According to CBS News and USA Today, customers have been voicing concerns about Ford Explorer model years 2011 and onward. The hundreds of consumer complaints brought to the attention of the National Highway Traffic Safety Association (NHTSA) allege that, when accelerating with the air conditioning active and in circulation mode, the Explorer leaks exhaust fumes into the cabin of the vehicle. These exhaust fumes contain carbon monoxide, which can cause a driver to lose consciousness if inhaled in sufficient volume. Such a leak therefore threatens the lives of both the driver of the Ford Explorer and those of other drivers on the road.
Newport Beach police officer Brian McDowell nearly lost his life due to the effects of carbon monoxide inhalation while driving. While responding to a non-emergency phone call in his 2014 Ford Explorer, his head began aching and he felt nauseous before losing consciousness and crashing into a tree. Doctors tested him for months, to no avail, in attempts to figure out why he had blacked out while driving. Only after learning of numerous consumer complaints regarding the Ford Explorer did Mr. McDowell realize that he likely inhaled carbon monoxide in his car before passing out.
NHTSA cited 154 consumer complaints in July, when it began its investigation into model years 2011 through 2015 of the Ford Explorer. Since the launch of that investigation, the number of complaints has grown to over 450, according to CBS News. Further, some complaints were about the model years 2016 and 2017 of the Ford Explorer, model years not included in NHTSA’s investigation.
Ford has known about the issue since 2012, and has issued three “repair bulletins” to dealers in attempts to fix the issue, but the problem remains. A Ford representative, in a 2015 deposition, acknowledged that the Ford Explorer has a “design issue” that remains unresolved. The company agreed in August to settle a Florida class action lawsuit brought on behalf of those consumers harmed by the carbon monoxide leak, and another class action is pending in New Jersey.
There are two different tests in California for determining whether a defendant can be held liable for a design defect. The first is the “risk benefit test” under which a plaintiff must prove the following before liability may be imposed:
- the defendant manufactured, distributed, or sold the product,
- the plaintiff was harmed, and
- the design of the product was a “substantial factor” in causing the plaintiff’s harm.
Once these three facts are proved, then the plaintiff must prevail unless the defendant shows that the benefits of the design outweigh its risks.
The second test is the “consumer expectations test” under which liability can be imposed if plaintiff shows the following:
- the defendant manufactured, distributed, or sold the product,
- the product did not perform with the level of safety a normal consumer would expect it to when used or misused in a foreseeable way,
- the plaintiff was harmed,
- the product’s failure to safely perform was a “substantial factor” in causing the plaintiff’s harm.
These two tests are alternatives and a defendant can be held liable if either test is satisfied. Failure to satisfy one test cannot be used as a defense, should the defendant satisfy the other one.
Therefore, under a design defect theory of product liability, if a court finds that the benefit of the Ford Explorer’s design does not outweigh its risk of carbon monoxide poisoning, a consumer harmed by the carbon monoxide leak or a resulting accident can hold Ford liable for his or her injuries. Alternatively, if a court finds that a reasonable consumer would expect the Ford Explorer to perform more safely than it does, and this lack of safety results in harm to the consumer, the consumer can similarly recover.
If you or someone you know has knowledge of a defectively-designed product causing harm to consumers, please contact our office.