Bringing Auto Safety Standards Into the 21st Century

The U.S. auto industry presents a striking paradox. On the one hand, manufacturers design and engineer for passenger safety, incorporating features such as airbags designed to protect passengers even in the face of serious human error.  On the other, manufacturers almost entirely disregard the safety of pedestrians, cyclists, and other motorists who foreseeably will be struck by their vehicles.

One might assume that this disregard for the safety of third parties is based on a legal principle that the manufacturer is responsible only for the safety of its customers. But in fact, auto manufactures have been liable to third parties since 1916, when renowned Justice Benjamin Cardozo wrote one of his most influential decisions, MacPherson v. Buick Motor Company.

In MacPherson, Buick had manufactured a defective vehicle that caused injury to the driver, who then sued Buick. Buick didn’t defend on the ground that its product was safe. Buick instead relied on what was at that time an ironclad principle of law: that the manufacturer of a product had no duty to look after the safety of any person other than the product’s purchaser (the driver had purchased the car from a dealer, not Buick directly).

Cardozo rejected Buick’s defense as an outmoded vestige of the pre-automotive era. “Precedents drawn from the days of travel by stage coach do not fit the conditions of travel today,” he wrote. The “needs of life in a developing civilization” required that an auto manufacturer exercise care for the safety of any person foreseeably put at risk by its product.

Why, then, aren’t auto manufacturers held responsible for the harm their vehicles cause to non-passengers? Sometimes they are. In the 1972 decision in Passwaters v. General Motors, the court considered a claim brought by a motorcycle passenger who was injured by the unusual hubcap of a GM vehicle, which had “unshielded metal flanges or flippers which protruded outward. These spun when the wheel rotated rapidly.”

Drawing on the principle in MacPherson that the foreseeability of harm imparts a duty, the Passwaters court concluded:

…the unshielded operation of propeller-like blades on the four wheels of an automobile create[s] a high risk of foreseeable harm to the general public. The use of the highways by pedestrians, the frequency of travel by unprotected persons riding on bicycles, motorbikes and motorcycles is a common occurrence. We think it now settled that a manufacturer does have the responsibility to avoid design in automobiles which can reasonably be foreseen as initially causing or aggravating serious injury to users of the highway when a collision occurs.

How is it that 40 years after Passwaters, automobile manufacturers continue to design hubcaps like this one, that I happened to come across recently in Greenpoint?

If this truck were to injure someone today, we would expect the manufacturer to be held liable, just as in Passwaters. But what about more conventional vehicle designs? Is the front end of a sedan, unadorned with “Mad Max” accessories, also unreasonably dangerous?

Given technological advances of the last 10 years, the answer is yes.  The most common cause of pedestrian death in motor vehicle collisions is blunt impact trauma from the victim’s head striking the engine block through the hood of the vehicle.  External airbags and other devices to cushion the head from the engine block have been developed, tested, proven to reduce fatalities, and have gone into mass production in Japan and Europe.

For example, Toyota (and reportedly now Jaguar and Citroen as well) uses a technology in which a pedestrian collision triggers jacks, raising the hood so that the victim’s head does not hit the engine block:

As shown in the graph, this pop-up hood design halves the peak force of the blow. This has been shown to reduce the likelihood of fatality from head trauma.

So from today’s perspective, and in light of the alternative designs available, a conventional front-end design is unreasonably dangerous. Like blades or spikes on a hubcap. Why is it that auto manufacturers incorporate safety features like these into the vehicles they sell overseas, but not in the U.S.?

Because we let them. While European cars are routinely rated on pedestrian safety, U.S. auto regulators appear to ignore pedestrian safety. Personal injury lawyers have been slow to recognize the significance of new technologies, and have shied away from the cost of pursuing novel claims against well-funded auto manufacturers. And unlike Justice Cardozo, today’s judges may be so inured to traffic violence that they fail to recognize that auto designs once considered reasonably safe are no longer so. As we did in 1916, it’s time to take a fresh look and evolve our standards of street justice to meet the “needs of life in a developing civilization.”

  • I strongly agree with the author’s apparent sentiments on this issue and I base this agreement upon my experience during many years as a traffic patrol police officer in Britain in the 1970s and 80s.  It is pertinent to mention that during my service – in 1974 to be precise – the UK laws on “dangerous parts and accessories” were tightened, and for example, after that time the automakers at Jaguar could no longer fit their age-old “springing cat” hood ornament to any cars sold in Britain, specifically because any such ornaments create a likelihood of exacerbated injuries to any pedestrian or bicyclist who has the misfortune to be struck by any of the vehicles in question. Here in the USA, however — almost forty years later — one can quite commonly see hood ornaments and and other accessories which are clearly capable of inflicting very serious injuries to vulnerable road users.  The same situation would appear to apply to driving with damaged bodywork (or holes rusted through) on one’s automobile — potentially very dangerous to a pedestrian, etc., in the event of a collision.
    Eddie Wren
    President & Chief Instructor
    Advanced Drivers of America, Inc.

  • JamesR

    FWIW, while the FHWA may be more lax on pedestrian safety standards than is the case in Europe, most cars sold today is the US meet the tougher European standards because car models sold are increasingly the same worldwide. i.e. today, Ford sells the same Focus in every country except for differences in right hand/left hand drive and engine options available. Because they want to sell the same car worldwide, this means that the companies design to whichever country of sale has the toughest standards. Still, in the US, that’s not to stop someone from adding accessories to his or her vehicle that could prove hazardous to pedestrians.

  • JK

    Thanks for another insightful piece Steve. Speaking of vehicle design, did pedestrian safety concerns get raised during Bloomberg’s “cab of tomorrow” design process per, dangerous, high, flat vehicle front end vs safer, low, gently sloping front end? Also cab related, some years back, T.A. raised a ruckus over “bull bars” on NYC cabs.  If memory serves, they were banned by TLC.  I mention TLC, because when SUVs came out there were a spate of national studies showing how much more dangerous they are to pedestrians. No surprise, there was no action on that, but some redesigns to reduce roll-overs. In short, maybe pressuring TLC is a better bet than a suit vs manufacturers.

  • Lawyer Jim

    Auto safety means safety only for people inside the car.  Maybe we should start to consider standard for the rest of us…

    I’m a big fan of Lambo doors, not because they look cool, but because about 1.3 of all bicycle/auto collisions in Chicago are doorings, and the risk of doorings might be reduced if doors didn’t open in such a dangerous and intrusive way.

  • Agree wholeheartedly, Jim. Sitting in proceedings right now in a lawsuit brought by one of our firm’s clients who was doored by a Honda vehicle, where it is alleged that the Honda was defective because it did not have any warning to the passenger not to door cyclists, nor did it have a side view mirror adjusted for the passenger use (or fisheye in design) with which the passenger could perceive traffic coming from the rear, nor did it have any warning light or noise on outside of vehicle to warn cyclists that door is about to open. Sent from my BlackBerry® by Boost Mobile

  • Jim, two comments, viz:
    [1] Perhaps we should all start to use the all-encompassing description of “road safety” (even in preference to highway safety, because all highways are roads whereas not all roads are highways…. at least to my English mind!);
    [2] I would suggest that what you refer to as “Lambo’ doors” would *not* add to overall safety, (a) because they would have the propensity to hit a cyclist across the chest, throat or face as they were opening — which is logically the most dangerous time — and (b) because Lambo’ doors can cause serious problems in terms of trapping people inside the vehicle in the unlikely but possible scenario of a rollover crash.  (Certainly, early Countachs had explosive bolts fitted to the door hinges in order to try to blow the doors off in such a scenario.)

    Eddie Wren
    President & Chief Instructor
    Advanced Drivers of America

  • Joe R.

    @6a5670fd98f19ab6fef879e5c26f89ce:disqus If the doors hinged at the rear instead of the front that would avoid the problem you mentioned. So would sliding doors of the type used on some minivans. And both avoid the “door ding” problem common in parking lots. The way most car doors open is the dumbest, most dangerous way possible but it’s also the cheapest to manufacture. A door should never swing into possibly moving traffic. And while we’re at it, cars should have curb detectors so the door on the street side *can’t* physically be opened at all. I never understood why people can’t just exit their cars on the sidewalk side, avoiding a lot of potential issues in the process. If I remember correctly, there actually used to be a law to that effect in NYC.

  • Joe, I think we are maybe getting ourselves too focussed on just this this one, albeit serious issue of “dooring” cyclists, but:
    >> A door that hinged at the rear rather than the front could easily deflect a bicycle leftwards, towards oncoming traffic, which would be just a different type of serious danger;
    >> Sliding doors could not be used for the front doors of four-door vehicles (because they would prevent the rear doors from opening);
    >> Curb detectors which create a situation where “the door on the street side *can’t* physically be opened at all” could, under certain circumstances, prevent the left-hand doors being opened following a crash, and that is surely undesirable.
    >> And, perhaps regrettably, there are many cars out there now in which the design would make it difficult or even impossible for a driver to slide over to the right-hand seat and exit directly to the curb/kerb, so I don’t think we’ll see that law around too much in the future.

  • Joe R.

    @6a5670fd98f19ab6fef879e5c26f89ce:disqus The issue isn’t just dooring cyclists. It’s the fact that current car door designs are, for lack of a better word, retarded. A Lambo type door which hinges at the rear couldn’t hit a cyclist at all. As for sliding doors, on a four-door vehicle the front doors slide forwards, the rear doors slide to the rear, all four doors can be opened at once. And I’ve seen other novel door designs which nicely avoid the problem of doors swinging out, including one which slides under the car. Remember this isn’t an issue just because cyclists get doored. Car doors ding cars in parking lots. And we need a lot more space for parking simply because car doors swing out. Yes, it might make vehicles cost more to change door designs, but it will make ingress and egress much easier, and also save lives.

    As for drivers not being able to slide over, that’s purely a design problem which is easily fixed by using bench seats or just eliminating the center console (or perhaps having a center console which hinges up out of the way). And curb detectors or other interlocks to prevent exiting on the street side wouldn’t be needed with door designs which didn’t open out. It’s an either/or thing-either make the doors so they don’t swing out, or prevent them from being opened on the traffic side.

    In the final analysis, the problem is we’ve just accepted a very dangerous design here because other designs may cost more. It’s really surprising the issue has never came up for serious discussion among legislators. Of course, the automakers will hem and haw and say how it won’t be cost effective, etc. And then some foreign car company will put in safer doors while keeping the price the same, and the feature will become standard on all cars in short order. That’s always how it seems to work. The US auto industry is probably one of the most resistant industries ever when it comes to changes.

  • Actually, lawyer Jim, I didn’t have time to look at the link.  I’m not a fan of “Lambo” doors. 

    I’m a fan of sliding doors where possible (on the Taxi of Tomorrow” in particular) , and where not, a chirp and an LED pulse from the side of the car that’s about to open, triggered by the unbuckling of the seatbelt or the opening of the door latch.  That would give most cyclists a chance to maneuver out of the way.  Our firm is focusing simple fixes in our products liability litigation.

  • Joe R.

    Here’s the door which slides under the car:

  • Joe R:  I agree with you entirely about the reprehensible acceptance of “very dangerous [designs just] because other designs may cost more.”

    Simple issues such as having indicator/flasher lights yellow/amber rather than having all of the rear lights red (and even “stealing” one of the brake lights to act as the relevant flasher when signalling and braking at the same time) can make a significant difference when — for example – there are a lot of vehicles and lots of rear/brake lights on wet winter mornings in half light at dawn or dusk.  Yellow indicator lights stand out far, far better against the sea of red lights and they are the European/Asian norm.
    Similarly with “anti-pinch” mechanisms on electrically-powered windows….  I don’t accept for a minute that redesigning the switch mechanisms is as safe as the Europen/Asian norm of having proper anti-pinch devices fitted in order to prevent the accidental crushing/killing of small children who — albeit unwisely — have been left to wait or play in a static car.

    These are, of course, just two examples.

    Eddie Wren
    President & Chief Instructor
    Advanced Drivers of America

  • Albert

    I hear that Toyota is now recommending that, until the time comes when all automobiles are equipped with similar “pop-up” hoods to protect the heads of vulnerable pedestrians, pedestrians should be strongly urged, and perhaps required, to wear protective headgear (“pedestrian helmets”) whenever walking, standing or wheelchair-confined on public thoroughfares—including that other province of motor vehicles, the sidewalk.

  • York car accident lawyer

    Thank you for your wonderful post. My dad was in a terrible accident when i was a teenager, and the lawyer he had fighting his case got my dad a large settlement that helped pay all of his hospital bills, get his Harley repaired, and enough money to take of our family while he recovered.
    York car accident lawyer


Safety City: Where Cars Rule!

As part of our back to school coverage, and in light of news from the past week, we thought it would be a good time to report on programs aimed at keeping kids safe on city streets. In addition to its ever-so-slowly evolving Safe Routes to School effort (three years in, improvements are soon expected […]

What If Traffic Engineers Were Held to Safety Standards Like Carmakers?

It’s been a rough few days for auto makers. News broke last week that Volkswagen will be fined because the carmaker manipulated the data from its diesel vehicles to make emissions look lower, deceiving U.S. environmental regulators. And on Thursday, General Motors reached a $900 million settlement with the Justice Department for covering up a defect in its ignition switches that claimed the lives of at […]