The Impact of New Vehicle Technology

Part One of a Two-Part Article

Part One of this article discussed the types of vehicle-related accidents to which children fall prey and described some ways technology has developed to avoid such accidents. The conclusion addresses the role of parents and caregivers in vehicle-related accidents and the new type of litigation spawned by new technology.

Is There an End to Parental Responsibility?

With the advancements in motor vehicle technology, parents and activists continue to look to the automotive industry to protect children from injury or death resulting from motor vehicles. It is tragic any time a child is severely or fatally injured in an accident involving a motor vehicle, and cases in which the injury or death could have been prevented are especially tragic. When a child is injured as a result of a vehicle backover or hyperthermia, who is to blame? While the automotive industry has taken extensive measures to develop systems that, in fact, have the potential to protect children, vehicle safety technology cannot be a substitute for a parent or caregiver.

Working in Concert

As with all technology, automotive technology is not without limitation. “Cars are not meant to be, nor can they in reality be, childproof, and children should not be left alone in a vehicle ' not even for a minute.” (www.kidsincars.org, citing Kids in Cars Executive Director Terrill Struttmann. Struttmann and his wife, Michele, founded Kids in Cars in 1999 after their two-year-old son, Harrison, died as a result of being struck by a van set into motion by two toddlers left unattended in the running vehicle.) Parents need to be proactive in protecting their children from danger, particularly when the children do not appreciate the danger and potential consequences of their actions. Parents and caregivers, not the vehicle manufacturer, have the opportunity to prevent injuries to children from backovers and hypothermia by taking simple steps to ensure their children are not left sitting or playing behind a vehicle before putting the vehicle in reverse or left unattended in a vehicle. In this fast-paced world, parents and caregivers are hurried, over-extended and multi-tasking, and not always completely focused on the safety of their children, but they must be. It takes seconds to walk around the parameter of a vehicle to make sure that no children are left unattended and in harm's way.

With respect to hyperthermia, many deaths can be prevented by making sure that vehicle doors are kept locked when the vehicle is not in use. There is simply no substitute for close supervision of children in and around motor vehicles.

Moreover, there are many factors beyond the control of the automotive manufactures that impact the success of new vehicle technology. In 2006, NHTSA tested several sensor and visual-based systems to evaluate their performance and potential effectiveness in mitigating backover incidents. (See Vehicle Backover Avoidance Technology Study, November 2006, Report to Congress, National Highway Traffic Safety Administration.) This testing revealed that backover prevention technologies offered by vehicle manufacturers marketed as “parking aids” were designed to assist attentive drivers in performing low speed parking maneuvers. The testing also showed that the performance of sensor-based parking aids in detecting child pedestrians behind the vehicle was “typically poor, sporadic and limited in range.” The detection ranges exhibited by the systems tested were not sufficient to prevent collisions with pedestrians or other objects. Of the technologies tested for their potential to reduce backover incidents, the camera-based systems had the greatest potential to provide drivers with reliable assistance in identifying people in the path of the vehicle when backing up.

However, the NHTSA warns about relying on these results, or other published test results, to promote such systems as an effective means to address the backover crash risk. “In order to reduce the number of backover incidents, it is very important to obtain a better understanding of the environmental factors that limit the camera's effectiveness and the limits of driver performance using such systems. Particular concerns include the variance of systems between vehicles and situations, including sun glare, rain, fog or other conditions that can significantly reduce the driver's view of objects in the dangerous zone behind the vehicle.

The NHTSA noted that in addition to systems having to detect objects behind the vehicle, effective systems must also elicit appropriate driver responses. Driver attention, vehicle speed, and reaction time played significant roles in effectiveness of the device; not just whether the driver noticed the warning, but how fast the vehicle is reversing, reaction time, and type of reaction is important in the effectiveness of these systems. The NHTSA concluded that, “without further research on behavior of drivers using backing aids and a better understanding of crash scenarios, an accurate estimate of the likely effectiveness for different countermeasures is extremely difficult.” Further, “the effectiveness of parking aid
systems for preventing backover crashes is considered to be low.”

Typically, when a backover occurs, the driver of the vehicle is at fault. It is not unusual or unexpected under these circumstances for a parent to shift blame elsewhere, such as in the direction of the automotive manufacturers. However, parents and caregivers, who are charged with the responsibility and who have the constant ability to protect their charges, must maintain responsibility for the care and safety of their children. The same is true for hyperthermia-related injuries and deaths. The parent or caregiver who makes the decision to leave a child alone or unattended by a responsible person puts the child at risk. Such poor decision-making, which can lead to tragedy, has prompted advocacy groups around the country to call for legislation making it against the law to leave a child alone in a car, no matter what the temperature is outside.

Today, 11 states have laws that prohibit leaving a child unattended in a vehicle. Michigan is among 14 states that have proposed legislation making it a crime for a caregiver to leave a child under the age of 6 unattended in a vehicle for time that “poses an unreasonable risk of harm or injury.” A person in violation of this law is guilty of a misdemeanor, punishable by imprisonment or a fine, or both. If the violation results in serious physical harm or death to the unattended child, the person is guilty of a felony also punishable by imprisonment or a fine, or both.

Parents and caregivers must work in partnership with the automotive industry to protect children by properly using available safety equipment and technology and by educating themselves on child safety and injury prevention in and around motor vehicles.

New Technology Breeds New Litigation

New technology typically results in new litigation, and litigation theories involving backup sensors and cameras have already begun to surface. These claims range from the feasibility of installing such sensing systems to the design and performance of such technology. Ultimately, in such cases, jurors will be charged with the task of evaluating the responsibility and actions of the driver, parents, or caregivers against the design and performance of the vehicle's technology. While the technology can assist with keeping children safer in and around motor vehicles, it cannot take the place of an alert, watchful, focused caregiver.

Some Examples

One example of litigation arising from a backover incident involved the death of a two-year-old from Englewood, CO. A driver from a local trash company backed his Ford F-250 pickup truck over two-year-old Lynnea Zweigle. Lynnea died in her driveway of massive cranial cerebral injuries. Her parents sued the trash company claiming that a camera system should have been installed and seeking, in part, that the truck company install a rear video camera system on all of its trucks. The trash company agreed to install a rear video camera on the vehicle that was involved in the accident. Since the resolution of the case, the parents have called upon the automotive industry to install rear video cameras in commercial trucks, large vans, and SUVs to improve vehicle safety.

In another case involving a rear sensor system, the Fifth Circuit affirmed a defense verdict in a case in which plaintiffs alleged that a rear sensor system that was optional on the 2001 Expedition would have prevented the death of their three-year-old son and should have been standard equipment. The defendant manufacturer argued that the vehicle complied with the relevant safety standard governing the risk at issue, Federal Motor Vehicle Safety Standard (“FMVSS”), FMVSS 111, addressing rearview mirrors. On appeal, the court agreed that FMVSS 111 plainly covers the “rear blind spot” risk about which the plaintiffs were complaining.

While similar litigation is expected to grow as these new devices become more popular and more widely available and used, another anticipated trend involves children suing parents and caregivers for injuries sustained where the conduct and actions of a parent or caregiver played a significant role in the cause of the incident and resulting injuries. An example of this arose in the case of Harrison v. Harrison, in which the Minnesota Supreme Court permitted a child to bring an action against his parents for negligent installation of a child passenger restraint system.

Initially, a product liability action was filed on the child's behalf alleging defective design of the child passenger restraint system against the manufacturer of the restraint system. The case settled on the eve of trial. In a later, separate negligence action, the child sought recovery from his parents, alleging negligent installation and maintenance of his child passenger restraint system for failing to discover and remove a coin from the restraint system's buckle mechanism and failing to check that the restraint system's buckle was securely latched into the buckle. Ultimately, the child obtained $100,000 from his parents' insurance company as a result of the litigation.

Summary

Parents and caregivers charged with the responsibility of keeping children safe make decisions that impact their children's safety and well-being many times each and every day. While the automotive industry has dedicated vast amounts of money and research to developing vehicles and safety technology that will have a positive and meaningful impact on the safety of children in and around vehicles, the ultimate responsibility rests with the child's parents and caregivers who have the opportunity to keep a watchful eye and take action that is conducive to the ultimate goal of keeping children out of danger in and around motor vehicles.

Part One of a Two-Part Article

Part One of this article discussed the types of vehicle-related accidents to which children fall prey and described some ways technology has developed to avoid such accidents. The conclusion addresses the role of parents and caregivers in vehicle-related accidents and the new type of litigation spawned by new technology.

Is There an End to Parental Responsibility?

With the advancements in motor vehicle technology, parents and activists continue to look to the automotive industry to protect children from injury or death resulting from motor vehicles. It is tragic any time a child is severely or fatally injured in an accident involving a motor vehicle, and cases in which the injury or death could have been prevented are especially tragic. When a child is injured as a result of a vehicle backover or hyperthermia, who is to blame? While the automotive industry has taken extensive measures to develop systems that, in fact, have the potential to protect children, vehicle safety technology cannot be a substitute for a parent or caregiver.

Working in Concert

As with all technology, automotive technology is not without limitation. “Cars are not meant to be, nor can they in reality be, childproof, and children should not be left alone in a vehicle ' not even for a minute.” (www.kidsincars.org, citing Kids in Cars Executive Director Terrill Struttmann. Struttmann and his wife, Michele, founded Kids in Cars in 1999 after their two-year-old son, Harrison, died as a result of being struck by a van set into motion by two toddlers left unattended in the running vehicle.) Parents need to be proactive in protecting their children from danger, particularly when the children do not appreciate the danger and potential consequences of their actions. Parents and caregivers, not the vehicle manufacturer, have the opportunity to prevent injuries to children from backovers and hypothermia by taking simple steps to ensure their children are not left sitting or playing behind a vehicle before putting the vehicle in reverse or left unattended in a vehicle. In this fast-paced world, parents and caregivers are hurried, over-extended and multi-tasking, and not always completely focused on the safety of their children, but they must be. It takes seconds to walk around the parameter of a vehicle to make sure that no children are left unattended and in harm's way.

With respect to hyperthermia, many deaths can be prevented by making sure that vehicle doors are kept locked when the vehicle is not in use. There is simply no substitute for close supervision of children in and around motor vehicles.

Moreover, there are many factors beyond the control of the automotive manufactures that impact the success of new vehicle technology. In 2006, NHTSA tested several sensor and visual-based systems to evaluate their performance and potential effectiveness in mitigating backover incidents. (See Vehicle Backover Avoidance Technology Study, November 2006, Report to Congress, National Highway Traffic Safety Administration.) This testing revealed that backover prevention technologies offered by vehicle manufacturers marketed as “parking aids” were designed to assist attentive drivers in performing low speed parking maneuvers. The testing also showed that the performance of sensor-based parking aids in detecting child pedestrians behind the vehicle was “typically poor, sporadic and limited in range.” The detection ranges exhibited by the systems tested were not sufficient to prevent collisions with pedestrians or other objects. Of the technologies tested for their potential to reduce backover incidents, the camera-based systems had the greatest potential to provide drivers with reliable assistance in identifying people in the path of the vehicle when backing up.

However, the NHTSA warns about relying on these results, or other published test results, to promote such systems as an effective means to address the backover crash risk. “In order to reduce the number of backover incidents, it is very important to obtain a better understanding of the environmental factors that limit the camera's effectiveness and the limits of driver performance using such systems. Particular concerns include the variance of systems between vehicles and situations, including sun glare, rain, fog or other conditions that can significantly reduce the driver's view of objects in the dangerous zone behind the vehicle.

The NHTSA noted that in addition to systems having to detect objects behind the vehicle, effective systems must also elicit appropriate driver responses. Driver attention, vehicle speed, and reaction time played significant roles in effectiveness of the device; not just whether the driver noticed the warning, but how fast the vehicle is reversing, reaction time, and type of reaction is important in the effectiveness of these systems. The NHTSA concluded that, “without further research on behavior of drivers using backing aids and a better understanding of crash scenarios, an accurate estimate of the likely effectiveness for different countermeasures is extremely difficult.” Further, “the effectiveness of parking aid
systems for preventing backover crashes is considered to be low.”

Typically, when a backover occurs, the driver of the vehicle is at fault. It is not unusual or unexpected under these circumstances for a parent to shift blame elsewhere, such as in the direction of the automotive manufacturers. However, parents and caregivers, who are charged with the responsibility and who have the constant ability to protect their charges, must maintain responsibility for the care and safety of their children. The same is true for hyperthermia-related injuries and deaths. The parent or caregiver who makes the decision to leave a child alone or unattended by a responsible person puts the child at risk. Such poor decision-making, which can lead to tragedy, has prompted advocacy groups around the country to call for legislation making it against the law to leave a child alone in a car, no matter what the temperature is outside.

Today, 11 states have laws that prohibit leaving a child unattended in a vehicle. Michigan is among 14 states that have proposed legislation making it a crime for a caregiver to leave a child under the age of 6 unattended in a vehicle for time that “poses an unreasonable risk of harm or injury.” A person in violation of this law is guilty of a misdemeanor, punishable by imprisonment or a fine, or both. If the violation results in serious physical harm or death to the unattended child, the person is guilty of a felony also punishable by imprisonment or a fine, or both.

Parents and caregivers must work in partnership with the automotive industry to protect children by properly using available safety equipment and technology and by educating themselves on child safety and injury prevention in and around motor vehicles.

New Technology Breeds New Litigation

New technology typically results in new litigation, and litigation theories involving backup sensors and cameras have already begun to surface. These claims range from the feasibility of installing such sensing systems to the design and performance of such technology. Ultimately, in such cases, jurors will be charged with the task of evaluating the responsibility and actions of the driver, parents, or caregivers against the design and performance of the vehicle's technology. While the technology can assist with keeping children safer in and around motor vehicles, it cannot take the place of an alert, watchful, focused caregiver.

Some Examples

One example of litigation arising from a backover incident involved the death of a two-year-old from Englewood, CO. A driver from a local trash company backed his Ford F-250 pickup truck over two-year-old Lynnea Zweigle. Lynnea died in her driveway of massive cranial cerebral injuries. Her parents sued the trash company claiming that a camera system should have been installed and seeking, in part, that the truck company install a rear video camera system on all of its trucks. The trash company agreed to install a rear video camera on the vehicle that was involved in the accident. Since the resolution of the case, the parents have called upon the automotive industry to install rear video cameras in commercial trucks, large vans, and SUVs to improve vehicle safety.

In another case involving a rear sensor system, the Fifth Circuit affirmed a defense verdict in a case in which plaintiffs alleged that a rear sensor system that was optional on the 2001 Expedition would have prevented the death of their three-year-old son and should have been standard equipment. The defendant manufacturer argued that the vehicle complied with the relevant safety standard governing the risk at issue, Federal Motor Vehicle Safety Standard (“FMVSS”), FMVSS 111, addressing rearview mirrors. On appeal, the court agreed that FMVSS 111 plainly covers the “rear blind spot” risk about which the plaintiffs were complaining.

While similar litigation is expected to grow as these new devices become more popular and more widely available and used, another anticipated trend involves children suing parents and caregivers for injuries sustained where the conduct and actions of a parent or caregiver played a significant role in the cause of the incident and resulting injuries. An example of this arose in the case of Harrison v. Harrison, in which the Minnesota Supreme Court permitted a child to bring an action against his parents for negligent installation of a child passenger restraint system.

Initially, a product liability action was filed on the child's behalf alleging defective design of the child passenger restraint system against the manufacturer of the restraint system. The case settled on the eve of trial. In a later, separate negligence action, the child sought recovery from his parents, alleging negligent installation and maintenance of his child passenger restraint system for failing to discover and remove a coin from the restraint system's buckle mechanism and failing to check that the restraint system's buckle was securely latched into the buckle. Ultimately, the child obtained $100,000 from his parents' insurance company as a result of the litigation.

Summary

Parents and caregivers charged with the responsibility of keeping children safe make decisions that impact their children's safety and well-being many times each and every day. While the automotive industry has dedicated vast amounts of money and research to developing vehicles and safety technology that will have a positive and meaningful impact on the safety of children in and around vehicles, the ultimate responsibility rests with the child's parents and caregivers who have the opportunity to keep a watchful eye and take action that is conducive to the ultimate goal of keeping children out of danger in and around motor vehicles.