Protecting the smallest victims.

Public attention is focused on alleged misuse of child safety seats. Plaintiff attorneys should help put the blame where it belongs--on the makers whose design and manufacture render these restraints defective.

The statistics are staggering: According to the National Transportation Safety Board, between 1990 and 1999, nearly 17,000 children under age 10 were killed in motor vehicle crashes, and millions of other children were injured.(1) Many of these injuries and deaths could have been prevented. Studies show that most of these children could have walked away without serious injury if they had been restrained in good-quality child safety seats that had been properly installed.(2)

These statistics have generated a great deal of attention in both the private and public sectors. Dedicated child-passenger safety advocates sponsor "fit checks" for child seats and maintain extensive Web sites to educate parents and caregivers about the importance and proper use of child safety and booster seats.(3) In the public sector, states and localities are trying to strengthen laws regulating the use of child restraints.(4)

These efforts, while laudable, unfortunately focus attention on the wrong issue--alleged misuse of child seats.

For example, in a press release intended to publicize National Child Passenger Safety Week, U.S. Transportation Secretary Norman Mineta said that "studies have indicated that 96 percent of caregivers were confident that they always install and use child safety seats correctly. However, data from actual safety seat inspections show that at least four out of five children are incorrectly buckled."(5)

But parents and caregivers are not the real problem. The focus should be on the child restraints themselves. Many are defectively designed and shoddily manufactured. In addition, testing is woefully inadequate, and many child restraints come with poorly written warnings and instructions that are difficult to understand.

Manufacturers--not parents and caregivers--must be held accountable for unnecessarily exposing children to the risk of serious injury or even death--and plaintiff attorneys must continue to see that the smallest victims receive civil justice.(6)

There are five basic types of safety seats currently on the North American market. These seats are "certified" for various modes of use by children of varying weights. But manufacturers self-certify based only on alleged compliance with Federal Motor Vehicle Safety Standard (FMVSS) 213.(7) This is the only federal safety standard applicable to child safety seats, and its testing requirements are minimal.

Infant seats. These are rear-facing safety seats that historically have been designed for children up to a year old who weigh up to 20 pounds. Manufacturers have certified some newer seats for children up to 24 pounds.

Convertible seats. These are seats that "convert" from a rear-facing infant seat to a forward-facing toddler seat. Convertible seats were originally certified for rear-facing use by children up to 20 pounds and for forward-facing use by children between 20 and 40 pounds. Some newer convertible seats are certified to accommodate children weighing more than 40 pounds.

Booster-with-shield seats. Intended for use by toddlers and older children, these seats are marketed for children of 30 to 60 pounds. They are designed with a base on which the child sits and a shield that swings across the child's abdomen. The vehicle's seat belt is wrapped around the shield and thus restrains the seat and not the child.

Belt-positioning booster seats. Generally designed for children from 40 to 80 pounds, these safety seats raise children so that the vehicle's seat belt is positioned properly. Some newer belt-positioning boosters come with a five-point harness for use by children in the lower end of the 40- to-80-pound range.

Integrated seats. These seats are physically part of the vehicle's eat. Several vehicle manufacturers currently offer such seats as an option.

The vast majority of safety seat litigation involves infant seats, convertible seats, and booster-with-shield seats. But myriad common defects can appear in child seats of all types. Manufacturers know about many of these defects yet ignore them.

For example, Evenflo knew that the plastic shells on some of its ULTARA convertible child safety seats were too thin. Evenflo's design engineer modified the drawing for the ULTARA, reinforcing the plastic shell around the slots through which the shoulder harnesses were routed. Evenflo never implemented this change, and thousands of ULTARA seats lacking reinforced slots flooded the market.(8)

Many resources are available to acquaint plaintiff lawyers with these defects.(9) Here are examples of defects to consider when handling a child restraint case:

Manufacturing defects. The injection-molded plastic used in the shells of most child safety seats is often too soft to withstand the forces of reasonably foreseeable crashes. Likewise, the buckles, harnesses, and clips used in child safety seats are often poorly made and fail in crashes that they should survive.

Labels are often defectively manufactured as well, using inferior materials and adhesives that cause important warnings and instructions to fall off the seats quickly, rendering them useless.

Design defects. Examples of defective design in child safety seats are legion. For example, many seats, primarily infant seats and convertible seats, have hard plastic "wings" on either side of the child occupant's head. Often these wings are completely unpadded, and a child may sustain head injuries from contact with them in even a minor collision.

Some seats, especially infant seats, have "bib clips" intended to keep the shoulder harnesses close together so that the child is not ejected in a crash. These clips often fail. Similarly, the buckles and latching components used in many child safety seats often come unlatched when subjected to crash forces.

Another common design defect is incompatibility between a safety seat and a vehicle, so that the seat cannot be installed properly. When a seat is not compatible with the vehicle in which it is installed, the seat is unstable and can move significantly forward or from side to side.

Booster-with-shield seats are an egregious example of defective design. These seats were introduced in the 1980s, and since late in that decade virtually all child-safety advocates have recommended against their use.(10)

These seats do not provide proper pelvic support and usually fail to provide proper upper-torso restraint because the child is not restrained by a seat belt. Instead, the seat belt fastens around the plastic shield across the child's abdomen.

In most cases, the child cannot be tightly restrained by the shield. Thin children and those under 40 pounds are especially at risk of being ejected from these seats in a crash.

The Cosco Grand Explorer is the only booster-with-shield seat still on the market today. It has been sold primarily by four retailers: Toys 'R' Us, Wal-Mart, Kmart, and Target. Toys 'R' Us recently stopped selling these seats, and child-passenger safety advocates have urged the other retailers to follow suit. Moreover, all booster-with-shield seats in use should be recalled.(11)

Defective warnings and instructions. Proper use and installation of child safety seats are essential. Yet the warnings and instructions that accompany them are usually inadequate and sometimes clearly wrong. Studies show that 80 percent to 90 percent of all child safety seats are improperly installed, and that the cause is primarily poorly worded, inadequate, and confusing instructions.(12)

These defects all contribute to serious injuries, including those of the abdomen, head, neck, and spinal cord. Excessive head excursion (movement of the head forward or from side to side) is particularly harmful because it often allows children's heads to strike interior vehicular surfaces, causing severe head injuries. Some defects allow children to be ejected from the seat in a crash.(13)

Current issues in safety seat litigation

Child safety seat cases are vigorously defended by manufacturers. Attorneys handling these cases should consider the following claims and defenses currently at the forefront of safety seat litigation:

Punitive damages. Manufacturers exploit "safety," using the word frequently in their products' names and in their advertising and promotional materials. Ask any parents why they purchased a car seat for their child, and "safety" will probably be the answer. But manufacturers defeated a proposed change in nomenclature in a federal standard that would have included the term "safety," asserting that it would be misleading if applied to car seats. This alone can often provide sufficient foundation for a punitive damages claim.

In 1991, the National Highway Transportation Safety Administration (NHTSA) sought to change FMVSS 213, in part by replacing the phrase "child restraint system" with "child safety seat."(14) This proposal was well received by safety advocates, but many manufacturers attacked it vigorously.

For example, Evenflo, one of the world's largest safety seat manufacturers, "adamantly and vehemently" opposed the change.(15) Evenflo asserted that "devices manufactured to the parameters of FMVSS 213 are simply not 'child safety seats.'"(16) Remarkably, Evenflo argued that calling these devices "child safety seats" would "give them a name to which they are not entitled," and "greatly mislead consumers." It would be a "blatant misrepresentation" and "extremely foolish."(17) Evenflo said that "it is unfair to create the impression that such devices provide safety."(18)

This stance directly contradicts Evenflo's advertising and promotional materials, which trumpet "safety" to entice buyers.

Cosco, another large manufacturer of safety seats, also argued against the proposed nomenclature change, telling the government that calling these devices "child safety seats" would be "misleading."(19) The company told NHTSA that consumers' "expectations of a product are influenced by many variables, not the least of which is how the product is 'named.' Their perception of the protection provided by the product should not be greater than the product's capabilities."(20)

Like Evenflo, Cosco was opposing the proposed nomenclature change at the same time it was exploiting "safety" in its advertising and promotion. In fact, several of its seats contained "safe" or "safety" in their names.

FMVSS 213 still uses the phrase "child restraint system" rather than "child safety seat." But manufacturers, despite their adamant protestations that calling these devices "safety seats" would be misleading and foolish, still employ "safety" to sell their products.

Jurors are outraged as they watch safety seat manufacturers' representatives explain why these devices are "child restraints," not "safety seats." Counsel in these cases should obtain, through discovery or otherwise, all defendants' responses to the proposed nomenclature change in order to build a successful punitive damages claim.

Compliance with FMVSS 213. This standard requires child safety seats to meet certain minimum standards before they can be sold in the United States.(21) Many manufacturers boast in their advertising that their products "fully comply" with this standard, but the consumer is not told that the standard is antiquated. Even manufacturers using FMVSS 213 as a shield in child safety seat cases concede that the seats can fully comply yet still allow serious, perhaps fatal injuries to children whose caregivers use the seats properly.(22)

The test used to assess compliance with FMVSS 213 is a decades-old artificial laboratory procedure. It uses an early 1970s-vintage bench seat that is unlike seats manufactured more recently. Child safety seats are tightened to this bench seat with a winch--a piece of equipment that is, of course, unavailable to parents installing their child's safety seat. Moreover, the test is done using frontal impact only. Therefore, FMVSS 213 is irrelevant, and evidence of compliance with it should be inadmissible in cases that involve oblique, side, rear, or rollover crashes.(23)

Even if evidence of compliance is admitted, a plaintiff attorney can take the air out of this defense by explaining just how meaningless FMVSS 213 compliance really is. For example, until 1999 the standard allowed up to 32 inches of forward head excursion. Because vehicles have gotten smaller over the years, 32 inches of head excursion will result in a head strike for child safety seat occupants in virtually every vehicle on the road today.

Many other countries, including Canada, Australia, and many European nations, have far more rigorous standards for child safety seats.(24) The manufacturers who market child safety seats in the United States are aware of these standards; many market and sell child safety seats in these other countries.

Perhaps the most obvious example of this difference is the Cosco Grand Explorer, a booster-with-shield seat. Canadian law does not allow sale of these seats for children under 40 pounds. FMVSS 213, however, allows the sale of such seats for children who weigh as little as 30 pounds, despite agreement among virtually all child-safety advocates that they should not be used by children under 40 pounds.

There are several reported instances in the United States of children weighing less than 40 pounds who were properly restrained in booster-with-shield seats like the Grand Explorer (and its predecessor, the Explorer), yet were ejected from the seat in collisions unlikely to cause serious injury had the children been properly restrained in a convertible safety seat. Attorneys handling child seat cases should become familiar with foreign standards to illustrate manufacturers' culpability.

Blaming the parent. The standard defense in most safety seat cases is alleged misuse by parents or caregivers. In fact, some aggressive manufacturers have counterclaimed against parents for contribution.

Although parents and caregivers generally try to use safety seats correctly, many seats are used improperly. This is almost exclusively the industry's fault, and can be an excellent basis for a claim of failure to warn or instruct.

But counsel must be prepared to attack the "blame the parents" defense head-on. Two very effective tactics can be used.

First, alleged misuse can often be reclassified as a foreseeable alternative use. Some manufacturers run what they call "misuse tests" to assess the performance of safety seats under alleged misuse conditions. It is difficult for a manufacturer to claim that a particular use was unforeseeable misuse when it has run tests designed to assess the seat's performance in that very mode. This dovetails nicely with a warnings and/or instructions claim. Counsel should be careful, however, not to fall into the defense trap of calling a foreseeable alternative use "misuse."

Second, counsel should use state law regarding safety seats offensively. Most states have statutes addressing the use of child safety seats, and, under many, the alleged "fault" of a parent or caregiver is irrelevant. Counsel should thoroughly research this issue and move for early summary judgment on any "blame the parent" defense.(25)

Preemption. Years ago, child safety seat manufacturers routinely defended claims by alleging that they were preempted by FMVSS 213. Because manufacturers have historically settled child seat cases, there are few reported rulings on preemption in this area. It appears that there are only three reported preemption cases in the safety seat context, and in all three, preemption was denied.(26) However, since the U.S. Supreme Court's ruling in Geier v. American Honda Motor Co.,(27) the industry, desperate for a defense, may try to breathe life back into the corpse of preemption.

In Geier, the Court held that a state law tort claim alleging that a car was defectively designed because it lacked a driver's-side airbag was preempted by federal law because it conflicted with a Federal Motor Vehicle Safety Standard. The Court reasoned that allowing the plaintiff's claim would impede accomplishment of the safety standard's purpose of providing a gradually developing mix of alternative passive-restraint devices.

The legacy of Geier is still evolving, but the preemption issue has been thoroughly researched, and briefs are available from ATLA's Exchange and the Attorneys' Information Exchange Group (AIEG) to assist counsel facing a preemption motion in a safety seat case.(28)

Tether straps. NHTSA recently adopted a standard referred to as LATCH, an acronym for "Lower Anchors and Tethers for Children." Its most important feature is its emphasis on the use of tether straps--adjustable straps attached to the back of a child safety seat. The end of the strap has a hook that attaches to a tether anchor installed in the vehicle, holding the seat firmly in place. The absence of tether straps allows the seat to move forward and/or side to side in most collisions, allowing head excursion.

Child safety seat manufacturers have known of the benefits of tether straps for many years.(29) In fact, at the same time they were selling seats in the United States without tethers, manufacturers were selling the same seats with tethers in other countries that had tougher standards. Furthermore, many vehicles in the United States have been equipped with tether anchors for years. Yet millions of child safety seats have been placed on the U. S. market without tether straps.

Since September 1999, FMVSS 213 has required lower head excursion limits, increasing head protection for children. Phase I of LATCH requires that all cars, minivans, and light trucks manufactured after September 1, 2000, be equipped with top tether anchors in three rear-seating positions. Although LATCH does not specifically require that safety seats be equipped with tether straps, the only possible way that many seats can meet the lower head excursion limits is by using a tether.

Phase II of LATCH requires that all cars, minivans, and light trucks manufactured after September 1, 2002, be equipped with two lower anchorage points between the vehicle's seat cushion and seat back. A lower anchorage is a small rod or bar that allows the lower portion of a child safety seat to be firmly snapped into place. Phase II also requires that child seats manufactured after this date be equipped with two attachments so the seats can be affixed to these lower attachment points.

In many child safety seat cases, the key defect is the absence of a tether strap. Manufacturers have traditionally defended claims based on this defect by alleging that tethers are dangerous because, by lessening head excursion, they increase the likelihood of head injury.

Not only is this argument absurd, but NHTSA's adoption of LATCH, with its requirement of a top tether, virtually negates this defense. Today, attorneys handling claims based on the absence of a tether in a child safety seat can use LATCH to cross-examine any defense witness who claims tethers are dangerous.

Preventing injuries

Safety seat cases are emotionally draining. Attorneys handling them are dealing with heartrending facts involving a young child who was seriously injured or killed. Moreover, these cases are expensive. Counsel must be ready, willing, and able to invest hundreds of thousands of dollars to properly prepare a safety seat case.

History shows that product manufacturers will respond to verdicts against them by making their products safer. Counsel in child safety seat cases can not only obtain justice for their clients, but may also prevent injury to other children.

RELATED ARTICLE: "Try your motor vehicle case with documents available from the ATLA Exchange"

The documents listed below and many others on topics pertaining to motor vehicle litigation are available from the ATLA Exchange. Visit the Exchange Web site at exchange.atla.org, or contact the Exchange by phone at [phone] or by fax at [phone].

Child safety seats

Amrhein v. Quaker Oats Co. The plaintiff's motion to remand and supporting memoranda arguing that the federal motor vehicle safety law does not create an exclusive federal forum for child safety seat products liability actions. (No. PL274.)

Griffin v. Avenengo. The plaintiff's complaint in a case alleging that a seat was defective and unreasonably dangerous. (No. PL800.)

Maley v. Spalding & Evenflo Cos. The plaintiffs memoranda in support of a motion to dismiss and for partial summary judgment in a case involving a statute limiting defense use of evidence that a plaintiff failed to use a child restraint. The court held that the statute bars evidence of improper use for comparative negligence or contribution purposes. (No. PL690.)

Phillips v. Cosco, Inc. The plaintiff's complaint, interrogatories, and motion in limine to exclude defense exhibits and pleadings. (No. PL815.)

Driver fatigue

Bartula v. Bates Trucking, Inc. The plaintiff's amended petition, deposition transcripts, and exhibits in a case alleging violations of federal motor carrier safety regulations governing driver fatigue and hours and records of service. (No. LR3637.)

Excessive speed

Carson v. Burlington Northern Railroad. Motions and opinion in a case holding that state claims for excessive speed and failure to provide adequate crossing protection were preempted by federal law. However, the case also held that the plaintiff's claim for failure to provide audible warning signals could proceed. (No. LR1134.)

Compton v. Subaru of America, Inc. The parties' appellate briefs and an amicus curiae brief in support of the defendants in a case holding that the standards for admissibility of scientific testimony announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., are inapplicable to testimony based on an expert's experience or training. (No. PL644.)

Fabian v. A.J. Canfield Co. The plaintiffs' complaint and memorandum of law in support of a lost-wages claim, defendant driver's motion in limine to bar evidence of future lost earnings and benefits, and trial testimony transcripts of the plaintiffs' economist and behavioral neurologist in a case alleging excessive speed and failure to heed a changing light. (No. LR3657.)

Mittelstadt v. City of Chicago. The plaintiffs trial brief alleging that a police officer failed to terminate a high-speed chase. (No. LR1893.)

Schuetz v. Draksler. Complaint and depositions in a case alleging that a police officer who was responding to a call drove at an excessive speed through a residential area. (No. LR1788.)

Failure to yield right-of-way

Lynch v. Constand. Complaint and deposition in a case alleging failure to yield the right-of-way to a pedestrian. (No. LR3299.)

Schaefer v. Wehrle. Motion in limine in a case alleging the driver failed to yield the right of way. (No. LR2422.)

Stafford v. Valued Manufacturing Solutions, Inc. The plaintiff's complaint, interrogatories, witness and exhibit list, and request for production in a case alleging failure to yield to traffic. (No. LR3647.)

Taylor v. Smart. Petition, answers, and interrogatories in a case alleging a driver was negligent in failing to yield the right-of-way to a motorcycle, keep a proper lookout, and avoid collision. (No. LR2228.)

Rollovers

Mumm v. Scarbrough. Depositions of the plaintiffs' experts in a case alleging that a van lacked adequate stability and its window glass was too fragile. (No. PL664.)

Wood v. Toyota Motor Corp. The plaintiffs' complaint and request for production of documents, plus transcripts from depositions of car dealership employees, in a case alleging that an SIN had a dangerously high center of gravity and narrow track width. (No. PL840.)

L294 2MMA 

Notes

(1.) See www.ntsb.gov/Surface/highway/child seat.htm. This information appears to be derived from data collected in the Fatality Analysis Reporting System (FARS), a continuing census of fatal traffic crashes maintained by the U.S. Department of Transportation.

(2.) See, e.g., Michael A. Lumley, Child Restraint Tether Straps--A Simple Method of Increasing Safety for Children (Soc'y of Automotive Engineers Paper No. 973305, 1997); Phyllis F. Agran et al., Restraint Use Among Children in Fatal Crashes (Soc'y of Automotive Engineers Paper No. 973300, 1997); France Legault et al., The Effect of Top Tether Strap Configurations on Child Restraint Performance (Soc'y of Automotive Engineers Paper No. 973304, 1997).

(3.) See, e.g., www.cipsafe.org, www.childsafety.org, and www.safekids.org.

(4.) For example, both Missouri and Kansas require that all children under the age of four be restrained in child safety seats. See MO. REV. STAT. [sections]210.104 (2000) and KAN. STAT. ANN. [sections]8-1344 (2000). In these and many other states, child safety advocates are lobbying for requirements mandating booster seat use for children up to 80 pounds, regardless of age.

(5.) Press Release, U.S. Department of Transportation, U.S. Transportation Secretary Mineta Marks National Child Passenger Safety Week, Urges Parents to Buckle Up Children Correctly (Feb. 12, 2001) (available at www.dot.gov/affairs/nhtsa701.htm, last visited July 5, 2001).

(6.) For articles regarding the efforts of plaintiff attorneys in child safety seat cases, see Susan Lister, Kids in Cars, TRIAL, Mar. 1999, at 24; John Elliott Leighton, Are Children Caught in the Seat of Disaster? TRIAL, Mar. 1998, at 54; Donald H. Slavik, Motor Vehicle Restraints for Young and Old, TRIAL, May 1997, at 60; Carla L. Harcourt, Child Restraint Litigation, TRIAL, Apr. 1995, at 32.

(7.) See 49 C.F.R. [sections]571.213 (2001).

(8.) See, e.g., Griffin v. Spalding & Evenflo Cos., Inc., No. 5789-96 (N.Y. App. Div. filed Sept. 26, 1996), involving an Evenflo ULTARA seat. The case was settled in 1999.

(9.) For an in-depth overview of potential safety-seat defect issues, see R. Douglas Gentile, When to Tackle the Child Safety Seat Case (ATLA Annual Convention Paper, July 17, 2001), and Donald H. Slavik, Cervical Distraction Injuries to Children (Soc'y of Automotive Engineers Paper No. 973306, 1997).

(10.) See, e.g., Gary Whitman et al., Booster-with-Shield Child Restraint Case Studies (Soc'y of Automotive Engineers Paper No. 973307, 1997).

(11.) Id.

(12.) See Maley v. Spalding & Evenflo Cos., Inc., No. 96-1063 (W.D. Mo. filed Oct. 10, 1998), Plaintiff's Trial Exhibits 2B, 33, 99, 165, 177, 177A, 177B, 177C, 197, 198, 199, 200, 201, 202, 203, and 204. Copies of these trial exhibits and others referenced here can be obtained from the authors. The case was settled in 1999.

(13.) Slavik, supra note 6.

(14.) 56 Fed. Reg. 6603, 6606 (Feb. 19, 1991).

(15.) Griffin, No. 5789-96, Plaintiffs' Trial Exhibit 124A, at 5.

(16.) Id.

(17.) Id.

(18.) Id.

(19.) See Gore v. Cosco, No. 992-01-01484A (Mo., City of St. Louis Cir. Ct. filed May 25, 1999), Plaintiff's Trial Exhibit 81, at 1-2. The case was settled in 2001.

(20.) Id.

(21.) See 49 C.F.R. [sections]571.213.

(22.) The Attorneys' Information Exchange Group (AIEG) has an extensive library of relevant depositions and trial transcripts, including testimony of experts who typically testify for the safety seat industry. AIEG is an ATLA-endorsed litigation group for attorneys handling a variety of vehicle defect and transportation-related accident cases. Information about AIEG is available at [phone]. Further, the authors of this article have an extensive collection of expert witness testimony.

(23.) See, e.g., Brawn v. Fuji Heavy Ind. Ltd., 817 E Supp. 187, 190 (D. Me. 1993) (evidence of FMVSS testing on unrelated matters inadmissible); Compton v. Subaru of Am., 82 F.3d 1513, 1520-21 (10th Cir. 1996) (where FMVSS did not regulate defect at issue, statute addressing effect to be given to evidence of compliance with FMVSS was "inapplicable").

(24.) See Griffiths et al., Child Restraint System Development in Australia (Road Safety Bureau, Road and Traffic Authority of New South Wales, Australia, Paper No. 94 S10 015, 1994); Brown et al., Improving Child Occupant Protection--The Australian Perspective (on file with authors).

(25.) For example, MO. REV. STAT. [sections] 210.106 expressly forbids any assessment of fault against the caregiver in "any civil action" for "failure to use" a child safety seat. Based on this statute, one court recently granted partial summary judgment to the plaintiff on defendant Evenflo's "misuse" defense, holding that using evidence of alleged misuse to assert a comparative fault argument against the plaintiff ran contrary to the wording, intent, and spirit of the statute. Maley, No. 96-1063. See also Watkins v. Hartsock, 783 P.2d 1293 (Kan. 1989) and Thurel v. Varghese, 621 N.Y.S.2d 633 (App. Div. 1995).

(26.) Rogers v. Cosco, Inc., 737 N.E.2d 1158 (Ind. Ct. App. 2000); Wohl v. Spalding & Evenflo Cos., Inc., 901 P.2d 929 (Or. Ct. App. 1995); Welsh v. Century Prods., 745 F. Supp. 313 (D. Md. 1990).

(27.) 529 U.S. 861 (2000).

(28.) For information about AIEG, see note 22.

(29.) See, e.g., Lumley, supra note 2; Legault, supra note 2.

Randall L. Rhodes and R. Douglas Gentile are two of the founding members of Douthit, Frets, Rouse & Gentile in Kansas City, Missouri.