The Consumer Expectation Test: Fostering UnreasonableExpectations of Safety

The hypothesis that consumers have unreasonable expectations for new safety features is supported by an examination of the development and implementation of antilock brakes. When automakers first developed antilock braking systems, those related to the auto industry had very high expectations as to the new and additional safety benefits this technology would provide to overall vehicular safety, with a significant reduction in accidents on wet and slippery roads. Since that time, multiple studies show that the effects on vehicle safety are minor to nonexistent. See C.J. Kahane, Preliminary Evaluation of the Effectiveness of Antilock Brake Systems for Passenger Cars, DOT HS-808-206 (1994); L. Evans, Antilock Brake Systems and Risk of Different Types of Crashes in Traffic, ESV Conf. paper no. 98-S2-O-12 (1998); A. Kullgren et al., The Effectiveness of ABS in Real Life Crashes, ESV Conf. paper no. 94-S4-O-07 (1994). Studies comparing vehicles equipped with antilock brakes with vehicles without this equipment show that while vehicles equipped with antilock brakes tested well, there has been less than a 5% reduction in crashes with injuries. Id.; See also Highway Loss Data Institute, Collision and Property Damage Liability Losses of Passenger Cars with and without Antilock Brakes, Insurance Special Report A-41 (1994); Highway Loss Data Institute, Three Years' on-the-Road Experience with Antilock Brakes: An Update, Insurance Special Report A-47 (1995). Other studies show no difference in the overall fatal crash involvement of cars with and without antilock brakes. C.M. Farmer et al., Fatal Crashes of Passenger Vehicles Before and After Adding Antilock Braking Systems, 29 Accident Analysis and Prevention 745 (1997); C.M. Farmer, New Evidence Concerning Fatal Crashes of Passenger Vehicles Before and After Adding Antilock Braking Systems, 33 Accident Analysis and Prevention 361 (2001).

This is not to say that antilock brakes are not beneficial. Antilock brakes were designed to decrease stopping distance and increase the control and stability of a vehicle during hard braking. To that end, they serve their purpose quite well. Nevertheless, the evidence suggests that antilock brakes have not met the unrealistic hype (and expectations) of the same governmental and other groups making broad claims about the potential safety benefits of ESC. This effect may be explained, in part, by consumers altering their driving habits and offsetting the full benefit of safety features. Clifford Winston, An Exploration of the Offset Hypothesis Using Disaggregate Data: The Case of Airbags and Antilock Brakes, 32 J. Risk Uncertainty 83 (2006).

Conclusion

Today's consumers have far greater expectations for automakers to implement new safety features much more quickly and efficiently than their predecessors, yet automakers should bear little responsibility for creating those expectations. While automakers are criticized for not moving more quickly to equip all vehicles with ESC, they had a legitimate concern about overwhelming liability for harm caused by defective or inadequately designed ESC systems based on consumers' inflated and misguided expectations of how the technology should perform. Rather than continuing to prevent the timely introduction of new safety features because consumers have unreasonable expectations, courts should abandon the use of consumer expectations as a standard of or a factor in assessing liability in design defect cases, and open the dam to future safety-related technological breakthroughs that will benefit the consuming public as a whole.

John D. Sear is a partner in the Minneapolis office of Bowman and Brooke LLP, a national firm of trial lawyers who defend manufacturers in product liability, toxic tort, property damage, and warranty cases. He also defends manufacturers of institutional chemical products, and manufacturers of recreational vehicles and recreational vehicle and truck components and systems in consumer and commercial litigation.

Part Two of a Two-Part Series

Part One of this series discussed the impact of consumer expectations with respect to electronic stability control systems in the auto industry. This month's installment addresses unreasonable expectations with respect to antilock braking systems.

Those Who Forget the Past Are Doomed to Repeat It

The hypothesis that consumers have unreasonable expectations for new safety features is supported by an examination of the development and implementation of antilock brakes. When automakers first developed antilock braking systems, those related to the auto industry had very high expectations as to the new and additional safety benefits this technology would provide to overall vehicular safety, with a significant reduction in accidents on wet and slippery roads. Since that time, multiple studies show that the effects on vehicle safety are minor to nonexistent. See C.J. Kahane, Preliminary Evaluation of the Effectiveness of Antilock Brake Systems for Passenger Cars, DOT HS-808-206 (1994); L. Evans, Antilock Brake Systems and Risk of Different Types of Crashes in Traffic, ESV Conf. paper no. 98-S2-O-12 (1998); A. Kullgren et al., The Effectiveness of ABS in Real Life Crashes, ESV Conf. paper no. 94-S4-O-07 (1994). Studies comparing vehicles equipped with antilock brakes with vehicles without this equipment show that while vehicles equipped with antilock brakes tested well, there has been less than a 5% reduction in crashes with injuries. Id.; See also Highway Loss Data Institute, Collision and Property Damage Liability Losses of Passenger Cars with and without Antilock Brakes, Insurance Special Report A-41 (1994); Highway Loss Data Institute, Three Years' on-the-Road Experience with Antilock Brakes: An Update, Insurance Special Report A-47 (1995). Other studies show no difference in the overall fatal crash involvement of cars with and without antilock brakes. C.M. Farmer et al., Fatal Crashes of Passenger Vehicles Before and After Adding Antilock Braking Systems, 29 Accident Analysis and Prevention 745 (1997); C.M. Farmer, New Evidence Concerning Fatal Crashes of Passenger Vehicles Before and After Adding Antilock Braking Systems, 33 Accident Analysis and Prevention 361 (2001).

This is not to say that antilock brakes are not beneficial. Antilock brakes were designed to decrease stopping distance and increase the control and stability of a vehicle during hard braking. To that end, they serve their purpose quite well. Nevertheless, the evidence suggests that antilock brakes have not met the unrealistic hype (and expectations) of the same governmental and other groups making broad claims about the potential safety benefits of ESC. This effect may be explained, in part, by consumers altering their driving habits and offsetting the full benefit of safety features. Clifford Winston, An Exploration of the Offset Hypothesis Using Disaggregate Data: The Case of Airbags and Antilock Brakes, 32 J. Risk Uncertainty 83 (2006).

Conclusion

Today's consumers have far greater expectations for automakers to implement new safety features much more quickly and efficiently than their predecessors, yet automakers should bear little responsibility for creating those expectations. While automakers are criticized for not moving more quickly to equip all vehicles with ESC, they had a legitimate concern about overwhelming liability for harm caused by defective or inadequately designed ESC systems based on consumers' inflated and misguided expectations of how the technology should perform. Rather than continuing to prevent the timely introduction of new safety features because consumers have unreasonable expectations, courts should abandon the use of consumer expectations as a standard of or a factor in assessing liability in design defect cases, and open the dam to future safety-related technological breakthroughs that will benefit the consuming public as a whole.

John D. Sear is a partner in the Minneapolis office of Bowman and Brooke LLP, a national firm of trial lawyers who defend manufacturers in product liability, toxic tort, property damage, and warranty cases. He also defends manufacturers of institutional chemical products, and manufacturers of recreational vehicles and recreational vehicle and truck components and systems in consumer and commercial litigation.