Frequently Asked Questions About Auto/Truck/S.U.V. Accidents
US, Canada and Puerto Rico
What is crashworthiness?
What must manufacturers do to protect vehicle occupants from injuries?
How does your firm investigate a crashworthiness action?
What if the accident vehicle no longer exists?
What types of crashworthiness actions does your firm handle?
What things are necessary to bring a crashworthiness lawsuit?
What is a defect?
What is causation?
What are damages?
What are economic damages?
What are noneconomic damages?
What are punitive damages and may they be recovered in a crashworthiness action?
What if I caused the accident?
If I bring my crashworthiness case to you, what will you do?
How do I know that you will do a good job on my case?
What are your fees?
Q. What is crashworthiness?
A. Crashworthiness means the protection that a motor vehicle (or other means of conveyance such as an airplane or train) affords its passengers against personal injury or death as a result of an accident. An automobile accident can often be broken down into two collisions. In the first collision, an automobile collides with another automobile or with a stationary object. The occupants of the vehicle usually sustain little or no injury at this stage. Personal injuries occur most frequently in the second collision, in which the occupants are thrown against or collide with some part of their automobile. Crashworthiness is concerned with those injuries resulting solely from the second collision, over and above those suffered in the first collision.
Q. What must manufacturers do to protect vehicle occupants from injuries?
A. The law of nearly every state imposes a duty on automobile manufacturers to use reasonable care to make a reasonably crashworthy automobile. Courts have stated on numerous occasions that collisions are readily foreseeable as part of the normal and expected use of an automobile. And while automobiles are not made for the purpose of colliding with each other, an inevitable part of normal automobile use results in collisions and injury producing impacts. A manufacturer’s liability (legal responsibility for injuries) in a crashworthiness action is limited to the injuries caused by a defect; those injuries over and above the injuries that would have occurred as a result of the collision alone, absent a defect (unless the defect also caused the collision).
Q. How does your firm investigate a crashworthiness action?
A. The most important evidence in a crashworthiness action is the vehicle(s) involved in the accident. We typically locate and purchase the accident vehicle and have it evaluated by automotive design experts. We inspect the accident scene, interview witnesses and hire an accident reconstructionist to assist us in determining how the accident occurred. We also use “bio-mechanical engineers” people who are experts in the area of injury causation. They assist us in determining how a person's injuries were caused and whether a defective design or manufacturing defect played a part in causing the injuries.
Q. What if the accident vehicle no longer exists?
A. Although it is very important to preserve an accident vehicle in its post-accident condition, the accident vehicle may be at a location which you are not aware of, such as a salvage yard. Even if the accident vehicle no longer exists, if there are adequate photographs of the accident vehicle, sometimes these are enough to pursue a crashworthiness action. We have successfully prosecuted crashworthiness actions without an accident vehicle.
Q. What types of crashworthiness actions does your firm handle?
A. We handle all types of crashworthiness actions. We have represented plaintiffs in cases against General Motors, Ford, Chrysler, Subaru, Honda, Yamaha, Nissan and Toyota. We have investigated and pursued crashworthiness cases that involve failure to install appropriate safety equipment (such as seat belts and air bags); cases where a vehicle has caught fire after an accident; rollover accidents caused by an unstable vehicle, such as a sport utility vehicle; rollover accidents wherein the roof collapsed during the accident; accidents in which air bags have failed to deploy; and accidents involving safety equipment failure, such as the failure of a seat belt to properly restrain an occupant. We have even pursued a claim that the design of a locomotive engine with a nose door unnecessarily exposed the crew in the cab to risk of death by fire.
Q. What things are necessary to bring a crashworthiness lawsuit?
A. To successfully prosecute a crashworthiness action, we must prove three things:
- a defect in the automobile or a breach of a warranty regarding the vehicle
- causation
- damages
Q. What is a defect?
A. There are three types of product defects:
- Manufacturing defect: This is a flaw in the manufacturing process, resulting in a product that differs from the manufacturer’s intended result. For example, the failure to include welds in the roof support structure of a vehicle, despite design drawings calling for the welds.
- Design defect: There are products which are “perfectly” manufactured but are nevertheless unsafe. This is called a “design defect”. For example, a vehicle designed with its fuel tank in an exposed place vulnerable to impact and rupture in foreseeable collisions.
- Inadequate warning: These are products that are dangerous because they lack adequate warnings or instructions. A manufacturer who fails to warn users and consumers about potentially dangerous aspects of an automobile could be found responsible under a failure to warn theory.
Crashworthiness claims are also sometimes founded on breach of warranty theories. Although there are many types of warranties (express, implied, etc.), the essence is that an automobile manufacturer promises that a vehicle will perform in a certain manner. If the vehicle does not perform as promised, and causes injuries and damages, the manufacturer may be liable under a breach of warranty theory.
Q. What is causation?
A. Causation is a legal term which means that there must be a cause and effect link between the failure of an automobile manufacturer to provide a safe vehicle and the injuries that an individual suffered. For example, if a person is involved in an automobile accident and suffers serious head injuries because the air bag failed to deploy, it must be proven that had the air bag deployed, the driver or occupant would not have sustained the head injuries or that the injuries would not have been as severe.
Q. What are damages?
A. There are two kinds of damages: economic and noneconomic damages.
Q. What are economic damages?
A. Economic damages are anything that can be replaced with a checkbook. For example, if an individual loses two years from their job and they sustained the lost wages associated with a two year loss of employment, then an economic factor in their loss is lost wages; economic losses are easily measured in dollars. Similarly, where an individual performs normal household chores around the house, for example, cutting the lawn or doing the dishes, those tasks have an economic value and the economic harm associated with a person’s inability to perform those tasks can be recovered by the plaintiff in a crashworthiness action. So can any loss associated with a person’s inability to perform work in the future. For example, a housewife who is injured by a defective automobile may not have any income and so may not have any lost income. However, her earning capacity, if impaired by the defective automobile, can be a source of recovery even if the spouse was not working at the time. The nature of economic injuries is very broad and is beyond the scope of this small FAQ. If you have additional questions with respect to economic damages, please contact us by e-mail.
Q. What are non-economic damages?
A. Non-economic damages are those damages which cannot be quantified in a dollar amount. For example, the amount of pain that a person suffers as a result of an injury may or may not have an economic value, but it certainly has a non-economic value. We often see cases where people’s lives are devastated by catastrophic injuries, but if they are children or elderly, economic losses are limited and the capped amount of noneconomic damages is unfairly inadequate.
Q. What are punitive damages and may they be recovered in a crashworthiness action?
A. Punitive damages (sometimes called exemplary damages) are awarded to persons over and above what fairly compensates them for their personal injuries. Punitive damages in crashworthiness cases are intended to punish an automobile manufacturer in situations where the manufacturer knew the automobile contained a defect but made a conscious decision not to warn about or correct the defect, or in situations where an automobile manufacturer knew of a certain design characteristic but recklessly disregarded the information and failed to take reasonable steps to prevent the harm.
Q. What if I caused the accident?
A. This may not be the whole story, or fair to you. The crashworthiness theory recognizes that every accident has multiple causes, and focuses on the enhancement of resulting injuries caused by the defective vehicle. It is enough if the defect increased a person’s injuries. Any fault by a driver in causing the accident usually will not prevent one from recovering for injuries in a crashworthiness action. However, courts routinely compare the “fault” of a person causing an accident with that of the automobile manufacturer alleged to have provided an unsafe vehicle, and this can reduce or eliminate your right to damages.
Q. If I bring my crashworthiness case to you, what will you do?
A. The first thing we do is interview the client to start the process of gathering facts and circumstances surrounding the accident, and to assess the severity of the client's injuries. After we are comfortable that the case warrants further investigation, we get the police reports, interview witnesses, find and secure the accident vehicle, and then work with experts to reconstruct the accident, evaluate the vehicle's design, and answer the bio-mechanical questions of injury-causation. After the investigation, if we believe there is a strong probability that a defect in the automobile caused or contributed to cause the client's injuries, we meet with the client again and offer to pursue a crashworthiness case on their behalf.
Q. How do I know that you will do a good job on my case?
A. We believe that experience and results count and we have both. We have a commitment to getting an excellent result in every case we decide to pursue, and our track record and credibility are extremely important to us. Please keep in mind, however, that every case is different and no result is guaranteed. All we can promise is our best effort and the benefit of our experience and resources on each and every case.
Q. What are your fees?
A. Balkin & Eisbrouch handle all cases on what is called a contingency fee. This means that no fees or costs are charged unless we collect money damages for you. We advance all costs for investigators, court reporters, expert witness testimony, accident reconstructionists, filing fees and any other expenses related to your case. All of the consultations with our office are absolutely free. When you receive compensation, meaning we have successfully concluded your case, either by settlement or litigation, our fees are a percentage of the gross settlement. This percentage is agreed upon before we begin work on your case and is generally between 20% and 40%. The percentage depends on the complexity and type of case.
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