One of the most significant flaws in FMVSS 216 is that its testing requirements are woefully inadequate in predicting the ability of a vehicle’s roof to withstand the impact of a rollover accident.Current regulations only require manufacturers to test the roof strength of one side of the roof, the rationale being that the two sides are symmetrical and therefore, the results should be the same.In a typical rollover situation, however, the vehicle’s roof is impacted on one side and then the opposite side.It well known in the automobile industry that, after one corner of the roof has collapsed and/or the side windows or front wind shield has broken, the ability of the second half of the roof to withstand impact is severely compromised and therefore, after the initial impact, there is no longer any symmetry in the strength of the two sides.The NHTSA itself admits that most of the occupants who are killed or seriously injured in rollover accidents are seated on the “far” or “trailing” side of a vehicle as it rolls.Thus, it is critical to perform dynamic tests in which one side of the roof is impacted, followed by another impact to the other side tomore fully replicate and predict roof performance in real world accidents.

Further, FMVSS 216 currently only requires vehicle roofs to withstand the equivalent of 1 to 1.5 times the weight of the vehicle.If a vehicle roofdoes not crush more than 5 inches when it is impacted by a large plate at a force equivalent to 1.5 times the vehicle’s weight, it passes the current standard.This 1.5 figure is referred to as the strength to weight ratio.When a vehicle is traveling at or near highway speeds, the velocity of the roll will virtually always result in an impact greatly in excess of the 1.5 strength to weight ratio used in testing.

While the NHTSA estimates that only about 3% of the accidents that occur in the United States each year involve rollovers, such rollovers account for one-third of all occupant fatalities.With rollover accidents claiming such a disproportionate number of lives, significant improvements in the roof crush standards would save thousands of lives each and every year.The impact of inadequate roof crush standards and importance of improved standards increased exponentially with the explosion of the SUV market, because SUVs have a higher center of gravity and a higher propensity to roll over than cars.

The NHTSA estimates that 1400 deaths per year result from roll over accidents with intrusion of the roof into the passenger compartment.This number is artificially low because it does not include individuals who were ejected during crashes.Impact from a collapsing roof is only one of the ways roof crush can cause death and serious injuries.For example, roof crush can cause glass breakage and compromise of the “B” pillar that supports the top point of the seat belt triangle, making the window glass and seat belts ineffective in preventing ejection.Accordingly, others estimate a much higher number of lives could be saved by more stringent roof strength standards.For example, the consumer watchdog organization Public Citizen estimates that it is possible to prevent 10,000 deaths and serious injuries per year with properly designed rollover protection.

Proposed New Standards

Over thirty years after the current FMVSS 216 was adopted, and after several years of hand-wringing and bureaucratic teeth-gnashing, the NHSTA has proposed new roof strength standards.Although all agree that a significant increase in roof strength regulations would prevent a significant number of deaths and serious injuries, the new FMVSS 216 standards proposed by the NHTSA fail to provide for any significant improvement in roof strength over the current standard.Consumer advocates and passengers alike were hopeful that the new rules would offer more protections and would ultimately lead to safer roads.Instead, consumers were dealt a one-two punch that not only falls short of protecting passengers, but significantly curtails their right to pursue legitimate product liability claims for accidents involving roof crush.

The first punch came via a set of proposed rules that will not protect passengers in the event of a rollover.The NHTSA’s proposed new standard would only increase the strength to weight ratio for FMVSS 216 testing from 1.5 to 2.5.This increase represents a very modest improvement, in fact, when the NHTSA tested 2003 model year vehicles for roof strength, it found that 8 out of 10 of these vehicles would already meet the proposed new standard.Thus, the proposed increase does little more than bring the 216 standard up to date with current industry practices.However, given the large number of highway deaths resulting from rollover accidents each year, the current industry practice is clearly inadequate.Instead of raising the bar for manufacturers, NHSTA seems to be content in allowing the industry to set its own standards.

Additionally, despite overwhelming evidence that current tests do not replicate the forces applied to a vehicle in a rollover accident and that most deaths and injuries result from impact to the second or “far side” impact, NHTSA’s proposed new regulation would not change the requirement.Under the new regulations, roof strength would still be tested on only one side and at a single angle that does not replicate the angles of impact that typically occur in rollover accidents.

The second blow came in the way of “limitation of lawsuit” provisions the NHTSA has proposed slipping into the new roof strength regulations to protect auto-makers. As drafted, the new regulation would bar suits for roof crush induced injuries if the new FMVSS 216 standard is met.This attempt to slip “tort reform” provisions into NHTSA regulations follows years of intense lobbying by special interests, and the failure of these same special interests to pass legitimate tort reform measures through normal legislative means.These groups, many of which are financed by the automobile industry, are attempting to legislate tort reform with little or no attention or opposition by slipped such “limitation of lawsuit” provisions into obscure regulations such as the NHTSA’s proposed roof strength standards.In fact, the proposed “tort reform” provision in this one specific safety regulation contradicts overarching NHTSA regulations and policies that have long established that compliance with NHTSA regulations does not protect auto manufacturers from civil liability for manufacturing unsafe products.

Equally concerning is the NHTSA’s attempt to infringe upon State’s rights by with this proposed regulation.Our Constitution makes it clear that civil legal protections for private citizens are best left the States. It says that the States are best suited to set their own rules, and govern their own civil justice systems.This was a founding principal and has been the cornerstone of our nation for well over 200 years.NHSTA's new rules amount to nothing less than a federal over-ride of state laws, completely disregarding this principle, and taking a "father knows best" approach to how the federal government deals with our courts.It is a sad example of how paternalistic bureaucrats can over-rule not only state laws, but the will of local citizens who serve on juries.Bureaucrats in Washington have unilaterally decided to override state laws on how bad car makers can be held accountable in our state courts.This federal pre-emption of state laws is offensive and wrong.

Citizen juries are often the most effective means of forcing automakers to design and build safer automobiles. It is often the fear of public exposure that drives and encourages some manufacturers to use the best technologies to make the safest cars possible.The fact that the automobile industry has gotten so far ahead of NHTSA in setting roof strength standards is largely a result of the citizenry, through the tort system, demanding that auto manufacturers continue to make vehicles safer.Not only do the proposed new roof strength regulations offer too few protections for consumers, they thwart consumers’ ability to hold auto-makers who make unsafe cars accountable. Sadly, NHTSA’s proposed rules which were supposed to make cars safer, will encourage carmakers only to meet minimum standards, rather than keeping up with safety innovations.

For these reasons, citizens, whether or not they are attorneys, should openly oppose these proposed rules.I strongly encourage people to contact NHTSA at www.nhtsa.gov and let them know we need rollover standards that protect occupants in the event of a rollover, and that we expect these protections extend all the way to the courthouse door.