[{"@context":"https:\/\/schema.org\/","@type":"BlogPosting","@id":"https:\/\/butlerfirm.com\/blog\/jeep-fire-wrongful-death-case-fiat-chrysler-automobiles-rear-mounted-gas-tanks\/#BlogPosting","mainEntityOfPage":"https:\/\/butlerfirm.com\/blog\/jeep-fire-wrongful-death-case-fiat-chrysler-automobiles-rear-mounted-gas-tanks\/","headline":"Jeep Fire Wrongful Death Case: Why FCA is Responsible for Its Rear-Mounted Gas Tanks","name":"Jeep Fire Wrongful Death Case: Why FCA is Responsible for Its Rear-Mounted Gas Tanks","description":"When Chrysler sold millions of Jeeps with the gas tanks mounted in the extreme rear of the vehicles, it put its customers and their families at risk. This Pinto-like design is deadly-dangerous because when the Jeeps are struck in the rear, the gas tanks can rupture and the Jeeps can explode. That is exactly what&hellip; <a class=\"more-link\" href=\"https:\/\/butlerfirm.com\/blog\/jeep-fire-wrongful-death-case-fiat-chrysler-automobiles-rear-mounted-gas-tanks\/\">Continue reading <span class=\"screen-reader-text\">Jeep Fire Wrongful Death Case: Why FCA is Responsible for Its Rear-Mounted Gas Tanks<\/span><\/a>","datePublished":"2018-09-05","dateModified":"2026-04-17","author":{"@type":"Person","@id":"https:\/\/butlerfirm.com\/blog\/author\/matt-kahn\/#Person","name":"Matt Kahn","url":"https:\/\/butlerfirm.com\/blog\/author\/matt-kahn\/","identifier":25,"image":{"@type":"ImageObject","@id":"https:\/\/secure.gravatar.com\/avatar\/e04949bdf1f2184cdeab337bb39535a4c17c4beb3ad3cd47e5524b20b38274a9?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/e04949bdf1f2184cdeab337bb39535a4c17c4beb3ad3cd47e5524b20b38274a9?s=96&d=mm&r=g","height":96,"width":96}},"publisher":{"@type":"Organization","name":"Butler Kahn","logo":{"@type":"ImageObject","@id":"https:\/\/butlerfirm.com\/wp-content\/uploads\/2020\/10\/Butler-Law-Firm-Logo.png","url":"https:\/\/butlerfirm.com\/wp-content\/uploads\/2020\/10\/Butler-Law-Firm-Logo.png","width":210,"height":93}},"image":{"@type":"ImageObject","@id":"https:\/\/butlerfirm.com\/wp-content\/uploads\/2020\/09\/Jeep-Fire-2004-Jeep-Liberty.png","url":"https:\/\/butlerfirm.com\/wp-content\/uploads\/2020\/09\/Jeep-Fire-2004-Jeep-Liberty.png","height":366,"width":533},"url":"https:\/\/butlerfirm.com\/blog\/jeep-fire-wrongful-death-case-fiat-chrysler-automobiles-rear-mounted-gas-tanks\/","about":["Car Accident","Jeep Fire","Liability","Personal Injury","Wrongful Death"],"wordCount":4517,"articleBody":"When Chrysler sold millions of Jeeps with the gas tanks mounted in the extreme rear of the vehicles, it put its customers and their families at risk. This Pinto-like design is deadly-dangerous because when the Jeeps are struck in the rear, the gas tanks can rupture and the Jeeps can explode. That is exactly what happened in multiple cases that our firm is handling. The fire that took the life of our client\u2019s wife left behind a grieving husband, children, family, and friends.It all could have been avoided if Chrysler (now known as \u201cFiat Chrysler Automobiles\u201d or \u201cFCA\u201d) had built its Jeeps the same way that almost every other vehicle on the road was built:\u00a0with the gas tank located\u00a0in front of\u00a0the rear axle, where it wouldn\u2019t leak gasoline in a standard, everyday rear-impact collision. But FCA didn\u2019t do that. Instead, they sold millions of Jeep Grand Cherokees, Jeep Cherokees, Jeep Liberties, and Jeep Wranglers with the gas tank located only inches from the rear bumper\u2014and warned no one.When we filed this case, FCA tried to get it thrown out of court, claiming that it couldn\u2019t be held responsible for putting the gas tanks in the extreme rear. We think they\u2019re wrong. This is the brief we filed in response.Plaintiff\u2019s Response To Defendant FCA\u2019s Motion To DismissFCA knew that its Jeeps with rear-mounted gas tanks, including the subject 2004 Jeep Liberty, were defective, unreasonably dangerous, and\u2014as FCA\u2019s own engineer admitted under oath\u00a0three years before this collision\u2014\u201cvulnerable to rear impact.\u201d Complaint \u00b6\u00b6 10, 25, 37. FCA concealed the dangers and sold the subject Jeep anyway. \u00b6\u00b6 11, 38.[1] After FCA marketed and sold the Jeep, evidence of its dangerousness continued to mount. See, e.g., \u00b6\u00b6 27, 52 (other similar incidents). FCA concealed that evidence and warned nobody. \u00b6\u00b6 34, 35, 58, 59. Instead, FCA\u2019s Chairman and CEO fraudulently reassured the public that the rear-tank Jeeps were \u201cabsolutely safe.\u201d \u00b6\u00b6 35, 121(m).\u00a0Eventually, in the face of building public pressure, FCA conducted a \u201crecall\u201d of rear-tank Jeeps, including the subject 2004 Jeep Liberty, that involved installing a free trailer hitch.\u00a0\u00b6 67. FCA knew that this \u201crecall\u201d would not fix the problem\u2014in fact, it made the problem worse\u2014but FCA concealed that too.\u00a0\u00b6\u00b6 65, 66, 71.Then on October 20, 2017, the rear-tank Jeep that Mrs. [redacted] was driving was struck in the rear. \u00b6 82. The trailer hitch failed, the gas tank ruptured, the seat back collapsed, the Jeep exploded, and Mrs. [redacted] burned to death inside her vehicle because of the exact dangers that FCA had concealed. \u00b6 121(l).A. FactsThe allegations of the Complaint,\u00a0and the evidence that it cites, show that FCA[2] knew about the dangers associated with its rear-tank Jeeps, including the 2004 Jeep Liberty, but knowingly concealed those dangers.\u00a0See\u00a0\u00b6\u00b6 10-36 (gas tank), 37-59 (seat backs).As early as 1978, FCA\u2019s own engineers concluded, after studying the notorious Ford Pinto, that placing gas tanks \u201cahead of the rear wheels\u201d provided better protection for the tanks than placing them behind the rear axle. \u00b6 12. Then throughout the 1980s and 1990s, FCA manufactured many of its vehicles with tanks mounted forward of the rear axle (i.e., in the \u201cmidships\u201d location) and repeatedly boasted in advertising materials that those midships tanks were safer for occupants in the event of rear impact. \u00b6\u00b6 13-15.\u00a0 By 1999, FCA\u2019s engineers acknowledged that \u201cthe tank should be located in a manner that avoids known impact areas,\u201d and by 2001, that there \u201cshould be no crush in the tank area.\u201d \u00b6\u00b6 18, 21.Despite these known dangers of rear-mounted gas tanks, FCA manufactured certain Jeep-branded vehicles\u2014including the 1993-2004 Jeep Grand Cherokees, 1993-2001 Jeep Cherokees, and 2002-2007 Jeep Liberties\u2014with\u00a0rear tanks. FCA placed the tanks in all of these Jeeps \u201cwithin the rear-most\u00a0eleven inches of the vehicle.\u201d \u00b6 27 (emphasis added). Even after it became appallingly apparent that gas tanks mounted in the extreme rear were in \u201ca known impact area[]\u201d that regularly got \u201ccrush[ed]\u201d in rear impact, FCA kept selling these rear-tank Jeeps\u2014such as the subject vehicle, a 2004 Jeep Liberty.FCA knew about the dangers of the subject Jeep\u2019s rear-tank design. In 1998, internal computer-aided crash tests had revealed that the rear-most twenty-five inches of the Jeeps was getting crushed in rear impact\u2014despite FCA\u2019s rule about \u201cno crush in the tank area.\u201d \u00b6 17. In 2000, FCA\u2019s \u201cRear Impact Tech Club\u201d decided to stop placing test instruments in the rear-most twenty-four inches of the Jeeps because the instruments were getting destroyed in physical crash tests. \u00b6 20. But FCA kept selling Jeeps with the gas tanks only eleven inches from the rear, with predictable results: people burned alive. Even before discovery in this case, Plaintiff has identified\u00a0sixty-one other similar collisions between 1998 and 2017 in which FCA\u2019s rear-tank Jeeps leaked gasoline after rear impact. \u00b6 27.In 2009, the National Highway Traffic Safety Administration (\u201cNHTSA\u201d) launched an investigation into the rear-tank Jeeps. The investigation ultimately encompassed the 1993-2004 Jeep Grand Cherokees, 1993-2001 Jeep Cherokees, and 2002-2007 Jeep Liberties. During that investigation, NHTSA\u2019s Office of Defects Investigation (\u201cODI\u201d) found \u201cnumerous fire-related deaths and injuries\u201d and concluded that the 1993-2004 Grand Cherokees and 2002-2007 Jeep Liberties \u201ccontain[ed] defects related to motor vehicle safety.\u201d \u00b6 60.To deal with the investigation, FCA\u2019s Chairman and CEO, Sergio Marchionne, sought a private meeting with the top political heads of NHTSA. \u00b6\u00b6 62-63. FCA already knew\u2014and the President of Chrysler International had already admitted under oath\u2014that \u201cthe tow package [trailer hitch] does not protect the tank.\u201d \u00b6 65. But in that secret meeting, Marchionne struck a deal under which FCA would escape the investigation by agreeing to conduct a \u201crecall\u201d in which it provided free trailer hitches for some of its rear-tank Jeeps, including the subject 2004 Liberty.\u00a0 \u00b6\u00b6 64-67. FCA knew that this \u201crecall\u201d would not fix the problem, but told no one. \u00b6\u00b6 65, 71.In addition to its own engineers, real-world collisions, consumer complaints, and the federal government, judges and juries put FCA on notice about the dangers of its rear-tank Jeeps.\u00a0 In 2015, for the first time, a lawsuit involving fire in a rear-tank Jeep went to trial.(FCA had settled all others, usually for confidential amounts.) The jury found that FCA \u201cacted with a reckless or wanton disregard for human life\u201d and returned a verdict of $150,000,000. \u00b6 26. The trial court denied FCA\u2019s motion for a new trial after a remittitur, then the Georgia Court of Appeals and the Georgia Supreme Court affirmed unanimously.\u00a0Id.FCA has also long known about the dangers of weak, collapsing seats. \u00b6 37. Collapsing seats can cause injuries all on their own, but when paired with a gas tank located in the rear crush zone, collapsing seats are especially dangerous. Id. When a seat back collapses, the occupant is disoriented (which makes escape more difficult), is harder to reach (which makes rescue more difficult), and is thrown rearward (toward the tank and fire). Id. When a vehicle is burning because its rear-mounted gas tank has exploded, a collapsing seat can be catastrophic.FCA knew how to build stronger seats. As early as 1980, FCA\u2019s engineers recognized that \u201cseat back collapse\u201d was occurring in internal tests and noted that \u201cimprovements could be made, but would require development costs.\u201d \u00b6 40. By the mid-1990s, FCA was manufacturing its Chrysler-branded Sebring sedans with strong seats that resisted failure in rear impact. \u00b6 45.\u00a0 In the 1990s through the 2000s, when Chrysler and Daimler-Benz were merged, the company\u2019s Mercedes-branded vehicles had stronger seats that were \u201cdesigned to resist bending rearward, and twisting, in a wide variety of rear impacts.\u201d \u00b6 41FCA also knew about the\u00a0benefits of stronger seats. Following public attention to the issue of seat backs as a result of a \u201c60 Minutes\u201d special in 1992, FCA\u2019s engineers recommended that the company build vehicles with stronger seats. \u00b6 42; see also \u00b6 43 (FCA executives also watched the 60 Minutes special). In January of 1996, engineers noted that the stronger Sebring seats \u201cperformed very well in impact tests.\u201d \u00b6 45. In November of 1996, FCA engineers acknowledged \u201cthe ability of [a] car seat to add appreciable crash victim occupant protection.\u201d \u00b6 46. And from 1988 through 2015, Plaintiff has identified\u2014even without the benefit of discovery\u2014twenty-nine\u00a0other similar occasions of seat back collapse in FCA vehicles.\u00a0 \u00b6 52.In addition to engineers and real-world collisions,\u00a0judges and juries put FCA on notice about the dangers of weak, collapsing seats. In 2004, a Tennessee jury found that the weak, collapsing seat in a Dodge minivan was defective and unreasonably dangerous, that FCA failed to warn at the time of first sale and afterward, and that FCA acted recklessly such that punitive damages should be imposed. \u00b6 47. The jury returned a verdict of $105,500,000. Id.Despite these known dangers, FCA manufactured the 2004 Jeep Liberty with a weak, collapsing seat and refused to issue any warning. \u00b6\u00b6 57-59.Because a picture is worth a thousand words, two post-collision pictures follow\u2014the subject Jeep on the left, and Mrs. [redacted]\u2019s seat back on the right. \u00b6 83, 85.What happened on October 20, 2017 was chillingly predictable. Mrs. [redacted]\u2019s 2004 Jeep Liberty\u2014a rear-tank Jeep manufactured with weak, collapsing seats and equipped with a recall-approved trailer hitch\u2014was rear-ended. \u00b6 82. The crush damage did not reach the occupant area. \u00b683. Nonetheless, the trailer hitch buckled and speared the gas tank. \u00b6 94. The tank ruptured. \u00b6 84. The Jeep exploded. \u00b6 89. Mrs. [redacted]\u2019s seat collapsed. \u00b6 86. Mrs. [redacted] was thrown rearward toward the fire. \u00b6 86. She could not escape. \u00b6 90. Bystanders could not rescue her. \u00b6 91. She burned to death inside the Jeep. \u00b6 93.B. Standard Of Review On Motion To DismissOn a motion to dismiss, courts accept all factual allegations in the Complaint as true and draw all reasonable inferences in the non-moving party\u2019s favor.\u00a0Transky v. Ohio Civil Rights Comm\u2019n., 193 Ohio App.3d 354, 2011-Ohio-1865, 951 N.E.2d 1106, \u00b6 11 (overruled on other grounds). \u201c[A]s long as there is a set of facts, consistent with the plaintiff\u2019s complaint, which would allow the plaintiff to recover, the court may not grant a defendant\u2019s motion to dismiss.\u201d Doe v. Cleveland Metro. Sch. Dist., 2012-Ohio-2497, 972 N.E.2d 63, \u00b6 21.FCA ignores this standard.\u00a0 For instance, FCA suggests to the Court that Plaintiff\u2019s Complaint \u201cacknowledge[s] that [the subject vehicle] passed federally mandated tests for fuel tank integrity.\u201d Opp. at 10.\u00a0 Plaintiff\u2019s Complaint acknowledges no such thing. See \u00b6\u00b6 104, 106 (paragraphs cited by FCA). For another example, Plaintiff has already\u00a0identified\u00a0ninety other similar incidents, all involving rear impact, by date, occupant(s), and vehicle. \u00b6 27, 52. FCA\u2019s claim that Plaintiff\u2019s Complaint lacks \u201cdetail corroborating [Plaintiff\u2019s] claim that the other incidents were similar to the accident at issue\u201d ignores the black-letter rule that when a party moves to dismiss, the Complaint\u2019s allegations, including those relating to similarity, are taken as true. See\u00a0Opp. at 3.C. Statute of Repose and Rule 9(B)Because the Complaint properly pleads a fraud claim, the statute of repose does not bar this case. R.C. 2305.10(C)(2); Papasan v. Dometic Corp., No. 16-CV-02117, 2017 WL 4865602, at *10-11 (N.D. Cal. 2017) (applying Ohio law); \u00b6 120.Fraud has six elements under Ohio law.[3] \u201cOhio courts have consistently recognized \u2018fraud by concealment\u2019 or \u2018fraudulent concealment\u2019 when the fraud claim raises the issue of concealing a fact when a duty to disclose exists.\u201d Schmitz, 2016-Ohio-8041, 67 N.E.3d 852, \u00b6 57. Plaintiff has pled each of those six elements with sufficient particularity to satisfy Rule 9(B), as shown below. See\u00a0Complaint \u00b6 121;\u00a0Papasan, 2017 WL 4865602, at *10-11 (applying Ohio law).1.\u00a0\u00a0Representation, or where there is a duty to disclose, concealment.FCA had statutory and common-law duties to disclose defects in the subject Jeep. When a \u201cmanufacturer kn[ows] or, in the exercise of reasonable care, should . . . know[] about a risk that is associated with the product,\u201d then the manufacturer has a duty to warn. R.C. \u00a7 2307.76(A); \u00b6 121(a). FCA had this statutory duty to warn of known risks at the time of initial marketing (i.e., at the time of initial sale). R.C. \u00a7 2301(A)(1).\u00a0Because evidence of the dangers continued to mount after the sale of the subject Jeep, FCA also had a statutory duty to issue a \u201cpost-marketing\u201d warning (i.e., a warning\u00a0after the initial sale). R.C. \u00a7 2301(A)(2).\u00a0 FCA also had a duty to warn at common law. See Davenport v. Correct Mfg. Corp., 24 Ohio St. 3d 131, 133 (1986).Because FCA had a duty to disclose, \u201cconcealment\u201d satisfies this first element of fraud.\u00a0Schmitz, 2016-Ohio-8041, \u00b6 56;\u00a0Papasan, 2017 WL 4865602, at *10-11. FCA concealed the defects in the subject Jeep at the time of initial marketing and after the Jeep was sold. \u00b6\u00b6121(b), (c).\u00a0FCA also fraudulently concealed the fact that the trailer hitch would not protect the tank. \u00b6\u00b6 121(d), (e).\u00a0FCA made false representations by fraudulently announcing to the public that its rear-tank Jeeps were \u201cabsolutely safe.\u201d \u00b6\u00b6 35, 121(m).FCA was alerted to the dangers in the subject Jeep by failures in its other vehicles with substantially similar designs. As to gas tanks, those included the 1993-2004 Jeep Grand Cherokees, 1993-2001 Jeep Cherokees, and 2002-2007 Jeep Liberties, all\u00a0of which had rear tanks mounted within \u201cthe rear-most eleven inches of the vehicle\u201d and\u00a0all of which were involved in the federal investigation. \u00b6\u00b6 27, 60. As to seat backs, those included other vehicles manufactured with substantially similar seats. FCA\u2019s suggestion that an allegation is irrelevant if it \u201cdo[es] not reference the model 2004 Jeep Liberty\u201d is silly. Opp. at 3. As the Court likely knows, manufacturers build vehicles by \u201cplatforms\u201d that span several years. There are no meaningful differences between a 2002, 2004, or 2007 Liberty; no substantial differences in the fuel tank designs of the above-mentioned Grand Cherokees, Cherokees, and Liberties; and no substantial differences between the seats of the subject Jeep and other FCA vehicles equipped with the same or similar seats. The known failure of a substantially similar design is relevant because it shows that FCA knew about the dangers at issue.\u00a0See Taylor v. Freedom Arms, Inc., 2009-Ohio-6091, \u00b6 52-55 (admissibility of substantially similar incidents).Ohio recognizes fraudulent concealment in product liability cases. Papasan, 2017 WL 4865602, at *10-11;\u00a0In re Whirlpool Corp., 45 F. Supp. 3d 706, 721-23 (N.D. Ohio 2001);\u00a0Jones v. Am. Tobacco Co., 17 F. Supp. 2d 706, 720 (N.D. Ohio 1998). FCA\u2019s representation to this Court that \u201cOhio law does not recognize a claim for fraudulent concealment in product liability actions\u201d is false, and the case that FCA cites[4] does not support its representation. Opp. at 7.\u00a0[5]2. Materiality.FCA concealed the likelihood that the subject Jeep would explode in rear impact and the seat back would collapse. \u00b6 10, 37.\u00a0Those dangers are material. \u00b6 121(f).3.\u00a0Knowledge of falsity.FCA\u2019s own engineer admitted that FCA knew that the subject Jeep was \u201cvulnerable to rear impact.\u201d [6] \u00a0FCA knew that (1) the rear gas tank could rupture in foreseeable rear impacts, (2) the seat back could collapse, and (3) the trailer hitch would not help. \u00b6\u00b6 10-33 (gas tank), 37-57 (seat back), 65-67 (trailer hitch), 121(g) (all). Yet FCA concealed that information and falsely reassured the public that the Jeeps were \u201cabsolutely safe.\u201d \u00b6\u00b6 34-36, 57-59, 67-71, 76, \u00b6 121(m).4. Intent to mislead.As FCA\u2019s Chairman and CEO admitted under oath, FCA \u201cwanted the American people to believe\u201d that the Jeeps were safe.\u00a0\u00b6 121(i). In truth, the Jeeps were deadly-dangerous, and FCA knew it.\u00a0FCA intended to mislead consumers by concealing the dangers, and by offering false reassurances, for an obvious reason\u2014it wanted to sell more Jeeps. \u00b6 121(h).5. Justifiable reliance.FCA was a global automaker with experience in building, testing, selling, and recalling Jeeps. Mr. and Mrs. [redacted] were ordinary consumers. Mr. and Mrs. [redacted] justifiably relied on FCA to disclose known dangers, as Ohio law required. \u00b6\u00b6 73-74, 121(j). The [redacted] family also relied on FCA to conduct a meaningful recall, if necessary, that would actually fix the safety problem that it purported to address. \u00b6 77-78. FCA had the ability to conduct crash tests, consult its engineers, evaluate crash data, and conduct recalls\u2014the [redacted]s did not.6. Proximate cause.The dangers that FCA knew about, but fraudulently concealed, caused Mrs. [redacted]\u2019s death. \u00b6\u00b6 132, 133. (When we reach the evidence phase, FCA will be unable to deny that.) If FCA had told the [redacted] family about those risks, the [redacted]s would not have purchased or kept the subject Jeep. \u00b6 121(k). When the hitch failed, the gas tank ruptured, and the seat back collapsed, those exact risks caused Mrs. [redacted]\u2019s death. \u00b6\u00b6 82-93, 121(l).D. Post-marketing Failure To WarnIf a manufacturer fails to warn consumers of a known danger\u00a0after the sale of a product, that manufacturer is liable for its \u201cinadequate post-marketing warning.\u201d R.C. \u00a7 2307.76(A)(2). The elements of a post-marketing warning claim are: (1) the manufacturer knew or should have known about the risk that caused harm, and (2) the manufacturer failed to give the warning that \u201creasonable care\u201d required, given the likelihood and severity of the risk.\u00a0Id.The Complaint properly pleads those elements. As to the first element, Plaintiff has shown that FCA knew about the risks of gas tank explosion and seat back collapse following rear impact. \u00b6\u00b6 10-36 (gas tanks), 37-59 (seat backs). As to the second element, Plaintiff has shown that FCA gave no post-marketing warning at all\u2014and instead, falsely announced that the Jeeps were \u201cabsolutely safe.\u201d \u00b6\u00b6 35, 36, 59, 71, 76, 121(a). As to the \u201clikelihood\u201d of the risk, Plaintiff has identified ninety other product failures, even before discovery, in which gas tanks ruptured or seat backs collapsed. \u00b6\u00b6 27, 52.\u00a0 As to the \u201cseverity\u201d of the risk, Plaintiff has shown that rupturing gas tanks can lead to \u201cfire and death\u201d and \u201cexplosion[s];\u201d and that collapsing seat backs can lead to \u201chead or cervical spine injuries,\u201d occupants who cannot escape from their burning vehicles, and occupants who cannot be rescued from their burning vehicles. \u00b6\u00b6 10 (gas tanks), 37 (seat backs). Plaintiff has properly pled a post-marketing failure to warn. \u00b6 117.The Complaint shows that after FCA sold the subject Jeep, the evidence of its dangers continued to mount. For example, it was after the sale of the subject vehicle that: FCA\u2019s own engineer testified that the rear-tank Jeeps were \u201cvulnerable to rear impact\u201d (\u00b6 25), the Office of Defects Investigation determined that the rear-tank Jeeps had \u201cdefects relating to motor vehicle safety\u201d (\u00b6 60), a jury found that FCA \u201cacted with a reckless or wanton disregard for human life\u201d with regard to the rear-tank Jeeps (\u00b6 26), the gas tanks in forty-three rear-tank Jeeps now known to Plaintiff leaked after rear impact (\u00b6 27), the Executive Director for the Center for Auto Safety testified before Congress about FCA\u2019s collapsing seat backs (\u00b6 48), two U.S. Senators sent FCA a letter warning FCA about its collapsing seat backs (\u00b6 49), a jury imposed punitive damages against FCA for its reckless use of collapsing seats (\u00b6 47), and the seat backs in eighteen FCA vehicles now known to Plaintiff collapsed after rear impact (\u00b6 52). It was also\u00a0after\u00a0the sale of the subject Jeep that FCA undertook a \u201crecall\u201d of the rear-tank Jeeps that it\u00a0knew would not actually fix the problem. \u00b6\u00b6 65-67, 71.This evidence shows that\u00a0after\u00a0FCA sold the subject Jeep, but\u00a0before Mrs. [redacted] was killed, FCA was \u2018on notice\u2019 that the subject Jeep was unreasonably dangerous. This proof of \u2018notice\u2019 establishes Plaintiff\u2019s post-marketing failure to warn claim. If FCA admits that it knew, at the time that it first sold the subject Jeep, that the gas tank and seat back were dangerous and defective, then this post-marketing evidence of the dangers could be irrelevant. But FCA has not admitted that, and has instead taken the opposite approach by claiming that the Jeeps were \u201cabsolutely safe.\u201d \u00b6 76. Unless FCA admits that it knew, at the time of initial sale, that the gas tank and seat back were dangerous and defective, Plaintiff\u2019s allegations of post-sale notice validly establish a post-marketing failure-to-warn claim.FCA\u2019s reliance on\u00a0Linert v. Foutz\u00a0is misplaced.\u00a0\u00a0See 149 Ohio St.3d 469, 2016-Ohio-8445, 75 N.E.3d 1218. In\u00a0Linert, the plaintiffs appealed from a defense verdict after having claimed that, but for alleged defects in the decedent\u2019s vehicle, the decedent would have sustained only \u201cminor injuries\u201d after being struck by a Cadillac \u201ctraveling at speeds estimated at 90 to 110 miles per hour.\u201d Id. at \u00b6 4, 6. The jury disagreed and determined that the subject vehicle was not defective and that the manufacturer was not liable for failing to warn. Id.\u00a0at \u00b6 18.\u00a0The Ohio Supreme Court held that the trial court properly refused to instruct the jury on a post-marketing failure-to-warn theory.\u00a0Id.\u00a0at \u00b6 3.Linert is distinguishable for several reasons.\u00a0First, the issue on appeal was whether the plaintiff was entitled to a jury instruction on post-market failure to warn after the presentation of evidence. See\u00a0id. at \u00b6 2. Here, the issue is whether the Complaint contains sufficient allegations to withstand a motion to dismiss. Second, in\u00a0Linert, it was established that \u201cthe risk of fire . . . was well-known to [the manufacturer]\u00a0prior\u00a0to the sale.\u201d\u00a0Id. at \u00b6 32 (emphasis in original). Here, FCA has\u00a0not conceded that the risk of fire was well-known to it when it sold the subject Jeep, and has instead taken the opposite position.\u00a0See Complaint \u00b6 76 (\u201cabsolutely safe\u201d).\u00a0Third, in\u00a0Linert, the jury determined that the subject vehicle was\u00a0not defective, which made it impossible for the appellate court to find that the plaintiffs could meet the first element of a post-marketing failure-to-warn claim\u2014i.e., that the manufacturer knew about an unreasonable risk that caused the harm. Linert, 149 Ohio St.3d at \u00b6 18. Here, there has been no such finding of non-defectiveness. Fourth, in\u00a0Linert, the plaintiffs failed to show post-marketing notice of any defect because \u201c[t]here was a paucity of such evidence.\u201d Id. at \u00b6 35. Here, as noted above, the Complaint shows repeated post-marketing \u2018notice\u2019 of the defects to FCA.E. Negligent UndertakingThe Complaint validly states a claim for a negligent undertaking.\u00a0\u00b6\u00b6 118, 119. Having undertaken to recall the subject Jeep, FCA had a duty to conduct the recall with ordinary care.\u00a0Brink v. Giant Eagle, 2017-Ohio-7960, \u00b6 39-44 (2017) (\u201cWhen one undertakes a duty voluntarily, and another reasonably relies on that undertaking, the volunteer is required to exercise ordinary care in completing the duty.\u201d) FCA breached\u00a0that duty by carrying out a \u201crecall\u201d that was futile, that FCA\u00a0knew would be futile, and that actually contributed to the danger. \u00b6\u00b6\u00a0 65-67, 71, 121(d).FCA\u2019s decision to institute this \u201crecall\u201d originated with Marchionne\u2019s secret meeting with the political heads of NHTSA. \u00b6\u00b6 60-67. Marchionne\u2019s goal at the meeting was to end the federal investigation into the rear-tank Jeeps, which became contentious when NHTSA found that the Jeeps \u201ccontain[ed] defects related to motor vehicle safety.\u201d See \u00b6\u00b6 \u00a060-61. The deal that Marchionne struck with those political officials allowed FCA to end the investigation merely by offering free trailer hitches\u2014even though FCA knew that hitches would not fix the problem.\u00a0 \u00b6\u00b6 65-67. As the President of Chrysler International had admitted\u00a0under oath just two years earlier, \u201cthe tow package [trailer hitch] does not protect the tank.\u201d \u00b6 65.FCA\u2019s decision to conduct such a reckless recall struck home when Mrs. [redacted]\u2019s Jeep\u2014which\u00a0had\u00a0the trailer hitch\u2014exploded in a foreseeable rear impact. \u00b6\u00b6 69-70. The [redacted] family had reasonably relied on FCA to make honest, accurate decisions about recalls. \u00b6\u00b6 74, 77-78. They had reasonably relied on FCA\u2019s determination and announcement that if the subject Liberty had a trailer hitch on it\u2014as it did\u2014then it was reasonably safe. \u00b6\u00b6 77-78.\u00a0 But FCA\u2019s determination and announcement were false. \u00b6 65-67, 121(d).Plaintiff\u2019s negligent undertaking claim addresses the\u00a0process of this \u201crecall\u201d\u2014i.e., FCA\u2019s CEO-level decision to institute a recall that it knew would not fix the danger. Despite FCA\u2019s protestations, the OPLA does not make FCA immune from liability arising from that decision. FCA\u2019s suggestion that product manufacturers cannot be liable for negligent undertakings\u2014or, put differently, that the OPLA allows product manufacturers to conduct negligent or reckless recalls with impunity\u2014misses the mark. Plaintiff\u2019s negligent undertaking claim challenges the recall process, not merely a product. Therefore, the claim is not subsumed by the OPLA.FCA\u2019s argument about its negligent undertaking was recently rejected by another court. See White v. FCA US, LLC, 579 B.R. 804, 815 (E.D. Mich. 2017). In White, a pregnant mother was burned to death \u201cwhen the 2003 Jeep Liberty she was driving burst into flames after it was struck from the rear by another car.\u201d Id. at 806. FCA moved to dismiss Plaintiff\u2019s negligent undertaking claim, but the federal court denied FCA\u2019s motion. Id.\u00a0(concluding that the\u00a0White complaint \u201cadequately alleges that, having voluntarily undertaken to act in issuing the recall, [FCA] failed to do so with reasonable care, based on the knowledge of the danger of the Jeep\u2019s design that was within [FCA\u2019s] purview at the time.\u201d) The court\u2019s holding was based on the fact that Michigan law, like Ohio law, provides that \u201conce a duty is voluntarily assumed, it must be performed with some degree of skill and care.\u201d\u00a0Id.FCA\u2019s attempt to blame the car dealership that carried out the recall is misplaced. It was not the car dealership that decided to undertake a recall that it knew would not fix anything\u2014that was FCA and, specifically, its Chairman and CEO.F. ConclusionPlaintiff respectfully requests that the Court deny FCA\u2019s motion.Footnotes[1] These and subsequent citations to paragraphs (\u201c\u00b6\u201d) refer to the Complaint unless otherwise specified.[2] After being purchased by Fiat Chrysler Automobiles N.V., an international corporation, Chrysler Group LLC renamed itself \u201cFCA US LLC.\u201d That change occurred on December 16, 2014. FCA US LLC is the named defendant in this case. Before the renaming, at various times before, during, and after the bankruptcy and bailout process, Chrysler had been known as Chrysler Corporation, DaimlerChrysler AG, Chrysler LLC, Old Carco LLC, Chrysler Group LLC, and other names. For the sake of simplicity, Plaintiff uses the name \u201cFCA,\u201d which stands for \u201cFiat Chrysler Automobiles,\u201d to refer collectively to these entities.\u00a0 See \u00b6 5.[3] The elements are (1) a representation, or when there is a duty to disclose, \u201cconcealment of a fact,\u201d (2) that is material, (3) \u201cmade falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred,\u201d (4) intent to mislead, (5) justifiable reliance upon the representation or concealment, and (6) injury proximately caused by the reliance.\u00a0Schmitz v. Nat\u2019l Collegiate Athletic Ass\u2019n, 2016-Ohio-8041, 67 N.E.3d 852, \u00b6 56.[4]\u00a0FCA cites \u201cCrisp. Stryker Corp., No. 5:09-cv-02212, 2010 U.S. Dist. LEXIS 51390 (N.D. Ohio May 21, 2010)\u201d for this proposition. The case is available at or by Googling \u201ccrisp v stryker corp ohio.\u201d[5]\u00a0In a footnote, FCA refers with a \u201cCf.\u201d citation to\u00a0Brosier v. Ford, the trial court Order from this Court that FCA attached to its brief. Opp. at 12.\u00a0In Brosier, the trial court dismissed a count of the complaint because the plaintiff failed to properly allege fraud. rosier at 8-9. Here, Plaintiff has properly pled fraud, and specifically, fraudulent concealment. Further, the plaintiff in Brosier alleged that a single component part used in a recall was defective, whereas here, Plaintiff challenges the gas tank design, seat back design, and FCA\u2019s decision to install trailer hitches as a \u201crecall\u201d despite knowing that trailer hitches could not protect the gas tanks. See\u00a0id.\u00a0at 5 (\u201cthe Court finds that the replacement parts are the product in question.\u201d).[6] \u00b6 25. FCA faults Plaintiff for not providing more \u201ccontext\u201d for the deposition quotations in the Complaint. FCA had lawyers at those depositions; FCA has copies of the transcripts; FCA can file them if it so chooses."},{"@context":"https:\/\/schema.org\/","@type":"BreadcrumbList","itemListElement":[{"@type":"ListItem","position":1,"name":"Blog","item":"https:\/\/butlerfirm.com\/blog\/#breadcrumbitem"},{"@type":"ListItem","position":2,"name":"Jeep Fire Wrongful Death Case: Why FCA is Responsible for Its Rear-Mounted Gas Tanks","item":"https:\/\/butlerfirm.com\/blog\/jeep-fire-wrongful-death-case-fiat-chrysler-automobiles-rear-mounted-gas-tanks\/#breadcrumbitem"}]}]