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Patrick Booth
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Building a Case Alleging Failure to Install Side Air Bags

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The Insurance Institute for Highway Safety (IIHS) states that in 2009, a total of 27 percent of passenger vehicle occupant deaths—nearly a third—were caused by side-impact crashes. "Such crashes can be particularly deadly because the sides of vehicles have relatively little space to absorb energy and shield occupants," the IIHS said. The National Highway Traffic Safety Administration (NHTSA) states that side air bags with head protection reduce fatality risks in side impacts by an estimated 24 percent for the nearside occupant.

Attorneys fighting for clients and their families who have suffered injuries or wrongful death in side-impact crashes may have a potential claim against the car manufacturer for failure to install side air bags.

Types of Side Air Bags

A side-impact crash is defined as one car colliding into the side of another. A study published in the Annals of Emergency Medicine noted that traumatic head injuries are more than twice as likely in vehicles hit from the side.

Two types of side air bags have been installed in newer cars, including the torso and head-protecting types. Torso-only air bags deploy from the seat or door, and have been found, so far, to provide some protection. Head-protecting air bags have more scientific evidence behind their effectiveness, since they deploy from the roof-rail and help reduce the risk of serious head injuries.

Though head-protecting bags were initially designed to protect drivers and passengers from side impacts, they now also deploy in some SUVs to protect from rollover-induced injuries. Ford was the first to add rollover deployment in 2002 on the Explorer and Mercury Mountaineer.

Building a Case

To build a strong case against a car manufacture, the first step is to obtain the vehicle’s make and model year, as the newer the vehicle, the more likely you can make a failure-to-install claim stick. Guidelines for when manufacturers should have begun using side air bags may include BMW’s first installment of head-protecting side air bags in 1998, and Ford’s 2002 installment of rollover deployment in 2002.

Next, medical records providing data on the location and extent of the injuries, as well as the cause of death (if applicable), can help you establish whether a side air bag would have helped prevent or reduce the risk of such injuries.

The vehicle itself is an important source of information, as are photographs of the accident, police reports, information from emergency responders, and witness testimony. Experts may be helpful in investigating the vehicle for signs of how the injuries occurred, while air bag experts can support the notion that an air bag could have been installed in the vehicle and would have deployed if present.

Types of Claims

Victims of side impact crashes may be able to bring counts of negligence or strict liability, depending on the age of the vehicle involved. Those with older vehicles are generally advised to use strict liability, since the argument can be made that scientific knowledge of the risk of side impact was limited when the vehicle was built, and that few, if any, cars available at that time had side air bags. Plaintiffs with newer vehicles may claim negligence.

Evidence showing communication between the auto manufacturer and side air bag suppliers, cost of incorporating such air bags, and discussions about consideration of adding side air bags as a standard or optional add-on, can be critical in showing the manufacturer’s intent when deciding not to add the air bags.

The IIHS reports that in 2012, nearly 84 percent of cars came equipped with standard head-protection driver-side air bags, up from only 38 percent in 2006. Today’s juries will be more likely than ever to agree that such equipment should be standard in all vehicles for both drivers and passengers.