As long as there have been airbags, there has been airbag litigation involving cases where airbags have failed to deploy, airbags have inadvertently deployed, and airbags have been poorly designed or manufactured, leading to them being unreasonably dangerous and defective as made. Today, we, as product safety advocates, must now recognize that the next wave of airbag litigation will not necessarily be over how these airbag systems performed as incorporated, but rather, the fight for our clients will involve questioning why the automotive industry failed to incorporate lifesaving side-impact airbags to protect both front-seated and rear-seated occupants from head and torso injuries in foreseeable side-impact accidents.
Side-impact passenger vehicle crashes are often severe, and the unfortunate reality is that automakers have long been aware of the benefits of side airbags to prevent the catastrophic head and brain injuries that are often seen. Internal carmaker documents disclosed over the years show how the automotive industry was testing and validating the effectiveness of these side airbag bag systems back in the mid-90’s, and, by 1998 independent testing by both Swedish researchers from Volvo and the Insurance Institute for Highway Safety (IIHS) had reported upon the protective capacities of these occupant safety systems in minimizing the potential for head injuries. See, Motions in Side Impacts Due to Inflatable Curtain – A Way to Bring Down the Risks of Diffuse Brain Injuries, Bohman et. al., SAE, October, 1998; IIHS Status Report, Vol. 32, No. 10, December 27, 1997.
According to the Insurance Institute for Highway Safety (IIHS), “Side-Impact crashes accounted for 27 percent of passenger vehicle occupant deaths in the United States in 2009.” See, IIHS Status Report, Vol. 45, No. 13, Dec. 22, 2010, at Page 4. As this statistic suggests, side-impact accidents are extremely dangerous for vehicle occupants. This is due in large part to the lack of structural protections that are afforded in side-impact crashes as compared to other crashes, like frontal-impacts, where large crush zones can be used to dissipate forces and energy to prevent or minimize injuries, as well as the non-effectiveness of seatbelts in side impacts. This being true, and knowing that the automotive industry has long been aware of this common sense safety concern, the question must be asked why the industry failed to move faster over the past decade to incorporate these proven life saving systems into all vehicles to minimize and prevent catastrophic or fatal head injuries in such crashes.
While the benefits of these systems certainly began to gain wide recognition in the late 1990’s, by the early 2000’s the available data was beyond dispute that these technologies would save lives if incorporated. In 2003, the IIHS itself noted that side-impact testing done throughout the late 1990’s up through 2003 had revealed the dramatic impact side airbags could have on preventing head injuries. See, IIHS Status Report, Vol. 38, No. 8, August 26, 2003. In fact, that year its researchers projected that there was a 45% fatality risk reduction for drivers of cars with head-protecting side airbags and an 11 percent reduction with side airbags that protect the torso and not the head. See, Id.
In March, 2004, The Journal of Trauma Injury, Infection and Critical Care reported that “occupants in vehicles equipped with head protecting side airbags had a 75% lower risk of head injury after near side collisions.” See, McGwin, G; Metzger, J; Rue, L; The Influence of Side Airbags on the Risk of Head and Thoracic Injury after Motor Vehicle Collisions. The Journal of Trauma Injury, Infection and Critical Care; Vol. 56, No. 3, March, 2004. This report stood as just one more affirmation of the powerful protective capacities of these airbag systems to save lives if used.
In October, 2006, after further study, the Insurance Institute for Highway Safety (IIHS) itself again reported on the benefits of side airbags that cushion the head, neck and abdomen during side-impact collisions, and concluded that head impact side airbags were shown to be “reducing driver deaths in cars struck on the near side (driver) side by an estimated 37 percent”, see, IIHS Status Report, Vol. 41, No. 8, Oct. 7, 2006, at Page 1, and that torso bags, used to protect the chest and abdomen but not the head, were reducing deaths by 26 percent. Id.
Consistent with such information and the continually developing data supporting use of these systems, the National Highway Traffic Safety Administration (NHTSA) proposed side-impact standards in May, 2004, after getting voluntary industry agreement to incorporate such technologies by 2009. Then, by a standard enacted late in 2007 by the NHTSA, mandates were created by the agency requiring automakers to phase in additional side-impact protection as a standard feature for cars, trucks and SUVs. These requirements went into effect beginning September 1, 2009, with a mandate that every automaker must comply within four years. This year, according to the Insurance Institute for Highway Safety (IIHS), such“[s]afety equipment is increasingly standard” with ninety-two percent of 2011 model cars, 94 percent of SUVs, and 56 percent of pickups [now] having] standard head and torso side airbags.” See, IIHS Status Report, Vol. 45, No. 13, Dec. 22, 2010, at Page 6.
While these government rules and the increasing use of these systems represents a positive leap forward for consumers, the fact remains that millions of cars have been sold over the past decade that could have and should have incorporated these systems to provide necessary head protection for occupants involved in side-impacts.
Even more troubling, and not directly addressed in much of the available data which has focused on the lifesaving capacity of these side airbag systems for drivers and front-seated passengers, is the failure of automakers to incorporate these technologies for the protection of rear-seated occupants, which, in many cases, are children. The tragic reality is that we often find that even in those vehicles that may provide head and torso side airbags for the driver and front passenger, the rear-seated occupants are not given the same protection. Absent the critical torso and head injury protections provided by side airbag systems, the rear-seated occupant – often the child or grandchild of the driver or front passenger – sustains catastrophic or fatal injuries in the very same accident where the parent or grandparent walk away with significantly less severe injuries, if any. While manufacturers assert all manner of design, technology and feasibility arguments to explain this disparity, the simple fact is that occupants in the rear seat are exposed to greater risks in side impacts when these systems are simply left out by the manufacturer. After years of safety campaigns imploring parents to place their children in the backseat, such cost-saving design choices are difficult to understand.
While there are certainly some valid design and feasibility concerns that may arise in certain vehicle configurations with placing airbags in the rear where children may be seated, many of the industry’s concerns with respect to incorporating these safety systems had been adequately addressed by the early 2000’s. Side airbags, then and now, are most commonly deployed from the side of the seat itself to inflate between the door structures and the occupant. By using this type of configuration, airbag designers can minimize the potential for airbag-induced injuries while providing optimal occupant protection. Of course, there are also additional designs that involve the deployment of curtain-style airbags that deploy from the roof rails downward to provide the same type of protection to vehicle occupants in side impacts. Such designs, for example, are now commonly used in minivans and SUVs to protect rear-seated passengers. Depending on a vehicle’s model year, it is not difficult to ascertain the side airbag configurations that were then available to safely use to protect occupants of all ages.
As a very simple rule of thumb, a failure to incorporate airbag case arises when a vehicle model of 2000 or later is involved, as side airbag systems were available as either standard or optional equipment in 32.3 % of production vehicles as of that year. See, Insurance Institute for Highway Safety (IIHS) Website, “Vehicles equipped with side airbags” data chart. Thereafter, with every passing year, as the number of vehicles with side airbags increases, the options increase. As of 2001, for example, 28 % of cars had standard or optional head/torso bags, 1.4 % had head only airbags as an option, and an additional 18 % had torso only bags standard or optional. See, Id. That meant 56.8 % of cars did not have any type of side airbags. However, by 2002, as the use of these systems continued to grow, that number dropped to 48.9%. See, Id. By 2007, that number of cars without any such systems dropped into the teens, at 19.7%, and, as of 2011, only 3.7 % of cars lacked these systems entirely. Id.
When one considers that it is estimated that 30% of all crashes involve a side impact, and that for years lifesaving side-impact technologies have been slowly and sporadically incorporated into all manner of vehicles, the obvious question we must ask for our clients is “why were they not given adequate protection when it could have been cost effectively done?” The answer is often unacceptable, and, as a result of unnecessary delay and cost-saving decisions, many unnecessary head injuries and fatalities will continue to occur in foreseeable side impact crashes as these vehicles remain on our roadways still today.
Thus, to ensure we are doing everything we can to serve the clients who trust us, we must be conscious of the history and benefits of these lifesaving technologies so that we can identify when a “failure to incorporate” side-impact airbag case should properly be pursued. Because the majority of fatal side-impact crashes that occur involve catastrophic head and brain injuries, the failure of the industry to take steps sooner to prevent such injuries through the incorporation of technologically and economically feasible side-impact airbags is simply unreasonable.
Henry “Hank” N. Didier, Jr., founder of the Didier Law Firm, P.A., specializes in litigating complex product defect, trucking and catastrophic injury cases throughout the Southeast.