Does a vehicle manufacturer owe a duty to design a vehicle with which it is safe to collide? The Illinois Supreme Court said no in the case of an underride accident, where one vehicle rear-ended a truck and proceeded unimpeded under its bed. The decision unleashed an ongoing debate over the concept of “enhanced injury,” where a manufacturer can be liable for defects in its vehicle that cause injuries over and above those that would have occurred from the accident but for a defective design.

Illinois is an outlier state insofar as it does not place a duty on vehicle manufacturers to protect non-occupants who collide with their vehicles. In 1973, the Illinois Supreme Court issued its opinion in Mieher v. Brown, et al., 54 Ill. 2d 539, 301 N.E.2d 307 (Ill. 1973) and held that a vehicle manufacturer does not owe a duty to design a vehicle with which it is safe to collide. In Mieher, the plaintiff brought a wrongful death suit against the driver and manufacturer of a semi-trailer truck that the decedent rear-ended while turning off a highway. The plaintiff alleged that the manufacturer negligently designed the truck because it did not attach underride protection (i.e., a bumper, fender or shield) to the rear of it. The plaintiff claimed that the failure to equip the vehicle with such protection made it unsafe because it allowed the decedent’s vehicle to proceed unimpeded under the other vehicle’s bed. He argued that vehicle manufacturers should foresee that their trucks could be struck from the rear and take necessary steps to prevent injuries resulting from said collisions. The court, however, held that while such underride accidents may be “in a sense, foreseeable,” the failure to equip a vehicle with underride protection did not create an “unreasonable” danger or an unreasonable risk of injury.

The Mieher court made a critical distinction between its holding and other cases where Illinois courts have held that vehicle manufacturers owe a duty to their vehicle’s occupants to manufacture a vehicle in which it is safe to collide. In such cases, the courts have held that a manufacturer can be liable for defects in its vehicle that cause injuries over and above those that would have occurred from the accident but for the defective design. This is commonly referred to as the “enhanced injury,” “second collision” or “crashworthiness” doctrine. In these cases, after the initial impact, occupants of a vehicle sustain enhanced injuries due to alleged defects in the vehicle.

In Larsen v. General Motors Corp., 391 F.2d 497 (8th Cir. 1968), the court held that injury-producing impacts are “foreseeable” and, therefore, a manufacturer has a duty to design its vehicle to avoid subjecting its user to an unreasonable risk of harm. The Mieher court, however, refused to expand the “foreseeability” rule set forth in Larsen to find that a vehicle manufacturer owes a duty to non-occupants of its vehicle. The Mieher court explained that the foreseeability rule was not “intended to bring within the ambit of the defendant’s duty every consequence which might possibly occur.” The Mieher court logically explained that “in retrospect almost nothing is entirely unforeseeable” and, therefore, vehicle manufacturers do not have a duty to design vehicles to prevent injuries to non-occupants who collide with their vehicles. Thus, following Mieher, a plaintiff could bring a claim for enhanced injuries against the manufacturer of the vehicle in which he was riding, but could not bring a claim against the manufacturer of the vehicle with which his vehicle collided.

The First District Illinois Appellate Court expanded the Mieher holding to strict liability claims 21 years later in Beattie v. Lindelof, et al., 262 Ill. App. 3d 372, 633 N.E.2d 1227 (1st Dist. 1994). In Beattie, the court held that the risks to a person colliding with a vehicle are unforeseeable as a matter of law. In that case, the plaintiff brought strict liability claims against the manufacturer and owners of a truck with which the decedent collided. Plaintiff alleged that the defendants’ failure to attach adequate rearend protection to the truck caused the decedent’s fatal injuries. The court held that “if, as Mieher held, the risks to a person colliding with a vehicle are unforeseeable as a matter of law, then no cause of action should exist under either negligence or strict liability.” The court based its holding on how it believed the Illinois Supreme Court would rule if it were to address this issue. The Beattie court was apparently correct in predicting how the Illinois Supreme Court would rule because the Illinois Supreme Court denied the plaintiff’s petition for leave to appeal. See Beattie v. Lindelof, 157 Ill. 2d 495, 642 N.E.2d 1273, 205 Ill. Dec. 156 (1994).

In 2006, the First District again addressed this issue and held that vehicle manufacturers do not owe a duty to manufacture a vehicle that is “compatible” with other vehicles during a collision. Semprini v. Geneal Mot. Corp., 2006 Ill. App. (1st Dist. March 23, 2006). In that case, the defendant’s Chevy Blazer struck and overrode the plaintiff’s car. Plaintiff alleged that the manufacturer negligently designed the Chevy Blazer because it was “incompatible” in height and weight with other vehicles on the roadway in the event of a collision. The First District affirmed summary judgment for the defendant finding that under Mieher and Beattie the defendant did not owe a duty to manufacture a vehicle with which it is safe to collide. Plaintiff argued that Mieher and Beattie were distinguishable because he was not culpable in causing the accident, whereas in Mieher the decedent was culpable in driving her vehicle into the rear of the defendant’s trailer and in Beattie the decedent was intoxicated and speeding when he drove into the rear of the defendant’s truck. The court, however, rejected this argument stating that such a distinction does “not create a duty on a manufacturer to manufacture a compatible vehicle.” The court even stated that “it is not the charge of our courts to act as a national collision compatibility commission.”

The most recent court in Illinois to address this issue was the U.S. Court of Appeals for the Seventh Circuit in Rennert v. Great Dane Ltd. P’ship, 543 F.3d 914, 2008 U.S. App. (7th Cir., September 11, 2008) (applying Illinois law); Rehearing, en banc, denied by Rennert v. Great Dane Ltd. P’ship, 2008 U.S. App. (7th Cir. Ill. Oct. 30, 2008). In that case, the court upheld the dismissal of the plaintiff’s strict liability claim against a vehicle manufacturer. The plaintiff brought suit for his own injuries and the fatal injuries sustained to his wife when their vehicle drove under a manufacturer’s trailer. At impact, the rear underride guard on the truck’s trailer failed, which allowed the plaintiff’s vehicle to underride the trailer. The plaintiff claimed that the trailer was unreasonably dangerous because the underride guard was poorly designed (too weak and too high above the road). Relying on Mieher and Beattie as precedent, the court upheld the dismissal of plaintiff’s complaint. The court rejected the plaintiff’s urging to disregard Mieher and follow the nine states that have recognized such causes of action. The court noted that the Illinois Supreme Court and intermediate appellate courts have uniformly ruled on the duty owed by a vehicle manufacturer to non-occupants.

In Rennert, the court explained that there was no reason to certify the issue to the Illinois Supreme Court because there was no evidence that it was on the verge of changing its Mieher holding. The court noted that the factor that most likely would have prompted the Illinois Supreme Court to change its position on this issue was the National Highway Traffic Safety Administration’s (NHTSA’s) promulgation of regulations for rear underride guards in 1996. See 49 C.F.R. §§ 390.1, 390.5 and 393.86 (1996). These standards set forth rear-impact guard requirements for trailers and semi-trailers manufactured on or after January 26, 1998, that had a gross weight of 10,000 pounds. These requirements were extended by the Federal Highway Administration (FHWA) to all commercial vehicles in 1999.See 64 Fed. Reg. 47,703 (Sept. 1, 1999). These regulations went into effect after Mieher and yet the Illinois Supreme Court has failed to change its position on this issue. The court noted that the comments to the regulations discuss “the tradeoff between excessively firm and excessively yielding rear guards, and they acknowledge that there is no perfect solution given the vast number of variables involved in any given accident.” Thus, the court concluded that it must be assumed the Illinois General Assembly has been aware of Mieher and Beattie but has not acted to overrule them legislatively.

The lesson from Rennert is that the factors and resulting injuries of each and every possible collision are unforeseeable to vehicle manufacturers. This is why the Illinois courts have refused to impose a duty on vehicle manufacturers to design a vehicle with which it is safe to collide even after the promulgation of the federal regulations. The Mieher court acknowledged as much when it stated that the foreseeability rule was not “intended to bring within the ambit of the defendant’s duty every consequence which might possibly occur.” Mieher obviously realized the magnitude of the burden it would place on vehicle manufacturers if such a duty were imposed.

In fact, in looking at the history of the federal regulations, there is evidence that rear underride guards may not even decrease the risk of injury to occupants of vehicles that collide with the rear of tractors and trailers. The NHTSA began to study the rear underride issue in an attempt to improve underride protection for passenger car occupants as far back as 1967. 32 Fed. Reg. 14278 (10/14/67); see also NHTSA Docket No. 1-11. In 1971, however, the NHTSA abandoned its initial efforts after reviewing accident data and evaluating costs. It determined that the benefit from underride guards was not commensurate with the cost of implementing a standard. In fact, subsequent studies showed that rigid underride guards increased deceleration forces on the colliding vehicle and actually increased the risk of injury to occupants. See, e.g., 46 Fed. Reg. 2136, 2138 (1/8/81). As a result, the NHTSA began to perform testing in an effort to identify a guard that would absorb a sufficient amount of energy during impact without increasing deceleration forces. The NHTSA, however, estimated that only between four and fifteen lives per year would be saved even with this new type of guard. 61 Fed. Reg. 2004, 2027 (January 24, 1996). The NHTSA acknowledged that a perfect underride guard could not be implemented given the numerous variables involved in underride accidents, including the size of the vehicles involved, the speed of the vehicles and the angle of the impact. The NHTSA’s findings are consistent with Mieher’s  holding that the failure to equip vehicles with rear underride protection does not create an unreasonable risk of injury to other drivers on the roadway.

In Rennert, the court noted that at least nine other states have allowed such causes of action against vehicle manufacturers. By Rennert’s count, these states include Arkansas, Pennsylvania, Florida, Kentucky, Louisiana, Mississippi, New York, Oregon and Texas. See Harris v. Great Dane Trailers, Inc., 234 F.3d 398 (8th Cir. 2000) (Arkansas); Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777 (3d Cir. 1992) (Pennsylvania); Rivers v. Great Dane Trailers, Inc., 816 F. Supp. 1525 (M.D. Ala. 1993) (Florida law) Worldwide Equipment, Inc., v. Mullins, 11 S.W.3d 50, 46 6 Ky. L. Summary 10 (Ky. Ct. App. 1999); Detillier v. Sullivan, 714 So.2d 244 (La. Ct. App. 1998); Quay v. Crawford, 788 So.2d 76 (Miss. Ct. App. 2001); Garcia v. Rivera, 160 A.D.2d 274, 553 N.Y.S.2d 378 (N.Y. App. Div. 1990); Hagan v. Gemstate Mfg., Inc., 328 Ore. 535, 982 P.2d 1108 (Or. 1999); Great Dane Trailers, Inc. v. Wells, 52 S.W.3d 737 (Tex. 2001).

It is worth noting, however, that the Alabama court in Rivers, applying Florida law, actually appeared to rule consistent with Illinois on this issue. In Rivers, the court held that a manufacturer could not be liable for negligence because it owed no duty to design or manufacture a vehicle that was reasonably safe to run into. Although the court did find that the plaintiff could state a claim for strict liability against the defendant, it stated that the plaintiff could only do so if the underride bumper did not meet the manufacturer’s own design specifications.

In addition, Harris v. Great Dane Trailers, Inc., 234 F.3d 398 (8th Cir. 2000) (Arkansas) and Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777 (3d Cir. 1992) (Pennsylvania), are distinguishable from the Mieher, Beattie and Rennert trilogy because they are conspicuity cases where the alleged missing safety device (reflective tape and illumination) would have prevented the collision altogether. In other words, the alleged missing safety device would have assisted the plaintiff in seeing the trailers and no collision would have occurred. Their fact patterns are equivalent to a product liability action against a vehicle manufacturer for not equipping a vehicle with rear tail lights. Conversely, in Mieher, Beattie and Rennert, the alleged defect (absence of an adequate underride guard) would not have prevented the accidents in the first instance.

Regardless, Illinois has remained an outlier state in holding that vehicle manufacturers do not owe a duty to protect non-occupants who collide with their vehicles. In fact, the case law that has been decided since Mieher has expanded its ruling and explained that the factors involved in each collision and the resulting injuries are unforeseeable to vehicle manufacturers as a matter of law.