Death of two youngsters and quadriplegic injuries to another when Trans Am went out of control at 100 m.p.h.--Plaintiffs achieve successful settlement invoking concept of "invited misuse" by the manufacturer. Plaintiffs' employment of psychodynamics of subliminal advertising-- plaintiffs' theory: Encouraged misuse is no defense. . .

Andrew (Andy) Wright, age 18, with some of his friends, had seen a movie entitled "Smokey and the Bandit" starring Burt Reynolds. In the movie, Reynolds was a point man for an illicit 18-wheeler load of alcoholic beverages being illegally transported across several southern states. In a Pontiac Trans Am automobile, he decoyed and lured inquisitive state troopers, high sheriffs and their deputies, on a wild goose chase over country roads and detours. Stunt men stood in for Burt Reynolds and performed the maneuvers. They did the 180º donuts, jumped across a river where the bridge was out, and led the pursuing state troopers, high sheriffs and their deputies on a merry chase. Thus, the Trans Am automobile was a co-star in "Smokey and the Bandit." A General Motors scriptwriter with a veteran's advertising eye wrote a letter approving the "Smokey" script. In the letter he stated:

This special edition of Trans Am is a standout - a hero in every scene. The end result should be an exciting motion picture-length commercial for our Pontiac.

Pontiac's advertising manager testified in a deposition that:

Trans Am buyers are 80% males, younger buyers than for any other car in the United States; only 697 Trans Ams were sold in 1969, the car's first season. Ten years later, after the "Smokey and the Bandit" series, the sales climbed to 187,285 vehicles.

Andy Wright and his friends had seen "Smokey and the Bandit" several times. The Trans Am was a star performer. When Andy went to the local car dealer, they had an advertising clip from "Smokey and the Bandit;" his desire for a Trans Am was keenly whetted. He simply had to have one. He pleaded with his mother until on August 23, 1978, she bought one for him.

On September 22, 1978, the month after Andy Wright's mother bought his Trans Am, he attended several parties following the high school football games. Accompanying him on his round of parties in his "iridescent blue Trans Am" were his high school buddies, Allen Wright, age 18 (no relation to Andrew) and Scott Cox, age 17. They had some drinks and passed around some marijuana joints. The hour was late, and they offered to drive Jo Ann Fitzsimmons home. Andy decided that the time was right to "test the Trans Am" and experience the soaring speed of the Firebird. As it ripped down the state road, Arkansas Highway 88, at a speed in excess of 100 miles an hour, the Trans Am "piloted" by Andy Wright hit a railroad crossing and took to the air. The car flew across the double tracks, flipping out of control for 535 feet. It grazed one culvert, caught the second one more squarely and was converted "into a huge airborne top," spinning across a ditch as it shed the two glass panels in its T-top roof. As it spun along a stand of trees, one tree caved in the rear roof of the Trans Am, crushing Jo Ann Fitzsimmon's spine and leaving her a quadriplegic. The result: Andy Wright, dead; Scott Cox, dead; Allen Wright, injured; Jo Ann Fitzsimmons, brain damaged and paralyzed.

The plaintiffs brought action against General Motors Corporation to recover for the wrongful death of Scott Cox and for the injuries and brain damage suffered by Jo Ann Fitzsimmons. The action was based upon negligent inducement and strict product liability. The negligence claims alleged:

1. GM designed and manufactured and marketed a vehicle, a street racer, with a speed performance capability in excess of 130 m.p.h. on public highways when it had reason to knowthat vehicles so designed could not be safely operated at such speeds. . .

2. The dangerous speed at which the ill-fated car was driven at the time of the fatal crash was a foreseeable response of a youthful driver to the stimulus of GM's promotional advertising of the Trans Am, designed to encourage high speed driving by risk-prone and inexperienced youthful drivers.

The plaintiffs were able to prove that General Motors' Pontiac Division followed a planned, systematic course of action to identify target customers that would be most attracted to the Trans Am Firebird, a sporty, street-racing car. A psychological profile was compiled by the marketing division of General Motors. Robert Bierley, Director of Market Studies, General Motors Corp., testified by deposition:

Q: Do you have any social scientists on your staff? . . .sociologists, psychiatrists, psychologists?

A: The answer to that is yes. . .

Q: Would you name for me an individual in your department with a psychology degree?

A: Myself.

Q: . . .have you caused to be compiled a psychological profile of the purchasers of a given product?

A: It depends. What do you mean by psychological profile?

Q: But you do, do you not, seek to identify from a psychological standpoint the demographic type of individual who would more likely than not purchase, say. . .a Firebird?

A: No, we don't try to determine it. We just measure it. .

Q: And then this information is fed into the computer from these questionnaires?

A: Right. . .

Q: So then the demographic data that we are talking about is retrieved by the individual division, such as in this case, Pontiac, whenever they need it?

A: Yes, they can retrieve it, we can retrieve it or anybody else can retrieve it who has access to the system. . .

Q: A major user of the information compiled by your department are the advertising departments of these various Merchandising Divisions, are they not?

A: Yeah, I'd say some of the information is used by the ad agencies.

The psychological profile prepared by the Marketing Division was turned over to the Pontiac advertising department for evaluation. The advertising manager, Christine Meyers Adamski, testified to the information obtained:

Q: Do you recall any of the demographic information on the Trans Am?

A: Yes ... it was skewed heavily towards males, you know, maybe 75, 80, maybe more, 80 percent males, young, and not particularly up-scale.

Q: [The] purpose of soliciting this information, this demographic information, is so that the advertisements can be tailored to the group of persons in the general public who are expected to buy the car?

A: Right.

Harold D. Bay, President, D'Arcy, McManus and Masius, the agency that handled Pontiac Motor Division's advertising, testified:

Q: I will read to you a portion of the paragraph on p. 13 of [Firebird TransAm, a report by Ms. Jill Rogers, Supervisor, Public Relations, Pontiac Motor Division, General Motors Corp.]: 'According to Pontiac Motor Division's General Sales Manager, the key to the growing popularity of the Trans Am in 1977 was its appeal to the youth market. The average age of its buyers was slightly over 28, which was the youngest age for any car buyer sold in the United States, foreign or domestic markets.

Would you say that was a reasonably accurate statement?

A: Yes.

General Motors proceeded to collaborate with the film company in making "Smokey and the Bandit." J. R. Graham, Director of Merchandising for Pontiac, wrote in a letter to J. G. Vorhes, August 2, 1976:

I have read the revised script ["Smokey and the Bandit"] which was furnished to me by Universal under date of July 29. The screenplay is filled with exciting chase sequences. The Special Edition Trans Am is a stand out hero in every scene; the end result should be a full length motion picture which will be an exciting motion picture length commercial for Pontiac. In my opinion, this is an excellent exposure and an extremely worthwhile investment. (Emphasis added.)

General Motors spliced "Smokey and the Bandit" into a commercial film and distributed it to its Pontiac dealers where it was shown to prospective youthful customers. "Smokey and the Bandit" was shown at theaters in Benton, Arkansas. The commercial film shown by the automobile dealers, tailored by General Motors to display the speed and maneuverability of the Trans Am Firebird, was a continuous attraction to youngsters in the Benton community. Andy Wright saw both films.
Johnny Roberts, Sales Manager, Paul Jones Pontiac, Benton, Arkansas, testified:

Q: In connection with the sales of the Firebirds at the dealership in Benton, a videotape commercial film narrated by Mr. Hal Needham was shown to prospective purchasers, was it not?

A: Yes, it was.

Q: This film was shown to Mr. Andrew Wright, was it not?

A: Yes. It was shown by me to Andy Wright.

Q: In fact, it was customary there for many of the young people in town to come by the agency and ask to see the film.

A: Yes, because of the publicity that the film clips of the movies that were circulating at the time ... we had film clips of those movies, and it was something to watch there.

Q: I believe in a previous conversation with me you stated that, 'Even the little bitty kids knew we had it and would come down and want to see it.'

A: Right.

Q: The film "Smokey and the Bandit" attracted quite a few customers right there in Benton, did it not?

A: Yes, it was quite a turnout there.

Q: In your statement of February 9, 1979, you stated, "Oh yeah, shoot! There was people lined up for a block down there. It sold a lot of Trans Ams."

A: Yes, it did.

Needham, a veteran stunt driver, narrated the General Motors advertising film. In the film, during one of the more hair-raising gyrations of the vehicle, accompanied by hairpin turns and squealing brakes, he narrates:
You know, one of the things about being a stunt man is to get behind the wheel of a car that responds. Now, this don't mean that I recommend you go out and do stunts, but I do recommend that you test drive a 1979 Firebird, and I'll tell you why. If you don't test it, you will never know what I am talking about when I speak of handling and maneuverability--try one!

Needham did not explain to the viewer of the GM Trans Am film the dangers of emulating the daredevil driving depicted in the movie--that safety equipment such as roll bars or roll cages were installed in the cars used for stunts, that each stunt was carefully planned and prepared before it was filmed. Nor did he warn prospective youthful customers, as he did when he gave his deposition in the Fitzsimmons case: "They are flirting with the undertaker if they go out and try and emulate a jump or any of these stunts. They are most likely going to kill their fool selves."

General Motors' defense against the allegations of the plaintiffs was that Andy Wright's misuse of the Firebird was not foreseeable. In other words, they adopted the automobile industry's traditional defense approach in crash-worthiness cases and "tried the kids."

The plaintiffs contended that GM made a Trans Am movie of its own, spliced together from "Smokey and the Bandit" and "Hooper," purportedly to be used for the information and education of the Pontiac dealers, but in fact, intended to be used primarily to induce and ensnare young drivers.

Dr. Milton Rokeach, Professor of Psychology, Washington State University, and dean of psychologists in the United State, having reviewed the films "Smokey and the Bandit" and "Hooper" and the commercial film tailored by General Motors for their Pontiac dealers, and having read the depositions in Fitzsimmons v. General Motors, testified by deposition:

Q: Dr. Rokeach, were you able (after reviewing the depositions, the films, and making the tests you described) to reach certain conclusions?

A: Yes, I was.

Q: And would you, please, tell us what those conclusions were?

A: Well, I think the best way to answer you is to once again refer to my six points. And, in that context, respond to each of these six questions.

Q: All right, sir, if you would.

A: I concluded, first of all, that a very sophisticated psychological strategy was being employed in the promotional materials for the Trans Am automobile. No question about it in my mind that the people who were doing this knew what they were doing and that they were doing it in what would surely be called a professional manner.

Secondly, the psychological strategy I identified as being one in which there was a focus on the beliefs, attitudes, and values of targeted groups and individuals. An analysis of what these beliefs, attitudes, and values were and then the tailoring of promotional material -- whether or not they were advertisements, I don't know in the technical sense. I'm calling them promotional material. The tailoring of all this promotional material to -- to gratify, to be compatible with, to be congruent with the beliefs, attitudes and values of target audiences.

Thirdly, I concluded that a particular subset of the American population, indeed, had been targeted. And I identified this subset or segment as being a group of post adolescent males with a -- a macho orientation. And, moreover, I concluded that the particular personality syndrome of this post adolescent segment would be characterized as one that has psychopathic predispositions.

Fourthly, I concluded, moreover, that this particular subset or segment of the American consumer population was being induced by the Trans Am promotional material that I reviewed. It was induced to use the product in a lethal, unsafe, and dangerous manner.

Fifthly, I concluded that the strategies, the techniques that were being employed were not in accord with ethical professional standards and could not conceivably be in accord with such standards.
And, finally I concluded that it was, indeed, possible to verify whether or not the opinions and conclusions that I have just described can, indeed, be independently verified by scientific and objective means. And, by the way, I might point out that, as a scientist, I always worry about whether my opinions can be verified or whether they're just nothing more than opinions. So I always look for ways of independently checking myself out.

It was this film of "Smokey and the Bandit," endorsed and supported by General Motors, and the tailored version of the film that the sales agent showed to Andy Wright, that induced this young man, in the exuberance of a victory celebrating round of parties, to "test" the Trans Am and demonstrate to his friends and to Jo Ann Fitzsimmons what this inherently dangerous instrumentality of the road could do.

Some product manufacturers, in a highly competitive business, hire market researchers and advertising agents, as well as psychologists and epidemiological experts, to target prospective customers: young people, females, minorities, blacks. The object is to entice the prospective customers into the belief that fame, fortune, success, and sexual conquest are dependent upon the use of their special brand or product. This technique is not new. Most Americans living today, those who have not died of lung cancer, can recall the early tobacco ads--"Reach for a Lucky instead of a sweet;" "not a cough in a carload;" the successful ball player, the idol of the youth of American, extolling Red Rooster snuff, Red Man tobacco, or Granger Twist. Gin, vodka, whiskey and beer dealers construct their ads around high romance, adventure and success with the opposite sex. One brewery exceeded all ethical advertising standards. Targeting young black males, it adopted the brand name "Power Master" for a high alcoholic content malt liquor.

Some companies select euphemistic brand names to entice the customer. If the name of the company is "The Golden Rule Insurance Company," one might check the fine print in the policy. If the company sells tampons under the brand name "Security," one might check the records for the occurrence of toxic shock related to the use of the product in young women.

All of this is looked upon as part of the free enterprise system. At one time, drummers and salesmen, with their samples and satchel, traveled the railroads, through the towns and villages of America. Now, the ads are piped into the living rooms and into the schools via television advertising. Companies have an inherent right to sell their products. Advertising and salesmanship make the economy go. However, there are bounds beyond which manufacturers and vendors of products should not be permitted to pass without being accountable in tort (personal injury), in a court of law, for the damages which proximately ensue. As in the tragic case of Jo Ann Fitzsimmons, paralyzed and imprisoned for life by her injuries, "dangerous driving should be no defense for an auto manufacturer whose promotional advertising has encouraged or invited such expectable misuse by youthful drivers, who, as enthusiasts of daring driving, were special targets of defendant's aggressive advertising." ("Tom on Torts", ATLA Reporter, Vol. 24, p. 198). During the course of the trial, Jo Ann Fitzsimmons' case was settled in her behalf. Funds were obtained to provide for her care for life.
This concept of negligent inducement established in the Jo Ann Fitzsimmons case became a precedent, which ultimately was used in suits against the tobacco companies who had laced their products with increasing amounts of nicotine and targeted young people in their advertising campaign.

Sandy McMath, lead counsel in Fitzsimmons, advocated this theory of liability as a means of recovering from tobacco companies funds expended by the states in the medical treatment of tobacco victims. The results in the Fitzsimmons case and its applicability to suits against the tobacco companies was submitted to the Attorney General of Arkansas July 17, 1991, in a letter in which McMath stated:

The enormous profits of the tobacco companies, who leave addicts in their wake, to be cared for by the taxpayers, make a compelling contrast to the relative penury of a poor State like Arkansas.

In a way, it could be said that the Arkansas taxpayer has become a vassal of the tobacco companies who forced our citizens to yield an annual tribute in payment of medical bills for diseased addicts, while the companies themselves gross ever-increasing billions of dollars in profit.

The cost to the taxpayers for the treatment of lung cancer alone, according to the estimates of the University of Arkansas Medical Science, Department of Pharmacology is 25 million dollars per year.

Other states were urged to take action against the tobacco companies. Writing in Health Span, Volume 10, Number 7, August 1993, McMath wrote:
Tobacco companies should be vigorously and relentlessly pursued for the 25-30% of indigent care costs resulting from the use of their inherently hazardous products. (Emphasis added.)

States have brought suit against the tobacco companies and made recoveries. The Attorney General for the State of Minnesota, in May of 1998, settled the State's claim against the tobacco companies for 6.6 billion dollars.

Arkansas filed suit against the tobacco companies in 1998. The case is pending. Hopefully, Arkansas will be similarly reimbursed.