Two years after their 7-year-old daughter Shelby almost died in an all-terrain vehicle rollover in 1999, Bill and Sherry Apple started to think about a lawsuit.

An 11-year-old girl lost control of a 585-pound Arctic Cat that flipped backward onto Shelby, a passenger. For 15 minutes, she could not breathe. Brain and spinal damage left Shelby unable to walk or talk.

But when the Apples asked about suing Arctic Cat, lawyers were blunt.

Forget it, they said.

As the ATV industry’s lobbyists fight to shape regulation in Washington, D.C., its lawyers have built a solid bulwark around their product in another arena: the courts. Injured riders once won huge verdicts, among them a landmark $5.7 million case that went to the Supreme Court. But that was long ago.

Lawsuits claiming ATVs are dangerously unstable flourished in the 1980s – until the warnings took effect as part of a legal settlement through which the industry avoided harsher regulation. Now, lawyers for the companies and plaintiffs alike say the day of big-time jury verdicts in ATV cases is over.

The reason, according to plaintiffs’ lawyers, is that safety warnings are a formidable liability shield.

“Consumer product warnings are a pretty smart idea if you’ve got a problem with the safety of a product and you want a defense when it comes back to roost,” said William Gaylord, the lawyer who filed the Supreme Court case against Honda before the agreement on safety warnings took effect in 1988.

The ATV manufacturers insist that their product is safe when used properly and that warnings are to protect riders. But their own lawyers freely acknowledge that the warnings are a powerful tool in the courtroom.

“The labels gave us the defense that, “Hey, we told you,”‘ said Doug Somers, a former Honda corporate attorney who practices in Tacoma, Wash. “They made a whole lot of sense to juries.”

Critics say the ATV warnings are unusually sweeping and can be ambiguous, advising against things such as “excessive” speed or hills that are “too steep … for your abilities.”

“Their advertisements show people riding up hills,” said Ed Silva, a Philadelphia lawyer who earlier this year settled a rollover case with Yamaha. “They call them all-terrain vehicles. I think steep terrain is part of all terrain.”

Pivotal Case

In the 1980s, America fell in love with ATVs. Sales skyrocketed, as did reports of injuries and deaths. Lawsuits came just as quickly. Three-wheel ATVs dominated the market and came under attack as a rollover-prone design.

As the industry struggled to defend itself, the top executive at American Honda laid out what would become an industry mantra. “There is no problem with the machine,” Tetsuo Chino testified at a 1987 trial in California. “The problem is with the rider.”

The strategy anchored Honda’s defense in Gaylord’s landmark case.

In 1985, Karl Oberg tried to climb an embankment on his brother’s three-wheel Honda. Instead of cresting the hill, the machine flipped over, smashing into his face. The 19-year-old Oberg underwent multiple reconstructive surgeries. Two years after the accident, he sued Honda in Multnomah County (Ore.) Circuit Court.

Gaylord argued Honda had been put on notice about the machine’s instability. Honda said Oberg was at fault. Jurors awarded him $735,000 in actual damages and $5 million more to punish Honda for selling an unsafe product.

The case made national headlines, and underscored the huge financial stakes the cascade of lawsuits posed for the ATV industry. Honda appealed the Oberg award all the way to the U.S. Supreme Court and lost.

But long before the case was resolved, the ATV companies were at work on a remedy for their litigation woes.

Under pressure from the U.S. Consumer Product Safety Commission and Justice Department, the ATV companies came up with a plan to make sure consumers would see multiple warnings about the hazards of riding.

Manufacturers and the agency each brought in experts to develop the warnings, and the two sides hammered out details adopted as part of a 1988 legal settlement that took three-wheel ATVs off the market, said Leonard Goldstein, a fomer agency lawyer. The warning regimen required placing four labels on the machine and alerting riders to 26 hazards in owners’ manuals.

Among them: Never turn “improperly” or operate an ATV at “excessive” speed, on “excessively” rough or loose terrain, or on hills that are “too steep.” The settlement also required manufacturers to develop voluntary industry standards for ATVs. One required a “pitch” standard – a rough measurement of front-to-back stability.

Debateable protections

The standards and warnings, buttressed by the imprimatur of the government’s top consumer agency and Justice Department, gave ATV companies a powerful argument in court. The companies ran with it.

“We proved the accidents happened because of rider behavior,” said Somers, the former Honda lawyer who worked on cases at the time, “and that behavior was warned against.”

Ralph Chapman, a Mississippi attorney who has represented dozens of injured riders, said the warnings “aren’t protecting anybody. They’re providing defenses for manufacturers in court.”

“When one of these accidents happen – and the manufacturers expect them to happen – they just open up those warnings and say you weren’t supposed to drive it on a hill,” he said.

Experts say warning labels are a last resort when a hazard can’t be designed out of a product. They work best when they are specific. But in the case of ATVs, records show riders ignore one or more warnings in more than 80 percent of fatal ATV accidents, evidence that consumers don’t take them seriously.

“The perception of risk is just not there,” said Carol Pollack-Nelson, a warnings expert who formerly worked at the Consumer Product Safety Commission. “You can put the biggest, best warning on certain products,” she said, “but there are some products for which there is an inherent risk that can’t be addressed by a warning label.”

Susan Goldsmith is a staff writer for The Oregonian of Portland, Ore.

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