Emily Bazelon on personal responsibility

Slate’s Emily Bazelon doesn’t read the owners’ manual for her car, does something the owners’ manual explicitly says not to do—recline a seat in a moving car—and hurts herself. Bazelon blames… the automaker and NHTSA for not doing more to warn her, and serves as a mouthpiece for plaintiffs’ lawyers who specialize in such arguments, lionizing one who won a $59 million verdict against Toyota for his client’s own foolhardiness.

The NHTSA official Bazelon talks to points out that she’s taking one safety issue out of context; Bazelon pooh-poohs it because, after all, it happened to her and some other people, too! But Bazelon ignores that there are several dozen other dangerous problems addressed in the owners’ manual, many of which would kill or injure far more passengers than reclined drivers’ seats. One cannot just look at the idea of putting a single additional sticker on the dashboard: the car would have to be literally wallpapered with additional warnings to cover every warning of a matter at least as hazardous as car-seat reclining, at which point we’re back to the problem of owners ignoring warnings. Bazelon simply fails to address this reality.

But, hey, I’ll join Bazelon in telling you: don’t recline your car seat in a moving vehicle. (Long-time Overlawyered readers already know this from two separate posts.) Also, don’t drive with your windows open, your doors unlocked, or your seatbelt unfastened. Reattach your gas cap after filling the tank. Look behind you and ensure the path is clear before going in reverse. Keep your eyes on the road. Don’t pass a car in a no-pass zone or drive twice the speed-limit. Sit up straight, especially in a front seat with airbags. Don’t have loose heavy objects (including unbelted passengers) in the passenger compartment of the car. Don’t permit children to play with power windows; don’t leave children unattended in a car that is on; don’t leave the car on when you’re not in it; don’t try to jump into a moving vehicle. Don’t leave your shoes loose while driving. Be careful when shifting gears. Do not violently swerve an SUV, especially if there are unbelted passengers. Always be aware of the danger of pedal misapplication. Don’t fall asleep while driving. Don’t drive recklessly, and if you do, don’t leave the road. Use your parking brake when you park. Replace a tire after repeatedly patching it; don’t drive on bald tires in the rain; and replace your ten-year old tires before you have to drive on a spare. Make sure your floor mat isn’t interfering with the pedals. Don’t drive into the back of a truck at 60 mph without braking. Et cetera.

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  • Hmmm. If only there was some way to easily put ALL those dozen warnings together in an easily accessible format for the new car owner.

    Lemmee think…is there such a thing?

    Oh I know..its the MANUAL!

    Gee..why didn’t Bazelon think of that before?

  • Well, I’ve read my manual from cover to cover several times (it comes from being a geek) and am still trying to figure out how to tell what a reasonable recline would be.

  • Captain, you read the article. A manual is NOT enough! The car companies should install a warning buzzer! And eliminate roll-down windows! And cars shouldn’t go over 25 MPH! And we should all be required to wear crash helmets and padded fire-retardent (sp?) suits when driving!

    Bazelon got hurt, saw a way to get money out of it, and penned her “beliefs” of the accident so she would feel entitled instead of feeling like a vulture.

  • I think autos should be equipped with a warning system that announces all the warnings, similar to the preflight announcements by airline crew. It shouldn’t take more than 5-10 minutes. Probably should prevent the car from moving until the warnings are done. You could have a “I’ll waive any rights to litigation, just shut up for God’s sake” button for those of us less patient than litigious.

    Maybe an aftermarket device? I’m sure Ms. Bazelon would buy one 😉

  • Robin, we’re not that far away from that now. I gave Walter a ride when he was in DC in 2004, and we both chuckled over the paragraph-long warning that my GPS displays and requires you to explicitly accept before using it. (“Don’t use the GPS while the vehicle is moving. Keep your eyes on the road.” Etc.) When video-screens become common in cars, you will start seeing auto manufacturers front-loading warnings into it that are read as carefully as I read the warnings my GPS gives me now. And plaintiffs’ lawyers will continue to complain that the warning isn’t enough because, after all, their client ignored the warning, so it’s the manufacturer’s fault for not warning harder.

  • How about one big sticker on the steering wheel that says “Vehicle not approved for use by stupid people”.

  • It took me hours to pick up my last new motorcycle because they were required to explain all the safety features and get my signatures that they had done so.
    The procedure is so long that they require scheduled appointments to deliver motorcylces that are already paid for.
    You’d think my having a motorcycle license would mean I know the difference between the clutch and the brake.

  • Hmm. How come she’s not suing the clearly deficient driver of her car? Hopefully the driver had more training than some 4 or 5 week course back in high school. I think the government should look into that. I’m so glad she has no culpability.

  • Most of these are things that any driver should know, without having to read the manual, which is a good thing, since rental cars, in my experience, virtually never have a manual. For mysterious reasons the rental companies apparently remove them and replace them with useless generic brochures.

  • “Vehicle not approved for use by stupid people”

    How many cars would they sell then?

  • john b and Patrick are on to something.

    Just transfer all of the warnings to the DMV drivers handbook. Then when you take the written portion of the test, you have to correctly answer a section on questions about “what not to do”.

    If they test you on information about BAC (blood alcohol levels) then they should test you about not reclining you seat.

    Why yes, I am being sarcastic.

  • This reminds me of the warning on one of those cardboard sunscreens that go in your windshield to keep the car cool while parked: “Do not drive with screen in place”.
    I will sometimes joke that I need money, so I should drive with it in place, and when I have an accident, sue the manufacturer of the sunscreen, the car manufacturer, the weatherman (for making it a sunny day), …

  • In case no one figured it out, I don’t really think cars need a warning annunciator. I know such a device would work as well as the announcements on an airplane, where the usual suspects can be relied on to ignore all instructions and warnings.

    In the immortal words of Ron White: “You can’t fix stupid”.

  • My truck has power seats with memory.
    The memory recall function will not engage if the vehicle is not in park.

    I am pretty sure (I should test in a secure manner) that you cannot recline the seat much while driving. I think it has a limiter.

    So mebbe the solution is to put power driver’s seats in all cars and put software limits on when & how they can be used.


  • Sorry, but your list of cautions is in a too-small typeface. You’ll be hearing from my attorneys.

  • A standard IQ test should be a prerequisite for a driver’s license. Secondly, to save our forests operator manuals should be mandated to be “optional accessories”, therefore only persons who are motived to read said manuals would have them. Thirdly, it should be mandated that no situation denounced as dangerous in a manual should be grounds for a lawsuit.

  • “don’t drive with your windows open”


  • Commenter Ted wrote:

    When video-screens become common in cars, you will start seeing auto manufacturers front-loading warnings into it that are read as carefully as I read the warnings my GPS gives me now.

    Absolutely. But they don’t even need to wait for videoscreens; most car dashboards are already capable of some kind of digital printout. I’m talking about the tire pressure warnings et cetera that pop up typically in the right bottom corner of the dash. They’ll just program in a text list of warnings that will scroll by whenever the ignition is engaged, and that will handle the legal liability. It’s actually kind of surprising they haven’t done it already.

  • Bill Poser: That’s definitely not my experience. I check for the manual every time I rent and it’s always been there. I usually rent from either Enterprise or Alamo, BTW.

  • When everything is dangerous, nothing is dangerous.

    On the issue of warnings, the great state of California has taken upon itself the mission to warn its citizens of all kinds of perils attached to everyday substances, without attempting to quantify the associated risk. The same warning appears on stuff that has a one-in-10,000 probability of killing you and stuff that has a one-in-10,000,000 probability of killing you, notwithstanding that the first is a thousand times more risky than the second. IMHO this is a fool’s errand because people who are constantly bombarded with warnings will soon disregard them all, as Ted points out.

    Bottom line: common sense is a necessary condition for survival. Those who don’t exercise it are candidates for the Darwin Award. As the old corollary to Murphy’s Law points out, “Nothing can be made foolproof, because fools are so ingenious.”

    Ms. Bazelon, are you listening?

  • “But they don’t even need to wait for videoscreens; most car dashboards are already capable of some kind of digital printout.”

    Videoscreens? Heck, wait till we get heads-up displays projected on the windshield.

    Actually, there’s a DIY thing you can do. Get your map into your paint program. Flip vertical. Print. Place map on dashboard. Look at reflection in windshield.

  • The reclining car seat issue is a serious one, and has been known by every automobile manufacturer since the 1970’s. As far as a reasonable recline, engineers will tell you no more than 30 degrees. Another way to explain it is to be sure you do not recline the seat past the 1:00 o’clock position. That is close enough to 30 degrees. If you recline past that point, every automotive engineer will tell you that the car safety devices including waist and shoulder belts and air bags are worthless and will not protect the individual.
    We learned the hard way, when my daughter was taking a nap coming home from school in September 2000. The driver did nod off and unfortunately he struck a telephone pole, but he escaped with a broken thumb. The car did everything it was supposed to do: the crumple zones crumpled, the air bags deployed, but my daughter died because she was in a reclined seat, and the driver had a much less serious injury. The windshield wasn’t even broken, that shows you the impact wasn’t all that severe, but my daughter died because of this one design issue. We have spoken about this to civic groups, charitable organizations, schools, etc, and probably 99% of the people out there had no idea that reclining seats were actually dangerous. Go ahead and recline while the car is in park, but no safety measure will work on a fully reclined seat while the car is in gear. There exists a technology to limit the seats to that 30 degree recline while the car is in gear, and I think it should be standard. Car manuals do talk about the danger of reclining the seat while the car is in gear, but, really, how many people actually read the manual other than to figure out how to change the tire?
    I understand the point about being over-lawyered, but that still shouldn’t stop a strong awareness campaign; especially when so few people actually realize the danger of reclining seats.

  • Stupidity is like a skill, some are born with it and some develop it over a period of time.

  • John Burgess,

    Interesting. Perhaps it depends on the rental company. A brief bit of googling failed to turn up anything about the US, but I found this survey of European firms, which reports that of the 57 companies surveyed, 36 do not provide manuals.

  • Do not drive while talking on the phone, –putting on make-up,eating breakfast —reading— engaging in sexual activity —doing drugs,or —-oh heck ,turn in your friggin license

  • oddly enough, motor vehicle fatalities are at an all time low.I don’t know why but I suspect it has nothing to do with reading the manual, but is more likely related to the strict DUI laws—–however motorcycle fatalities are still on the rise,–again I’m not sure why,but at a recent stop at Dunkin Donuts,I encountered about 18 Harleys—-all the riders got the senior discount,so I’m gonna go with reaction time/alzhimers/lack of helmut. A “dew rag” isn’t much help when the skull meets the pavement.

  • Kevin,

    I feel for your loss. I know other people who have died absurdly young randomly, and the unfairness of it all can be maddening.

    But, as public policy goes, many more people die from drowning in buckets than from reclining in car seats. If we demand that the government (or auto manufacturer) warn us in detail about every obscure risk, the reality is that we will tune them out somewhere along the point where they are talking about rhinoceros tramplings, and we will be less safe than if the warnings were better targeted. The reason so few people read car manuals is because lawyers demand so many obvious warnings be placed in the manuals that one’s eye stops paying attention to the hundreds of exclamation points. When you warn for everything, you warn for nothing. Many more people die because they are not wearing their seat belt at all, or because they are driving while intoxicated, and every dollar by the government spent on warning for the obscure risk means a dollar that isn’t being better spent on the more common danger.

    The best possible solution, perhaps, is to demand better physics education in our schools, such that it becomes patently obvious that a seat-belt isn’t going to restrain someone against lateral force if they are reclining. Too, one can emphasize the importance of reading auto manuals. An automobile is a powerful piece of equipment, and it can kill you in dozens of ways you haven’t thought of but the engineers have.

    (The reason why one should not drive with the windows rolled all the way down, questioned by “Fat Man” at 3:46, is left as an exercise for the reader.)

    Don, fatalities are down largely because of a combination of (1) improved ER medicine; (2) reduced DUI; and (3) increased seat-belt use. Thousands of dollars/vehicle in car safety features have also helped at the margin, but we’re still at the stage where human factors are the biggest cause of fatal accidents.

  • Ted,
    Thanks for the reasoned response. As a point of education it is almost impossible to determine how many die from the reclining seat issue, simply due to the fact that this isn’t a tracked statistic. I would question whether more die from drowning in buckets, simply because of the network of people we have learned about since our daughter died. In every cases, the cause of death is not attributed to the reclining seat; again, because it is not a tracked statistic so the police and hospitals have no way to accurately count it.

    Also, we have spoken with the individual who won the $59MM lawsuit against Toyota, and he offered to take a significant reduction in the settlement if Toyota would apply the rest to public education. Toyota refused.

    Thanks for the discussion, though. This is building awareness and that is all we have tried to do since my daughter died.

  • Ted-

    yes, seat belts –that’s huge–it took a while for that to catch on. “Life Star”med evac–also huge.

    Good Points.

  • Bazelon’s injuries are due to a failure of the component between the steering wheel and the driver’s seat. In technical troubleshooting circles, this would also be known as an “I.D. Ten T” problem (use the numeric form for “ten” to decode).

    The solution to most of life’s technology problems is almost always RTFM. Read the freaking manual.

  • Right, we contemptible common folk — we (ahem) ‘stupid’ people — should scrutinise every technical document and read the fine print on every transaction we make. Our lawyer masters have thus decreed.

    It’s _not_ good enough to design a lethal flaw into an object and then bury a disclaimer somewhere in the operating instructions. A car seat ought to be safe for all ordinary usage while driving. If it’s dangerous to drive while reclined, it ought not to recline.

    Sorry, sleazy, creepy, self-righteous, smug, superior lawyers; but here in the world of ordinary, moral people, there is an expectation that normal everyday usage of commonplace vehicles, machines and objects will not result in death or injury, and that in everyday transactions — particularly on relatively _minor_ everyday transactions — one ought to be able to assume that there is not some hidden ‘gotcha’ in the small print to make rapacious, reptilian lawyers rich.

    Of course that was when society was a society of honest, straight talking folk and not a wasps’ nest of your kind.

    Maybe, in whatever peverse background you creeps come from, it’s OK to set lethal or expensive traps for simple ordinary folk, with a little warning tucked into a large document or contract, but this potential jury member will vote for the old-fashioned expectation of good faith.

  • Kip, in good faith, turn in your license, have someone pick up your car.

    The ability to nap in your car is not a trap, it is a feature. The ability to back up is not a trap, it is a feature. The ability to turn left and right is not a trap, it is a feature. There are times when using these features is appropriate, other times when it is not appropriate. If you are not responsible for your actions, why should anyone else be liable for your actions?

  • Gee, Don, did I mention smug and self-righteous?

    A car that can that slip after half a minute from Park into Reverse is a deadly weapon disguised as a car. Likewise a seat with a belt that doesn’t restrain the passenger when reclined is _not_ acceptable, regardless of what’s in ‘TFN’.

    Do you neo-laissez faire types have no concept of ‘duty of care’? (rhetorical question)

    Can I sell toxic food to your kids (if you had any) simply because clause 11 on page 98 of the accompanying contract covers me? Or a central heating system that will poison you? How is selling a lethal vehicle any different? The law in the Anglo Saxon nations, thankfully, is not just based on what some slick reptile of a lawyer thinks they can get away with. It has at its heart what is _reasonable_ to reasonable people.

    I am just such a reasonable, ordinary person. You, clearly, are not. Your attitude might destroy you one day when you find yourself facing a jury of ordinary ‘idiots’ like me.

  • Kip, the only way to make an automobile “non-lethal” is to restrict its speed to 5 mph, and to substantially shrink it so that even at that speed it cannot kill pedestrians. Except then it’s less of an automobile and more of a Big Wheel. That’s how “selling a lethal vehicle” is different: anything that weighs over a ton and can travel 55 mph is lethal, and we accept that tradeoff because society is better off with automobiles than without them. It’s not reasonable to ask automobiles to be non-lethal.

  • What about this? Don’t ride with your feet or knees on the dashboard in front of an airbag (unless you like the idea of chewing off your own kneecap!)

  • Bazelon’s article is awful, and the notion of an “improved” warning is silly, for all the reasons noted. Also, since she gives no details of the accident, she leaves the impression that the driver of her vehicle was responsible for the accident, which doesn’t make it her fault but does nonetheless tend to lessen one’s sympathy.

    However, the idea of a lockout that would prevent leaning the seat back past a certain point while the car is moving is potentially worthy at least of discussion. Granted, it won’t make the car wholly non-lethal, it is a restriction on freedom, and it is an added expense. But all of that is true of seat belts, airbags, crumple zones, bumpers, reinforced A-pillars, etc., and we already mandate those features. On the other hand, as Ted points out, we don’t require a 5-mph maximum speed, nor do we armor our cars.

    A seat-recline lockout while driving falls in one category or the other, and it’s not immediately clear to me which one. Maybe it’s impractical; maybe it’s a stupid idea. I don’t know enough to dismiss it out of hand, though.

  • In light of the immutable laws of physics as they pertain to force, movement and inertia, it would appear that the only “safe” solution is to prohibit seat reclining devices in moving vehicles. Just what the auto industry needs.

  • Note that prohibiting seat reclining devices makes the seat more dangerous for the far more common occurrence of the rear-end collision; the give in the seat back reduces risk of neck injury, a trade-off we have discussed in a number of seat back collapse cases.

  • I’m also not sure how one eliminates the ability of the car to recline a seat while moving without losing functionality. There have been times when I reclined the passenger seat to fit furniture that otherwise would not have fit in the backseat. If the car has a lockout that prohibits it from starting if the passenger seat is reclined more than 30 degrees, then the functionality is lost; if the car doesn’t have the lockout, the safety feature is easily evaded.

  • I recognize the concern you’re describing, but the “give” in the seat back refers to the materials from which it’s made, correct? Surely the seat back isn’t designed to _recline_ in a rear-end collision?

  • It should be clear to everybody by now that the only reasonable safety device on a car would be a complete lockout device, that didn’t let anyone in it at all, ever. Or, since such a device might be disabled, a vehicle without doors, windows, or other places which might allow an irresponsible person to get in.

  • Ted, I don’t think prohibiting seats from reclining would be the result. More likely they would be limited to

  • Kip Watson says: “Can I sell toxic food to your kids (if you had any) simply because clause 11 on page 98 of the accompanying contract covers me? . . . How is selling a lethal vehicle any different? ”
    Cars are already one of the most deadly products we buy, they (and their drivers) kill thousands each year. And Yes, we do sell toxic food to our kids, but you are expected not to eat a pound of salt at one sitting, or drink 3 gallons of water in an hour, or swallow chicken bones at KFC. Many foods are toxic, many aspects of a car are deadly, if not used in a prudent way.
    How about using that safety device between the ears, and accept that we will all die, and some at an earlier age than expected.

  • All well and good folks; but my point is to simply be sure that everyone is aware of this so the same thing doesn’t happen to them that happened to our family. Being covered in the manual is not enough because so few actually look at the manual. I don’t want another sticker in the car because there are too many in there now and most ignore them. I simply want people to KNOW of the dangers; if people are aware of the dangers then they can make decisions based upon knowledge and not from ignorance. My point being that so few people know of this danger, but this kind of discussion is very helpful in getting people to discuss it and spread the word.

    So, the other way to invest those funds as mentioned by OBQuiet would be an educational campaign. Every car manufacturer in the world has been sued on this design issue and all have lost. Some have lost tens of millions overall. They have made an accounting decision that the relatively low number of people dying from this issue is worth less than the costs of an educational campaign, and therefore would rather pay the losses than educate the general public.

    Of course its impossible to make any product 100% safe and I’m not saying that we do that. Simply spread the word, help educate the public, and then some good can come from my daughter’s death.

  • Skip seems to be having some chronological issues.

    What came first was not evil corporations selling toxins to children with intent to injure simply to test their lizard lawyers’ ability to absolve them via obscure warnings and disclaimers.

    Prior to any such warning or disclaimer being implemented, another reptilian species had successfully argued to some empaneled common folk that Suzie Q would never have ingested a toxin (lets say a cup of bleach that looked like kool aid) if only the container of bleach had stated (in a font and color deemed suitable and appropriate in hindsight) that it may be harmful for children to do so.

    Of course, it is irrelevant that Suzie Q was too young to read, and that a parent may bear some responsibility, since we are only concerned with dangerous products foisted upon us and the “duty of care”.

  • “(1) Every car manufacturer in the world has been sued on this design issue and (2) all have lost.”

    1) Really? I’d like to see some data on that.

    2) See #1, AND that in and of itself proves very little (unfortunately). This very site chronicles lawsuits that have ridiculous outcomes, such as one where someone sued because his seat crumpled and he was injured… never mind that such crumpling is intentional because it saves many lives every year… including people who were in the car with him at the time of the accident!

    Stupidly, every case stands on its own, allowing a company to simultaneously be too much of something, to the point of liability, and too LITTLE of something, to the point of liability. It is indeed all about lawyers getting money, but not in the way Kip seems to think.

    Kip: people WANT reclining seats, just like people WANT hot coffee. Indeed, reclining seats have been present in cars since before many people currently driving were even BORN, back “when society was a society of honest, straight talking folk”, and driving with the seat reclined was just as deadly then.

    In fact, as pointed out repeatedly, “normal everyday usage of commonplace vehicles” can quite easily, and not uncommonly do, result in death. Seat reclining or not does not have a noticeable effect on that.

    By the way, I consider myself “a reasonable, ordinary person”, and I am not remotely a lawyer (nor a legal assistant, or any other lawyer-related thing).

  • Kevin,

    You may be being a bit unfair to the manufacturers. It might be correct that they have decided that they should not be the one’s paying for an education campaign that has unclear benefits, would not limit their liability and may well make suing them easier. I agree that better knowledge of the dangers would likely help save some lives. But if the Auto Manufacturers put forth such a program, the lawyers would use it to prove that they knew of the danger and did nothing! And a big education campaign is really just a big sticker. People hear about dangers all the time and frequently ignore them in all the babble caused by warning about everything.

    Perhaps the best we can do in the current situation is to pass the message on ourselves and hope that no one else has to suffer the loss you did.

    Maybe we need to put more emphasis on the general danger of driving and the safety items in the manual. A PSA along the lines of saying:

    Cars are inherently dangerous but quite safe if operated correctly. There are many safety features in your car that you need to know about to provide maximum protections. They are described in your operators manual. Every year people are injured and killed by not following the guideline it provides.

    Read it. Operate safely. Be informed.

  • Deoxy,
    Perhaps I should amend my comment to every “major” car manufacturer has been sued and lost. I know of cases involving Toyota, Nissan, Honda, Ford, GM, Mercedes, and Chrysler. I think we can agree that they are the major ones when you consider all their separate divisions and subsidiaries. The information to prove that is out there; either from NHTSA, NTSB, Autosafety.org, safetyforum.org, iihs.org, or various individual attorney sites.

    Thanks for helping spread the word in any case.

  • If they can put a warning on a cigarette package that practically says “This product will kill you” and people still start to smoke, how can you expect any warning label to be effective?

  • Warning: This vehicle may inadvertently place its operator and occupants directly in Darwin’s cross hairs. Operate/Ride with caution.