Product Liability - Written by Beasley Allen on Monday, August 10, 2009 15:27 - 11 Comments

An update on Sudden Unintended Acceleration Litigation

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Reprinted (in part) and modified with permission from Safety Research & Strategies, Inc., The Safety Record, Volume 6 Issue 3, June – July 2009

On February 5, 2007, Bulent and Anne Ezal were headed to lunch at the Pelican Point Restaurant in Pismo Beach, California. The restaurant is located on the edge of a cliff, affording dramatic views of the Pacific Ocean below. Since the parking lot was downhill of the restaurant, Mr. Ezal rode the brakes of his 2005 Camry as he approached a parking space. He was at a complete stop, when the Camry suddenly accelerated, jumping a small curb, crashing through a fence and over the bluff. The vehicle then fell 70 feet to the rocks below, and turned over once, coming to rest in the surf. Anne Ezal died of her injuries in the crash. Bulent Ezal later recovered.

Seven months later, Jean Bookout and her friend Barbara Schwarz were exiting Interstate Highway 69 in Oklahoma – also in a 2005 Camry. As she exited the ramp, Ms. Bookout, the driver, realized that she could not stop her car. She pulled the parking brake, leaving a 100-foot skid mark from right rear tire, and a 50-foot skid mark from the left rear. But the Camry continued down the ramp, across the road at the bottom, and finally came to rest after it crashed into an embankment. Barbara Schwarz died of her injuries and Jean Bookout spent two months in the hospital and is still recovering from head and back injuries.

These two incidents involved the same make of vehicle, the same model, and the very same problem. The result was two severe crashes – two deaths – two cases of serious injury. According to the National Highway Traffic Safety Administration, the Camry doesn’t have a problem with sudden unintended acceleration (SUA). In between these horrific crashes, NHTSA denied a petition requesting a defect investigation from the owner of a 2006 Camry, who complained that the engine of his current car, and the 2005 Camry that he previously owned, repeatedly surged. NHTSA’s Office of Defects Investigation briefly looked into the complaint, but came up empty and took no action.

NHTSA hasn’t identified a vehicle–based defect that would have produced the alleged engine surge in the petitioner’s vehicle, nor was it able to witness such an event when road testing the petitioner’s vehicle. According to reports, evaluation of a suspect throttle actuator removed from the petitioner’s vehicle didn’t reveal a component problem. Also, warranty and parts sales of the actuator were found to be unremarkable. NHTSA concluded in an April 2007 decision this data doesn’t support “the existence of a wide-spread defect or ongoing concern.”

So the bottom line is that another SUA inquiry closed with no action being taken and without a satisfactory explanation for a phenomenon that has plagued various makes and models for vehicles for about 30 years. Since 1999, the agency has received seven defect petitions asking NHTSA to investigate sudden unintended acceleration. The agency launched eight SUA investigations into GM, Ford, and Volkswagen models. In the last decade, manufacturers have announced 31 recalls. More typically, manufacturers have consistently denied a mechanical problem and have blamed the problem on “driver error.” When the complaint numbers are high, the car makers blame that on a “media-induced frenzy.” NHTSA has gone through a series of opening – and then closing –investigations never finding a defect. This has led some to conclude that SUA is solely the province of pedal misapplication and stuck floor mats.

Graham Esdale from our firm represents the victims of the Oklahoma crash. He says it’s frustrating that the NHTSA can’t or won’t determine the causes of SUA. Graham made this observation:

We know this is happening out there. Unfortunately, if the person is elderly they are certainly going to be blamed for causing the accident, when we know that is not the case. Instead of trying to fix the problem, they blame the driver.

Indeed, the history of sudden unintended acceleration involves poor research, regulatory omissions and industry success in holding off any serious outside examination of malfunctions within a vehicle’s electronic systems. Sudden unintended acceleration is a complex problem. There are multiple causes when a vehicle shoots forward or back in apparent contradiction to the driver’s commands: design defects which induce driver error – such as poor pedal placement, the lack of a shift interlock, floor mat interference, mechanical or electromechanical defects and electronic defects.

Electronic defects – which are the most difficult to pinpoint – are nonetheless a more likely possibility as vehicle systems rely more heavily on sophisticated computer-driven electronics. And yet, automakers and NHTSA behave as though it’s perfectly rational to assume that electronics housed in the hostile automotive environment – including the fault detection system – will always function as intended, and that malfunctions will be easily reproduced in a laboratory setting.

But it should be noted that the case has been persuasively made that NHTSA and automakers have ignored the real possibility of intermittent and other faults in the electronic systems of today’s automobiles. The 2003 reference book, Sudden Acceleration, by Carl E. Nash, of the National Crash Analysis Center at George Washington University, Clarence Ditlow, of the Center for Auto Safety, James Castelli and Michael Pecht, Professor and Director CALCE Electronic Products and Systems Center at the University of Maryland, argue that the auto manufacturers lag behind those in other industries whose products rely on electronic systems in understanding the myriad of ways their microprocessors and electronics components can fail. NHTSA, the authors conclude, has also failed miserably in its attempts to find a cause other than a floor mat or driver error, because the agency employs an arbitrarily narrow definition of SUA – that it must occur from a standstill –and has conducted its investigations on incorrect assumptions and illogical reasoning.

Drivers have been complaining about sudden unintended acceleration events for a quarter of a century and continue to lodge these complaints with manufacturers and NHTSA. Yet, NHTSA has made virtually no substantive progress toward understanding how electronic systems housed in an environment subject to heat, vibration, sudden shocks, various levels of electromagnetic interference, moisture, and other corrosive conditions could fail; or how they could be detected; or what appropriate countermeasures must be instituted other than expecting drivers to somehow overcome an open throttle on a runaway vehicle. They slumber, while vehicles grow ever more stuffed with electronics that control the vehicle’s braking, stability and speed.

Don Slavik, who is both a and engineer, represents Mr. Ezal in his case. Don wants NHTSA to take a second look at the problems of the 2005 Camry – although he isn’t sanguine about the outcome. Don, who is with the firm of Habush, Habush & Rottier, had this to say:

It’s clear the NHTSA lacks the resources to fully investigate this. NHTSA does not have special staff with experience in electronic control systems – and their small staff is tasked with a wide range of responsibilities. That’s where the tort system comes in to assist more fully in investigating this problem, which affects millions of vehicles.

Sean Kane, who is president of Safety Research Strategies, Inc., agrees, and says:

SUA presents a unique and resource- intensive investigation that can quickly overwhelm the NHTSA defects office. Further, the agency has a history of dismissing SUA unless there are mechanical or driver error issues, which only complicates matters.

If you want more information on any of the above, contact Graham Esdale at 800-898-2034 or Graham.Esdale@beasleyallen.com.



11 Comments

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frank
Aug 19, 2009 21:54

I have a 2000 Toyota Camry. I don’t care what the NHTSA has concluded. I have a problem with sudden acceleration. As I’m driving all of the sudden the car will just speed up and applying the brake does not stop it. I have to throw the car in neutral and pull over. I shut the car off and restart it. Then it is ok. The problem does not happen often. It happens every few months. Thank God I have always been in a situation where I can pull over and not kill anyone or be killed myself. I bought the car new and have maintained it. I can not afford to buy another car. I have taken the car to two Toyota dealers and two different mechanics. Nobody seems to be able to find anything wrong. No check engine lights go on either. I have written to Toyota and they do not acknowledge any problems. A search on the internet tells a different story. Many Toyota Camry owners have reported the same problem. Oh, sometimes when this happens the car shakes violently.

Angela Magazu
Nov 19, 2009 19:54

I had a bad accident in August with my 2002 Toyota Camrey. It accelerated into reverse and could not be stopped.

daughter
Dec 5, 2009 15:03

My mother’s 1999 VW Beetle started sudden acceleration tricks about 2 weeks ago. Her 10 year car has about 15,000 on it and she never drives anywhere over 30 mph. This has happened to her when leaving a spot in parking lots and she is lucky she had no one in front of her at the time or any pedestrians nearby. Her car is in impeccable condition and floor mats are not the issue. The car still smells new after all this time, so there is certainly no jam ups under the pedals.

Frank Eggers
Jan 28, 2010 18:24

For myself, I am not worried about unintended acceleration with my car since I have a manual transmission. That problem exists only with automatic transmissions. Even if it did happen with a manual transmission, it could be stopped simply by disengaging the clutch.

I suggest avoiding cars with automatic transmissions; they are too dangerous.

Vicki Maskell
Feb 6, 2010 16:44

My Mother was picked up by her friend on Sunday morning, as she went to put into reverse it was giving her trouble so my mom went back into the house to get my Dad but when they got to the car she tried again and it went into reverse, so my Dad started into the house and the two started on their way through the park { 5 mile per hour limit} the car accelerated to such a speed it red lined and speed read 93 miles per hour in about 250 ft my Mom’s friend said it just kept speeding up and she didn’t know why! They crashed into a Double wide Mobile home, the mobile home had a covered full deck , a fence with a gate, the car blew through it like match sticks and hit the front corner of home pushing the full deck back over a foot. The people next door said the car engine was racing even after the driver got out, My mother was pinned and bled to death with another tenant holding her hand. Another tenant called my Father to tell him there was an accident in the park and my mom was in it. My father said my mom just left! He watched in horror for about four hours as they worked to remove my moms battered, broken body. NONE of the airbags deployed. Toyota was called and told about the problem, I bled with them. Their response was they had no other reports of sudden acceleration in 2004 Toyota Camry! REALLY. At that time an Attorney I spoke with said we had a case but were’nt big enough to take Toyota on. That I would have to do” the watch and wait “. In 2006 the NHTSA called me at home said they were investigating the accident regarding sudden acceleration of 2004 Camry and the death of my mother. A month or 2 later he called to say he was sorry for our loss but they couldn’t fine a problem even though they had many many complaints , other deaths but just not enough. So fast forward to now… Toyota comes out to say they care for the consumer’s safety first. TO the very pit of my soul I know they know its a electronic throttle control system! Software? Greed, Liars. Here’s to hoping they have to answer to all the people hurt, killed, and talked down to like just bad drivers. My Family won’t own another Toyota!

Jodi H
Feb 8, 2010 10:38

Sudden acceleration happened to me yesterday with my 2003 VW Jetta. I’ve experienced it several times since buying the car new. The first time it happened, it shocked the almighty sh1t out of me. Frank Eggers, you are correct, I am less worried about it knowing that I have a stick shift and that I have been able to stop the acceleration by clutching … so far. Knock on wood. I was looking around the web for mechanic’s advice on this issue, and just kept finding “driver error” and “check your floormats”. Interestingly, I had removed my floormats for cleaning and not replaced them in the car when my latest acceleration incident occurred. Anyway, I will report it to my mechanic when I take my car in later this week, but I am sure absolutely nothing will come of my effort. Cheers, my fellow consumers!

margie redditt
Apr 23, 2010 13:44

MY WIFE JUST HAD HER 2nd ACCIDENT IN HER 2005 TOYOTO CAMRY. THE FIRST COST OUR INSURANCE APPX. 12000. AND DID CONSIDERABLE DAMAGE. THE SECOND APPX 3500. BOTH OCCURED WHILE PARKING IN A DOWNTOWN PARKING LOT. I WAS ENTERING THE PARKING SPOT APPROX THE FIRST TIME APPROX. 8-10 FEET FROM THE WALL WHEN IT SURGED AND DAMAGED THE FRONT BEFORE STOPPING ON THE CONCRETE WALL. THE SECOND WAS JUST LIKE THE FIRST TIME EXCEPT I WAS 4-5 FEET FROM THE WALL AND AGAIN AND AGAIN IT SURGES AND HIT THE WALL . I MUST HAVE BEEN REDUCING MY PARKING SPEED FROM APPROX 5-0 MPH. HAS ANYONE HEARD OF SIMILAR SURGE PROBLEMS. THANK GOD TOYOTO IS SENDING SOMEONE TO CHECK IT OUT AND I DIDN’T KILL MYSELF ‘EITHER TIME’ . I’M AFFRAID TO DRIVE IT NOW. TOYOTO DID SAY IT MIGHT BE 2 MONTHS BEFORE THEY GET DOWN TO THE DEALER TO LOOK AT IT.

Beasley Allen
Apr 23, 2010 14:26

Unfortunately we have heard hundreds of similar stories. Thankfully your wife and others weren’t injured.

Cheryl M
Jul 1, 2010 12:07

My mother was driving her 2005 Camry LE a couple of months ago. While pulling into a parking space, as she was breaking, the car accelerated over the curb, down a grass drop of about 5 feet and hit a covered bus stop and concrete trash can. If there had been people at the usually busy, bus stop, she would have killed them.

This incident sounds very much like the others I have read about on this web site.

An investigator from Toyota inspected the car while it was in the shop. It has been more than a month and my parents have not heard anything about the investigation.

My 81 year old mother loved her Camry, and had said many times that it is the best car she has ever owned. She is now frightened by the car and afraid that the same thing will happen again.

Steve
Jul 8, 2010 10:19

I have a 2004 Toyota Camry that is now at an auto body shop with over $7,000 worth of damage caused by unintended acceleration.

My wife was coasting into a parking space with her foot on the brake when it suddenly accelerated. The brakes were of little use and the only thing that kept her from crashing into an office building was a small retaining wall that stopped the car.

Once the car is repaired, my wife refuses to step foot in the car or allow me to drive it with my children in it, which essentially leaves me without the use of the car.

santo sammataro
Aug 13, 2010 12:31

I had a 2000 Toyota Camry. I’ve only had it a short while. Last week I had parked in anarea that had parking allowed on bothsides of a narrow alley(10 feet) When I left my doctors office I got into the car preperatory to leaving. I started the engine went forward a shoirt way when the car suddenly surged forwaed and crashed into the car opposite me, Bags did not deploy and I was not injured. I was cited for inability to control my vehicle and am due to go to court Sept.12th. where I expect to be fined approx. $200.00.
The appraiser examined my vehicle and declared it a total loss. I am 84 years old and everyone believes I caused the accident due to my age but I know what happened and know that the accident was caused by the sudden accelleration over which I had no control.
Respectfully submitted by Santo Sammataro

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