What To Do When the Air Bag Goes Off

I. INTRODUCTION
A. Scope of the Problem.

While well-designed air bags have unquestionably saved lives and reduced the severity of countless injuries, there have been 150-plus fatalities associated with air bag use in otherwise non-fatal crashes. The typical victims are belted small women and children, and unbelted occupants. The passenger side air bag is implicated in the greatest number of deaths and permanent injuries. See Appendix A, SAE Technical Paper 970492.

A well-designed air bag used in conjunction with a lap/shoulder seat belt will fully deploy and start deflating just as the deceleration forces pull the head and chest into the bag. Severe injuries and death can occur when the impact between the occupant and the deploying bag are out of sequence. Lawyers defending air bag cases always blame the victim for "being out of position" even though many warning labels say nothing about positioning.

II. DESIGN CONSIDERATIONS

The public is mostly unaware of the fact that air bags are not all the same. There are top loading passenger side air bags which deploy vertically, installed on the top of the dashboard. And there are mid-mounted bags, mounted where the glove compartment box was typically located. Top mounted bags tend to be safer when seat belts are utilized.

Air bags have different methods to enhance or restrict the gas flow into the bag. The rate of gas release into an air bag can be tailored depending on the severity of the collision which is a characteristic of the better designs. The lower the speed of the collision, the less need for fast inflation. Early generation air bags were very aggressive with dual inflators which could cause a 200-mile-an-hour collision when the front surface of the bag struck the occupant's head.

The air bag deployment is initiated by sensors which quantify the crash pulse deceleration forces. Most American cars deploy in frontal crashes equaling the severity of a crash into a wall at a speed of from 8 to 12 mph. Many experts have questioned the low deployment threshold as presenting a greater hazard of deployment injuries at an unnecessarily low Delta V, where the likelihood of occupant injury is relatively small. Newer generation vehicles such as Mercedes and BMW have side impact bags and in certain models the front impact bags will not deploy in crashes under 18 mph when the occupant is belted.

As noted above, not all air bags are alike. They differ in volume, deployment thresholds, aggressiveness, how they are mounted, and, very importantly, how they interact with the other components of the occupant restraint system. In that regard, some belts are pre-tensioned and others are not, resulting in differing interaction between the occupant and the deploying air bag. Also, seat track and seat heights differ and are adjustable. Determining the exact position of the seat in a given accident is a critical part of the investigation because of its importance in understanding the occupant kinematics during the deployment phase. Finally, steering columns differ and some are adjustable, an often critical but confounding factor in driver side air bag deployment cases.

Other considerations in air bag cases relate to the performance criteria set forth in the testing regulations promulgated by the National Highway Traffic Safety Administration. Essentially, the early tests used an unbelted 50th percentile dummy which had to achieve a certain head injury criteria (HIC) scale score to pass the test. The regulations have since changed. The point for your case has to do with whether or not the manufacturer did anything other than the minimal testing necessary to comply with NHTSA's performance standards, such as test for small occupants, children, a variety of seat locations, and other factors which may be unique to the specific case.

III. LIABILITY THEORIES
A. Types of Cases

There are three broad categories of air bag cases:

1. Failure to install air bags. See, e.g., Drattel v. Toyota (1998) WL 314236 (New York); contra, Harris v. Ford, 110 F.3d 1410 (1997);
2. Failure of air bags to deploy. See, e.g., Perry v. Mercedez-Benz, 957 F.2d 1257 (5th Cir. 1992);
3. Air bag deployment causing death or permanent injury in sub-lethal accidents. See e.g., Collazo-Santiajo v. Toyota, 957 F. Supp. 349 (D.P.R. 1997); Bresnahan v. Chrysler, 65 Cal. App. 4th 1149, 76 Cal. Rptr. 2d 804 (1998).

B. Deployment Injuries or Death

This presentation deals with the third scenario where an air bag deploys, causing permanent injury or death in sub-lethal accidents. In such cases, there are essentially three legal theories which form the basis for recovery.

1. Design defect
   The first is design defect. RCW 7.72.030(1)(a). Design defect cases comes in two categories: see, e.g., Falk v. Keene Corp., 113 Wn.2d 645, 728 P.2d 974 (1989).
2. • Feasible safer design
     The first requires proof of a feasible safer alternative design where the jury weighs the burden on the manufacturer to design out the feature that caused the harm with an alternative design that is practical and feasible, but which retains the usefulness of the product. RCW 7.72.030(a). This requires a presentation of a very technical case, involving electrical engineers and air bag designers.
   • Consumer expectations of safety
     The alternative design defect theory is whether or not the design is unsafe to an extent beyond that which would be contemplated by the ordinary consumer. RCW 7.72.030(3). The consumer expectations of safety theory of liability seems particularly appropriate for first generation air bags (roughly 1989 through 1996) which was during a time that consumer awareness of the hazard of air bag deployment was almost nonexistent. The consumer expectations liability theory was the winning theory upon which the plaintiff prevailed in Bresnahan v. Chrysler. See Appendix B.
3. Warnings
   The second liability theory relates to warnings, either warnings with the product commonly found on the visor and in the owner's manual (see, e.g., RCW 7.72.030(b) or, in the case of a particularly notorious design with lots of post-manufacturing notice of injuries to the manufacturer, negligent failure to warn of post-manufacturing knowledge of defect would be an appropriate legal theory. See, e.g., RCW 7.72.030(c). See Appendix C - Examples of warnings.
4. Manufacturing defect
   In a small number of cases, a manufacturing defect theory resulting in strict liability might apply where there is a deviation in bag volume, and hence velocity. RCW 7.72.030(2). The potential for this is greater among bag suppliers who hire cheap foreign labor to hand sew the air bags under circumstances where there is a great deal of variability from unit to unit.

III. UNIQUE CAUSATION PROBLEMS IN AIR BAG CASES

Air bag litigation involves a unique form of enhanced injury causation because the defective product is a safety device which is not deployed unless there has already been an accident. The seminal case of Larsen v. General Motors, 391 F.2d. 495 (1968), recognized that in enhanced injury cases, the defect which makes the vehicle uncrashworthy is a separate cause of the enhanced injury which has nothing to do with the accident itself inasmuch as the manufacturer has a duty to design to foreseeable crashes, which crashes occur "with or without the fault of the victim." Id. at 502. When safety devices are involved, the logic of enhanced injury causation becomes even clearer. There can be no bag deployment without an accident; hence, crash causation versus injury causation is treated totally separately. See, e.g., Couch v. Mine Safety Appliance Co., 107 Wn.2d 232, 242, 728 P.2d 585 (1986); Baumgardner v. American Motors Corp., 83 Wn.2d 751, 522 P.2d 829 (1974). There is further support for the notion that the cause of the accident is irrelevant for purposes of comparative fault on the basis that under Washington law, "fault" is only a defense if it caused the damages claimed in the action:

In an action based on fault, seeking to recovery damages for ... death to person ... any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant's contributory fault. RCW 4.22.050.

Pursuant to RCW 4.22.070, fault may only be apportioned to entities "which caused the claimant's damages." Hence, in an air bag case, even if the plaintiff caused the accident, the injury and damages caused by a defectively designed air bag may not be reduced by contributory fault because the damage arose from the faulty design after the crash occurs. Unfortunately, although there are many trial court opinions, there is no appellate opinion in Washington articulating this position. Supporting authority for eliminating contributory fault may be found in the following authorities:

• Reed v. Chrysler Corp., 494 N.W. 2d 224 (Iowa 1992)
• Andrews v. Harley-Davidson, 796 P.2d 1092 (Nevada 1990)
• Thomas Harris, "Enhanced Injury Theory: An Analytical Framework," 62 N.C. L. Rev. 643;
• Harris, "Washington's Unique Approach to Partial Tort Settlement," 28 Gonzaga L. Rev. 69, 138 (1985).

IV. CASE SELECTION CRITERIA

In addition to understanding the nature of the particular air bag, its threshold sensor, and other unique characteristics of the restraint system including the air bag, the seat, and the belt in the specific accident you are investigating, there are some general rules for case selection commonly agreed on by experts in the field.

A. Low Impact Speed

The Delta V in the accident should be 25 mph or less. This may seem like an arbitrary figure but in fact automobile manufacturers have developed friendly interiors which are designed to protect unbelted occupants at up to those speeds. Beyond that, the likely cause of the injury shifts from an implication of bag deployment to an implication of crash severity.

B. Restrained Occupant

Secondly, most experts agree that the plaintiff should have been belted. Although technically, the lack of a seat belt is not a defense in civil cases in the state of Washington (see, e.g., RCW 46.61.688(6)), as a practical matter, there is no way to understand and explain occupant kinematics to the jury without revealing whether the occupant was or was not belted. The air bag system is designed to be used in conjunction with seat belts, a concept readily understood by the jury. Indeed, all warnings now tell the occupant to "buckle up" to avoid deployment injuries. Hence, it is probably critically important to your case that the occupant be belted, save as to the cases involving infants and children and cases where the warnings are woefully inadequate and fail to explain the necessity of seat belt use.

C. Secure the Vehicle

Finally, it would seem impossible to successfully litigate a plaintiff's air bag case without the vehicle. Typically, each vehicle with an air bag system has an on-board computer which can be downloaded only by the manufacturer. The computer can include the following information: whether or not the occupants were belted; the Delta V of the collision; the duration of the intense deceleration phase of the crash; pre-impact braking; the speed of the vehicle; and other critical data. Without the vehicle, most manufacturers would claim that the failure to preserve evidence severely prejudices their defense.

Also, it is necessary to have the air bag to test with exemplar victims, to determine seat position and to actually visually inspect the air bag for telltale physical evidence such as eye socket blood marks, lipstick, mascara, and other evidence of the force of the collision.

In conclusion, the following criteria for case selection are more or less uniformly thought to include:

1. A Delta V of 25 mph or less;
2. Seat belt use in the case of an adult.
3. Obtain the vehicle, preferably before the bags are repacked;

V. Sources of Information

Parents for Safer Air Bags
Ste. 300, 1250 24th St. N.W.
Washington, D.C. 20037
Tel: 202-467-8300
Fax: 202-466-3079

National Highway Traffic Safety Administration
Office of Defects Investigation
400 Seventh Street S.W., #5236
Washington, D.C. 20590
Tel: 202-366-9550

Attorneys Information Exchange Group
(Members only)
402 Office Park Drive, #200
Birmingham, AL 35223
Fax: 205-803-4008

Society of Automotive Engineers
400 Commonwealth Avenue
Warrendale, PA 15096
Website: www.sae.org

Center for Auto Safety
2001 S Street N.W., #410
Washington, D.C. 20009
Tel: 202-328-7700
Website: www.autosafety.org

ATLA Exchange
(Members only)
1050 31st N.W.
Washington, D.C. 20007
Tel: 1-800-424-2725
Website: http://exchange.atla.org

VI. INFORMAL DISCOVERY
A. The Accident

1. Reports from investigating officers
2. Secure the vehicle and the bag
3. Typical issues (see attached questionnaire - Appendix D)

a. Accident specifications - need an accident reconstructionist
-- Speed
-- Braking
-- Impact speed
-- Delta-V
b. Occupant issues - need an occupant kinematics expert
-- Belted or not
-- Seat position front to back (See Appendix E)
-- Seat back position
c. Injuries - need a pathologist in death cases
d. Injuries to other occupants
e. Likely defenses

B. The Airbag

1. Tethered or not
2. Test inflation with exemplar victim (see Appendix E)
3. Examine bag for transfer marks (Appendix E)
4. Informal discovery about other similar incidents [See Section VI, supra]
5. Identify warning in vehicle (typically on visor) and in owner's manual

C. Inspect Belts and D Rings

1. Evidence of loading
2. Evidence of skip lock

D. Notification to Manufacturer

1. Stipulated computer downloading
2. Chain of custody of restraint components -- bag, belts

VII. FORMAL DISCOVERY

A. Deployment Characteristics (See Appendix F)
B. Other Design Considerations (See Appendix F)
C. Other Similar Incidents (See Appendix D)