Jurors Sideswipe Trailer OEMs

IT HAS BEEN an autumn of legal wrangling. While most of the nation focused its attention on dimpled chads and manual recounts, a jury in Laredo, Texas, reached a decision that may impact trailer manufacturers like a Palm Beach County voter taking a stab at a butterfly ballot.

In a nutshell, the jury found that a trailer was defective because it was not equipped with a side underride guard.

Nineteen-year-old Ricardo Maravilla reportedly was traveling east on U S Highway 59 near Laredo three years ago when his car veered into the westbound lane. Seeking to avoid the car, the truck driver pulled onto the shoulder. Even so, the car had enough lateral force to underride the side of the trailer before striking the trailer tandem, killing Maravilla instantly.

The sentiments of the jury were reflected by Guillermina Romero, who told the Laredo Morning Times that a side underride guard would have kept the teenager away from the tandem. "The accident still would have been there, but he would still be alive," she said.

Under Texas' bifurcated judicial system, a case is tried in the first phase of the trial, and punishment is determined in the second phase. After the jury ruled that the absence of a side underride guard made the trailer defective, the manufacturer, Lufkin Trailers, reached a settlement with the teenager's parents without the suit moving into the next phase. With the case settled before jurors could deal with a myriad of questions that would determine the size of an award, the case in effect remains open. Issues that may have been raised on appeal are unresolved - much like the position in which trailer manufacturers now find themselves.

According to Ken Valls, one of the attorneys representing the parents of Ricardo Maravilla, this is the first time that a jury has found a trailer defective for not being equipped with side underride guards. Stated another way, a jury has now said manufacturers should equip trailers with something that the government does not require and the customer does not want.

It is understandable that jurors selected at random from the general public would feel sorrow over a life that was snuffed out prematurely, and even become angry when a plaintiff's expert witness says this entire tragedy could have been avoided if only trailer manufacturers would care.

Far more difficult for the general public to understand are the reasons why side underride guards - which may seem like a good idea - are not standard equipment on trailers.

Why does the government not require them? Certainly not for lack of study. Federal regulators have considered the overall issue of underride at least since 1953, when the old Interstate Commerce Commission rear bumper regulation went into effect. Between 1953 and 1998, when the current rear underride requirements were implemented, the National Highway Traffic Safety Administration (NHTSA) studied the issue multiple times. One of the questions that needed to be addressed was the potential benefit of such a device. In announcing that rear underride (but not side underride) would be required on trailers, NHTSA estimated that rear guards would save between nine and 19 lives per year (The Federal Register, Jan 24, 1996). How many lives would a side underride guard save annually? We don't know, but accident research statistics indicate the incidence of side underride is substantially lower than rear impacts.

Side underride guards are mandatory in Europe, as a consumer advocate in the Maravilla case pointed out. However, these light-duty guards are designed to protect bicyclists and pedestrians. The Netherlands, for example, began requiring side underride guards in January 1995. The guard must withstand a static force of one kilonewton (220 pounds). This may be enough protection for a small football player on foot, but Maravilla was behind the wheel of a Ford Taurus.

In the absence of a federal regulation mandating side underride guards, trailer manufacturers are going to find it extremely difficult to produce a trailer that the Laredo jury would not consider defective. To sell a trailer equipped with side underride guards, a trailer salesperson would have to accomplish the following:

- Convince the customer the safety benefits would be worth perhaps an additional $1,000 cost per trailer and an increase in tare weight of between 800 and 1,000 pounds.

- Keep the customer from thinking in terms of how competitive trucking is today and that such a cost or weight penalty would put him at a competitive disadvantage.

- Prove that the height of the guard is just right - low enough to keep out cars and high enough to clear railroad crossings and other obstructions.

- Show that the guard is strong - but not too strong. NHTSA rear underride research in the 1970s concluded rear guards should absorb energy by being weak enough to yield - yet strong enough to stop the car. But we can't simply apply the rear underride requirements to a side guard because crash dynamics of side underride are completely different from rear impacts. Should the guard be strong enough to withstand glancing blows as was the case in the Maravilla accident, or must it absorb the full impact of a broadside crash at a highway intersection? This is a key point since there are no objective standards, and juries have the right to second-guess engineers and federal regulators.

- Point out that maintenance of guards hung along the length of the trailer will be no problem.

- Demonstrate how the side underride guard can coexist with sliding tandems. Prove that it will not create a safety hazard by interfering with routine brake inspections and maintenance, tire replacement, or landing gear operation.

Trailer manufacturers take seriously their responsibility to put safe products on the roadways. But after this verdict, we wonder if they are feeling as trapped as a cardboard ballot on Election Day. Only time will tell if the industry is really stuck or if this case is just a dimpled chad.

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