Silent killer on the highway.

When cars collide with 18-wheelers and underride the trailer bed, the results can be disastrous. Recovery is available.

One day, you are sitting in your office when a telephone call comes in from an old client. She is distraught. She tells you that her husband was killed in a collision on an interstate highway.

You listen carefully and discover that the husband was driving in rush-hour traffic and was approaching a congested point in the highway where all traffic had stopped. Due to the speed of his vehicle and wet pavement, he was unable to stop before striking the rear end of a tractor trailer. The trailer was in its lane and at a full stop, and its brake lights were working.

Your client tells you that her husband was killed immediately. His car slammed into the tractor trailer's rear guard and then slid underneath the trailer bed. The impact ripped off the car's roof, and your client's husband was almost decapitated. Your client is now left to raise three young children on her own.

Many experienced attorneys who hear these facts may come to the conclusion that there is no recovery available to this client and her family, basing their opinion on the fact that the tractor trailer driver appeared to have done nothing wrong. That conclusion may be inaccurate.

Pursuing recovery for injuries or death resulting from a vehicle rear-ending a tractor trailer and the trailer bed intruding into the vehicle's passenger compartment is referred to as underride litigation.

In 1998, over 5,000 people were killed in crashes involving large trucks. This figure amounts to one in every eight highway fatalities. Almost 80 percent of those killed were in a passenger car, not a tractor trailer. Large trucks were three times more likely than other vehicles to be rear-ended in fatal two-vehicle crashes.(1) Underride collisions happen frequently, and they usually result in terrible injuries or death.

The dangers of underride are not readily perceived, and the attendant risks of the truck bed penetrating a vehicle's passenger compartment are not apparent when viewing the back of the trailer. For this reason, underride is sometimes referred to as the "silent killer."

Most drivers believe that the front of their vehicle affords protection in frontal collisions. In reality, it offers no protection from a trailer bed when the vehicle's hood goes under the rear guard or the guard fails.

The U.S. Department of Transportation (DOT) has promulgated written standards regarding proper rear-impact guards for tractor trailers.(2) The purpose of these standards is to reduce the number of deaths and injuries that are caused when smaller, lower vehicles collide with the rear of tractor trailers. The current regulations require that all tractor trailers manufactured after January 1998 have rear guards that are no higher than 22 inches above the road surface.

Under an earlier regulation, rear guards could be as high as 30 inches off the pavement.(3) This regulation is still in effect for trucks that do not fall into the tractor trailer category, such as straight beds and dump trucks, and for all tractor trailers manufactured before 1998.

In comparison to the newer regulation, the 30-inch requirement is substantially less effective. Even under the current regulations, there is considerable concern as to whether rear guards provide adequate protection during rear-impact collisions.(4) There are three primary criticisms of the current regulations.

First, safety advocates endorse guards no higher than 18 inches above the pavement to prevent compact cars and newer vehicles with low, sloping, aerodynamic hoods from underriding trailers. Second, while no level of strength will protect at very high speeds, the current strength requirement for these guards is thought to be about half of what it should be. Finally, the current regulations govern only newer tractor trailers.

Federal requirements

Section 571.224 of the DOT regulations sets forth minimum requirements for rear-impact guards on trailers and semitrailers with a gross weight of 4,536 kilograms or more. The primary requirements are:

* Guard width: The rear guard must extend side to side to within 4 inches of the outermost edge of the trailer.

* Guard height: The vertical distance between the bottom edge of the guard and the pavement must not exceed 22 inches.

* Guard position: The rear guard must be within 12 inches of the end of the trailer.

In addition to the fact that the new regulations do not apply to all trailers currently on the road, they do not directly address the danger posed by side-impact underride. In Europe, for example, side-underride guards prevent cars from underriding trailers during side-impact crashes.

Also, the new regulations do nothing to encourage the use of rear guards that absorb energy through the use of hydraulics. Rather, most trailers that comply with the regulations are equipped with rigid rear guards, many of which have inadequate strength.

Many underride collisions are caused when tractor trailers are not visible to other drivers. This lack of conspicuity, especially at night, can cause a driver to overtake the tractor trailer and not realize what it is until it is too late. This is especially a problem for drivers approaching tractor trailers that are coming out of side roads or driveways and turning across the road in front of them. The passenger vehicle's headlights tend to go underneath the side of the trailer and, if the trailer is not properly illuminated, side underride can occur.

In response to these problems, in 1993 the DOT adopted FMVSS 108, which required that manufacturers partially outline tractor trailers' rear and side panels with alternating red and white sheeting and reflectors.(5)

Preemption 

In underride litigation, defense counsel often seek summary judgment on the grounds of federal preemption,(6) a doctrine rooted in the Supremacy Clause of the U.S. Constitution.(7) The doctrine requires that federal law has precedence in any conflict between federal and state law. State common law tort liability is subject to the preemption doctrine whenever state law principles conflict with a federal statute or regulation.(8)

For example, preemption has been applied to certain claims based on an automaker's failure to equip cars with air bags. In Geier v. American Honda Motor Co., the U.S. Supreme Court held recently that the plaintiff's "no air bag" claim was impliedly preempted by the 1984 version of Federal Motor Vehicle Safety Standard (FMVSS) 208, promulgated by the DOT.(9)

The Court specifically noted that the regulation in effect at the time of the accident allowed manufacturers to choose from a range of passive restraint systems. In fact, the standard allowed manufacturers to select a system that used automatic seat belts without any air bags at all. Accordingly, the Court found that a claim against a manufacturer for failure to install air bags would conflict with federal regulations that allow a choice.

Federal and state courts have indicated that preemption applies if

* the scope of the federal statute indicates congressional intent to occupy a field exclusively;

* compliance with both federal and state requirements is impossible; or

* state law impedes Congress's purposes and objectives in enacting the relevant statute.

However, federal and state courts have held that preemption does not prevent litigants from seeking recovery in underride cases, whether the cases are based on alleged failure to properly illuminate trailers or on claims of defective rear guards.(10)

With regard to illumination and rear guards, the state and federal courts have held that Congress has not demonstrated an intent to occupy the field exclusively and that federal and state requirements are compatible. For instance, in Buzzard v. Roadrunner Trucking, the plaintiff sought recovery under the theory that the defendant failed to properly illuminate the trailer.(11) The defendant argued that the plaintiff's claims were preempted by FMVSS 108, issued under the National Traffic and Motor Vehicle Safety Act (NTMVSA) of 1996.(12)

The Third Circuit Court of Appeals held that the act had both a preemption clause and a savings clause and that the savings clause provided that Congress did not intend to preempt all common law tort actions based on design defects. Accordingly, the court held that there was no clear intent by Congress to exclusively occupy this entire field of motor vehicle safety.

In addition, the Buzzard court noted that Congress did not intend that FMVSS 108 should impliedly preempt an action based on a defective illumination claim. A claim would, however, be preempted if it prevented the defendant from complying with both federal and state law. The court further held that the standards set forth were simply minimum standards for illumination and that FMVSS 108 suggested that additional methods of illumination could be used.

This standard can be distinguished from the one considered by the Supreme Court in Geier. The 1984 version of FMVSS 208 outlined three passive restraint system alternatives that manufacturers could adopt. The alternatives were exclusive of each other. FMVSS 108 suggests no alternative system. It refers only to minimum requirements. For this reason, the Buzzard court found that illumination standards for underride cases do not preempt state tort law claims of defective illumination.

Similarly, state courts have held that federal regulation of underride guards does not preempt state common law actions based on the failure to provide a safe rear guard. In Detillier v. Sullivan, a Louisiana appeals court was presented with such a claim.(13) The defendant argued that the predecessor regulation to [sections] 571.224, which was in effect at the time of the plaintiff's injury, preempted any claim in state court based on a defective underride system. The earlier regulation, [sections] 393.86, required only that rear guards be no more than 30 inches off the pavement. The plaintiff's experts suggested a rear guard be no more than 22 inches off the pavement, and the court found that this suggested guard height was not in direct conflict with the federal requirement because it is possible to comply with both standards.

These cases suggest that claims based on the theories of defective illumination or defective underride protection will be allowed to proceed despite the existence of federal regulations.

Case law

As illustrated above, federal regulations ensure that trailers meet certain minimum safeguards to prevent underrides. It would appear that these regulations do not preempt a state court action arising out of an underride accident. However, the larger issue of whether a given state will recognize a cause of action in these cases remains.

One of the first cases to recognize that vehicles should be crashworthy was Larsen v. General Motors Corp.(14) In Larsen, the plaintiff was driving an automobile with an allegedly defective steering column, which struck the plaintiff's head during a crash. The plaintiff alleged that the steering column design, which made it likely that the column would be driven toward the driver in an accident, was defective. The plaintiff did not allege that the defect had caused the accident.

GM claimed that a manufacturer has no duty to make an automobile safe during accidents and argued that the intended use of vehicles did not include collisions.

The court disagreed. It found that cars are made for use on roads and highways and cannot be used as intended without encountering a reasonable risk of collision. The court allowed an action based on defective or negligent design, even though the defect or negligence did not actually cause the collision.

Underride litigation rests on essentially the same principle. However, there is one important difference. In Larsen, the plaintiff was injured while driving the allegedly defective vehicle. In underride litigation, plaintiffs claim that the vehicles they struck were defective. This difference has caused some disagreement among the states as to whether underride cases should be recognized as actionable.

For instance, in 1973, the Illinois Supreme Court held in Mieher v. Brown that there is a fundamental difference between Larsen and underride cases.(15) It found that Larsen created only a duty for manufacturers to make vehicles in which it is safe to fide. The court held that there is no duty to design a vehicle with which it is safe to collide. However, nowhere in the decision does the court even mention the rear guard regulation, [sections] 393.86.

The Illinois Appellate Court revisited this issue in 1994 in Beattie v. Lindelof. The court cited Mieher in ruling that, in general, there is no duty to make a vehicle with which it is safe to collide.(16) Although the court found that previous owners and financial lessors had no responsibility, it left open the question of whether manufacturers and owners could be held responsible in a lawsuit.

A Louisiana appeals court clearly held in Detillier that underride actions will be recognized. The defendants argued that there was no duty to make the trailer safe for others who crash into it. The court disagreed and found that there is a cause of action if the plaintiffs can establish that the rear guard was defective and contributed to their injuries.(17)

A federal district court in Alabama, exercising diversity jurisdiction, has ruled that Florida courts would recognize a products liability action based on a claim that a rear guard was defectively designed.(18) However, the court noted that there is no duty under Florida's common law of negligence to design a rear guard that is crashworthy. Under the decision, Florida would allow a products liability suit based on allegations of a defective rear guard, but a plaintiff could not bring a negligence claim.

A Kentucky court has also allowed underride actions to proceed based on claims of defective or absent rear guard protection. In Worldwide Equipment, Inc. v. Mullens, the seller of a coal truck failed to equip the truck bed with any form of rear guard protection. The jury returned a verdict for the plaintiff, and the appeals court affirmed, noting that Kentucky recognized a products liability claim based on defective rear guards.(19) State courts in New York and Oregon have also recognized a cause of action for underride accidents based on defective rear guards.(20)

An interesting, unreported Ohio case highlights a potential problem for litigants attempting to use the federal regulations as evidence against tractor trailer manufacturers. In Poorman v. Kidron, the Ohio Court of Appeals recognized the right to pursue an action in an underride case but held that federal regulations could not be used as evidence against a manufacturer.(21)

The crash occurred in 1992, so the old federal regulation would have applied. The court held that the requirements of 393.86 apply to "persons who own, lease, or operate commercial motor vehicles and their employees."

The court said that the federal regulations are not applicable to manufacturers. It concluded that the trial court acted properly in instructing the jury that as a matter of law manufacturers are not required to provide rear-impact protection under the earlier regulation. Although there was some disagreement among courts about manufacturers' responsibility under the earlier regulation, the new standard specifically refers to, and imposes responsibility on, manufacturers.

Plaintiff error

Returning to the example at the beginning of the article, if the tractor trailer had a defective rear guard system, there may be recovery, even if the tractor trailer driver was driving carefully. However, unlike the example, many underride situations may involve error on the part of the plaintiff driver. By definition, the vehicle that underrides is driven into the rear of the trailer. The car driver's actions must be considered and dealt with in preparing the case.

If the action is based on strict products liability, depending on the jurisdiction, mere inadvertence on the part of the driver may not be relevant. If the injured party was a passenger rather than a driver, the driver's actions will generally not play a role in damage reduction. However, in considering whether to pursue the case, keep in mind that these cases are usually defended on plaintiff-driver error. Evidence of this is generally admissible even in a strict products liability case if it goes to the question of the rear guard's defect? Careful consideration should be given to the question of whether to take a case that involves reckless driving or the use of alcohol or drugs by the plaintiff driver.

Despite the pitfalls, plaintiffs have been successful in a number of underride claims. ATLA's Truck Underride Litigation Group tracks these cases throughout the United States.(23)

Underride litigation has gained initial recognition and acceptance in some states. Although what will be allowed as proof of a defective rear guard may vary from state to state, the action seems to have gained a strong foothold in state courts. With more cases being tried, deficiencies in the current regulatory scheme will be highlighted. In the end, this exposure may result in more stringent U.S. regulations that are similar to the more progressive ones used in Europe.

Tractor trailer underride documents from the ATLA Exchange

The documents listed below and many others on tractor trailer underride litigation or preemption of motor vehicle products liability claims are available from the ATLA Exchange. To learn more, visit http://exchange.atla.org, call [phone], or fax [phone].

Anderson v. Mack Trucks. Plaintiffs' memorandum of law in opposition to defendants' motion for dismissal and/or summary judgment and supplemental memorandum on privity and crashworthiness where a vehicle collided with the rear of a truck that had no rear guard. (No. EX0234.)

National Traffic and Motor Vehicle Safety Act Case Summary Survey. A collection of verdicts, settlements, and opinions that have appeared in the Products Liability Law Reporter from 1987 to the present involving the issue of federal preemption of motor vehicle products liability claims by the National Traffic and Motor Vehicle Safety. Act. (No. CS.25.)

Derby v. Brenner Tank, Inc. Plaintiff's appellate briefs and the manufacturer's trial and appellate court briefs in a case holding the NTMVSA does not preempt a state tort: claim tot lack of reflective tape on a tank trailer. (No. LR547.)

Olson v. Cargo Transporters, Inc. Deposition of plaintiffs' accident reconstruction/visibility expert and defendants' accident reconstruction and visibility experts in a case alleging a tractor trailer driver had failed to use retroreflective tape, (No. LR3384.)

Swope v. STI Transit Co. Plaintiffs' memorandum of law in opposition to defendant's motion for summary judgment in a case holding that a manufacturer's compliance with a federal motor vehicle safety standard did not preempt a common law action for failure to use additional safety features on a truck trailer, (No. LR1513.)

Winkelman v. Strick Corp. The parties' summary judgment memoranda and the trial court's unpublished opinions rejecting defendants' contention that federal law preempts a claim for lack of underride protection on tractor trailers. (No. LR468.)

L148 1MMB 

Notes

(1.) DEPARTMENT OF TRANSP., DOT HS 808 952, TRAFFIC SAFETY FACTS: LARGE TRUCKS (1998).

(2.) 49 C.F.R. [sections] 571.223-.224 (1996).

(3.) 49 C.F.R. [sections] 393.86 (1953).

(4.) See Byron Bloch & Elliott G. Wolfe, Truck Underride Tragedies, TRIAL, Feb. 1993, at 32. This article criticized the new regulations when they were under consideration.

(5.) 49 C.F.R. [sections] 571.108.

(6.) See, e.g., Derby v. Brenner Tank, Inc., 522 N.W.2d 274 (Wis. Ct. App. 1994), rev. denied, 527 N.W.2d 335 (Wis. 1994).

(7.) Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777 (3d Cir. 1992).

(8.) Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d Cir. 1986), cert. denied, 107 S. Ct. 907 (1987).

(9.) No. 98-1811, 2000 WL 645536 (U.S. May 22, 2000).

(10.) Buzzard, 966 F.2d 777; Detillier v. Sullivan, 714 So. 2d 244 (La. Ct. App. 1998), cert. denied, 119 S. Ct. 1497 (1999);Derby, 522 N.W.2d 274. 11. 966 F.2d 777.

(12.) 15 U.S.C. [subsections] 1381-1431 (West 1982 & Supp. 1991).

(13.) 714 So. 2d 244.

(14.) 391 F.2d 495 (8th Cir. 1968).

(15.) 301 N.E.2d 307 fill. 1973).

(16.) 633 N.E.2d 1227 fill. App. Ct. 1994).

(17.) 714 So. 2d 244.

(18.) Rivers v. Great Dane Trailers, Inc., 816 F. Supp. 1525 (M.D. Ala. 1993).

(19.) 11 S.W.3d 50 (Ky. Ct. App. 1999).

(20.) Garcia v. Rivera, 553 N.Y.S.2d 378 (App. Div. 1990) (holding that underride cases are actionable but finding that plaintiff failed to meet his burden of proof); Rossen v. Goon, 549 N.Y.S.2d 887 (App. Div. 1990); Hagan v. GemState Mfg., Inc., 982 P.2d 1108 (Or. 1999).

(21.) No. 17573, 1996 WL 515547 (Ohio Ct. App. Sept. 11, 1996).

(22.) See, e.g., Korando v. Uniroyal Goodrich Tire Co., 637 N.E.2d 1020 (Ill. 1994).

(23.) For more information about the litigation group, contact ATLA at (800) 424- 2725, ext. 306.

Martin J. Healy Jr. is a principal of the law firm of Martin J. Healy Jr. & Associates in Chicago. John P. Scanlon is a trial attorney with the firm. The authors are grateful to Catherine Lynott for her assistance preparing this article.