Stay ahead of the curve in SUV rollover cases; when the defense claims that driver error caused your client's crash, be prepared. The culprit is often the vehicle's design.

Successful presentation of a rollover case depends on careful analysis of the factual and legal defenses likely to be raised. Defendants' primary strategy in these cases is to blame the driver for losing control of the vehicle. Other defenses focus on design issues, vehicle testing, and industry norms. Anticipating and countering these arguments will bolster the plaintiff's theory of the case: that the manufacturer could have designed the vehicle to prevent rollovers in foreseeable circumstances.

Driver error

In most rollover cases, the key design issue is whether the vehicle was sufficiently rollover-resistant--that is, whether the vehicle was designed to "slide out" rather than "tip up" when it experiences high lateral accelerations in a sharp turn or cornering maneuver. The plaintiff will usually focus on the vehicle's response after it starts sliding sideways in the road, since this is the point at which the tires on a well-designed, rollover-resistant vehicle should give way and allow the vehicle to slide out. A poorly designed vehicle--one with inadequate rollover resistance--instead experiences a buildup of high side forces that induces a "tire-friction trip," causing the vehicle to tip up on two wheels.

The defense will invariably attempt to keep the focus on the driver's initial loss of control, which may be a result of driver error, a design characteristic of the vehicle, or a combination of both. The plaintiff attorney must be prepared to defend the driver's actions as reasonable and determine whether the loss of control is related to a problem with the vehicle's design--typically referred to as a "directional stability" defect.

Common reasons for losing control of a vehicle include that the driver

* steered to avoid an obstacle.

* fell asleep at the wheel or drifted off the pavement, then used a hard counter-steer to return to the roadway.

* slid on icy or wet roads.

* had tires whose treads separated.

* encountered other conditions that affected the vehicle's directional stability.

The reason for the initial loss of control is not significant in determining whether an SIN is defective due to inadequate rollover resistance. But it is highly significant in the jury's apportionment of fault between the driver and the vehicle. The plaintiff lawyer must anticipate the "driver error" defense, both in analyzing and selecting cases and in taking steps to minimize the degree to which the driver may be blamed for putting the vehicle in a dangerous position.

Whether or not the driver's initial actions are defensible, the manufacturer will characterize them as an "overcorrection" or "overcompensation." These words are familiar to jurors and imply blame. Many investigating officers use these terms in reports, and witnesses often adopt them, whether or not they mean to blame the driver. Witnesses might innocently use them as follows:

Q: Do you remember using the word "overcompensated"? Is that something you might have said?

A: That's something I would have said, probably.

Q: When you say that ... are you using that in a negative connotation?

A: No, no. I am saying that I would hate to be in that position--blow a tire and all of a sudden the whole car gets squirrelly on you. I think everybody in the room would probably have a tendency to overcompensate. You are just not trained for that kind of movement, so ... it's not negative at all. (1)

One response to the "overcorrection" defense is to look at whether something outside the driver's control caused the vehicle to "overreact." For example, what if the driver hit strong side winds while traveling at freeway speed? Wind can have a destabilizing effect, particularly in shorter and lighter SUVs such as the Suzuki Sidekick and Geo Tracker, compared with longer and heavier models such as the Chevrolet Suburban and Lincoln Navigator. (2)

Tire tread separation is another common cause of rollovers. Testing demonstrates that in most vehicles, tread detachment--particularly from a rear tire--causes the vehicle to drag to the side experiencing the detachment. If the driver steers, even minimally, to straighten the vehicle, and the tread subsequently comes off, the car reacts as if the driver has oversteered, and the rear of the vehicle comes around so that the vehicle starts sliding sideways on the road. (3) The driver in such a circumstance has done nothing wrong and has not oversteered; rather, it is the vehicle that has overreacted to the driver's attempts to counteract the drag. (4)

In situations where the driver's own decisions resulted in the need for a countersteer--avoiding a child or animal, for example--the plaintiff must show that the vehicle began sliding sideways after only minimal steering by the driver. In depositions, the defense will make every effort to force the driver to dramatically reenact his or her steering, which most drivers overestimate.

To avoid such estimates, which most likely are wrong, consider having your client test-drive a vehicle to experience the actual steering required to change lanes, for example, at freeway speed. Typically, drivers do not focus on their steering; allowing one to estimate his or her actions in a deposition, with no prior thought, is a prescription for disaster.

Defense experts typically argue that vehicles are designed to accommodate "typical" emergency steer responses and that a driver must have exceeded these expected and reasonable actions to make a vehicle slide sideways. These experts assert that most vehicles have a "safety margin"--that is, they remain under the driver's control when accelerating laterally far more often than a "typical" driver can effect in emergency maneuvers. The experts claim that drivers who make large, rapid steering motions have overreacted, causing unusually high lateral accelerations that lead to rollover. Because these drivers are atypical, defendants contend, manufacturers should not be expected to design vehicles that will withstand such maneuvers.

However, the studies defendants rely on to support these opinions do not yield such broad conclusions. (5) In fact, a careful analysis of each study reveals that drivers in emergency avoidance maneuvers can and do attain high lateral accelerations that all but eliminate the "safety margin" claimed by the defense. In fact, drivers of most SUVs operate in a "zone of danger" when steering to avoid an emergency.

Defense experts rely primarily on a 1974 study by the Calspan Corp. to support the claim that a typical driver will not generate more than .46 g of lateral acceleration in an emergency, whereas .8 to .9 g will cause a poorly designed SUV to tip up. In that study, drivers had to maneuver a course that included cones and barrels, and they were told to drive as if in a hurry. There were no surprises or emergencies. Although they were told to drive fast, drivers were not given specific speeds and were cautioned to drive safely. The course included an avoidance maneuver (a double lane change) and an S-turn--hardly emergency-avoidance maneuvers. The study notes that drivers of standard cars averaged a maximum lateral acceleration of about .45 g. However, the peak lateral accelerations ranged from a low of .13 g to a high of .76 g. (6)

Defense experts may also point to a study by the Nissan Motor Co. to establish that drivers do not turn the wheel more than 180 degrees in an emergency-avoidance maneuver, and that such steering does not generate high acceleration levels. In that study, drivers traveling at 60 km/h (37.2 mph) were instructed to make a single lane change when confronted with an obstacle. Lateral acceleration levels were not recorded. The report includes a chart showing test results from only three drivers who encountered a surprise obstacle. On other obstacle runs, however, drivers turned their steering wheels as much as 160 to 270 degrees--presumably producing high acceleration levels. (7)

Careful examination of these tests shows that, contrary to manufacturer claims, typical drivers are able to generate forces large enough to cause a rollover in emergency-avoidance maneuvers. Such maneuvers are neither unforeseeable nor unreasonable. Therefore, automakers have an obligation to test vehicles under these conditions and to design vehicles that will remain stable even when drivers make large steering motions.

Rollover resistance

Establishing that inadequate rollover resistance stems from defective design requires the jury to accept the plaintiff's premise that a properly designed vehicle will slide out, rather than roll over or tip up, when its back end starts to come around and the vehicle turns sideways on a dry, paved road. In tests of vehicles in emergency-avoidance maneuvers, plaintiff experts typically demonstrate the defect by generating forces at a vehicle's limits.

Automotive manufacturers claim plaintiffs' tests of rollover instability are unrealistic, unscientific, and unaccepted by the industry. They also claim that no auto manufacturer has adopted the "slide out" design goal. Both claims, however, are refuted by the automakers' own files and by testimony of industry engineers.

For example, in 1973, Ford publicly stated, "Passenger cars must be `forgiving' of all manner of `unskilled' driver situations that precipitate wild, panic-motivated, evasive maneuvers.... Ford passenger cars are designed to `forgive' or, in the extreme, to `slide out,' rather than roll over, on flat, level pavement." (8)

In 1986, Ford Motor Co. engineers described the company's design goals for all passenger vehicles, including its light trucks and sport utility vehicles, notably stating that

   light trucks generally have a higher vertical
   CG (center of gravity) than passenger cars for
   a variety of reasons (i.e., ground clearance for
   off-road use, more suspension travel [vertical
   motion in turning maneuvers], greater cargo
   capacity). However, trucks must still be
   designed to be safe and predictable in even the
   most severe accident-avoidance situations. (9)

Vehicles with a higher center of gravity, including SUVs, have a higher risk of rollover. In Ford's 1987 Resistance to Rollover Guidelines, company engineers stated, "Light truck chassis engineering's objective is to design and develop a vehicle that will remain stable under all operating conditions, including accident-avoidance maneuvers. The vehicle should respond in a predictable manner and give the driver perceptible signals that the vehicle is at its limit." (10)

In 2000, the former president and CEO of General Motors Corp., Robert Stempel, testified in a deposition as follows:

Q: But the objective in designing a vehicle from a rollover point of view is that your preference is to slide out rather than to have it tip up, correct?

A: When you design a vehicle, you'd always like it to slide out. (11)

The methods used to test the likelihood of tip-up versus slide-out in emergency-avoidance maneuvers are also the subject of extensive debate. Manufacturers' experts claim that the tests plaintiffs use are not accepted by the industry and have not been adopted by the government. Consequently, they argue, tip-ups that occur during plaintiffs' tests do not establish a defect.

While it is true that the government has not yet formally adopted a specific rollover test, it has sponsored an extensive study on the reliability of various test methods and how well they predict rollovers, and has proposed a rule that would require all automakers to conduct two tests that some manufacturers and plaintiff experts have used to evaluate rollovers.

The National Highway Traffic Safety Administration (NHTSA) established the test program to evaluate whether the government should adopt a single rollover test. In Phase I of the program, NHTSA conducted research on various tests being used in the industry, with the purpose of eliminating "any impractical, repetitive, or inapplicable test procedures." (12) In Phase II, the agency subjected several vehicles to tests it determined to be the most valuable, repeatable, and helpful in comparing vehicles' rollover propensity, including several that plaintiffs use in litigation today.

After conducting a series of tests on several vehicles, including a Geo Tracker and a Chevrolet Blazer, NHTSA concluded:

   Light trucks have a lower resistance to tip-up
   as a consequence of sharp steering ... than
   passenger cars. Among the light trucks tested
   in Phase II, those with more trucklike characteristics
   (four-wheel drive, higher center of
   gravity) had a higher tendency to tip up than
   those with more carlike characteristics (two-wheel
   drive, lower center of gravity). (13)

In the fall of 2002, the agency issued its long-awaited notice of proposed rulemaking. (14) The proposed regulation would, for the first time, impose test requirements that would subject SUVs to realistic, severe maneuvers to determine rollover stability and resistance. If NHTSA adopts these tests, manufacturers will no longer be able to claim that their SUVs should not be required to remain stable and upright in severe cornering and emergency-avoidance maneuvers.

Defendants' experts also criticize the Consumers Union's double-lane-change maneuver, suggesting that it has been widely discredited. The nonprofit organization developed the test to evaluate vehicles for its rating system. Although defendants continue to challenge its validity, the maneuver has been and is being used by several automobile manufacturers as a rollover evaluation test. (15)

Tipping or tripping?

Defendants and their experts often spend considerable time and money on crash tests and demonstrations to establish that a vehicle rolled over because it was tripped by something like a curb or a pothole in the road, not because of lateral forces generated when the tires slid on pavement. A typical focus is the "off road" excursion, usually described as one or more tires leaving a paved surface and encountering gravel, dirt, grass, or sand. Experts often produce videotaped tests demonstrating passenger car rollovers in such conditions to show that all cars can be tripped, not just SUVs with high centers of gravity and narrow track widths.

Manufacturers argue that most rollovers are the result of the vehicle's tripping, and that the very few untripped rollovers do not justify design modifications that would, in their view, alter the design to such a degree that SUVs essentially would no longer exist.

To counter these tactics, the plaintiff must develop factual evidence from the crash and thoroughly investigate any tests conducted by defendants and their consultants. In the common off-road excursion, for instance, careful analysis must focus on evidence of an actual furrow, rather than a mere tire path through dirt or gravel. Photographs must be examined for evidence of deep troughs and sprayed dirt or gravel, as well as the friction characteristics of the road and shoulder, such as whether the pavement looks smooth or rough. These photos will help determine whether the tires encountered a surface or an irregularity that would have increased lateral accelerations and "tripped" the vehicle.

The `middle of the pack' defense

Finally, in almost every SUV rollover case, the defense will attempt a "middle of the pack" defense, using charts that surround the subject vehicle with purportedly similar ones to show there is nothing odd or unusual about it. These charts compare center of gravity height, track width, and rollover statistics that invariably place the subject vehicle in the middle.

The plaintiff must carefully review and challenge these comparisons and demand that the defense disclose the raw data its expert used. In one case involving an Isuzu Rodeo, the defense's statistical expert claimed that he was comparing similar-size SUVs and had eliminated short-wheelbase SUVs from his comparison because these vehicles' rollover rate is known to be higher than that of SUVs with longer wheelbases. But close examination of the data and vehicles revealed that the expert had calculated an average wheelbase of two models of a supershort SUV (a two-door and a four-door model) to obtain a long enough wheelbase so that he could include the vehicle in his statistical comparison with the plaintiffs Isuzu Rodeo. Including this vehicle with a high rollover rate made the challenged vehicle look safer by comparison. (16)

Defense experts make another misleading comparison involving "tip up" tests that purport to show that many passenger vehicles tip during the same emergency-avoidance maneuvers that the plaintiff's experts used in their testing. Once again, it is important to obtain raw data to successfully exclude these tests. For example, the defense often attempts to introduce tests of a 1970s-era Toyota Corolla tipping up on J-turns. However, that Corolla was an unrepresentative car: It had an extremely narrow track width that, combined with a high center of gravity, made it very unstable compared with other passenger cars.

These kinds of tricks must be ferreted out using thorough, persistent discovery. If you do not ask, you might never know what is hidden in the details.

Rollover design-defect cases are among the most challenging in automotive litigation. The defense can capitalize on several common assumptions, including the beliefs among many jurors that SUVs are safer than passenger cars in most kinds of accidents and that drivers are to blame for losing control of their vehicles. Plaintiffs can overcome these challenges with careful analysis of the evidence, through discovery and through well-crafted responses to common defense arguments.

Notes

(1.) Deposition of Whitney Lank at 27-28, Logan v. Ford Motor Co., No. GC025696 (Cal., Los Angeles Super. Ct. Dec. 18, 2001).

(2.) See THOMAS D. GILLESPIE, FUNDAMENTALS OF VEHICLE DYNAMICS 106-09 (1992).

(3.) See id. at 203.

(4.) See CHARLES P. DICKERSON ET AL., VEHICLE HANDLING WITH TIRE TREAD SEPARATION (Soc'y of Auto. Eng'rs Paper No. 1999-01-0450, 1999).

(5.) TERUO MAEDA ET AL., NISSAN MOTOR CO. LTD., PERFORMANCE OF DRIVER-VEHICLE SYSTEM IN EMERGENCY AVOIDANCE (Soc'y of Auto. Eng'rs Paper No. 770130, 1977) [hereinafter NISSAN STUDY]; ROY S. RICE & FRED DELL'AMICO, AN EXPERIMENTAL STUDY OF AUTOMOBILE DRIVER CHARACTERISTICS AND CAPABILITIES (Calspan Corp. Paper No. ZS-5208-K-1, 1974) [hereinafter CALSPAN STUDY]. See also ROY S. RICE ET AL., AUTOMOBILE DRIVER CHARACTERISTICS AND CAPABILITIES--THE MAN-OFF-THE-STREET (Soc'y of Auto. Eng'rs Paper No. 760777, 1976).

(6.) CALSPAN STUDY, supra note 5, at 49.

(7.) NISSAN STUDY, supra note 5, at 12, figs. 5, 6.

(8.) Ford Motor Co. Comments on Advanced Notice of Proposed Rulemaking, Docket 73-10 (Aug. 15, 1973).

(9.) FORD MOTOR CO., LIGHT TRUCK LIMIT HANDLING OBJECTIVES (Nov. 18, 1986).

(10.) FORD MOTOR CO., RESISTANCE TO ROLLOVER GUIDELINES (July 6, 1987).

(11.) Deposition of Robert Stempel at 16-17, Schloss v. General Motors Corp., No. BC173295 (Cal., Los Angeles Super. Ct. Jan. 18, 2000).

(12.) Consumer Information Regulations; Federal Motor Vehicle Safety Standards, Rollover Preventions, 65 Fed. Reg. 34998, 35004 (June 1, 2000).

(13.) Id. at 35005.

(14.) Federal Motor Vehicle Safety Standards, Rollover Resistance, Docket No. NHTSA-2001-9663-35, Notice 2 (Oct. 2002).

(15.) See, e.g., Deposition of Peter Richings at 29-31, Bentley v. Land Rover of N. Am., Inc., No. CV98-J1858 (N.D. Ala. Apr. 18, 1999); Deposition of Steven P. Lyman at 75, Reeder v. DaimlerChrysler Corp., No. 99-C-422 (Va., Wood County Cir. Ct. Apr. 27, 2000) (Lyman, the vehicle dynamics manager for Daimler-Chrysler, described the test as "reliable").

(16.) Deposition of Allen Donelson at 59-62, Gutierrez v. Isuzu Motor Co., No. CIV 171967 (Cal., Ventura Super. Ct. July 6, 2000).

Christine Spagnoli is a partner with Greene, Broillet, Parish & Wheeler in Santa Monica, California