Unintended Acceleration in 2010 Legacy: Death by Subaru vs. Contributory Negligence Laws

In November 2014 our adult son left the house for his 20-minute commute to work in his 2010 Subaru Legacy 3.6R Limited Sedan. It was clear, cool and dry that morning. According to an eyewitness, the car roared down the street at a speed of some 50 mph sounding like a garbage truck. In less than 400 feet and about six seconds, the Legacy veered over a neighbor’s curb, pivoted and hit a tree at 45 mph (per Police Department). We assume this was his attempt to slow and stop the runaway vehicle without killing or injuring anyone. Regrettably, our son died the following week as a direct result of this unintended acceleration incident.

Subaru of America Customer Service was contacted quickly, with their promise that a decision would be made within 24 hours as to a Subaru investigation. (Similar vehicle incidents have been attributable to defective computer chips which have the ‘authority’ to control the throttle). Instead, the matter went to Subaru’s insurance company, then an outsourced litigation attorney. (Does this sound customer friendly?).

A full month later, a perfunctory 1970’s style investigation totally disregarded the advanced computer controls and diagnostics of a 2010 Subaru. The examiner’s excuse was that the battery and electrical system had been damaged. (What would a Subaru or NHSTA engineer say?). Needless to say, this was totally unsatisfactory, and very shameful for the Subaru organization. (It is important to note that the NHTSA conducts vehicle defect investigations when their database of consumer safety complaints shows a trend, likely long after the vehicle has been sold/destroyed).

Clearly, Subaru’s focus was on minimizing liability at the risk of damaging their reputation, as well as the lives of other Legacy owners. However, there was no need to worry because losing a product defect/wrongful death lawsuit is highly unlikely in VA, MD, AL, NC, and D.C., where archaic contributory negligence laws effectively absolve the manufacturer unless they are found to be 100% responsible. Anything less, even 99% guilty and they are off the hook (sometimes called the ‘one-percent’ rule).

This means that litigators representing corporate clients such as Subaru, need only focus on issues unrelated to the product defect, (i.e., driver distraction, health issues, age, driving experience, disability, etc.), in order to win the case for their client/defendant, and effectively make the product defect disappear.

Also, because of these archaic laws, it is almost impossible to retain a personal injury/product liability attorney on a contingency basis, because the chance of winning is insignificant, No lawsuit means no independent investigation of the vehicle, and thus no defect. Fortunately residents of the other 46 States utilize comparative negligence laws, where the manufacturer or insurer can be found liable, even if less than 100%.