By Myron Levin, FairWarning
Freakish as it may have seemed, the accident that killed 13-month-old Weston Kingsley was hardly unforeseeable.
On the day he died in February 2014, he was buckled into his car seat behind his father, Jonathon Kingsley, who was at the wheel of the family minivan. Jonathon and his wife, Kelsey, of Old Fort, N.C., were driving the older of their two boys to Sunday school.
As they waited to turn left into the church parking lot, a pickup rammed their 2003 Dodge Caravan from behind, according to court papers. The impact caused Jonathon Kingsley’s seat to collapse backward. Weston was bashed in the head and his skull was fractured–by the seatback, the headrest or Jonathon’s head. The toddler died a few hours later.
For decades, safety regulators and the auto industry have known that many seats can fail in moderate- to high-speed rear-end crashes. When the seat collapses, the driver or front seat passenger can slide rearward out of the seat belt and be launched headfirst into the backseat, badly injuring a backseat passenger or being paralyzed or killed himself.
Since the 1990s, automakers and the National Highway Traffic Safety Administration have instructed parents to put young children in the backseat to avoid injury from an inflating airbag. But critics say they have failed to provide another crucial piece of information: Due to the risk of seat failure in a rear collision, the safest place for a child is behind an unoccupied seat, or else behind the lightest person in the front.
NHTSA officials “are the safety experts,” said Clarence Ditlow, executive director of the Center for Auto Safety, a nonprofit watchdog group. “They know the seatbacks have been collapsing for years. They know that if you put a kid behind an occupied seat, you’ve got a problem. And they’ve never shared that expertise with the public.’’
On March 9 the center filed a petition urging NHTSA to modify its child seating recommendations, and to require automakers to state in owner’s manuals that, whenever possible, children should sit behind an empty front seat or behind the lightest person. Such warnings are essential, the petition said, because of NHTSA’s decades-long failure to require sturdier seats that perform better in rear crashes. In a letter to NHTSA Administrator Mark R. Rosekind, the group also urged the agency to act favorably on a separate petition, filed last September, to upgrade its seatback standard. It’s uncertain when NHTSA will act on the petitions.
Adopted in 1967, the federal seat standard is nearly a half-century old. To support their view that the standard is a joke, safety engineers have run tests showing that lawn and banquet chairs, and even cardboard seats, are sturdy enough to meet the strength requirements. NHTSA officials themselves have repeatedly acknowledged that the standard is outdated, but say their hands are tied.
Blind spot in crash reporting
According to the agency, injuries and deaths involving seat failures appear to be rare. Therefore, there is little hard data to demonstrate that the benefits of a stronger standard would outweigh the costs. In the meantime, NHTSA spokesman Gordon Trowbridge said in an email, the agency is taking other steps, such as reflecting in its safety ratings whether vehicles have automatic emergency braking—a feature that, he said, can prevent some “rear impact crashes from occurring in the first place.” The agency has also touted a voluntary pledge by automakers to make automatic braking a standard feature in nearly all new vehicles by September 2022.
But the Center for Auto Safety says that injuries and deaths linked to flawed seats are more common than the agency thinks, and are overlooked in crash reporting. It noted that the federal database called FARS (Fatality Analysis Reporting System) counts deaths in rear collisions, but not whether they involved seat failure.
The group included in its filing a list of 64 lawsuits involving deaths and severe injuries linked to seat collapse, including 22 in which the victims were children. And it submitted an analysis of FARS data showing that since 2001, an average of 50 children a year riding in the backseat have been killed in rear collisions. It called on NHTSA to investigate these cases to determine the role of seat collapse. “Even if only a minority were killed as a consequence of front seat failure,” the group’s letter said, “the number is too high.’’
Experts say that seats with integrated safety belts–that is, restraints built into the seat–tend to be more robust than those with belts attached to the vehicle’s side pillar. They also say that Mercedes-Benz, Volvo and BMW models offer some of the stronger seats.
Calls to strengthen the seat standard date at least to the 1970s. In 1989, separate petitions calling for an upgrade were filed by engineers Ken Saczalski and Alan Cantor, who also joined with colleagues at his engineering firm ARCCA Inc. last September to petition NHTSA again.
In 1999, Robert Shelton, then head of safety standards at NHTSA, told the Los Angeles Times that the agency knew children had been injured or killed by collapsing seats. “I know it happens. … I’m not debating that there is a serious need to look at” the standard, he said.
In a 2000 interview, NHTSA’s then-administrator Sue Bailey told CBS News: “It’s not appropriate that we are working off a 30-year-old standard.”
Powerless to act
In 2003, NHTSA researchers reported that tests had shown seats collapsing in 30 miles per hour rear impacts. “Fatalities and injuries to rear child occupants due to seat back collapse … have also been reported,’’ their paper said. “This is especially of concern since NHTSA recommends to the public that children of age 12 and under should be placed in the rear seat.”
Even so, NHTSA threw up its hands, stating in 2004 that it was essentially powerless to act. “Additional research and data analysis are needed to allow an informed decision on a rulemaking action in this area,” according to a Federal Register notice. “In comparison to other crash modes, there is considerably less data available to assess the potential benefits of upgrading” the standard.
In their September petition, Cantor and his colleagues said the standard “does not address the seat strength required in even insignificant rear-end crashes.” They noted that automakers have moved beyond the bare minimum, with the weaker seats on the market testing at about 2.5 times the required strength. But that still is “well below the strength needed’’ to withstand even moderate-speed crashes.
“Today, a number of manufacturers have developed stronger seats while others still have the older style of weak and collapsing seats in their vehicles,” the petition said. As a result, “the motoring public has no way of knowing what type of seat they are getting and, therefore, no knowledge of how it will perform in a rear-end crash. It is precisely because of these types of potentially dangerous inconsistences and to maintain a level playing field amongst competing manufacturers” that the standard “needs to be revised and improved.”
Cantor, whose business includes testifying for injured plaintiffs, told FairWarning that “nothing would make me happier than never seeing another seat failure case.” Each one “involves tremendous suffering by a family. Somebody’s paralyzed for life, somebody’s brain-injured, somebody’s child is injured, and I just want to see it stopped,” he said.
“It was time to stop it in 1989 when I first submitted the petition, and it’s certainly time to stop it now.’’
Activity in the courts
While NHTSA has been immovable, there has been action in the courts, with some big damage awards against auto makers and seat manufacturers.
Last month, a San Antonio jury socked Volkswagen AG’s Audi unit with damages of $124 million for a child severely injured in a seat collapse. Jesse Rivera Jr., who is now 11, suffered brain damage and partial paralysis in December 2012, when his father’s 2005 Audi was rear-ended while stopped behind a school bus. The driver’s seat collapsed, the child’s father fell backwards, and his head struck Jesse’s head. Audi claimed that Jesse’s father was not wearing his seat belt and that the Jesse was not in a car seat. But the jury determined that Audi was 55 percent responsible for the child’s injuries.
“Audi is not pleased with the verdict and we will evaluate the next steps to be taken,” said company spokesman Mark Clothier. “We feel very sorry for the father and his son for what happened.’’
After the death of their son, the Kingsleys filed suit last May in state court in North Carolina against the maker of the Caravan, FCA US LLC (the company long known as Chrysler), and against William Tyler Hoover, the driver of the pickup that rear-ended them at an estimated 45 miles per hour.
The Kingsleys declined an interview request, but in a statement included in the police report, Kelsey Kingsley, 30, recalled what happened. She said that just before the crash, she looked back at Weston “smiling and laughing.’’ Then, suddenly, she “felt like a bomb had exploded,” and saw flying glass. Both front seats collapsed, though no one but Weston was badly hurt.
“I looked at my baby he wasn’t moving and I saw his face it was flattened,” she said, according to the police report. “Then I saw blood in his ears and his beautiful face flat favoring one side.”
In court papers FCA denied liability and blamed Hoover for the toddler’s death. “FCA US extends its deepest sympathies to those affected by this tragic crash,” said company spokesman Michael Palese in an email to FairWarning. “The 2003 Dodge Grand Caravan meets or exceeds all applicable federal safety standards and has an excellent safety record.”
Not a mystery
Maxximus Sales was also a backseat passenger when he died in a rear collision in April 2014. Four-year-old Maxx was in his car seat behind his mother, Kayla Davidson, as she waited at a red light on their way home in Memphis. A car smashed into the rear of their Chevy Malibu and, according to court papers, three things happened at once: Maxx was pushed forward by the impact; Davidson’s seat bent backward towards Maxx; and her foot struck the seat adjustment lever, causing the seat to slide back. Maxx was bashed in the face by the headrest, causing multiple fractures and brain trauma. He died in the hospital three days later.
Behind the unoccupied front passenger seat was the empty car seat of Maxx’s infant brother, who was not with them that day. Had Maxx been seated there, there’s no doubt he would have survived, said Davidson’s lawyer Patrick Ardis. “GM wanted to blame everything on the violence of the crash,” he said. “You have to build and anticipate that this car is going to get hit from behind. It’s not a mystery,’’ Ardis said. All they “had to do was to say, ‘Do the best you can to avoid putting a child behind an occupied seat.’
Davidson’s lawsuit against GM, seat manufacturer Faurecia, and the estate of the driver who rear-ended her and died in the crash, recently ended in a confidential settlement. GM declined a request for comment.
Davidson, 24, said she plans to build a public playground in memory of her son. She described Maxx as a bright, loving and energetic child who was walking at nine months and could write his name at age 3. “Just an all-around great kid,” she said. “We pretty much did everything together. He was really my best friend.”
When something like this happens, “you don’t understand it,” Davidson said. “At one point, I had pretty much become obsessed with researching the afterlife. … I wanted to buy every book that talked about the afterlife. … It was just an uphill battle, and it is still is, but I’ve just learned to manage it better,” she said. “I have a surviving child that I just can’t let down.’’
Parade of sorrows
Front seat occupants often are the victims in seat failure cases.
Dzemila Heco was stopped at a red light near her home in Essex, Vt., on Aug. 4, 2007, when her Dodge Neon was rear-ended by a car traveling about 40 miles per hour, a police report said. The seat failed and Heco, then 43, was hurled into the backseat, suffering spinal injuries that left her a quadriplegic.
For Heco and her sons, Kenan and Emir, her catastrophic injury was the latest in a string of extreme sorrows. In the early 1990s, amid the blood and chaos of civil war in their native Bosnia, Dzemila lost her husband, and her sons their father, in a grenade attack. When Kenan was about 7, he witnessed the death of a playmate at the hands of a sniper. After escaping through a tunnel and reaching Croatia, the family eventually emigrated to Vermont, where they had a cousin.
Dzemila worked three jobs to support her sons, including one at a restaurant she started with family members, Kenan Heco said. Both sons were in college at the time of her devastating accident, and the family had no way to pay for adequate care. So Kenan dropped out of college and served as his mother’s primary caregiver, bathing her and handling other bodily needs, and getting up every night to turn her in bed to prevent pressure sores.
When you see someone you love in need, “then you really realize how much you love them,’’ he said. “It sounds weird saying it, but I’m very happy I get to show my love for my mom.”
They filed a lawsuit that was complicated by the Chrysler bankruptcy, but they settled with the dealership that sold the Neon, then went to trial against the seat maker, Johnson Controls Inc. According to evidence presented by the Heco lawyers, the company had a patent on an improved seat that would have cost just over $7 more and would have held up in the crash. In June 2013, the jury returned a verdict of $43.1 million—described as the largest damage award in Vermont history—though after an appeal the case settled for an undisclosed sum.
This story reported by FairWarning (www.fairwarning.org), a nonprofit news organization that focuses on public health, safety and environmental issues.