COPYRIGHT© 2001
Perry & Haas, L.L.P. Attorneys at Law

A Primer on Crashworthiness
FOR THE NON-CRASHWORTHINESS LAWYER
July, 2001
DAVID L. PERRY Perry & Haas, L.L.P.

Final Questions

There are several final questions that should be considered regarding the potential crashworthiness case:

Was the injured party belted?
Even though Texas statutes make use or non-use of a seatbelt inadmissible in collision cases (Section 545.413(g), Texas Transportation Code), the information may be admissible in crashworthiness cases. First, when the case alleges failure of the seatbelt system, the evidence that the plaintiff was belted is admissible. Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 134-35 (Tex. 1994). Second, automotive defendants argue that when failure of the restraint system is alleged, they should be able to show the plaintiff’s failure to use portions of the system which were provided. In Texas, at present, the courts have not yet ruled on this issue.

This is a situation in which the distinction between "true crashworthiness" cases and other cases may be important. Belt use or non-use is clearly inadmissible in non-crashworthiness cases (e.g. tire failure or brake failure), but is admissible in crashworthiness cases alleging restraint failure, and might be admissible in other crashworthiness cases.

The evidence of belt usage is frequently unclear or difficult to capture and preserve.

Although police reports include an indication of belt usage, it is rare that investigating officers have good information on belt usage in catastrophic injury cases. They frequently rely on information from early arrivals at the scene, who frequently unfasten seatbelts to assist an injured person. Locating such persons and making a firm determination of the eyewitness testimony of seatbelt usage can be very important. In ejection cases, police may assume that belts were not being used, and are generally not trained to make a careful examination of the physical evidence to look for belt usage.

It is important to locate and preserve both the best eyewitness evidence and the best physical evidence of belt usage.

Eyewitness evidence will generally come either from the injured person, fellow occupants of the vehicle, or first arrivals on the scene. First arrivals who found the injured person belted are the best witnesses, but are often difficult to locate. It can be critical to locate all early scene arrivals immediately, before police notes are lost, or addresses and phone numbers change. It is not uncommon for one early arrival to believe the injured was unbelted, not being aware that another person arrived even earlier and unfastened the belt. The injured person and fellow occupants are also important, even though they may have somewhat less credibility than the early arrivals who have "no dog in the fight."

Physical evidence is of three types:
1) The condition of the belt as found at the scene, which may be transitory and should be documented by photographs immediately;

2) Witness marks in the vehicle, which may be difficult to locate except by an expert;

3) Witness marks of belt usage on the body of the occupant, in the form of distinctive strap-like bruises on the pelvis, abdomen, chest, or shoulder.

We have handled cases in which the belt was found still buckled although the occupant had been ejected. (The ejection was due to a seatback failure during a rollover of a topless SUV which allowed the occupant to slide up and out of the belt.) It is not uncommon for the belt to be found extended for most or all of its length, and twisted or jammed in a D-ring or anchor spool, mutely testifying to its usage prior to impact. Occasionally a belt will be found extended and jammed into a closed door, evidencing both belt usage and door opening during the collision. All of these kinds of transitory conditions should be documented photographically at the earliest opportunity, and should not be disturbed pending expert examination.

Experts frequently find witness marks inside the vehicle, including on the belt, sometimes including human tissue, markings from clothing patterns, and markings on the seatbelts which demonstrate belt usage or non-usage, or proper function or malfunction. Frequently these markings are difficult for a non-expert to see or interpret, and are fragile. Sometimes proper interpretation requires DNA or similar testing.

It is quite common for seatbelts to cause bruising on the bodies of occupants which is very important in determining seatbelt usage and function. In death cases, such markings may be preserved by autopsy photos. In injury cases, the attorney should act quickly to secure photos or medical record documentation before the healing process destroys the evidence.

Does the case involve catastrophic injury or death?
If the answer is no, the case is unlikely to be a viable crashworthiness case.

Most crashworthiness cases involve either death or extremely serious, permanent injuries, such as brain damage, spinal cord injury with resulting quadriplegia or paraplegia, or some other similarly serious injury. Unfortunately, minor injuries or even moderate injuries are not suitable for handling as crashworthiness cases. The unfortunate and unfair truth is that the cost of pursuing a crashworthiness case, in terms of the cost of expertise needed to prove the case, and the cost of deposing defense engineers and discovering technical documentation from the defense, is so great that the expenses are likely to exceed the recovery which one would expect from minor to moderate injuries.

Is there another financially responsible defendant who is liable for the injury?
If the answer is yes, it is probably more efficient to handle the case against the other defendant, rather than a crashworthiness case against an auto manufacturer.

In crashworthiness cases, it is common that someone other than the auto manufacturer causes the collision and will be legally liable for the injuries, even though an automotive defect is also one of the causes of the injury. If this entity is also financially responsible, such as a trucking company, it will probably be in the best interest of the case to pursue the case against the person who caused the collision.

There are several reasons for this conclusion. First, it is far simpler to make a case against the person at fault for the collision than to develop and explain a crashworthiness case. Determining fault for the collision is far easier, technically, and far simpler for jurors to understand, than developing and explaining the crashworthiness case. Second, the technical and legal complexities of crashworthiness cases make the case much more expensive to develop, in terms of both time and money. This reduces the client’s recovery and increases the time needed to obtain it. Third, auto manufacturers are among the toughest and most sophisticated defendants. This further increases the time and money required to prosecute the case, and reduces the chances of recovery.

In short, crashworthiness cases are usually a last resort.