As was widely reported yesterday (e.g., USA Today, Bloomberg, LA Times), the National Highway Traffic Safety Administration (NHTSA) sent Chrysler a letter earlier this week asking it to recall the 1993-2004 Jeep Grand Cherokee and the 2002-2007 Jeep Liberty because they “performed poorly when compared to all but one of the 1993-2007 peer vehicles, particularly in terms of fatalities, fires without fatalities, and fuel leaks in rear end impacts and crashes.” Specifically, the NHTSA’s Office of Defects Investigation said:

In our tentative view, there is a performance defect and a design defect.

The performance defect is that the fuel tanks installed on these vehicles are subject to failure when the vehicles are struck from the rear. Such failure can result in fuel leakage, which in the presence of external ignition sources, can result in fire.

The design defect is the placement of the fuel tanks in the position behind the axle and how they were positioned, including their height above the roadway.

(Spaces added for clarity.) The NHTSA notes that, because of the defects, passengers “have burned to death in rear impact crashes, there have been fires (without fatalities) in these vehicles from rear impact crashes that have, or could have, led to deaths and injuries.” Compared to similar SUVs, the Grand Cherokee and the Liberty had roughly twice as many fatalities per million registered vehicle years (MRVY), a standard measure for vehicle safety over time. When it came to non-fatal fires, the Grand Cherokee was almost ten times as likely to be involved in a fire than similar vehicles, and the Liberty was nearly sixty times as likely.

In the face of that evidence, Chrysler said “no, we won’t recall it.” They put out their own paper claiming “NHTSA used an incomplete and unrepresentative group of comparison vehicles” and arguing that the fatal crashes weren’t representative because they all involved unusually high speed crashes. They also complained that the NHTSA hadn’t recalled other vehicles with higher MRVY rates of fatal rear-impact crashes with fire.

There’s a lot to learn from this battle.
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Once you’ve been a trial lawyer for long enough, there are some consumer products you just don’t look at the same anymore, because you’ve heard about them too many times from other trial lawyers or because you’ve sat across a conference table from someone telling you about the worst thing that ever happened to their family. ATVs cause a death or two every day. Gas cans without a flame arrestor or a spill-proof lid severely burn a child under six years old every day or two. Trampolines send 275 kids and teenagers to the emergency room with serious injuries every day.

So it goes with tire failures, which cause a death or two a day, and 15-passenger vans, which have a fatal crash or two every week. Tire blowouts and tread separation are so common, and passenger vans so prone to rollovers, that, when I saw the main characters in Inception get into a Ford E-Series, I instinctively thought, “they’re going to roll it.” (Sure enough, they did, though in fairness to the van, they were being rammed.)

Last week, the National Highway Traffic Safety Administration (NHTSA) sent out a well-meaning press release warning “colleges, church groups, and other users of 15-passenger vans” to take additional precautions, because:

Recognizing that 15-passenger vans are particularly sensitive to loading, the agency warns users never to overload these vehicles under any circumstances. NHTSA research shows overloading 15-passenger vans both increases rollover risk and makes the vehicle more unstable in any handling maneuvers.

Tire pressure can vary on front and back tires that are used for 15-passenger vans. This is why the agency urges vehicle users to make certain the vans have appropriately-sized and load rated tires that are properly inflated before every trip. Taking into account the fact that tires degrade over time, NHTSA recommends that spare tires not be used as replacements for worn tires. In fact, many tire manufacturers recommend that tires older than 10 years not be used at all.

It’s those last two sentences that drive trial lawyers like me bonkers. The NHTSA knows that’s a grossly inadequate warning and knows most consumers have no idea about the real danger of tire failure or how to prevent it. Old tires and their propensity towards tread separation and blowout are a simple scientific fact, but the $30 billion tire industry, the NHTSA, and some courts have all resisted accepting it for years.

Nudged forward by the Bridgestone / Ford Explorer tragedies, the NHTSA in August 2007 finally published its report on tire aging and accidents, but frustratingly concluded only that “NHTSA’s research supports the conclusion that the age of a tire, along with factors such as average air temperature and inflation, plays some role in the likelihood of its failure,” without making any real conclusions. They’ve initiated a follow-up study.

The car manufacturers, though, have long since distanced themselves from the idea that tires can last forever, or that the only time that matters is “time in service.” The ten year expiration date referenced by the NHTSA is what the tire manufacturers begrudgingly admit to, but the real figure from the car manufacturers is six years. Ford, Chrysler, Nissan, BMW, Mercedes-Benz, Volkswagen and Toyota all say six years. I don’t know of any car manufacturer willing to recommend a longer date.

Why not? Because they know tires after six years, particularly in hot climates, will oxidize and break down, so that the glue holding the tire together starts to degrade, making tread separation far more likely. Car companies may or may not make safety job #1, but they sure do respond to lawsuits, and the more times they get hit with multi-million dollar verdicts for knowingly having defective tires on their vehicles, the more likely they are to do something about it.

Yet, apparently there haven’t been enough lawsuits, because there are still tens of thousands of expired and dangerous tires out there. As Rich Newsome noted while discussing a Yokohama recall, the danger is a matter of high-school chemistry: 
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[Update II, April 30, 2012: As some media outlets have reported, our law firm now represents the Tezsla family. The below post was written and published before we were retained and should not be considered the family’s or our law firm’s official statement on the case.]

[Update, February 24, 2012: The NTSB confirmed several facts this morning, including the school bus driver’s statements that his line of sight was obstructed and so he inched forward at the intersection and that he never saw the dump truck. The investigators also said the dump truck was overloaded past its weight limit, which, as discussed below, would factor into its ability to stop. Obviously, overloading a truck is itself negligent, and it subjects the trucking company to further liability.]

Readers of this blog anywhere near New Jersey undoubtedly know the story; for readers elsewhere, here’s NBC Philadelphia’s coverage. Thursday morning, a dump truck hit a elementary school bus at the intersection of Bordentown-Chesterfield Road and Old York in Chesterfield, NJ, killing 11-year-old Isabelle Tezsla, seriously injuring two other students including one of her triplet sisters, and leaving 17 more students with minor injuries.

I have written about some of the unique issues that arise in school bus accidents before — an issue that’s often on my mind now since my four-year-old twins rode a yellow school bus for the first time last week (and seemed to enjoy the bus ride more than the field trip destination) — but I didn’t intend on writing about this accident until I saw that the National Transportation Safety Board has already begun investigating the accident, with a focus on the seat belts in the school bus. I’m glad to hear there will be more investigation into the use of seat belts in schools buses — as discussed below, it’s a complicated issue that goes beyond a simple trade-off of cost versus safety — but I don’t want the two biggest factors that may have caused the crash, dangerous road design and driver error, to go unnoticed.

In general, there are five major contributing factors in fatal automobile accidents: dangerous road conditions, dangerous road design, driver error, vehicle malfunction, and vehicle crashworthiness.

From what I’ve read so far, the road conditions didn’t seem to be a factor. There was light rain, but nothing that substantially impaired visibility or traction. As far as I know, there’s no indication of a spill on the roads or a pothole or the like. Similarly, I haven’t seen any discussion of a vehicle malfunction, such as the brakes on the dump truck failing, the tires on either being too worn down, or the like.

My suspicion is that the road design was likely a cause of this accident. The intersection of Bordentown-Chesterfield Road (County Route 528) and Old York Road (County Road 660), which can be seen on Google Maps, is undeniably unsafe. There’s no signal or stop light, and only one road, Old York, has to stop. It’s not necessarily a problem when only one road stops; at least where drivers aren’t distracted, we assume that drivers on Old York will obey the stop sign then look both ways before crossing, and that drivers on Bordentown-Chesterfield Road will slow down if they see someone cross in front of them.

The problem is visibility.


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When I first start working as a personal injury lawyer, I didn’t grasp how most “dram shop” lawsuits worked in practice. Most everyone agrees that, if a bar keeps serving a customer alcohol until they’re intoxicated, and the customer gets in a car accident and injures someone, then that other person should be able to sue both the bar customer and the bar. But what about the drunk driver? Why would a jury believe that the bar, and not the drunk driver, is responsible?

I thought about the answer as I read three separate stories of unsympathetic plaintiffs who played a role in their own injures, two at Walter Olson’s Overlawyered and one at Daniel Cummins’ Tort Talk.
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From a safety standpoint, school buses are like commercial airlines. Mile-for-mile, they’re one of the safest modes of transportation; as the National Highway Transportation Safety Administration noted a decade ago while reviewing whether or not to require seat belts in school buses (more about crashworthiness here), the fatality rate for school buses is 0.2 fatalities for every 100 million vehicle miles traveled as compared to 1.5 fatalities for cars.

Like with commercial airliners, though, if a school bus accident does occur, then it’s likely to cause a lot of damage, and the accident is likely the result of colossal negligence. Current NHTSA data shows there are on average 142 school transportation-related fatal crashes every year — nearly three deaths a week — most of them occupants of other vehicles that were hit by buses or vans, a fifth of them being bicyclists or pedestrians, and just under a tenth of them being occupants of the school transportation vehicle. In many ways that’s not surprising: it’s well known that passengers in heavier vehicles are more likely to survive multi-vehicle crashes, and school buses are heavier than most of the vehicles with which they’re likely to collide.

One of the more shocking statistics revolves around school transportation vehicles hitting school students:

On average, 14 school-age pedestrians are killed by school transportation vehicles (school buses and non-school bus vehicles used as school buses) each year, and 3 are killed by other vehicles involved in school bus-related crashes.

More school-age pedestrians have been killed between the hours of 3 p.m. and 4 p.m. than any other time of day.

It’s not hard to see why most accidents happen then: everyone’s tired and has let their guard down. School bus drivers typically report to work before 7 a.m., work until at least 10 a.m., then either work at the school (as a janitor, mechanic, or teaching assistant), do shuttle routes, or take a short break until they return again around 2 p.m. to take the kids home. By 3 p.m., they’re tired, ready to finish the day, and not nearly as alert.

Which is how Ashley Zauflik had her pelvis fractured and lost a leg. As the National Transportation Safety Board summarized the accident:

On Friday January 12, 2007 at approximately 2:30 p.m. EST a 1995 Thomas, 78 passenger school bus was one of several school buses parked side by side in the parking lot of the Pennsbury High School East Campus. After loading 10 students, the 54-year old driver placed the school bus in gear and released the parking brake, when he reported that the school bus suddenly accelerated and he was unable to stop the school bus. The bus traveled approximately 23 feet when the right front wheel of the bus climbed a 4-inch high curb onto the sidewalk in front of the school. The bus continued to travel approximately 25 feet on the sidewalk, striking 18 students on the sidewalk (pedestrians).

The driver wasn’t as familiar with that type of Thomas school bus, and so committed a classic driver error by stepping on the accelerator rather than the brake. He panicked when the bus jumped forward, causing him to mistakenly press even harder on the accelerator.

The case should be clear-cut in terms of automobile liability law. It is plain, clear, unequivocal negligence for a school bus driver parked at a school to hit the gas instead of the brake when preparing to begin his run. We call it “pedal misapplication.”
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It’s a common occurrence: an employee is out on the road as a driver, passenger, or pedestrian as part of their job when they are hit by a car. It’s particularly common for municipal employees like police officers and for delivery drivers and highway workers because they are, of course, out on the road and in danger a lot more than the rest of us.

The next legal step is routine: the injured employee files a claim for workers’ compensation, which will cover some medical expenses and some fraction of their salary, and then files suit against the driver that hit them. The problem, though, is that the Pennsylvania minimum insurance coverage is a mere $15,000 per injured person, so workers’ compensation plus the tortfeasors’ insurance policy limits usually isn’t much. It’s often less than the simple out-of-pocket medical expenses and lost wages, not to mention any sort of pain and suffering or future health care.

That’s where things get complicated. Although Pennsylvania doesn’t require uninsured motorist or underinsured motorist coverage, every employer-sponsored plan I’ve seen includes it. In theory, then, the employee can claim their UM/UIM coverage as well once they’ve exhausted the tortfeasor policy.

And that’s where everyone hits a snag: because the insurance company providing the workers’ compensation is typically the exact same company providing the UM/UIM coverage, the insurers often put into a policy an exclusion that does not apply UM or UIM coverage to any claim also eligible for workers’ compensation benefits. Is that legal?

Let’s pause for an aside: Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL), which replaced Pennsylvania’s prior No-Fault Act, has consumed our courts, particularly our Supreme Court, for a generation now. The Pennsylvania Supreme Court has decided dozens of MVFRL cases over the past twenty years. In my humble estimation, it is the single most-interpreted law in Pennsylvania, which makes sense given how we have about 350 car crashes a day, four of which, on average, result in a fatality.

Back on track, last week the Pennsylvania Supreme Court decided Heller v. Pennsylvania League of Cities, firmly answer the “is that legal?” question with “no”:

We granted review to determine whether it is a violation of public policy to exclude from underinsured motorist (“UIM”) coverage a claim by an individual eligible for workers’ compensation benefits. For the following reasons, we conclude that a workers’ compensation exclusion in an employer-sponsored insurance policy violates public policy and is, therefore, unenforceable.

The court went into a number of reasons why the exclusion was void, but the biggest reason was a simple practical review of the reality of employer-sponsored insurance coverage. If the insurance applied only when an individual was injured in the scope of their employment, yet wasn’t available when workers’ compensation applied, then when, exactly, could employees use the UIM coverage paid for by their employers?
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Big news across the internet yesterday after “Jackass” star Ryan Dunn and a passenger died in an early-morning one-car crash out near West Goshen, Pennsylvania:

Dunn, 34, of West Chester, was reportedly driving his 2007 Porsche at 2:38 a.m. on the Route 322 bypass westbound in the area of Route 100 when he went off the road, according to statement issued Monday morning by West Goshen Township police.

Police said that upon arrival they found the car off the road in the woods engulfed in flames. Scorch marks were still visible at the scene just before noon on Monday, as well as a mangled guardrail and splintered trees where the car apparently left the road.

About two hours before the crash a photo was posted on Dunn’s twitter page, depicting Dunn and two other men apparently drinking.

Jalopnik has a little more about the car and the circumstances. The passenger has been identified as Zac Hartwell. Roger Ebert may have summed up the thoughts of many, but let’s not forget that Dunn and his friends weren’t just drinking, they were paying customers at a bar. Pennsylvania’s Dram Shop Act, 47 P.S. § 4-493, makes it unlawful:

[f]or any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any minor…

As is well-settled law, proving a drunk driving lawsuit in Pennsylvania is a two-step process: “A violation of this statute is deemed negligence per se, and the defendant will be held liable if the violation is the proximate cause of the injuries. Thus, in order for [injured plaintiffs] to recover, they must prove two things: (1) that an employee or agent of Appellee served the decedent alcoholic beverages at a time when he was visibly intoxicated; and (2) that this violation of the statute proximately caused his injuries and ultimate death.” Fandozzi v. Kelly Hotel, Inc., 711 A. 2d 524 (Pa. Sup. Ct. 1998).

The photo on Twitter of Dunn and his friends doesn’t necessarily mean Dunn and his friends were “visibly intoxicated,” but it certainly doesn’t rule it out, either. An employee of the bar he was at, Barnaby’s, claims “he didn’t seem intoxicated,” but that’s no surprise — the alternative would be to admit illegally serving alcohol to a visibly intoxicated individual and thus admit liability.

[UPDATE: Since this post was written, Dunn’s toxicology report has been released, showing a blood-alcohol level of 0.196, more than double the legal limit of 0.08. Although there’s no BAC at which a person is, as a matter of law, visibly intoxicated, it seems more than a little suspect that Dunn “left hop, skip, jumping” and then had a BAC of 0.196 a half-hour later. He would likely, at a minimum, slur his speech and have lose his balance at 0.196, and would more likely be stumbling and near the point of blackout. The BAC level might be admissible at trial as evidence (Pennsylvania law isn’t clear on that), but even if not, there’s other evidence of intoxication to prove liability against the bar. Finally, although it appears the bar won’t face criminal charges, the absence of a criminal conviction doesn’t have any effect on a later civil lawsuit.]

The accident was just after 2am, when the liquor licensees close. Let’s assume for the moment that Dunn was “visibly intoxicated” and thus improperly served more alcohol or that, at a minimum, he was too impaired to drive. What would that mean for his Hartwell who, the bar’s insurance company will say, “willingly” got in a vehicle with a drunk individual known for his risk-taking behavior?


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Should drunk drivers be allowed to profit from the accidents they cause? If you frame the question that way, the answer is obvious: no. That’s how many people online seem to have understood a case recently decided by the New Jersey Supreme Court, leaving them bewildered by the court’s opinion allowing drunk drivers to sue

[Update: Unfortunately, the “Fair Share Act” passed. Stuart Carpey has some details.]

It’s that time of year again. As The Legal Intelligencer and other sources report, Pennsylvania’s joint and several liability laws — which ensure that the economic damage caused by negligent companies falls on insurers and other defendants proven to have