"The Most Dangerous Vehicle On the Road"
By Walter Olson
Wall Street Journal, February 9, 1993

Jury interviews suggest that last month's $ 105 million verdict in Moseley v. General Motors was based in part on anger at GM's unrepentance: Despite lawsuits and press reports fingering its 1973-87 trucks as unsafe, the company has refused to concede they are flawed at all. Soon after the verdict GM continued its defiance by counterattacking, charging that crash tests done for an NBC expose' in November were rigged by attaching incendiary devices to the trucks. Serious though these charges might seem, some have already dismissed them as GM damage control.

Are the trucks, in fact, unsafe? Try to identify from this list the GM truck that Clarence Ditlow, director of the Center for Auto Safety, told NBC was a "rolling firebomb" and that NBC, summing up his charges, described as the "most dangerous vehicle out there on the road."

Fatal Crash Rate (per 10,000 registered vehicle years)
(National Highway Traffic Safety Administration)

A
1.162
B
1.446
C
1.514
D
1.652
E
1.824
F
2.212
G
2.347
H
2.455
The correct answer is C, the GM full-size vehicle in the Moseley case. (Seventeen-year old Shannon Moseley died in the fire after his GM truck was hit by a drunken driver.) Of the entries on the list with worse records, D represents passenger cars as a general average; E, F, G, and H, light pickup trucks from various makers (Ford, Nissan, Toyota, Chrysler). Of course, one must approach numbers of this sort with caution: For example, models bought by younger and more aggressive drivers may show higher crash rates through no fault of their design. Still, anyone who imagines the GM truck (1.514) an unconscionable death trap would also be wise to avoid the large majority of other vehicles on the road (1.652 to 2.455).

Many analysts cry foul at comparing full-size pickups to smaller vehicles, since bigger is known to be safer as a general rule. In the litigation context, that's a strange cavil: If auto makers may freely offer small trucks to the public, why punish them for offering a large truck with a much better safety rating? But in any case, consider B, the full-size Ford entry, which was in fact the market's closest competitor to the GM model. (A, Dodge's full-size entry, did not score a hit with consumers, whatever its safety virtues.)

Ford's very thin edge over the GM model may or may not represent anything more than statistical noise, driver bias, and so forth. Anyone who chooses to live in a wood rather than a brick house accepts a far wider adverse safety differential.

One policy, of course, would be to punish any firm that fell behind in safety competition, as determined years later in statistical retrospect. That would ensure litigators a steady supply of provender, much as if, out on the veld, they were entitled to munch on whichever gazelles were at the rear of the pack. (The Insurance Institute for Highway Safety has acknowledged, by the way, that the current safety scare is unlikely to add materially to the premiums that GM truck owners pay; the accidents in question are far too rare.)

When trial lawyers took their case to the general public through the media, they stressed intuition rather than statistics. It seems that GM, alone among auto makers, had gone about hanging gas tanks on the side of its trucks like dartboards, outside the protective frame rail. The tanks "were placed in about as stupid a place as they can possibly be placed," one of the plaintiff's lawyers informed "NBC Dateline." In a "side impact or a sideswipe impact, " plaintiff s expert Byron Bloch explained to a rapt NBC reporter, "the fuel tank gets crushed ... There is an immediate holocaust." So the overall numbers didn't matter. GM's design choice had invited specific, avoidable deaths, and the company must be punished.

As it turns out, neither NBC nor most other news outlets bothered to report that the GM trucks have actually scored better over the years in avoiding fatal crashes when it comes to side-impact collisions, their presumed weak point. Specifically, the full-size GM trucks did slightly better (.196 fatal side-impact crashes per 10,000 registered vehicle years) than the comparable Fords (.200) and almost as well as the Dodges (.190), though the three are bunched so closely together that the numbers hardly matter.

How on earth could these trucks have done better in side crashes, given that GM itself chose to move the tanks inboard in a 1988 redesign? Maybe the numbers are a fluke. Or maybe it's that the trade-offs in car safety are not well understood even by experts. Any possible placement of the fuel tank "causes" some accidents and averts others. Respectable designers have tried every gas-tank location at one time or another: front (as in old Volkswagen Beetles), rear (the Ford Pinto and many others), inside the passenger compartment (older trucks), or underneath (now usual, despite the hazards of flying gravel, sparks, ground-slams, and broken axles). All have been rejected at other times as unsafe.

Maybe the distinctive narrow frame of GM trucks--popular with customers, but damned by the plaintiff's lawyers because it required the gas tanks to be placed outboard--offers some sort of obscure advantage in side crashes. It's hard to know. We do know that although you are apparently no more likely to have a fatal side-impact crash in your GM truck, if you do have one it is somewhat more likely to involve a fire. To that extent, intuition--but not the trial lawyers' case--is vindicated.

We also know that in GM trucks, as in all other kinds, you are much more likely to die in a front-end than in a side crash, and vastly more likely to die in a crash without a fire than in one with. When fire is present in a fatal crash, it's often in the sort of high-force collisions that would have been lethal in any case--though the jury viewed the Moseley case as an exception.

And--hardly a surprise given the statistics--it turns out that GM gas tanks are not exactly as fragile or exposed as DDT eggshells, as viewers might have concluded from watching the NBC video or trial lawyer's summations. The tanks not only complied with but far exceeded the U.S. government's safety standards, which specifically address the danger of gas-tank breakage in side crashes. (Fully obeying this kind of law, it turns out, will not keep you from getting sued.) In fact it takes about 4,000 side-impact crashes in a GM pickup to get one fire with a major injury or fatality, which means the supposed "rolling fire-bombs" may compare favorably with haystacks or mounds of feathers as objects to crash into.

The more data we see on the safety record of existing cars, the more dubious the safety scares of the past begin to look. The Audi 5000 affair, in which one of the safest cars on the road was wrongly accused of "sudden acceleration," is only the best known of a whole series of lawsuit-driven campaigns that have collapsed in disgrace and refutation.

Remarkably, even the affair of the "exploding" Ford Pinto--universally hailed as the acme of product liability success--is starting to look like hype. In a summer 1991 Rutgers Law Review article Gary Schwartz demolishes "the myth of the Pinto case." Actual deaths in Pinto fires have come in at a known 27, not the expected thousand or more. More startling, Schwartz shows that everyone's received ideas about the fabled "smoking gun" memo are false.  The actual memo did not pertain to Pintos, or even Ford products, but to American cars in general; it dealt with rollovers, not rear-end collisions; it did not contemplate the matter of tort liability at all, let alone accept it as cheaper than a design change; it assigned a value to human life because federal regulators, for whose eyes it was meant, themselves employed that concept in their deliberations; and the value it used was one that they, the regulators, had set forth in documents.

In retrospect, Schwartz writes, the Pinto's safety record appears to have been very typical of its time and class.

Ford, like GM, lost a $ 100 million verdict, although not much of that survived appeal. The scandal of punitive damages is that they're handed down with none of the due-process protections we'd accord targets charged with genuine criminal wrongdoing: strong screening of unreliable evidence, proof beyond a reasonable doubt, prosecution by independent professionals rather than interested parties, and so forth. Until we furnish such protection, punitive damages--as in the Moseley case--will threaten to make a travesty of justice.

****

Walter Olson, senior fellow at the Manhattan Institute, is the author of The Litigation Explosion.

Related Olson pieces on GM/Dateline episode: Wash. Post 2/28/93 / National Review 6/21/93

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