The slow death of lap-only seat belts: new regulations that take effect next year finally will eliminate dangerous lap-only seat belts from all new vehicles, but older models equipped with these belts will remain on the road. Attorneys representing injured plaintiffs must understand recent developments in this litigation.

The lap belt, the oldest seat belt design, is finally dying. Until recently, the Department of Transportation permitted manufacturers to install this archaic technology in the rear center seating position of vehicles sold in the United States. (1) This defective design has caused countless severe injuries--including paralysis and abdominal evisceration--and many deaths.

The federal government finally addressed the hazard in 2004, when it adopted a three-year phase-in of lap-shoulder belts in the rear center position--due in large part to the political pressure that consumers, victims, and consumer advocacy groups exerted. Under an amendment to Federal Motor Vehicle Safety Standard (FMVSS) 208, all new vehicles will be required to have lap-shoulder belts in this position by September 1, 2007. (2) The government's move will significantly reduce the number of serious injuries and deaths that occur in this seat, especially among its most vulnerable occupants--children. (3)

Unfortunately, even after the new rule becomes fully effective, hundreds of thousands of vehicles with lap-only belts in the rear center seat will remain on the road, and injuries and deaths will continue to occur. Injured people will continue to seek attorneys' help in obtaining compensation.

A lap belt--also known as a Type 1 or two-point restraint--is intended to secure the lower torso during a collision and prevent ejection. It consists of a single belt that extends from one hip, across the front of the pelvis, to the other hip--it does not cross the chest or shoulder. During a collision, the belt holds the hips and lower torso in place but allows the upper torso, neck, and head to swing freely.

As a vehicle rapidly decelerates in a frontal collision, the upper torso jerks forward violently. The body folds over the belt in the direction of the impact, simultaneously straining muscles, ligaments, tendons, bones, and the spinal cord--this is referred to as "jackknifing." If the force of the collision is too great for the body to sustain, the spine will be pulled apart or crushed against the lap belt. A passenger may suffer serious brain damage or neck injury if his or her head or neck strikes the front seats, console, or other passengers.

Often debilitating or fatal injuries, known as "seat belt syndrome," occur when the lap belt slides off the pelvis during a collision, allowing the hips to rotate forward under it--a motion called "submarining." Submarining injuries occur as the belt leaves the bony hips and loads the abdomen directly. The body's weight against the belt can rupture the occupant's intestines or crush the bony parts of his or her spine. The inherent evil of a lap-only belt is that severe injuries can happen even when it is designed "properly"--that is, the belt stays on the hips--because of the lack of upper-torso protection.

The right-to-choose defense

One of the major developments in rear seat lap belt litigation is the preemption fight that arose following the Supreme Court's 2000 decision in Geier v. Honda Motor Co. (4) The Geier plaintiffs argued that a 1987 Honda Accord should have been equipped with an air bag. In a limited decision, the Supreme Court found that the National Highway Traffic Safety Administration (NHTSA) had explicitly permitted automakers to phase in a variety of passive restraint designs (including air bags) so that the federal government could evaluate their relative effectiveness in preventing serious injury and death.

The Court found that FMVSS 208 "sought a gradually developing mix of alternative passive restraint devices for safety-related reasons." (5) It held that there was substantial evidence that NHTSA made a conscious decision to evaluate the effectiveness of various passive restraint systems and phase in air bags. (6) Thus, an auto manufacturer could not be held responsible for its choice of one passive restraint design over another.

Automakers, relying on Geier, contend that the decision to install a lap belt in the rear center position, like the decision not to install an air bag, was acceptable under NHTSA's pre-2004 regulatory scheme. Therefore, they argue, plaintiffs' claims that the center seat should have been equipped with a three-point belt instead of a lap belt are preempted by FMVSS 208.

Most trial courts facing automakers' preemption motions have rejected them, citing the regulation's "savings clause," which states in part that "compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law." (7) They have found no evidence that NHTSA consciously decided to evaluate different seat belt designs in the rear seat--evidence the Supreme Court found in the Geier passive restraints arena. Courts have denied summary judgment in cases brought against several automakers, including General Motors, Mazda, and Nissan. (8)

In the 2004 revision to FMVSS 208, NHTSA plainly stated that "the final rule is not intended to preempt state tort civil actions...." (9) 0A South Carolina trial court cited this "new" savings clause as additional regulatory support in denying a GM motion for summary judgment. (10) The court held that, "from a logical standpoint, if the agency does not intend for its regulation to preempt state tort actions at a time when it specifically addressed rear seat belts, how can it be inferred that preemption was intended under the previous version [of FMVSS 208], which did not address this issue in detail?" (11)

Some appellate courts, however, reviewing lower court rulings granting defense preemption motions, have accepted manufacturers' preemption arguments. (12) The new revision of FMVSS 208 and its comments will bolster the antipreemption argument in future cases.

Avoiding preemption

Whether the claim can avoid a preemption fight will depend largely on the injuries. Most jackknifing injuries can be prevented only by the addition of a shoulder belt or some other upper torso restraint--a requirement that defendants will argue, under their Geier-based design-choice theory, is not allowed. If the injuries are solely due to submarining, however, the case is more likely to avert preemption.

"Properly" designed lap belts remain on the occupant's pelvis, preventing submarining and its signature injuries to the abdomen and spine. Pursuing liability theories based on certain warning and design defects can help preserve the client's lap belt case. These theories include:

* failure to warn or inadequate warning

* defective design of the seat cushion and its underlying support structure--the ramp and pan--that minimizes submarining

* poor overall geometrical design (Submarining is more likely to occur if the belt angle is too steep; a more horizontal design allows the belt to lie flat across the thighs. The belt angle becomes steeper if the anchorage points are too far rearward.)

* failure to install an automatic locking retractor or emergency locking retractor, which minimizes loosening and helps ensure that the lap belt fits the occupant tightly

* insufficient padding of structures to minimize impact injuries.

If the complaint is drafted properly, the preemption argument may be limited to the allegation that a three-point belt should have been installed.

Case investigation and discovery

Before filing a claim, the plaintiff attorney must thoroughly interview all fact witnesses, emergency personnel, and physicians involved in the injured person's care to establish the following:

* the location of the belt before and after impact

* the location of the occupant's buttocks and back in relation to the seat back cushion (the closer they were to an upright position, the tighter the belt was)

* the clothes the injured person was wearing--specifically, if the occupant wore a coat, jacket, sweater, or other "big" piece of clothing under the belt that could cause loosening

* the location of seat belt marks and abrasions on his or her body (marks below the navel and on the hip bones strengthen the case because they indicate the occupant was wearing the belt properly).

You must investigate whether other passengers or a child seat customarily occupied the center position. This will help determine whether any marks on the belt are from another source and are not due to the collision.

Discovery in these cases can turn up corporate documents, public statements, and marketing materials showing that automakers have long been aware of the dangers of lap-only belts and the superior safety performance of three-point belts. (13) For example, safety-research engineers at Ford concluded in a 1967 internal memo that "when properly worn, the [three]-point, diagonal shoulder belt system has been demonstrated to offer much greater protection to the vehicle occupant than does a single lap belt alone, since it prevents injury from jackknifing." (14)

In June 1986, then-GM chair Roger Smith stated in a press release, "Recent GM studies have now confirmed that lap/shoulder belts offer the rear-seat occupant the best protection." (15) In 1992, Chrysler (now DaimlerChrysler) advertisements in national publications stated, "It used to be lap belts. They did the most good for the most people. But now more and more people are discovering three-point lap/shoulder harnesses are a better idea.... Chrysler believes rear-seat passengers should have the best safety protection available." The ads include photographs of children restrained in lap/shoulder belts in the rear seats of Chrysler vehicles.

Also useful are documents produced by the Society of Automotive Engineers (SAE), the leading organization of automotive engineers, showing that the industry has had the technology and know-how to install three-point systems for many years. (16)

When seat belt suppliers--including NSK Ltd., Autoliv, Johnson Controls, and Takata--are named as defendants, they can be valuable discovery sources. They typically have testing records and literature that the vehicle manufacturer does not possess. They also can provide critical information about alternative designs--including three-point belts, all-belts-to-seats systems (in which the seat belt is integrated into the seat, rather than attached directly to the vehicle structure), and integrated child seats.

Most restraint suppliers operate internationally, and their more advanced systems were incorporated earlier into vehicles sold in foreign markets. Pay particular attention to the suppliers' products in the Australian and European markets.

Also vigorously pursue discovery of the automaker's products sold in foreign countries. For example, Ford of Australia installed three-point belts in the rear center seats of the Falcon, Fairlane, and LTD in 1994. Ford issued press releases touting the vehicles' increased safety. (17) In the early 1990s, GM's Australian Holden subsidiary also installed rear center three-point belts in the Commodore. Do not let the trial court limit discovery to domestic products.

The global nature of the auto industry is also reflected in the large number of mergers and acquisitions in recent years, including those joining Ford with Volvo and Daimler Benz with Chrysler. These mergers make it possible to conduct discovery of alternative designs in luxury lines, which generally have superior safety features. The foreign divisions of the domestic manufacturers typically have more stringent internal safety standards that will go a long way in supporting the plaintiff's case. (18)

The legal landscape of lap belt litigation has changed substantially over the last six years. Well-informed plaintiff lawyers will be able to anticipate--and defeat--the legal and factual arguments that manufacturers will surely make in an attempt to avoid accountability.

Notes

(1.) 49 C.F.R. [subsection] 571.208-571.209 (2006).

(2.) 69 Fed. Reg. 70904 (Dec. 8, 2004). By 2006 (September 1, 2005, through August 31, 2006), 50 percent of all new vehicles had to include a three-point belt at the rear center position. The requirement jumped to 80 percent for September 1, 2006, through August 31, 2007.

(3.) The National Highway Traffic Safety Administration estimates that the new regulation will save 10-33 lives and prevent 245-632 serious injuries annually. Id. at 70906.

(4.) 529 U.S. 861 (2000).

(5.) Id. at 886.

(6.) In 1984, when the regulation at issue was promulgated, a large percentage of the population disfavored air bags, and NHTSA did not want to force an unpopular technology on the public.

(7.) 49 U.S.C. [section] 30103(e) (West 2006).

(8.) Hayes v. General Motors Corp., No. 05-CP-22-012 (S.C., Georgetown Co. Com. Pleas Apr. 6, 2006); Hericz v. General Motors Corp., No. 2001-SU-00357-01 (Pa., York Co. Com. Pleas Mar. 19, 2004); Johnson v. Nissan, No. 1:00-CV-1705-BBM (N.D. Ga. Apr. 2,2001); Nores v. Mazda, No. 98-0-004476 CKH (Haw., 1st Cir. Mar. 12, 2001).

(9.) 69 Fed. Reg. at 70912.

(10.) Hayes, No. 05-CP-22-012.

(11.) Id. slip op. at 10.

(12.) See e.g. Griffith v. General Motors Corp., 303 F.3d 1276 (11th Cir. 2002), cert. denied, 538 U.S. 1023 (2003); Hurley v. Motor Coach Indus., Inc., 222 F.3d 377 (7th Cir. 2000), cert. denied, 531 U.S. 1148 (2001); Heinricher v. Volvo Car Corp., 809 N.E.2d 1094 (Mass. App. 2004).

(13.) Attorneys have been gathering documents from manufacturers for 20 years. Many are available through the ATLA Exchange (see page 40) at www.exchange.atla.org.

(14.) Ltr. from R.G. Snyder, Ford Motor Co., to John Versace, Ford Motor Co. (Sept. 19, 1967) (on file with author).

(15.) Press Release, General Motors Corp., Immediately, Friday, June 6, 1986 (June 6, 1986) (on file with author).

(16.) See e.g. Leif Karlbrink, A Three-Point Belt in the Rear Center Seating Position as Accessories, Socy. Automotive Engrs. Paper No. 870483 (1987); Majid M. Sadeghi & Hugo Mellander, Alternative Passenger Car Seat--Seat Belt Design for Crash Safety, Socy. Automotive Engrs. Paper No. 880900 (1988).

(17.) Press Release, Ford Motor Co. of Australia, News from Ford: More Safety for Falcon (Feb. 17, 1993) (on file with author).

(18.) See Paul J. Komyatte, The Small World of Auto Defect Litigation, TRIAL 35 (Nov. 2005).

Prepare your seat belt case with resources from the ATLA Exchange

The documents listed below and many others on topics pertaining to seat belt litigation are available from the ATLA Exchange. For more information, contact the Exchange by phone at [phone] or by fax at [phone], or log on to exchange.atla.org.

Documents and document sets

Andrews v. General Motors Corp. The plaintiff's affirmations in opposition to the defendants' motion to amend their answer, memorandum in opposition to the defendant's motion to direct depositions of the plaintiff's expert witnesses, and pretrial and trial memoranda in a case alleging defective design of a car's occupant restraint system. (No. PL581)

Brown v. DaimlerChrysler Corp. Depositions of the defendant's experts in a case alleging defective design of a seat belt that failed to lock and secure a driver during a minivan rollover. (No. PL1020)

Doyle v. Volkswagenwerk AG. The parties' pleadings, summary judgment memoranda, and briefs before the Eleventh Circuit Court of Appeals and the Georgia Supreme Court, and amici-curiae briefs, in a case holding that Georgia law does not bar a design-defect claim for a passive restraint system that complied with federal safety regulations. (No. LR2995)

Gray v. American Honda Motor Co. The plaintiff's briefs opposing the defendant's motion to dismiss on spoliation grounds in a case alleging defective design of a car's restraint system in that it lacked a three-point restraint in the rear center seat. (No. LR2724)

Gwyn v. General Motors Corp. Deposition transcripts of the defendant's experts in a case alleging that a seat belt buckle was susceptible to a false latch condition and unbuckling when subjected to inertial forces. (No. LR3820)

Somerville v. General Motors Corp. The plaintiff's request for production of documents, interrogatories, exhibit lists, proposed jury instructions and voir dire questions, trial brief, and posttrial motions; experts' deposition transcripts; the parties' motions in limine and responses; a transcript of oral arguments regarding the plaintiff's inertial-unlatching expert witness; and the trial court's order allowing the expert's testimony in a case alleging that an SUV's seat belt buckle was defective because it unlatched when force was applied to the seat's back side. (No. LR3686)

Tilley v. Toyota Motor Corp. The plaintiff's amended complaint, amended motion in limine, designation of experts, and response to the defendant's motion in limine in a case alleging that a lap belt in a minivan should have been equipped with a shoulder harness. (No. LR3649)

Zaboli v. Mazda Motor Corp. The plaintiffs' memoranda in opposition to summary judgment and in response to the defendants' motion for reconsideration, the plaintiffs' motion in limine to preclude the defendants' introduction of evidence of compliance with federal standards, and depositions of the defendants' experts in a case alleging that a motorized two-point shoulder restraint was unreasonably dangerous for passengers of short stature. (No. LR3763)

Abstract set

A collection of verdicts, settlements, and opinions that have appeared in the Products Liability Law Reporter from 1993 to the present involving liability for defective occupant-restraint systems. (No. AS031)

EP67 4SBD 

BRAD KUHLMAN practices law with Evans & Kuhlman in Kansas City, Missouri.