General Publications February 2, 2015

“Pumping the Brakes on Unintended Acceleration Allegations,” Law360, February 2, 2015.

Extracted from Law360

In Weaver v. PACCAR, a recent products liability case in the Southern District of Georgia, a truck driver mistakenly started the engine while his vehicle was in gear and rolled over a mechanic who was working underneath the vehicle. Although the mechanic claimed that the accident was caused by a design defect in the truck, the court granted summary judgment after finding that the driver was at fault for negligently starting the engine. While “[d]efendant-manufacturers may be expected to foresee negligence born of ignorance,” the court noted that “they are not expected to foresee negligence from distraction, inattentiveness, or absent-mindedness. They are not charged with building commercial trucks for those who do not think, any more than cars are to be made for sleeping drivers.”

The same should hold true for auto manufacturers in cases involving “sudden” or “unintended” acceleration, which has been a household phrase since at least 1986 following an episode of 60 Minutes titled “Out of Control” that portrayed a car as accelerating on its own. The episode detailed the story of a mother who ran over her six year-old son when her car suddenly accelerated even though her foot was allegedly on the brake. However, the investigating police officer and witnesses at the scene later testified at trial that the distraught mother admitted after the accident that her foot had slipped off the brake. Audi AG, a division of Volkswagen AG, was ultimately exonerated of building defective cars, but not before sales of all Audi vehicles — not just the 5000 model — fell by 84 percent. The auto manufacturer took some significant time to recover economically even though numerous studies by government agencies in the United States, Canada and Japan in the late 1980s and early 1990s confirmed that there were no defects in the Audi 5000’s engine or transmission; rather, accidents such as those discussed during the 60 Minutes episode were caused by driver error or pedal misapplication. But what about the television footage that so clearly showed the Audi 5000 accelerating on its own? A consultant for 60 Minutes eventually acknowledged that in order to get the car to suddenly accelerate during taping, he had drilled a hole and pumped air into its transmission.

Undeterred by the findings that there was nothing wrong mechanically with the Audi 5000, lawyers began to bring claims for pedal misdesign, alleging that Audi placed the brake and accelerator pedals so close together that inattentive drivers were confusing the two. More than 25 years later, some of these unintended acceleration cases are still pending against Audi — but courts are starting to lose their patience. On Dec. 8, 2014, the Illinois Appeals Court First Division affirmed the grant of summary judgment to Audi in a purported class action that was filed in 1987 because the plaintiffs did not show actual defects in the vehicles — just that they had the propensity to experience unintended acceleration.

In this case, Paul Perona et al. v. Volkswagen of America Inc., purchasers of certain Audi 5000 models claimed that the auto manufacturer violated the Illinois Consumer Fraud and Deceptive Business Practices Act by withholding information from the public about the vehicles’ known defects. The plaintiffs claimed as damages the lost resale value of their cars due to the 513 car accidents, 271 injuries and five deaths that allegedly resulted from the Audi 5000 “accelerat[ing] from a stopped position to full throttle at times when the automobile was at a standstill or the driver had his or her foot on the brake pedal.” According to the sixth amended complaint, this unintended acceleration was caused by a laundry list of defects in the Audi 5000’s design or production: (i) the lever and cable system linking the transmission shift lever, (ii) the brake and gas pedal placement and separation, (iii) the cruise control system, and (iv) the shift lock system.

The trial court granted summary judgment in favor of Audi and Volkswagen and granted their motion to strike the affidavits of the plaintiffs’ two expert witnesses. The trial court also denied the plaintiffs’ cross motion for summary judgment on the Consumer Fraud Act claim. The appellate court upheld each of these decisions. Not only did the plaintiffs fail to plead the propensity-to-accelerate theory in any of the six complaints they had filed over the past 25 years, but they were also not entitled to summary judgment because investigations of the Audi 5000 ruled out all causes for the unintended acceleration other than driver error or pedal misapplication. Audi also publicly acknowledged that it had received complaints from purchasers of the Audi 5000 about problems with unintended acceleration. Additionally, Audi issued several safety-related recalls for the vehicles in order to make adjustments that would prevent drivers from confusing the brake and accelerator pedals.

The appellate court also confirmed that summary judgment was properly granted to Audi because of what has been known all along despite the tactics employed to obtain video footage: there was no actual defect in the design or manufacture of the Audi 5000. The plaintiffs had abandoned any claims of defects in the lever and cable and cruise control systems during the course of the long discovery period. In addition, even if their experts’ testimony had been allowed, the plaintiffs presented no evidence to support their claims of alleged defects in the Audi 5000’s pedal placement and shift lock system.

Other auto manufacturers have faced similar claims regarding the alleged tendency of their vehicles to suddenly accelerate. Although the fact that cars accelerate when drivers step on the accelerator does not boost television ratings or jury verdicts, and driver error is understandably hard to accept in a case with serious damages, auto manufacturers cannot be held liable for the distraction or inattentiveness of those who purchase their products. Therefore, by holding that plaintiffs must specifically plead and prove actual defects in a vehicle and not just that the vehicle has the propensity to be defective, the Perona decision is an important tool in defending unintended acceleration litigation and keeping it from going “out of control.”

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