Electric Car Windows.

A three year old left alone in a running car with other children in front of her house in Colorado Springs was killed went she was choked by an electric car window before the other children in the car could notice in time. As somone who got his fingers momentarily crushed in a similar window last month, which was excruciatingly painful and virtually impossible to release personally, even though it lasted only a moment and didn't cause lasting injury, I can relate. About 20 children under fifteen years of age are killed each year by similar electric window incidents.

(It is worth noting, however, that children who are more than infants and younger than fifteen are about two-thirds less likely (see Table 109) to be killed in accidents than any other age group despite the fact that they are vulnerable to many threats like venemous bites and dog attacks that would rarely kill an adult. Parents take better care of their children than almost anyone else takes care of themselves from a safety perspective.)

Rocker and toggle switches raise and lower windows when pressure is applied, even if accidentally. Lever switches, on the other hand, must be deliberately pulled in order to raise a window.

Sarah's death comes five months after Congress passed new requirements for automakers regarding electric windows. Provisions in the 2005 transportation bill mandate lever switches, said Janette Fennell of Kids and Cars.

"There is still no date-certain when this will go into effect," said Fennell, who launched a national campaign against rocker and toggle switches in 2003. "The automakers come back and say ladies with long fingernails in their focus groups don't like lever switches."

Fennell said lever switches and auto-reverse mechanisms - in which closing windows stop and retract on contact with hard objects - are standard in Europe and Japan. While the top U.S. automakers include these safety features in cars bound for Europe, they typically are not options in domestic models, she said.

Conservatives will note that the car maker is not the only one at fault in this situation, although the facts reveal that this was not a case of a negligent parent either. The father left the children in the car with another adult, an eight year old and a ten year old, when the adult went off on one of those "just a minute" errand. From a legal point of view, a car maker could still argue that there are others at fault.

But, safety measures aren't about protecting people who are perfectly careful. They are about identifying common safety lapses that people, being human, make and engineering ways to keep them from happening. Accidental deaths has declined steadily over the years mostly through better design of potential threats, not through improvements in character of time (although proponents of the Flynn effect might argue that we have simply gotten smarter, just as we have gotten taller, perhaps due to better diet and living conditions, as opposed the theory that we have simply gotten better at academic style tests without actually getting smarter).

Furthermore, one is suspicious about the motives of car makers when the won't even allow domestic car buyers to obtain safety features that are standard and mandatory in the rest of the developed world. This is certainly a case where a remedial measure has been provided to consumers on an economic basis elsewhere before the accident happened, and where the cost of not having the remedial measure is quite well known from government statistics. How much is saving twenty children's lives a year and preventing many more painful injuries, many of which will never be reported, like my own, worth? This is the fundamental question that hangs in the balance under judge Learned Hand's test for determining whether there is a duty to take measures to prevent harm that every law student studies in law school. Under Colorado law, the maximum exposure an automaker has in a case like this one is $250,000 and out of pocket litigation costs other than attorneys' fees, and there is virtually no change that attorneys' fees or punitive damages would be awarded in a product liablity suit, even if it were found to be 100% responsible (which is unlikely). This is too little in my opinion to either fully compensate for the loss or to provide the proper incentive to companies like car manufacturers.

This is also a case where the market cannot be blamed. Average consumers have not been permitted to buy a safety feature that many, particularly at the higher end of the automotive market, would probably be willing to pay a considerable amount to obtain. For example, witness the popularity of Volvo station wagons with parents when they were the only cars on the market that offered side air bags, something I heard many buyers of those vehicles state was a major motivating factor in their purchase of the model despite the fact that it was considerably more expensive than the domestic competition. This feature is not available in the domestic market, very likely precisely because of concerns that it would open up car manufacturers to product liability lawsuits asserting that the feature must be standard for the product to not be defective.

Even state and local efforts to address the problem by mandating such safety features in cars could be void in the face issues of federal pre-emption, because there are federal laws that establish uniform safety standards for vehicles that are sold in a national marketeplace on a regulatory basis, something that the commerce clause allows Congress to do (although the defense that car makers are not required to do anything that Congress or a regulation does not expressly require them to do has failed repeatedly; common law liability for defectively designed products remains effective even though it is state law).