“Dangerous Instrumentality”: The Bystander as Subject in Automobility

Bystander, automobility freedom and regulation

The automobile embodies two great ironies of American culture. First, enveloped in a rhetoric of freedom, the automobile concentrates the most astonishing degree of hyper-regulation. For drivers, a shiny new car comes embedded in a sticky web of laws and fines—not to mention a series of material needs from parking spaces and gas to oil caps designed to fit a single make and model. Second, the technology of automobility has defined public space in virtually every U.S. community. Here, the term irony has not only contradiction but opposition built into its locution—freedom meets regulation and a potential for individuation rubs uneasily against an actualized homogeneity. These oppositions leave gaps, and the one this article focuses on specifically is the space that the bystander inhabits. The “bystander”—as pedestrian, cyclist, potential enjoyer of public places—cuts a curious figure, one that is defined in relation to automobility and, more specifically, through a vulnerability to injury by automobiles. Yet despite his or her material interpellation into hegemonic car culture, the bystander cannot hold automobile manufacturers responsible for design defects, even when these carry serious consequences for bystander injuries and chances of survival.

A legal conception of the product

How is it that bystander injury has so inconsistently and haphazardly entered the equations of automobility? How has automobility, in fact, produced the bystander as a legal entity? Why was driver negligence so tightly circumscribed in terms of legal (and social) responsibility at the same time as it was held to have such potent explanatory power in accident causation? The answers to these questions lie in the early consolidation of the car as object and commodity. Product liability law, through which individuals assert a right not to be injured by the products they own and use, provides a remarkably germane site for examining these questions. Throughout the 20th century, this area of law has held a particularly critical place in the United States to a degree unmatched in any other country, and it remains a key infrastructure for negotiating the responsibilities that manufacturers should have in product design, given the ease with which human flesh is injured. Furthermore, the arena gives form, if only in a highly structured and artificial way, to deep-seated anxieties about the body, technology, consumption, agency, and injury. Product liability remained the only mode of design regulation for the automotive industry until the 1960s, when the establishment of the National Highway Transportation Safety Administration (NHTSA) signaled a new common sense about the extent to which manufacturers should ensure that their products are crashworthy.¹ These laws provide an important entry into questions currently being raised in the anthropology of technology that aim to interrogate how nonhumans can also be understood as cultural actors. Specifically, I examine how early legal categorizations of the automobile, based on inferences about the nature of technology and consolidated through powerful cultural and economic forces, led to particular configurations of acceptable injuries, normative behaviors, and common-sense designs.

Through its many formulations, product liability theory premises that the law should act as a market corrective. In other words, a product should pay its own way; and if it injures too many people, the injury expenses allocated through the legal system will drive it off the market. For this reason, scholars such as Richard Abel and Laura Nader suggest that the law of tort poses a radical potential for social justice.² However, as nine out of ten people who would have valid product liability claims do not sue, Abel and Nader both argue that the law cannot properly function in its role to publicize defective products and spread costs. For these scholars, underclaiming is the main reason for the failure of the law. However, my study of injury law has led me to conclude that the law fails in materializing injuries for reasons that are embedded within the structuring principles of the laws. I demonstrate that point here through a reading of the ways that courts understood the automobile in product liability suits and how they allocated the responsibility for injuries in ways that consistently favored the interests of drivers and manufacturers. This example from car culture demonstrates that the law in fact was unable to make visible the full spectrum of injuries wrought by automobiles, let alone to spread the costs of injuries. Thus, this argument leads not toward the corrective potential of the law but rather to the injuring potential of the market.

Euphemistic legal vision of the automobile

Only by refusing to recognize the car as a complex technical system and set of agencies, was tort law able to normalize the car as an everyday object not subject to requirements for design or engineering improvements to prevent bystander injury. However, this attenuated understanding of the automobile resulted in opinions that were necessarily illogical and contradictory. In part, the structure of the laws themselves led to the dramatic simplification of a complex object. Through a series of claims in which “accidents” typically occurred at the nexus of incredibly complex social and material intersections, case law foreclosed the question of liability remarkably quickly. Thus the technology of the law itself guided an understanding of the car as a private conveyance and as a commodity choice that left out wider social concerns and structural patterns of injury.

This can be seen quite clearly through a comparison with other transit modes. Steamships and railways, for example, had come under congressional regulation because of safety concerns; and steam coaches had also been declared illegal for safety and economic reasons. However, these conveyances were not understood by courts and regulators as precedents to the car, although, for no better reason, bicycles and horse-drawn carriages were. Using the technological and legal precedents of steamships and railways would have entailed the foregrounding of the automobile as a complex system involving roads, traffic lights, and gas stations, as well as bystanders. Technologies such as streetcars and railroads, with their specialized tracks, carriages, and hired personnel, as well as their institutional structures as companies with centralized corporations, tend still to be better recognized as comprehensive technical systems than do highways, parking meters, and Middle East politics. Furthermore, automobile drivers consisted of a wealthy elite with significant resources at their disposal—not the least of which were powerful industry lobbyists. Nevertheless, had courts determined that the steamship was an appropriate precedent for the automobile, the infrastructure of spreading injury costs might have been vastly different.

The obvious corollary of assuming that the car is an ordinary object was that accidents would be understood as the result of driver negligence. Perfect driving was assumed to be humanly possible and legally obligatory. But a new array of subject positions defined in relation to the car were instead developed to explain the enormous public health costs of automobility through the complicated linguistic feats of judges.

A dangerous instrument and a clumsy passer-by...

As “dangerous instrumentalities,” autos should fall into a category of objects delineated in law that included such things as ferocious animals, guns, and dynamite.³ This category of goods required a higher standard of care, regardless of intent or negligence by an owner who would be held responsible for all injuries resulting from the use of these objects. In legal parlance, an owner would be “strictly liable” for injuries. In strict liability, negligence did not need to be shown; an owner was responsible for damage even if it was wrought by a borrower or even a thief, and the owner of a dangerous instrumentality had a special obligation to keep it with care. […] Within this context, then, the concept of dangerous instrumentality had great potential for supporting the claims of the injured and therefore threatened those with powerful interests in normalizing automobility. However, as a legal concept, it remained unarticulated and confused even into the mid-20th century, leaving those with concerns about the dangers of the automobile with no clear legal way to express them.⁴ The law settled early on that: “The automobile, dangerous and fatal to thousands as it undoubtedly is, is today a usual, customary phenomenon on the street, for which there is no strict liability.”⁵ Strict liability in car ownership could have had consequential results and might have taken several forms that are simply illegible in today’s product liability law. One of these might have been that drivers as consumers bear responsibility to injured parties for choosing the design of their vehicles, especially those designs that were demonstrably more dangerous to other drivers and bystanders. Strict liability would have pushed the issue of exterior design as part of manufacturer responsibility, just as later happened with second collisions (when the occupant crashes into the car’s interior), and it would have addressed the issue of dangerous after-market additions, such as bull-bars and the sharp-edged spoilers that are still unregulated.
Civil law thus posed many roadblocks to injured bystanders. To bring suit at all, they often had to depend on whatever witnesses would come forward, since an injured person would be unable to identify them at the time of the accident. Police were ill-trained in accident reporting, and accident reconstruction did not become a professional field until much later. Even today systems for accident reporting are poor. Additionally, powerful lobby groups worked in the interests of automobile owners and manufacturers and bystanders were their nemeses.⁶ In his history of the automobile, Clay McShane suggests that even the term jaywalk, which had appeared by 1910, derived from jay, meaning “hick” or “rube,” with all its rural implications.⁷ The burden of proof remained with the bystander, who had no claims to speak of on the manufacturer, particularly in terms of design. Dangerous instrumentality is a term that covers abnormalities (a steam engine on a highway), or things that are dangerous by nature (a revolver or a vicious animal).⁸ But “by nature” is merely a stand-in for how humans apportion characteristics, intent, and reason. Ultimately, this chain of logic deletes the social environment from the technology of the car and inscribes it all onto humans. All of the messy complications of accidental meetings, defective designs, and chaotic spaces become reduced to the body of the negligent driver, mother, or walker. Thus, automobile manufacturers remained free from the expensive forms of regulation that had plagued streetcars, railroads, steam carriages, and steamships. Still, in 1916, manufacturers were held responsible for defective design and made accountable to consumers for the proper running of their machines.

Impossible chain of responsibility

Lewis and MacPherson,⁹ when read together, give a clear view of what I will call the “chains of responsibility” emanating from the legal consolidation of the automobile. The bystander had no civil claim on a nondriving owner or manufacturer. A driver or owner had a claim against a manufacturer but only when the design specifications laid out by the manufacturer were not fulfilled (or later, if they did not meet NHTSA’s standards). Thus, as safety activists have long pointed out, braking distance (a safety matter) never mattered to the extent that acceleration (a marketing concern) did. The way in which a “design defect” came to be defined, then, did not refer to a standard imposed upon the technology of the automobile but rather individual parts that did not work in accordance with manufacturer claims. Although the chain of responsibility between manufacturers and drivers was ultimately expanded in law of the 1960s to include the foreseeability of crash injuries, it has not yet been expanded to include pedestrians or other drivers who are injured by foreseeable design flaws in vehicles.¹⁰

1950s: Invisible Design

The regulatory revolution of the 1960s drastically changed understandings of automobile design. The paradigm shift arguably swung too far the other way, instigating, for example, airbags and other passive restraints on the assumption that seat belt behavior or regulation could not be adequately changed. Still, many contemporary cases could be used to illustrate the genealogy of the entrenched invisibility of car design and bystander injury. One might consider, for example, recent publicity around Lizzie Grubman, a New York socialite who reversed (by intent or pedal confusion) into a crowd at a New York bar.¹¹ Grubman had borrowed her father’s Mercedes SUV that evening, and there can be no doubt that the exterior design of that vehicle had everything to do with the number of people injured. But the vehicle was cited only as a symbol of her wealth in the popular press. One might also consider the death of Hazel Poloski, who was recently killed in a Wal-Mart parking lot when the driver of a Suburban, looking for a parking spot, failed to see Poloski exit the store and cross the street. Surely the design of the SUV, which was not at issue in the litigation, had as much to do with her death as the parking lot, which the court found to be negligently designed.¹² For an earlier case, one might consider the 1961 case, Duvigneaud v. Jenkins (241 Miss. 179). Plaintiff was struck and injured by a tail fin when the driver reversed into him on the sidewalk, but the question of automobile design was not raised at all. Nevertheless, it is clear from the facts that the plaintiff was injured not only because the defendant reversed without properly looking behind him, but also because the long back end of car and the protruding fins meant that the car injured a pedestrian even while the car’s back wheels did not skip the curb.

Conclusion

The elision of the automobile from the category of “dangerous instrumentality” worked in tandem with the interests of car owners to allow costs to remain largely as the responsibility of injured parties. As ways of categorizing the automobile as anything other than a normal commodity diminished, accidents had to be explained as individuated events that in each case could have turned out differently. On the contrary, a collision with a dangerous instrumentality would hold the predicted dangers always already within its rhetorical fold. Danger and risk would not be considered avoidable through proper behavior but would be encoded in the very event of automobility. The focus on individuated negligence through case-by-case contests, rather than on global death and injury rates through design alterations, worked to the limited benefit of car owners and to the primary benefit of manufacturers, and it allowed the bulk of injury costs to remain the responsibility of injured parties.
A moral positioning of subjects, enabled through the case law approach to individuated accidents, came to be the site of translation of the various agencies of objects, drivers, owners, and street-users. The translation of individual injury to individual responsibility increased both everyday criminality and overall risk, even as it used enormous resources in adjudicating each case separately. But an historicized analysis of this process serves as a useful frame with which to understand the historical emergence of how the injury law side of automobility mobilized identities by conjuring and disciplining subjects: through its power to distribute fault, the law worked to normalize social behaviors. In the larger framework of automobility, a historicization of the bystander as subject of automobility allows us to see the phenomenal coincidence between early legal rhetoric and 21st-century marketing rhetoric. In fact the former is necessary to understand the latter as culminating in an increasing privatization of risk. For who would not like to forget that the SUV or minivan or Volvo purchased by the good mother to protect a child on the freeway is quite likely to kill the child before it ever leaves the driveway?¹³

Note on the figures