The trouble with sport utility vehicles.

Sport utility vehicles (SUVs) are the motoring phenomenon of the 1990s. Although once a novelty on America's streets, the toy of the off-road enthusiast, or the "wheels" of the sixties rebel, SUVs now account for 1 of 9 passenger vehicles sold in this country. But are they safe? Ask the families of these passengers and drivers:

* L swerved to avoid a dog in the road, then quickly tried to steer back to his lane. He saved the dog but lost his own life when his Toyota Land Cruiser rolled over on the highway.

* J's Jeep Cherokee slid off an icy road and then rolled over several times, gently enough that her two passengers received barely a scratch. But the Jeep's roof collapsed onto J's head, breaking her neck and leaving her quadriplegic.

* H accidently veered off part of the pavement, then steered sharply back in an attempt to return all wheels to the highway. Her Cherokee rolled, and H was left paralyzed. The flimsy, fiberglass liftgate ripped apart during the roll, and H's young son was ejected and killed.

* Marine Sgt. N was a passenger in a Mitsubishi Montero. The driver, his patrol partner, had to steer sharply, causing the Montero to flip on the roadway. Its roof collapsed, severing N's spinal cord and paralyzing him.

These consumers, like millions of others, thought their SUVs would provide safe transportation. The manufacturers' marketing campaigns certainly would have led them to believe so. However, automakers have cut corners in SUV design, sacrificing safety to profit.

Despite longstanding industry knowledge of SUV instability and weak structural design, many of these vehicles remain far too vulnerable to rolling over. When they do, they often provide inadequate occupant protection, or "crashworthiness."(1)

Popularity and Profits Skyrocketing

Nearly 20 years ago, American Motors Corp. observed that young people were buying Jeeps instead of sports cars and that families were buying them for general transportation.(2) This trend has continued, propelling SUV sales to record highs. In 1990, 1 of every 16 cars and light trucks sold in the United States was an SUV. By last year, that number had jumped to 1 in 9, with nearly 1.8 million units sold.(3)

SUV popularity is good news for automakers from Detroit to Toyota City. Typically, the vehicles are derived from existing truck designs and have high profit margins. Luxury models of these modified pickups fetch luxury prices.

But the news is not so good for families. Based on a false sense of safety, a whole generation seems to be abandoning sedans and station wagons for sport utility vehicles.

Manufacturers tout their. SUVs as tough, rugged, aggressive, and powerful. Ads show them climbing mountains and crossing rivers. The off-road capabilities, however, provide little utility to the typical buyer who rarely, if ever, drives off-road and infrequently uses the four-wheel drive feature. Moreover, the vehicles' tall, narrow design--adopted for off:road clearance of rocks, brush, mud, snow; and standing water--makes them less stable and more prone to rollover than passenger cars.

The rugged image is deceiving. In low-impact barrier testing conducted by the Insurance Institute for Highway Safety (IIHS), six 1996 SUVs (Blazer/ Jimmy, Explorer, Grand Cherokee, Land Rover Discovery, 4Runner, and Rodeo/ Passport) performed miserably. Five could not even be driven after a 5 mph front-end crash against an angled barrier. Similar immobilization had occurred only twice during the hundreds of similar tests that have been conducted by the IIHS on passenger vehicles.(4)

The tough image is also belied by safety statistics. The death rate for every 10,000 registered small SUVs, such as the Ford Bronco II or the Suzuki Samurai, is more than 10 times the rate for the largest passenger cars.(5) Overall, SUVs have rollover fatality rates per million registered vehicles between two and three times that of passenger cars.(6) The incapacitating rollover injury rate per occupant is 27.6 percent higher for SUVs than for the average passenger vehicle on the highway.(7)

Instability

The instability of these vehicles has long been recognized. In World War II, soldiers were trained to take corners in their jeeps with care to avoid rollover. When the military proposed to sell surplus M151 jeeps to the public, the National Highway Traffic Safety Administration (NHTSA) blocked the sale due to the rollover danger.

CBS's 60 Minutes shocked viewers in 1980 with film of Jeep CJ5 testing. The Jeeps overturned in maneuvers at speeds as low as 22 mph, and crash dummies "smashed head first into the pavement."(8) Jeep sales plummeted, but only temporarily. AMC would keep the CJ5 on the market until 1983 and would not discontinue the similar CJ7 until 1986.

The tragedy is that SUVs need not be unreasonably unstable. Auto designers have known for years how to alter the vehicles, even the small ones, to improve stability. The Jeep Wrangler, introduced in the mid- 1980s as the CJs were phased out, looks remarkably like a CJ but has greatly improved stability. Several researchers have tried, without success, to tip the Wrangler in maneuvers on smooth pavement at speeds up to 55 mph. Similarly, researchers have tested the Jeep Cherokee and Chevrolet S10 Blazer with moderate-sized tires without tipping even at speeds of more than 50 mph.

SUV instability should be a historical footnote, not a present concern. Unfortunately, that is not the case for several reasons:

* Government inaction has allowed design defects. CJs and other similar vehicles were never recalled. Thousands remain on the road.

The federal government has been petitioned many times to address the problem of SUV rollover, with disappointing results. Faced with industry opposition, the government has seen fit only to require warnings and information regarding rollover risks.(9) Never has an SUV been recalled due to instability. The government's neglect is especially disturbing since its own investigations show that SUVs are two and a half times more likely to be involved in fatal accidents than passenger cars.(10)

* Other manufacturers continue to emulate the failed designs of the past. In Consumers Union's 1988 testing, the Suzuki Samurai, equipped with protective outriggers during testing, tipped at speeds as low as 45 mph.(11) During the ensuing government investigation into the Samurai's stability, Suzuki commissioned dynamic testing of different SUVs. The results were alarming: Drivers were able to tip some of the most popular SUVs, including the Ford Bronco II, Isuzu Trooper II, Mitsubishi Montero, Nissan Pathfinder, and the Toyota 4Runner. Each tipped at speeds of less than 50 mph.(12)

Likewise, when Popular Science roadtested SUVs, the Montero, Trooper, and Jeep Grand Cherokee lifted two wheels in simulated emergency maneuvers.(13)

And proving that some manufacturers simply refuse to learn from the past, testing just completed by Consumers Union showed that the 1995 and 1996 Isuzu Trooper and its twin, the Acura SLX, tipped onto two wheels in tests simulating emergency maneuvers at 33 mph.(14)

* Manufacturers are moving to less safe designs to keep their market share in an increasingly competitive field.

For example, some manufacturers are increasing tire sizes to boost their model's rugged image. Although test drivers in the mid-1980s were unable to tip the Chrysler Jeep Cherokee with the tires that came with the vehicle, drivers have tipped it in limits testing on dry, smooth pavement at about 45 mph when the vehicle was equipped with slightly larger tires, which are now standard.

The Toyota 4Runner, with its original large tires, tipped at 35 mph, but it has been tested without tipping at speeds up to 45 mph when equipped with slightly smaller tires and when other minor modifications were made.

Why would a small difference in tire size degrade stability? The answer lies principally in the effect of tires on "static stability factor," one measure of a vehicle's ability to resist rollover. The factor is a ratio of half the vehicle's width, measured from the center of its tires, to the height of the vehicle's center of gravity.

The lower the static stability factor, the lower the side forces (exerted through the tires sliding on the roadway) required to roll the vehicle over. Large tires lower the factor by raising the center of gravity and by narrowing track width when part of the tire sidewall "tucks" in during a sideways slide.

With a reasonably safe static stability factor, a car will simply slide sideways rather than roll over in on-road emergency maneuvers. Passenger cars have stability factors of about 1.2 to 1.6, which is higher than the factors of almost all SUVs. The ratio for the Wrangler, a reasonably stable SUV, has been measured at 1.17. Unreasonably unstable SUVs tend to have factors below 1.1, and sometimes even below 1. Mitsubishi reported a stability factor of 0.98 for the Montero.(15)

* SUV suspension systems have not been improved. Attorneys have demonstrated to juries that the Ford Bronco II's suspension causes the vehicle to "jack up," or bounce, in sharp turning maneuvers, raising the center of gravity and adding to instability. One study reported that the two-wheel drive Bronco II has a remarkably high rollover death rate, with 3.78 fatalities in single-vehicle rollover accidents for each 10,000 registered vehicles. An astounding 97 percent of the deaths in single-vehicle Bronco II crashes involve rollovers.(16)

* Vehicle loading has not been adequately considered in SUV design safety tests. A recent study showed that merely adding people and cargo to SUVs greatly increased the rollover risk because both sit above the vehicle's center of gravity. This risk increased even when the loads were within the limits certified as safe by manufacturers.(17)

Crashworthiness

More than 9,000 people die and 50,000 are injured each year in vehicle rollovers.(18) In single-vehicle accidents, occupants are more than twice as likely to die if a rollover is involved.(19) Rollovers are second only to front-end collisions in the number of deaths by crash mode per vehicle, despite the relatively low incidence of rollovers.(20) Studies show that rollover occupants suffer death or severe injury more than twice as often as nonrollover occupants in serious accidents.(21)

Three variables affect occupant protection in rollovers:

* the degree of roof crush;

* the amount of occupant excursion, or movement, toward the roof permitted by the seat belt; and

* clearance, or headroom, between the occupant's head and the roof.

When the combination of the distance that the roof crushes in and the distance that the occupant moves toward the roof substantially exceeds the headroom, serious injury can occur. Thus, adequate rollover protection depends on minimization of roof crush and a seat-belt system that effectively restrains the occupant.

Manufacturers have long known the importance of maintaining adequate occupant "survival space."(22) Nevertheless, the industry has rejected as impractical basic design improvements that could prevent dangerous roof crush and excessive occupant movement during rollover. Manufacturers argue that roll over safety measures should focus on the driver and the environment, not SUV design.(23)

A common roof defect is the failure to incorporate a strong windshield header (the structural piece connecting the windshield to the roof) or roof side rail. Inadequate headers and rails can buckle during rollover, allowing for severe roof crush. Weakness in the roof's supporting structures can also lead to roof collapse during a roll. It is not unusual for roofs of certain SUVs to crush below the level of the seat headrests during rollover.

Seat-belt defects also contribute to serious rollover injuries. Improper seat-belt anchor placement can allow excessive occupant movement toward the roof as can defects in the retractor mechanism of seat belts.

Some of these vehicles have defects that make ejection more likely. The Jeep Cherokee's flimsy fiberglass liftgate is known to break loose completely during rollover, leaving a large opening through which occupants have been ejected and killed. Door and liftgate latch failures also expose unbelted or poorly restrained occupants to ejection risks.

Existing technology could better protect SUV occupants in rollovers. Indeed, stronger roof protection has been incorporated into racing vehicles and proven safe over many years. Based on racing accident studies, an article published by the Highway Safety Research Institute concluded in 1969 that nearly all occupants can be protected from serious injury in rollover accidents.(24) These findings are validated each year as race car drivers walk away from high-speed rollovers.

The government has done little to encourage better rollover protection. Roof strength is still governed by a 1971 standard--Federal Motor Vehicle Safety Standard (FMVSS) 216.(25) Manufacturers demonstrate compliance with the standard by conducting a static roofcrush resistance test where a steel plate is slowly pressed into the vehicle's roof.

This static test is inadequate because it does not replicate the dynamic forces present in a rollover or account for loss of structural support caused by windows breaking out during rollover. Roofs that pass the 216 test with flying colors are known to perform poorly during actual rollovers. Though inadequate from the beginning, the standard did not even apply to SUVs until 1994.

Despite knowing that rollovers are foreseeable and inevitable, manufacturers refuse to conduct dynamic testing that would best demonstrate real-world rollover performance. Members of the driving public, in effect, become the industry's unwitting test subjects.

Recognizing Cases

Defect claims in SUV cases can involve questions of stability, crashworthiness, or both. A viable stability claim generally requires an on-road rollover in a singlevehicle accident without the presence of a "tripping mechanism," or obstruction, such as a curb or deep pothole. Once off-road, any vehicle can furrow into the dirt and roll over. Tire marks that end suddenly indicate an on-road rollover.

Although a certain amount of driver error, such as inattention or overcorrection of steering, can be presumed, stability cases involving gross driver misconduct, including driving at excessive speed and being intoxicated, are less viable. Vehicle modifications such as "lift kits" or tires out of specification also can contribute to or cause rollover and may affect the validity of a stability claim. But plaintiffs' counsel can certainly argue that in the absence of manufacturer warnings, the average SUV owner cannot be expected to know that large tires affect vehicle stability.

A viable crashworthiness claim depends on the vehicle traveling at moderate speed when the rollover began. This rollover initiation speed can be determined through accident reconstruction. Most viable claims also involve substantial failure of at least one component, such as the roof or seat-belt system.

Unless the defect relates to ejection from the vehicle--as can occur in liftgate failures--usually occupants must have had their seat belts on for a claim to be viable. As with stability cases, gross driver misconduct will affect jurors' views about the allocation of damages.

Meeting the Defenses

Manufacturers typically defend stability cases by contending that gross driver error, such as excessive overcorrection, caused the rollover, not vehicle instability. Most driver "error," however, consists of foreseeable steering responses to emergency situations.

These steering responses do not lead to rollover in stable vehicles. The drivererror defense can be rebutted by conducting tests on an exemplar SUV to show that changes, such as installing smaller tires, prevent rollover.

The manufacturer may also contest the on-road nature of the roll or argue that the SUV was "tripped"--for instance, by one of its tire rims gouging the pavement. This can be countered by physical evidence. A true rim trip leaves a characteristic gouge in the road and telltale rim damage. An experienced accident reconstructionist can correctly interpret this evidence.

Manufacturers also contend their SUV is statistically no worse than the competition's. Statistics can be countered by focusing on the facts of a particular accident and by showing that not all SUV models tip on smooth road.

Manufacturers also tend to blame the severity of the accident ("No vehicle can be expected to provide protection in an accident this violent."). Plaintiffs can use the accident reconstruction to counter the "terrible accident" defense. Rollover initiation speeds often are no more than the 30 mph speeds involved in typical neighborhood driving. Often, severe roof crush could be prevented by simple, inexpensive alterations to the roof and supporting structures.

When addressing severe roof crush, manufacturers may incredibly argue that roof crush is unrelated to rollover injuries. Rather, they may contend that those injured in rollovers "dive" into the roof before it crushes. This defense is merely an excuse for making weak roofs. It also underscores restraint system defects since occupants cannot "dive" very far or very forcefully into the roof if they are effectively restrained. Industry testing used to support the diving defense--including GM's Malibu I and Malibu II test series--is based on flawed methodology and assumptions.(26)

Automakers also routinely argue that their SUVs meet all government standards. However, meeting minimum standards does not exempt the manufacturer from common law liability.(27)

Finally, in any crashworthiness case, the focus is the cause of the injury, not the cause of the accident. Driver or plain tiff error is irrelevant in determining responsibility for enhanced injury--that is, injuries that would not have occurred in the accident but for the defect.(28)

Auto safety advances historically begin with consumer demands made either in the marketplace or in the courts. Improvements in SUV safety are certain to come when consumers recognize the dangers and make different choices in the vehicles they buy. Until that time, millions of unstable, dangerous SUVs will remain on the highways.

RELATED ARTICLE: Products Liability Section Is an Asset to Your Practice

If you're an attorney who handles cases involving products such as defective sport utility vehicles, forklifts, and medical devices, you probably already know that products liability litigation is challenging.

But plenty of help is available from ATLA members who have litigated scores of these cases during their careers. Those who face new issues in a tough products liability case will benefit from joining the Products Liability Section.

The section offers networking opportunities, a newsletter, specie, seminars at the Annual and Winter conventions, and a subscription to the Products Liability Law Reporter (PLLR).

And with changes coming by way of the Restatement (Third) of Torts, members will probably find themselves calling on association colleagues for help more than ever.

"The Products Section is one important way that members can benefit from the ATLA tradition of sharing insights and information," said section chair Linda Turley of Dallas.

"Consumer rights are under attack not only legislatively but through a number of proposals from nonlegislative groups," Turley said. "These proposals are being offered to judges in hopes that they will begin to limit consumer rights where legislatures have refused to do so. The proposed restatement is just one example. In the coming year, we hope to focus on non,legislative attempts to [improperly] limit consumer rights."

One easy way to better understand some of these issues is to attend ATLA conventions. Held twice a year, they help section members keep on top of products liability issues.

At the January 18-22 Winter Convention in Boca Raton, Florida, participants can attend an important session on the status of the restatement proposal. Another session will feature a panel discussion on dealing with products liability cases that involve defendants that are located in other countries.

ATLA members may join the section by paying a $113 membership fee. For more information, call ATLA sections coordinator Nancy Dugan at [phone], ext. 312.

Notes

(1) This article represents the opinions of the authors, based in part on testing by experts who testify on behalf of plaintiffs. Others may differ in their opinions. (2) AMERICAN MOTORS CORP., 1978 ANNUAL REPORT 10 (1978). (3) Keith Bradsher, Competition May Thin Profits in Sport Utilities, N.Y. TIMES, May 9,1996, at D4. (4) Utility Vehicles Betray Their Flimsy Designs in 5 mph Bumps, STATUS REPORT, Vol. 31, No. 2 (Insurance Inst. for Highway Safety, Arlington, Va.), Mar. 2,1996, at 1. (5) Rollover Death Rates Alarmingly High; Ford Bronco II Worst, STATUS REPORT, Vol. 27, No. 6 (Insurance Inst. for Highway Safety, Arlington, Va.), May 2,1992, at 1, 2. (6) Relationship Between Rollover and Vehicle Factors, NHTSA Technical Assessment Paper 3 add. (1994). (7) 57 Fed. Reg. 242 (1992). (8) 60 Minutes: Jeep (CBS television broadcast, Dec. 21, 1980); Serious Rollover Problems Found in Jeep CJ-5 Utility Vehicles, STATUS REPORT Vol. 15, No. 19 (Insurance Inst. for Highway Safety, Arlington, Va.), Dec. 22, 1980, at 1. (9) See, e.g., 49 C.F.R [sections]575.105 (1995). (10) JOHN HINCH ET AL., SOCIETY OF AUTOMOTIVE ENGINEERS, NHTSA'S ROLLOVER RULEMAKING PROGRAM--RESULTS OF TESTING AND ANALYSIS SAE NO. 920581 (1992). (11) The Suzuki Rolls Over Too Easily, 53 CONSUMER REPORTS 424 (July 1988). (12) See, e.g., FAILURE ANALYSIS ASSOCS., CHARACTERIZATION AND DYNAMIC TESTING OF UTILITY VEHICLES (Exec. Summary, Apr. 1993). (13) Jim McGraw & Dan McCosh, 4x4: When the Going Gets Tough, POPULAR SCIENCE, Nov. 1992, at 118, 120. (14) Consumer Reports Tests Reveal Rollover Hazard, Press Release, Consumers Union (Aug. 20, 1996). (15) Response of Mitsubishi Motor Sales of America, Inc. to NHTSA Peer Analysis, NEF-121jdw Engineering Analysis EA89-013, May 31, 1989. (16) STATUS REPORT, supra note 5, at 3. (17) RA. Whitfield & Ian S. Jones, The Effect of Passenger Load on Unstable Vehicles in Fatal, Untripped Rollover Crashes, 85 AM. J. PUB. HEALTH 1268 (1995). (18) NHTSA Schedules Decisions for Rules on Rollover Crashes, STATUS REPORT, Vol. 27 No. 14 (Insurance Inst. for Highway Safety, Arlington, Va.), Nov. 21, 1992, at 6. (19) Consumers Union, supra note 14, at 1. (20) 57 Fed. Reg. 244, supra note 7. (21) Id., Robert McGuigan & Nancy Bondy, A Descriptive Study of Rollover Crashes, in ACCIDENT DATA ANALYSIS OF VEHICLE CRASHWORTHINESS--TEN PAPERS Nat'l Ctr. for Statistics and Analysis 1 ( 1981). (22) See, e.,g., L.A. Kintigh, Comments of General Motors Corp. with Respect to Notice of Proposed Rulemaking, Roof Intrusion Protection (May 5, 1971). (23) See, e.g., Edward A. Moffatt, General Motors Engineering Staff, Occupant Motion in Rollover Collisions, in PROCEEDINGS OF 19TH CONFERENCE OF THE AMERICAN ASSOCIATION FOR AUTOMOTIVE MEDICINE 58 (1975), Comments of General Motors on Advance Notice of Proposed Rulemaking, Rollover Prevention Docket No. 91-68, Notice 1, Comment 20 (Apr. 2, 1992). (24) John D. States & Ralph Sweet and, The Injury Risk of Roll-Over Accidents in Racing and Highway Driving, Address Before the Third Triennial Congress on Medical and Related Aspects of Motor Vehicle Accidents, International Association for Accident and Traffic Medicine (May 29-June 4, 1969). (25) 49 C.F.R. [sections]571.216 (1995). (26) See, e.g., STEPHEN R. SYSON, SOCIETY OF AUTOMOTIVE ENGINEERS, OCCUPANT TO ROOF CONTACT: ROLLOVERS AND DROP TESTS, SAE NO. 950654 (1995); Donald Friedman & Keith D. Friedman, Roof Collapse and the Risk of Severe Head and Neck Injury, 13th Experimental Safety Vehicle Conf., Paris (1991). (27) 49 U.S.C. [sections]30103(e) (1994). Manufacturers have, however, successfully argued that federal standards impliedly preempt lack-of-air-bag claims and certain other restraint claims. (28) See, e.g., Cota v. Harley Davidson, Inc., 684 P.2d 888 (Ariz. Ct. App. 1984); Reed v. Chrysler Corp., 494 N.W.2d 224 (Iowa 1992); Andrews v. Harley Davidson, Inc., 796 P.2d 1092 (Nev. 1990).

James L. Gilbert, Stuart A. Ollanik, and Paul J. Komyatte practice law at James L. Gilbert & Associates in Arvada, Colorado.