| Inadvertent Vehicle Movement
Automatic transmission-equipped vehicles
produced by all manufacturers have been reported to show
inadvertent movement.
[37] For example, in September 1987
twenty-two-year-old Kimberly Isaac of Baton Rouge,
Louisiana, was badly scraped when a 1977 Ford LTD she had
just parked in a grocery store lot backed up, knocking her
over and dragging her in circles. More recently, Steven
Masaki, a twenty-eight-year-old mechanic, was repairing a
1976 Chevrolet van in Hawaii when it suddenly went into
reverse and ran over him. He was left a quadriplegic.
The
Ford Motor Company received a small number of complaints
about the "park-to-reverse" problem in the early 1970s. From
an engineering perspective, a properly maintained
vehicle—regardless of the manufacturer—cannot simply jump
from park to reverse. In 1971 there were 4.6 million Ford
vehicles in use with automatic transmissions that generated
nine park-to-reverse complaints. A routine investigation was
undertaken. Ford engineers identified a total of forty such
complaints from 1968 to 1971, including several accidents.
In
early 1972 the internal Ford investigation was intensified,
but Ford engineers concluded there was no discernible
defect. They suspected that complaints arose when drivers
mispositioned the select lever between park and reverse
before leaving the vehicle. Although Ford engineers
investigated some technical strategies to reduce the problem
of mispositioning, they concluded that none were promising.
Ford decided instead to make the parking instructions in
owners manuals more explicit and remove the letters "ark"
from the word "Park" to encourage drivers to push the shift
lever all the way to the left into park.
On
October 18, 1977, the NHTSA opened an investigation of
selected Ford vehicles equipped with automatic transmissions
to determine whether a defect was present. The investigation
was based on thirty-one reports of inadvertent vehicle
movement in Ford vehicles. Clarence Ditlow, executive
director of the Nader-founded Center for Auto Safety, played
an important role in stimulating this investigation by
drawing the NHTSA's attention to a park-to-reverse accident
experienced by Constance Bartholomew of Falls Church,
Virginia. Bartholomew's 1976 park-to-reverse complaint had
fallen on deaf ears at both Ford and the NHTSA. Although
NHTSA officials and Ditlow were aware of park-to-reverse
complaints and accidents involving non-Ford vehicles, they
believed such incidents were more common in Fords.
In
November 1977 and again in August 1978 Joan Claybrook issued
consumer advisories warning Ford owners of a possible
transmission problem and requesting information about any
incidents. These consumer advisories received massive
publicity. Consider this segment from ABC News, on August
29, 1978:
Max Robinson: While
the airline industry seems to be pleasing its customers,
the nation's automakers aren't having things so easy.
Recalls have become all too common. The Ford Motor
Company, already plagued by the Pinto's accident record,
has yet another headache. Jules Bergman reports:
Jules Bergman: Here is
the problem. You start the car, move into the driveway,
get out to close the garage door after putting it into
park and frequently the slamming of the car door alone
is enough to pop it into reverse, as it did here. The
difference is—I was prepared for the emergency. The 24
people killed and the hundreds injured obviously were
not.
Later
Ford officials discovered that the NHTSA had supplied a
vehicle to Bergman for the show that had several anomalies
that made it unrepresentative of the vehicles under
investigation by the agency.
[38]
Nevertheless, Ford was soon receiving hundreds of complaints
a month about the transmissions in Ford vehicles. Much to
the dismay of Ford officials, the NHTSA's advisories did not
ask for reports of park-to-reverse problems in non-Ford
vehicles. As a result, the NHTSA's data base on com plaints
became biased toward finding more cases of inadvertent
movement in Fords than in non-Fords. Yet Ford's engineers
were not convinced that the park-to-reverse problem was any
worse in Ford vehicles than it was in non-Ford vehicles.
The
complaints, accidents, injuries, and deaths led to lawsuits.
Publicity helped fuel the litigation, especially against
Ford.
As the
NHTSA's investigation was expanded to include all Ford
vehicles produced with automatic transmissions after 1970,
Ford's top management began to sense the potential
dimensions of this problem. The NHTSA was seriously
considering the largest recall action in history (more than
10 million vehicles), an action that could cripple the Ford
Motor Company. In August 1978, at the request of Chairman
Henry Ford II, Vice Chairman Philip Caldwell convened a
meeting of twenty executives and ordered a stepped-up
investigation with an assurance that the transmissions in
future models would be improved.
[39]
On the
heels of this meeting, the Detroit Free Press ran a story,
based on internal Ford memoranda that were submitted to the
NHTSA, that Ford knew of the transmission problem in 1972.
For example, the Minneapolis Tribune of September 4, 1978,
ran the headline "Report Says Ford Firm Knew of Car Flaw in
'72.'[40]
As similar stories were run in newspapers throughout the
country, the liability implications for Ford mushroomed.
Within eighteen months an estimated 1,000 transmission
lawsuits were reportedly pending against Ford.
[41]
In
response to Caldwell's directive, Ford established a
five-city consumer hot line that was designed to encourage
consumers who believed they had experienced a
park-to-reverse incident to call in so that the complaint
vehicle could be inspected promptly. Four independent
engineering groups within Ford reevaluated the design of
Ford's transmission park system and compared it with
competitive designs. In the final analysis, Ford's engineers
could not find a defect, and though several design
alternatives were evaluated that might prevent or reduce the
frequency of driver error, the conclusion was that none of
these designs would be effective. The engineers were
convinced that most complaints occurred after drivers had
mispositioned the shift lever between park and reverse while
thinking the vehicle was in the park position. When the
driver left the vehicle with the shift lever mispositioned,
the lever would sometimes move into park, sometimes remain
mispositioned, and sometimes slide into reverse.
Caldwell became convinced there was no defect, but the
pressure he exerted on this issue caused Ford to attempt a
design modification. A subtle refinement was made in the
transmission design for 1980 and later models that might
reduce the incidence of operator error. The refinement was
intended to make shift-lever movement more pronounced so as
to help drivers notice when they had failed to complete a
shift into park. The design modification was made in the
middle of the 1980 model year (February 1979) and generated
widespread media coverage. At this point, the NHTSA
officials were reporting that post-1970 Ford transmissions
had been linked to 777 accidents, 259 injuries, and 23
deaths.[42]
Meanwhile the defect investigation at the NHTSA languished
because the agency's engineers and contractors could not
identify a specific defect. Many NHTSA officials were
uncomfortable about making a formal defect determination if
they could not explain to Ford's engineers or the public
what the alleged problem was.
Clarence Ditlow was frustrated by the protracted delays and
pressured the NHTSA's leadership to get moving. After the
intensive participation of Joan Claybrook, the NHTSA made an
initial determination in June 1980 that a safety defect
existed involving five specific automatic transmission types
in post-1970 Fords. The agency issued a report describing
what it believed were the causes of the defect. Claybrook
went on national television and explained that she was
convinced the design of the Ford transmission was defective.
The Claybrook decision differed from that of Transport
Canada, which found no defect present in the Ford
transmissions.
At an
August 1980 public meeting called by the NHTSA, Ford
officials vigorously contested the preliminary defect
finding. They were appalled at the quality of the NHTSA's
statistical and engineering arguments, especially the
various defect theories. Ford sued the NHTSA, seeking
preenforcement review of the administrative proceedings.
Normally, the NHTSA administrator makes a final defect
determination. In this case, however. Secretary of
Transportation Neil Goldschmidt withdrew the delegation of
authority from Claybrook. Nevertheless, in a memorandum from
Claybrook to Goldschmidt dated October 3, 1980, she
recommended a final defect determination, a recall of three
of the five transmission types, and a negotiation of a
settlement on the other two transmissions, which she
believed might be corrected with a warning device. She was
concerned about the mounting number of complaints and the
100 fatalities from unexpected vehicle movement that had
been reported to the NHTSA as of June 1980.[43]
Goldschmidt was reportedly "underwhelmed" by the case the
NHTSA had made against the Ford transmissions."
[44]
After the November elections he ordered his attorneys to
settle the issue with Ford. No final defect finding was ever
made.
Under
the terms of an agreement signed on December 30, 1980, the
Department of Transportation and Ford agreed that Ford would
send a letter and an adhesive label to 22 million vehicle
owners. The letter urged owners to place the label on a
conspicuous place in the vehicle, such as on the dashboard
or sun visor. The letter and label reminded owners of three
safety precautions to be followed before leaving the
vehicle: put the vehicle in park, set the parking brake
fully, and shut off the ignition. The Transportation
Department indicated that this action by Ford would
adequately address the safety concerns that had been raised.
After
Ford began to send the letters in April 1981, the department
closed the case on May 3, 1981. Although the Center for Auto
Safety challenged the department's decision not to find a
defect, its decision was ultimately upheld by the federal
courts. [45]
In 1985
the NHTSA also rejected a petition by the Center for Auto
Safety to reopen the issue and recall the 1970-79 Fords. The
NHTSA's 1985 report argued that a further investigation was
unlikely to lead to a defect finding and that the 1981
letters and labels had been effective in reducing the
problem of unexpected vehicle movement. The NHTSA had
studied information submitted by Ford of 19,445 alleged
incidents of inadvertent vehicle movement from 1970 to 1984
and found that the reported rate of incidents in 1970-79
Ford vehicles had declined since the settlement.
In a
June 1986 report the General Accounting Office found flaws
in the NHTSA's analysis of the effects of the letters and
labels. Although the raw number of incidents and the rate of
incident reports per 100,000 vehicles on the road steadily
declined from 1980 through 1984, the NHTSA did not take into
account the effect of publicity on these trends. The GAO
also noted that no such obvious decline was apparent in the
fatality data, although the NHTSA's analysis showed some
indication of reduced fatalities. The GAO concluded that the
small number of fatalities and the possibility of reporting
biases preclude confident interpretation of the trends in
fatality rates.
GAO
investigators were convinced that a real problem existed and
that the NHTSA needed to take further educational measures
to reduce the problem of inadvertent vehicle movement. The
GAO noted that while unexpected vehicle movement fatalities
are not limited to Ford vehicles, the reported fatality rate
in 1970-79 Fords exceeded those reported by other domestic
manufacturers by factors ranging from 2.5 to 4.5.
[46]
The excess may be accounted for in whole or in part by the
adverse publicity about Ford vehicles.
Did the
model year 1980 design modifications reduce the problem of
unexpected movement? Ford officials are skeptical because
the rate of consumer complaints for post-1980 models was no
less than the rate of complaints for the suspect models sold
in the pre-1977 period (before the NHTSA and Ford's
publicity campaigns).
[47] The GAO has pointed out that the
reported fatality rate in 1981-84 models appears to be much
less than that in 1970-79 models, despite the difficulty
with inferring a causal relationship. Although the
persistent decline in reported fatality rates is consistent
with the "safety improvement" hypothesis, the numbers of
reported fatalities are too small for one to make
statistically confident statements.
The
1980 design modifications and the 1981 letters and labels
did not immediately end Ford's legal problems. The Wall
Street Journal reported in April 1988 that "a trickle of
lawsuits in the 1970s became a torrent in the 1980s."
[48]
After leaving the NHTSA, Claybrook helped organize a 1981
conference to train attorneys on how to win transmission
cases against Ford. She believed, the article said, that
some big damage awards against Ford might cause the company
to recall the pre-1980 vehicles.
Ford
mounted a vigorous legal defense of its automatic
transmission-equipped vehicles. The Wall Street Journal
article reported that among the cases that had gone to
trial, Ford had won 22 out of 27 as of April 1988. Hundreds
more have reportedly been settled, usually for undisclosed
amounts of money. The Center for Auto Safety studied about
200 suits and calculated that Ford paid an average of
$175,000 each in settlements or fury awards, a total of
about $35 million for those cases."
[49]
On
occasion Ford loses a big case. A jury in Texas assessed
$4.4 million in damages in one case involving a
fatality—$4.0 million out of the $4.4 million was in
punitive damages. A state appeals court upheld the award,
stating that Ford knew of the dangerous condition but failed
to correct it. Yet Ford triumphed in March 1990 when a
federal judge dismissed a class action suit by plaintiffs
who alleged they were damaged by the loss in value of their
vehicles and were seeking a recall of the pre-1980 Fords.
The
number of pending transmission cases against Ford is
declining as cases are resolved, publicity about the issue
subsides, and more 1970-79 vehicles are retired from the
fleet. In early 1990 Ford reported to the Securities and
Exchange Commission that the aggregate amount of pending
claims in transmission cases was approximately $386 million.
[50]
Ford's favorable track record in these lawsuits suggests
that only a small fraction of the claims reported to the SEC
are genuine liability.
Ford is
not the only manufacturer to face continued liability in
transmission design cases. In February 1988 a jury in
Honolulu awarded $16.5 million ($11 million punitive) to the
mechanic who was paralyzed by his 1976 Chevrolet van, even
though the jury found the plaintiff 40 percent responsible
for the mishap. The Hawaii Supreme Court later vacated the
punitive damage award and affirmed the economic damage
award, while calling for a new trial on the issue of
punitive damages only. The case was subsequently settled for
an undisclosed amount.
In
summary, the long, costly, and complicated inadvertent
vehicle movement case achieved two outcomes that may have
improved safety: the set-dement agreement calling for the
1981 letters and labels and the 1980 design modifications.
The former were clearly induced by regulatory power, al
though their ultimate effectiveness is questionable. The
motivations behind Ford's design change are more complex and
difficult to assess.
The
following factors may have been important: the extent of
customer complaints and the damage to Ford's reputation as a
manufacturer, the likelihood of protracted litigation with
the NHTSA and the possibility of a massive NHTSA recall
order, a large liability risk of unknown magnitude, and
Caldwell's determination to improve the design (even though
no defect may have been present). It seems doubtful that any
of these factors by themselves were necessary to cause the
design modification, and several of the factors may have
been sufficient.
Some
liability and regulatory considerations actually operated to
discourage design modification. Ford recognized that some
people might characterize the design modification as
signaling the existence of a prior defect-Anytime a
manufacturer improves its product, it is subject to the risk
that the improvement will be admissible, directly or
indirectly, in a product liability suit. Further, since Ford
officials were determined to block the NHTSA's defect
investigation, they were also worried that any design
modification would provide ammunition to their critics
within the NHTSA. Ford's decision to make design refinements
before the NHTSA's initial defect determination may be an
indication that the agency's investigation and recall
authority were not the driving factors behind Ford's action.
36. Ford Motor Company v. Mr. and Mr,.
William R. Durrill, 74 S.W. 2d 329 (Tex. App.— Corpus
Christi, 1986).
37. I thank the following persons (or providing useful
information: Clarence Ditlow (Center for Auto Safety),
Richard Manetta (Ford), and James Durkin (GM).
38. Interoffice Memorandum, to R. H. Birney, from Office of
the General Counsel. Ford Motor Company, Oct. 2, 1978.
39. Emshwiller and Camp 1988 , 1,
40. "Report Says Ford Firm Knew of Car Flaw in 1972."
Minneapolis Tribune, Sept. 4, 1978. 10A.
41. Emshwillcr and Camp 1988. 20.
42. "Ford Motor Company Changing Shifty Car Transmissions."
Boston Globe, Feb. 2, 1979, 11.
43. Claybrook 1985, 40.
44. Emshwiller and Camp 1988.
45. Center for Auto Safety, Inc. v. Lewis, 685 F.2d 656
(D.C. Cir. 1982).
46. General Accounting Office 1986.
47. Letter from Helen O. Petrauskas (Ford) to Congressman
Timothy E. Wirth. July 20, 1983.
48. Emshwiller and Camp 1988. 20.
49. "Ford Wins Suit's Dismissal in Case of Alleged Defect,"
Wall Street Journal, Mar. 30. 1990. AI8.
50. Clark 1990. 6.
Related articles:
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Source - New York Times
Bad Transmissions Killed 77, Auto
Safety Group Asserts
An automobile safety group said
today that 77 people had been killed because of a
problem with Ford transmissions in the four years
since a compromise between the Government and Ford
headed off a large-scale recall.
The Center for Auto Safety, in a
letter to Transportation Secretary Elizabeth H.
Dole, disputed assertions by the National Highway
Traffic Safety Administration that the death rate
from such accidents had declined since the 1980
agreement, which called for sending warnings to
owners of more than 20 million Ford, Mercury and
Lincoln cars and trucks made from 1970 to 1979.
The center, founded by Ralph Nader,
the consumer advocate, said there had been 3,500
accidents involving Ford transmissions that slipped
from park to reverse, including those that led to
the 77 deaths. Officials of the Federal agency say
there were 39 deaths from 1981 to 1984.
Clarence Ditlow, the safety
center's president, accused the highway safety
agency of refusing to investigate some reported
deaths and of often taking Ford's word that a
fatality was not related to transmissions.
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