Carl F. Thelin

PRONGS                

This case was a bit out of my specialty. Because of my background, I normally attract the lawyers who have with cases involving a claim concerning a design defect of automobile chassis or crash safety components. A case where the loss of control results in a crash is called a handling case. Handling cases involve chassis components such as a suspension, steering or braking systems or a defect in the design of the system. I have been involved in plenty of those.

Crash safety cases were more limited particularly in the 1970 and 1980s. I had that background earlier than most expert witnesses, too. I argued that the problem in the construction or design of some car-body interior system. In handling cases, I might say that the problem was a loss of control that caused the collision and resulting injuries. But crash injury cases say that the defective system was responsible for the severity of the injury. We could agree that the reason the injury occurred in the first place was a dumb or careless action by the victim or the driver of one other involved vehicles. That sort of analysis is handled by the expert of accident reconstruction who describes the pre- and post-crash scenarios of the vehicles. I limit my analysis to the severity, not the cause of the personal injury.

“Prongs” was a different kind of case. It was about the common sense that any design engineer should use. Nowadays, colleges and the SAE are offering classes devoted to thinking about the safe use and misuse of a product. Misuse? Oh yes. “Murphy’s Law” – if anything can go wrong, it will”, certainly applies. This was one of those cases.

Misuse that is foreseeable by the designer becomes a ripe subject for a lawsuit. The manufacturer can’t just blame the injury on stupid behavior of the user and victims.

The foreseeable aspect of the misuse of a product requires some thinking outside the box. The designer and manufacturer must do more than making a product functional. It is not enough to know that using the product in a manner not prescribed in the owner’s manual might cause injury. Car companies have platoons of lawyer who pore over the content of the Car Owner’s Manual.

An example of this is this - a manual could say that it is dangerous to put one’s fingers in the path of the engine cooling fan. Well, that would be pretty obvious if the fan was driven by a fan belt, and the engine and fan were making noise. Many cars have an engine fan that is driven by an electric motor, even if the engine is no running. The fan operates when the thermostat tells it to do so – and that happens shortly after the engine stops, and the heat soaks into the radiator water. So, if you know that, or read about it in the booklet, you ought to know enough to keep your fingers out of harms way. But just in case the typical car owner does not read the Owner’s Manual, there is usually a small bright colored sign affixed to the surface above the fan warning you to the watch your fingers.

Here is a nice example of where the sign is not needed. A similar notice will tell you to take care when removing the radiator cap; otherwise you could get a blast of hot water or steam in your face. If the radiator is really hot, so will be the radiator cap when you grip it. A guy would have to be really dumb to ignore that. Maybe he is wearing insulated winter gloves so put the warning label there anyway.                     

OK, you need to know there is a whole big subject in manufacturing, engineering and the law called WARNINGS AND LABELS. But, people like me argue that most of that effort is wasted. When the designer is thinking about a common product like a vacuum cleaner or an automobile, he should realize that most owners assume that they know all they need to know. Who does actually read the OM that comes with even a simple, small thing, like a wrist watch? Some of us analyzing the contents of various owners’ manuals observed that the owner of a product that is obviously different from the run-of-the-mill will take the time to study it. The buyer will look for instructions on a strange-looking Dyson floor cleaner. In the 1970s, we found that typical buyer of his first “exotic” Japanese or European car would take care to learn more about it.

So, does that satisfy me? No. Real safety experts would tell you that the best thing to do about product hazards is to eliminate the hazard, particularly if it is not obvious, and for which no owner’s manual or local placard will be 100 percent effective. Design it out, or cover it.

Alright, we have set the stage.

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            THIS TRIAL

The vehicle was a CJ-style commercial Jeep. The case was focused on the dismountable windows that fit onto the short side doors of the open top car. Each window is made of clear plastic with a black fabric border sewn over a skeleton made of welded steel rods. Those rods had conical points at the bottom end to guide them down into the socket-holes in the top of the door frame so that the bottom of the “window” was tight to the door.

The plaintiff was a young woman who was enjoying a weekend with three friends on a trip out of town. They needed the canvas top and the side windows to be in place – up - on the Jeep at the morning of a cool, sunny day. However, in the legal “complaint” the plaintiff said that it is reasonable for the user of a Jeep to want to open the vehicle wherever they were as the weather warmed later in the day. In that case they would be unable to store those side windows in a garage. These doors could be removed or left in place on the Jeep when the weather was nice. Then the windows had to be placed at the rear of the Jeep, immediately behind the second-row seatbacks. To securely store the windows, they were placed upside down – with the pointed rods sticking upward, close to the back side of the second seat. The tips of the roads were close behind the head of anyone seated in the back.

Recall that this was a bunch of young adults out for a nice weekend at beach beach. There were unpaved roads scattered around the park. The sandy roads developed a gentle undulating profile that was sort of like waves in water. Car testers call this kind of up and down ride a “Thank you, Mam”. As you go up and down, your body and head lean first backwards, then forward on the way down.    

When the Jeep went over a moderately big hump Helen was injured. She was in the back seat. As the short-wheelbase Jeep went over the undulating hills – like big speed bumps - it would pitch and bounce. Even though the young people were using the lap belts, they were tossed up and down, back and forth on their seats. At least once, Helen bounced up and came down with the back side of her head onto the point of the steel rod prongs of one of the Jeep side windows. The injury is an unpleasant one to describe. Helen came down with her head tilted back – which caused one rod to penetrate the back her head. She is lucky to survive such an injury.

Writing about more than these facts is difficult because I was asked to join the case late. I did not review any depositions of those persons or any of the medical records.

We built the case on the assertion that Jeep should have easily made several provisions to store the unused side windows in a safe manner. While working at Consumers Union I was taught not to be specific in recommending a solution to a problem found in the design of a product, which would apply to all of them. As an outside critic, I could not know all the factors available to the manufacturer. The CU rule was this: carefully describe the defect in the product, and then look for similar, competitively priced, products without that defect. Tell the readers that there are better products available. If there are no better examples, do not get carried away recommending what you think is a better design. Unless you can test it thoroughly, you might be wrong, too. The expert should identify the problem, not endorse a solution.

In the trial, I said that there are some solutions to storage that could be looked into, such as placing pockets or holes for the prongs in the floor behind the back seat. Another, a retainer on the outside back panel of the Jeep, like the kind military Jeeps used to carry a can of gasoline.

I do not recall anyone making a defense of that Jeep’s window retainer design. Instead, Chrysler said that Helen’s friends should have recognized the severity of the injury sooner and sought help quickly. The defense claimed that the delay in medical care was the big contributor to the extent of the injury. Apparently, the jury agreed the defect that was unreasonably dangerous – and not obvious, with foreseeable harm. The plaintiff won and would have collected money for her rehabilitation.

I learned much later that the Chrysler / Jeep people came back on appeal. I do not know how that came out. I do know that each of the so-called American big-three car makers hate to loose a case in which a person like me had a part. They really want to end the career of a former employee who became a whistle blower. In this case, Chrysler probably argued that my testimony was based on “junk science.”

Junk science is a term used to discredit an expert witness who has weak or non-existent qualifications in the technical field. That probably did not work on me because I really had studied the content and benefit of automobile owner’s manuals. For a while I was the chairman of a subcommittee of the Society of Automotive Engineers. The SAE wanted a study of the contents so that representatives of all car-makers could recommend a standardized format for the safety warnings. It was easy to settle on the new styles. Even the coloring of the panels containing those words is now the same.