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 Toyota 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, Toyota 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 lawyer 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 Milwaukee 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.
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