Saturday, March 20, 2010
courthouse rotating photos Howard Nations Logo

Burns - Automobile Accident Demand Letter

Automobile Accident

Demand Letter

d. Relevant Documents

(1) A. C. Gardner Memo

On March 2, 1994, A. C. Gardner, executive engineer at Stallion, issued a confidential safety program memo in which he listed the major areas requiring new design. Item 8 on the list of Mr. Gardner's recommendations was the following:

8. The fuel tank must be mounted outside the cab and as near the center of the vehicle as practical.

Gardner memo, Page Two

While the Gardner memo referred to the design of Stallion trucks, the principle of placement of the fuel tank as near the center of the vehicle as possible, in front of the axle and out of the primary crush and intrusion zone is as relevant to the design of the 1992 Stallion Glider Excel Sunset as it is to Stallion pickup trucks. In fact, the safety concerns which would dictate that the fuel tank should be located as near as possible to the center of the vehicle are more important in the design of the Stallion Glider Excel Sunset than in the Stallion pickup truck.
In the Glider Sunset, as designed in 1992, a rear-end collision would intrude both onto the top of the gas tank and into the passenger compartment, a truly treacherous combination as seen in this tragedy.

In the Stallion pickup truck, a rear-end collision is less likely to intrude directly into the passenger compartment or expose passengers to conflagration arising from fuel spillage from the gas tank. Thus, the principle of placing the gas tank as near as possible to the center of the vehicle, in front of the axle, and out of the primary crush and intrusion zone, is a safer alternative design which was well known to Private Autos in 1963 and has been utilized in millions of Private Autos vehicles for decades.

(2) Design Direction-8-A

The Design Direction-8-A in August, 1969, recommended that a helpful design feature in order to achieve safety objectives would be to design with sufficient crush space between the rear bumper and the tank so that the tank will not rupture in a rear override collision.

(3) CPPO-8

Ronald Kaygood, former design engineer in the fuel containment system division at Private Autos, recommended in Corporate Product Performance Objective 8 that fuel tanks should be designed so as to cope with incipient failure. The recommendation was that, regardless of the federal standards, the objective of the design criteria should be for Private Autos to design to avoid any fuel loss from the system and thereby reduce the likelihood of post-collision fuel-fed fires. Kaygood advised the powers that be at Private Autos that it was ridiculous to design vehicles which would allow the passengers to survive the crash, only to be burned to death. This, of course, is precisely what happened in this case.

The autopsy reports on the decedents and the hospital records of the survivors show that there were almost no personal injuries involved in the collision. The passengers survived the rear-end collision caused by Stamply, with no problem. It will be very simple to show a jury in this case that while Stamply caused the accident, the real damages to these six occupants resulted from the failure of the Private Autos fuel containment system which spilled, ignited and incinerated.

(4) Bailey Memo

See the discussion at C.6(b) infra, regarding the Bailey Memo

2. Uncrashworthiness of Seat Assembly

a. Defective Design

The fatal flaw in designing a driver's seat to collapse on impact has never been more clearly demonstrated than in the tragedy with which we deal in this case. There were six occupants in the ill-fated Stallion Glider Excel Sunset. As could be anticipated, the parents occupied the two front seats and four children occupied the sedan seat in the back. On impact, the driver's seat collapsed as designed by Private Autos engineers in order to reduce the likelihood of whiplash. The passenger seat in which Sally Waymond was riding did not collapse because she was not leaning back in her seat at the time of the impact.

Dr. Kenneth O’Brian, Plaintiffs' expert mechanical engineer, will testify and demonstrate to the jury that this case perfectly exemplifies the flaw in the Private Autos' seat design. The three passengers on the driver's side which collapsed on impact were burned to death. The three passengers on the passenger side, where the seat did not collapse, all escaped with their lives.

The reason the two children on the sedan seat behind the driver were burned to death while the other two children survived is that the driver's seat collapsed backwards and trapped the children under the seat as they were slowly burned to death. Lee Waymond, the driver, was temporarily knocked unconscious when the seat collapsed, and Sally Waymond was unable to pull his body and the driver's seat off of the two trapped children because of the intensity of the conflagration in the passenger compartment of the Glider .

Sally was very fortunate to survive the fire as she was able to climb through the driver's side window over her husband's slowly incinerating body. The fire was so intense that rescuers could not get near the Glider in order to attempt to free the children who were trapped under the driver's collapsed seat. The flames continued for more than forty-five minutes, and the autopsy reports indicate that the three passengers were burned to death.

Applying Texas case law to the defective design of the seat assembly, a Texas jury will find that the seat is defectively designed for the following reasons:

(1) a product which causes incineration of the driver in order to avoid whiplash is neither useful nor desirable;

(2) a safer design is available which will meet the same need;

(3) the likelihood of injury, risk of harm and probable seriousness of entrapping backseat passengers while taking the control of the vehicle out of the hands of the driver greatly increases the likelihood of probable serious injury;

(4) the obvious danger presented by the particular design of the seat is twofold: a) serious injury to the driver and sedan seat passengers; and b) the increased risk of placing the driver in a moving vehicle in a supine position;

(5) it is not common knowledge among drivers nor is it normal public expectation that the driver's seat will collapse on impact. Drivers expect to be able to maintain control of the vehicle rather than end up in a supine position, out of control, and entrapping backseat passengers;

(6) there is no care which the driver can exercise in the use of the collapsing seat to avoid injury;

(7) GM has the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive exists.

b. Alternative Safer Design

Applying Texas law to alternative safer design of the seat assembly, a safer seat was utilized in the industry at the time the 1992 Stallion Glider Excel Sunset was designed. Both Volvo and Mercedes, significantly, the two safest modeled cars on the road use the alternative safer design. Additionally, there is no doubt that Private Autos is aware of the alternative design and has analyzed and rejected the more stable seat as a design, allegedly in the interest of preventing whiplash injuries. To some degree, the Private Autos design was successful since none of the six passengers in this ill-fated Stallion Glider suffered whiplash injuries.

c. Unreasonably Dangerous Product

The seat is unreasonably dangerous as designed when measured by Texas law of utility vs. risk. The utility of avoiding whiplash while greatly increasing the risk of serious injury to both the driver and backseat passengers does not justify the use of the collapsing seat. When this is considered in conjunction with the defective design of the fuel containment system and the inherent risk of instant conflagration, the risk of the use of a collapsing seat is greatly increased while the utility of avoiding whiplash pales into insignificance. Thus, under Texas law, the collapsing seat as designed is unreasonably dangerous by definition

d. Relevant Documents

On June 5, 1968, in Sled Test Report No. PG25399 entitled "Evaluation of Energy Absorbing Seat Adjuster for Providing Whiplash Protection," safety design engineer T. W. Ruster of Private Autos accurately described to Private Autos' design executives the design flaws in the concept of a seat backrest which is designed to yield under rear impact. Mr. Ruster reported the problems which the sled test revealed with respect to the designed-in seat collapse as follows:

One of these is the highly probable interference with the rear seat occupants. This condition has the potential of severe injury to either one or both of the occupants.

Mr. Ruster then demonstrated a firm grasp of the obvious which seems to have eluded the remainder of the Private Autos design team:

In addition, while the occupant is in the horizontal position, he can no longer reach the vehicle controls. This circumstance might lead to causing a second and otherwise avoidable accident.

As prophetically predicted by T. W. Ruster, the treacherous seat collapse design has resulted in this case in the burning death of the driver and the entrapment and incineration of two children on the sedan seat.

3. Failure to Warn

Basic principles of product liability law dictate that when a product is extra-hazardous, a three-step process is undertaken by the manufacturer. First, the hazard should be eliminated. Second, if the hazard cannot be eliminated it should be guarded against. Third, if the hazard cannot be adequately guarded against, the end-user should be adequately warned of the hazard. In the case at bar, Private Autos completely failed to warn end-users, including Lee Waymond and his family, that a defectively designed fuel filler neck was being used in their 1992 Stallion Glider Excel Sunset; that the gas tank was dangerously located in the primary crush and intrusion zone; that the gas tank was not guarded, either by shielding or with a liner inside the tank; and that the driver's seat was designed to collapse on rear impact.

Aside from appropriately naming this deathtrap "Glider ," Private Autos offered no warnings of the possibility of conflagration on rear override impact.

4. Ordinary Negligence

Under Texas law, ordinary negligence allegations have a higher burden of proof than strict tort liability in that ordinary negligence requires a showing of proximate cause which includes the element of foreseeability. However, the negligence involved in this case was clearly foreseeable, particularly in light of the extensive crash and sled testing of vehicles conducted by Private Autos over the years.

We will show a jury that the fuel containment system was negligently designed by Private Autos; that the placement of the fuel tank in the primary crush and intrusion zone is negligence; that the failure to utilize the convoluted fuel filler neck constitutes negligence; and that the failure to either shield or line the unguarded tank also constitutes negligence. Our evidence will also show that these acts of negligence were a proximate cause of the tragedy involving this lawsuit.

5. Breach of Warranty

Plaintiffs herein also have claims for breach of warranty since the Stallion Glider Excel Sunset was not fit for the ordinary use which the Waymond family anticipated at the time they bought the vehicle.

6. Gross Negligence


a. Standard for Recovery

For purposes of mediation we are not considering the possibility of a finding of malice in order to predicate a recovery of exemplary damages against Private Autos. However, in the event that the case is not successfully mediated, we will focus on discovery of documents which will show that Private Autos' engineers were aware that the design defects in the 1992 Stallion Glider involved an extreme degree of risk considering the probability and magnitude of the potential harm to others and that they had actual subjective awareness of the risk involved but nevertheless proceeded with conscious indifference to the rights, safety and welfare of others.

Considering the documents which we already have in our possession, without having undertaken formal discovery in this case, Plaintiffs will definitely focus on the possibility of an exemplary damages award in the event the case is not resolved amicably.

b. Documents

The Bailey memo is a "value analysis of automotive fire-related fatalities as they relate to Private Autos." The document shows that Private Autos was aware that there are hundreds of fatalities each year in Private Autos automobiles involving accidents with fuel-fed fires in which the bodies are burned. The calculation is made by Private Autos that "analyzing these figures indicates that fatalities related to accidents with fuel-fed fires are costing Private Autos $2.40 per automobile."

The analysis in June, 1973, assumes that since Private Autos builds approximately five million (5,000,000) automobiles per year, this new model figure represents eleven percent of the automobiles on the road. Assuming further that five hundred (500) of Private Autos customers will die in fuel-fed fires in their automobiles in a one-year period, they can reasonably assume that fifty-five (55) fatalities will occur in new model automobiles. Mr. Bailey then concludes as follows:

This analysis indicates that for Private Autos it would be worth approximately $2.20 per new model auto to prevent a fuel-fed fire in all accidents.

Since the Bailey memo was issued on June 29, 1973, a Texas jury may reasonably adopt Private Autos' assumption that twelve thousand five hundred (12,500) people have been burned to death in fuel-fed fires in Private Autos automobiles since 1973 since Private Autos chose not to spend the money necessary to initiate designs to prevent fuel-fed fires in accidents such as the tragedy in this case. While we are aware that the best minds in the employ of Private Autos have been utilized to put the best possible spin on the Bailey memo, the concept that "For GM, it would be worth approximately $2.20 per new model auto to prevent a fuel-fed fire in all accidents," will certainly make for interesting discussion in a Texas jury room.

Valid XHTML 1.0 Transitional