Today is not a day of lighter fare, but it is a day to examine the notion of industry standards determining safety and other matters. The opening sentence in Sobolik v. Briggs & Stratton Power Products Group, LLC
, No. 09-1785, 2011 WL
1258503 (D. Minn. March 30, 2011) gives the main operative fact: a lawn tractor user was killed when the lawn tractor rolled over near a ditch. The complaint stated claims on design defect and failure to warn, and that the lawn tractor should have had some device protecting against rollover.
Before we get started, feel free to search for “lawn mower rollover protective device” and see the number of law firms that specialize in lawn mower accidents. You’ll notice that the plaintiff’s attorney in this case has a website advocating the use of roll over protective devices and YouTube videos showing how evil all the manufacturers of lawn tractors are for not using these devices.
These type of sites feed the theory that big corporations are out to make dangerous products as cheaply as possible to sell them and take advantage of an uneducated public. Necessarily, all the big corporations conspire to make sure that some company that doesn’t care about profit can’t make its products any safer than the rest. In the lawn tractor industry, it is not the norm to require some roll over protective device. Surely there are enough players in the lawn tractor market that prevent this industry standard from arising out of some massive conspiracy to sell lawn tractors as cheaply as possible to the detriment of consumer safety. There must be some sound business principle for not mandating a roll over protective device. In looking to the industry standard, I am not advocating that the standard be given some preclusive
effect. But I think that the industry standard is more than merely some evidence that any particular design is not defective. While juries usually ferret
out the truth, I am a little skittish about a jury being able to say that an entire industry is wrong and all of their respective designs are defective and could be made safer. That reminds me slightly of Homer Simpson’s car design
that was to be the epitome of everyman’s
Furthermore, in an effort to generate some comment, let me state that the use of such devices would not necessarily make anything safer. Please refer to the Peltzman effect
to see what I mean. I don’t mean to imply that I am up to date on seat belt design data, and that you should not wear seat belts, but, for a while, there were some questions regarding whether seat belts lower risk or merely redistribute it in response to the perceived safety benefit of the seat belts. If you really wanted to make people drive more safely, you would make cars less safe and accidents more expensive. Wouldn’t you drive more safely if a manufacturer installed an axe blade in the steering wheel, and that was part of the safety features of the car? Obviously you couldn’t do this, because safety on the roads depends in part on the choices of all of the other people on the road that you interact with. I’m not willing to increase my risk of serious accident because there are others on the road who may not value my life or theirs as much as I do. But I am unsure if line of reasoning holds true with products that are mostly used in isolation, i.e., a lawn tractor.
I’m not sure you would or could make the argument that the lack of a roll over protective device on a lawn mower increases safety. Certainly when I’ve used a mower near an embankment, I am conscious of the roll over risk, and I change my behaviour in response to that risk. I think it’s certainly arguable that, at least in theory, that if you mandate installation of a roll over protective device you may merely redistribute risk into some other form of accident rather than reducing it. While alternate designs are considered by business, unfortunately, in cases such as the above, that involve serious injury or death, arguing that a roll over protective device doesn’t necessarily increase safety probably doesn’t play well in front of a jury. Which is why allowing a company to rely on industry standards is important. A jury may not be able to hear that the installation of a safety device is a bad idea, but it may be more receptive to the argument that this particular company designed their product in accordance with industry standards. As shown by this District of Minnesota opinion, conforming with the industry standard, is merely evidence that the design was not defective, and perhaps in a jury case that is the best that can be done.