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© 2008 by The Law Offices of Stephen L. Goldner, LLC Unfortunately, the term child "safety seat" is really a misnomer. A combination of factors, including poor design, inadequate warnings, inappropriate usage recommendations and an antiquated federal standard leads to thousands of unnecessary injuries and several hundred deaths each year.[i] Parents and care givers have been lulled into a false sense of security, reasonably believing that the child restraints they have spent time researching and shopping for will provide a high level of safety in the event of a collision. The sad truth is that even though all fifty states mandate the use of a child seat, the protection that these seats afford is often minimal.[ii] Tragically, it takes an accident to discover that the child seat is defective and by then the consequences are often catastrophic. The manufacturers of child safety seats are primarily in the juvenile products and toy business. These companies make high chairs, play pens, strollers, cribs and other children's products. They are members of the JPMA (Juvenile Products Manufacturers' Association) and meet annually to discuss what sells. Significantly, however, none of the other products sold by these companies experience the unexpected dynamic loading that a child seat does when it is involved in an accident. One would expect, therefore, that the in-house engineers employed by the child seat manufacturers would extensively test their products. In truth, not only are the child restraints inadequately tested, the government allows the manufacturer to "self-certify" the safety of the seat.3 Depositions of executives and managers taken over the last ten years at four of the largest child seat manufacturers in the country revealed that none actually employed an engineer. Instead, what is typically found is one or more individuals with an "industrial design" degree who has taken, as part of his course work, a class or two in some engineering discipline. I. NHTSA'S ROLE IN REGULATING CHILD SAFETY SEATS The National Highway Traffic Safety Administration is charged with enforcing all of the Federal Motor Vehicle Safety Standards. FMVSS 213 is the standard which applies to child safety seats. This standard was issued in 1970.4 It is important to bear in mind that all of the Federal Motor Vehicle Safety Standards are minimum requirements and NHTSA has repeatedly said so.5 Since 213 is a performance standard and not a design standard, a child seat manufacturer can design the restraint in any way it chooses, as long as it meets the minimum performance criteria set out under 213. Therein, lies the biggest part of the problem with child seat safety. Manufacturers have set the bar at passing 213 and nothing more, even though the bar is set quite low. The standard allows the child seat manufacturer to conduct its own test and then certify that the seat passes FMVSS 213. NHTSA does not routinely check the seats and will only randomly select any given restraint for testing. In the last few years alone millions of car seats have been "recalled" for defects. As former NHTSA Administrator, Joan Claybrook stated, "our federal safety standards are and were intended by Congress to be minimum standards. The tragedy is that the manufacturers have treated the standards more like ceilings on safety performance than floors from which to improve safety".. The first version of FMVSS became effective January 1, 1971. Its requirements were very basic. By 1981, this standard included dynamic testing. The sled test which is conducted under 213 utilizes a 1970 bench style seat, something not found in today's modern automobile. The child restraint is attached to the sled seat and a child "dummy" is secured in the restraint. The sled is then accelerated to 30 miles per hour and brought to an abrupt stop. In theory, this simulates a head-on collision. Essentially, to "pass" 213, the child seat must remain intact and the restraint must limit the child's excursion from the restraint. Measurements are made of the forces generated to the child's head and torso. Despite NHTSA's admonitions concerning the standard being a minimum one, it is clear that child restraint manufacturers view passing a 213 test as the holy grail. Unfortunately, the test has limited value in a real world crash. The industry has no clue how its child restraint will interact with newer automobile seating positions, including bucket-style seats and the small occupant compartments found in today's compact car. For instance, the forward head excursion allowed under 213 would, in many smaller cars, create the real potential for a child striking the dashboard or rear seat in a frontal collision. The test also fails to consider how the restraint will perform in rear impact, side impact, and rollover accidents. Collectively, these account for approximately fifty percent of the collisions which occur on our roads and highways. Having set its sights only on passing 213 and nothing more, the child seat manufacturer can not possibly know how its product will perform in these other types of crashes. Furthermore, NHTSA has not mandated any given number of "passes" versus the number of "failures", so this is left entirely up to the internal policy of each company. Unlike other government agencies such as the Food and Drug Administration, which approves drugs and medical devices before they can be sold, NHTSA does not "approve" or "certify" that vehicles and vehicle equipment meet standards or that they are "safe". NHTSA relies on child seat manufacturers to certify their products. NHTSA is a relatively small agency with a limited enforcement staff and meager budget. It can not possibly investigate the myriad issues that arise with every model motor vehicle and all the equipment in and on these vehicles. While NHTSA technically has the authority to order a recall, that authority has rarely been exercised. The last recall that NHTSA actually ordered for any safety related product defect was in 1979. Since child seats are regulated by NHTSA, they fall right in line with fuel tanks, tires, safety glass, and airbags. There is, however, established federal law which requires a child seat manufacturer to provide notification of a defect. Manufacturers have a direct duty to notify purchasers of known defects after discovery and the statute imposes a duty to recall a product for safety related defects, independent of any investigation or action by NHTSA.6 So, where is the Consumer Product Safety Commission when we need it? The CPSC does not regulate child seats, except in one very limited area. If the seat has a usage outside of the vehicle, then the CPSC may get involved. The CPSC recently exercised this authority when the latching mechanism of a carrier handle of certain seats repeatedly failed and infants were being dropped out of their seats. Whenever the performance of the child seat in a motor vehicle is at issue, this falls under NHTSA's jurisdiction. II. TYPES OF DEFECTS - IS THERE A CASE? In deciding whether to pursue a case, it is imperative that you first find out the "life" history of the restraint in question.7 Was it purchased as a new product? Was it used by any other family member? If so, were there any problems with the restraint in its prior usage? Had the seat ever been involved in an accident? If the restraint was not purchased new, is it possible to contact the previous owner? The answers to these questions are critical. Sitting at your client's deposition six months into the case is not a particularly good time to find out that the child seat had been involved in another accident, perhaps compromising its structural integrity or restraint capacity. Clips Buckles Carrier/Base Seats After-Market Products Labels III. IMMEDIATE "TO DO" CHECKLIST The things you do, or fail to do, early on in the investigation can determine whether your client will realize justice. Experience shows that child restraint cases are exhaustively litigated, though seldom tried. Before you embark on an endeavor that will surely last two years and may cost several hundred thousand dollars, be sure to obtain, secure, and preserve all of the evidence you need. 1. You must immediately secure the child restraint seat. While the parents may have retained the child seat, frequently the restraint ends up being towed away with the vehicle itself. Take possession of the seat and examine it to your heart's content but do not adjust any settings. Leave the belts, harness, buckles, and clips just as you find them. Take a number of pictures of the child seat or better still have a professional photographer photograph the seat. When you talk with the parents, eyewitnesses, emergency personnel who were at the scene and even the tow truck driver, ask if anybody altered any of the adjustments on the seat, and if so, find out what was done and why. Put the child seat in your evidence storeroom. 2. You also need to move quickly to secure the vehicle that the child seat was in at the time of the accident. As with the child restraint itself, don't do anything that might put you on the wrong end of a spoilation argument. Generally speaking, every child restraint case involves examination of the lap or lap-shoulder belts that were utilized to restrain the child seat at issue. Similarly, if the child seat was positioned in a front passenger seating position, the actual position of the vehicle seat on its track may be important, particularly in cases involving a head strike. Photographs are inexpensive; have a lot of them made and you may be pleasantly surprised later on in the case that you captured something significant, the importance of which was not obvious at the time. 3. Meet with everybody. There is simply no substitute for a personal meeting, particularly when the stakes are so high. Ask the parents or care givers about their habit and routine for placing and securing the child in the restraint and have them walk you through exactly what they did on the date of the accident. Do they know this process because they in fact remember doing it, or was it their custom and habit to do things the way they have described to you? Find out if they have another child or children and satisfy yourself that the appropriate procedures were always followed with each child. You can count on defense counsel methodically questioning the person who was responsible for securing the child as to each and every thing that was done on the day of the accident. If the same child seat was used with an older sibling, be sure that it had not been involved in any other accidents. Find out if the parents shopped for the seat in question, and if so, what features attracted them to this seat. While packaging and pretty colors make for good marketing, invariably, parents who have shopped for a child restraint will talk to you intelligently about the safety features and ease of use that drew them to the seat. Find out if the parents still have the clothing that the child was wearing at the time of the accident. This can be helpful to your experts if "witness" marks can be identified showing transference of harness or belt abrasions and, also, to rebut the defense assertion that "bulky" clothing led to the child being loosely restrained. You will obviously want to meet with any witnesses who were at the scene of the accident. This includes police officers, emergency personnel and passersby. One or more of these individuals may have valuable information as to the position of the child in the child restraint, or if the child was ejected from the seat, where the child was found either in or outside the vehicle. If the child was removed from the child restraint by emergency personnel, did the EMT have to undo the harness or unlatch the buckle to release the child?
5. Finally, child restraint cases require at least three experts, depending upon the nature of the alleged defect. At a minimum, you must retain an accident reconstructionist, a biomechanical engineer or doctor, and a child restraint system expert. IV. FILING SUIT Resist every temptation and reject every offer to settle the underlying accident case. If you don't, you have written a one-way ticket into federal court, having made peace with the Georgia resident thereby losing diversity jurisdiction. It's not worth it. The culpable driver's contribution will always be there and your target is a big fish that swims better in federal courts. Frequently, there are compatibility issues between the child restraint and the vehicle seat. Some occupant positions are not designed for child seats and others do a poor job of restraining a seat in a collision.9 It is wise to name both the child car seat manufacturer and the vehicle manufacturer as defendants. At the appropriate time you can always dismiss one defendant if necessary. Until then, you may get some very useful information playing one defendant off of the other. V. DISCOVERY Aggressive discovery is key in child restraint cases. You will certainly want the manufacturer of the child seat to produce any "recall" notices, any advisories or notifications relating to modifications of the seat), any letters from customers complaining of problems with the model seat at issue, letters the company has sent to NHTSA concerning the subject seat and in return, any correspondence the company has received from NHTSA relating to the seat. Make a formal request to NHTSA under the Freedom of Information Act. Request any consumer complaints, field investigation reports and letters to or from the defendant manufacturer, all pertaining to the subject model seat. Letters to and from NHTSA can be particularly enlightening since car seat manufacturers are now required to notify NHTSA of any safety related defects. This correspondence may help establish that the manufacturer knew or should have known of a particular problem and may also be useful in identifying a date on which the particular defect first became known to the defendant. Additionally, the NHTSA website (www.nhtsa.dot.gov) is particularly helpful to find out quickly if the model seat you are concerned with has ever been the subject of a "recall." NHTSA recently began rating seats for ease of use and the ratings are likewise posted on the website. You should obtain all of the design drawings and modifications for the restraint and although unlikely, any failure mode analysis documentation. Since the only test required by the federal government for any child seat is the testing which is conducted pursuant to FMVSS 213, you will definitely want copies of all sled tests performed on the subject model seat. These tests should include videos, still photographs and written reports regarding the test results. Since 213 does not establish a minimum number of "passes" for a test, it is not unusual to see a company certify its seat under 213 even though it failed the test numerous times in succession and then passed once or perhaps twice. Sled test reports and videos will document the seat's performance. Harness clips break, seats fracture, carriers detach from their base, and at times head movement is so significant that it sometimes exceeds the excursion limits established under FMVSS 213. Take depositions of employees in the company's "customer relations" department. Few things in life are more distressing to a parent than an injury to a child. Parents frequently call or write a manufacturer to tell them of an accident and explain why they are disappointed or angry at the way a product performed. Their level of disappointment or anger is often directly proportionate to the severity of the child's injury. Like any other significant products liability case, evidence of other incidents is invaluable. Child seat manufacturers have customer relations departments and consumer hotlines. Company employees complete pre-printed forms which record the substance of conversations with customers. Likewise, letters from customers are usually maintained for a period of time. The substance of these notes and the internal routing of any memos and consumer complaints can make for very productive cross examination of company witnesses. (When a parent takes the time to write a two page letter and say "...we were lucky. Some other family and some other child may not be so lucky" and you are fortunate enough to find out that many other parents complained about the same defect, you will have the defendant's full attention).10 VI. THE LATCH SYSTEM A significant step in the right direction for child seat safety occurred recently. As of September 1, 2002, NHTSA has required that all new child restraints be equipped with two attachment points so that the restraint can be properly secured to automobile seats.11 Likewise, all cars, mini vans and light trucks are required to have two corresponding anchor points situated between the vehicle's seat cushion and the seat back. A tether strap can then be attached from the back of the child restraint to an anchor bolt which is installed permanently in the vehicle. The "LATCH" (Lower Anchors and Tethers for Children) system is designed to work independently of the vehicle seat belts and addresses the long-standing and very serious problem of incompatibility of automobile seat belts and child restraint seats. The tether, coupled with the rigid anchor points should provide a much more stable and secure system for restraining all new child safety seats. However, a very recent NHTSA survey has already revealed potential problems with usage of the LATCH system, so it may be too early to tell how effective the system will actually be. CONCLUSION Without question, litigating a child restraint defect case is complex, time consuming and very expensive. At the same time, it can prove to be one of the most professionally rewarding experiences a trial lawyer will ever have. Hopefully, when concluded, it will give the attorney handling the case the unique opportunity to ensure that sufficient funds are available to provide a lifetime of quality care for a catastrophically injured child. By taking the right cases and aggressively pursuing justice, perhaps we can persuade the manufacturers of child car seats (and other children's products) to design their products so that they exceed the minimum federal standard. If we don't, who will? ____________________________________ END NOTES [i]. Annually, some 600 children less than five years of age are killed and over 70,000 are injured as occupants in motor vehicle crashes according to data from the National Center for Health Statistics. [ii]. O.C.G.A. § 40-8-76 provides in part, that every child under six years of age must ride in a child passenger restraining system which is appropriate for the child's height and weight and which has been certified under FMVSS 213. The statute further provides that the child must be restrained in the rear seat of the vehicle, unless certain exceptions apply. The statute authorizes a fifty-dollar fine for the first offense and no more than one-hundred dollars for succeeding offenses. 3. See 49 CFR 567.1 et seq. and 49 U.S.C. § 30115. 4. See 49 CFR 571.213. 5. See 49 U.S.C. §30102(a)(8). The Safety Act (15 USCA § 1391) defines a motor vehicle safety standard as a "minimum" standard for motor vehicles performance or motor vehicle equipment performance. §108© of the original Safety Act provides that compliance is not a defense to a warranty, contract or tort claim. 6. See 49 U.S.C. § 30018 ©; § 30019. 7. There are four basic types of child restraint seats sold in the United States - infant seats, convertible seats, boosters and integrated child restraints. 8. "Recalled" is used gratuitously since the National Highway Traffic Safety Administration did not actually order the seats be recalled. The manufacturers, under pressure, finally agreed to replace seats or furnish a repair kit. 9. You will also likely want to name the vehicle manufacturer as a party since even a good child restraint seat cannot properly perform if there is a malfunction with the vehicle restraint system utilized to secure the child seat. There may also be warning issues as to compatibility of a child restraint seat in certain vehicle seating positions. Dilbeck v. General Motors and Evenflo Corporation, Civil Action File No. 1:93-CV-953-FMH, United States District Court for the Northern District of Georgia, Atlanta Division. 10. See letter from R. Zahn to Century Products Corp. Hillock v. Century and Graco Products, Civil Action File No. 1:00-CV-2479-JOF, United States District Court for the Northern District of Georgia, Atlanta Division. 11. See Lower Anchor and Tethers for Children (49 CFR 571 and 596). |
How To Recognize and Win A Child Safety Seat Case
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Over the course of more than 30 years, we have built a record for success. We have devoted our careers specifically to cases involving child car safety seats and other products for children.
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Stephen L. Goldner
The Bird Law Group
2170 Defoor Hills Rd
Atlanta, GA 30318
TF: 877-318-0494
Ph: 404-647-0317
Fax: 404-872-3745
Mr. Goldner has been recognized by his peers as a Super Lawyer in the field of Product Liability. He is AV Rated* by Martindale-Hubbell.
The Law Offices of Stephen L. Goldner represent people in the Southeast United States and nationwide, including people in the cities of Atlanta, New Orleans, Miami, Nashville, Memphis, Chattanooga, Montgomery, Jackson, Winston-Salem, Raleigh, Charlotte, and Charleston; and the states of Georgia, South Carolina, North Carolina, Florida, Alabama, Mississippi, Tennessee, and Louisiana. We represent people whose children who have injured by children's products like child car seats, unsafe toys, defective strollers, cribs and high chairs. The major manufacturers of these types of products are Graco, Century, Cosco (Dorel), Evenflo, Britax, Munire, and Combi.
*CV, BV, and AV are registered certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards, and policies. Martindale-Hubbell is the facilitator of a peer review rating process. Ratings reflect the confidential opinions of members of the Bar and the judiciary. Martindale-Hubbell ratings fall into two categories - legal ability and general ethical standards.