Toyota Suits Can Continue Under 2 Other Legal Theories, Says Legal Expert

Feb. 9, 2011 - PRLog -- If the government's finding that Toyota's sudden acceleration problems were not caused by some undetected electronic problem are true, lawyers suing on behalf of drivers, passengers, and others injured or killed as a result of suddenly accelerating Toyota vehicles can still continue litigating and possible win if they argue either one or both of two alternative legal theories, claims a public interest law professor who has been involved and written on vehicle safety issues, including Toyota's.

Since it now appears that the sudden acceleration was caused either by a mat interfering with the gas pedal, or by some other mechanical problem which caused the throttle to stick, many of these accidents probably might have been prevented or at least ameliorated if Toyota had installed a so-called "smart brake" or brake override system, argues law professor John Banzhaf of the George Washington University Law School.

Many drivers claimed that even stepping on the brake pedal could not stop their runaway Toyota vehicles.  But a smart brake system, which guarantees that stepping on the brake will cause loss of engine power so that the brakes can quickly bring the runaway vehicle to a stop, might have prevented some of the accidents.

Under Tort law, manufacturers are required to anticipate problems which are "reasonably foreseeable," and to provide mechanisms for preventing or otherwise dealing with them - but only if the problems are foreseeable, and the remedies are reasonable in cost compared to the injuries they could prevent.

"Toyota should have foreseen sticky acceleration problems - whether from mechanical causes or otherwise - because such problems have been reported many times on many other vehicles," argues Prof. Banzhaf.  Moreover, given the computers in all modern cars, it would be simple and very inexpensive to program them so that forcefully depressing the brake would cut engine power and allow the vehicle to be stopped quickly.

Indeed, the very fact that other vehicle manufacturers had reported installed such systems at the time shows that they were a cost effective solution to a common problems which was reasonably foreseeable.  "If competitors adopt a safety mechanism, it's hard to argue that it's too complicated or too expensive, or that the need for the device could not reasonably have been foreseen," he says.

But the complication, says Banzhaf, is that in the case of Toyotas as well as other brands, many accidents seem to have occurred because drivers, panicked by a sudden acceleration problem, mistakenly mistook the gas pedal for the brake.  Thus, by pressing down harder on the gas rather than on the brake, the sudden acceleration problem only got worse, and drivers mistakenly concluded that the brakes were unable to stop the car against the power of a runaway engine.

If this is the case, Banzhaf suggests, even a smart-brake system probably would have done little good.  In other words, the failure of Toyota to have a smart-brake system would not have been the "cause in fact" of the accident since it would never have been engaged by panicking drivers pushing on the gas rather than the brake.

Another and potentially stronger legal theory is to argue that Toyota should have reasonably foreseen that gas pedals may stick, and that drivers in their panic would depress the accelerator, mistaking it for the brake.  Thus Toyota would have a legal duty to prevent the vehicles from quickly accelerating to an unreasonably dangerous speed if they could do so both safety and at a cost which was not prohibitive.

Although many people do not realize it, virtually every modern car already has build into the vehicle's computer a controller which prevents the vehicle from going beyond a certain set speed.  If such a speed had been set - either initially at the factory, or after Toyota began the recalls - at a reasonable top speed of something like 90 mph, the vehicles could never have accelerated beyond that speed; whether the problem was caused by mats or a sticking pedal, and/or whether drivers either forgot to apply the brake or mistakenly pushed on the gas pedal thinking that it was the brake.

Unfortunately, it appears that the top speed programmed into Toyota's on-board computers was not a reasonable one in light of both American driving conditions and speed limit laws, but rather a much higher number based upon factors like the enormous speed at which centrifugal force would make the tires disintegrate.

Thus, plaintiffs' attorneys could argue, the "cause in fact" of many of the crashes was the failure or refusal of Toyota to initially set the top speed to something reasonable, or the failure or refusal of Toyota to re-set the top speed once it was put on notice by the numerous sudden acceleration accidents and deaths.

The fact that federal law or regulations do not require car makers to set the computer speed cutoff to a reasonable speed, or that other manufacturers do not do it, is not a valid legal defense, says Prof. Banzhaf.

Moreover, even if vehicle manufacturers might not be negligent for failing to initially set this cutoff speed to a reasonable figure when cars are manufactured and sold, a jury might find that such a duty occurred when lots of runaway cars were reported to Toyota, and Toyota in fact recalled many of the vehicles.

"If, during a recall, dealers had taken just a few minutes to reset the top speed stored in the cars' electronic systems - just as computer owners frequently reset the speed at which their computers perform certain tasks, go intro screen-saver mode, etc. - many lives might have been saved and accidents prevented."

A car with a stuck accelerator pedal going 90 mph on a highway might be controllable, whereas one going at 140 mph almost certainly would not be.  Moreover, since the severity of the accident is roughly proportional to the square of the speed, an accident at 140 mph is likely to be more than twice as serious as one at 90 mph.

"Juries will be asked if Toyota could have done more at a reasonable cost, especially once sudden-acceleration accidents began to occur with some frequency.  They may well conclude that Toyota has some responsibility - along with driver error - for the accidents, and hold it liable as a message to all vehicle manufacturers to anticipate reasonably foreseeable problems, and take appropriate protective measures before there are more deaths," says Banzhaf.

PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor,
FELLOW, World Technology Network
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/