AUTOMOTIVE FUEL SYSTEM CRASHWORTHINESS LITIGATION

By Mark P. Robinson, Jr. and Kevin F. Calcagnie

INTRODUCTION

Although fires occur in only about three out of every one thousand automobile collisions, each year thousands of people sustain disfiguring or fatal burn injuries in post-collision fires. ^[1], ^[2] Many of these can be attributed to dangerous and defective fuel system designs, which are subject to compromise or failure in the event of a collision. Improvements in fuel system crashworthiness have paralleled advances in other areas of automotive design safety. Much like occupant restraint systems, which evolved from simple lap belts to airbags with lap and shoulder harnesses, over the last few decades motor vehicle fuel systems have undergone substantial revisions as a consequence of government imposed safety standards ^[3] as well as product liability litigation.

Even though mechanically and economically feasible safer alternative fuel system designs have been available for over thirty years, changes have been slow due to efforts by some reluctant manufacturers to dilute proposed safety standards and forestall implementation of others. As a result, not only are tens of thousands of vehicles with dangerous fuel systems on the nations highways today, but there are now new vehicles being sold which utilize designs that have for decades been criticized as unsafe by design experts and the automotive industry itself.

The following is an overview of the evolution of automotive fuel system safety and FMVSS 301, the Federal Motor Vehicle Safety Standard governing fuel system integrity, as well as a history of product liability litigation involving fuel systems, and the fundamental theories of liability.

FUEL SYSTEM SAFETY - BEFORE FMVSS 301

Long before Federal Motor Vehicle Safety Standards took effect, numerous studies had arrived at a wide range of recommendations to reduce the risk of a post-collision fire, including relocation of fuel tanks to less vulnerable locations, installing metal fire walls between the passenger compartment and the fuel tank, improving the crash resistance and crash durability of filler pipes and attachment of fuel lines, and eliminating hazardous environments around fuel tanks.

Since the 1920's engineers have recognized the importance of protection of fuel systems and have proposed design alternatives aimed at preventing damage in order to eliminate fuel loss and fire. ^[4] The risk to life and limb in the event of a post-collision fuel fed fire was described in a 1937 patent for a leak resistant fuel system:

"It is well known that by far the greatest damage incident to the overturning of an automobile or an automobile wreck, arises from fire which is caused by gasoline leaking from the inlet of the gasoline tank and coming into contact with the hot exhaust pipe, or other heated portions of the engine . . . It is well known also that in such an event, the occupants of the vehicle are frequently pinned beneath the car and burned to death, or at least severely burned, before they can be rescued . . . We believe that by producing a leak proof tank, that a great many lives will be saved and that a great deal less property damage will result from automobile wrecks . . . ." ^[5]

Another patent that same year specified a check valve device for cutting off the fuel supply in the event a motor vehicle involved in a collision overturns. ^[6] Fire casualty statistics also demonstrated the need for improved fuel system crashworthiness. For example, in 1951 a study by the National Fire Protection Association concluded that in 1948 alone approximately 2,550 people died in the United States as the result of burns sustained in motor vehicle collisions. ^[7]

As early as 1957 it was suggested that automobile fuel tanks should be relocated from the vulnerable location at the rear of the car below the luggage compartment, to a location forward of the axle and between frame members for greater protection:

"Previously, motor vehicle fuel tanks have generally been located at the rear of the car, under the vehicle luggage compartment, or within the streamlined contours of the vehicle fenders . . . The conventional location subjects the tank to possible damage. The present invention has solved this location problem by placing the fuel tank forward of the rear axle on both sides of the drive shaft, where it does not conflict with the luggage compartment, and where the frame protects the tank from injury." ^[8]

By the 1960's, and continuing into the 1970's, analyses of real world crashes, research and crash testing conducted by automobile manufacturers and automotive engineers, demonstrated the hazards embodied in conventional fuel system designs, as well as solutions for eliminating or severely reducing the risk of injury or death from post-collision fuel fires:

"Regardless of location, the requirement remains unchanged for a substantial metal fire wall welded to the passenger compartment separating it from the fuel tank. Less than this degree of security has resulted in devastating fires in which the occupants are burned from gasoline fed flames shooting directly in the passenger compartment . . . Preliminary studies suggest that an improved location for the fuel tank would be the area cradled by the rear wheels above the rear axle and below the rear window . . . The filler neck attachments to fuel tanks are either rigidly attached or the filler neck is forced through a plastic grommet to extend a short distance within a tank. This latter design has the disadvantage, during rear-end collisions as low as 20 mph, of having the collapse action of the fender sheet metal pull the filler neck from the tank, thereby leaving a two inch diameter opening for gas to be purged from the tank . . . Fuel tanks should not be located directly adjacent to the rear bumper or behind the real wheels directly adjacent to the fender sheet metal as this location exposes them to rupture at very low speeds of impact." ^[9]

"Fuel tanks must have the structural rigidity to resist rupture under impact conditions. A possible means of obtaining this property is to build in corrugated metal folds, to allow the tank to expand on impact. Fuel fillers must be designed so as to remain attached to the tank on impact. Positive connections between tanks and vents, and supply lines are also required. . . . Heavy gauge metal fire walls should separate the fuel tank from the passenger compartment . . . Fuel tanks should not be located directly adjacent to the rear bumper guard, or mud guard sheet metal, or behind the rear wheels." ^[10]

"The fatality rate in automotive post-crash fires is over seven times the fatality rate in accidents where fire did not occur . . . Massive fuel spills result when fuel tanks fail during an accident. Ruptures produced by both actual and simulated crashes attest to this. A complete series of controlled rear-end impact crash test showed that the fuel tanks were deformed, punctured or split during impact . . . The filler neck is another source of serious fuel spillage. The filler neck can be pulled from the fuel tank during impact, although the fuel tank itself is not badly damaged . . . Fuel lines may also be cracked or broken during crash impact. Failure of the tank to fuel pump line could lead to spillage of the entire fuel tank contents . . . ." ^[11]

"The rollover seems to produce a special hazard of its own due do the somewhat higher likelihood that the occupants will be trapped; inversion of the car or door jamming caused by roof deformation may make exit more difficult . . . Improvements can come about only through a consideration of the entire fuel system - fuel tank location; fuel line, electrical systems and exhaust routing and surrounding structure configuration . . . It is apparent from this study that a comprehensive fuel system integrity testing program requires more than the frontal barrier crash that has previously been the only test specified." ^[12]

FEDERAL MOTOR VEHICLE SAFETY STANDARD 301

INITIAL PROPOSAL

Federal Motor Vehicle Safety Standard 301, the safety standard applicable to fuel systems, was promulgated under the National Traffic and Motor Vehicle Safety Act of 1966. ^[13] The initial version of FMVSS 301 was issued by NHTSA on February 2, 1967, and became effective in 1968. The standard applied only to passenger cars in frontal crashes. The purpose and scope of the standard was to specify "requirements for the integrity and security of fuel tanks, fuel filler pipes, and fuel tank connections to minimize fire hazards as a result of a collision." ^[14]

The proposed standard, which was intended to be a "minimum" standard for performance in passenger cars, ^[15] provided for a 30 mph front end longitudinal barrier collision test. It also required that fluid losses during impact not exceed one ounce, in accordance with a practice recommended by the Society of Automotive Engineers. ^[16] Thereafter, NHTSA considered extending the standard to multi-purpose passenger vehicles, trucks, buses and motorcycles, and to revise the requirements to include lateral and rear-end longitudinal collision tests, prevention of fuel spillage due to accidental rollover, puncture resistant fuel tanks, and protection of fuel lines and fittings. ^[17]

Auto manufacturers were not happy with the proposed standard. In response, the Automobile Manufacturers Association submitted a proposal for passenger cars endorsed by manufacturers including General Motors, which would utilize lateral and rear-end longitudinal collision tests at 15 and 20 mph. The Association's proposal called the one ounce requirement "an arbitrarily small amount," and called for additional tests and discussions on that point. As to multi-purpose passenger vehicles, trucks, buses and motorcycles, the Association recommended testing that would simulate impacts "under other than destructive vehicle test conditions." ^[18]

The Japan Automobile Manufacturers Association responded by requesting that rear-end testing be conducted at 15 mph, and side impact testing at 10 mph. JAMA also requested that "any provision regarding rollover be excluded from the standard." ^[19] International Harvester Company opined that the crash testing of vehicles would be an inappropriate way to evaluate fuel tanks, and proposed instead that all fuel tanks for multi-purpose passenger vehicles, trucks and buses be subjected to a drop test, arguing that it would be "faster, less expensive and more meaningful to test fuel tanks themselves than to crush vehicles as part of a fuel tank development program." ^[20]

SUBSEQUENT AMENDMENTS TO FMVSS 301

On August 29, 1970 NHTSA proposed amending the standard to extend the frontal barrier test to all self-propelled motor vehicles of 10,000 pounds or less. It also added for vehicles with a GVWR (Gross Vehicle Weight Rating) of 6,000 pounds or less, a fixed barrier rear crash test and a static rollover test. The rearend impact test was to apply to vehicles manufactured after November 1, 1972, and the speed was increased to 30 mph for all vehicles manufactured after January 1, 1973. Even more significant, the proposed standard would have required that there be no fuel spillage with the tank filled at least 90 percent of capacity. ^[21]

Once again, the industry responded against the proposed standard. The Japan Automobile Manufacturers Association requested that fuel spillage requirements be changed to less than one ounce per minute instead of no spillage at all, and that the rear-end impact test be changed to 15 mph, calling the 30 mph standard "insurmountably severe." The request also asked for three years lead time to comply with the standard. ^[22]

General Motors called the proposed standard "unreasonable and impracticable," and suggested that the 30 mph rearend standard be changed to 25 mph, and that the requirement of no fuel spillage be changed to allow three ounces during impact, and one ounce thereafter. ^[23] The American Manufacturers Association made no comment as to test speeds allowable, fuel spillage or effective dates. As to the frontal collision requirements, the AMA stated that the FMVSS 301 spillage criteria of one ounce per minute "is fully adequate to meet the needs of safety."^[24]

On August 20, 1973 NHTSA published a final rule amending 301, which eliminated the no-spillage requirement and adopted the static rollover test as to passenger cars, to become effective September 1, 1975, and for multi-purpose passenger vehicles, trucks and buses with GVWR of 10,000 pounds or less, effective September 1, 1976. ^[25] It also issued a proposed rule for a dynamic rollover test and a moving 30 mph rear-end impact test, pointing out that a recent study of rural collisions had indicated that fuel spillage occurred in 26 percent of all rear-end car-to-car, as compared with 3.5 percent of front-end impacts. Therefore, the NHTSA considered a rear crash test of "primary importance." ^[26]

JAMA responded with a petition for reconsideration of the amendments, arguing that spillage in a rollover test should be changed to five ounces. JAMA criticized the proposed 30 mph rear impact test, and asked that it be changed to 20 mph. The response also contended that the specified rollover test made it "impracticable to obtain accurate and repeatable results." ^[27] The American Manufacturers Association also petitioned for reconsideration, and disputed what it alleged to be ambiguities in the requirements and test procedures. ^[28]

Chrysler Corporation objected to the fuel spillage requirements of the rollover test, based on the alleged difficulty of developing a means capable of containing the carburetor fuel during a rollover, and on the assertion the rapid motion of a vehicle involved in an actual rollover crash would disburse carburetor fuel so as to negate the possibility of combustion. ^[29]

Nevertheless, on March 21, 1974, NHTSA issued the final rules essentially as proposed, including the 30 mph rear moving barrier requirement. However, as a result of efforts to delay the standards, no rear-end impact testing was required on any passenger vehicles until September 1, 1976, over three years after the proposed 30 mph test was originally intended to take effect, and six years after it was initially proposed. FMVSS 301 was not applicable at all as to school buses over 10,000 pounds until April 1, 1977, nor as to multi-purpose vehicles, light trucks and light buses less than 6,000 pounds until September 1, 1976. ^[30]

CHANGES BROUGHT ABOUT BY FMVSS 301

The requirements of FMVSS 301 have remained essentially unchanged from the late 1970's. In order to comply with the requirements of the standard, manufacturers made a number of modifications to existing designs. These have included the following: ^[31]

EVALUATING THE EFFECT OF FMVSS 301

On January 10, 1983 NHTSA announced publication of an evaluation report concerning FMVSS 301, which was done as part of a directive to federal agencies to review existing regulations. ^[32] Utilizing a statistical analysis of police reported accident data from five states, the report concluded that FMVSS 301 had been effective in significantly reducing post-crash fire rates, fatalities and injuries, and that the total cost required to implement the standard was only $8.50 per vehicle. ^[33] The report also concluded that although significantly lower crash fire rates had been found in post-standard vehicles, there was some indication that the fire rate may be increasing slightly for newer vehicles. As to the problem of post crash fires generally, the report stated:

"The magnitude of this national problem for passenger cars is estimated at 20,600 crash fires annually. These fires are associated with 1,100 fatalities, 3,200 serious burn injuries, and more than 3,300 moderate to minor injuries. These fatalities and injuries are to occupants of passenger cars and do not consider occupants of other vehicles such as light, medium, and heavy trucks." ^[34]

Despite the conclusions of the 1983 evaluation between 1975 and 1988, the number of fire related fatalities increased from 1,300 in 1975 to over 1,800 in 1988, and fires in fatal collisions of passenger cars increased from 20 per 1,000 crashes in 1975 to 28 per 1,000 crashes in 1988. ^[35]

Because newer vehicles seemed to be experiencing an increasing fire rate and because the

1983 report did not study fires in light truck crashes, NHTSA reevaluated FMVSS 301 in November of 1990. ^[36] The subsequent evaluation, conducted by the NHTSA Office of Standards Evaluation, utilized crash statistics from five states and Fatal Accident Reporting System (FARS) data. The agency concluded:

"FMVSS 301 has been effective in reducing the incidence of fire in passenger car crashes. No reduction in fire-related fatalities was found; the force levels encountered in fatal fire crashes may generally exceed the levels set by the standard. Burn injuries may have been reduced, but the evidence is insufficient for definitive conclusions.

For light trucks built after FMVSS 301 took effect, no reduction in fires was found.

FMVSS 301 has added $9.70 (in 1988 dollars) to the lifetime cost of owning and operating a passenger car. Corresponding cost for light trucks, small school buses, and conventional school buses are $30.00, $25.60 and $234.00 respectively." ^[37]

On December 14, 1992 NHTSA announced it was considering upgrading Rule 301 and requested comments from the public on the most effective means to reduce vehicle fires. The agency sought response to several questions including:

1. Should the standard be upgraded by requiring higher speed impacts? What impacts speeds are most appropriate? Why?
2. Is there any reason to continue to have different impact speeds for frontal and rear crashes as compared to side crashes? If so, why?
3. Are the current impact barriers representative of typical real-world crash situations?
4. What available or foreseeable technologies could be used to improve fuel system integrity? ^[38]

Manufacturers responded in typical fashion. Nissan Motor Company, Ltd. commented that "a comprehensive investigation that results in a meaningful assessment of the frequency and nature of the origin of vehicle fires must be undertaken before it is possible to promulgate performance requirements that are designed to reduce fire related death and injury resulting from vehicle collisions." ^[39]

Although crash testing by various manufacturers in the 1970's demonstrated that over-axle fuel system designs could survive 50 mph car to car impacts with no fuel system leakage, ^[40] the American Automobile Manufacturers Association responded by stating:

"We know of no data from which the need for specific changes to the standard can be justified. Analyses of field accident data have not identified specific weaknesses in FMVSS 301 much less any material or design shortcomings. The understanding of the types of injuries occupants sustain in collisions involving fires and when and why the vehicle fire originated is necessary to answer this question." ^[41]

However, on December 2, 1994, in an "agreed-upon resolution" with the Department of Transportation in an investigation by NHTSA into alleged defects related to fuel system safety in 1973 through 1987 C-K pickup trucks, General Motors agreed, among other things:

". . . [T]he current 301 standard should be enhanced to meet today's high pressure fuel systems designs and in today's traffic environment to provide higher levels of occupant protection from post-crash fires. The goal is to develop, on an expedited basis, a revision of the standard that does simulate the real-world crash conditions that result in post-crash fires. In this respect, it is envisioned that the revised standard would employ a more representative impacting device than the current standard, would involve higher test speeds (approx. 40 mph) than the current standard, and would include separate tests of the integrity of fuel system components in addition to full vehicle tests at different impact locations." ^[42]

Obviously, the industry is reluctant to admit that FMVSS 301 is not the answer, and that automotive fuel system safety is still in need of improvement in many design areas and in Many vehicles. Statistical data regarding rear-impact accidents and injuries demonstrates that manufacturers still have a long way to go. It is a fact that most fires occur in crashes with a change in vehicle velocity during impact of less than 30 mph. Eighty-nine (89) percent of fires in non-rollover rear-impacts, 84% in frontal, and 95% in side impacts, occur in crashes with a Delta-V of less than 30 mph. ^[43] In a seven year study from the National Accident Sampling System (NASS), 73% of burn fatalities did not have an impact induced injury as severe as their burns, and 57% of deaths among burn victims were attributed to burns alone, suggesting these people would have survived if not for their burns. Additionally, 87% of individuals with moderately severe burns could not escape the fire because they were sitting next to a door that was jammed shut by crash forces. ^[44]

THE ADVENT OF FUEL SYSTEM CRASHWORTHINESS LITIGATION

Early efforts of the government to impose automotive fuel system crash safety standards coincided with product liability litigation involving dangerous and defective fuel systems designs. Lawyers representing burn victims and their heirs begin to take on manufacturers under various theories of product liability including strict liability, negligence, failure to warn and breach of warranty. Relying upon the then relatively new legal concept that manufacturers must foresee collisions as part of the design process, and take steps to minimize the injuries in the event of a collision, ^[45]plaintiffs in fuel system crashworthiness litigation began making progress in the courts.

In Grundmanis v. British Motor Corporation, ^[46] a passenger in a 1962 MGB sustained severe burn injuries when the MGB's fuel tank ruptured in a collision with another automobile. The basis of the plaintiff's claim was that the manufacturer was negligent in placing the fuel tank under the trunk and immediately behind the passenger compartment. The manufacturer filed a motion to dismiss the complaint, contending that the defendant had no duty to design an automobile that would be safe when involved in a collision. Citing Larsen v. General Motors, the trial court denied the motion to dismiss, noting that between one fourth and two thirds of all vehicles manufactured are at some time involved in a collision, and therefore "the anticipation of this result by both designer and manufacturer is mandatory."

In Badorek v. General Motors, ^[47] the plaintiffs brought an action against the manufacturer of a Corvette when its fuel tank raptured in a rear-end collision, causing severe burn injuries and two fatalities. The plaintiffs' claim was based upon the fact that the Corvette's gas tank was situated on top of rear steel members fastened by metal straps, and the application of force to the rear of the Corvette resulted in a straightening of the strap, thus eliminating the rear anchors of the tank and allowing it to move forward and upward. The plaintiffs also contented that the leading upper edge of the gas tank or filler neck was capable of impacting and displacing the upper portion of the fiberglass bulkhead isolating the passenger compartment, permitting the movement of gasoline from the ruptured tank into the passenger compartment.

Following a jury award for the plaintiffs, the manufacturer appealed, arguing that it could not be held strictly liable, as collisions are not an intended use of motor vehicles. The appellate court affirmed the judgment against the manufacturer stating:

"We cannot reach the conclusion either that state or federal legislation has covered or preempted the field at issue at in this case, or that this court is justified in creating a court-made exception to Restatements Second of Torts. § 402(a), already the law generally in California, for the benefit of automobile manufacturers. Rather, we hold that such manufacturers are strictly liable for enhanced injuries ("the second accident") caused by unreasonably dangerous defective design and construction of their products under the conditions described in § 402(a) (which conditions existed in this case)." ^[48]

In Johnson v. American Motors Corporation, ^[49] the heirs of the two individuals who were killed in a post-collision fuel fire brought an action against the manufacturer on their station wagon, contending that the negligent design of the fuel system had resulted in a fuel tank rupture. The trial court granted summary judgment, finding that despite of manufacturer's ability to foresee possibility of collisions, the manufacturer is not under the duty to make an automobile "accident proof or fool proof." In reversing the trial court, the court of appeal stated:

"When AMC adapted the design that it did, should have foreseen that its automobile might be involved in a rear-end collision of such force as to burst the gasoline tank and that in such case the automobile might burst into flame and the occupants might be incinerated? In adopting the design that it did, did AMC exercise ordinary care to protect users of its product from unreasonable risk of harm and putting the product to its intended use or other foreseeable uses? Was AMC's conduct reasonable? These are questions of fact for the jury." ^[50]

In Arbet v. Gussarson, ^[51] a husband and wife sustained severe burn injuries after their gas tank ruptured in an rear-end collision. The vehicle's four doors jammed, preventing them from exiting the vehicle in a normal fashion. Although the husband was able to escape through a window, his wife was severely burned and he was burned attempting to free her from the vehicle. The plaintiffs brought an action against the manufacturer based on negligence and strict liability. The trial court sustained the manufacturer's demurrer and entered judgment against the plaintiff, finding that no cause of action could be stated against the manufacturer based upon a negligent design. The court of appeal reversed:

"In the instant case, plaintiffs primarily alleged that the car was defectively designed so that it was unreasonably dangerous in an accident. Plaintiffs do not ask that cars be built like Sherman tanks; rather, merely that they not contain design features rendering them unreasonably unsafe in an accident." ^[52]

PUNITIVE DAMAGES

By the late 1970's, juries began to fully appreciate the reckless disregard for safety exhibited by various manufacturers in designing their fuel systems. As fuel system crashworthiness litigation became increasingly sophisticated, intensive discovery efforts uncovered startling documentary evidence showing the extent to which some manufacturers were aware of the severe potential for harm presented by certain fuel system designs, and their failure to respond accordingly.

In addition to their efforts to delay and water down FMVSS 301, information available to manufacturers from crash testing results, internal studies and industry literature demonstrated an awareness of various design defects in their vehicles, and the extreme fire risk in the event of a collision. Evidence uncovered also showed a reluctance or refusal by certain manufacturers to make inexpensive or remedial changes, in an effort to increase profits.

Some manufacturers even went so far as to perform cost/benefit analyses, which weighed the cost of meeting proposed standards with the benefits of reducing injuries and death due to fires. These studies attached dollar values to potential deaths and injuries, and compared these "savings" against the cost of development, testing and modifications. One Ford Motor Company interoffice memorandum discussing proposed fuel system integrity standards contained the following:

BENEFITS AND COSTS RELATING TO FUEL LEAKAGE ASSOCIATED WITH THE STATIC ROLLOVER TEST PORTION OF FMVSS 208

BENEFITS:

Savings - 180 burn deaths, 180 serious burn injuries, 2100 burned vehicles.

Unit Cost - $200,000 per death, $67,000 per injury, $700 per vehicle.

Total Benefit - 180 x *$200,000) + 180 x ($67,000) + 2100 x ($700) = $49.5 million.

COSTS:

Sales - 11 million cars, 1.5 million light trucks.

Unit Cost - $11 per car, $11 per truck.

Total Cost - 11,000,000 x ($11) + 1,500,000 x ($11) = $137 million. ^[53]

Other manufacturers conducted similar "cost/benefit" analyses and even published the results. One Volkswagen study which compared "annual societal benefits" based on dollar values attached to deaths and injuries, with the cost of vehicle and test equipment relating to fuel system integrity, concluded:

"The changes of the FMVSS have necessitated major changes in the number of tests and vehicle equipment required. The question arises whether this additional cost in development work and for the vehicle is justified. . . . The elimination of the two lateral crash tests would substantially reduce the cost of development because four crash tests and eight rollover tests would be omitted. We feel that while approximately the same benefit would be maintained, the cost of development would be reduced by between 32 and 38 percent. The present lateral collision test procedure, where the vehicle side is impacted with a flat barrier, does not provide for proper simulation of real-life accidents, because a 4,000 pound flat barrier is totally non-representative of any vehicle or fixed object on the road. . . . Too much outlay is required by the test procedures for the vehicle fuel tank system. The omission of the lateral impact tests would be justified." ^[54]

Evidence of this type provided the basis for punitive damages claims, and several successful fuel system cases resulted in large punitive damages verdicts. In Grimshaw v. Ford Motor Company, ^[55] a fuel system crashworthiness case involving a 1972 Pinto hatchback, the jury also rendered a substantial punitive damages award against the manufacturer. The evidence included a report presented at a Ford production review meeting in April 1971, recommending that action be taken in anticipation of the promulgation of Federal standards on fuel system integrity. The report recommended, inter alia, deferral from 1974 to 1976 of the adoption of "flak suits" or "bladders" in all Ford cars, including the Pinto, in order to realize a savings of 20.9 million dollars.

Also included was a February 1971 Ford engineering study regarding costs of a proposal for a fuel tank over the axle and a tank within a tank. The study showed that the cost of placing the gas tank over the axle with a protective shield was about $10.00 per vehicle and that a tank within a tank with polyurethane foam between the tanks would have cost about $5.00 per vehicle. ^[56] Additionally, a former Ford engineer and executive in charge of the crash testing program testified that "the highest level of Ford's management made the decision to go forward with the production of the Pinto, knowing that the gas tank was vulnerable to puncture and rupture at low rear impact speeds creating a significant risk of death or injury from fire and knowing that 'fixes' were feasible at nominal cost." He also testified that management's decision was based on the cost savings which would inure from omitting or delaying the "fixes." ^[57]

On appeal Ford contended that the evidence was insufficient to support a finding of malice. The appellate court disagreed, stating:

"Through the results of the crash tests Ford knew that the Pinto's fuel tank and rear structure would expose consumers to serious injury or death in a 20 to 30 mile per hour collision. There was evidence that Ford could have corrected the hazardous design defects at minimal cost but decided to defer correction of the shortcomings by engaging in a cost-benefit analysis balancing human lives and limbs against corporate profits. Ford's institutional mentality was shown to be one of callous indifference to public safety. There was substantial evidence that Ford's conduct constituted 'conscious disregard' of the probability of injury to members of the consuming public." ^[58]

In American Motors Corporation v. Ellis, ^[59] the trial court directed a verdict for the manufacturer on a punitive damages claim. However, the appellate court reversed and ordered a new trial on punitive damages, holding that the trial court had erred in directing a verdict on that issue. In doing so, the court noted that the jury could have found that the manufacturer had decided to forego a recommended design change in order to protect its profits:

"In the present case, there was evidence adduced from which the jury could have found that AMC was aware of the catastrophic results of fuel tank fires in its vehicles from its own crash tests, and that AMC chose not to implement the recommendation of its engineers to relocate the fuel tank in order to maximize profits." ^[60]

The court also commented that the manufacturer "failed to conduct further crash tests or experiments to determine feasible alternatives, despite its knowledge that its present design could not survive crash tests at relatively low speeds." ^[61]

In Toyota Motor Co., Ltd. v. Moll, ^[62] a fuel system crashworthiness case involving a 1973 Toyota Corona, three sisters sustained fatal burns when they were struck from behind by another vehicle. In affirming the award of punitive damages, the appellate court noted that Toyota's crash tests from the mid to late-60's demonstrated Toyota's knowledge of defects in the design used on the Corona's fuel system:

"On the issue of punitive damages, the inquiry focused on Toyota's knowledge of these defects and its failure to take prompt remedial action. Testimony re­vealed that Toyota learned as early as 1966 or 1967, that the rigid filler pipe would rotate forward, i.e., it would face into the trunk space, if the car was hit in the rear by another vehicle going 20 miles per hour. This was significant because there is virtually no protection between the trunk space and the passenger compartment in the 1973 Toyota Corona. The 1966 or 67 crash tests also indicated that the gas cap would be pried off as the filler neck rotated forward . . .

We hold that the record in the case at bar fully justifies the trial court's decision to submit the issue of punitive damages to the jury. Moreover, there is ample evidence from which the jury could have reasonably concluded that Toyota knew of the defects and, in wanton disre­gard of the safety of the purchasing public, continued to market the '73 Coro­na without correcting its life-threaten­ing design flaws." ^[63]

In Ford Motor Company v. Stubblefield, ^[64] a passenger in a 1975 Mustang II sustained fatal burn injuries when rear-ended by another vehicle. In a subsequent product liability action the decedent's heirs were awarded punitive damages. In affirming the award the appellate court noted:

"The evidence here was sufficient to authorize the jury to find the sum of $8 million dollars was an amount necessary to deter Ford from repeating its conduct. That is, its conscious decisions to defer implementation of safety devices in order to protect its profits. One internal memo estimated that 'the total financial effect of the fuel system integrity pro­gram [would] reduce company profits over the 1973-1976 cycle by $109 million', and recommended that Ford 'defer adoption of the [safety measures] on all affected cars until 1976 to realize a design cost savings of $20.9 million compared to 1974.'" ^[65]

In Maxey v. Freightliner Corporation, ^[66] a husband and wife were burned to death when their 1963 Freightliner truck tilted on its side and the right fuel tank rup­tured. In the subseque­nt wrongful death action the heirs contended that the fuel system located outside the frame rails of the vehicle was an unreasonably dangerous location. The trial court granted a judgment notwithstanding the verdict on the punitive damages claim, but the appellate court reversed. Relying heavily on the lack of testing done by the manufacturer, the court held that there was evidence from which a jury might infer a conscious indifference to safety:

"Although Freightliner commenced manufac­turing the trucks with this fuel system designed in the 1950's, it neglected to test its product before marketing and in the succeeding years. It made no effort to modify its fuel tank design or place­ment or to conduct further tests after a 1965 drop test demonstrated tank ruptur­ability. Freightliner never crash tested an old or new truck with such tanks, and never considered doing so, although the evidence indicates that the crash danger of placing fuel tanks in impact areas was a subject of theoretical critiques since the 1940's, so that, consequently, crash resistant fuel systems had been devel­oped, for instance, for army helicopters and Indianapolis race cars. The defen­dant Freightliner's annual budget has never and does not now include any items concerned with crash safety, nor does the company employ a crash safety expert on its staff." ^[67]

In Ford Motor Company v. Durrill, ^[68] the parents of a girl who sustained fatal burn injuries in a rear-end accident brought suit against the manufacturer of their 1974 Mustang II. The plain­tiffs contended that the fuel tank was located in a hostile environment in that it was punctured and torn by adjacent components, and that the filler neck had pulled out. The jury rendered a substantial punitive damages award and the manufacturer appealed.

In finding that punitive damages were appropri­ate, the court found significance in the evidence concerning the cost savings realized by the manufacturer through deferring implementation of safer alternative designs:

"It is apparent from the record that Ford knew that there was a risk of fuel tank punctures and resulting fires, had the technology to substantially reduce the risk of such fires, but did not do so. There was also evidence from which the jury could infer that for the most part Ford did not act until mandated by the government. Ford saved more than 200 million dollars over a three year period by delaying implementation of modifica­tions of its fuel integrity system."

"There was also evidence that Ford had tested the 'breakaway' filler pipe and had determined that a nitrile nylon liner was capable of sustaining impacts at higher impact levels but did not use either. A crash test on a 1971 Pinto revealed pull-out of the fuel tank and leakage through a puncture in the upper right front surface of the fuel tank which was caused by contact between the fuel tank and a bolt in the differential housing." ^[69]

The court also found that evidence concerning Ford's attitude toward government safety regulations had a clear bearing on the issue of "conscious indifference to the rights and safety of others." At trial the plaintiffs had submitted the deposition of the acting head of the National Highway Traffic Safety Administration (NHTSA) concerning a meeting with President Nixon in 1971 "regarding the need of the government to be aware of costs and problems involved in implementing government regulations." The deposition included testimony:

". . . that Iaccoca and Henry Ford II had ex­pressed to him many times that 'safety has really killed all of our business'. They had also expressed to him the notion that the Japanese were a threat to the automobile business. They had told him that they wished the government was not as stringent regarding safety." ^[70]

DEFECT THEORIES

1. Vulnerable Location

In terms of the potential for fuel system compromise and post-crash fires, location is perhaps the most significant factor. In the complete spectrum of potential collisions, whether with other vehicles or fixed objects, certain areas of a vehicle are more susceptible to damage and deformation than others. Automobile manufacturers have been aware for decades that if the fuel tank is positioned in an area that is likely to sustain deformation or be subjected to intrusion from another vehicle, there is much greater probability of damage to the tank and fuel leakage. In that event, ignition from sources such as sparks from metal-to-metal contact can lead to extremely fast-spreading and intense fuel fires, and serious injury to occupants. Manufacturers have also been aware that certain economically and mechanically feasible locations for tanks are much safer than others, and that such designs will remove the tank from danger in most collision scenarios.

a. Rear Impacts

According to a study by the Insurance Institute for Highway Safety, 77% of fuel system ruptures were the result of rear-end collision damage.^[71] Although another study showed that frontal impacts account for 60 to 70 percent of crash fires, rear-end impacts are three times as likely to result in fatal fire crashes.^[72] The typical passenger car fuel tank is located in the rear of the vehicle, and many vehicles have their tanks located behind the axle near the rear bumper. This location is much more vulnerable to compromise of the tank, filler pipes, and other components such as fuel lines, in a rearend collision than alternatives used in other passenger cars. These alternatives include tanks located above and/or in front of the rear axle, as well as tanks below and behind the rear seat.

In the late 1960's, industry literature and experimental safety vehicle testing showed that front-of-the-axle designs were feasible and much safer than behind-the-axle designs. Although the proximity of the tank to the point of contact is a factor in the increased vulnerability of this design, it is not the only consideration in location. Manufacturers design vehicles to deform in specific modes in order to maximize survivability and minimize injury. A well designed, crashworthy vehicle will absorb collision forces with the least amount of occupant compartment deformation. So-called crush zones or crumple zones are designed to absorb the energy of the collision and protect the passenger compartment.

If the tank is behind the axle, it is located in the crush zone, thereby increasing the potential for deformation of the tank in a collision. Another dangerous design is the drop-in tank, a tank which is situated such that the top of the tank is part of the floor of the trunk. As the vehicle crushes there will inevitably be deformation of the tank. Safe tank location requires not only placing the tank in a protected area, but isolation of the tank as much as possible from energy absorbing structures and portions of the vehicle which are designed to deform in a collision.

b. Side Impacts

Tank location is critical in side impact crashworthiness, particularly in cases involving fuel tanks mounted outside the frame rails. This location, referred to as the saddle tank design, leaves the tank vulnerable to impact with only relatively flimsy sheet metal between the tank and the impacting vehicle.

The saddle tank design was the subject of a jury verdict against General Motors which included a large punitive damages award. Despite the verdict, GM scored a publicity coup by charging that a simulated collision run by NBC News was misleading and deceptive. This deflected attention from the fact that the jury, which found the design defective and found GM's conduct sufficiently reprehensible to award punitive damages, never saw the NBC testing. The jury did, however, reach its conclusions on the basis of General Motors' own crash tests and internal documents.

The evidence showed, among other things, that General Motors had located fuel tanks between frame rails as early as the '40's, and that in the early '60's its designers were recommending that fuel tanks be mounted as near to the center of vehicles as practical. Impact testing conducted by GM resulted in tank leaks and industry literature in the mid '60's concluded that tanks outside the frame rails were not acceptable. Despite this, as late as the 1987 model year GM was still selling pickup trucks with fuel tanks outside the frame rails. As a consequence, there are thousands of vehicles with this defective design still in use.

2. Hostile Environment

Aside from tank and component location, a second theory in fuel system crashworthiness cases involves the environment in which the tank is placed. A tank may be located in an ideal position from the standpoint of protection from impact deformation or puncture from exterior sources, but if it is surrounded by interior components there may be an increased and unnecessary risk of compromise. Adjacent components such as bolts, brackets, springs, mounting straps and flanges can easily puncture a tank if they are moved toward the tank by collision deformation, or if the tank is pushed into the components. Sometimes it is amazing to discover that a manufacturer has left an exposed bolt or sharp-edged metal bracket in a location next to and aimed directly at an unprotected tank.

There are inexpensive fixes for this type of defect, including changing the shape of the components or eliminating sharp edges in order to distribute impact loads over broader areas. If the part cannot be readily altered or relocated, metal or plastic shields can be placed between the tank and the hazardous component.

Proof of the feasibility of designs which eliminate hostile environments can often be found in other vehicles by the same manufacturer. For example, in one case involving a station wagon where a woman was severely burned in a fire after a rearend collision, it was discovered that the tank had been punctured when it was shoved into a protruding spring mount bracket attached to the top of the axle. A rental car driven by the expert who examined the vehicle had the identical spring and mounting location. However, the bracket had been shaped to conform to the contour of the axle, thereby presenting a blunted broad surface area facing the tank.

3. Component Attachment Failure

A frequent source of fuel spillage in many post-collision fires is leakage from areas where components have become separated or detached. The primary situation is filler neck pull-out. The filler neck, which is the tube through which fuel is fed into the tank, is often placed in a configuration whereby it can be easily pulled away from the tank by sheet metal or structural members which are shifted relative to the tank in the course of a collision. If this pull-out occurs, a gaping hole is left where fuel pours from the tank. Also, damage to the filler neck can cause fuel leakage, and certain designs in the past have incorporated weak plastic tubes as well as weak attachment hardware.

There are a variety of safer alternate designs such as longer filler pipes, which allow greater movement without complete disconnection from the tank. Other design features include breakaway filler necks, flexible pipes which deform without pulling out or puncturing, and improved sealing methods which reduce the risk of failure.

4. Passenger Compartment Protection

Aside from the issue of protecting fuel system components themselves from damage in a collision, related theories of liability may involve insufficient protection of vehicle occupants. If a fuel system has been compromised by impact forces, defective design features of the vehicle structure may enhance injury potential. Inadequate separation between the passenger compartment and the fuel tank can allow fuel and fire to quickly enter the passenger compartment, thus depriving occupants of sufficient escape time.

Some manufacturers utilize metal bulkheads to separate the fuel tank area from the passenger compartment. ^[73] Despite the fact that long ago engineers recognized the need for a "fire wall" behind the rear seat back, ^[74] some manufacturers have used nothing more than seat cushions between the passenger compartment and the fuel tank.

CONCLUSION

Fuel system safety has come a long way since the days of the Ford Pinto. Forced by FMVSS 301 and by pressure from product liability litigation, the industry has reluctantly responded by adopting designs which could and should have been adopted decades ago. However, 301 remains only a minimal standard. It covers only a small fraction of the broad spectrum of foreseeable and probable collision circumstances and speeds. Consequently, many new vehicles which meet the standard are nevertheless unreasonably dangerous, and utilize defective designs which create an extreme risk of injury or death from fire. From a historical perspective there is no reason to believe that manufacturers will voluntarily support a more stringent standard, but with continued efforts by attorneys representing victims of defectively designed vehicles, change for the better is inevitable.

[1] Evaluation of Federal Motor Vehicle Safety Standard 301-75, Fuel System Integrity: Passenger Cars, U. S. Department of Transportation, National Highway Traffic Safety Administration, (January 1983) Technical Report, DOT HS-806-335.

[2] Motor Vehicle Fires in Traffic Crashes and the Effects of the Fuel System Integrity Standard, United States Department of Transportation, National Highway Traffic Safety Administration, (November 1990) Technical Report DOT HS 807 675.

[3] Id. at 4-15.

[4] Unleakable and Uninflammable Gasoline Tank, U.S. Patent No. 1,616,116, M. De Salamanca, February 1, 1927.

[5] Gasoline Tank, U.S. Patent No. 2, 090, 197, A. Haas and G. Clay, August 17, 1937,

[6] Safety Apparatus for Motor Vehicles, U.S. Patent No. 2, 163, 988, C. Stacy, October 21, 1937.

[7] Quarterly of the National Fire Protection Association, July 19, 1951, Volume 45, No. 1 page 47.

[8] Vehicle Fuel Tanks, U.S. Patent No. 2, 808, 892, B. Walker, October 8, 1957.

[9] D. Severy, et al., Vehicle Design for Passenger Protection from High Speed Rear-End Collisions, Society of Automotive Engineers, October 22, 1968.

[10] Fire and Road Accidents, Traffic Accident Research Unit, Department of Motor Transport, New South Wales, January 1970.

[11] Prevention of Electrical Systems Ignition of Automotive Crash Fire, Dynamic Science - Document No. PB 197616, March 1970.

[12] A.F. Bryman, Impact Intrusion Characteristics of Fuel Systems, Cornell Aeronautical Laboratory, April 1970.

[13] 15 U.S.C. §§ 1392, 1407.

[14] 32 Federal Register 2416 (February 3, 1967).

[15] Id. at 2408.

[16] Society of Automotive Engineers Recommended Practice J850 "Barrier Collision Test" (February 1963).

[17] 32 Federal Register 14282 (October 14, 1967).

[18] American Manufacturers Association, Inc., Response to Request for Comments Re Advanced Notice of Proposed Rulemaking No. 67-5 Docket 3-1, March 18, 1968, No. 03-01-ANPRM-029.

[19] Japan Automobile Manufacturers Association, Inc. Response to Request for Comments Re Advanced Notice of Proposed Rulemaking No. 67-5 Docket 3-1, No. 03-01-ANPRM-030.

[20] Comments of International Harvester Corporation on Advanced Notice of Proposed Rulemaking, Docket No. 3-1, Notice No. 67-5, Document No. 03-01-ANPRM-023.

[21] 35 Fed. Register 13799, August 29, 1970.

[22] Comment on Docket No. 70-20, Notice 1; Fuel System Integrity, Japan Automobile Manufacturers Association, Inc., November 17, 1970, 70-20 NO1-004.

[23] General Motors Comment on Notice of Proposed Rulemaking, Docket 70-20, Notice 1 - Fuel System Integrity, November 30, 1970, 70-20-NO1-016.

[24] American Manufacturers Association, Inc. Comment to Docket No. 70-20; Notice 1, November 30, 1970, 70-20-NO1-014.

[25] 38 Federal Register 22397, August 20, 1973.

[26] Id.

[27] Petition for Reconsideration of Amendments to FMVSS 301, Docket 70-20, Notice 2, Japan Automobile Manufacturers Association, September 19, 1973, 70-20-NO2-010-01.

[28] Petition for Reconsideration by General Motors, Docket 70-20, Notice 2, September 19, 1973, 70-20-NO2-006.

[29] 39 Federal Register 10586, March 21, 1974.

[30] Evaluation of Federal Motor Vehicle Safety Standard 301-75, Fuel System Integrity: Passenger Cars, (January 1983), NHTSA Technical Report DOT HS-806-335.

[31] Motor Vehicle Fires in Traffic Crashes and the Effects of the Fuel System Integrity Standard, NHTSA Technical Report, November 1990, DOT HS 807 675.

[32] 48 Federal Register 1089, January 10, 1983.

[33] Evaluation of Federal Motor Vehicle Safety Standard 301-75, January 10, 1983, NHTSA Technical Report DOT HS-806-335.

[34] Id. at xiv.

[35] Motor Vehicle Fires in Traffic Crashes and the Effects of the Fuel System Integrity Standard, NHTSA Report (November, 1990), page xviii, DOT HS 807 675.

[36] 57 Federal Register 59042, December 14, 1992.

[37] 57 Federal Register 7639, February 25, 1991.

[38] 57 Federal Register 59043, December 14, 1992.

[39] Comments in response to Docket Notice 92-66; Notice 1, March 5, 1993, 92-66-NO1-018.

[40] General Motors Fuel Tank Location Study, Oldsmobile Auto Safety Engineering, Engineering Staff, November 4, 1978.

[41] Response to Request for Comments, Docket No. 96-66, American Automobile Manufacturers Association, March 10, 1993, 92-66-NO1-023.

[42] Letter Agreement December 2, 1994 from Federico Pena, Secretary of Transportation, to John S. Smith, Jr., CEO and President, General Motors Corporation.

[43] S. Partyka, Fires and Burns in Towed Light Passenger Vehicle Crashes, Office of Vehicle Safety Standards, Rulemaking, National Highway Traffic Safety Administration, July 21, 1992.

[44] Id. at page 1.

[45] Larsen v. General Motors, Corporation, 391 Fed.2d 495 (8th Cir. 1968).

[46] 308 F. Supp. 303 (1970)

[47] 11 Cal. App. 3d 902, 90 Cal. Rptr. 305 (1970).

[48] Id. at 925.

[49] 225 N.W. 2d 57 (N.D. 1974).

[50] 225 N.W. 2d at 65.

[51] 225 N.W. 2d 431 (Wisc. 1975)

[52] 225 N.W. 2d at 434.

[53] Fatalities Associated with Crash Induced Fuel Leakage and Fires, E.S. Grush and C.S. Saunby, Ford Environmental and Safety Engineering Inter Office Memorandum, September 18, 1973.

[54] U. Seiffert and A. Ensslen, Possible Effects of FMVSS 301 on Motor Vehicle Development and Design, SAE 770172.

[55] 119 Cal.App.3d 757 (1981).

[56] Id. at 790-791.

[57] Id. at 777.

[58] Id. at 813.

[59] 403 So.2d 459 (Fla.App. 1981).

[60] Id. at 467.

[61] 403 So.2d at 467.

[62] 438 So.2d 192 (Fla. App. 1983).

[63] 438 So.2d at 195.

[64] 171 Ga.App. 331 (1984).

[65] 319 S.E.2d at 481.

[66] 722 F.2d 1238 (5th Cir. 1984).

[67] Id. at 1241.

[68] 714 S.W.2d 329 (Tex. App. - Corpus Christi 1986).

[69] 714 S.W.2d at 338.

[70] Id. at 339.

[71] Insurance Institute for Highway Safety Status Report, Vol. 10, No. 3, February 5, 1975.

[72] Motor Vehicle Fires in Traffic Crashes and the Effects of the Fuel System Integrity Standard, NHTSA Technical Report DOT HS 807 675 (November 1990).

[73] A. Siegel and A. Nahum, Post-Collision Considerations International Automobile Safety Conference Compendium, Society of Automotive Engineers (1970).

[74] D. Severy, et al., Vehicle Design for Passenger Protection from High Speed Rear-End Collisions, Society of Automotive Engineers, October 22, 1968.