Heyl Royster

 


Heyl Royster

 

New Tech, New Parties? The Effect Of Collision Avoidance Technology On Trucking Litigation

By: Devin Taseff, dtaseff@heylroyster.com, assisted in research by Jessica A. Pullen

Introduction

In a world in which our reliance on technology is increasing, the trucking industry is no stranger to adopting cutting-edge technology, whether to get ahead in the marketplace, further safety and reduce accidents, or comply with constantly evolving regulations. In fact, as of 2015, fifteen percent of large carriers (>100 tractors) have already implemented forward collision warning (FCW) and/or automatic braking (AB) systems into their respective fleets, despite there being no current regulatory requirement to do so.1 In particular, Volvo, Mack, Kenworth, Peterbilt, and Navistar all have made such systems standard on some trucks, and fleets such as United Parcel Service and Schneider have been utilizing them for years.2 But many in the industry believe it will take a federal mandate to propel these systems beyond a solid foothold in major motor carriers to the larger pool of commercial motor vehicles (“CMVs”) operating nationwide.3 Accordingly, with the emergence of collision avoidance technologies, both in the personal and commercial realms, it appears that a federal mandate to include such technologies in new commercial fleets is inevitable.4

Similar to all safety features implemented in the trucking industry, the obvious goal with collision avoidance technologies is to reduce, mitigate, or outright prevent collisions on the roadway. At the core of this preventative endeavor is to limit the effects of driver error: one National Highway Traffic Safety Administration (NHTSA) study found that roughly 94 percent of accidents could be tied directly to driver behavior, rather than environmental conditions or vehicle malfunctions.5 Per a recent study conducted by the Insurance Institute for Highway Safety (IIHS), trucks equipped with forward collision warning had 22 percent fewer collisions, and trucks with automatic braking had 12 percent fewer collisions than those without either technology, including a reduction in rear-end collisions by 40 percent.6

Despite the proven effectiveness of collision avoidance systems, no technology, especially in the early-adoptive stages, is perfect. As regulators and carriers continue to utilize the same to limit the effects of driver behavior, there have, and will undoubtedly continue to be, issues with performance giving rise to potential product liability litigation. As collision avoidance technology becomes a standard by which to reduce driver error, the next question becomes: who do we blame if (and more likely, when) such technology fails to perform as represented? Alternatively, who do we blame if the carrier did not utilize such technology in the first place? This article attempts to answer these very questions.

From Emerging Technology To Standard Issue

At approximately 12:55 a.m. on Saturday, June 7, 2014, a black 2012 Mercedes-Benz limousine van was traveling north in the center lane of the New Jersey Turnpike near Cranbury, New Jersey. The limo van was transporting five passengers in its passenger compartment. The limo van and surrounding traffic had slowed due to traffic congestion associated with construction work.7

At the same time, a semi-tractor trailer was traveling in the center lane and rear-ended the limo van at approximately 65 miles per hour. Of the five passengers, one was pronounced dead at the scene, and the remaining four passengers sustained serious and life-threatening injuries.8

The National Traffic Safety Board (NTSB) investigated this accident and discussed the Bendix Wingman ACB system installed in the tractor. Said system consists of an automatic braking feature when cruise control is in use. When cruise control is not in use, the Wingman ACB system could issue radar alerts to the driver as to following distance, a stationary object in the roadway, and/or an imminent impact.9

Although the NTSB concluded that the accident would have occurred even if the ACB system were active, it also concluded that, based on the data recorded by the ACB system, it did not provide a pre-crash alert to the driver. Further, the NTSB noted that the Wingman ACB system’s limited capability to store data constrains both the company’s ability to analyze and enhance system performance and investigators’ ability to reconstruct events accurately.10

Ultimately, the NTSB concluded that this accident highlighted the need for reliable collision avoidance systems on heavy trucks with performance parameters different from those for lighter vehicles. As a result, the NTSB recommended the following actions:

  • Complete rulemaking on adaptive cruise control and collision warning system standards for new CMVs, including but not limited to detection distance, alert timing, and human factors guidelines;
  • Require that all new CMVs be equipped with a collision warning system;
  • Determine whether equipping CMVs with collision warning systems with active braking and electronic stability control systems will reduce CMV accidents and, if so, require their use also.

Over the next four years, Congressional progress on implementing the NTSB’s recommendations was nearly nonexistent. The public and private sectors, however, conducted extensive research to test the effectiveness of such technologies on traffic safety,11 concluding that forward-collision avoidance and mitigation systems have the potential to save lives by preventing or reducing the severity of rear-end crashes.”12

On June 11, 2021, the NHTSA announced a new proposal that would set standards and require CMVs to be equipped with automatic emergency braking systems.13 Currently, it is estimated that upwards of forty percent of all carriers utilize at least some form of collision avoidance technologies including but not limited to, blind-spot monitoring, lane-departure warning, smart cruise control, automatic emergency braking systems, and/or electronic stability control.14

If such technology becomes an industry standard, carriers will face immense pressure to implement their fleets with such systems quickly and for designers, developers, manufacturers, and retailers to ensure that said systems perform as represented. In time, trucking litigation will change dramatically, such that nearly every major accident involving a CMV will inevitably involve data extracted from collision avoidance system modules, likely leading not only to new respondents in discovery but also new parties in litigation. Designers, developers, manufacturers, and retailers alike will be called to answer for the performance of said technologies in each case, and carriers will be called to answer for their decisions on implementing such technologies in their respective fleets.

Pointing The Finger At The Product, Not The Driver

While collision avoidance technology has been proven effective in reducing accidents, to the point at which courts have found manufacturers liable in negligence for failing to equip such systems in the first place,15 there have been a myriad of past and ongoing concerns with the technology. The automatic braking systems can act on a false positive, with the computer applying the brakes in the absence of a road threat.16 In 2015, the NHTSA opened an investigation into 95,000 Jeep Grand Cherokees following reports that the SUV was braking for no reason.17 Similarly, Nissan’s Automatic Emergency Braking (AEB) system has reportedly malfunctioned, and vehicles have stopped in unexpected situations, due to broken sensor, a misaligned radar and software defects.18 In the last year, Tesla consumer complaints alleging that its semi-autonomous driving technology falsely alerts to various off-road objects such as a full moon in a low night sky, LED billboards, and perhaps most puzzling, a Burger King sign.19

While legal precedent involving litigation against such parties is limited at this time, the Ninth Circuit’s ruling in Mazza v. Am. Honda Motor Co., 666 F.3d 581, 81 Fed.R.Serv.3d 489 (2012) presents a case well before its time. Mazza involved Honda’s Collision Mitigation Braking System (CMBS). Honda represented that the CMBS detected the proximity of other vehicles, assessed the equipped car's speed, and implemented a three-stage process of warning, braking, and stopping to minimize the damage from rear-end collisions.

In December 2007, Plaintiffs filed a class action complaint against American Honda Motor Co., Inc. alleging that Honda misrepresented and concealed material information in connection with the marketing and sale of Acura RL vehicles equipped with the CMBS.20 The Ninth Circuit later upheld that the Plaintiffs had standing to sue Honda for alleged deceptive conduct with respect to its CMBS collision avoidance technology.21 Post-Mazza, federal courts have legitimized product liability claims not only on failure to warn theories, but also product negligence claims for failing to include collision avoidance technologies where there is ample economic opportunity to do so. For example, in 2014, the Northern District of Texas denied Volvo summary judgement on Plaintiff’s claims of design defect, negligence, and gross negligence, where Volvo equipped its European fleets with collision avoidance technology, but failed to do so in its American fleets, including its truck involved in a preventable rear-end collision with Plaintiffs.22

More recently, the Western District of Pennsylvania denied a Motion to Dismiss where Plaintiff asserted claims of strict liability and product negligence against Navistar for failing to equip its truck with safety features, including collision avoidance systems.23 With a potential industry mandate looming, instructive case law will only continue to develop nationwide.

Conclusion

Even in the absence of formal regulation, there is increasing pressure for carriers to adapt their fleets with collision avoidance technologies and for designers, developers, manufacturers, and retailers to ensure that their products perform as represented. This will only continue should the federal government mandate said technologies in commercial motor vehicles, as they have recently indicated. As collision avoidance technology becomes the new safety standard in commercial motor vehicles, emerging legal precedent suggests potential product liability litigation in trucking accidents involving these new parties. Or, at the very least, where collision avoidance technology is at issue (or a lack thereof), said parties will inevitably be involved in the discovery process.

Accordingly, the author makes the following recommendations to carriers from now on:

  • If economically feasible, consider outfitting some or all trucks with at least some form of forward collision avoidance technology, as it is likely to be federally mandated in the near future;
  • Prior to purchasing a particular avoidance technology, scrutinize the firm’s representations designing, developing, manufacturing, and/or retailing said technology and compare them with publicly available performance data.
  • KNOW YOUR TECHNOLOGY INSIDE AND OUT, ESPECIALLY ITS LIMITATIONS

1Mike Monticello, Reducing the Risk of Big Rigs, https://www.consumerreports.org/car-safety/reducing-the-risks-of-big-rigs/

2Aaron Marsh, Collision Mitigation: Require it or Wait?, https://www.fleetowner.com/technology/article/21701782/collision-mitigation-require-it-or-wait

3 Id.

4 Eric Miller, US to Seek Automated Braking Requirement for Heavy Trucks, https://www.ttnews.com/articles/us-seek-automated-braking-requirement-heavy-trucks

5 National Highway Traffic Safety Administration, Critical Reasons for Crashes Investigated in the National Motor Vehicle Crash Causation Survey, https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812115

6 Alan Adler, IIHS: Truck safety equipment could cut 40% of rear-end collisions https://www.freightwaves.com/news/iihs-truck-safety-equipment-could-cut-40-of-rear-end-collisions

7 NTSB Highway Accident Report No.15/02 at 1.

8 Id. at 1-2.

9 Id. at 43-45.

10 Id. at 44.

11 See supra Note 4.

12 Id.

13 See supra Note 4.

14 Pitman, Kalkhoff, Sicula, & Dentice, How Can Truck Companies Make Their Vehicles Safer?, https://www.ttnews.com/articles/us-seek-automated-braking-requirement-heavy-trucks

15 Greene v. Toyota Motor Corp., No. 3:11-CV-207-N, 2014 WL 12575717 (N.D. Tex. June 13, 2014).

16 The Lyon Firm, Collision Avoidance System Defects, https://www.thelyonfirm.com/auto-defects/collision-avoidance-malfunction/

17 Id.

18. Id.

19. Levin, Tim, Tesla's Full Self-Driving tech keeps getting fooled by the moon, billboards, and Burger King signs, https://www.businessinsider.com/tesla-fsd-full-self-driving-traffic-light-fooled-moon-video-2021-7

20. Id. at 587.

21. Id. at 595.

22. Greene v. Toyota Motor Corp., No. 3:11-CV-207-N, 2014 WL 12575717 (N.D. Tex. June 13, 2014).

23. Shimmel v. Navistar Int'l Corp., 440 F. Supp. 3d 438, 447 (W.D. Penn. Feb. 24, 2020).