A new study reveals what we have known for years: weak roofs are the main cause of death and serious injuries in rollover accidents. The study, conducted by the Insurance Institute for Highway Safety, found that the stronger a roof, the lower the risk of injury to occupants of a vehicle. This study confirms what the lawyers in our firm who handle rollover cases have been contending all along. But, the carmakers have contended for years that roof crush really doesn’t matter and NHTSA has largely put its regulatory head in the sand – taking the ostrich approach. Clarence Ditlow, executive director of the Center for Auto Safety in Washington, D.C., says:

This report rebuts the long-standing industry argument that roof crush doesn’t matter.

It’s well known that 30,000 people die or are seriously injured in rollover crashes each year. As we have reported in prior issues, a proposed change to roof strength standards by NHTSA has also created controversy because it includes language suggesting that a new rule would preempt state law. That proposed rule would increase the current roof strength standard, which has been in effect since 1971.

The Insurance Institute study looked at 11 mid-sized SUVs, including Jeep Grand Cherokee, Nissan Xterra, Chevrolet Blazer, Dodge Durango, Ford Explorer, Toyota 4Runner, Mitsubishi Montero and others. Researchers tested them by measuring the amount of force required to crush the roof two inches, five inches and ten inches, taking into account a vehicle’s weight. Under current safety standards, a vehicle must support 1.5 times its weight. The study concluded that the 2000-04 Nissan Xterra had one of the strongest roofs, withstanding a force of 2.93 times its weight for its 4-door model and 3.16 times its weight for its 2-door, at five inches of crush. The Jeep Grand Cherokee had the worst results, supporting 1.64 times the weight of its 4-door and 1.72 times the weight of its 2-door. The study also analyzed about 23,000 real-world rollovers in accidents involving the same 11 vehicles across 12 states. It concluded that at each measure of crush, there was a consistent relationship between roof strength and injury risk.

The study estimated that at five inches of crush, there was a 28% difference in the risk of injury between the Grand Cherokee and the Xterra, and at two inches the difference in predicted injury risk between the two vehicles was 51%. It also estimated that raising the current federal roof crush standard from a 1.5 strength-to-weight ratio to a 2.5 ratio would “reduce the risk of serious and fatal injury in a rollover crash by 28%,” and that “increasing roof strength requirements beyond 2.5 times vehicle weight would reduce injury risk even further.”

The study should be admissible in evidence in litigation, but if it’s not, it definitely bolsters causation and disputes the “diving” defense – that an occupant in a rollover would have been injured by the downward force in a rollover even before a roof could have intruded on him or her – a defense which is routinely used by carmakers. However, even if the report cannot be used in evidence during a plaintiff’s case, all defense experts can certainly be questioned on cross examination as to the results of the study if they have read it. If they haven’t read it – considering the excellent reputation that the Institute enjoys – the study results will be great cross examination material.

A proposed change to NHTSA Standard 216 would require a roof to support 2.5 times the vehicle’s weight, up from the current standard of 1.5 times the car’s weight. The current standard is so old that most new cars already conform to 2.5 and most all consumer advocates say that it should be raised even higher, to 3.5. Stronger roofs also prevent injuries from partial ejection, something that government tests do not take into account. NHTSA has also sought comments about upgrading its testing protocol, such as testing both sides of a vehicle, performing testing that simulates real world conditions or using dummies to test roof incursion on an occupant. Currently, tests are performed only on one side and use static testing that presses a metal plate against the vehicle. The comments period ended March 29th.

The proposed rule also included controversial language that suggested the new federal standard would preempt state tort claims. This provision clearly is in conflict with language in the enabling statute for NHTSA that says safety standards proposed by the agency should not preempt state common law. Some U.S. Senators have written to NHTSA expressing their concern over this issue. The preemption language should be taken out of the final rule, but so long as George Bush is president and Karl Rove is still lurking around in the shadows of the White House, the preemption language will stay in. It’s clearly unconstitutional and the courts will have to acknowledge that if the final rule contains preemption of state tort claims. A challenge of constitutionality of the preemption issue is a certainty if NHTSA caves in to the pressure being put on the agency by the Bush Administration and the carmakers.

Source: Law.com

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