My previous column was, even by my own standards, something of a despondent rant. It was about how regulations and standards are helpful design parameters, but risk outranks them both. The risk here is real-world events – or accidents as plaintiffs like to call them. And it was about how, if the accident happens in the USA, the vehicle involved will be subjected to a crashworthiness test. This situation is not without irony. Consider this. At the embryo stage, the integrity of the design and build are subjected to a crashworthiness test performed by competent, experienced engineers in a controlled environment. But then, post-accident, the same test is carried out by a jury who are incompetent, inexperienced and in an uncontrolled environment. This doesn’t always end well.
In 1968 General Motors was sued by a plaintiff called Larsen. The US court decided that accidents are foreseeable to OEMs, so cars must be made crashworthy and any injuries caused by the lack of crashworthiness must be compensated for by the OEM. This is regardless of the cause of the accident itself. And it even applies in ‘pilot error’ cases, where the root cause and the victim are one and the same. This judgment equated GM to a safety guarantor.
Time, then, to deploy a word I never thought I’d use in this column: jurisprudence. This very grand term simply means legal theory. Since the 1920s, US jurisprudence has been curated as legal theory in books called ‘restatements’. These are so called because each series displaces the last one. Imagine a suite of test protocols, only written by judges for judges – if you get one of these, apply this test. In the late 1980s the third restatement replaced the second one and, by all accounts, it was quite an overhaul. It also dealt a catastrophic blow to OEMs selling products in the USA. It adopted the crashworthiness test from the GM case. And just like that, a test was set for the coming decades. It’s an understatement to say this was a stick for plaintiff’s lawyers to beat OEMs with. It was an assault rifle.
But then, in 2014, came a glimpse of hope for car makers in the USA. In the case of Tincher v. Omega Flex, the Pennsylvania Supreme Court decided not to adopt the third restatement on product liability law. My firm’s head office is in Philadelphia, so I have an inside perspective on the impression this made on the legal community. It was stunned confusion.
It left me and many of my peers wondering whether this meant that OEMs could now defend claims in the USA just as they could defend them anywhere else in the world. The answer hasn’t exactly proved to be straightforward. For now, in Pennsylvania at least, a plaintiff has two ways to demonstrate that a car is defective. Out goes the crashworthiness test and in comes the ‘consumer expectations’ test and the ‘risk-utility’ test. In the former, a car is deemed defective if it is proved to be more dangerous than a reasonable consumer would expect. In the latter, a car is deemed defective if the chances of harm are proved to outweigh the utility.
Whatever you make of these tests, they seem far better than the crashworthiness test. Honda certainly thinks so. Last year, in a case called Martinez, the OEM set about trying to overturn an award of some US$50m on the basis that the judge had given the jury the wrong instructions by telling them to examine crashworthiness. So, not just pilot error, you could say, but judge error.
