Safety experts and auto manufacturers have long known that a lack of crash protection exists for children between the ages of four and eight. Most children in this age group have outgrown their child safety seats. Yet they are too small to be adequately protected by seat belt restraints that have been designed for adults and fit poorly on a child’s small frame.1
Automakers say that children who are 12 and under should ride in a vehicle’s rear seats.2 The outside rear seats of domestic vehicles made in the last decade are equipped with combination lap/shoulder belts. Passengers seated in the middle of a rear bench seat are usually secured by a two-point lap belt. Unfortunately, few of these restraints are designed to accommodate an occupant shorter than 57 inches and weighing less than 80 pounds.3 The average six-year-old child—who is right in the middle of the “forgotten child” age range—stands only 47 inches high and weighs merely 52 pounds.
Manufacturers concede that injuries and deaths attributable to the safety gap have reached unacceptable proportions. According to industry estimates, 500 children are killed every year, and thousands more are seriously injured, due to a lack of proper belt usage.4 Many of these children were killed while wearing safety belts.5 At a recent trade show, a former chief executive officer of Ford Motor Co. told colleagues that “these are preventable tragedies and urgent action is needed” to close the safety gap.6
During the 1990s, children between the ages of four and eight were dying in crashes at a rate of about 16 per week.8
Between 1982 and 1998, there was a 23 percent increase in automotive fatalities among children aged five to nine.9 In 2000, 2,343 children under 15 were killed, and more than 291,000 were injured in motor vehicle crashes.10
Manufacturers would have the public believe that the best way to prevent these tragedies is through the use of aftermarket child safety seats. According to the National Highway Traffic Safety Administration (NHTSA), placing a child in an age-appropriate booster seat will reduce a child’s risk of dying in a crash by as much as two-thirds.11
Parents are restraining children four and under in child safety seats. The usage rate of safety seats for children under one year old is 95 percent; the rate for children between ages one and four is 91 percent.12 But according to recent studies, the usage rate for children in the safety gap is substantially lower—10 percent.13
The National Transportation Safety Board and NHTSA recommend that children who outgrow child safety seats be placed in “booster seats” until they are large enough for adult-size lap and shoulder belts.14 A well-designed booster seat positions a child so that the three-point shoulder and lap belts fit better.
However, less than 10 percent of children between the ages of four and eight use booster seats.15 This is probably due, in part, to the lack of consensus among experts concerning which types of seats are appropriate for children of different ages and sizes.
For example, NHTSA recommends that children who have outgrown child safety seats be restrained in booster seats until they are at least eight years old, unless they are 49 inches tall.16 On the other hand, a study conducted by the Children’s Hospital of Philadelphia, State Farm Insurance Co., and the University of Pennsylvania suggests that parents should keep children in booster seats until they are at least eight years old, weigh 80 pounds, and are 58 inches tall.17 In light of this conflicting information, how are parents supposed to determine whether their child should be using a booster seat?
This confusion is exacerbated by manufacturers’ failure to develop their own booster seats. Not every seat works well in every vehicle. Obviously, auto manufacturers are in the best position to determine which types of booster seats are best suited for the wide range of vehicles they build. But they neither build booster seats nor adequately test aftermarket seats to determine which ones can be used safely with their vehicles’ rear seat-belt restraint systems. As a result, parents are denied important information regarding the proper fit of booster seat, child, and vehicle.
In a collision, the seat belt is supposed to slow down the occupant with the vehicle and spread the forces of the collision to the strong bones of the body.18 Proper belt fit and good belt geometry are important in maximizing protection.19
The auto industry has long been aware of the dangers associated with placing children in restraints designed for adults. These dangers result in three types of injuries: submarining injuries to the spine and abdomen; fulcrum injuries to the cervical spine; and injuries associated with partial or full ejection.
As with any crashworthiness case, one brought on behalf of a child injured by improperly fitting, or absent, safety belts is based on the claim that the vehicle was defectively designed because it failed to provide adequate occupant protection during a crash.
In addition to proving that a product is unreasonably dangerous as designed, plaintiffs in many jurisdictions are required to assert a design defect claim to prove the existence of a safer alternative design. A safer alternative design in safety gap cases is the integrated child seat. These are seats with harnesses built into the cushion of a vehicle’s rear seats. They have been available in some European vehicles since the late1980s. Child safety advocates, manufacturers, and safety experts agree that an integrated child seat with a five-point harness is the safest form of child restraint available.35
Most jurisdictions also require plaintiffs to prove that a proposed safer alternative design is economically and technologically feasible. In the United States, Chrysler first introduced five-point integrated child seats in the U.S. market by placing them in its minivans in the 1992 model year. Other manufacturers have also offered the seats, as optional equipment on select model vehicles.
Accordingly, the auto manufacturers’ own conduct proves the technological and economic feasibility of this safer alternative design. Moreover, there is no real functional or cosmetic problem associated with integrated child seats; the seat is virtually indistinguishable from a normal bench seat when the safety seat is not in use.
Plaintiff attorneys also should consider advancing a marketing-defect claim. This concerns the seller’s failure to adequately warn or instruct consumers on the safe use of the product. Manufacturers recognize that nearly 80 percent of parents do not use the proper safety device for their four- to eight-year-old children; automakers clearly have knowledge of the danger. Yet manuals and notices that accompany many vehicles do not warn parents of the danger associated with having children wear seat belts designed for adults.
Many owner’s manuals may suggest that booster seats be used for children who weigh 40 to 80 pounds, but they are unlikely to contain any meaningful instruction on which ones work best with the vehicle’s seat belts. These vehicles therefore lack adequate instructions for safe use by children in the safety gap.
As soon as a potential client contacts you, take immediate steps to preserve the evidence. The vehicle should be secured in its postcrash condition. Nothing should be disassembled or removed from it without notice to the defendants.
You should inspect the seat belt, review the child’s medical records, and interview witnesses to determine if and how the child was wearing the belt. A qualified accident-reconstruction expert should inspect, measure, and photograph the crash scene and any other vehicles involved.
Retain a biomechanical engineer or qualified medical expert to review the medical records, X-rays, and other imaging studies to determine whether the child’s injuries were caused by a belt’s poor fit and geometry. After an initial review, consult an expert with knowledge of automobile design to analyze the design defect claims.
Obtain documentation from the manufacturer relating to the design and marketing issues raised in the case. Many of these materials have been disseminated publicly or uncovered in earlier litigation, so you may already have many of the relevant documents even before filing the case.
First, the automaker may deny that a safety gap exists. This defense is easily refuted by statistical information compiled by independent third parties like the consumer advocacy group Public Citizen and by the auto industry’s own statements acknowledging the safety gap.
Second, the manufacturer may blame the child’s parents for not using a booster seat. To counter this, produce evidence showing there is no consensus on the appropriate use of booster seats. Properly qualified design and biomechanical experts can explain why the use of a booster seat may not have prevented the injuries sustained in a particular crash.
Finally, the manufacturer almost certainly will argue that because its rear-seat restraint system meets Federal Motor Vehicle Safety Standards, it is not defective. However, compliance with government standards does not establish as a matter of law that the design is not defective. Explain to the jury that these are minimum standards and that nothing prevents manufacturers from exceeding these minimum standards in the interests of children.
Auto manufacturers have a duty to design and market cars that provide consumers of all ages with a reasonable level of protection in the event of a crash. While seat belts may provide protection for many adults, a gap in crash protection exists for children between four and eight years old. Successfully pursuing cases for the forgotten children in this age group should allow the injured to obtain justice and cause auto manufacturers to improve the safety of their cars.
1. Martha W. Bidez & Stephen R. Syson, Kinematics, Injury Mechanisms, and Design Considerations for Older Children in Adult Torso Belts, SAE 2001-01-0173, in BIOMECHANICS RESEARCH & DEVELOPMENT (Soc’y Auto. Eng’rs 2001); Richard Stalnaker, Inconsistencies in State Laws and Federal Regulations Regarding Child Restraint Use in Automobiles, SAE 933087, in CHILD OCCUPANT PROTECTION 51 (Soc’y Auto. Eng’rs 1993).
2. Jacques Nasser, Former Chief Executive Officer, Ford Motor Co., Address at the New York International Auto Show (Apr. 2000).
4. See FORD MOTOR CO., BOOST AMERICA! RAISING KIDS WITH SAFETY IN MIND, available at www.actsinc.org/childpassengersafety.html (last visited Sept. 27, 2002).
5. See generally AUTO. COALITION FOR TRAFFIC SAFETY, INC., CHILD PASSENGER SAFETY, at www.actsinc.org/childpassengersafety.html (last visited Sept. 27, 2002).
6. See Nasser, supra note 2.
7. See S. REP. NO. 107-137 (2002).
11. NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., BUYING A SAFER CAR FOR CHILD PASSENGERS (2001), available at www.nhtsa.dot.gov/People/ Injury/ChildPS/SaferCar2001/contents.html (last visited Sept. 27, 2002).
12. NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., TRAFFIC SAFETY FACTS 2000—CHILDREN 5 (2000), available at www-nrd.nhtsa.dot.gov/pdf/nrd-30/ NCSA/TSF2000/2000chdfacts.pdf (last visited Sept. 27, 2002).
13. Press Release, Automotive Coalition for Traffic Safety, Blue Ribbon Panel II Announces Recommendations to Improve Child Passenger Safety (Mar. 15, 1999), available at www.actsinc.org/ whatsnew_5.html (last visited Sept. 27, 2002).
14. See S. REP. NO. 107-137, supra note 7.
16. See S. REP. NO. 107-137, supra note 7.
17. PARTNERS FOR CHILD PASSENGER SAFETY PROJECT, PARTNERS INTERIM REPORT (1997), available at www.chop.edu/download/ Interim_report.pdf.
18. Bidez & Syson, supra note 1.
20. Bidez & Syson, supra note 1.
21. David L. Perry, A Primer on Crashworthiness for the Non-Crashworthiness Lawyer (Nov. 3, 2001), available at www.crashworthinesscases.com/crashworthinessIntro.html.
22. See S. REP. NO. 107-137, supra note 7.
26. Bidez & Syson, supra note 1.
30. No. 010902023 PI (Utah, Salt Lake County Dist. Ct. June 26, 2002).
31. See Utah Highway Patrol Accident Report (Nov. 8, 1999).
32. Bidez & Syson, supra note 1.
35. FORD MOTOR CO., INTEGRATED CHILD RESTRAINT STRATEGY STATUS REPORT (1995).