Product Liability

Automobile Product Liability: A Cause of Action for Failure to Install Collision Avoidance Technology By Michael J. Schreyer

A Known Hazard

On May 18, 1994, a diaper delivery driver backed a truck out from a parking space at an apartment complex in Lynnwood, Washington, in the northern suburbs of Seattle. Three-year-old C.J. Norton was playing with friends and went into the parking lot in front of his home. The delivery truck driver did not see the small child behind his commercial van, because the truck body obstructed the driver’s view, and C.J. was run over and killed. On that day, C.J.’s grandfather, Dee Norton, became an advocate for safer trucks in Washington State. Four years later, that state passed “C.J.’s Law”,(1) which has saved many lives by requiring delivery trucks with cargo boxes up to 18 feet long to be equipped with either rear cross-view mirrors, or electronic sensing devices, that warn truck drivers of people or objects behind their trucks.(2) In addition, Washington state regulations now require, “[a]n operable mechanical device that provides the driver a full view behind the dump truck [to be] used, such as a video camera,” or the use of spotters when using dump trucks where people will be walking behind them.(3)

In 1995, Mr. Norton asked the National Highway Traffic Safety Administration (NHTSA) to amend Federal Motor Vehicle Safety Standard (FMVSS) No. 111 to require convex, crossview mirrors on the rear of step vans and walk-in style delivery and service trucks.(4) NHTSA began studying solutions to rear obstruction at that time. A study by NHTSA estimated that backing incidents caused approximately 7,000 injuries between 2000 and 2001. Another NHTSA study indicated that, between 2005 and 2010, backing incidents caused 358 deaths.(5) In 2005, NHTSA proposed a rule change to FMVSS No. 111 “to require a rear object detection system on straight trucks with a GVWR of between…” 10,000 pounds and 26,000 pounds.(6) (A “straight truck” is a single-unit truck composed of an undetachable cab and body. Body types routinely incorporated as part of straight trucks include an enclosed box, flat bed, dump bed, bulk container, or special purpose equipment). But NHTSA never adopted the proposed change to the rear visibility standard for manufacturers of straight trucks.(7)

Instead, in 2008, The Cameron Gulbransen Kids Transportation Safety Act was signed into law.(8) As a result, the NHTSA withdrew the proposed truck regulation and began to look at the obstructed rear-view hazard in the context of all motor vehicles. A final rule was published in 2014, and the agency revised the rear visibility regulation, specifying an area behind the vehicle which must be visible when the vehicle is placed into a reverse gear. However, the NHTSA limited the application of the new safety standard to light-duty vehicles only.(9) The rule provided a phase in period, which prescribed that light duty vehicles manufactured after May 1, 2018, must meet the rear visibility standard. As a result, all cars, vans, and pick-up trucks in the U.S. are now manufactured with back-up camera systems, as a standard safety feature. The federal government has not created similar requirements for larger vehicles with rear-view obstructions, like delivery trucks, trash trucks, dump trucks, or other medium or medium heavy-duty trucks. Whether this decision by the NHTSA preempts common law product liability is discussed below.

An Avoidable Collision

In late 2018, a dump truck was manufactured and delivered to the purchaser, a Maryland county. The dump truck was intended for use by the Department of Public Works for road repairs and snow plowing. The county purchased the truck through a Maryland dealership, which selected the chassis and drive train specifications for the straight truck from options created by the manufacturer and listed in the manufacturer’s software. The dealership also worked with a company specializing in installing the type of vocational body needed to complete the dump truck using specifications for the dump body, snowplow, and other features, with the assistance of the body builder company. One of the features selected for the county’s truck was a backup alarm, a device that produces a loud beeping warning when the truck is put in reverse gear.

A few months after the dump truck was manufactured, on a pleasant spring day in 2019, a young man and his wife were traveling on their motorcycle on a country road near their neighborhood. Ahead of their motorcycle, a new dump truck was slowly making its way down the two-lane road while the public works crew scanned the road looking for potholes in need of repair. The truck slowed and stopped just beyond a neighborhood intersection, and the motorcyclist did the same. The truck driver and his passenger looked at the mirrors on the hood of the truck, but they saw nothing in their limited rear view. Moments later, the driver of the motorcycle saw the reverse lights and heard the first audible warning coming from the backup alarm. Startled, he did the only thing he could, he pushed with his feet to make his bike roll backward, trying to get out of the way. His desperate act failed, and the truck rolled backward, crushing the bike and its occupants. The young man’s wife died at the scene, and her husband sustained catastrophic, permanent injuries.

Analysis of Liability

The dump truck driver owed a duty to the motorcycle riders behind him to take reasonable steps to avoid colliding with them. One backing procedure known to truck drivers is to “Get Out and Look,” which is known by the acronym “GOAL”. Commercial drivers are instructed in this procedure, because of the known danger created by the blind zone behind dump trucks and similar equipment. We concluded that the driver’s failure to do more than look in his mirrors would subject him to liability. However, his employer was a county government protected by governmental immunity, and the employee’s liability was capped by the Local Government Tort Claims Act.(10) The employee’s limit of liability for the collision was capped at $400,000.00 per injured person. Considering the enormous emotional and financial losses suffered by the injured husband and his deceased wife, we were compelled to evaluate the vehicle for design defects which caused or contributed to the collision. If the truck was defective, then the incomplete vehicle manufacturer, the company which incorporated the dump truck body into the truck (the bodybuilder), and the dealership which wrote the final purchase order using the specifications of the manufacturer and bodybuilder to complete the truck might all be liable for the damages.

We first evaluated the issue using the Maryland Pattern Jury Instructions, which provide a cause of action in negligence:

“The manufacturer of a product has a duty to use reasonable care in the design, manufacturing, testing and inspection of the product to see that the product is safe for any reasonably foreseeable use. A failure to fulfill that duty is negligence.” (11)

The jury instruction for strict liability, which does not focus on the manufacturer’s conduct gives a similar basis for liability:

“The manufacturer or seller of any product is responsible for physical harm resulting from a defective product, even though all possible care was used if:

  1. The product was in a defective condition at the time it left possession or control of the seller;
  2. The product was unreasonably dangerous to the user or the user’s property;
  3. The defect caused the injuries or property damage;
  4. The product was expected to and did reach the user without substantial change in its condition.(12)

The truck at issue had an obstructed rear view when it was delivered, and the rear view was not altered in any way by the purchaser. We concluded that there was a case to be made that the truck was in a defective condition when manufactured. That defect had been the subject of more than 20 years of public study and debate in the context of the investigations by the NHTSA and other federal agencies. From those federal records, we learned that some companies using various types of straight trucks had attempted to mitigate or eliminate the obstructed rear-view hazard by installing rear view camera systems. For example, Waste Management began using rearview cameras in 1991, and United Parcel Service (UPS) installed video monitoring systems on its entire fleet of 65,000 delivery trucks by October 2001.(13,14)

We investigated the technology used on the dump truck in our case, including the backup alarm which produces an audible warning when the vehicle is put into reverse. We identified patents for this type of technology that were filed in the 1950’s and 1960’s. Studies conducted by the federal government had discovered that audible alarms, when working, did not always prove effective.(15) Moreover, studies concerning backup cameras suggested that newer technology produced safer vehicle backing for drivers.(16)

The Discovery Plan

We drafted the complaint and the discovery to focus on (1) the industry, government, and defendants’ knowledge of the blind zone hazard, including statistics concerning injuries and deaths, (2) the age of the mirror and backup alarm technology employed by the defendants, (3) the industry knowledge of the availability and efficacy of an “alternative design” or new technology, and (4) the cost of the use of GOAL versus the rear camera system.

We sought documents and testimony from the defendants’ employees and representatives, and we obtained documents from their websites about their knowledge and use of backup cameras as options. Published statistics were readily available both in the reports of the NHTSA and the U.S. Bureau of Labor and Statistics. Focusing exclusively on those injuries which occurred in work zones and were reported to the bureau, we learned that in 2018 alone, 1,620 pedestrians were struck by backing vehicles, and 78 pedestrians were fatally injured. All this information came from governmental sources. The defendants gave us no studies or reports concerning their study of the problem.

The truck in our case had been fitted with hood mounted mirrors and a backup alarm. We asked the defendants’ employees to concede that this technology had been used since at least the 1950’s and 1960’s. The defendants could not provide any information about their use of rearview camera technology for dump trucks. The defendants took the position that the new technology was not a “technically feasible” “alternative design.” The two explanations for this were that the industry was not interested in using backup cameras, and the cameras were not helpful because they were likely to get covered in debris or broken. So, we needed to prove that that backup camera technology was functional for dump trucks and readily available. The county’s document production included records of backup camera installation on dozens of vehicles after the incident, including dump trucks. This information helped to establish that the use of the cameras was both financially reasonable, and an effective strategy to deal with obstructed rear views, in construction and other vehicles, even when those vehicles were involved in rugged work conditions that could potentially interfere with the camera view or damage the video equipment. With the evidence to show that the camera systems worked and could be installed as an aftermarket option we next considered whether there were camera systems readily available to the manufacturer, bodybuilder, and dealer.

Our investigation of the supply question began by looking into the backup alarm selected for use in the dump truck which caused our collision. The backup alarm was installed, not by the incomplete vehicle manufacturer, but by the bodybuilder company. We also discovered that the manufacturer purchased thousands of backup alarms in a period of a few years. This demonstrated the defendants’ knowledge of the hazard, and it connected all three defendants to the seller of the backup alarm. Next, we needed to show that the same source of the backup alarm also provided backup camera systems; this would show that not only were the systems readily available as original equipment on new vehicles, but it would demonstrate the defendants’ negligence in making poor design choices.

We inspected the vehicle to confirm the identity of the manufacturer of the backup alarm, and we served a notice of deposition of the corporate designee on that company, seeking the corporation’s sales records, brochures, and other information concerning our defendants’ purchases. A deposition of the supplier of the backup alarm model installed on the vehicle involved in our client’s collision proved that our defendants not only had access to the alarm installed on the truck involved in the collision, but they also had access to backup cameras from the same manufacturer and distributor. The sales brochures convincingly demonstrated that the company which sold the alarm also sold several camera systems and had done so for several years before the dump truck in our case was delivered.

In evaluating the vehicle involved in our case, we focused on how the camera operated, where it was located, and how it improved the rear view. Our study demonstrated that without the camera, the blind zone was more than 70 feet to the rear of the dump truck. And the perception reaction time for our motorcyclist, sitting 15-25 feet behind the dump truck, was insufficient to provide him with an opportunity to escape the zone of danger. Finally, we learned that the defendant driver conducted a vehicle pre-trip inspection. His walk-around vehicle check showed that he would have cleaned off the camera if it had been obstructed by debris. Thus, it was feasible to purchase, install and use a backup camera. Finally, the driver confirmed that the loss of time doing “GOAL” would have been far more costly over the vehicle’s use-life than installing a backup camera system for a few hundred dollars.

The discovery we conducted gave us confidence in our prima facie case of strict liability and negligence.

Analysis of Defense of Federal Preemption

Another obstacle we faced was the defense of federal preemption of state common-law design-defect claims. As discussed above, the federal government considered and declined to require the use of backup camera systems and other collision avoidance technology for straight trucks and vocational vehicles but required automobile and light trucks to use such technology. We anticipated that defendants would argue that current federal motor vehicle safety regulations, which “permit” the manufacturer of trucks without rear camera technology, preempt state common law product liability claims that trucks lacking such technology are defective, thus, insulating the defendants from liability.

The preemption test requires the defendant to demonstrate that the state law claim is “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” Williamson v. Mazda Motor of America, Inc., 562 U.S. 323, 333, 336 (2011). In the context of automobile manufacturing safety, the intent of Congress, through its proxy, the NHTSA, determines if the state tort claim can survive. In Geier v. American Honda Motor Co., 529 U.S. 861 (2000), the Supreme Court found that NHTSA expressed a desire to encourage manufacturers to develop a variety of passive restraint systems in automobiles to further the development of the technology and increase public acceptance of such safety devices. Geier, 529 U.S. at 881. By contrast, in Williamson, the Supreme Court determined that NHTSA “had no interest in assuring a mix of [safety options].” It concluded that permitting the common law tort claims would not act as an obstacle to the achievement of federal safety objectives. Williamson, 562 U.S. at 335-36.

In order to determine whether NHTSA had expressed a goal, such as encouraging manufacturers to develop safety options by giving them choices in how to address rear view obstruction in large trucks, we evaluated what NHTSA said when it declined to promulgate a change in FMVSS 111. We noted that NHTSA withdrew the proposed rule change, stating:

“[T]he agency believes it more appropriate to address backing safety of straight trucks as part of the comprehensive effort to address backing safety generally, and that solutions should be formulated after the completion and review of ongoing research and data gathering on backing safety. We are therefore withdrawing this rulemaking at this time.”(17)

The agency did not express any goal or purpose of giving the manufacturers choices regarding how to promote safety. Rather the statement indicates that NHTSA needed further time to review the issue before it could formulate solutions. Moreover, Congress charged the NHTSA under the K.T. Safety Act “to reduce the incidence of child injury or death outside of parked passenger motor vehicles with a gross weight rating of not more than 10,000 pounds.” Congress stated no goal that could be thwarted by the imposition of state common law liability for a class of vehicles outside those addressed by Congress. (18) Put differently, the liability claims here were not “an obstacle to the accomplishment and execution of the full purposes and objectives” of the K.T. Safety Act.

Again, when the regulation was finally adopted in 2014, NHTSA declined to extend the rule to cover dump trucks, garbage trucks, and other vehicles 10,000 pounds or more which were not contemplated by the K.T. Safety Act, though the agency acknowledged that many of those vehicles also have significant blind zones.(19)

“Finally, we also decline to extend today’s final rule to cover trailers, garbage trucks, and other vehicles not contemplated by the K.T. Safety Act. While we acknowledge that many of these vehicles may also have  significant blind zones, we have concentrated our research and rulemaking efforts on the vehicles mandated by Congress. We believe that, by focusing on the vehicle types covered in the K.T. Safety Act, this rulemaking is able to more appropriately address the types of crashes that Congress sought to avoid.”(20)

We concluded that, although under the current federal standard vehicles over 10,000 pounds were merely required to have adjustable mirrors that provided the driver with a view to the rear along both sides of the vehicle, the state common law product liability claims were not preempted by FMVSS 111.(21)

After completion of discovery, prior to any motion for Summary Judgment, the parties entered into extended settlement discussions over a two-month period. The case was settled by the parties under a confidentiality agreement, two months before trial.

Biography Michael J. Schreyer is a founding partner at Alpert Schreyer Injury Attorneys. He currently serves as a member of the Interstate Trucking Group of the American Association of Justice and also serves as a member on the National Advisory Board of the Association of Plaintiff Interstate Trucking Lawyers of America (APITLA). He is an active member of the Auto Negligence and Medical Malpractice sections of the Maryland Association for Justice as well as former chair of the Negligence, Insurance and Workers’ Compensation Section of the Maryland State Bar Association. His experience and record of success in the courtroom has led to the recognition of his skills, including: a “National Recognition of Achievement in Civil Trial Advocacy” from the Million Dollar Advocates Forum; AV Preeminent® from Martindale-Hubbell®; 10.0 Superb from Avvo; as well as Super Lawyers® inclusion.

  1. “My three-year-old grandson, C.J.” Survivor Advocates Page, (last visited, February 21, 2022) http://www.traumaf.org/advocates/stories.shtml
  2. RCW 46.37.400 Mirrors, backup devices.
  3. WAC 296-155-610(2)(f)
  4. Federal Register Vol 70, No. 175 (Sept. 12, 1995); Docket No. NHTSA 2004-19239.
  5. OSHA Backing Fatalities 2005-2010 Spreadsheet.
  6. Federal Register Vol. 79, No. 66 (April 7, 2014); 19178; Docket No. NHTSA–2010–0162
  7. Docket No. NHTSA-2004-19239-1.
  8. Cameron Gulbransen Kids Transportation Safety Act of 2007, Pub. L. No. 110-189, H.R. 1216, 110th Cong. (2008).
  9. Federal Register Vol. 79, No. 66 (April 7, 2014); 19178; Docket No. NHTSA–2010–0162.
  10. “Tort claims and lawsuits brought against local governments are regulated by the Local Government Tort Claims Act (LGTCA).213 Unlike the MTCA, the LGTCA does not waive sovereign immunity and, in fact, “has nothing to do with waiver of sovereign immunity. Local governments have retained governmental immunity for the exercise of governmental functions.” Kruger, Karen J. (2006) Governmental Immunity in Maryland: A Practitioner’s Guide to Making and Defending Tort Claims, 36 U. BALT. L. REV. 62, 63 (2006).
  11. MPJI-Cv 26:1 Manufacturer’s Liability—Negligence
  12. MPJI-Cv 26:11 Strict Liability for Defective and Unreasonably Dangerous Products—Elements of Liability
  13. Federal Register Volume 65, Number 228 (November 27, 2000) Docket No. NHTSA 2000-7967.
  14. National Highway Traffic Safety Administation, DOT; Federal Motor Vehicle Safety Standards (Docket No. NHTSA 2004-19239), 70 Fed. Reg. 53,753 (Sept. 12, 1995) (codified at 49 C.F.R. Pt. 571).
  15. Federal Register Vol. 70, No. 175 (September 12, 2005); Docket No. NHTSA 2004–19239.
  16. Id.
  17. Federal Register Vol. 73, No. 140 (July 21, 2008); Docket No. NHTSA 2006–25017.
  18. Id.
  19. NHTSA had concentrated its research and rulemaking efforts on the vehicles mandated by Congress. The agency further reasoned that to include and accommodate vehicles with a GVWR of 10,000lbs or more (many of which are used for commercial purposes), the agency may be required to utilize a significantly different approach with different requirements and test procedures that may not be as closely tailored to avoiding the types of crashes contemplated by the K.T. Safety Act. Thus, NHTSA declined to introduce such requirements at that time.
  20. Federal Register Vol. 79, No. 66 (April 7, 2014); Docket No. NHTSA–2010–0162.
  21. Id.