NHTSA’s Roof Crush Standard: Opponents Decry as Ineffective and a Smokescreen for Stripping Consumer’s Legal Rights

NASCAR driver Michael McDowell walked away from a violent rollover car crash during a race at the Texas Motor Speedway earlier this year. After skidding into a wall and flipping across the track several times he climbed out of his crashed vehicle unhurt. This complete lack of injury is unimaginable in your typical car, but NASCAR vehicles come equipped with roll bars to prevent roof crush in rollover crashes.

Unfortunately your typical street car doesn’t come equipped with as stringent safety standards as those enforced by NASCAR. Currently the roof crush standard in the United States requires that the roof must be able to withstand pressure of at least 1.5 times the vehicle’s weight. This is the same standard which was established in 1973 and has remained unchanged since its inception. In 2005 Congress proposed that the National Highway Traffic Safety Administration (NHTSA) upgrade its standards in an effort to reduce injuries and fatalities from rollover crashes.

Recently NHTSA came to Congress with a proposal for increasing the weight ratio to 2.5. The minimal increase has drawn a lot of controversy with its opponents calling the increase ineffective. In 2007, over 10,000 people died in rollover crashes. In Illinois there were over 5,000 rollover accidents in just 2006. Yet the NHTSA estimates that its proposed increase would only result in 13 to 44 fewer rollover fatalities a year. Senator Tom Coburn (R-Oklahoma) stated, “If we have a little increase in roof strength that doesn’t result in a major decrease in injuries and fatalities, we’ve done nothing.”

And while the ratio change is minimal and drawn criticism as being ineffective there is another controversy surrounding the bill. Possibly worse yet the NHTSA proposal has a throw in; the agency inserted language which would preempt car accident victims from suing any manufacturer who met the minimum standard.

This kind of preemption language is a newer trend that comes up over and again in many vehicle safety rules created under President Bush’s NHTSA. Senator Mark Pryor (D-Arkansas) and chair of the panel wants NTSHA deputy administrator James Ports to remove the preemption language when finalizing the rule. Otherwise there would be no way for individuals to seek legal redress for harm caused by a product defect.

The new preemption clause flies in the face of the Motor Vehicle Safety Act, one of the federal laws that the NHTSA is responsible for enforcing. Regarding preemption of tort law the Act states:

Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law. 49 U.S.C. 30103(e).

If the new proposal is passed its preemptive language will void the manufacturer’s liability under common law. So while the new proposal fails to effectively increase safety standards, it does effectively take away the consumer’s right to seek relief from the court system.

Some have accused the preemptive language of being part of a bigger ploy to limit Americans’ right to avail the court system for justice. The agency was accused by subcommittee member Senator Tom Coburn for proposing too little in safety and too much with preemption provisions. So far 26 state attorney generals had sent letters to NHTSA protesting preemption language in the proposed changes.

What’s clear is that NHTSA’s proposal is not going to be ready by its July 1 deadline. Whether a proponent or opponent of the proposal, most agree that the NHTSA should take more time to come up with a more relevant roof crush amendment. As Senator Mark Pryor concludes, “It’s more important to get this thing done right, than to get it done fast.” Additional time will not only allow for better and more effective roof crush standards, but also allow time to settle the debate over the preemptive clause hidden in the proposal.

Kreisman Law Offices practices product liability and personal injury law for Cook County and its surrounding areas, including Rosemont, Naperville, Harwood Heights, and La Grange.