From automatic emergency braking (AEB) and adaptive cruise control (ACC), to lane keep assist, every U.S. automobile manufacturer is either currently making use of Crash Avoidance Technology (“CAT”) or they are required to do so within the next several years. However, an area that remains the forgotten stepchild in CAT is reverse automatic braking systems (AEB) when a vehicle is backing up.
According to the National Highway Traffic Safety Administration (NHTSA), an estimated 267 deaths and 15,000 injuries occur every year as a result of backover crashes. “Light” vehicles—those that weigh 10,000 pounds or less—account for 210 of these backover fatalities and virtually all backover injuries annually. Among those killed by these preventable crashes, 31% are children younger than 5 years old, and 26% are elderly (age 70+).
Citing these statistics, the NHTSA issued a rule in 2014 requiring manufacturers to make rearview visibility systems standard in all new vehicles weighing 10,000 pounds or less. As confirmed by the agency, the rule does not require that a specific technology be used to provide the driver with an image of the area behind the vehicle, nor does the rule preclude manufacturers from providing additional “countermeasure” technologies to supplement the required rear visibility system. They further acknowledged that CAT is rapidly evolving, and encouraged manufacturers to continue developing new systems to prevent or reduce harm caused by backover crashes. The NHTSA estimated that the rule would help save 58 to 69 lives per year by 2028.
In March 2016, twenty U.S. automobile manufacturers announced a pact agreeing to equip all of their new vehicles with forward automatic emergency braking as a standard safety feature by 2022. Europe had enacted a similar regulation mandating AEB systems more than four years earlier.
With both the rule (whose stated concern is the prevention of backover crashes) and the agreement (which will standardize the implementation of AEB systems), one might logically expect commitments from auto manufacturers to offer reverse automatic braking systems that can prevent or reduce the harm caused by backover crashes. As of today, however, there appear to be only two car companies in America offering reverse AEB systems commercially, and only on select vehicles or “trims,” while forward-facing AEB systems are pervasive. Reverse AEB systems are currently included on many vehicles sold in Europe and Austrailia.
The lack of standard reverse AEB systems for back-up protection is a significant safety concern for several reasons. AEB systems have been shown to have the largest impact on collision avoidance out of all available technologies and, importantly, rearview camera systems and sensor systems are woefully inadequate when it comes to preventing backover crashes.
According the NHTSA’s own data, the presence of back-up cameras in cars has not significantly cut down on cars backing into people and causing them harm. This is because back-up cameras rely on a driver’s timely and appropriate reaction to what they perceive on the display screen or to an audible “beep,” and the average driver just cannot react in time or, as often happens, drivers get distracted by many things, especially in a parking lot where there is a lot going on and a lot to look at. For example, after an analysis of 42 real-life backover crash cases from 2007, the IIHS found that 32 (or 76%) involved a victim who had moved behind the vehicle. This probably confirms what common sense already tells you—that even if a driver can see what is behind them, they will probably not be able to react in time if a person or object appears too quickly. Moreover, AAA found that only 17% of drivers are actually looking at the rearview display while performing a backing maneuver. Of course, if a driver is not looking at or using the rearview camera technology, merely having it will not help prevent a backover crash. Each of these problems is further aggravated by reduced-visibility conditions such as nighttime, inclement weather, external distractions, or scratched/corroded camera lenses.
The NHTSA’s tests also demonstrated that ultrasonic rear object detection sensors, while able to detect pedestrians to some degree, did not induce the driver to respond in a manner sufficient to prevent backover crashes. Even in tests where the vehicle’s sensors detected the pedestrians or objects 100 percent of the time, drivers reacted to the sensor warning in a way that avoided the backover crash in only 18 percent of tests. Similar to the results of a 2010 General Motors study, the agency’s research found that sensor warnings generally caused drivers to apply some measure of braking or stop momentarily, but they did not induce the drivers to come to a complete stop so as to avoid the backover crash. Other problems noted with the ultrasonic sensor systems included: (1) the sensors’ reliability changed significantly, depending on the material and surface area of the object; (2) the sensors’ reliability depended on the height/orientation of the object; and (3) even when detected, the design detection range of the sensor was generally insufficient to enable the driver to avoid a backing crash. Therefore, even with mandatory rearview video cameras or rear object detection sensors, the need for a better safety solution is apparent. The solution is standard reverse AEB.
AEB systems automatically engage the vehicle’s brakes after sensing that a collision with a pedestrian or object is imminent. Usually, these systems make use of radar or camera sensors (or both), and sometimes LIDAR as well. As noted by Russ Rader, Senior VP of Communications at IIHS, “[o]ne of the benefits of an automatic system is the vehicle detects the object and stops without requiring the driver to react appropriately to the warning or notice the object on the screen.” These systems can, therefore, prevent or reduce harm caused by backover crashes much more effectively than rearview cameras, since they do not depend on the driver first noticing a person or object and then reacting appropriately by applying the brakes. In addition, there is also, dynamic brake support systems that pre-charge the brakes and, in certain versions, increase the brake assist sensitivity to maximize driver braking performance when an imminent collision is detected by the vehicle’s sensors.
Today, perhaps no other crash avoidance technology has the potential to reduce the number of crashes more effectively than AEB systems do. So when will the automakers take the next, obvious step towards helping prevent backover crashes by standardizing reverse AEB systems? Like AIEG has done in other litigation with airbags and ESC, it is not likely to happen until we force them to do so. When 31% of those killed in preventable backover crashes are children younger than 5 years old, how long can we allow anything less than the safest available technology?
The law has long recognized that the failure to provide the safest technology can subject manufacturers to legal liability. Furthermore, when nearly every U.S. automaker already makes use of AEB systems in forward-facing applications, and when the issuing agency itself encourages additional innovations to help prevent backover crashes (noting significant deficiencies with current rearview camera technology), there is no merit to any claim that it would be too expensive or difficult to implement. As Justice Hand once wrote, “there are precautions so imperative that even their universal disregard will not excuse their omission.” The plain and simple solution to prevent and reduce the harm caused by backover crashes now is to standardize reverse AEB systems. The use of rear view cameras and sensors with audible warnings, may actually give a false sense of security the backover problem is taken care of, however, this may actually be creating an increased danger which will not be mitigated until the standardization of reverse automatic braking.
 See Rule Document on Rear Visibility, https://www.regulations.gov/#!documentDetail;D=NHTSA-2010-0162-0256 (last visited June 15, 2016); and Gordon Trowbridge, U.S. DOT and IIHS announce historic commitment of 20 automakers to make automatic emergency braking standard on new vehicles, NHTSA, March 17, 2016, http://www.nhtsa.gov/About+NHTSA/Press+Releases/nhtsa-iihs-commitment-on-aeb-03172016 (last visited June 16, 2016).
 Rule Document on Rear Visibility, https://www.regulations.gov/#!documentDetail;D=NHTSA-2010-0162-0256 (last visited June 15, 2016). As defined by NHTSA, backover crashes are those crashes which involve a vehicle moving in reverse striking a non-occupant of the vehicle. 49 C.F.R. § 571.111 (2014).
 Id. Note, to ease the compliance burden on manufacturers, the NHTSA adopted a “phased-in” approach. For new vehicles manufactured after May 1, 2016, but before May 1, 2017, 10 percent of all new vehicles must be in compliance with the rule; after May 1, 2017, but before May 1, 2108, 40 percent of new vehicles manufactured must be in compliance; and for new vehicles manufactured after May 1, 2018, 100 percent of a manufacturer’s fleet must comply with NHTSA’s rearview visibility requirements.
 Id. Among the innovations recognized by the agency were thermal imaging systems, 3D Photonic Mixers, and automatic brake intervention.
 See Trowbridge, supra, note 1.
 See EU Regulation No. 347/2012; and EU Regulation No. 351/2012.
 See Backup Collision Intervention: A New Sense of Awareness, Infiniti, http://www.infinitiusa.com/now/technology/backup-collision-intervention.html (last visited June 17, 2016); and Cadillac ‘Virtual Bumpers’ Can Help Avoid Crashes, General Motors, (September 18, 2012), http://media.gm.com/media/us/en/gm/press_kits.detail.html/content/Pages/news/us/en/2012/Sep/0918_virtualbumper.html (last visited June 16, 2016).
 See Cars With Advanced Safety Systems: More manufacturers are building cars with features that help drivers avoid or mitigate collisions, Consumer Reports, (May 9, 2016) http://www.consumerreports.org/car-safety/cars-with-advanced-safety-systems (last visited June 20, 2016).
 Crash Avoidance features reduce crashes, insurance claims insurance study shows; autonomous braking and adaptive headlights yield biggest results, IIHS, (July 3, 2012), http://www.iihs.org/iihs/news/desktopnews/crash-avoidance-features-reduce-crashes-insurance-claims-study-shows-autonomous-braking-and-adaptive-headlights-yield-biggest-benefits (last visited June 17, 2016).
 Jacob Bogage, Why back-up cameras haven’t stopped drivers from backing into stuff, The Washington Post, (June 16, 2016), https://www.washingtonpost.com/news/the-switch/wp/2016/06/16/why-back-up-cameras-havent-stopped-drivers-from-backing-into-stuff (last visited on June 17, 2016).
 Letter from Joseph M. Nolan, Chief Administrative Officer and Senior Vice President, Vehicle Research, Insurance Institute for Highway Safety, to the Honorable Mark R. Rosekind, Administrator, National Highway Traffic Safety Administration (February 16, 2016), http://www.iihs.org/media/0f98a873-d457-4785-915c-e5200b38fc23/-722256511/RegulatoryComments/comment_2016-02-16b.pdf (last visited June 15, 2016). The 42 real-life backover cases were taken from 2007 Special Crash Investigation (SCI) Program data. The letter itself took the form of a comment made by the IIHS to the NHTSA concerning potential upgrades to their New Car Assessment Program (NCAP), including recommended testing protocols for new safety technologies.
 Bruce Mehler et. al., Evaluating Technologies Relevant to the Enhancement of Driver Safety, AAA, (2014), https://www.aaafoundation.org/sites/default/files/Evaluating%20Vehicle%20Safety%20Techs%20FINAL%20FTS.pdf (last visited June 17, 2016).
 Rule Document on Rear Visibility, https://www.regulations.gov/#!documentDetail;D=NHTSA-2010-0162-0256 (last visited June 15, 2016).
 Automatic Emergency Braking (AEB), http://www.trw.com/integrated_systems/active_passive_systems/ automatic_emergency_braking (last visited June 16, 2016).
 Autonomous Emergency Braking (AEB): Frequently Asked Questions, Thatcham Research, http://www.thatcham.org/files/pdf/AEB_FAQ.pdf (last visited June 20, 2016).
 Sanjay Solomon, Driver’s guide: What you need to know about automatic reverse braking, Boston.com, (February 2, 2016), (last visited June 17, 2016).
 Ford’s Latest Safety Brakethrough – Collision Warning with Brake Support – Coming in 2009, Ford, April 6, 2009, https://web.archive.org/web/20120320093129/http://media.ford.com/article_display.cfm?article_id=29188 (last visited June 16, 2016).
 The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932).