Articles: DANGER IN THE FIELDS
Danger In The Fields: Tractor Rollovers
By John Gehlhausen
Farming is the most dangerous occupation in the United States. Farmers in the United States are more likely to be killed using tractors than any other piece of farm equipment, and tractor rollovers are the leading cause of these deaths. The National Safety Council indicates that U.S. farmers are accidentally killed at a rate of 49 per 100,000 workers while the manufacturing industry has a rate of only 6 per 100,000 workers. Farm tractors have long led the list as killers in fatal farm work accidents. James F. Arndt of Deere and Company in his landmark article entitled, “Rollover Protective Structures for Farm and Construction Tractors--A Fifty Year Review,” in 1971 noted that over the past fifty years an estimated 30,000 tractor operators have been accidentally crushed under their overturned vehicles. The Department of Transportation report to Congress on “Agricultural Tractor Safety on Public Roads and Farms” noted in 1981 that between 800-1,000 fatalities per year result from tractor-involved accidents, 60 percent of which were caused by overturning tractors. The National Safety Council in 1966 reported that more than 500 persons per year were being killed by tractor overturns. Agriculture as of 1989 had eclipsed mining as the occupation with the highest death rate. At that time agriculture’s accidental death rate, estimated to be 48 per 100,000 workers was five times higher than the national average for all industries.
Industry Recognition of the Problem
As early as 1949, it was recognized by the tractor manufacturing industry that because of the many positions and situations in which tractors are used, efforts to mechanically prevent them from rolling over were futile, and the only effective way to protect the operators was installing protective roll guards.
The Term “ROPS”
Throughout this article the author will use the term “roll bar” to describe the protective roll guard placed above the driver of a tractor to protect him or her from being injured in a rollover. This is to distinguish it from the term “ROPS” which in 1969 was coined by U.S. tractor manufacturers to describe the roll bars and seat belts which they began marketing for tractors several years earlier. The distinction between roll bars and ROPS is important because American farm tractor manufacturers as general rule did not mass market ROPS until 1966. Roll bars with or without seat belts were developed and available from sources other than manufacturers much earlier. Defense attorneys prefer to use the term “ROPS” in an attempt to create an aura complexity around a simple roll bar and seat belt. Plaintiffs’ lawyers should throughout most trials use the simple terms “roll bar” and “seat belt” to describe these safety devices. These terms are descriptive of simple and common safety equipment with which most jurors are already familiar.
Early Marketing of Roll Bars
Roll guards for tractors were sold by distributors of some tractor manufacturers as early as the 1950s. It was not until approximately 1966 and ’67 that U.S. tractor manufacturers began offering protective roll guards as optional equipment with their tractors. The efforts at marketing these roll guards have been at best, anemic. As of 1986, the National Safety Council estimated that only one-third of all tractors in use in this country had roll bars.
Roll bars are seldom retrofitted onto older tractors. This is because the owners of older tractors do not perceive enough danger to themselves to justify the expense. They regard themselves as safe drivers who know how to avoid rollovers. In addition, the tractor manufacturers have chosen not to give personal notice to owners about the seriousness of the rollover problem and the need to retrofit, even though they had given notice of much less serious hazards (in terms of number of injuries) in other recall campaigns.
The Defense Advantage in Rollover Cases
Defense counsel have an advantage in tractor rollover cases because they generally are experienced rollover litigators. They know the history of tractor roll-bar development. They also are familiar with the standard defenses and sub-defenses which have been devised over time by the manufacturers to justify their conduct. The majority of cases that have gone to trial and have been reported have resulted in defense verdicts.
In order for a plaintiff’s counsel to have a reasonable chance of success, extensive and expensive preparation must be undertaken. As a practical matter with the cost of product liability litigation being as it is, these cases cannot be undertaken for minor injuries. In addition, in jurisdictions where tort reform has severely restricted the rights of accident victims by the abolition of joint and several liability and fault apportionment to nonparty torte feasors, these cases must be carefully scrutinized to determine whether they are economically feasible to undertake.
This article is intended as a primer to assist attorneys handling cases for the many unnecessary victims and families of rollover accidents.
Tractor Rollover Danger
The American Society of Agricultural Engineers (ASAE) in their 1967 recommended Standard R305.1 dealing with operator protection for agricultural and light industrial tractors recognized that tractor rollovers occur in normal use. From the mid 1930’s to the mid 1940’s the safety committee minutes of the Farm Equipment Institute (FEI), an organization of manufacturers of farm equipment, recognized that tractors were tipping over with frequency. By 1949, the tractor manufacturing industry knew that the “only effective way to substantially reduce rollover fatalities would be to provide operator protection against crushing...”
Technical Feasibility of Manufacturing Roll Bars Before 1966
History shows the technical feasibility of manufacturing tractor roll bars before 1966. The idea for roll bars came from racing vehicles. By 1947 roll protection devices were being manufactured for Allis-Chalmers. During the 1950s and 1960s before 1966, eight patents for roll guards on tractors were issued by the U.S. Patent Office.
Because of the frequency of rollover injuries, in 1954 Sweden began extensive testing of roll bars. U.S. industry had representatives there who were observers as early as or before 1960. Because roll bars were not being purchased when offered as optional equipment, in 1959, Sweden implemented a regulation requiring that roll bars be mounted on all new tractors because roll bars were not being purchased when offered as optional equipment. In 1965 it further required that all tractors previously sold without roll bars be retrofitted.
International Harvester Corporation (IHC) was selling tractors in Sweden before the Swedish testing program began in 1954. Engineer William Clark Jackson, who worked with IHC from 1954 through 1982 and was involved in their roll guard program testified that IHC was aware in the mid-1950s of what was happening in other parts of the world regarding overhead protection. He indicated that IHC’s tractors which were sent to Sweden after the July 1959 regulation had overhead protective devices mounted thereon. Engineer Carlton Zink, who was employed by John Deere from 1950 - 1968, was involved in their rollover protective programs. For six years, he was the Chairman of the Agricultural Safety Committee of the ASAE and also a member from the early 1950s of the safety subcommittee of the Advisory Engineering Committee of the FEI. Mr. Zink has testified that while he was at John Deere in the 1950s he was aware from Swedish literature of their roll-bar development.
By 1955 the United States Forestry Service considered rollover protective devices to be feasible enough to conduct the Shasta Dam rollover canopy tests. In November of 1955 and June of 1956, the U.S. Forest Service tested the various safety tops to see if they could withstand the pressure of impact of tree falls and successive rollovers. These were known as the Shasta Dam Tests. The canopies were subjected to 70,000 pounds of pressure per square inch during the rollovers.
By 1956 roll bars were sufficiently well recognized as a safety device for Modern Insurance Company to publish advertisements recommending the use of roll bars on farm tractors.
Also, in 1956 at the University of California at Davis, professors Lamouria, Lorenzen, and Parks developed a rollover safety frame for wheeled farm tractors. Industry had observers watching their work. Carlton Zink, the John Deere engineer, was also aware of this rollover protective work. In December 1957, these professors published a report that demonstrated that the two-post type of roll bar could be attached to both tricycle and utility type tractors to protect the operator in the event of rollover.
In 1948 or 1949 mechanic Ernest Selby built his first protective canopy for tractors. It was originally designed to protect operators from swinging tree branches and falling timbers in lumbering areas. Tractors with his roll guard, however, also survived actual rollovers. In 1957 he patented his tractor roll guard and noted that it provided rollover protection.
Selby recognized that there were different tractor frames and weights on the market in the 50s. These differences caused no difficulty in adjusting the fit of his safety canopy. Although Selby did not mount his canopy on tricycle configuration farm tractors, he would not have had any difficulty doing so. It would not have taken any different technology to mount them on tricycle tractors instead of industrial tractors. Mounting could have been done by any knowledgeable welder. Past experience and common sense told him how strong to make these canopies so that they could withstand the rollovers they withstood at the U.S. Forestry Services Shasta Dam tests. There was enough of a need for these canopies that he was able to sell them for profit.
Selby sold several thousand of these canopies through distributors for IHC, Caterpillar, Allis-Chalmers, and other smaller tractor companies. Some of the tractors for which he sold canopies were used in agriculture. In addition, shortly after 1958 Ovid Holmes, an inspector of the California Industrial Safety Commission, left his employment and went into the business of manufacturing safety tops for farmers with rubber tire tractors.
When tractors with Selby’s canopies rolled, none of his canopies collapsed and caused injury. In 1990 his canopies were still performing as they were designed.
In 1947 or 1948, while Holmes was still a district engineer of the California Department of Industrial Relations he met with representatives of International Harvester Corporation (IHC), Oliver, Caterpillar, and Allis-Chalmers to try to convince them to mount roll bars on their tractors. They told him they could not afford to manufacture roll guards to meet only California requirements when they were selling equipment worldwide.
In 1958 the North Pacific Division of the U.S. Army Corps of Engineers considered rollover protection to be sufficiently developed to initiate a design requirement for protective canopies of sufficient strength to resist the forces of rollover for tractors used in heavy construction. In 1959 the U.S. Department of Interior, as well as the states of Oregon, Washington, and California changed their protective design requirements from only falling and flying objects to include overturn protection.
In 1959 the North Dakota Highway Department recognized the need for rollover protection for its tractors. Before then its employees had had numerous rollovers with resulting injuries. Warren I. Hanson, who was responsible for the safety of highway maintenance crews, got the idea for building roll bars from looking at lightweight brush canopies on logging tractors during a vacation in Montana. Because there were many makes of wheeled tractors, the highway department did not initially decide on any one particular type of roll bar. Instead, each of its seven highway districts was instructed to use materials available and to come up with their own design. Installation of the rollover protective devices began the same year (1959) for approximately $40 per frame for materials. This work was known to the tractor manufacturing industry before 1962 and was transferable to agricultural tractors.
In 1961 the Illinois Highway Department started equipping its mower tractors with roll bars. Some tractor manufacturers also began work on protective roll devices years before they were universally offered as options in 1966-67. In 1953, Oliver laid plans for a new line of tractors which could have roll bars strong enough to support twice the weight of a tractor in the event of rollover mounted on the rear axle casings. In 1960, the company produced two prototype models of two-post roll guards for their tractors. It chose not to market its roll bars because a survey of its dealers, not tractor operators, indicated that dealers believed roll bars would not sell as an option.
In 1959, John Deere constructed its first tractor roll bars with seat belts. They then stopped work on the project because of the strain on their engineering department caused by the need to get their new 4- and 6-cylinder tractor models into operation. Work was not resumed on the roll bar project until 1963.
To prove the technical feasibility of constructing a useable roll guard for the tractor at issue, it is often possible to have one manufactured using the technology and materials available at the time of tractor manufacture. The tractor then can be subjected to rollover tests with the guard which further proves technical feasibility. These tests should be videotaped and the videotape played for the jury.
Economic Feasibility of Manufacturing Roll Bars Before 1996
The ultimate roll bar design selected by the North Dakota Highway Department was the two-post type that could be produced for about $40. The cost of roll bars in Sweden varied from $50 to $100. Manufacturing costs in the United States for roll bars in 1963 varied from $50 to $100. Retail prices varied from roughly $105 to $200 each, and this was when selling them as an option, not as standard equipment, which would have reduced the cost. The economic feasibility of roll bars pre-1966 is further shown by the fact that during the 1950s they were being built by numerous after-market manufacturers.
Late Recognition of Need For and Development of Roll Bars by U.S. Tractor Manufacturers
Despite the fact that U.S. tractor manufacturers were aware as early as the mid-1950’s of what was happening in other parts of the world regarding tractor overhead protection, and that their tractors were being sold in Sweden with roll guards after July of 1959. IHC, for one, did not “recognize” the need for roll bars on its tractors in the U.S. until the early 1960’s. This is despite all the previous work and regulatory action regarding tractor roll guards which had been done in the 1950’s and earlier. In addition, IHC did not even commence substantial development work on what later was called its ROPS until 1965. Other U.S. tractor manufacturers with the exception of John Deere, who had begun work in 1959 followed suit.
Roll Bars Save Lives
Pre-1966 roll bars were unequivocally successful in saving lives. Between 1959 and 1966 there were forty known rollovers of tractors with roll bars in Sweden. In these rollovers there was only one death, and that was of an operator who tried to jump free and was crushed. After the North Dakota Highway Department put roll guards on their tractors, at least through 1966, they had no more rollovers that caused permanent injuries or deaths. A study done of overturning accidents from 1966 through 1969 presented at the 1969 winter meeting of the ASAE by J.B. Liljedahl and F.R. Willsey reported on a study done on a hundred tractor overturn accidents in Nebraska. It indicated that all the fatalities involved in the overturns occurred when roll bars were not used. In 1971 an editorial in the John Deere publication “The Furrow,” reported that it was unaware of any rollover fatalities occurring of tractors equipped with a roll guard or roll guard cab, and this was nearly five years after these devices began to be installed by tractor manufacturers. The effectiveness of ROPS is now so well recognized that Case-International Harvester offers a free $50,000 two-year insurance policy covering death in a rollover to anyone who purchases a tractor with a ROPS installed and is using it at the time of the accident.
Industry Knew That Roll Bars Would Not Sell as Optional Item
Roll bars, when they were finally introduced as an optional item by the tractor manufacturers, did not sell. They would have sold, however, if they had been installed as standard equipment on the tractors being sold at the time.
Industry was aware that there would be a great deal of resistance to overcome if they did not sell roll bars as standard equipment. As early as 1931, Agricultural Engineering magazine reported that farmers do not realize the value of safety equipment and therefore it isn’t insisted upon. Former IHC engineer, William Clark Jackson has testified that from his experience while at IHC it was known that safety was not a saleable item. People had to be motivated to want and use safety devices. It was well known that when Ford undertook a promotional sales strategy to emphasize the safety features of their 1955 car, sales of that car decreased substantially. As a result, IHC knew in the late 1950s that if a safety feature was not a high priority to the buyer, he or she would make the decision to purchase based on some other higher priority aspect.
As early as 1966 the ASAE was advised, based on the earlier Swedish experience, that to have roll bars accepted it would be necessary to make their use compulsory. In 1968 T. David McFarland, head of the National Safety Council’s Tractor Overturn Protection Program (TOPP) designed to entice farmers purchase roll bars, wrote in an article published in the October edition of Agricultural Engineering: “The manufacturers are at fault in advertising a machine as standard and selling guards as extras. The guard is as much an integral part of a standard machine as the electrical circuit.
The fact that industry offered ROPS as a option insured that they would not be widely purchased. This is because if a safety device such as a roll bar is offered as an option, people do not believe that it is necessary. If it were necessary, the expectation is that it would be a standard part of the machine, like brakes on cars. Therefore, if it were an option, it would be in the same category as tinted glass or car stereo--nice, but not necessary.
The manufacturers’ Farm and Industrial Equipment Institute (FIEI), which wrote the first ASAE standards dealing with rollover protection (Standard R-305.1 and R-306), in 1967 required that roll bars be a standard item on new tractors. Standard R-305.1 dated 1967 states that tractors “shall” be equipped with a protective frame meeting the rollover protective frame requirements of ASAE Standard R-306. Standard R-305.1 was a recommended standard of the ASAE. It subsequently was adopted as an official standard in February of 1970. It wasn’t until 1972 that the ASAE, realizing what they had done, changed their standard to make roll bar installation on tractors optional--at least as to those manufacturers who chose to follow the voluntary ASAE standard. In 1985, they finally changed the standard to require roll bars on all new tractors as it had been from 1967 to 1972.
The voluntary ASAE standard dealing with rollover protection as originally drafted was in comportment with the views of Ernest Carlson, now deceased, former IHC chief engineer of industrial equipment and chairman of the FIEI committee that drafted the first ASAE standard on rollover protection. He testified that roll bars should be standard equipment on tractors and that offering ROPS as optional equipment was not an effective safeguard for the hazards of rollovers. Thus, when the tractor manufacturers offered roll guards as an option in 1967, they were in violation of their own ASAE standard.
Standard Roll Bars Would Not Have Caused Tractor Buyers to go to Competitors
The tractor manufacturers generally argue that tractor purchasers might have gone to competitors if roll bars were placed on tractors as standard equipment. Cross examination, however, can be used to establish that a roll bar on a tractor would just be one small consideration of many factors which would be considered in determining which tractor to purchase. This would be particularly true in light of the fact that if the tractor had a roll bar that was not wanted, it could be easily removed. Much more important factors farmers would consider than whether the tractor had a roll bar would be tractor quality, availability and reliability of dealer service, reputation of the manufacturer, brand loyalty, personal friendship with the dealer, length and extent of warranty, and total price. Every dealer and tractor manufacturer had different profit margins to make. Considered in its logical context, it is doubtful that a removable roll bar mounted on a tractor as standard equipment would be a deciding factor for any farmer on the brand of tractor to purchase.
Incompatible Implements Did Not Prevent Standardization of Roll Bars
The manufacturer will often argue that it could not put roll bars on the tractor as standard equipment because it would be incompatible with the use of certain implements for which the tractor was designed. In such event a concession should be obtained that every tractor has incompatibility with some implement. This is often why many, if not most, farmers have more than one tractor model.
If one of the plaintiff’s experts was involved in the roll bar program of any manufacturer, he often will be able to testify that these implements were not enough of a problem at the time the roll bar was developed to be considered as a reason for not mounting the bars as standard equipment. In addition any expert can testify that if roll bar incompatibility were a problem, the roll bar (which is generally held on with four bolts) could simply be removed. When the farmer was finished with the incompatible implement, the roll bar could be remounted. This would take 30 to 45 minutes. This would be no different than mounting or removing any other implement used with the tractor that was incompatible with other uses or functions of the tractor.
In contrast to the implements that were incompatible with a roll bar on the particular tractor, your expert should be able to verify that there were 30 to 50 classes [underscore] of implements that could be used with the particular tractor installed with a roll bar. In this regard using one of the defendant’s farm implement dealers as an adverse witness to testify to these classes of implements can be very effective. Your expert should be able to testify the tractor with a roll bar installed could have performed 99.9 percent of the functions for which it was designed. No justification exists for saving 1/10th of 1 percent function when comparing this loss of function with the deaths and serious injuries that occur every year from using tractors without roll bars.
Swedish Roll Bar Technology Was Transferable to U.S. Tractors
Sweden in the late 1940s and early 1950s recognized that with highly developed agricultural mechanization the number of accidents involving tractor overturns was increasing sharply. They also realized from experience gained with automobiles that car bodies often proved adequate protection to passengers in rollover accidents. In 1954 the National Swedish Testing Institute for Agricultural Machinery undertook its first test of a rollover protective device.
The Swedes developed the pendulum impact test and the compression load test to ascertain the strength of their roll bars. The pendulum impact test consisted of striking the roll bar mounted on the tractor with a weight attached to a pendulum. The compression load test attempted to deform the roll bar by placing a static load to the top of the cab in such a manner that the crushing force simulates a real rollover. Both tests were in existence by 1959. Although there was no problem with using the pendulum impact test except convenience, the American Society of Agricultural Engineers’ roll bar standards of 1967 used primarily the compression load (static) test. John Deere, however, used the Swedish pendulum test to develop its two-post roll bar on which it began work in 1959.
A patent of a Swedish protective frame was filed in this country on January 11, 1957, and was issued in 1961.
No reason exists why U.S. tractor manufacturers could not have begun work on protective roll guards at or near the same time that the Swedes did. This is particularly true in light of the fact that the U.S. tractor manufacturing industry was aware of the Swedish work as it progressed. Edwin Tanquary, an IHC engineer, was present in Sweden in 1954 to observe the Swedish rollover test. The Swedish tests used some American tractors with the protective roll guards including John Deere and IHC models.
Because of their failure to promptly follow-up with the knowledge they learned about Swedish rollover protection, the manufacturers will seek to exclude evidence of the Swedish development on the basis that it is not relevant. This argument often centers on the claim that the Swedish tractors were of a lighter weight than U.S. tractors or were of different configurations.
In actuality there was a great overlap in weights between U.S. and Swedish tractors. In the 1960s and ’70s U.S. tractor manufacturers had tractors ranging from 4,000 pounds to 12,000 pounds. In Sweden they were testing tractors which exceeded 16,000 pounds. Before he sold his protective canopy business in 1958, U.S. roll bar manufacturer, Ernest Selby, had no difficulty adjusting his protective canopies to fit the different weights of tractors. This is because weight increases the amount of energy. Therefore roll bars merely need to be scaled, i.e., heavier roll guards are required for heavier tractors.
Different tractor shapes do not create any insurmountable difficulty in mounting roll bars. Harald Moberg, who headed up the Swedish roll bar development work authored an article entitled, “Tractor Safety Cabs. Test Methods and Experiences Gained During Ordinary Farm Work in Sweden,” published by the National Swedish Testing Institute for Agricultural Machinery in 1962 which shows numerous photos of tractors of all shapes and sizes including John Deere, IHC and Allis-Chalmers tractors mounted with protective roll guards.
The initial testing work done on protective roll guards by the ASAE in 1966 was actually done for both agricultural and light industrial tractors. This resulted in the first ASAE standard on rollover protection R.305.1 being published in December 1967.
The welding processes, the bolts, and the steels would not be different whether the tractor was to be used in farming, industry or construction. Four and six-post roll bars were developed before 1963 for use on the common tricycle configuration tractor. There was nothing technical about the design of the two-post roll bar that would have prevented it from being constructed and mounted on a tricycle configuration tractor in the early ‘50s. Roll bar manufacturer Ernest Selby has testified that he would not have had any difficulty in mounting his roll bar design on the typical tricycle-type farm tractor that existed in the 1950s. Shortly after Selby sold his roll bar business to Berglund Truck and Tractor Company in 1958, California Industrial Safety Commission employee, Ovid Holmes, went into business manufacturing roll tops for farmers with rubber tired tractors.
Industry Knew That Education Would Not Prevent Rollovers
It has long been recognized that education and training had very little success in preventing tractor accidents. Henry Dalloz, an IHC employee who frequently testifies for his company in these cases has admitted that the technique of the farm implement industry of using the tactic, strategy, or educational program of saying “avoid rollover” to eliminate injuries from tractor rollovers goes back into the 1940s. Yet, despite this technique, hundreds of people every year continue to be killed. Former IHC engineer Ernest Carlson indicated that between the manufacturer, dealer, purchaser, and tractor consumer, the manufacturer was in the best position to know exactly what was going to happen if and when a rollover occurred. He explained that rollovers are insidious; that unless one has experience with them, the attitude exists that it can not happen to me.
Finally, in June 1968 IHC engineer, D.L. Stevenson, coauthored an article entitled, “Development of Protective Frame and Cab; Recommended Practice for Agricultural and Light Industrial Tractors in the United States.” In it, Mr. Stevenson wrote,
“Education institutions and various other groups have diligently promoted work on personal safety for many years. Yet, in spite of these efforts, accidents still occur at an alarming rate. We, the industry, have accepted the challenge of providing safety features on tractors to protect the operators since our experience has clearly indicated we cannot prevent accidents from occurring. (emphasis added)
What Stevenson stated was certainly not a new proposition. Lamouria, Lorenzen, and Parks in their 1957 paper, “Driver Safety Frame,” stated with regard to the number of rollover accidents, “These statistics lead to the premise that the driver education by itself was insufficient to prevent accidents...one solution to the problem was to hold the driver in his seat and protect him from impact through the medium of a frame.” Liljedahl and Willsey in their paper entitled, “A Study of Tractor Overturn Accidents,” presented at the 1969 winter meeting of the ASAE noted that their statistics showed that most operators involved in tractor rollover accidents were experienced operators.
Former John Deere engineer Arnold B. Skromme in his unpublished paper entitled, “At Last...Safety is Available for the American Farmers!” (1987) with regard to this issue stated,
Is More Education the Answer?
NO! Education has done more to hurt our cause than to help it, as it convinces people that much is being done to reduce safety and the underlying hazards or causes are not attacked. Education in the last 50 years has not decreased our death rate. It only lays a band aid on a very serious problem. It causes people to relax and go to sleep.
When some do-gooder says: “All we need to do is educate the farmer,” all they are really saying is: “The farmers are at fault...let’s educate those dummies so they won’t make any more mistakes.” That is absolutely false, as farmers are no more careless than any other worker...they have the combined talents of a good worker plus the abilities of a very capable manager.
Often another great “Safety Campaign” is then undertaken to educate the farmer again... throwing money away instead of using it to purchase retrofits. This practice has been going on for 40 years, all to no avail...our farm death rate has changed little.
Failure of Tractor Manufacturers to Exercise Reasonable Care to Notify Tractor Owners of the Need to Purchase Roll Bars
Most tractor manufacturers have long since stopped manufacturing roll bars for their older model tractors despite the fact that they still produce parts in order to keep those tractors running. This fact alone gives a strong indication of the lack of concern of the manufacturers to have roll bars retrofitted on their tractors. Few manufacturers publish information for their customers telling where roll bars for their older tractors can be purchased from after market manufacturers.
The most effort at getting their customers to retrofit was made by the manufacturers in the late ‘60’s and early ‘70s. This was done by virtue of poster-like stuffers that would be mounted on the walls at their dealerships (assuming the dealer was so disposed) or included in plastic bags into which manuals for old tractor models were placed. In addition, manufacturers frequently would run short articles in company-produced trade magazines which were sent unsolicited to customers. In this regard, between 1966 and 1974, IHC ran one article per year which even mentioned ROPS.
In 1967, the National Safety Council established its Tractor Overturn Prevention and Protection Program (TOPP) which extended into the early 1970s. TOPP produced packets of materials to be sent to various farm organizations to teach farmers to avoid rollovers and to encourage ROPS purchase. The TOPP program also produced slides and public interest radio spots which could be used for this purpose. They also published occasional news releases to newspapers in rural areas stressing the need to purchase ROPS. This program overall was ineffective in obtaining the installation of roll bars on tractors manufactured without. In 1986, the National Safety Council itself estimated that only one-third of the nation’s tractors were equipped with ROPs.”
Instead, the tractor manufacturers should have conducted a direct mailing by certified mail with return receipt requested to record tractor owners or owners that could be located through dealers. In addition, the dealers should have been required to canvas the territory in their dealership for tractors without roll bars and to advise the owners of the absolute need to purchase roll bars and the reasons why roll bar use was essential. The tractor manufacturers have conducted retrofit programs for other products which included directly mailing to their implement owners information regarding the need for retrofitting. In addition, implement manufacturers have also conducted programs where they even had their dealers search in the fields for certain kinds of tractor implements so that changes could be made. The manufacturers could have implemented programs to insure that when older tractors were brought in for repair the dealer would recommend the purchase of a roll bar. In this regard it is helpful to take the deposition of a local tractor dealer of the defendant in order to inquire as to the efforts of the tractor manufacturer to have the dealer urge the installation of roll bars.
Once machines were located the owners should have been advised of the cost of roll bars and the dangers of using tractors without roll bars, including the number of deaths that occur each year from roll barless tractor rollovers. The benefit of roll bars should have been explained in terms of cost per year. They should have been told that instead of costing $250 to install a roll bar it should be viewed as protection costing $25 per year for their workers and/or family who operate the tractor. The effectiveness of such a personal contact program was verified by former IHC Chief Engineer of Industrial Equipment, Ernest Carlson, who testified that once he personally explained to customers in the field how easy it was to roll a tractor and what would happen if it occurred, he believed many converts to roll bars were made.
Request production of any documentation indicating efforts by the tractor manufacturers to have customers retrofit their tractors with roll bars. If such documents are produced, close examination should be made. One will often discover that brochures and posters containing language urging the purchase of roll bars will also contain pictures of their new tractors being used without. In addition, they often will show that any emphasis on rollover protection was only a very minor portion of the overall safety brochure. Pamphlets and brochures produced by tractor manufacturers dealing with rollovers normally are totally silent with regard to information concerning the number of tractor rollovers occurring each year, the fact that tractor rollovers cannot be prevented except by non-use of the tractor, and that if rollover occurs, it is unlikely the operator will have time to jump free and will probably incur serious permanent injuries or be killed.
Tractor advertising brochures of the manufacturer after 1966 (when roll bars began to be marketed by the tractor manufacturers) should be requested even if they are not of the particular model in question. These brochures often will show the tractors of the manufacturer being used without roll bars. They give a good indication of just how seriously the manufacturers were urging customers to purchase ROPS.
Hesston Corporation has adopted a warranty form that customers are required to sign that indicates if a roll guard isn’t desired for a tractor the customer agrees to indemnify Hesston should anybody be injured as a result of the lack of the safety device. Other manufacturers, if they were serious about having customers mount optional ROPS on tractors, could have done the same.
Later editions of the manual for the tractor at issue should be requested to see if they have been modified to state on the cover--or just inside the cover--the need to purchase a ROPS and why it is so important. Often one will find that while these manuals have been modified by the manufacturers for other reasons, they have not been modified to instruct the tractor owner of the need to purchase a retrofit ROPS.
Subsequent modifications of the tractor by dealers installing new warning decals (paid for by the manufacturer) should be the subject of discovery, particularly of the tractor dealer. No reason exists why a warning decal stating “Do not use this tractor without a ROPS” could not have been placed on the tractor as were other warning decals when the tractor was brought to the dealer for repair. In a similar vein, International Harvester sponsored a program for the Future Farmers of America to place decals reading “Please be careful. We love you.” on implements owned by the family of the FFA member. This could also have been done with regard to sticker warnings cautioning against tractor use without ROPS protection.
Some Theories of Liability
Five theories of liability applicable to a tractor manufacturer because of lack of installation of a protective roll bar or ROPS can generally be used in a product liability action: negligence and strict liability for defective design; and in addition, claims for negligence and strict liability should be made based on the fact that the tractor was sold without an adequate warning to the operator of its danger in being used without a roll bar. This is based on the theory that the education to avoid rollovers is totally inadequate as set forth at section I.K. above, and that the only effective warning with regard to any danger presented by using a tractor without a roll bar is a warning that states “Do not use this tractor without a protective roll guard or ROPS.”
The case should also be pled on a negligence theory alleging that the manufacturer failed to use reasonable care to warn the tractor owner of the need for a ROPS.
Generally, the implied warranty theories of the U.C.C. of merchantability and fitness for a particular purpose are not used because they are too difficult to prove in light of the fact that most tractors still are not equipped with roll bars.
Strict Liability for Failure to Install Roll Bars
In absence of persuasive authority in the jurisdiction involved, the manufacturer will argue that the proper test for determining whether the tractor in question without a ROPS was defective and unreasonably dangerous is the consumer expectation test. This test basically holds that a product is unreasonably dangerous in its design if it creates a risk of harm to persons or property which would ordinarily not be expected. [Orthro Pharmaceutical Corp. v. Heath, 722 P.2d 410, 413 (Colo. 1986).]
The risk benefit test, on the other hand, holds that a product is unreasonably dangerous because of a defect in its design if it creates a risk of harm to persons or property which is not outweighed by the benefits to be achieved from such design. [Comacho v. Honda Motor Co. Ltd, 741 P.2d 1240 (Colo. 1987).]
Post Sale Duty to Warn
A majority of jurisdictions have found a post-sale duty to warn appropriate in product liability cases. Walton v. Avco Corp., 557 A.2d 372, 378 (Pa. Super. 1989). See also Hayes v. Arlen Co., 462 N.E.2d 273 (Mass. 1984); Noel v. United Aircraft Corp., 342 F.2d 232 (3rd Cir. 1964); Braniff Airways, Inc. v. Curtiss-Wright Corp., 411 F.2d 451 (2nd Cir. 1969); Allee, Post-Sale Obligations of Prod. Mfrs., 12 Fordham Urb. L.J. 625 (1984); Royal, Post-Sale Warnings: A Review and Analysis Seeking Fair Compensation Under Uniform Law, 33 Drake L. Rev. 817 (1983).
In Romero v. Navistar Int’l Transp. Corp., F.2d (10th Cir. 1992) the 10th Circuit Court of Appeals, construing Colorado law, determined that a post-sale duty to warn the owner of a tractor to purchase a protective roll guard did exist. The court specifically held that the following instruction given by the trial court was proper:
A manufacturer has a continuing duty to use reasonable care to protect the users of its products from dangers which it knew or should have known about. The manufacturer is required to keep informed about its products from research, accident reports, scientific literature and other sources, reasonably available to it, and to use reasonable methods to advise the users concerning hazards which the manufacturer learns about during the expected useful life of the product.
These cases at first appear to be relatively simple to try and win because an easily designed and manufactured safety device has been omitted from a patently dangerous farm implement. This appearance is deceiving, however. The manufacturers are generally represented by capable and experienced counsel, familiar with every defense and able to use their arsenal to defeat even the most meritorious claims.
With diligence and a detailed review of the literature, however, plaintiff’s counsel can win these cases. Industry literature, coupled with testimony or depositions from those who were instrumental in roll-bar development, can destroy manufacturers’ attempts to justify their failure to offer roll bars until the mid-1960’s and their offering them thereafter as an optional item only.
Unless manufacturers are forced by losing enough of these suits at least to personally notify owners of the necessity and need for retrofitting their tractors with roll bars, tractor rollovers will continue to take their appalling toll.