Lawsuits: This Year's Model

May 30, 2004
By DANNY HAKIM and NORM ALSTER

FORT WORTH

JUST before dark on Halloween night in 2002, Dereck Lopez turned her red Chevrolet Cavalier onto Hemphill Street, a long road that runs from downtown Fort Worth to the outskirts of the city. Ms. Lopez, 18, was heading to her brother's house to take her nieces trick-or-treating.

Born in Mexico but raised in Fort Worth, she attended the Our Lady of Victory elementary school on the same road. At home, posters and magazine pictures of Enrique Iglesias covered her bedroom door, some with lipstick kisses, and scores of Beanie Babies hung in a net over her bed. So did a Samurai sword.

At her quinceañera, a traditional Latin party for a girl's 15th birthday, Ms. Lopez changed out of a party dress to demonstrate her black-belt moves in the martial art of tae kwon do. She would win a gold medal in that sport in the 2000 Junior Olympics and hoped to compete in the Olympic Games for the United States.

But that Halloween night, two weeks after she received her American citizenship, a drunken driver in a 1992 Chevrolet Silverado, a large pickup, ran a red light and plowed into the side of her 1998 Cavalier, a compact car. The Silverado, weighing at least 4,000 pounds and specially equipped with a rigid steel grille guard, cratered the left side of the 2,600-pound Cavalier, pushing it down the street and up onto the sidewalk. The front end of the pickup had skipped over the Cavalier's door sill - a part of the car designed to absorb energy in side impacts - and smashed into the driver's-side window, fracturing Ms. Lopez's skull. She died six days later, without ever regaining consciousness.

Similar tragedies happen on roads every day. But this one had an unusual twist that, some legal experts say, presages a costly new legal front for automakers.

The Lopez family, which had bought several new Cavaliers over the years, is suing General Motors on the grounds that it made a car it knew was not safe enough to survive collisions with its other products, namely its large pickups and sport utility vehicles. The heart of the family's argument is that the company has been slow to equip vehicles with side air bags that protect people's heads, a technology that could have saved her life.

"Everybody deserves the right to be safe in a vehicle they can buy," said Jay Lopez, Dereck's 26-year-old brother and an elementary-school teacher, referring to the fact that side air bags are most often found in luxury vehicles. Those are the kind of cars that he says his father, a banquet waiter, and his mother, a housecleaner, cannot afford. "Just because you can buy a Lexus or a Mercedes doesn't mean you should have more of a chance to survive a wreck," he said. "Ultimately, we're all the same inside that vehicle. We're all precious to somebody."

Brenda Rios, a spokeswoman for G.M., said her company complied with the rules and should not be held responsible if big vehicles sometimes collide with small ones, creating what people in the industry call "compatibility" issues. "Consumers demand different types of vehicles, big and small, to meet their needs, and G.M. tries to provide vehicles that do that," she said. "All of our vehicles meet or exceed federal safety standards. G.M. is not aware of a single court that has recognized 'incompatibility' as a valid basis for a lawsuit against an auto manufacturer."

SO far, at least a dozen suits have been filed in four states against G.M., the Ford Motor Company and the Toyota Motor Corporation. Automakers have settled more than half of the suits, lawyers involved in them said, some for multimillion-dollar sums. Confidentiality agreements make it difficult to determine the total number of suits that have been filed, but legal experts see a new and potentially costly problem for an industry already beset by S.U.V. rollover lawsuits.

Some of the new suits go after the maker of the passenger car, arguing that the industry did not adequately design cars to stand up to S.U.V.'s and pickups. Others go after the maker of the S.U.V. or truck that hit the car, arguing that the vehicles were knowingly designed in a way that was needlessly unsafe.

"I think you'll see more and more respected clients' attorneys getting into this area, because there's been an explosion of knowledge about S.U.V. risk," said Richard L. Denney, an Oklahoma lawyer who was chairman of a committee of attorneys involved in consolidated federal litigation against Firestone, relating to the much-publicized fatal rollover accidents involving Ford Explorers.

Until recently, Mr. Denney said, lawyers lacked extensive knowledge of risks inherent in S.U.V. designs. But much was learned during the discovery process for the Ford-Firestone case, in 2000. "It caused us all to take a closer look at S.U.V.'s," said Mr. Denney, adding: "And not just Ford's S.U.V.'s. All S.U.V.'s."

The problem is not just that S.U.V.'s and pickups are heavier than passenger cars. They also ride higher off the ground and often do not engage the most crash-resistant parts of cars, overriding their bumpers or, even worse, smashing their front ends directly into the heads of people in cars in side impacts.

The problem has worsened as S.U.V.'s have supplanted station wagons and as large pickups are increasingly marketed as family vehicles. The risk is particularly high in side impacts, in which a car's occupant is almost three times more likely to die if hit by an S.U.V. instead of a car, and five times more likely if hit by a pickup, according to federal crash statistics. When an S.U.V. or a truck hits a car in the side, the driver of the car is nearly 29 times more likely to die than the driver of the light truck, the figures show.

Since 1980, S.U.V.'s and other trucks have grown from one-fifth to more than half of all sales of passenger automobiles. The industry denied for years that this posed a safety problem, but last year, under pressure from federal regulators, 15 automakers from four nations agreed to work jointly to address the compatibility issue and to make their S.U.V.'s and pickup trucks less dangerous to passenger cars.

"It's new territory," said Tab Turner, one of the most active lawyers to bring rollover suits against automakers; he has not brought any compatibility suits. "I think they're vulnerable," he said of automakers, adding, "it opens up a whole different aspect of litigation when you have the potential for occupants not in your car bringing litigation."

The first case filed under such a theory, in 1997, was not successful. A California state court judge eventually ruled that Land Rover, the maker of the Range Rover S.U.V., had "no duty" to protect the lives of people in other vehicles. A year later, a California state appeals court agreed, saying that the legal theory behind the suit, "taken to its extreme," would mean that buses and 18-wheelers would have to be compatible with light-duty vehicles.

But Howard A. Latin, a law professor at Rutgers University, disagreed in a lengthy examination of the case he wrote with one of his students for the Boston University Law Review. In an interview, he said the rulings were inconsistent with precedents set in product liability cases in California and other states.

"The duty has always, since product liability arose, been one of reasonable safety in light of the benefit of the product and its risks," he said. "Heavy trucks and buses have very specific purposes. What do people do with S.U.V.'s? Ninety-nine percent drive them just like passenger vehicles. So this whole argument is completely bogus."

One hurdle for plaintiffs is the recent adoption in many states of the product liability principle of "reasonable alternative design." Under this principle, it is not enough to prove that a product is destructive, said Robert L. Rabin, a law professor at Stanford. "In order to succeed," he said, "the plaintiff has to show there's a reasonable design alternative for this type of product."

But automakers' recent joint agreement to work on making light-duty trucks less harmful to passenger cars may have made it easier for crash victims to sue them. That is because the agreement indicated that such alternative designs were already in place on some vehicles, but not others. As the first step in the agreement, automakers said they would adjust the bumper heights of their S.U.V.'s and pickups to overlap with at least half of the bumpers of cars. Such changes have already been made to varying degrees by certain automakers.

AUTOMAKERS have also agreed to equip almost all of their vehicles with side air bags with head protection. This month, federal regulators proposed new tests that would make that a requirement. The government estimates that such changes would save 700 to 1,000 lives a year. But those changes are not due until the end of the decade.

Makers of passenger cars could be sued for failing to offer side-impact air bags, Professor Rabin said, since they have been available for years but not as standard equipment on most vehicles and not offered at all on others. In their own defense, automakers have said that they were preoccupied in the 1990's with solving hazards posed to children by first-generation frontal air bags.

In any case, said Donald H. Slavik, a partner at Habush, Habush & Rottier, a personal-injury law firm in Milwaukee, it is "very expensive to prove" that an alternative design is not only safer but is practical.

Larry E. Coben, a lawyer in Phoenix who has reached settlements in five cases involving crash-compatibility issues, said it could cost "hundreds of thousands of dollars" to hire an expert who could prove the availability and effectiveness of alternative designs.

Lee Brown of Dallas, the lawyer representing the Lopez family, says he believes its suit is particularly strong because "it presents a clear example of something that G.M. could do something about."

"It's a G.M. pickup hitting a small G.M. passenger car," he said. "Who knows their own vehicles better than General Motors? They knew that the vehicles were overly aggressive." He added that "the people who are at the greatest risk are G.M.'s consumers driving small passenger cars."

Like many accidents, the one that killed Dereck Lopez involved several contributing factors. The driver was found to be drunk, and he ran a red light, according to the police report. But Dr. Marc A. Krause, the medical examiner who performed the autopsy on Ms. Lopez, said she probably would have survived the accident if the vehicle had been equipped with a side air bag that provided head protection. He is prepared to testify to that effect, he said.

"The injury she sustained that killed her was a direct impact to the head, because something hit her in the head, and that's what air bags are obviating," he said, adding that it was possible, but not certain, that she would have returned to a normal life. "Most of the time, if people have an impact and a head injury, it is of the type that can be overcome. It's like going through a minor stroke. Usually it can be rehabilitated."

Two years ago, Mr. Brown settled a suit against Ford in which another family contended that the driver of a Ford Taurus sedan had suffered unnecessary injuries during a collision with an S.U.V. in Oklahoma. Although Ford agreed to settle the case, a company spokeswoman, Kathleen Vokes, said Ford was not at fault. "This injury could not have been prevented from a manufacturing or design point of view," she said.

E. Todd Tracy, another lawyer in Dallas, has three similar suits pending and says he has settled three out of court. "This is definitely a very new area of litigation," he said. "We're trying to suggest that the manufacturers have an obligation to people in the struck vehicle."

One complaint filed by Mr. Tracy in federal court in Texas alleged that a girl was injured when a 2001 G.M.C. Jimmy S.U.V. slammed into the rear of the automobile in which she was riding. The Jimmy, the suit contended, was "unreasonably dangerous" because of its "overly aggressive front structure." The suit was settled last year for an undisclosed sum.

Ms. Rios, the G.M. spokeswoman, said the case set no precedent for compatibility suits. "It wasn't settled because of any issue with compatibility," she said, adding that the settling of a case by no means implies there was a defect.

In another suit brought by Mr. Tracy involving a similar accident, Toyota is the defendant. In that case, a girl sitting in the back of a 1998 Corolla was killed when it was struck from behind by an S.U.V., according to a complaint filed in the federal court in Texas. The complaint alleges that Toyota produced a vehicle that had "no rear structural integrity" and "no override protection" against larger vehicles.

Toyota, in a legal filing responding to the suit, said that the girl's "injuries and damages, if any, were caused in whole or part by the negligence of person or entities over which TMC has no control" - namely, the driver of the S.U.V.

IN a strip of grass across the street from a convenience store here, Jorge Lopez collected an empty box of Tecate beer and a newspaper page that had blown in front of the wooden cross that is a makeshift memorial to his daughter. The drunken driver who caused the wreck has been sentenced to 18 years in prison, but Mr. Lopez says he still wants justice from G.M. With the trash in his hand, he moved to the spot on the sidewalk where his daughter's car came to rest a year and a half ago.

"It's not only my daughter," he said. "It's a lot of kids who go to school. They work and need transportation. They need something safe because we cannot provide expensive cars like the big trucks."

He and his family say they are angry that side air bags were available on G.M. cars in Europe at the time the 1998 Cavalier was made, that the company had been doing extensive research on the technology and that air bags are most common on luxury vehicles. If G.M. had at least offered the air bag as an option on Cavaliers, he said, he would have bought it.

Much of the Lopez family's house is now a memorial to Dereck, the youngest of four siblings. There is a shrine in the living room where her ashes are kept. Her room remains untouched, lined with towering trophies. A fake vanity plate on her door says "DERECHA," a play on her name that can mean "straight" in Spanish; the letters are crooked. The chest protector she wore while sparring still sits above her television.

Thirty years ago, the United States had the lowest fatality rate in auto accidents in the world. Since then, fatality rates in all industrialized nations have declined as technology has improved and seatbelt use has climbed. But the rate has declined more slowly in the United States, which has fallen behind at least eight other nations.

Last year, 43,320 Americans died in traffic accidents, the highest total since 1990, and federal regulators cited the proliferation of light-duty trucks as a contributing factor. S.U.V.'s and large pickups are also generally less safe than cars for their own occupants because, statistics show, they are more likely to roll over, a particularly deadly accident.

But trucks are the most profitable vehicles sold by automakers, and the impetus to sell them in an immensely competitive industry is strong. For many people, they have become the ultimate status symbols.

"She had a catalog with a picture of a Hummer," Dereck's father said, as he drove down the road where his daughter was fatally injured. "She used to say, 'When I graduate I'm going to buy one of these.' I said I couldn't afford one, and she said, 'No, Daddy, when I graduate I'll buy one.' She had a lot of dreams, a lot of dreams."

 

Danny Hakim reported for this article from Fort Worth and Detroit. Norm Alster reported from Cambridge, Mass.