The Electric GM Battery Test: Lithium and the Law

By Michael GrossmanOctober 11, 2016Reading Time: 9 minutes

As circumstances have forced us to report several times recently, lithium ion battery technology is far from perfect. A fully-depleted lithium ion battery cannot be conventionally disposed of, as it required specialized recycling or hazardous-waste disposal. More than that, the composition of the battery can make it prone to thermal runaway events, which cause the battery to spontaneously catch fire.

Many companies are scrambling to improve upon the current chemistry behind lithium-ion technology, but for now these batteries are the ubiquitous, occasionally-dangerous power source behind a lot of modern technologies. The news is flooding with reports of batteries overheating and exploding in a variety of products--most recently the Samsung Galaxy 7 smartphone, but that's not the only technology with such issues.

Our personal injury attorneys recently heard reports that a GM-produced electric vehicle, parked and inactive, overheated and melted, releasing heavy amounts of carbon monoxide into the air of the buyer's home. General Motors is a relative newcomer to the field of fully-electric cars, and doesn't boast nearly the market share or distribution of Tesla or Nissan. Given the statistical unlikelihood of a reported injury so soon after the release of their initial electric offerings, this could be indicative of a serious design flaw in these cars. Our attorneys look a little closer at this phenomenon, and what options may be available to people who suffered damages from such a meltdown.

GM's Newest Issue: Battery Breakdown

The past few years have not been kind to General Motors--more accurately, they have revealed General Motors' lack of transparency. The most notable controversy the automaker has faced over its products (including those made by Cadillac, Chevrolet, Pontiac, and Saturn among others) involves a huge recall of faulty ignition switches that cause vehicles to shut off mid-drive and prevent their safety measures from engaging during a crash. A smaller recall was more recently issued involving software defects that disabled airbags and seat belts. Numerous other recalls and safety issues have plagued specific year/model combinations for the beleaguered manufacturer.

Adding fresh grist to the mill, it appears that GM's vaunted electric auto line--hailed by some as the "Tesla killer"--is now encountering some of the overheating issues faced by other products that make use of rechargeable lithium-ion batteries.

Taken from GM's promotional materials for the 2017 Bolt EV, this is the battery pack that will allegedly run a car for 238 miles between charges:

GM battery promotion
Sounds great on paper, doesn't it?

While there are certainly many potential benefits to workable electric cars, if parking a battery-powered GM vehicle in my garage means that I run the risk of overheat, fire, a melting vehicle, or carbon monoxide filling my home, I'm probably going to have to pass until these vehicles carry more certainty of safety.

Reports of Battery-Related Injuries Are Rising in Number.

Lithium-ion is the current industry standard in rechargeable battery technology, which is an important step away from disposable tech like alkaline batteries. Available on the market since 1991, they out-performed competing nickel cadmium batteries thanks to their higher energy density and low maintenance requirements. They're not perfect, though, as they are subject to time-based capacity degradation, suffering notable performance reduction after a year or so and generally "dying" within two to three years. This isn't a design flaw so much as it is a natural problem with all packaged power--it runs out eventually and needs replacing. If everything goes normally, lithium-ion batteries are an effective form of rechargeable power that requires replacement every couple of years.

A recent spate of reports has brought public attention to the idea that things don't always "go normally," though. The batteries sometimes malfunction in serious ways. The problem doesn't seem to be the lithium ions themselves, but rather how they are maintained within the battery: To ensure that the particles can move between electrodes, volatile chemical compounds are pressurized in the battery's cells. This has potentially dangerous implications: Charging and recharging the battery creates heat. While product design tries to take that into account with built-in protections, if the heat is not properly controlled it can make those pressurized compounds combust or even explode. Similar issues can arise if the battery cell's structure is punctured or compromised, and because its chemicals contain both fuel and oxidizers, the resultant flames can't always be contained by conventional methods.

The main scandal surrounding electric vehicles involves some fatalities allegedly caused by Tesla Motors' controversial "autopilot" feature; however, the dangers posed by the batteries that power electric cars should not be underestimated. Victims have already suffered injuries from exploding lithium-ion batteries in smartphones and e-cigarettes, and as the batteries scale up to power computers and cars, so too are their hazards magnified. This stems in part from the fact that the batteries themselves didn't increase in size per unit, but are crowded tightly together by the thousands in a single compartment, where they generate sufficient power to keep the vehicle moving. If a single battery cell has enough juice to explode, putting it in proximity to thousands of others with similar capacity seems to be a dangerous proposition. Engineers individually encase each battery cell in a steel enclosure to prevent chain reactions, but that melting car says this method doesn't always work.

As noted, the party's vehicle overheated while stationary, and it began melting the electric vehicle around it. We can only conjecture how the initial overheat began at this point, but it seems to have been spontaneous. If even a small bit of metallic particulate existed in one of the battery cells and happened to connect with a terminal, that could have been enough to cause reactions while the car sat idle. If any of the cells had slightly worked loose so that two battery nodes were close enough to pass energy between them, that could also have jump-started the overheating.

carbon monoxide detector
This little guy saves lives.

Numerous redundancies are built into the electric batteries to try and prevent this exact phenomenon, but even with layers of safeguarding, if anything is not built precisely to specifications, there is capacity for damage and injury.

Once the overheating battery's terminals were exposed to the air and environmental moisture in the garage, it began producing gases--in the victim's case, that included a buildup of carbon monoxide, which is poisonous if in inhaled in sufficient quantities. According to her email, the gas built up to sufficient quantity to poison the house's male occupant, who was hospitalized. The gas continued to accumulate until it had flooded the house in allegedly-lethal concentration. This is especially unnerving because carbon monoxide gas is virtually undetectable to the human senses, so as an important aside, please install and maintain carbon-monoxide detectors in your homes.

Companies (Understandably) Don't Want the Blame.

Electric vehicles are a huge emergent market, and manufacturers would prefer to protect it from pre-emptive consumer panic. Early adopters have reported some problems with their electric devices and vehicles, and the makers and distributors of those devices want to do everything they can to deflect those reports, lest their profits be too deeply affected. If that sounds cynical, I don't mean it to be; it's the same for companies as it is for people. If someone tries to take your money, you fight back, plain and simple. Corporations do what they can to avoid being the "bad guys" and losing their consumer base, and that means going toe-to-toe with anyone who accuses them of malfeasance.

One corporate strategy is to blame third-party equipment for the damages. Manufacturers often allege that the reason their Lithium-ion batteries suffer explosive overheating has to do with the cords used to charge them. This implies that using third-party cables to charge one's device somehow will deliver reduced, uneven charge, which can trigger violent reactions from the device's battery. This particular defense wouldn't hold much clout for a car meltdown, as to charge an electric vehicle a consumer would make use of the cable that is included with the car itself. There are no cheaper knockoff alternatives, so the company can't shift the blame onto a third party for equipment failure. Moreover, it was not even specified that the vehicle was charging at the time of the incident. At least one similar account is making the rounds in which a Samsung Galaxy 7 burned out while stationary on a bed stand, not charging or in use, so it is within the realm of possibility that the vehicle truly did start overheating independent of external factors.

Another common strategy would be to imply that the user him- or herself was somehow responsible for the issue. It is a little more difficult to determine how effective this argument might prove, since overcharging a lithium-ion battery can trigger overheating problems. However, most other user interactions with an electric vehicle can't conceivably trigger a meltdown of this magnitude, as private owners are very unlikely to open the battery storage compartment and directly fiddle with with its contents. The only point of relevant interaction would likely be charging the car, which may not even have been the case here.

Pursuing a Claim Against GM for Battery-Related Injury

The injured party may have multiple causes of action in pursuing a products liability claim against GM. The overheating scenario suggests the company may be liable for negligence and breach of warranty.

  • GM could be placed on the hook for negligence because when their product harmed the safety of their buyers, they then breached the duty they owed to those buyers. A manufacturer has a duty in making its products to guard against injuries likely to result from reasonable, foreseeable use and misuse of the product. Misuse must also be taken into account when designing the safety features of a product; if it was believed the product would or could not be handled incorrectly, safety measures would not be necessary. The product GM created and sold, the electric car, was believed to be ready for conventional use, and safeguarded against misuse, which might include something the owners were capable of doing by accident, like overcharging the vehicle (if they weren't even charging it, I sincerely doubt that "not doing anything to or with it" constitutes misuse). Given the circumstances, the vehicle's release of harmful carbon monoxide into the air of the buyers' home suggests negligent design, construction, or quality control on the part of GM.

     

    The State of Texas Civil Practice and Remedies Code defines the rules around asserting defective design claims:

    Sec. 82.005. DESIGN DEFECTS.
    "In a products liability action in which a claimant alleges a design defect, the burden is on the claimant to prove by a preponderance of the evidence that:
    (1) there was a safer alternative design; and
    (2) the defect was a producing cause of the personal injury, property damage, or death for which the claimant seeks recovery."

    Proving that there is a safer alternative design might require expert testimony from an automotive engineer, but proving that the melting car and the resultant carbon monoxide toxicity were the cause of the plaintiff's injury would not be difficult.

  • Proving a breach of warranty claim may also be possible. Every product comes with an implied warranty that it is safe to sell to its intended users. This is known as the implied warranty of merchantability. A defective product that injures someone clearly was not safe for its intended user, and therefore constituted a breach of this warranty. A manufacturer can't just disclaim the implied warranty, and will be held liable if the product is confirmed to be defective.

    Let's look at the specific elements of a breach of the implied warranty of merchantability under the Uniform Commercial Code--specifically the Texas Business & Commerce Code § 2.314--and see if those elements are present in the vehicle overheat:

    1. The plaintiff bought goods.
      Check.

       

    2. The defendant was a seller of the goods bought by plaintiff.
      General Motors or one of its subsidiaries created the goods that were sold through an approved vendor to the consumer.

       

    3. The goods were unmerchantable when they left defendant's possession.
      It could be argued that a design flaw in the battery compartment or the arrangement of the lithium-ion batteries themselves constitutes an unmerchantable product because of the fire and/or explosion hazards.

       

    4. The plaintiff notified defendant of the breach of the warranty of merchantability within a reasonable time after discovering such breach.
      As noted in the email we received, the injured parties have been trying to reach GM with no success.

       

  • The defendant's breach was a proximate cause of plaintiff's damages.
    The elevated carbon monoxide released by the overheated battery and subsequent gaseous buildup was clearly the reason the male plaintiff had to be taken to the hospital, and the reason that the premises were uninhabitable due to lethal toxicity.
  • Malfunction Is Far from Inevitable When You Buy An Electric Car.

    Given the increasing consumer interest in electric vehicles, their prospective buyers need to be made aware that this is a possibility. If it happens once, it can happen again, however unlikely.

    I want to temper that, however: when I say "unlikely" above, I mean "extremely unlikely." It's in a manufacturer's best interests to do everything it can to make its products safe. Vehicle engineers designed and integrated liquid cooling systems, electronic overcharge protection, steel cases around individual battery cells, multiple redundant layers of fuses, and emergency disconnect sensor arrays in an effort to prevent overheating and battery damage as often as possible. Lithium-ion batteries typically have a failure rate of one in a million or so. When you arrange a few thousand of them together into a power bank, those odds do shift, but it is still overwhelmingly unlikely.

    So while you are of course welcome to consider this report when making purchasing decisions, please do not interpret it to mean your electric car will inevitably overheat. I'm not out to stir up panic or proclaim the doom of electric vehicles. As a personal injury firm, Grossman Law seldom hears from the statistical majority of people who enjoy their belongings problem-free. "You only open an umbrella when it rains," so to speak, and so too do you call an injury attorney only when something hurts you. We enjoy a pleasant chat as much as the next person, but we know we are here to perform a serious job, and we prepare to seek justice when we hear the phone ring.