Tuesday, September 07, 2010
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Burns - Automobile Accident Demand Letter

Automobile Accident

Demand Letter

III - PRIVATE AUTOS' LIABILITY

A. STRICT TORT LIABILITY IN TEXAS

1. 402A

Restatement (2nd) of Torts §402A (1965) represents the linchpin of strict tort liability in Texas. §402A enumerates four basic elements of proof for a strict tort liability action:

  1. The product must be defective;
  2. The product must reach the consumer without substantial change from the time it leaves the possession and control of the manufacturer or seller;
  3. The defective condition of the product must render the product unreasonably dangerous; and
  4. The unreasonably dangerous condition of the product must be the cause of the injury to the user.

2. Statutory Law: CPRC 82.005

§402A was partially codified by the Texas Legislature effective September 1, 1993, in the form of Chapter 82 of the Civil Practice and Remedies Code. §82.005 sets forth a cause of action for design defects which states:

  1. In a products liability action in which the claimant alleges a design defect, the burden is on the claimant to prove by a preponderance of the evidence that:
    1. there was a safer alternative design; and
    2. the defect was a producing cause of the personal injury, property damage, or death for which the claimant seeks recovery.


  2. In this section, 'safer alternative design' means a product design other than the one actually used that in reasonable probability:
    1. would have prevented or significantly reduced the risk of the claimant's personal injury, property damage, or death without substantially impairing the product's utility; and
    2. was economically and technologically feasible at the time the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge.

Producing Cause is defined in the Texas Pattern Jury Charge as an efficient, exciting, or contributing cause that, in a natural sequence, produces the injury. It differs from proximate cause in that it is not necessary to prove foreseeability in producing cause.

3. Relevant Case Law

a. Defective Design

Establishing the physical properties of a product is not as critical in design defect cases as in manufacturing cases because the product conforms to the design specifications for the entire line of products. The design configuration must simply render the product unreasonably dangerous.

The factors relevant in evaluating the adequacy of a product design include:

(1) The usefulness and desirability of the product as designed;

(2) The availability of other and safer products to meet the same need;

(3) The likelihood of injury or the risk of harm and the probable seriousness of such injury;

(4) The obviousness of the danger presented by the particular design;

(5) The common knowledge and normal public expectation of the risk of danger presented by the product;

(6) The avoidability of injury by the exercise of care and the use of the product;

(7) The ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive.

International Harvester Co. v. Zavala, 623 S.W.2d 699 (Tex. App. - Orchard [1st Dist] 1981, writ ref'd n.r.e.).

b. Safer Alternative Design

Evidence that a product could be re-designed inexpensively and eliminate or materially reduce the harm or danger is the critical proof that the existing design is defective. Alternative available design is now the statutorily-mandated basis for establishing a defective design in Texas. See Tex. Civ. Prac. & Rem. Code §82.005(b); Miller v. Bock Laundry Machine Co., 568 S.W.2d 648 (Tex. 1977).

Evidence that a manufacturer presently designs a safer product furnishes an inference that a safer design was feasible at the time of manufacture and that the existing design is defective. Helicoid Gage Div. of Am. Chain & Cable Co v. Howell, 511 S.W.2d 573 (Tex. App. - Orchard [14th Dist.] 1974, writ ref'd n.r.e). Evidence that an inexpensive safety device was available and would have eliminated the risk of harm at the time the product was designed and manufactured constitutes evidence that the selected design rendered the product unreasonably dangerous. Id.

Evidence that other manufacturers and suppliers of a product utilize a design configuration that renders the product significantly safer for its intended and foreseeable use likewise furnishes evidence that the existing design is defective. Rourke v. Garza, 530 S.W.2d 794 (Tex. 1975).

As a general rule, evidence of subsequent changes or modifications is not admissible to establish negligence or culpable conduct. However, under Tex. R. Evid. 407a, the Texas Supreme Court has declared that nothing in the exclusionary rule precludes the admissibility of subsequent changes in products liability cases. Federal Pacific Elec. Co. v. Woodend, 735 S.W.2d 887 (Tex. App. - Ft. Worth 1987, writ ref'd n.r.e.).

c. Unreasonably Dangerous Product

Whether the design configuration renders the product unreasonably dangerous is determined by balancing the utility of the product as designed against the risk of harm presented by the product as designed. Acord v. Private Autos Corp., 669 S.W.2d 111 (Tex. 1984).

B. TEXAS LAW APPLIED TO STALLION GLIDER EXCEL

In applying Texas product liability law to the design of the Stallion Glider Excel involved in this tragedy, it is obvious that the fuel containment system is uncrashworthy in the following aspects: a) the fuel filler neck is defectively designed; b) the fuel tank is located in the primary crush and intrusion zone; c) considering the unreasonably dangerous location of the tank, it is not properly shielded; and d) considering the unreasonably dangerous location of the tank, it should contain a liner.

Basic principles of product liability law, in Texas and elsewhere, dictate that when a hazard exists, the first objective is to eliminate the hazard. In the event the hazard cannot be eliminated, the second principle is to guard against the hazard. In the event the hazard can neither be eliminated nor guarded against, the ultimate users of the product should be warned against the hazard. In this case, the hazards inherent in the fuel containment system in the Stallion Glider Excel have neither been eliminated, guarded against, nor warned against.

1. Uncrashworthy Fuel Filler Neck

The fuel filler neck design and attachment are significant factors in crash performance. The performance of the fuel filler neck and attachment in the 1992 Stallion Glider Excel involved in this tragedy offers clear and convincing proof that the design fails the crashworthiness test completely.

a. Defective Design

As a result of the totally inadequate and defective design of the fuel filler neck and attachment involved in the collision, the fuel was evacuated from the gas tank within a matter of seconds. The resulting conflagration spread immediately throughout the Glider with the resulting incineration of three of the passengers and severe burning of the other three. The "fuel containment system" in this Stallion Glider clearly failed to contain the fuel due to defective design.

Applying the factors relevant in evaluating the adequacy of a product design as espoused by the Orchard Court of Appeals in International Harvester v. Zavala, supra at 7, to the fuel filler neck, it is obvious that the design is defective:

(1) the fuel filler neck is neither useful nor desirable as designed;
(2) there are other, safer products available to meet the same need more effectively and safely;
(3) the likelihood of injury or risk of harm and the probable seriousness of such injury in the use of this uncrashworthy fuel filler neck is best manifested in the case at bar;
(4) the obviousness of the danger presented by the particular design is blatant when compared to the safer convoluted fuel filler neck;
(5) the public has no common knowledge or expectation of the risk of danger presented by this fuel filler neck. To the contrary, the public expectation is that the fuel containment system will be designed in a safe fashion so as to withstand a rear-end collision of this type;
(6) there is nothing the end user of the fuel filler neck can do to avoid injury by the exercise of care; and
(7) the danger inherent in the use of this fuel filler neck can be eliminated without seriously impairing the usefulness of the product or making it unduly expensive.

Thus, when a Texas jury has the opportunity to test the defective design of the fuel filler neck utilized in the 1992 Stallion Glider Excel Sunset against the principles of Texas law, it is obvious that the product will be determined to be defectively designed.

b. Safer Alternative Design

Applying the Texas law that the product could be redesigned inexpensively to eliminate the harm or danger is very simple in this case since there is a superb fuel filler neck available on the market which had been used successfully for twenty years. Ironically, the safer alternative design is the Private Autos convoluted fuel filler neck.

(1) PAC's Convoluted Fuel Filler Neck

Since the early 1970's, Private Autos has successfully used the convoluted fuel filler neck in millions of its passenger vehicles. The Stallion Glider is basically an elevated station wagon. There is no valid engineering reason why the successfully utilized convoluted fuel filler neck could not be designed into the Stallion Glider Excel Sunset. There are many valid safety reasons as to why it should be used.

(2) Private Autos Passenger Cars

Private Autos will have a very difficult time in trying to establish to a jury that the convoluted fuel filler neck which is so successful in millions of their vehicles is not a safer alternative design to the fuel filler neck which failed completely and caused the conflagration in this case. Thus, the safer alternative design for the uncrashworthy fuel filler neck in the Stallion Glider Excel is the Private Autos convoluted fuel filler neck.

c. Unreasonably Dangerous Product

In applying the risk vs. utility test espoused by the Texas Supreme Court in Acord vs. Private Autos Corp., supra at 7, to the fuel filler neck used in the 1992 Stallion Glider Excel Sunset, it is obvious that this product is unreasonably dangerous as designed. The fuel filler neck has no utility when compared to the convoluted fuel filler neck which performs the same function in a much safer fashion. In order to evaluate the risk of harm of the continued use of the defective fuel filler neck, a Texas jury need only look at the autopsy photos and the burn victim photos in this case.

d. Relevant Documents

(1) Design Direction-8-A

The solutions to the precise hazards which caused the incineration of the 1992 Stallion Glider Excel Sunset were discussed in Design Direction-8-A in August, 1969, when the dangers of intrusion into the crush space, puncture of the gas tank, and loads imparted to the gas tank were discussed and design features were recommended in order to deal with these problems. One of the features recommended included:

3. Decrease filler neck column strength by the use of convolutions in order to reduce the loading imparted to the tank during impact.
The design was incorporated into the passenger vehicles but was not utilized in the Stallion Glider Excel Sunset.

(2) CPPO-8: Incipient Failure

In 1979, a leakage proposal was made to the General Technical Committee of Private Autos as follows:

A corporate product performance objective will be established controlling fuel leakage within the leakage limits specified with no evidence of incipient leakage beyond those limits.
CPPO-8

The fuel containment system design committee recommended that, in the interest of safety, fuel containment systems should be designed to cope with incipient failure. Designing for "incipient failure" would elevate the level of safety involved in the fuel containment system.

At the General Technical Committee meeting of August 16, 1979, this incipient failure recommendation known as CPPO-8 was rejected. In rejecting CPPO-8, the General Technical Committee failed in the opportunity to meet the first criteria of a dangerous product, i.e., to eliminate the hazard.

2. Uncrashworthy Fuel Tank

The fuel tank in the Stallion Glider Excel is part of an overall defective design of the vehicle in that the location of the fuel tank is in the primary crush and intrusion zone. When consideration is given to the different heights of vehicle bumpers, the probability of overlap in a rear impact collision is foreseeable. The fuel tank should be placed forward of the axle and as near the center of the vehicle as possible to remove it from the primary crush and intrusion zone. Failure to comply with these principles and remove the hazards inherent in a rear override renders the location of the fuel tank in the Stallion Glider Excel unreasonably dangerous.

a. Defective Design

In the car-to-car impact development testing done by Private Autos, the overlap rear impact has been tested on numerous occasions. When the Private Autos design engineers chose not to remove the hazardous fuel tank from its unreasonably dangerous location, they had a secondary responsibility to guard against the precise hazard which was involved in this tragedy by taking steps to protect the fuel tank from leakage. They failed to do so and such failure was a producing cause of the tragic burn deaths and burn injuries in this case.

One of the basic principles of product liability is that design engineers must take into account the environment of use of the product and design in such a manner as to eliminate hazards which will be confronted within that environment of use. The environment of use of the 1992 Stallion Glider Excel Sunset includes use on roadways where there are numerous vehicles which have a different bumper height than that of the Glider , such as the Ford F-150. It is foreseeable in using the Stallion Glider Excel Sunset on the American roads that there will be an overlap rear impact or an angled rear impact on the gas tank and filler neck side. It is thus incumbent upon the design engineers to foresee and eliminate the hazard of placing the gas tank in the left rear quadrant of the Glider with an inadequate fuel filler neck.

Applying the criteria for establishing defective design as espoused by the Orchard Court of Appeals in International Harvester Company v. Zavala, supra at 6, to the location of the fuel tank, it is obvious that the product is defectively designed:

(1) there is no usefulness or desirability of the fuel tank being located in the primary crush and intrusion zone;

(2) there are other safer designs which meet the same need, i.e., placing the fuel tank in front of the axle, out of the primary crush and intrusion zone, and nearer to the center of the vehicle;

(3) the likelihood of injury or risk of harm and the probable seriousness of such injury by having the fuel tank located in the primary crush and intrusion zone is rendered extremely obvious by this case;

(4) the danger presented by this particular design is obvious;

(5) the public is unaware of the risk of danger presented by the location of the fuel tank and the normal public expectation is that the vehicle will be designed so as to withstand a foreseeable rear-end collision;

(6) there is nothing the vehicle owner can do to avoid injury by exercise of care when using a fuel tank located in the crush and intrusion zone; and

(7) the danger can be eliminated without seriously impairing the usefulness of the product or making it unduly expensive by simply moving the fuel tank to a location in front of the axle, near the center of the vehicle and out of the crush and intrusion zone.

b. Safer Alternative Design

Applying Texas law concerning safer alternative design of the Glider 's fuel containment system, once again it is not necessary to go outside Private Autos to arrive at such a design. It will only be necessary for the jury to look at the Stallion Excel pickup in order to immediately recognize that the safer alternative design of the Stallion Glider Excel Sunset would be placement of the gas tank in the center of the vehicle.

(1) Eliminate Hazard: Move Tank

The obvious safer alternative design is to eliminate the hazard by placing the gas tank in the middle of the vehicle, in front of the axle, out of the primary crush and intrusion zone.

(2) Guard Against Hazard

Failing the elimination of the hazard, the next best scenario for the design engineers would be to guard against the hazard of fuel spillage, ignition, and conflagration. At least three different steps could be taken which would help to guard against this treacherous hazard:

(a) Liner Within Tank

If the fuel tank is to be left in the primary crush and intrusion zone, the tank should be supplied with a liner which would hold the fuel in the event that the gas tank is punctured. Such a safer alternative design has been used by Private Autos in the Stallion Corvette.

(b) Shield Top of Tank

Since the environment of use of the vehicle dictates that vehicles with higher bumpers may override into the primary crush and intrusion zone, one means of guarding against the hazard of fuel leakage, ignition and conflagration is to shield the top of the tank in order to avoid punctures such as occurred in this case.

The puncture in the top of the gas tank in the 1992 Stallion Glider Excel Sunset involved in this accident was very small and contributed very little to the total conflagration since the shredding of the fuel filler neck virtually evacuated the fuel tank within a few seconds.

(c) Convoluted Fuel Filler Neck

If the location of the fuel tank continues to create an unreasonably dangerous hazard, as it does in the 1992 Stallion Glider Excel Sunset, at the very least the design engineers should have attempted to guard against the hazard by using the well-designed, well-tested and well-established Private Autos convoluted fuel filler neck.

c. Unreasonably Dangerous Product

Applying the risk vs. utility test of Acord vs. Private Autos Corporation, supra @ 10, to the location of the fuel tank it is obvious that the risk of harm presented by the product as designed could be greatly reduced without adversely affecting the utility of the product. Thus, the location of the fuel tank in the 1992 Stallion Glider Excel Sunset renders the vehicle unreasonably dangerous.