The new auto-defect case you are missing

Collision Avoidance Technology (CAT) can prevent or mitigate many common auto accidents

Imagine this scenario: A client comes to you with a potential wrongful-death case for the death of their son. The son was riding his motorcycle on the freeway, and the motorcycle was having some sort of malfunction, so the rider was slowly changing lanes to safely get to the shoulder. An inattentive driver was traveling behind the motorcyclist and plowed into the rear of him, killing him instantly. It was all caught on a dash-cam video. Had the vehicle been equipped with Collision Avoidance Technology (CAT), in particular Automatic Emergency Braking (AEB), this accident would have been completely avoided. You settle the case for the minimal insurance policy limits of the rear-ending driver. You inform the client that there may be a products liability case against the motorcycle manufacturer and send the client on their way with a partial recovery.

Please note: I literally had this exact client come to me recently to take a second look at the case. I immediately signed this wrongful-death case and am currently litigating the case against the auto manufacturer that was missed by the prior attorney.

Don’t miss these cases!

This is a new area in auto-defect litigation that many good and well-intentioned attorneys are not identifying during their intake process. Please do not be one of them. First and foremost, you owe it to your clients to give good, sound advice. Secondarily, you owe it to your practice not to miss identifying good cases. This relatively new technology – Collision Avoidance Technology – can prevent or mitigate against this type of accident, and many others, i.e., auto vs. auto, auto vs. motorcycle/bicycle or auto vs. pedestrian, as explained below.

What is Collison Avoidance Technology (CAT)?

Collision Avoidance Technology, or CAT, refers to advanced driver-assistance systems (ADAS) which are designed to help prevent or reduce the severity of accidents. These systems use sensors, cameras, radar and/or lasers to monitor the vehicle’s surroundings and detect potential hazards, such as other vehicles, pedestrians, cyclists, or other obstacles. The information is collected and processed in real time to identify these potential hazards.

The technology can warn the driver about an imminent collision and take automatic action (from visual and audible warnings to actual braking or steering) if the inattentive driver doesn’t respond in time.

In this article, I will focus specifically on two types of collision avoidance/collision mitigation systems in vehicles: (1) Automatic Emergency Braking (AEB); and (2) a Lane Keeping Assist (LKA). AEB is exactly as it sounds; it is a system in a vehicle that automatically applies the brakes of the vehicle when a potential collision is detected, thereby avoiding or at least mitigating against the collision. LKA is a system that detects when a vehicle is unintentionally drifting out of its lane and then starts providing subtle steering inputs to the steering wheel in order to keep a vehicle in its lane. It is an impressive technology that, according to the National Highway Traffic Safety Administration, is expected to save hundreds of lives and prevent tens of thousands of injuries annually.

Automatic Emergency Braking (AEB) – How it works

In the event of a potential collision into another vehicle due to a driver’s inattention, the AEB system will typically first issue a visual warning and/or audible sound to alert the driver. If that doesn’t alert the driver to take evasive action, the system will then increasingly start to apply the brakes and either stop the vehicle before a crash or slow the vehicle down in an effort to significantly mitigate the collision (Fig 1).

Lane Keeping Assist (LKA) – How it works

In the event an inattentive driver’s vehicle starts to unintentionally drift out of its lane, the LKA systems can provide a vibration to the steering wheel alerting the driver that they are drifting out of their lane. If that subtle warning doesn’t alert the driver to take evasive action, some systems will actually provide a slight steering input to the steering wheel and redirect the vehicle back into its lane (Fig 2).

Don’t miss these cases – get them on your radar

According to the National Highway Traffic Safety Administration, approximately 94% of all vehicle crashes are caused by human error. In April 2024, the NHTSA published its Summary of Statistical Findings regarding distracted driving (available at https://rosap.ntl.bts.gov/view/dot/78043). It reported that in 2022 there were 3,308 people killed and 289,310 people injured by distracted drivers. It further reported that there were 621 nonoccupants killed in distracted-affected traffic crashes.

Based on these statistics, there is clearly a need for this technology. As a matter of fact (and discussed more fully below), beginning on September 1, 2029, a new Federal Motor Vehicle Safety Standard (FMVSS) mandating AEB is set to go into effect. (See 49 CFR § 571.127.) Equally important to your clients and your practice, is the absolute need to be able to identify these cases to accurately identify potential defendants and give the appropriate advice to prospective clients.

How to identify these cases

Auto v. auto rear-end collisions

The most common of these cases (and more often than not the better AEB cases from a liability standpoint and due to the sophistication of the technology) are the straightforward auto v. auto rear-end cases where your client is at a complete stop and slammed into from the rear by an inattentive driver. Easy enough to identify. What is so great about these cases, aside from the advanced technology, is you eliminate the comparative fault arguments directed towards your client’s conduct that can and will be raised in many other AEB/LKA collision scenarios.

Crash testing by various organizations such as the European New Car Assessment Program (ENCAP) shows that in the 30-40 mph range these rear-end collisions can be completely avoided if the system is operating properly.

Practice pointer: Keep in mind that even at higher speeds, even though the collision cannot be completely avoided, it can be significantly mitigated against. For example, say your client is at a complete stop and the rear-ending vehicle is traveling 60 mph. While the rear-ending vehicle traveling 60 mph may not come to a compete stop in time, its speed can be significantly reduced down to 20 mph. That can be the difference between a catastrophic injury to your client and, instead, a soft-tissue type injury.

T-bone collisions

Another collision scenario to be on the lookout for are T-bone collisions. These too can be good cases. There are various collision scenarios here to be on the lookout for. One, your client is driving down the street and someone runs a stop sign, red light or is just inattentive and pulls out into the street and T-bones them as they are driving through an intersection or past an exit from a parking lot. A properly operating AEB system can prevent or mitigate against this crash scenario.

Left-turn collisions

Another scenario is your client has the right of way at an intersection to make a left-hand turn and has a green arrow to make the turn. During the turn, an oncoming vehicle runs a red light and T-bones your client or has an offset frontal collision into your client. Or similarly, your client has the right of way to make the left turn and an oncoming inattentive driver T-bones or has an offset frontal collision with them. The right-of-way scenario may involve comparative fault on your client’s part, so evaluate that carefully. Keep in mind that your client may also have been able to avoid the collision had his vehicle been equipped with AEB. You must look at both of the involved vehicles from an AEB liability standpoint (Fig 3).

Practice pointer: Keep in mind to not only investigate the case against the auto manufacturer of the vehicle the defendant was driving in, but also your client’s vehicle. You have two potential auto manufacturer defendants to investigate with these two accident scenarios.

Auto v. motorcycle/bicycle/pedestrian rear-end collisions

Just like with the auto vs. auto rear-end collisions, this technology is equally designed and tested to detect collision hazards other than trucks and cars in front of the inattentive driver: motorcycles, bicyclists and even pedestrians walking on a shoulder. Keep in mind, as opposed to the auto vs. auto rear-end collisions where entirely preventing the accident is not necessary (rather mitigating it from a major crash to a minor accident is sufficient), with the auto vs. motorcycle/bicycle/pedestrian accidents, you typically will want the inattentive driver’s vehicle to come to a complete stop (or close to it), otherwise the end result to your client may be the same. Thus, in these cases you will typically want the inattentive driver’s vehicle to be traveling 40 mph or less (Fig 4).

Again, crash testing by the European New Car Assessment Program (ENCAP) and other various organizations shows these accidents are tested for and either avoided or mitigated against.

Auto v. pedestrian crossing street collisions

AEB technology is also tested with mannequins crossing the street in front of a vehicle to simulate a person walking in a crosswalk. There is also “dart out” testing performed to simulate a child darting out from in between two vehicles in front of an oncoming car. This testing is typically currently done at 40 mph and the vehicles come to a complete stop. So again, you need to be wary of the speed of the inattentive driver because with the auto vs. pedestrian cases you will typically need the inattentive driver’s vehicle to come to a complete stop to avoid the injury (Fig 5).

Again, crash testing by the European New Car Assessment Program (ENCAP) and other various organizations shows these accidents are tested for and either avoided or mitigated against.

Auto v. pedestrian in parking lots

Also be on the lookout for cases involving auto vs. pedestrians in crosswalks or parking lots.

Practice pointer: In cases involving pedestrians in crosswalks or parking lots, be aware that many of these AEB systems do not activate until the vehicle is traveling 6 mph. Some at 3-5 mph. I currently have a case where my client was crossing legally in a crosswalk, and an inattentive driver did not notice her as he was attempting to make a right turn. He drug her underneath his vehicle, paralyzing her. The defendant manufacturer is arguing that the vehicle was traveling under 6 mph when he ran her over. This is a common defense in these cases and you end up arguing over a few miles per hour. Note however, there are vehicles that are always active even at 0 mph, so this defense fails. Do not be deterred by the speed argument.

This technology and analysis is also applicable to vehicles that are in reverse, backing up in parking lots or driveways, where the vehicle hits a pedestrian or bicyclist (Fig 6).

The age of the car and the viability of the case

A major consideration when investigating the viability of these cases is the model year of the vehicles. While this technology has been around for over 20 years, it was not nearly as sophisticated as it is today at preventing the types of accidents discussed here. My personal cut-off point is 2014 model year vehicles or newer.

In 2014, the AEB/LKA technology was getting much more sophisticated. With vehicles older than 2014, I do not recommend taking the case. By 2019 and forward, the technology is quite sophisticated and getting better and better with each new iteration.  At this point, various organizations are conducting AEB testing at night under quite extreme conditions and the results are still excellent. So, keep in mind, if you have a case you are investigating and the accident occurred in the evening hours, that can still be a viable case.

Failure to equip a vehicle

Most 2025 model-year vehicles come equipped with AEB and LKA. However, going back to my personal cutoff point of 2014 model year, while the technology was available it was an “option item” so many vehicles were sold without it. I do not let that deter me from pursuing an auto-defect case against the manufacturer. Safety should not be an option. If it were left to the auto industry, seat belts would be an option that we would have to add onto the purchase of a new vehicle. Of course, that example is not the case because the NHTSA mandates all vehicles come with seatbelts as standard equipment. But when I was a child that was not the case and there were many cars on the road without seatbelts – as unbelievable as that sounds today.

Deactivated AEB

Even when a vehicle was sold with AEB, it may permit the user to deactivate the system. Again, we cannot deactivate our driver’s airbag or our seatbelts, etc. Why should this safety technology be any different? It shouldn’t. Period. I have and do pursue AEB cases even where the system was an optional item and/or the vehicle came equipped with the system but was deactivated by the user for whatever reason. AEB systems were technologically and economically feasible from 2014 forward, so you can pursue these cases and meet your burden of proof. I encourage you to not be deterred from the AEB failure-to-equip and AEB-deactivated cases.

Practice pointer: I used to have to argue the “safety should not be an option” theme in these “failure to equip” cases, which is a viable argument and provable at trial. With that said, to now bolster that argument/theme, the National Highway Traffic Safety Administration (NHTSA) has promulgated a new FMVSS that will require AEB as standard equipment on all vehicles in 2029 with a gross vehicle weight rating of 10,000 pounds or less. We will now be armed with the argument that “the auto industry only cares about safety when the government regulators make them.”

FMVSS 127 – Automatic Emergency Braking

Beginning September 1, 2029, a new Federal Motor Vehicle Safety Standard (FMVSS) mandating AEB is set to go into effect. (See 49 CFR § 571.127.) Its purpose is to “reduce the number of deaths and injuries that result from crashes in which drivers do not apply the brakes or fail to apply sufficient braking power to avoid or mitigate a crash.” (§ 571.127 Standard No. 127; Automatic emergency braking systems for light vehicles.)

The requirements of FMVSS 127 include:

Forward Collision Warning (FCW)

Automatic braking for vehicles and pedestrians

Day and night functionality

Operation at speeds up to 62 mph

Detection of both moving and stopped vehicles

Pedestrian detection at speeds up to 37 mph, day and night

Conclusion

AEB and LKA are literally lifesaving technology. When reviewing your potential third-party cases and workers’ comp cross-over cases, make sure to keep an eye out for cases where the lack of this technology on a vehicle may have played a role in the accident. I have seen many well-intentioned attorneys missing these cases. You do not want to be one of them. First and foremost, you owe it to your prospective clients to give sound and accurate advice. Secondarily, you owe it your practice.