defenses rather than general denials that their vehicles were defective at all.
The government's position here is essentially as follows: (1) a failure of the vehicle simply to perform as expected is a "defect;" (2) consumer experiences alone are sufficient to prove performance failure; and (3) the government is not required to come forward with an "engineering explanation" for that failure of performance. For that formulation it cites the Wheels and Pitman Arms cases, noting that the majority in Pitman Arms declined to join Judge Leventhal in an opinion which assumed an obligation on both sides to offer technical proof for their positions. Moreover, according to the government, the comparative performance of peer cars is irrelevant (again citing Wheels). That a manufacturer has built to the "state of the art" is no defense if there are a significant number of failures to perform as expected. The only defense, according to the government, is "gross vehicle abuse" by the owner.
In Wheels, however, the court of appeals declared that it was the agency's obligation to demonstrate that failures had occurred, not merely that consumers had complained. Wheels, 518 F.2d at 427. It noted that whether "a defect exists in a particular case thus turns on the nature of the component involved," id., and required that the agency offer "competent evidence showing a significant number of failures." Id. at 442.
The Court concludes that anecdotal accounts of skidding events are not sufficiently reliable, i.e., are not competent evidence from which to infer the existence of any specific brake problem. The driver of a car simply cannot gauge its brake balance as it decelerates, even in the grossest sense. The knowledge necessary to discern, let alone calculate or quantify, brake balance or brake efficiency is lacking, even if the witness' recollection is meticulously accurate, factual not fanciful, and truthfully related. Drivers can describe only what happened to them, which is an altogether insufficient basis upon which to make a judgment as to the technical adequacy of the braking system of their cars, especially when, as here, the testimony is of skidding incidents which occurred sporadically months or years apart.
Those courts which, in other contexts, have allowed proof of vehicle defects to be made by circumstantial evidence of a loss of vehicle control have done so only with respect to a single vehicle involved in one misadventure, and have also required that other conditions analogous to those which precede the invocation of the doctrine of res ipsa loquitur be present: (1) the evidence must demonstrate an unusual event unlikely to occur with a fully functional car; (2) the occurrence must be inconsistent with causes other than vehicle malfunction, and, thus, admit of only one reasonable inference; and (3) the inference must not be contradicted by direct evidence to the contrary. See, e.g., Brothers v. General Motors Corp., 202 Mont. 477, 658 P.2d 1108 (1983); Stewart v. Ford Motor Co., 179 U.S. App. D.C. 396, 553 F.2d 130 (D.C. Cir. 1977). The drivers' several descriptions of their incidents of skidding and yaw in this case satisfy, at best, only the first of these conditions, and yet the government would have the Court draw the inference not only that each and every one of them was exclusively attributable to the same systemic brake defect, but also that an entire generation of automobiles must necessarily be similarly afflicted.
The evidence here, on the other hand, conclusively establishes that skid-and-yaw can and does result from, in addition to brake imbalance, differential road friction, road camber or slope, curved paths of travel, worn, underinflated, or mismatched tires, driver steering inputs, combined braking and cornering, and lane change maneuvers, for none of which the car's braking system can be held responsible. That some of NHTSA's consumers' motoring experiences were "consistent with" rear brake lockup is no more diagnostic of a "defect" in their vehicles than are certain general physical symptoms experienced by humans diagnostic of any specific illness with which they may be consistent.
In addition to proving the existence of a vehicle defect under the Act, the government must also prove that any resulting performance failure relates to motor vehicle safety, that is, it presents an unreasonable risk of accidents or injuries. 15 U.S.C. §§ 1391(1), 1411; Wheels, 518 F.2d at 426, 435. The government once again tenders the per curiam decision in Pitman Arms, 183 U.S. App. D.C. 30, 561 F.2d 923, as establishing a per se rule: any vehicle-endogenous reason for a diminution of the driver's control capabilities poses an "unreasonable" risk as a matter of law. Since rear brake lockup, when it occurs, results in at least a partial loss of control, the government contends that it satisfies the statutory requirement of safety-relatedness for a mandatory recall and repair.
Re-examination of the Wheels decision, and a review of subsequent decisions in analogous contexts under other federal safety legislation, however, persuade the Court that Wheels and Pitman Arms should not be read today as establishing a rigid rule turning entirely upon a diminution of control in the abstract. The unreasonableness of any risk to safety must be assessed relatively in at least three dimensions: (1) the severity of the harm it threatens; (2) the frequency with which that harm occurs in the threatened population relative to its incidence in the general population; and (3) the economic, social, and safety consequences of reducing the risk to a so-called "reasonable" level. See Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 65 L. Ed. 2d 1010, 100 S. Ct. 2844 (1980) (plurality opinion) (" Benzene "); American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490, 69 L. Ed. 2d 185, 101 S. Ct. 2478 (1981) (" Cotton Dust "); Center for Auto Safety v. Peck, 243 U.S. App. D.C. 117, 751 F.2d 1336 (D.C. Cir. 1985) (" Bumpers ").
In Wheels, the district court had held that a large number of performance "failures" constituted irrebuttable proof of the presence of a statutory "defect" regardless of the cause of those failures. 518 F.2d at 436. The court of appeals reversed, on the ground that a manufacturer is not required to remedy even a large number of failures if their cause is a factor like age, wear, or unanticipated abuse, i.e., causes not inhering in imperfections in the vehicle as manufactured. 518 F.2d at 436. And since courts are to consider costs in addressing the question of "unreasonable risk," they are likewise to consider those same costs in addressing the question of "defect." 518 F.2d at 435. In other words, a manufacturer is not expected to build a vehicle that will never fail, no matter the cost. 518 F.2d at 435-36. Manufacturers are not obliged "to use tires that do not wear out, lights that never burn out, and brakes that do not need adjusting or relining." 518 F.2d at 436.
This implicit recognition in Wheels of a relative, rather than absolute, risk as the statutory measure of a manufacturer's duty to repair was expressly articulated in the court of appeals' recent opinion in the Bumpers case, in which the D.C. Circuit upheld NHTSA's decision to relax an impact-resistance standard for vehicle bumpers. Acknowledging that the action entailed some increase in risk to the public, the court nevertheless interpreted the Act as requiring NHTSA to regulate only as to "significant risks." 751 F.2d at 1344 n.5, 1345, 1348. An "insignificant risk" was per se reasonable, regardless of the costs associated with the remedy:
"The principle that an 'unreasonable risk' provision requires even insignificant risks to be eliminated if that can be done at (presumably) insignificant cost would turn many areas of regulation into unending pursuit of the trivial."
Id. at 1344 n.5. The court declared that the Act was not directed "toward any conceivable safety hazard, no matter how insignificant; rather, the Act is directed at 'unreasonable' risks." Id. at 1345 (citation omitted). In interpreting the "unreasonable risk" formulation of the Act to refer to those of "significance," the court of appeals was following the lead of the Supreme Court in Benzene and Cotton Dust in incorporating the concept of "significant risk" into an interpretation of other federal safety legislation.
Only when the risk appears "significant," based both on severity and relative frequency factors, does it become necessary to proceed to a "'common-sense' balancing of safety benefits and economic cost." Wheels, 518 F.2d at 435 (footnote omitted). In other words, a significant risk that can be remedied at a proportionate cost, and without a corresponding sacrifice of public safety in other respects, is generally to be regarded as an "unreasonable risk" which the Act mandates that the manufacturer must rectify. See Bumpers, 751 F.2d at 1344 n.5; Wheels, 518 F.2d at 435-36. Conversely, if the only "remedies" are ineffective, prohibitively expensive, or affirmatively detrimental to public safety, even a significant risk may nevertheless be "reasonable" as a matter of law. Id.
Any skid, of course, involves some loss of control and is, thus, potentially hazardous. Assuming GM could render every X-car so front biased that its rear wheels would never lock, however, the relative severity of the risks associated with front brake lockup, rear brake lockup, and four-wheel lockup are both debatable and unresolvable on this record. The severity of the risks associated with rear brake lockup are ameliorated by the potential for shorter stopping distances (or at least lower speeds at impact) than with fronts locked, and NHTSA's prior positions in rulemaking suggest that, but for the necessity of contending otherwise in this case, it agrees that shorter stopping distances and slower speeds in collision do, in fact, reduce the risk of accidents and injury. Thus, the risk of loss of control with rear brake lockup may or may not be more severe than the consequences of a front brake lockup. The government, however, has failed to prove to this Court's satisfaction that it is.
With respect to the frequency with which the risk (of accidents and injuries) is encountered in X-cars with their brakes as presently configured, GM's risk analysis evidence demonstrates that the likelihood of involvement in a skidding accident is no higher, and as a rule is lower, for the 1980 X-car population than for the automobile population at large. If there truly is a relationship between brake bias and the frequency with which skid-related accidents are threatened, the results of the risk analysis are explained by the engineering measurements of brake efficiencies showing that the 1980 X-cars are, as a group, already less rear biased, and thus less susceptible to rear brake lockup than are most of their competitors. The evidence thus precludes a finding of "significance" in the frequency sense of the term "unreasonable risk."
Because the government has not established that the X-car braking system represents an unreasonable risk of accidents and injuries of "significance" in either the severity or frequency parameters, it is perhaps unnecessary to comment upon the safety benefits/detriments of the proposed "remedy" to determine whether it might also entail "unreasonable" risk. Benzene, 448 U.S. at 634-42; Bumpers, 751 F.2d at 1344 n.5. But the somewhat amorphous remedy NHTSA submits would be appropriate - it resists being committed to specific recommendations - has substantial safety implications of its own, unlike the remedies appropriate in prior cases under the Act, viz., to replace or repair an offending part with absolutely no corresponding negative impact upon public safety. NHTSA suggests generally that the appropriate remedy here is to assure that the X-car population is still more front biased, leaving to GM the manner in which it is to be accomplished.
However, the engineering tests have shown that current configuration X-cars, at least those tested by both sides, already exhibit front bias or nearly ideal brake balance in the lightly loaded condition and are fully front biased in the heavily loaded condition. Shifting the brake balance toward more front bias would actually move the cars farther from the ideal in all loading conditions, the result being, as previously noted, to render them prone to earlier front lock, skidding incidents with longer stopping distances, and the control losses associated with front skids.
For all of the foregoing reasons, therefore, the Court concludes the government has failed to meet its burden of showing that current configuration 1980 X-cars now present, or have ever presented, an "unreasonable risk" of accidents due to a "defect" that causes "premature rear brake lockup," and Counts I and II will be dismissed with prejudice.
Counts III and IV allege that GM failed to comply with § 1414 of the Act in connection with its 1981 and 1983 recall campaigns. Count III charges that in July (i.e., August), 1981, GM "knowingly conducted an inadequate recall campaign" of some 47,000 manual transmission 1980 X-cars originally equipped with 41% proportioner valves which were to be replaced with 27% valves. Count IV makes similar allegations with respect to the February (i.e., March), 1983, recall of approximately 240,000 1980 X-cars to replace their original brake linings with the less "aggressive" 4050/4050 variety.
Implicit in the Court's conclusion that current-configuration 1980 X-cars do not possess a safety-related defect is the corollary that whatever deficiencies some earlier incarnations of them may have exhibited have been adequately remedied, and GM is under no present duty to take further action. Section 1414 of the Act provides, in pertinent part:
"(a)(1) If notification is required under section 1411 of this title or by an order under section 1412(b) of this title. . . then the manufacturer . . . shall cause such defect or failure to comply in such motor vehicle . . . to be remedied without charge." (Emphasis added)
Recall is, thus, expressly contingent upon the existence of a safety-related defect giving rise to a duty to notify and repair.
The court of appeals previously stated in a case that followed upon completed administrative proceedings before NHTSA, "the plain meaning of this language in § 1414(a)(1) is that a determination and order under section 1412(b) are prerequisites to the remedy obligations under section 1414(a)(1) . . . . Absent a section 1412(b) determination and order section 1414 does not apply. . . ." Transmissions, 685 F.2d at 662. Since administrative proceedings in this case were aborted by the government in favor of an immediate resort to federal court, by analogy only knowledge on the part of GM that its 1980 X-cars were defective, and that the defect was safety-related, would have raised a duty under § 1411 to recall and repair. GM has never conceded, however, that its vehicles are defective. It acceded to NHTSA's insistent, if informal, demands that it take some action, and, over protest, voluntarily elected to conduct both the 1981 and 1983 recalls for business reasons: to avoid costly and prolonged litigation in 1981, and, following NHTSA's "initial determination" in 1983, to placate consumers aroused by the attendant adverse nationwide publicity.
Had the extensive engineering testing succeeded in isolating an idiosyncrasy in the X-car's braking system to explain the extraordinary number of consumer complaints about it, or had the accident statistics demonstrated an abnormally elevated incidence of X-car involvement in the sorts of accidents likely to occur as a result of the systemic malfunction NHTSA suspected, then the internal GM documents might supply convincing corroboration of GM's knowledge of the "defect" from the outset. As it is, without proof that there is, or ever was, a "defect," they prove only that brake engineers have yet to devise the infallible braking system, and that GM's engineers, as well as their counterparts elsewhere in the industry, continue in quest of it, and also continue to argue, sometimes heatedly, about how its imperfect substitute should work in the meantime. Counts III and IV will likewise be dismissed.
Count VI alleges that GM failed to advise owners of those 1980 X-cars recalled in July/August, 1981, of NHTSA's toll-free "Auto Safety Hotline" telephone number by which owners dissatisfied with a manufacturer's efforts to remedy a defect may notify NHTSA to that effect.
The regulation, 49 C.F.R. § 577.5(g)(1)(vii) (1981), adopted by NHTSA in January, 1981, 46 Fed. Reg. 6971 (1981), required that it be done in appropriate cases, and it is undisputed that GM did not do so. The Court is unpersuaded by the reasons GM gives for not doing so, viz., that the regulation was invalidly adopted without notice and comment, and that NHTSA had never before enforced it anyway, but, as with the duty to recall and remedy itself, the duty to give notification thereof in the form prescribed by NHTSA is subject to the same precondition: that the manufacturer has or should have determined that the vehicle "contains a defect which relates to motor vehicle safety." 49 C.F.R. § 577.5(a). Having previously concluded that the proof fails to establish that the 1980 X-cars were defective, or that GM had or should have determined that they were, the Court further concludes that GM was legally a volunteer in making both recalls, and that neither notification was, therefore, required to conform to any particular form. Count VI, too, will be dismissed.
It is, therefore, this 14th day of April, 1987, ORDERED, that judgment be entered for defendant General Motors on Counts I, II, III, IV, and VI of the complaint, and the same are dismissed with prejudice.