The Weak Impact Of New NHTSA Side-Impact Standards

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1 The Weak Impact Of New NHTSA Side-Impact Standards By Walter C. Greenough Law360 January 31, 2014 Styrofoam does a decent job of keeping beer cold in a cooler. But, as anyone who has accidentally stepped on a Styrofoam cooler knows, it is not unbreakable. That is but one of many reasons why car bodies are not made of Styrofoam. When a 3,000 pound SUV blows through a stop sign at 30 mph and "T-bones" a compact car in the intersection, smashing through the steel beam in the car s door and crushing that door inward into the passenger compartment, a small piece of Styrofoam cannot do much to mitigate the forces of the crash. Nevertheless, the National Highway Traffic Safety Administration seems to be pinning its hopes on Styrofoam padding as a last line of defense for young children in side-impact crashes. The NHTSA recently announced proposed rules governing the performance of certain child restraints in sideimpact collisions.[1] Those rules anticipate that many car seats used by children who weigh up to 40 pounds will be redesigned to incorporate larger side wings (which wrap around the child s head) lined with energy absorbing padding.[2] The NHTSA hopes that surrounding more of the child s head with Styrofoam or similar padding will reduce the injuries suffered by restrained children in side impacts. While that may be true for some impacts of modest severity, for those at high speeds or with severe intrusion, that hope may well be crushed as easily as a Styrofoam cooler. A Solution In Search of a Problem? The NHTSA long ago enacted side-impact performance requirements for vehicles via FMVSS 214 (49 CFR ). The express purpose of this standard was to reduce the risk of serious and fatal injury to occupants of vehicles in side impacts, primarily by strengthening side doors. The NHTSA recognized that the most effective protection in side impacts came from preserving the occupant survival space in the vehicle. It was the job of the vehicle to maintain the integrity of the passenger cabin by limiting, to the extent possible, any intrusion into it through the use of steel beams and/or cage structures designed to stiffen the sides of a car.

2 Seatbelts cannot prevent intrusion into the occupant space. Rather, they prevent adults in a crash from flying through the cabin and striking an injurious surface. They are not designed to protect adults from side impacts where the injurious surface is moving toward them; that is the job of steel beams or other structures in the door and side curtains or airbags. Car seats have the same function: to restrain children, just as seatbelts restrain adults. (That is why car seats are more formally referred to as child restraints. ) They restrain the child from moving toward a dangerous surface (such as the back of the driver s seat), but they cannot prevent a dangerous surface (such as an intruding door) from moving toward the child. Can car seats provide meaningful protection beyond restraint in a side impact with significant door intrusion? The NHTSA has studied that question since 1974 but was unable to devise a test that would provide an answer. Finally, in 2012, Congress required NHTSA to amend FMVSS 213 to improve the protection of children seated in child restraint systems during side impact crashes. [3] This was deemed to fill a perceived hole in FMVSS 213, which governed the performance of car seats in frontal impacts. Since car seats have proved to be highly effective in reducing the likelihood of injury in frontal impacts, Congress suggested that they should be equally effective in reducing the likelihood of injury in side impacts. The NHTSA recognizes that most fatalities to children in car seats in side impacts occur only in very severe and unsurvivable conditions. Indeed, the NHTSA acknowledges that car seats are generally already remarkably effective in reducing the risk of death and serious injury in side impacts. [4] That protection comes from the internal harnesses of the car seat, which prevent the child from being flung toward the intruding surface. (Unrestrained children are eight times more likely to sustain incapacitating injuries in near-side impacts than children in car seats.)[5] The NHTSA s new proposals increasing the size of the side wings or adding more padding to them will not improve the ability of a car seat to restrain a child in a side impact. Low Costs, Low Benefits The NHTSA implicitly recognizes that the benefits of its proposed side-impact requirements are modest. The NHTSA estimates that the new standards would prevent only five deaths and 64 nonfatal injuries each year.[6] Every life is valuable, but so is context. In 2011, more than 32,000 people were killed in vehicular accidents (including 278 children under the age of five), and more than 2.2 million people were injured (including 46,000 children under the age of five).[7] These figures suggest that other safety measures would be much more effective in reducing the number of fatalities and injuries on our highways. Ignition interlock breathalyzers anyone?

3 The NHTSA justifies the limited benefits of the new requirements by claiming that the costs of complying with them are also low. The NHTSA estimates that about 80 percent of rear-facing infant seats will need larger wings and/or additional padding, as will 58 percent of convertible and combination seats. With total sales of such seats approximating 7.4 million per year, the NHTSA estimates that these countermeasures would add roughly 50 cents to the cost of each seat.[8] Fifty cents per seat equates to 25 cents for each of the left and right sides. Accordingly, the NHTSA is hoping that an additional 25 cents of padding will provide significant protection from the force of a large SUV smashing into a car so hard that it pushes the door right into the car seat. It is a truism that the car seat shell and padding will absorb some of the crash forces of an intruding door, but the NHTSA offers no evidence that they do or can absorb sufficient force to be beneficial in severe accidents where most deaths and injuries occur. Moreover, adding additional padding may create more problems than it solves. If the space available for the child s head is reduced by the presence of thicker padding, the child may lose the ability to move his or her head freely, and caregivers may consider the seat too confining for the child. But widening the seat s side wings to retain the current space between the child s head and side padding would make it more difficult for the parent to see a child in a rear-facing seat, for the child to see out the sides of the seat, and for the parent to fit more than two seats in the back of his or her car. If any of these factors reduce usage of car seats, then instead of making a good situation slightly better, the proposed regulations could make it significantly worse. In fact, however, the new standards are unlikely to require more than minor tweaks to the design of many existing seats. The standards do not dictate how car seats must be designed to meet them; seats can comply with the new standards without the addition of padding or larger wings. Many seats now on the market already comply.[9] Accordingly, the standards are not likely to generate dramatic changes in child restraint design or performance. Litigation Landscape The proposed regulations also are unlikely to significantly change the manner in which car seat cases are litigated. They should, however, make it somewhat easier for manufacturers to defend such cases by blunting two of the attacks typically made by plaintiffs counsel. First, plaintiffs will no longer be able to accuse car seat manufacturers of failing to conduct meaningful side-impact testing. Typically, manufacturers have run hundreds, even thousands, of tests analyzing the performance of a car seat in front impacts, but they have run far fewer side-impact tests on the seat. Manufacturers explain this disparity by pointing to the lack of meaningful standards for side-impact testing, but plaintiffs argue that the absence of standards is no excuse for the lack of

4 testing. Plaintiffs will no longer be able to make this argument once manufacturers begin testing their seats to verify that they comply with the new regulations. Plaintiffs may still argue that the new tests are inadequate, but the announcement of the proposed regulation provides a roadmap for discrediting this claim by explaining why NHTSA believes all other existing or proposed test procedures are inadequate.[10] Second, plaintiffs will no longer be able to argue that defendants compliance with FMVSS 213 is irrelevant. Because FMVSS 213 deals only with front impacts and not side impacts, plaintiffs argue that compliance with its standards is irrelevant in a side-impact case. Defendants, on the other hand, argue that because the performance requirements of FMVSS 213 dictate many design characteristics of car seats, compliance with the standard is not only relevant, but may raise a presumption that the design of the seat is not defective. Once the proposed side-impact standard is incorporated into FMVSS 213, plaintiffs will no longer be able to argue that the standard is irrelevant, and defendants should be able to introduce evidence of their compliance with it. It is not all clear sailing for defendants. Compliance with the new regulation is not required for three years following its final adoption. In the interim, plaintiffs might criticize defendants who do not voluntarily comply with it immediately (even though the necessary test equipment may not yet be available). In addition, because the proposed rule applies only to car seats that can be used by children weighing up to 40 pounds, cases involving booster seats may have to be treated differently. Finally, plaintiffs will seize upon NHTSA s description of the rule as providing a minimum level of protection ; defendants will have to point out that the proposed test procedure is more severe than 92 percent of side-impact crashes.[11] [1] 79 FR 4570 (January 28, 2014) [2] Id.at 4571 [3] Id.at 4572 [4] Id.at 4572, 4574 [5] Id.at 4578 [6] Id.at 4571 [7] NHTSA Traffic Safety Facts 2011 at Table 55 [8] Id.at 4596 [9] Id.at 4593 [10] Id.at , [11] Id.at

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