM), and Volvo offer these seats in vehicles marketed for families. Of all the restraint options available for small children, integrated seats are probably the best systems to use. They avoid the most common problem found in the use of aftermarket seats: improper installation. Many aftermarket seats are difficult to install, and any slack in the belt system seriously degrades their performance.

FMVSS 213 also does not consider the effect of loose belts and uses an unrealistically tight belt to hold the seat in place. Integrated seats avoid this problem. These seats are also free of another problem associated with aftermarket seats: low seat bottom stiffness.

Many aftermarket vehicle seats are relatively soft. On impact, the front of the child seat depresses the seat cushion, which allows the child seat to tip forward. Some countries, such as Australia and Canada, have recognized this problem and require that upper tethers be installed to hold the top of the child seat firmly in place. In the United States, there is concern that reliance on tethers will only result in more misuse due to the difficulty in installing and using them.

Recent amendments to the standards will require a universal anchorage system in future cars. The standards will also require new child car seat attachments, which will significantly reduce incorrect installation (62 Fed. Reg. 7858-7897 (1997).)

Incompatibility between rear-facing child safety seats and passenger-side air bags has been a concern for several years. It has been known since air bags were first developed that aggressive bags--which get their name because of their rapid deployment--were dangerous to anyone within the bag's deployment zone.

This zone is the space in the vehicle into which the air bag expands. It is dangerous to enter this area before the bag fully deploys because the surface of most bags expands rearward at speeds approaching 200 mph. Once fully inflated, it is safe to make contact with the bag and compress or collapse it.

Rear-facing child seats installed in front seats are incompatible with air bags. This is so because when the air bag deploys, it thrusts the child seat into the vehicle seat at very high speed, resulting in serious injury to the child.

Technological solutions exist to make child seats safe in the front passenger location when an air bag is present. One is a key-operated switch on the dash that disables the air bag. The switch requires operator intervention, however, which leads to other human factors problems. The switch can be forgotten or inadvertently left on or off. The switch is permitted only in vehicles with no rear seats, such as sports cars and standard pickup trucks. Other solutions include weight sensors (Bavarian Motor Works) and passive detectors (Mercedes-Benz).

Most manufacturers rely on instructions and warnings to educate consumers about air bags. Manufacturers provide instructions in the owners' manual to put rear-facing child seats in the rear, and they provide warnings on the visor as a supplement. Of course, this procedure fails to take into account that if only one parent is in the car, he or she will often ignore the warning and place the child in the front seat in order to keep an eye on the child.

Restraining older occupants

The federal standard for occupant protection in frontal impacts is FMVSS 208. (49 C.F.R. [sections]571.208 (1993).) It sets minimum performance requirements consisting of head injury criterion, chest deceleration, and femur loads.

These are measured by conducting crash tests using two "50th percentile," or average-size, crash dummies. One dummy is seated behind the wheel while the other dummy is placed in the passenger-side front seat. There is no requirement to dynamically test with anything other than average-size occupants.

The minimum performance levels thus set are based on injury tolerances for young adult males. No consideration is given for children or the elderly. As our population ages, it is increasingly important to determine injury tolerances for relatively fragile older drivers and passengers.

To date, however, there has been no systematic study of changes in injury tolerance for the elderly. Some research has been conducted on accident frequency, however It is widely accepted that reaction time, eyesight, and physical driving skills deteriorate, particularly after age 70.

Elderly occupants are particularly susceptible to chest injuries when they are wearing safety belts. The belt loads tend to place a disproportionate amount of pressure on the ribs and clavicle. Air bags assist in reducing these loads and may be important in providing additional protection to elderly people. However, the geometry of the air bags must be correct to prevent improper loading of the head and neck, which can lead to hyperextension injuries.

Intelligent restraint systems

The real answer to the nonstandard occupant air bag problem is an "intelligent restraint." This is a restraint system consisting of air bags, seat belts, and "friendly interior" surfaces that tailors the protection to the characteristics of the crash and the particular occupant.

For example, if a child is sitting in the front passenger seat, an intelligent restraint system may not deploy the air bag in certain types of crashes, such as low-speed impacts after sustained braking. If the occupant is elderly, the system may not trigger the pretensioner, which pulls the seat belt back into the retractor and locks it, taking all the slack out of the system and preventing it from loosening on impact. If the crash is high impact, the system may deploy the air bag faster than it would in a milder crash.

These intelligent restraint systems are an integration of a number of technologies and rely on the latest in sensor and computer systems development to handle the particularities of each collision. The systems have been discussed for several years, and much development work has already been done. The most comprehensive set of research papers on the subject was presented at the Association for the Advancement of Automotive Medicine's annual meeting in October 1995. Representatives of various air bag system suppliers discussed their work.

Much work is being done in this area by the various sensor and bag manufacturers. We should see the implementation of intelligent restraints on a widespread basis in the near future. But some systems have been feasible for a couple of years. For example, engineers from GM announced in November 1993 that they had developed a reliable passive sensor to detect child seats. However, for reasons known only to GM, the sensor has not yet been made standard equipment in GM cars.

The National Highway Traffic Safety Administration (NHTSA) is encouraging the use of intelligent systems by requiring any vehicle that lacks these sensors to have large warning stickers placed on the dashboard starting with 1998 models. NHTSA apparently hopes that the sheer ugliness of the stickers will push the manufacturers to implement a design solution.

Once children are big enough to sit facing forward, the best place for them to sit--whether they are in a child seat or a three-point belt--is in the rear seat, away from the air bags. The manufacturers want us to believe that they have been warning the public about air bag problems for years and fought the standards requiring installation of air bags because of these concerns. To put it politely, the manufacturers are trying to rewrite history.

They did have a concern about unrestrained children standing on the floor in front of the seats and up against the air bags when the devices deployed. The manufacturers performed simulator tests by suspending small animals--often pigs--directly in front of the air bag module on the dash to simulate a child standing on the floor. The automakers then fought the air bag requirements using this data. They cited concerns about this rare occupant position, but their real concern--and their motivation--was cost.

Recent accident investigations by both NHTSA and the National Transportation Safety Board (NTSB) have shown that some small children--usually unrestrained--have been killed by air bags in low-speed accidents. Typically the driver is uninjured in the crash, but the child is killed by the deploying air bag.

Sometimes this is due to pre-impact braking. The unrestrained child moves into the air bag's deployment zone, and when the bag inflates, it hits the child in the face and head. The child's head is pushed backward, and a fatal spinal cord injury often occurs. Clearly, air bags are designed to be used by an average-size adult.

More recently, at least one belted child was found to have been killed in a low-speed impact when the air bag deployed. Although details have not been released, it is likely that the child got into the bag's deployment zone before the bag had fully inflated. This can happen if the pre-impact braking is below the lockup threshold for the belt retractor or if the passenger seat has slid too far forward on its track.

In response to concerns regarding children and air bags, NHTSA recently amended FMVSS 208 to allow depowering of air bags until the beginning of model year 2002. This was done to reduce child deaths while permitting manufacturers to phase in intelligent restraints. (62 Fed. Reg. 1296012975 (1997).)

Avenues of liability

Several avenues of liability exist when a child is injured by an air bag in a low-speed collision. The first involves a duty to warn. Manufacturers should have provided adequate warnings.

These warnings would have indicated the existence of the hazard, the need to have children in the rear seat wearing a three-point belt, and the dire consequences of having a child traveling in a front seat in the event a collision occurs and the air bag deploys.

The accident data used by manufacturers in defense of other cases have shown that the rear seat is a safer location for any passenger than a front seat. Knowing this, manufacturers have a duty to instruct parents that children should be in the rear seat, wearing full upper and lower torso protection.

Another liability issue involves belt system design. Many cars with air bags lack state-of-the-art belt systems. The belt should keep the occupant out of the air bag's deployment zone and should have, at minimum, a device that limits "belt spool out," or belt slack, after the retractor locks up on impact. These devices are called "webgrabbers" because they grab the belt and prevent it from spooling out, or loosening, on impact. Other devices, called pretensioners, which were discussed earlier, pull the belt back into the retractor, removing slack from the system and locking the belt in place.

A third area of liability concerns the design of the occupant seat. Many seats are designed to allow passengers to get relatively close to the dash--and the deploying air bag. As already discussed, seat travel should be limited to prevent entry into the air bag's deployment zone.

Seat travel restrictions will vary by vehicle because of differences in instrument panel design, bag size, vehicle structure, and belt characteristics. However, a foreseeable set of conditions can be evaluated, and the seat can be prevented from placing the occupant in this danger zone.

A fourth area of liability deals with the design of the air bag system itself. Air bags are as different in their design as seat belts. Methods of detecting an impact differ, as do thresholds of firing. Fabric-folding geometry and bag volume also vary. Careful examination of the facts and circumstances of a collision and subsequent injury may reveal deficiencies in a particular air bag system, but the performance of one bag in a car line cannot be generalized over all bags in all car lines.

Most of the accidents in which air bags have been a contributing cause of a child's death occur at relatively low speeds--usually less than 15 mph. FMVSS 208 does not require an air bag to provide protection until the impact is equivalent to a crash of 30 mph into a fixed barrier.

Lap-shoulder belts provide excellent protection for passengers at lower speeds, and air bags do not provide supplemental protection until speeds approach 30 mph. For added protection, sensors should be set so that the bags do not deploy in collisions until speeds reach 20 mph or more. Sensors in the field should be recalled and replaced to prevent the deployment of air bags where they provide no supplemental protection and, in fact, increase the risk to children and the elderly.

Some manufacturers have placed weight sensors in their vehicles to prevent the bag from going off if a child seat is present. These sensors should also be set to prevent bag deployment unless an occupant of a safe size is present. One automaker has suggested 66 pounds as a trigger threshold.

Air bags are required to provide a minimum level of protection to unbelted 50th percentile adult males in 30 mph frontal and near frontal impacts. Automobile manufacturers have maintained that the requirement mandates a "very aggressive" air bag, which is why deployment velocities approach 200 mph.

In the early 1970s, however, air bags were developed to meet the same standards but with much lower deployment speeds. General Motors made and sold approximately 10,000 vehicles during model years 1974, 1975, and 1976 with these much "friendlier" bags in both driver and right front passenger positions.

Other things that can be done to reduce the aggressivity of the bags include using certain folding patterns, tethering the inside of the bag, and using two-stage inflators. These technologies have been around for many years.

Based on the technical work that has been known for years, there is a set of parameters for a state-of-the-art restraint system that minimizes hazards to non-50th percentile occupants (such as children and the elderly) while providing the best protection. For rear-seat occupants, this means a three-point lap-shoulder belt system for adults and for children who are larger than toddlers for every designated seating position, including the center position. The belt buckles should be low, and preferably integrated into the seat bottom cushion, slightly forward of the seat back.

To accommodate aftermarket child restraint seats, retractors should allow conversion from ELR (emergency locking retractors that lock up only after impact begins) to ALR (automatic locking retractors that are locked before an impact begins), which are more compatible with these seats. ALRs reduce movement of the child seat during an accident. In new vehicles targeted for use by families with young children, integrated child seats should be provided as standard equipment.

For front seats, occupants should be provided air bag systems that do not deploy unless there is frontal impact at speeds of at least 20 mph. There should also be a sensor in the passenger seats that prevents deployment if the occupant weighs less than 66 pounds.

As discussed above, the belts should have pretensioners or web grabbers and adjustable upper anchorages for the shoulder portion to allow occupants of various sizes to use them comfortably. Seat travel should be limited so that passengers cannot sit too close to the bag. Warnings should caution that rear seats with three-point belts are a safer location for children under most circumstances.

Trial strategies

Prosecuting a bad case makes for bad law as well as bad business. It costs hundreds of thousands of dollars to take a restraint system case to trial. Attorneys should be very selective when accepting these cases and investigate each one thoroughly before agreeing to put it into suit. Several conditions should be met before handling a restraint system case.

First, the case should involve occupants who are restrained by belts. Air bags are supplemental restraint systems. They provide additional protection to belted occupants. Although the federal standard contemplates an unbelted occupant, many jurors have little sympathy for unbelted occupants involved in frontal impacts.

Attorneys should also avoid arguing that an air bag should not have been provided. This is an incorrect and simplified assessment of liability. Although the air bag may have deployed and caused an injury, the correction is not to have eliminated the bag. It is to change the parameters that determine how and when it deploys. Various design conditions have been noted above.

Attorneys should also be cautious of the legal doctrine of federal preemption. This doctrine--to the extent it has been recognized in the plaintiff's jurisdiction--may preclude certain aspects of, if not all, claims in a restraint system case. The basic form of the doctrine says that the National Traffic and Motor Vehicle Safety Act of 1966, 49 U.S.C. [sections]30101, and regulations issued under it preclude a claim that a vehicle restraint system is defective because it lacks an air bag. In its most restrictive form, preemption forbids any claim based on a restraint system defect.

The preemption doctrine is being misused by defendant manufacturers in a wide variety of cases. It grew out of "bad fact" cases and also occurred because some lawyers failed to understand the importance of the defense. By accumulating a stack of favorable decisions, many manufacturers try to use the doctrine as precedent. Attorneys should avoid falling for this defense tactic and get help from the experts.

Trial Lawyers for Public Justice (TLPJ) is a Washington, D.C.-based consumer rights organization that has litigated the preemption issue. TLPJ has assisted with briefs and argument in many of the key cases that have resulted in decisions finding no preemption. If there is a major legal battle on the issue, TLPJ can help.

The most important step attorneys can take when handling any motor vehicle occupant restraint system case is to contact the Attorneys Information Exchange Group in Birmingham, Alabama,.at (205) S034000. This is the ATLA-endorsed litigation group for attorneys handling crashworthiness and vehicle defect cases. It is an excellent resource for briefs, technical materials, and prior case testimony.