Raymond Paul Johnson Publications - Civil Litigators - Los Angeles, CA

I. INTRODUCTION

Even few lawyers understand the dangers. Yet consumers face them everyday -- whenever they load children into the rear seats of their family vehicles, such as minivans or sports utility vehicles (SUVs).

Seat-belted children and other rear-seat passengers can be in serious danger of injury and death. Why? Their seats (and seatbelts) may not be safely attached to the vehicle. Yet consumers have a difficult time knowing whether the seat is properly attached, let alone whether it will stay that way in a collision.

The car companies owe your clients more. They promised more by enticing them to buy the vehicle with ads showing children safely seated in the rear. This article explores how the rear seats in family vehicles continue to cause tragic injuries and death.

II. THE CAUSE OF HARM

A. Rear Seat Dangers

With front airbags, padded instrument panels, and other safety features, studies have shown that rear seat passengers, in general, are less safe than front seat passengers.^[i] In fact, according to crash statistics, “[w]hen a minivan with a third-row occupant is hit from behind, the occupant is killed half the time.”^[ii]

During rollovers, rear seat occupants are more likely to be ejected due to a lack of side curtains and airbags in most vehicles, the absence of laminated safety glass, and the fact that some rear seats do not offer lap and shoulder belt combinations. Even in seats with shoulder belts, crash tests show the shoulder portion typically falls off the shoulder during a crash due to the lack of web grabbers and pretensioners in rear seat positions.^[iii] The bottom line: Rear seat occupants are in danger.

A 2006 study by the National Highway Traffic Safety Administration (NHTSA) and Society of Automotive Engineers (SAE) showed that of restrained occupants in model year 1991-2003 vehicles, the large majority traveling in rear seats – sixty-four percent (64%) – were twelve (12) years old or younger.^[iv] Clearly, family vehicle owners put their most precious cargo – their children – in the rear seats. They rely on the occupant restraint system in these vehicles including the seats, seatbelts and safety glass used in rear windows to keep their children from being thrown around inside the vehicle or ejected during a crash.

In many cases however rear-seat seatbelts are attached to the seat rather than the body of the vehicle. In such instances, all the seatbelts in the world will not safely restrain a child during a crash unless the seat (to which the seatbelt is connected) is safely attached to the vehicle structure. In other words, the strength of the seat and its connection to the vehicle’s floor are critical.

To better see why harm becomes inevitable when a seat fails to stay fully attached to the vehicle’s body, think about a child safety seat for small children. To perform its job, the child safety seat must be properly connected to the vehicle. Regardless of how well you buckle the child into the safety seat, in a crash, if the seat is not fully attached to the vehicle, the seat – baby and all – will be dangerously thrown about inside the vehicle or possibly ejected. Much like the child safety seat, the rear seats in family vehicles must not become detached or partially detached from the vehicle, otherwise injury and death result.

Based on traffic data, automobile crashes are the number one killer of children ages 4-14.^[v] Children though are not the only victims of defective rear seats. In newer vehicles, rear seats have been shown to be less effective than front seats in reducing serious to fatal injuries for adult occupants in frontal crashes.^[vi] Weak seat backs, and inadequate crush zones for third-row seats are part of the problem. But another sure killer is the lack of strong, safe attachments for the removable and moveable seats in minivans and SUVs. The main reason: People do not see nor realize the danger that lies beneath the seats.

B. Removable Seats - Convenience, but at What Cost?

1. “Good for Cargo,” But What About Your Most Precious Cargo - Your Children?

Americans seem fascinated with removable seats in their SUVs and minivans. Sure – we want as many options as possible. We want to fit the entire soccer team in a vehicle, and then remove the seats to carry bikes, coolers, luggage, golf carts, and whatever else. But one thing consumers do not want is to swap safety for the convenience of being able to remove a seat.

One hidden but life-threatening danger can occur whenever consumers install a removable seat. If they do so incorrectly, or if a carpet, strap, or something else interferes with the latching, disaster awaits. In a collision, the seat will move, and if the seatbelt is connected to the seat (as in many designs), the seatbelt will be ineffective.

Worse yet, in a rollover, the moving seat can propel the occupant, smashing him or her into dangerous interior parts or through windows. Although the typical consumer has little way to recognize this danger, car manufacturers know full well how critical the safe attachment of the seat to the vehicle is to occupant protection. As such, they have a duty to design the danger out, or at least adequately warn consumers.

Imagine if car companies gave you the option of safe seating for your children or removable seating for extra luggage and other cargo? Not much of a choice, right? But actually, consumers need not make that decision. Car manufacturers can offer both safe and removable seating by using strong fail-safe designs that make sense for consumers.

Unfortunately, however, consumer advocates know too well that “the auto industry . . . has a long history of withholding safety devices and fighting government regulations.”^[vii] Many manufacturers focus just on sales. And as such they provide as many seating options and as much cargo space as possible to sell more vehicles. This is fine, but in the end they have to do it safely. Lives depend on it.

2. The Different Types of Removable Seats

There are various types of removable seats, some safe, some not. Three-passenger bench seats can be heavy, and are usually on rollers. These seats can be removed by unlatching them from the floor attachments and lifting them out of the vehicle.

Other designs allow portions of bench seats to be removed. For example, there can be a split bench seat where half of the seat can be folded down or removed. There are captain’s chairs or bucket seats that fold down into a smaller size, and then can be lifted out of the vehicle entirely. Regardless of the type, manufacturers have a duty to ensure that removable seats are safe for consumer use.

Dangers lurk in the floor attachments that connect the seat to the vehicle. For example if the floor attachments are in recessed grooves, debris, toys, marbles and other small objects can collect within the grooves. This can interfere with the latch, making it difficult or impossible to safely reinstall the seat. Safer alternative designs exist that can eliminate this danger, including – most importantly – electronic systems that warn of partial or incomplete latching.

3. Discovery in Defective Rear-Seat Cases

If your client falls victim to these defective seats, begin by getting all the related customer complaints. If consumers report difficulty removing and installing these seats, latching problems follow. Sometimes consumers cannot even understand how the seats should be properly removed and/or installed; sometimes the seats themselves are too heavy to allow safe installation; and sometimes the mechanisms that allow attachment and/or detachment of the seat are confusing or problematic.

Whatever the situation, consumer complaints can alert you about the nature of poor designs, and needed warnings or instructions related to the removable seats. In addition, request all design review memoranda and meetings minutes related to the complaints, the design drawings for the seats, and any reasonable alternative designs considered by the manufacturers.

Also find out about any “bench-marking” or comparisons the manufacturer did of competitor designs to see what alternatives existed in the marketplace. This provides insight into better designs offered by others, and perhaps why the manufacturer chose not to use a better design. Also be sure to get all consumer surveys and/or “customer service” call-line information related to the seats.

In addition, when these seats are removed from the vehicle, they are susceptible to damage during removal, storage and re-installation. Manufacturers must take these foreseeable events into consideration and design their seats, including the attachments, latches and other related parts to be durable, long-lasting and strong enough to withstand repeated removal and installation.

Also seek “other similar incidents” (OSIs) through discovery. Find out how many consumer complaints and prior lawsuits with similar issues exist to bolster your case and show that the manufacturer knew about the dangers and defects at issue.

Conduct a NHTSA search for customer comments, technical service bulletins and recalls related to the seats and seat failures. Issues regarding removable seats can include the seat falling forward, moving backwards, or being thrown to the ceiling during rollovers. You should try to follow-up by contacting the individuals who communicated the problems to NHTSA. These problems could prove to be powerful OSIs for your seat case.

For example, in a recent rear-seat case prosecuted by the authors, several NHTSA complaints surfaced regarding children injured when the removable rear seats in minivans detached from the latches and fell forward during minor fender benders. This failure mode is particularly dangerous in that a major source of head injuries to children comes from impacts with the vehicle’s interior.^[viii]

C. Jump Seats

Some SUV manufactures offer “jump” seats. These are typically smaller folding seats that operate on a hinge type device and stay attached to the vehicle. They are moveable seats, as opposed to removable ones. Jump seats operate by latching down to the vehicle’s floor while remaining hinged at the side of the vehicle. They can fold up and out of the way to provide cargo space, or connect to the vehicle’s floor with straps, hooks or other devices in the down position for seating.

To cover the floor attachments, manufacturers sometimes provide cargo mats. These mats, and related straps, tabs and cables can cause latching malfunctions. If there is entanglement, the jump seat will not fully connect to the floor. In that case, the seat’s connection to the side of the vehicle (often near rear and side windows) can act as a catapult propelling its occupant outside the window in collisions, especially rollovers. This horrific result can and will shoot a small child through the window while still belted.

An example of a recall involving jump seats occurred with the 1998 Mitsubishi Montero. In a related case handled by the authors, evidence existed that the vehicle’s cargo mat had interfered with the attachment of the jump seat to the vehicle’s floor. During a rollover, the seat dislodged and catapulted a ten (10)-year-old girl – still seatbelted – out the side rear window. Without a safe seat attachment to the floor of the vehicle, the child's seatbelt proved worthless, and death resulted.

D. Fold-Into-the-Floor Designs

Seats that fold into the floor can be stronger, safer alternatives to removable seats and movable jump seats. They automatically latch upon extension. This allows additional seating, with the option of folding the seats into the floor for extra cargo room.

These seats typically stay permanently connected to the vehicle along one portion of the seat bottom. As such, they are potentially safer in a collision or rollover than fully removable seats. Their overall safety however depends greatly on the strength and dependability of the front and rear connections to the vehicle.

For example, a search of consumer complaints on NHTSA’s database regarding one fold-into-the-floor design in a 2005 minivan shows that these seats can fling forward or backward in certain situations with passengers in them.^[ix] The bottom line is: When any seat becomes disengaged or partially disengaged from the vehicle’s floor, devastating injuries or death can and will result.

III. THE APPLICABLE MINIMUM FEDERAL STANDARDS

A. FMVSS 207 - An Outdated Seat Safety Standard In Need of Change

Federal standards are minimum standards. Although many consumers put trust in the government and manufacturers to ensure safe cars, the reality is that not enough is being done, and both the manufacturers and government personnel know it. In fact, Federal Motor Vehicle Safety Standard (FMVSS) 207 for seats has not been changed in more than 30 years, despite technology advancements and petitions by engineers to increase the requirements for public safety^.[x]

FMVSS 207 went into effect in 1968 for passenger cars and was made applicable to multi-purpose vehicles, buses and trucks in 1972^.[xi] It provides minimal requirements for the strength of the interface between a seat and vehicle structure, and the strength of the seat itself.

But Federal Motor Vehicle Safety Standard No. 207 has been widely criticized for providing inadequate seat strength. For example, "[a]dvances in technology have made possible significant improvement in the ability of the car seat to add appreciable crash victim occupant protection, especially with the advent of integrated seat concepts.”[xii] And yet, FMVSS 207 stays the same.

Commentators have pointed out that the government standards for seats is so minimal that even a lawn chair could pass them.[xiii] In fact, a Director of Safety Research at Ford Motor Company once provided an example of what could overwhelm a seat that had passed the standard -- a hefty man squirming in his seat to reach a wallet in his rear pocket could cause seat failure.[xiv]

B. FMVSS 210 - Seatbelt Safety and its Relationship to Seats

For almost forty (40) years, seatbelts have been required in passenger cars.[xv] Virtually every state has enacted laws requiring all occupants to wear those seatbelts. As such, any increase in the safety performance of seatbelts will save lives and prevent injury.

Knowing this, several years ago, NHTSA along with the private sector conducted a study to improve occupant safety in vehicle crashes. The study found that an integrated structural seat, which has all the belt anchorages on the seat itself as opposed to the vehicle’s body structure, improved belt fit and safety for all occupants.[xvi] This finding promises reduced injuries and fewer deaths. But the fact that the seatbelt attaches to the seat, rather than the vehicle's structure, makes the need for strong, safe and secure seats all the more critical, especially with removable or moveable rear seats.

FMVSS 210 provides the minimum requirements for seatbelt performance. But when seatbelts are attached to seats and those seats fail to stay fully attached to the vehicle structure, even the minimal requirements of FMVSS 210 cannot be satisfied. At Paragraph S3, FMVSS 210 defines seatbelt anchorage as “any component, other than the webbing or straps, involved in transferring seatbelt loads to the vehicle structure, including, but not limited to, the attachment hardware, seat frames, seat pedestals . . . and any part of the vehicle whose failure causes separation of the belt from the vehicle structure.”[xvii] Obviously then if seats with integrated seatbelts become disconnected or partially disconnected from the vehicle structure, both FMVSS 210 and FMVSS 207 are violated

IV. THE NEED FOR ACTIVE WARNING SYSTEMS

Since the 1970s, manufacturers have provided active warning systems such as lights on the dashboard, chimes, buzzers and other electronic reminders to “buckle up.” The reason: Seatbelts save lives. Undisputed. As such, warning systems (for front-seat passengers) exist in almost all newer vehicles today. Yet active warning systems for rear-seat passengers remain largely unavailable.

These active warning systems for front-seat occupants may be credited for the fact that, in 2006, seatbelt use in the front seats was much higher than seatbelt use in the rear seats (81% of front seat passengers used seatbelts compared to 65% of rear seat passengers).[xviii] The same technology is available and needed in rear seats. Not only to increase seatbelt usage, but to ensure that the seatbelts are effective. And when seatbelts are connected to the rear seats, this same technology should be used to adequately warn if removable or moveable rear seats are not fully engaged.

In fact, a patent for “electrification system for removable vehicle seats” was issued to Johnson Controls Technology Company in 2002. The features of this device included “power to removable vehicle seats” which did “not require the operator to plug and unplug electrical connectors” and which “automatically connected when the seat is properly installed to the vehicle.”[xix] This feasible design would also ensure safety by providing an indicator to “alert the operator if the seat is not properly installed to the vehicle.”[xx] And it would also notify the operator if “electrification was not present in the seat.”[xxi] For basic safety, this or similar systems should be incorporated in any vehicle with removable or moveable rear seats.

The reason: Occupant restraint systems save lives and dollars. Estimates are that seatbelts saved more than 15,632 lives in 2005.[xxii] Furthermore, seatbelt use saves an estimated societal cost of $50 billion in yearly injury-related costs including medical care and lost productivity.[xxiii] Conversely, occupant restraint failures result in significant economic costs to society through needless injuries and deaths. As a result, the time is well overdue for manufacturers to ensure that removable and moveable rear seats (and their seatbelt systems) are fully and safely attached through use of an active warning system in all family vehicles.

V. THE INEFFECTIVENESS OF PASSIVE WARNING

A. Passive Warnings Are A Last Resort

Design engineers are professionals. They have long been held to professional standards. As an example, in ancient Rome, whenever a new arch was erected, the responsible engineer bore direct accountability for the work. Not just in theory, but in practice: He stood under the arch as the huge capstone was lowered into place.

Today’s vehicle design engineers bear similar responsibility. And professional engineers will agree: Warnings are a last resort. If a product exhibits a defect, the first obligation is to design out the defect whenever possible. If unsuccessful, the next obligation is to physically guard against the defect (e.g. with an active warning system as previously discussed) so that it does no harm. Only if designing out the defect or guarding against it proves impossible is an effective passive warning about the danger appropriate.

In the case of removable and moveable seats, the first duty then is to design out failure modes that can result in detached or partially detached seats which kill and injure rear-seat passengers. Because safer alternative designs (including active warning systems) are clearly feasible, the analysis should go no further. Passive warnings therefore have no place in trying to remedy this particular life-threatening problem. This is especially true because passive warnings in the context of these rear-seat dangers are largely ineffective as described below.

B. The Owner’s Manual

In defending actions, manufacturers like to magnify the small print in Owner’s Manuals. But such passive warnings -- about life-threatening dangers - - are rarely effective. First, most Owner’s Manuals are used as reference guides, not rigorous reading, making them inadequate for a true warning. Second, rear seat passengers - mostly children under 12 years old – will not likely (if ever) read the Owner’s Manual to determine whether their seats are properly attached to the vehicle’s floor.

However, even assuming the Owner’s Manual is read: Does it only warn about simple annoyances or does it “bring home” the danger of serious injury and death? To be effective, a warning about removable seats must at least do the latter. It must: (1) clearly warn that any attached seatbelt will be useless unless the seat is fully engaged at every point to the body structure, and (2) clearly explain how to ensure all attachments are secure.

C. On-Product Warnings

Rarely do car companies use on-product warnings. Other than the federally-mandated visor warnings, you typically will not see a warning label in the occupant compartment of a family vehicle. Manufacturers, however, sometimes put warnings on removable seats and/or seat latches. Why? They know that the system is not intuitive. They also know that proper installation of the seat is critical to safety.

But what is the value of the on-product warning? If the warning says nothing about likely permanent injury and death, or contains meaningless hieroglyphics, then the label is little more than an attempted insulation from liability for a known product defect.

If a defendant manufacturer points to an on-product warning as a defense, ask them how they tested it. Did they conduct meaningful consumer surveys? Did the warning "bring home" to the consumer the life-and-death importance of checking and double-checking that the attachments under the seat are fully and securely made. If not, the warning is inadequate.

In a case the authors recently prosecuted, warnings on the seat back of a third-row removable seat proved to be nearly incomprehensible. In addition, because the seat had never been removed by the current owners, no one had occasion to read the warning. Furthermore, the warning was not visible to passengers because it was on the back of the seat (in the trunk space).

In addition, pictograph “warnings” on the plastic levers that secured the seat to the floor proved to be meaningless hieroglyphics. And because the hieroglyphics could not be seen unless you were in the trunk space, they proved doubly-useless to warn a rear-seat passenger - - even if he somehow had a Rosetta Stone.

As a result the occupant of that seat, during a rollover, suffered traumatic brain injury when his head smashed into the roof of the vehicle. There was no light, buzzer or other active warning system to warn the owners, driver or passengers that there was any problem with the seat. The fact that the victim wore his seatbelt was irrelevant. The seat with its attached seatbelt flew up, smashing the rear-seat passenger’s head into the roof.

The proper design of rear seats and attached seatbelt systems is critical to passenger safety – especially in family vehicles. Researching consumer complaints regarding prior failures and recurring problems with these seat systems tells the story. As a result, both FMVSS 207 and 210 should be updated as soon as possible to require safe designs and active warning systems for removable and moveable rear seats in family vehicles. Consumer safety and the lives of our children depend on it.

[i]. Kuppa, Frontal Crash Protection for Rear Seat Occupants; 2006 SAE Government/Industry Meeting Rear Seat and Other Vulnerable Occupants, SAE and NHTSA, available online.

[ii]. Healey, Dangers Lurk for Kids in Popular Third-Row Seat, USA Today, March 1, 2002, page 1A.

[iii]. Gupta & Menon, et al., Advanced Integrated Structural Seat, Task Ordering Agreement Contract No. DTNH 22-92-D-07323 - Task 11, EASi Engineering and Johnson Controls, Feb. 1997, p. 58; available online at: http://www‑nrd.nhtsa.dot.gov/pdf/nrd‑11/EASI.pdf.

[iv]. Kuppa, supra at 10.

[v].   Subramanian, Motor Vehicle Traffic Crashes as a Major Cause of Death in the United States, 2003, NHTSA Traffic Safety Facts, Research Note, DOT HS 810 568, March 2006; available online at: www.nrd.nhtsa.dot.gov/Pubs/810568.PDF.

[vi]. Kuppa, supra at 13.

[vii].    Healy, supra at 1A [quoting Joan Claybrook, former Director of NHTSA, now leader of Public Citizen, a preeminent consumer rights and safety organization].

[viii]. Kuppa, supra at 12.

[ix]. NHTSA Consumer Complaints available online at: http://www‑odi.nhtsa.dot.gov/cars/problems/complain/

[x].   Molino, Determination of Moment‑Deflection Characteristics of Automobile Seat Backs, Light Duty Vehicle Division Office of Crashworthiness Standards National Highway Traffic Safety Administration, (NHTSA, Nov. 25, 1998); available online at: http://www.nhtsa.dot.gov/cars/rules/CrashWorthy/Seats/deflrep1/deflrep1.html.

[xi].   Id.

[xii]. National Highway Traffic Safety Administration, Research & Development, Project B.01.19 SEAT BACK STRENGTH, June 2000; available online at: http://www‑nrd.nhtsa.dot.gov/departments/nrd‑01/summaries/B0119.html.

[xiii].   Healey, supra.

[xiv].   Id.

[xv].   Seatbelts on School Buses, National Highway Traffic Safety Administration, May 2006, available online

[xvi]. Gupta, et al., supra.

[xvii].   Seatbelt Assembly Anchorages, 9 C.F.R. § 571.210 (2004). [Federal Motor Vehicle Safety Standard 210].

[xviii].   Glassbrenner & Ye, Rear Seatbelt Use in 2006, Traffic Safety Facts, Research Note, DOT HS 810 765 (NHTSA, April 2007); available online at: http://www‑nrd.nhtsa.dot.gov/Pubs/810765.PDF.

[xix].   United States Patent 6485080, Electrification system for removable vehicle seats, Inventors Scott A. Hansen and Nels R. Smith, Assignee Johnson Controls Technology Company. (Nov. 26, 2002); available online at: www.patentstorm.us/patents/6485080.html.

[xx]. Id.

[xxi]. Id.

[xxii].    Traffic Safety Facts 2005 Data, Overview, National Highway Traffic Safety Administration, DOT HS 810 623, p. 3; available online at: http://www‑nrd.nhtsa.dot.gov/Pubs/810623.PDF.

[xxiii].    Blincoe, et al., The Economic Impact of Motor Vehicle Crashes, 2000. National Highway Traffic Safety Administration Technical Report, Plans and Policy, DOT HS 809 446, May, 2002, p. 55; available online.

PROTECTING PRECIOUS CARGO: REAR SEAT SAFETY

PROTECTING PRECIOUS CARGO:
REAR SEAT SAFETY