Product Liability Claims Against
Heavy Truck and Bus Manufacturers:
Common Themes in Motor Vehicle Litigation
Daniel W. Howard
Daimler Trucks North America, LLC
4747 N. Channel Ave. C3B/PL
Portland, OR 97217-7699
(503) 745-2096
[email protected]
Chris Pearson
Germer Beaman & Brown PLLC
301 Congress Avenue, Suite 1700
Austin, TX 78701
(512) 472-0288
[email protected]
Daniel W. Howard is Associate General Counsel for Daimler Trucks North
America, LLC in Portland, Oregon. The largest commercial vehicle manufacturer
in North America, Daimler Trucks manufactures the Freightliner, Western Star,
Sterling, Thomas Built Buses, and Detroit Diesel Brands. Mr. Howard oversees the
litigation group, which is responsible for the management of all global litigation,
including product liability litigation.
Chris Pearson is a partner at Germer Beaman & Brown, PLLC in Austin, Texas.
Mr. Pearson regularly defends automotive and commercial truck manufacturers
in product liability matters. He also represents clients that manufacture household
appliances, power and hand tools, recreational vehicles, heavy equipment, and
various other products. Mr. Pearson is licensed to practice law in Texas and
Oklahoma, and is a long-time a member of DRI.
Product Liability Claims Against Heavy
Truck and Bus Manufacturers:
Common Themes in Motor Vehicle Litigation
Table of Contents
I.Introduction..................................................................................................................................................91
II. General Vehicle Statistics and Information.................................................................................................91
III. General Distinctions Between Passenger Vehicles and Heavy Trucks......................................................92
IV. Product Litigation Distinctions Between Passenger Vehicles and Heavy Trucks....................................95
A. Post-Collision Fuel Fed Fires (Tank Placement).................................................................................96
B. Crashworthiness—Cab Structure/Design...........................................................................................97
C. Crashworthiness—Active and Passive Restraints/Retention Devices...............................................98
D. Stability and Handling..........................................................................................................................98
E. Slip and Fall...........................................................................................................................................98
F. Miscellaneous Litigation Claims..........................................................................................................98
Product Liability Claims Against Heavy Truck and Bus... ■ Howard and Pearson ■ 89
Product Liability Claims Against Heavy
Truck and Bus Manufacturers:
Common Themes in Motor Vehicle Litigation
I.Introduction
Among most product liability lawyers who litigate “automobile product liability” and “motor vehicle
product liability” cases, those phrases have come to be thought to encompass litigation claims brought against
manufacturers of passenger cars and light trucks. This is fitting because approximately 95% of motor vehicle crashes in the United States involve passenger cars and light trucks. The remaining 5% of motor vehicle
crashes involve heavy truck and buses (approximately 4%) and motorcycles (approximately 1%). Traffic Safety
Facts 2010, DOT HS 811 659, at p. 61 (Traffic Safety Facts 2010). As used herein, the phrase “heavy trucks”
adopts the National Highway Traffic Safety Administration (NHTSA) definition of a truck with a Gross Weight
Vehicle Rating in excess of 10,000 pounds. Generally speaking, these are commercial trucks.
The purpose of this paper, and the accompanying seminar presentation, is to focus on the 4%—the
heavy truck and bus crashes, and the product liability litigation that arises from them. What facts generally
give rise to such claims and what factors cause or contribute to cause the crashes they arise from? What is the
applicable regulatory scheme and how does it impact the litigation? What legal claims are generally alleged by
plaintiffs in large truck product liability litigation and how does a manufacturer defend itself in light of those
allegations? In undertaking this analysis, however, it is the intent of the authors to address the 95% by comparing and contrasting large truck product liability litigation with product liability claims brought against
manufacturers of passenger cars and light trucks.
II. General Vehicle Statistics and Information
In round numbers, as of 2010, of the approximately 255,000,000 motor vehicles registered in the
United States, 93% are passenger cars (53%) and light trucks (40%). Heavy Trucks and buses constitute
approximately 4% of the general vehicle population, and motorcycles make up the remaining 3%. Traffic
Safety Facts 2010 at p. 24. These vehicle registration numbers are generally consistent with the distribution of
motor vehicle crashes in the United States. In round numbers, in 2010, 95% (approximately 9,000,000) of the
roughly 9,600,000 traffic
crashes involved a passenger car or light truck.
Of the remaining 5%, a
heavy truck or bus was
involved in approximately
4% of the crashes and a
motorcycle was involved
in approximately 1% of
the crashes.
Traffic Safety Facts 2010
at p. 66.
Product Liability Claims Against Heavy Truck and Bus... ■ Howard and Pearson ■ 91
Of particular interest in the litigation context are the motor vehicle crashes in which one or more
occupants is injured or killed. Overall motor vehicle injury and fatality rates have generally decreased to
record-keeping lows over the past several decades. Total motor vehicle fatalities in the United States decreased
from a high of 50,894 in 1966 to 32,885 in 2010—a 35% reduction. Traffic Safety Facts 2010 at p. 17. From
1988 to 2010 there was a 34% reduction in motor vehicle related injuries. Id. However, when comparing passenger cars and light trucks, as a combined group, against heavy trucks (data related to buses was not similarly recorded until more recently) the relative reduction in fatalities and injuries has been greater in the
heavy truck category. Fatalities among occupants of heavy trucks dropped 45% from 1975 (961) to 2010 (529),
whereas fatalities among occupants of light cars and trucks decreased from 30,785 to 22,217 (28%). Traffic
Safety Facts 2010 at pp. 24-29. The distinction is more stark when comparing the fatality rate per 100 million vehicle miles traveled. In the same 1975-2010 time period, considering miles traveled, there was an 85%
reduction in fatalities to occupants of heavy trucks compared to a 61% reduction in passenger car and light
truck occupants. Traffic Safety Facts 2010 at pp. 24-29.
Historically, fatal crashes per 100 million miles driven have been higher in crashes with heavy truck
involvement. However, due to the disproportional trend in the decrease in fatality rates in the past several
years, in 2007, and in every reported year since, the “per 100 million miles traveled” fatality rate has been
lower in heavy trucks than in passenger cars.
Large Truck and Bus Crash Facts 2010, FMCSA-RRA-12-023 (August 2012) at p. 10. (Large Truck Facts 2010).
III. General Distinctions Between Passenger Vehicles and Heavy
Trucks
The variances in the statistical crash data related to passenger vehicles and heavy trucks are significant, and are likely the result of many factors. For purposes of evaluating the litigation claims that arise from
the crashes, however, two general distinctions stand out.
The primary distinction is the obvious one—mass. Newton’s Laws, of course, are universally applicable, and thus apply in the comparison of crash data for passenger vehicles and heavy trucks. Under Newton’s
Second Law, acceleration is produced when a force acts on mass. The greater the mass of the object acceler92 ■ Strictly Automotive: Are Smart Cars Really Smarter? ■ September 2013
ated the greater the amount of force needed to accelerate the object. This is of course generally reduced to
F=MA, or, Force = Mass x Acceleration. All other things being equal (and they rarely are), it follows that in a
crash the occupant(s) of the heavier object (the heavy truck), will (as to the potential for injury) generally fare
better than the occupant(s) of the lighter object. The distinction in mass can, of course, be significant. Consider the following weight comparison (weights approximate; in pounds):
• 80,000
2013 Freightliner Cascadia with fully loaded trailer (“18 Wheeler”)
• 20,000
2013 Freightliner Cascadia (tractor only, no trailer)
• 7,200
2013 Chevrolet Suburban
• 6,800
2013 Dodge Ram 3500
• 4,600
Ford F 150
• 3,300
Honda Accord
• 2,300
2015 Fiat 500
• 1,800
2013 smart for two
• 900
Harley-Davidson Electra Glide Ultra Classic
In summary, a fully loaded Freightliner/Trailer combination vehicle exceeds the mass of the smart
car by 44 times, the Honda Accord by 17 times, and the Chevy suburban by 11 times.
Related to mass is the issue of the presence of the trailer. Generally speaking, semi-trucks in the
heavy truck category are “combination vehicles” in that they are hauling a large cargo-laden trailer. While passenger vehicles can pull trailers, that is a relatively infrequent occurrence. In addition to creating mass, the
trailer puts distance between a rear-striking vehicle and the occupant(s) of the heavy truck. As a practical
matter, when a heavy truck is “rear-ended” the impact is actually into the trailer, and not the truck that is pulling it. The trailer (and its cargo, if any), in addition to adding mass to the combination vehicle, puts (in a typical box trailer) approximately fifty feet between the striking vehicle and the driver of the heavy truck. Unless
the striking vehicle is another heavy truck of approximately the same mass, the change in velocity experienced
by the occupant of the heavy truck is minimal. The result is that heavy truck manufacturers are, for the most
part, “shielded” from many of the product liability claims that arise in passenger vehicle litigation involving
rear end collisions.
The fact that the “other vehicle” in crashes involving heavy trucks is more often than not a much
lighter passenger vehicle has significant influence in the forces in the crash, the outcome, and in the potential
for and nature of resulting product liability claims. Given the significant mass difference in a passenger vehicle/heavy truck crash, the change in velocity for the heavy truck is much lower. As discussed below, this has a
significant influence on the type of product liability claims made against heavy truck manufacturers.
A second significant distinction between the statistical crash data between passenger vehicles and
heavy trucks involves what will generally be referred to as the regulatory influence, or perhaps stated another
way, the influence from the fact that heavy truck and bus operators are professional, well regulated drivers.
The regulatory influence spoken of here is not that relating to the design and performance of the vehicles. Not
all of the Federal Motor Vehicle Safety Standards (FMVSS) that apply to passenger vehicles are applicable to
heavy trucks, and even when there is applicability, the standards may vary significantly. These vehicle factors are, however, generally not particularly significant in litigation context given that very few vehicle crashes
(approximately 2%) are caused by any vehicle condition. Treat, J.R. et al., Tri-Level Study of the Causes of Traffic Accidents (Document No. DOT HS-805 085) Washington D.C. National Highway Traffic Safety US DOT
(1979); Wierville, W.W. et al., Identification and Evaluation of Driver Errors: Overview and Documentation
Product Liability Claims Against Heavy Truck and Bus... ■ Howard and Pearson ■ 93
(Report No. FHWA-RD-02-003) (Washington D.C. Federal Highway Administration, US DOT (2002). The
more important regulatory influence is in the driving environment, and the rules and regulations imposed on
the drivers themselves. One would, or course, anticipate that this would be significant given that 90% of vehicle crashes are driver related. Id.
The regulations relating to the operation of commercial trucks and buses are significantly different
from those imposed upon operators of passenger vehicles, and this has significant impact. The more significant regulatory scheme in assessing the distinction between passenger vehicle and heavy truck crashes is that
of the Federal Motor Carrier Safety Regulations (49 C.F.R. Section 383 et. seq.; FMCSR) promulgated by the
Federal Motor Carrier Safety Administration. A review of the requirements of the FMCSR is beyond the scope
of this presentation, but a few points can be made that reflect the impact of the FMCSR on both crash statistics and the product liability litigation that ensues from those crashes. Most significantly, it should be noted
that “driver-related factors” in crashes are much higher in passenger vehicles than in heavy trucks. In 2010,
63% of fatal crashes had at least one passenger vehicle driver-related factor recorded by investigating agencies,
whereas there was a heavy truck driver related factor in 33% of fatal crashes.
The table below sets forth the top driver related recorded factors involved in fatal crashes in 2010.
Large Truck and Bus Crash Facts 2010.
The top driver-related factors generally correspond—eleven factors encompass the top ten among
both passenger vehicles and heavy trucks. Given the comparative total “driver-related factors” noted above,
it follows that the driver-related factors would be lower among operators of heavy trucks, and that trend gen94 ■ Strictly Automotive: Are Smart Cars Really Smarter? ■ September 2013
erally exists. With few exceptions, there is a trend for the individual driver-related factors to correlate to the
overall 2:1 ratio noted above. The most significant deviation from that trend is in the “impairment” category,
which in this analysis encompasses “fatigue, alcohol, illness, etc.” In this “impairment” category, a driver-related
factor is five times more likely to be recorded for a passenger vehicle driver than a driver of a heavy truck.
The FMCSR directly addresses the fatigue issue with strict “hours on duty” limitations that have no
correlation in the operation of a passenger vehicle. Operators of passenger vehicles may lawfully operate their
vehicles without any time limitation. As a very broad generalization, heavy truck operators are limited to driving a maximum of eleven hours after ten consecutive hours off duty, and may not drive in excess of sixty hours
in seven days or more than seventy hours in eight days. FMCSR Section 305.1-15
With regard to alcohol, there is essentially a “no tolerance” position in the FMCSR. Drivers cannot
drink alcohol within four hours of their on-duty time. FMCSR Section 392.5. The chart below reflects the relative infrequency of alcohol as a heavy truck driver-related causal factor in fatal crashes. Heavy truck drivers
accounted for roughly one-half of one% of alcohol-impaired driving fatalities compared to 78% attributable to
drivers of passenger cars and light trucks.
Traffic Safety Facts—Research Note DOT HS 811 701 (December 2012).
IV. Product Litigation Distinctions Between Passenger Vehicles and
Heavy Trucks
The factors described above create an environment in which there are both similarities and distinctions involving product litigation claims made against manufacturers of passenger vehicles and heavy trucks.
This presentation will focus on five areas of product liability litigation:
• Post-Crash Fuel Fed Fires
•Crashworthiness—Cab Design/Structure
•Crashworthiness—Active and Passive Restraint/Retention Devices
• Stability and Handling
• Slip and Fall
Product Liability Claims Against Heavy Truck and Bus... ■ Howard and Pearson ■ 95
A. Post-Collision Fuel Fed Fires (Tank Placement)
Post-collision fuel fed fire related claims make up a significant portion of the product liability claims
brought against heavy truck manufacturers. Of significance in the comparison between PCFFF in heavy
trucks and passenger vehicles is the variance in both fuel and fuel tank placement. Diesel is the fuel most
commonly used in heavy trucks, and of course gasoline is the most common fuel in passenger vehicles. In
technical terms, based on flash points, gasoline is “flammable,” whereas diesel is “combustible.” In layman’s
terms, gasoline (more correctly, gasoline vapor) will “catch fire” more easily than diesel (vapors). Unlike passenger vehicles, where the fuel tank is typically a single, poly-carbonate gas-filled tank carrying approximately
twenty-gallons located in the rear of the passenger vehicle between the frame rails, the heavy truck has one
or two metal, sixty to one hundred fifty gallon tanks located outside the frame rails anywhere from approximately two to six feet behind the front wheel(s). See the images below. Unlike with passenger vehicles, heavy
truck owners can generally specify their preferred fuel tank location along the outside of the frame rails.
Fuel tank behind tool box.
Fuel tank in forward position.
This location of the fuel tank(s) outside the frame rails is a matter of design imperatives as the area
between the frame rails on heavy trucks is typically less than two feet wide, and given the presence of the
moving drive train parts between the frame rails, the presence of other components, and the need for large
tanks on vehicles that achieve less than ten miles per gallon, it is not physically or economically feasible to
locate a high volume tank (much less two) between the frame rails.
In both the heavy truck and passenger vehicle context, product liability claims often arise when
vehicle occupants are injured or killed and a fire ensues following a crash. Given the mass advantage of the
heavy truck, unless the heavy truck rolls over in the crash, the issue of whether the cause of death was the fire
or the crash forces is rarely present with regard to the heavy truck occupants (though the consciousness of
the occupant(s) may be at issue). Fire origin is often at issue. In particular, in two-vehicle or multiple vehicle
crashes, the issue of whether the fire originated in the heavy truck or the passenger car is often disputed. At
times there are claims that the fire originated in the heavy duty truck engine compartment, or even the fuel
lines leading from the engine compartment to the fuel tanks, but much more often the claim is that the fire
originated due to an alleged compromise of the heavy duty truck fuel tank during the crash, and thus tank
placement and the design of the tank become the central defect issue. In this context, the design defect claims
made against the heavy duty truck manufacturer are typically some combination of the following:
• Tank Placement—location of the tank outside the frame rails and/or too close in proximity to
other structures, such as front steer tire and axle and leaf springs.
96 ■ Strictly Automotive: Are Smart Cars Really Smarter? ■ September 2013
• Tank Guarding or Shielding—the absence of structures designed specifically to guard or shield
the tank(s), such as a cage.
• Tank Material—poor choice of tank materials (steel instead of aluminum, etc.)
• Tank Bladders—absence of a bladder or other liner in the tank to contain the fuel in case of
outer tank puncture or compromise.
B. Crashworthiness—Cab Structure/Design
As with passenger vehicles, a significant percentage of the product liability claims brought against
heavy truck manufacturers involve crashworthiness allegations. PCFFF claims in heavy truck litigation can
also contain a claim related to cab design. While truck ingress and egress is attained through doors in the
front of the cab, large truck cabs can, at the buyer’s option, order “sleeper access doors” that are designed not
for occupant ingress/egress but to allow operators to place and remove material directly from rear sleeper area
without crawling through the front driver and passenger door.
Sleeper Access Door—Upper Opening.
When an occupant sustains fatal injuries in a PCFFF, there is often a claim that had a sleeper access
door or other such additional emergency exit portal been available, the occupant would have used it, and
escaped the fire with little if any, burn injury.
Rollovers of heavy trucks (typically, only a quarter-roll) are fairly rare occurrences, but when rollovers
occur, there may be a litigation claim alleging poor design or structure of the truck cab. When heavy truck rollovers occur the rollover dynamics can be quite distinct from passenger vehicle rollovers given the presence of
the trailing cargo. In a typical heavy truck rollover the trailer overturns first, and given the fifth wheel attachment, the trailer wheels can all be off the road surface completely before the tractor even begins to roll.
The effect is that the truck cab can slam down with significant force when it is “bulldogged” by the
trailer. In this situation, and particularly when there is significant structural deformation to the cab, there may
be claims related to:
• Inadequate cab roof strength
• Improper cab structure materials (fiberglass and/or aluminum instead of steel)
• Lack of a ROPS
Product Liability Claims Against Heavy Truck and Bus... ■ Howard and Pearson ■ 97
C. Crashworthiness—Active and Passive Restraints/Retention Devices
As noted previously, given the mass advantage of heavy trucks, the change in velocity experienced
by the truck occupant is often negligible, and thus the frequency of claims relating to seat belts and airbags
is low. While all heavy trucks have standard seat belts, air bags are not mandated for any position. Frontal air
bags are optional in some, but not all heavy trucks, but there has not been shown to be a significant direct correlation between the presence of airbags and the reduction of certain injuries. Simply stated, when the change
in velocity is such that the presence of an airbag might provide benefit, the larger risk is the forward movement of the trailer and its cargo from behind the truck occupant.
One unique crashworthiness aspect in heavy trucks arises from the presence of the air ride seat. The
heavy duty suspension in a heavy truck does not provide the cushioned ride of a passenger vehicle. To provide
a more comfortable ride, the air ride seat allows for vertical movement. The air-cushioned vertical travel of the
seat can be as high as six inches, and when one factors in the body compliance and belt compliance in a rollover, driver vertical movement toward the roof in a rollover can reach twelve inches or more. Freightliner was
the first heavy truck manufacturer to offer a safety option that pretensions the seat belt and pulls the air ride
seat to its lowest position in a roll, thus seeking to minimize the possibility of head to roof contact. Suits arise
in rollover cases where the defect claim is that such a system was not standard on all trucks.
D. Stability and Handling
Litigation claims relating to stability and handling are not common in the heavy truck experience,
but as has occurred in passenger vehicle litigation, the emergence of electronic stability control (ESC) as an
available option has brought about resurgence in the frequency of such claims. In May 2012 NHTSA issued
a Notice of Proposed Rulemaking promoting the implementation of a mandatory ESC requirement for most
heavy trucks and busses. Federal Register, Volume 27, No. 100 (May 23, 2012). In the NPRM, NHTSA estimated that of vehicles produced in 2012, 26% of truck tractors and 80% of buses that will be covered by the
NPRM had ESC. This rule change likely impact the potential for future claims related to ESC.
E. Slip and Fall
The floor of the cab on a typical heavy duty, over the road truck is typically three to five feet above
ground level. As such, steps and grab handles are (by regulation) provided to allow cab ingress and egress.
Further, drivers and others are often required to climb on the rear frame area of heavy trucks, behind the cab
to access trailer wiring and battery boxes. The FMCSR provides mandates related to the presence and location
of steps, deck plates, and grab handles. Notwithstanding these requirements and compliance with them, litigation often ensues when a driver or others are injured as a result of a slip and/or fall that occurs when walking or climbing into, out of, or around the heavy truck.
F. Miscellaneous Litigation Claims
The following round out the listing of product liability claims involving heavy trucks and buses, but
are beyond the scope of this presentation beyond the brief descriptions below.
1. Warranty and Lemon Law Litigation
While the law relating to warranty and lemon law litigation varies from state to state, heavy
truck and buses are, subject to various exceptions, typically subject to both federal and state warranty litigation as well as state Lemon Law litigation. The stakes in this litigation, when heavy
trucks and buses are involved, are significantly higher due to several distinctions. First and fore98 ■ Strictly Automotive: Are Smart Cars Really Smarter? ■ September 2013
most, the products at issue routinely cost in excess of $100,000, and thus the risk involved in a
“buy back” is economically higher. Further, in the heavy truck and bus context, most purchasers own a fleet of vehicle that can range from several to several thousand. Thus, when an issue
arises with regard to a given make, model, model year, or component, the issue may impact a
significant number of vehicles. While such damages are commonly excepted/disclaimed in sales
documents, because most heavy trucks and buses are used in the commercial context, damages
associated with lost profits, lost business opportunities, and other consequential damages can
serve to create million-dollar exposure in warranty litigation.
2. Asbestos Claims
Heavy truck and bus manufacturers are subject to the individual and mass tort exposure for
asbestos claims. Similar to asbestos litigation involving automobile manufacturers, heavy duty
truck and bus manufacturers face asbestos claims wherein service technicians and mechanics
claim to have been exposed to asbestos in the vehicle’s brake and clutch linings as well as in gasket related materials found in the vehicle which caused the individual to contract an asbestos
related disease.
3. Toxic Fumes/Exhaust
Because virtually all heavy trucks and buses operate on diesel fuel, claims arise as to the exposure to toxic fumes and exhaust inside the cab of the vehicle and resulting injury. An emerging development in toxic torts is the claim that one’s exposure to diesel exhaust as a mechanic
caused or contributed to the development of lung and other cancers.
4. Fire Subrogation/Property Damage Claims
Because heavy trucks are typically pulling a trailer, when a fire or crash occurs it can damage not
only the truck itself but the trailer and/or cargo on the trailer. The cost of the trailer and cargo
can exceed the cost of the truck, and thus these claims can involve significant economic loss.
Product Liability Claims Against Heavy Truck and Bus... ■ Howard and Pearson ■ 99