As if to respond to our post on joint and several liability on Friday, a Nebraska jury found for a woman paralyzed in an accident when the driver drove off the road and rolled over their Chevy Blazer. Both GM and the driver (who was later charged with DUI) are held liable, but only one is actually going to pay the bulk of the award, if it is upheld. GM will effectively be paying insurance for the consequences of drunk driving–and of getting into a car with a drunk driver.
Plaintiff claimed that a $20 roof-strengthening would have prevented her injuries. GM denied this causation theory. (Butch Mabin, “Jury awards woman $19.5 million”, Lincoln Journal Star, Sep. 27) (via Bashman). But even if one accepts the plaintiff’s argument that the lack of an additional $20 is a sine qua non of her injuries, her lawsuit presents troubling public policy implications. GM isn’t faced with a single yes/no $20 safety decision when it designs a car–it faces hundreds, if not thousands, of them. And not all of them are binary. Twenty dollars of roof strengthening may have prevented these injuries, but once GM takes that step, there will still be other accidents where yet another twenty, or forty, or eighty dollars of metal in the roof would have prevented injuries. If too many $20 additions are made, some people will not buy the hypothetical Blazer and will instead buy a cheaper (and/or older) and less safe car. Adding $20 of roof-strengthening may decrease the likelihood that a particular accident will result in serious injury, but, by elevating the center of gravity, may increase the likelihood that the SUV is in a rollover accident in the first place and, by increasing the weight, increases the risk of an accident due to inadequate braking power. The SUV, as it is, may perform relatively poorly in rollovers as plaintiffs argue, but it performs much better (some would argue too well) in collisions with other vehicles. And we have not even begun to mention the societal cost that comes from reducing the gas mileage of the SUV by increasing its weight. (The one thing I have in common with Arianna Huffington is that I drive a Prius.)
A jury of laypeople seems to be poorly situated to make these holistic design decisions — especially when the rules of a product liability case often mean that a jury is considering a particular design question in isolation. Which is why plaintiffs’ attorneys are happy to characterize the scales as one of a quadriplegic against a heartless giant corporation that supposedly valued its $20 more than a mother’s ability to walk. It would take an exceptionally wise jury to accurately balance the visible and tangible costs of an after-the-fact gravely injured member of their community against the before-the-fact intangible benefits to society of the engineering design decision of different accidents prevented and of affordable new cars. The elites of the national media and our political and regulatory leaders have trouble articulating the subtleties of these issues. Why do we ask a jury of laypeople to grapple with them, often deliberately deprived by legal rules of a full complement of the tools they need to make a correct decision, when a decision on behalf of an automaker would require them to take the painful psychological step of looking in the eye a quadriplegic who has had her life irreversibly altered, and telling her she will recover nothing?
Disclaimer: I represented GM from 1995 to 1997.
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