The Faces of the Future Seminar

KEENAN's KIDS FOUNDATION Atlanta, Georgia, May 13 - 14, 1998

Be a Better Lawyer for Children

by

Robert S. Bennett

What are ATV's?

All Terrain Vehicles, referred to as ATV's, are small gasoline engine-powered recreational cycles with either three or four wheels that weigh between 200 and 500 pounds. They ride on large, balloon-like low pressurized tires, and the sports models can top-out at 50 miles per hour. ATV's have large, elongated seats that allow "driver-active" involvement with the vehicle, and they have handlebars for steering. These vehicles have a short wheel base relative to the width of the axle, and a high center of gravity. There is a great variety in the types and models sold.

Honda first developed the ATV by taking spare motorcycle parts to an outdoor area in Japan in an attempt to create a vehicle which would compete with snowmobiles in the United States. American Honda wanted a motorized vehicle to sell, and by 1970 the U.S. 90 was introduced. From their first introduction, the ATV industry targeted the "nicest people" as potential consumers - children and those under 20.

The three-wheeled ATV's look like large tricycles, and their appearance of safety gave parents and children a false security that the vehicles could go anywhere at any speed. Further, the industry's massive advertising promoted this perception. According to Professor Sherwood Menkes, former Chairman of the Department of Mechanical Engineering at the College of the City of New York, the ATV makes the transition from stability to instability "practically instantaneously," with disastrous results.

History of Death and Destruction

Growing from sales of a few hundred, by 1987 the ATV industry had sold over 2.5 million vehicles, and today there are over 3.7 million in use. Along with the increase in sales was an increase in the number of catastrophic injuries. According to the United States Consumer Product Safety Commission ("CPSC") statistics, over 340,000 hospital-emergency-room treated injuries had been associated with ATV's by 1987. During the same time period, over 1,000 deaths were associated with ATV's. Almost half of these deaths were of children under 16 years of age and approximately 20 percent were of children under 12 and younger.

Blame for these deaths and injuries should be fixed, in part, on the aggressive marketing program that Honda and the three other Japanese manufacturers (Kawasaki, Suzuki and Yamaha) undertook. Brochures, radio announcements, and TV spots all proclaimed that the vehicles were "easy enough for the girls to ride" and that they were great "family fun", that everyone from the smallest tyke to Dad could ride. Other ads depicted the vehicles as safe and able to drive anywhere with little effort over all terrains. In advertising its Honda ATC 70, American Honda approved such catchy slogans as:

Fun to Grow on

"The Honda ATC 70 is built just for youngsters who enjoy their fun on the go. And that's the reason parents have valued the ATC 70 as the best way to introduce their sons and daughters to three-wheeling."

According to the CPSC, from the time the Commission started receiving reports of injuries and deaths associated with ATV's in 1982, an estimated 1,191,000 persons have been injured due to these vehicles and nearly 3,500 deaths are associated with ATV's. While it is true that the number of yearly deaths have declined from a high in 1986 of 347 to an average of 240 in recent years, there is a clear trend in recent statistics showing that both injuries and deaths are on a steady rise. This may be due to the ATV industry program to build bigger and faster vehicles. Important for attorneys who represent children to note is that approximately 35 percent of the deaths reported between 1986 and 1996 were of people under the age of 16.

 CPSC Investigation.

In the early 1980's, the CPSC started receiving reports that a large number of injuries and deaths were associated with ATV's. An analysis was performed and on March 20, 1984 a CPSC publication showed that ATV injury estimates had grown from 8,585 in 1982 to 27,554 in 1983. The agency stated:

It is the opinion of this Directorate, based on the data in our files as well as information from other sources, that three-wheeled all terrain vehicles may present one of the most significant and explosively growing product hazards ever considered by this agency.

As the CPSC commenced its study of ATV's and their risks, various United States Congressional Committees also began their review of ATV's. The House of Representatives Committee on Government Operations found in May 1985:

The use of ATV's presents both an unreasonable and imminent risk of death and serious injury requiring immediate enforcement action b y the Consumer Product Safety Commission. An adequate data base has long existed for making this determination.

In addition to the CPSC and Congressional Committees, almost every consumer group in the United States issued warnings about how dangerous the ATV's were, especially for children. In 1988, the American Academy of Orthopedic Surgeons issue a Position Statement on ATV's and stated:

In light of statistics that show a trend of increasing in injuries and deaths resulting from the use of ATV's, the American Academy of Orthopedic Surgeons considers ATV's to be a significant public health risk.

The Academy in its paper also commented on the difficulty all but the most experienced drivers have with steering ATV's and stated:

The three-wheeled ATV is inherently unstable. The doctors urged their patients to find some other type of recreational vehicle that are more appropriate for children.

In September of 1986 the CPSC All Terrain Task Force in its report to the Commission made various conclusions and a number of recommendations. Its conclusions were:

Children under 12 are unable to operate any size ATV safely.

Children under 16 are at a greater risk when operating adult size ATV's (over 90-c.c.) due to poor judgment and failure to recognize and operate ATV's within their skill level.

The Task Force recommended that a ban be implemented to stop the selling of any ATV's for use by children under 12. It found that children do not have the mature psycho-motor skills and appropriate cognitive development to ride ATV's safely on a continuous basis. Other reports issued by the CPSC stated that children do not understand or appreciate the possibility of being catastrophically injured and therefore are more likely to engage in risk-taking behaviors. These facts have been well established and were well known by the ATV industry, however the manufacturers aimed their marketing efforts toward children by developing ATV's for small children (e.g. the Honda 70) and broadcasting TV ads showing children blasting across the countryside on their ATV's.

The ATV industry was not silent while both the government and consumer groups issued statements. At every point in the CPSC and congressional investigations, the ATV industry denied that there was any design problem with the ATV and argued that all deaths and injuries with ATV's were caused by driver error. In 1984, the ATV industry retained a safety education specialist from the Maryland State Department of Education to conduct research on children and ATV's. The paper, The Young Child and the Motorized All Terrain Vehicle concluded:

It is evident that instruction for the use of the vehicle is lacking. Manufacturer's cautions are being ignored. A greater payoff in reducing accidents may be [obtained by] requiring users to participate in instructional programs prior to use... the inherent unique behavior of these vehicles in specific situations must be understood...

Advertisement could be more realistic in its portrayal of the vehicle. The industry could be encouraged to be more safety oriented in its advertisement and sales pitch.

Television ads give the impression that the all terrain vehicle is safe and fun.

Parents must be informed of the inherent problems and dangers in using all terrain vehicles before purchasing them for their children.

On December 12, 1986, the CPSC voted (2-1) to authorize an enforcement action under Sec. 12 (the imminent hazard provision of the Consumer Product Safety Act) to provide notice, warnings and training for all past and future ATV users, and to begin a voluntary refund program for all three-wheeled ATV's and four-wheeled ATV's intended for use by children under 16.

On December 30, 1987, the Department of Justice filed a lawsuit in U.S. District Court for the District of Columbia against the major ATV manufacturers and distributors in order to declare ATV's imminently hazardous consumer products. The Complaint states that the vehicles give off an illusion of stability but they are really unique, complex and dynamically unstable vehicles. Their innocuous appearance gives no hint of the consequences that may result from the failure to receive adequate instructions and training. These drastic results may occur even while doing the most routine of maneuvers or turns. The complaint further stated that the safety and stability of ATV's have been misrepresented by advertisements and salespeople.

After months of negotiations, the Department of Justice and the major ATV manufactures agreed at the same time the complaint was filed to a preliminary consent agreement that contained, in part the following provisions:

Send notices to all known past ATV purchasers informing them of the risk of severe injuries and death associated with ATV's.

Immediately halt sale of all three-wheeled ATV's.

Affix extensive warning labels to all ATV's and mail a safety alert to all prior purchasers detailing deaths and injuries associated with ATV use.

Provide free "hands-on" training to all future purchasers and all past purchasers within the last 12 months.

Agree to establish advertising guidelines.

Agree not to oppose state legislation for licensing and certification of ATV operators.

Undertake a public awareness campaign including print, radio, and television commercials describing the potential hazards and risks associated with ATV's and minimum age guidelines for various models.

A final decree was signed and approved on April 27, 1988 that included most of the preliminary decree provisions but failed to include a voluntary refund program for ATV owners as the CPSC requested. The terms and requirements of the ATV Consent Decree expired last month (April 27, 1998). Aside from the history of litigation and the basic defective design of the three-wheeled ATV, there is no reason the ATV industry can not resume manufacturing and marketing the three- wheelers.

Looking Back Ten Years - What the ATV Consent Decree Accomplished.

Injuries in Decline - The estimated number of injuries to persons under 16 years of age has declined from 48,000 in 1986 to an average of about 23,000 in the 1990's. The estimate for 1996 is 23,400 injuries.

The CPSC has information on the number of four-wheel ATV's in use in the years between 1986 and 1995. No reliable data is available on the number of three-wheeled ATV's still in use and over that same time. The Commission staff estimates that the number of injuries associated with four-wheel ATV's increased from 23,900 in 1986 to 43,600 in 1995. This is an obvious trend since no new three-wheelers were introduced into the market after 1988 and all manufacturers switched over exclusively to four-wheelers. Four-wheeled ATV's make up about 70 percent of the ATV's involved in the deaths reported to the Commission for 1994.

What is the ATV Industry's Attitude Toward the 1988 ATV Consent Decree?

Honda dealer's video on Consent Decree; Excerpts from: "The Translator"

Consent Decree viewed as a joke or as "ancient history!"

Honda's Attitude Toward ATC - It Was Safe!

Deposition excerpts of Honda Design Engineer, Ryoichi Shigenari, September 12, 1996 (English Translation)

"CPSC was never able to come to conclusion that ATC's were defective."

"We have firm belief that ATC's are not defective."

". . . no problem whatsoever with safety of vehicle."

". . . why the ATC a vehicle in which the safety is adequately secured, have to be involved in so many accidents."

Deposition excerpt of Honda North America Manager Miyako, April-2, 1997

(a)    "ATC was an excellent vehicle."

(b)     "Safety, no question of safety, it was a very safe vehicle."

Why Did Honda Stop Sales of Honda ATC?

Shigenari Deposition - English Translation

"Reduce deaths and injuries"

What is Honda's Attitude About Bringing Back the ATC?

Shigenari's Dream

New Technology makes them Safer

Rumors of Testing

What do R.J. Reynolds and Honda Have in Common?

Targeting children - look how ads were done. Honda tested but did not introduce a Honda ATC 50 that was designed for 4 -7 year old children. One of the reasons for not introducing the vehicle was that "ATC 50 is a toy, 4-5 year old children can't read warning labels."

Ignored Findings - after the requirements of the Consent Decree were in place, the Public Interest Research Group in 1989, conducted a survey of 215 ATV dealers across the country to determine if the goals of the Decree were being met. The result was a finding that the Dealers were in flagrant violation of the Decree. Additional action may be necessary to protect children because the survey showed:

Over half of the ATV dealers surveyed (54 percent) were willing to violate the agreement by selling an adult-sized ATV for use by a 10-year-old.

Three-quarters of the dealers surveyed responded by stating that it would not be difficult for a 10 year old to learn to ride an ATV.

A substantial number of dealers down-played the importance and availability of training by failing to mention that it is offered at no cost and that financial incentives are available.

Major Themes in Plaintiff's Trial Development

General knowledge that three-wheelers are unstable. Most jurors recognize this. They have heard that they are unsafe or that the government took them off the market. Need to emphasize that the ATV manufacturers will not say that the four-wheelers are safer than the three-wheelers.

• The vehicle looks like a toy so it would appeal to children but it is not a toy. Honda did not start age labeling until 1986 and only then when the CPSC had started its investigation. 

• Important to know all aspects of government investigation into ATV industry. ATV Defendant will fight to keep it out. 

• Counter argument that CPSC never found vehicle defective: voted unanimously that it was unreasonably dangerous. 

• Honda never properly tested vehicle. Later models were never driven by children even when Honda knew that children were being hurt while using them. 

• No computer simulation No accident reconstruction performed Used adults for test drivers 

• Basic flawed design of ATV. The defense experts will not try to defend the design or spend much time with why the vehicle is the way it is. The Plaintiff should focus as much as possible on the fact that the engineering is wrong and it is a bad design, either because of the configuration or the warnings or both. 

• If a product is to be used by children, manufacturers should be 100 percent sure it is safe. This should resonate with the jury because none of the manufacturers tested the vehicle using young drivers. 

• Punitive damages are sometimes necessary to keep manufacturers honest. 

• Warning labels should be in Spanish as well as English. Big issue in parts of the Southwest. 

• Honda put a big engine on a Big Wheel and it killed people. 

• Every point Honda makes can be turned to your advantage given imagination, attention to detail, and hard work. 

• The importance of "Save the Children" ties. 

 Defense Strategy in any ATV Litigation

• Manufacturer will not try to justify the design - the manufacturer desires a battlefield with a single view to determine what the driver failed to do or did wrong. 

• Without fail, every injury will be the fault of the driver but never the fault of the ATV. It was the driver doing something that he shouldn't have done or failure to do something (e.g. riding without a helmet, going too fast, having a beer) that caused the injury. 

• If the plaintiff rider was a novice, the injury resulted from failure to take a training course or riding beyond his capabilities. If an experienced rider, the driving pattern had been mastered before, so there was no reason that the driver failed this time, except for the driver's own negligence. 

• Prepare for the defense to show an experienced driver by video driving the same route that your client did, but the defense driver will do it with great ease. Be prepared to show how the well-trained professional driver can anticipate the route and also knows to be careful since someone was hurt there. 

Particular Characteristics in Representing Children in ATV Cases

Defense will shift from holding the child accountable to showing how the parents failed to protect their child. Common practice is to blame the parents for not providing enough instruction or allowing the child to ride double or not insisting on wearing a helmet every time.

On three-wheelers and pre-Consent Decree vehicles, the owners manual and statements on the vehicles were not sufficient to communicate the dangers and risks. If the parents did not understand the potential for disaster, they could not communicate the same to the child.

Most health professionals and other experts strongly state that children under the age of 16 should not be allowed to operate an ATV larger than 90 c.c.s.

Making the Commitment

Hipolito Sanchez was 12 years old when his Honda ATC became unstable in a curve and flipped him off. His head struck a rock and he died before he got to the hospital.

The same problem in a curve left Freddy Barrera at age 16 a paraplegic and in constant pain.

Angie Gaona was going through a mud puddle on a country road near Orlando, Florida when her Honda four-wheeler started to roll and pitched her off and landed on her back. She like Freddy will spend the rest of her life in a wheelchair.

Chris Sharp and Craig Smalley left infants behind after their rides on an ATV. Craig died miles away from the Canadian border in New York while Chris had his neck snapped after his ATV pitched forward less than five miles from the Mexican border in Texas.

These tragic events are not isolated but are part of a flood of deaths and injuries that have cost the American public billions in hospital bills, lost opportunities, and family grief that cannot be measured. It now appears that these events will continue to increase and, with the expiration of the 1988 Consent Decree, the ATV industry will be given the opportunity to start manufacturing three-wheelers again. This would seem to be inconceivable given the litigation history, however, the Consent Decree expired on April 28, 1998.

There is some comfort in the private conversations the author had recently with the CPSC General Counsel's Office in which it was confirmed that the ATV industry and the CPSC are meeting to find some means to voluntarily extend the Consent Decree that banned the three-wheeled vehicles. If an agreement is reached, a published notice of advanced rulemaking would be placed in the Federal Registry and public comment would be sought on the industry's voluntary compliance. The General Counsel's Office does not believe the industry wants to manufacture the three-wheelers and will agree to continue to implement the provisions of the Consent Decree.

It is also appears that the Commission will be releasing an exposure survey which will confirm that children under the age of 16 are being injured on adult vehicles and that children are more likely than adults to be injured on an ATV. Since the ATV's are larger and faster than they were several years ago, there is an alarming increase in catastrophic injuries for children.

Since the start of the CPSC investigation in the early 1980's, the ATV industry has done nothing to address the basic problem: the vehicle is defectively designed. The industry only agreed to stop manufacturing three-wheelers when faced with a massive number of lawsuits and uncertain government regulation but deaths and injuries continue to increase due to the continued manufacture and sale of four-wheelers.

Few cases are as vigorously defended as are cases over ATV deaths and injuries. Defense counsel have unlimited budgets and rarely settle for little more than medical expenses. The ATV industry fights to exclude such issues as the CPSC and congressional investigations, the Consent Decree that removed the three-wheeled ATV from the market, and any similar accidents. To properly prepare a case for trial, expenditures of over $200,000.00 are not uncommon and the final bill may be closer to $350,000.00. Thus, the facts surrounding the death or serious injury have to be very favorably weighed for the Plaintiff and counsel to stay the course and fully develop the many issues that will develop during the case. Even with the great risks, the rewards can be substantial since the corporations that manufacture the ATV are worth billions of dollars and can well afford to compensate those injured by their machines. Additionally, it was the aggressive attitude of the American Trial Bar in the 1980s that forced the manufacturers to finally agree to the Consent Decree and that same threat may be sufficient to keep the three-wheelers from being reintroduced. 

Since the ATV industry's position is that the four-wheelers and three-wheelers are "equally" safe, the trial bar will continue to be faced with children who have been killed or permanently injured who will need champions to continue the fight of holding manufacturers accountable for what they sell to the American public and to ensure that children are protected.