In a recent strict liability case, Collins v. Navistar, 214 Cal.App.4th 1486 (2013), court held that it is possible for a vehicle manufacturer to foresee an event, with an effective chance of .003―.009 per billion vehicle-miles.
Subject case involves a truck, manufactured by Navistar in 1994, model Navistar 8200. The truck was going on a highway, while a 15 y.o. kid was throwing pieces of concrete from the overhead. He threw a 2.5 pound piece on this truck, which pierced the windshield and struck the driver in the head.
The court reasoned that the manufacturer could and should foresee such accident, because: (a) it is the manner of occurrence of an accident required to be foreseeable, not its precise nature, (b) under the existing standards, "FMVSS 205 requirement that windshields be strong enough to withstand penetration by a five-pound ball dropped from 12 feet" (Collins, Id. at 19, italics mine); (c) a potentially better technology existed as an alternative ("glass-plastic windshield glazing"), evidence of which was not let in at the trial.
I found all three of these points evidently flawed.
On foreseeability.
The main portion of this decision relates to the discussion, whether a 2.5 piece of concrete falling off the sky on a windshield should be foreseeable by the windshield manufacturer. I was surprised to learn that it is.
From the expert's testimony, we learn that "the risk of a fatality where the first harmful event was a thrown or falling object was .003 per billion vehicle miles for a combination truck, .004 for a single unit truck, .009 for a light truck, and .006 for a passenger car. Her calculations for a fatality or a major injury from a thrown or falling object were .004 per billion vehicle miles for a combination truck, .009 for a single unit truck, .034 for a light truck, and .046 for passenger cars."
Since the subject vehicle was not a light truck or a passenger car, let us remain in the limits of .003 through .009 per billion vehicle miles. This equals to 3-to-9 accidents for each thousand of billions of vehicle-miles. If we average it in the middle (6 accidents), we will arrive to a frequency of one accident per 166,666,666,666.6667 vehicle miles.
On the other hand, I searched for a statistic and found an estimate that "over the road" truck gets on average 130,000 miles per year. Let's double it to 260,000 miles, for being sure we don't have an underestimate. To drive the expected amount of miles for 1 accident (166+ billion miles), a vehicle has to drive for ... 641,025 years. So that's the scale of a remoteness of a chance that a truck gets hit with a rock on a highway, which either causes fatality or a first harmful event, or causes major injury. Not to say that human predecessors did not have any technology six hundred thousand years ago, and, yes, they were probably very skillful in throwing stones back then, but it was in the early years of the Middle Pleistocene Age, a long way before conceiving an idea of a truck.
A more realistic, but still trifling picture arises from a "horizontal" perspective: Navistar produced 205,400 heavy trucks in 1994 (Navistar's report, p.3). Model 8200 is considered a "heavy truck" model (Id. at 6). If all these trucks were 8200 models, all were sold, each accumulated 260K miles per year, they would together be driven through 53,404,000,000 miles in one year. At a rate of one accident per 166,666,666,666.6667 vehicle-miles, it will take the entire year-worth fleet of trucks to drive consistently for 3.12 years to get within the sure range of one accident's probability. I wasn't able to find statistics for a windshield's average life span, but a 3-year term looks reasonable to me (mine always gets cracked within 3 years and so is replaced, regardless what car I drive, and I don't even drive non-stop).
What happened with the De Minimis Non Curat Lex, the principle instructing the courts not be concerned with trifles? Even if we apply the limitation that the rule "is concerned with harm rather than with force" (Washington v. Hively, 695 F.3d 641, 643 (7th Cir. Wis. 2012)), the chance of incurring such harm still looks beyond minimal. It may be looked upon differently in a criminal case, such as Hively, but from the subject tort's prospective, where the foreseeability of an event is a "yes-or-no" basis for finding of the defendant's strict liability, the chance of an accident seems to be trifling.
FMVSS 205's 5-pound ball requirement.
I don't know, from how high our 2.5 pound stone was dropped, since it was a highway overhead, but most likely it was higher than 12 feet. I also don't know if the subject piece was dropped or thrown, because the curious youth, who did the "test" on the subject truck, could easily add speed to the piece, thus increasing its velocity and damaging power. But let's assume it was only dropped and only from 12 feet high.
First, was it mandatory or at least predictable for a 1994 truck to be ready to withstand the drop? The FMVSS 205 requirements arrived two years later than the truck was manufactured, (the underlying standard is dated 1996: "ANSI/ SAE Z26.1–1996"). It became mandatory only for vehicles manufactured since 2006, 12 years later than the subject tractor. For earlier models it still remains optional. Standard No. 205, S3(b).
Second, was it actually measured against a 5-pound ball? Because if it is, ours then looks entirely within the predicted scope, being half the weight of the tested one. Intriguing, but I did not find any tests of dropping a 5-pound ball. I found only a test of dropping 0.5-pound ball, starting from the height of 10 feet. ("Fracture Test No. 7"). Looks like a typo making the test ball 10 times bigger, while it was 5 times smaller than the piece thrown.
Glazing technology.
I looked up the glazing technology. NHTSA Evaluation Report only came out in November of 1993 (the subject truck was manufactured in 1994), and in that report, NHTSA acknowledged that General Motors tried the technology for 3 years, but "discontinued all use of glass-plastic windshields in its regular production vehicles. GM stated that the reason for discontinuing installation of the windshield was because of its high replacement costs for customers and high warranty costs for the company. It is estimated that approximately 210,000 regular production GM cars with glass-plastic windshields were produced before the company halted use of the windshield. No other car companies, domestic or import, have since equipped any of their U. S. marketed regular production vehicles with glass-plastic glazing." I always thought that factors like higher cost and industry-wide customs and standards reflect on the finding of manufacturer's strict liability, but it appears that the procedural errors at trial prevailed over the underlying facts in this court's decision.
The judgment was reversed and the case remanded for further proceedings (about a half of the decision addresses its procedural issues, mostly involving presentation of evidence and jury instructions). That, in itself, is not the subject of this post. I think this case's contribution to the strict liability common law is that the event, occurring with a frequency of once in 641 thousand years, may still be held foreseeable, and a manufacturer liable, even if it so happens with a product manufactured 19 years before the decision. Respect to the appellate attorneys who made this case turned around and returned to the trial court―a demonstration of a high level of skill, indeed!
Subject case involves a truck, manufactured by Navistar in 1994, model Navistar 8200. The truck was going on a highway, while a 15 y.o. kid was throwing pieces of concrete from the overhead. He threw a 2.5 pound piece on this truck, which pierced the windshield and struck the driver in the head.
The court reasoned that the manufacturer could and should foresee such accident, because: (a) it is the manner of occurrence of an accident required to be foreseeable, not its precise nature, (b) under the existing standards, "FMVSS 205 requirement that windshields be strong enough to withstand penetration by a five-pound ball dropped from 12 feet" (Collins, Id. at 19, italics mine); (c) a potentially better technology existed as an alternative ("glass-plastic windshield glazing"), evidence of which was not let in at the trial.
I found all three of these points evidently flawed.
On foreseeability.
The main portion of this decision relates to the discussion, whether a 2.5 piece of concrete falling off the sky on a windshield should be foreseeable by the windshield manufacturer. I was surprised to learn that it is.
From the expert's testimony, we learn that "the risk of a fatality where the first harmful event was a thrown or falling object was .003 per billion vehicle miles for a combination truck, .004 for a single unit truck, .009 for a light truck, and .006 for a passenger car. Her calculations for a fatality or a major injury from a thrown or falling object were .004 per billion vehicle miles for a combination truck, .009 for a single unit truck, .034 for a light truck, and .046 for passenger cars."
Since the subject vehicle was not a light truck or a passenger car, let us remain in the limits of .003 through .009 per billion vehicle miles. This equals to 3-to-9 accidents for each thousand of billions of vehicle-miles. If we average it in the middle (6 accidents), we will arrive to a frequency of one accident per 166,666,666,666.6667 vehicle miles.
On the other hand, I searched for a statistic and found an estimate that "over the road" truck gets on average 130,000 miles per year. Let's double it to 260,000 miles, for being sure we don't have an underestimate. To drive the expected amount of miles for 1 accident (166+ billion miles), a vehicle has to drive for ... 641,025 years. So that's the scale of a remoteness of a chance that a truck gets hit with a rock on a highway, which either causes fatality or a first harmful event, or causes major injury. Not to say that human predecessors did not have any technology six hundred thousand years ago, and, yes, they were probably very skillful in throwing stones back then, but it was in the early years of the Middle Pleistocene Age, a long way before conceiving an idea of a truck.
A more realistic, but still trifling picture arises from a "horizontal" perspective: Navistar produced 205,400 heavy trucks in 1994 (Navistar's report, p.3). Model 8200 is considered a "heavy truck" model (Id. at 6). If all these trucks were 8200 models, all were sold, each accumulated 260K miles per year, they would together be driven through 53,404,000,000 miles in one year. At a rate of one accident per 166,666,666,666.6667 vehicle-miles, it will take the entire year-worth fleet of trucks to drive consistently for 3.12 years to get within the sure range of one accident's probability. I wasn't able to find statistics for a windshield's average life span, but a 3-year term looks reasonable to me (mine always gets cracked within 3 years and so is replaced, regardless what car I drive, and I don't even drive non-stop).
What happened with the De Minimis Non Curat Lex, the principle instructing the courts not be concerned with trifles? Even if we apply the limitation that the rule "is concerned with harm rather than with force" (Washington v. Hively, 695 F.3d 641, 643 (7th Cir. Wis. 2012)), the chance of incurring such harm still looks beyond minimal. It may be looked upon differently in a criminal case, such as Hively, but from the subject tort's prospective, where the foreseeability of an event is a "yes-or-no" basis for finding of the defendant's strict liability, the chance of an accident seems to be trifling.
FMVSS 205's 5-pound ball requirement.
I don't know, from how high our 2.5 pound stone was dropped, since it was a highway overhead, but most likely it was higher than 12 feet. I also don't know if the subject piece was dropped or thrown, because the curious youth, who did the "test" on the subject truck, could easily add speed to the piece, thus increasing its velocity and damaging power. But let's assume it was only dropped and only from 12 feet high.
First, was it mandatory or at least predictable for a 1994 truck to be ready to withstand the drop? The FMVSS 205 requirements arrived two years later than the truck was manufactured, (the underlying standard is dated 1996: "ANSI/ SAE Z26.1–1996"). It became mandatory only for vehicles manufactured since 2006, 12 years later than the subject tractor. For earlier models it still remains optional. Standard No. 205, S3(b).
Second, was it actually measured against a 5-pound ball? Because if it is, ours then looks entirely within the predicted scope, being half the weight of the tested one. Intriguing, but I did not find any tests of dropping a 5-pound ball. I found only a test of dropping 0.5-pound ball, starting from the height of 10 feet. ("Fracture Test No. 7"). Looks like a typo making the test ball 10 times bigger, while it was 5 times smaller than the piece thrown.
Glazing technology.
I looked up the glazing technology. NHTSA Evaluation Report only came out in November of 1993 (the subject truck was manufactured in 1994), and in that report, NHTSA acknowledged that General Motors tried the technology for 3 years, but "discontinued all use of glass-plastic windshields in its regular production vehicles. GM stated that the reason for discontinuing installation of the windshield was because of its high replacement costs for customers and high warranty costs for the company. It is estimated that approximately 210,000 regular production GM cars with glass-plastic windshields were produced before the company halted use of the windshield. No other car companies, domestic or import, have since equipped any of their U. S. marketed regular production vehicles with glass-plastic glazing." I always thought that factors like higher cost and industry-wide customs and standards reflect on the finding of manufacturer's strict liability, but it appears that the procedural errors at trial prevailed over the underlying facts in this court's decision.
The judgment was reversed and the case remanded for further proceedings (about a half of the decision addresses its procedural issues, mostly involving presentation of evidence and jury instructions). That, in itself, is not the subject of this post. I think this case's contribution to the strict liability common law is that the event, occurring with a frequency of once in 641 thousand years, may still be held foreseeable, and a manufacturer liable, even if it so happens with a product manufactured 19 years before the decision. Respect to the appellate attorneys who made this case turned around and returned to the trial court―a demonstration of a high level of skill, indeed!
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