Countering the Seat Belt Defense
By: IRA H. LEESFIELD
2350 South Dixie Highway
Miami, Florida 33133
If you are injured in a car accident, and it is not your fault at all, you expect a full recovery. You may not get one because of the seat belt defense. This defense can reduce the amount of damages plaintiffs can recover for failing to wear their seat belts in car accidents. In most jurisdictions, a successful seat belt defense allows plaintiffs to recover only for damages they would have incurred if they had been wearing their seat belts.
Few topics in tort law have been as controversial as the seat belt defense. Perhaps that is why the following 31 jurisdictions have definitively rejected it: Alabama, Arkansas, Connecticut, Delaware, the District of Columbia, Idaho, Illinois, Kansas, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Montana, Nebraska, New Hampshire, New Mexico, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington and Wyoming.(1)
On the other hand, the following 15 jurisdictions clearly allow for the possibility of at least some reduction in a plaintiff's damages for failure to wear a seat belt: Alaska, Arizona, California, Colorado, Florida, Georgia, Iowa, Michigan, Missouri, New Jersey, New York, Ohio, Oregon, West Virginia and Wisconsin. Two jurisdictions are still not clearly decided,(2) and three others do not have fully developed laws addressing the issue.(3)
Within the jurisdictions that allow for application of the seat belt defense, a plaintiff's damages could be reduced under a "comparative negligence" or a "failure to mitigate damages" theory. For example, Florida treats failure to wear a seat belt as comparative negligence while New York treats the same as a plaintiff's failure to mitigate damages.(4) Of course, no matter how a jurisdiction treats the failure to wear a seat belt, a plaintiff's damages will be reduced nonetheless.
To lessen the blow of the seat belt defense, some jurisdictions which allow for its application have enacted laws which limit the possible reduction in damages. In Missouri, for example, defendant's are entitled to assert the seat belt defense, but it can only reduce a plaintiff's damage award by one percent.(5) Similarly, in Iowa, Michigan and Oregon, damages can only be reduced by five percent.(6) In Wisconsin, the seat belt defense has more bite, and damages can be reduced by 15 percent.(7)
The fact that jurisdictions have dealt with the seat belt defense in such varying ways is testament to the defense's controversial nature. This paper will outline some of the ways to combat the questionable and damage-reducing seat belt defense. Part I of the paper will discuss how to legally combat the defense in jurisdictions where the law may still not be completely settled on the issue. Part II will discuss how to factually combat the seat belt defense in jurisdictions where it does exist.Part I.How To Legally Counter The Seat Belt Defense
As mentioned in the introduction, the state of the seat belt defense is not completely settled in many jurisdictions including Hawaii, Indiana, Mississippi, Nevada and North Dakota. Furthermore, the following states have adopted the seat belt defense, but only by common law with no statutory approval: Alaska, Arizona, Georgia and New Jersey. If you are practicing in a jurisdiction where seat belt defense law is not completely settled, or where it is settled only by common law, the following arguments may help you avoid a damaging seat belt defense reduction:
#1: Argue that the defense can not appropriately be considered comparative negligence because a plaintiff's failure to wear his or her seat belt did not help to actually cause the accident itself in any way. The traditional application of comparative negligence is that it applies only when the plaintiff's misconduct is the "but for" cause the accident, not the "but for" cause of the damages. Failing to wear a seat belt may have made the plaintiff's injuries worse, but it certainly did not help to cause the accident itself. Thus, failure to wear a seat belt can not logically be considered comparative negligence.(8)
#2: Argue that the seat belt defense does not logically fit into the doctrine of mitigation of damages. The traditional mitigation of damages rule states that a plaintiff has a duty to mitigate his or her damages after an accident has already occurred. Obviously, it would do a plaintiff no good to secure his or her seat belt after a car accident.(9) Thus, failure to wear a seat belt can not accurately be described as a plaintiff's failure to mitigate damages either.
#3: Argue that the seat belt defense runs counter to the traditional tort doctrine that defendants take their plaintiffs as they find them.
#4: Argue that plaintiffs should not have to anticipate other peoples' negligence.(10)
#5: Argue that a jury will have trouble speculating about what kind of damages to award a plaintiff if the seat belt defense is allowed. That is, if the seat belt defense is asserted, juries will essentially have to guess what damages a plaintiff would have sustained with seat belt use as compared to what they actually sustained. Even with the help of experts, this kind of calculation could become nothing more than mere guesswork.(11)
#6: Lastly, argue that a seat belt defense should be adopted, if at all, by the legislature.(12) It may be persuasive to argue that 42 jurisdictions have dealt with the issue in their state legislatures.Part II.How To Factually Counter The Seat Belt Defense
If you happen to be practicing in one of the 15 jurisdictions which allow seat belt evidence to reduce a plaintiff's damages, it is important to know whether your client was actually wearing a seat belt or not. It is also important to know what kind of seat belt, if any, they were wearing. The following are some issues for your consideration:
A. If there is no dispute as to the fact that your client did not wear a seat belt, you may want to consider some of the following points:
#1: Note that the defense counsel may try to introduce government administered seat belt effectiveness tests which purport to show how effective seat belt use can be. If the defense introduces such tests, argue that they are generally flawed. First note that many of those tests are performed using anatomical dummies which represent only 50 percent of the population. Thus, the results of the tests are generally only valid as to 5'7" 165-pound males. Also note that the government tests are performed with the seat belts snugly secured around the dummies' waists so as to get the maximum benefit out of the belts. Since the average person does not use a seat belt in this way, the tests cannot be representative of how seat belt use would have effected the average person, including your client, who wears his or her seat belt less formally.
#2: Look at your client physically. A short client, for example, may sit closer than "normal" to the steering wheel. Thus, a short plaintiff, even if they wore a seat belt, may have sustained damages that an "average" person would not have sustained. Also consider that your plaintiff may be physically heavier than others. A heavy plaintiff, even if they wore a seat belt, may have pushed the seat belt system past its maximum limits thereby making it less effective, or even ineffective.
B. If your client claims that he or she did wear a seat belt, you may want to consider some of the following issues:
It is important to consider the possibility that in some cases, it may look like your client was not wearing a seat belt when they in fact were doing so; it is certainly possible that the seat belt was simply ineffective. If your client claims to have worn a seat belt, but you are faced with a seat belt defense nonetheless, the first thing you should do is thoroughly inspect the vehicle itself to look for physical signs of seat belt use. You may want to have an expert help you perform this task. Some things to look for include: stretch marks on the seat belt, scuffing on the belt buckle, and physical deformation of the "D-Ring" which holds the seat belt system in place at its height.
In addition to checking the vehicle for physical signs of seat belt use, and possibly seat belt failure, you may want to find out if the seat belt system in question had what is known as the "Window Shade Device." If it did, then you should explain to the defense counsel, and the jury if necessary, that the "Window Shade Device" can make seat belts less effective to the point that even if a seat belt was worn, the aftermath of an accident makes it look like there was no seat belt use. The "Window Shade Device" is a comfort feature, and arguably a defect, that is included in some seat belt systems which allows the wearer of the seat belt to introduce slack into the belt. This introduction of slack can be accomplished intentionally or accidentally by pulling on the belt. For example, if a driver reaches forward to turn on the air conditioning, the "Window Shade Device" may introduce slack into the belt which never gets re-tightened. If a car passenger is then in an accident with a loosely fitted seat belt, it may appear as if no seat belt was worn at all. Not only is it obvious, but it has also been well documented that slack in a seat belt system seriously compromises the effectiveness of the seat belt as a whole. Thus, if your client's seat belt system had the "Window Shade Device" feature, it is certainly possible that your client was wearing a seat belt, and that it just didn't work.
C. If your client was wearing a lap belt.
If your client was only wearing a "lap belt," which are often the only kinds of belts available in the back seats of cars, some studies show that your client could have actually been more injured because of seat belt use. Indeed, internal damage from the lap belt may be worse than if your client was wearing no seat belt at all.Conclusion
The seat belt defense has emerged as one of the most controversial issues in recent tort law history. Although a clear majority of jurisdictions have rejected the defense, a substantial number of large and influential states, including New York, California and Florida, have adopted at least some version of it. As the controversial doctrine establishes itself more firmly, there are sure to be new issues relating to its application. For example, how will the presence of air bags in cars effect the seat belt defense? Furthermore, how will the "optional air bag" feature, which may soon come to be prevalent, effect the seat belt defense? Will courts and legislatures adopt an "air bag defense" which punishes car passengers who de-activate their optional air bags? Of course, only time will tell how we will address these issues. Until then, there remain a variety of legal and factual ways to combat the seat belt defense. Plaintiff's may get their full recoveries after all.
1. In Kentucky and Ohio, the courts and legislatures had intra-state squabbles over whether to adopt the seat belt defense. In Kentucky, KY. REV. STAT. ANN. § 189.125(5) (Baldwin 1997) overruled Wemyss v. Coleman, 729 S.W.2d 174 (Ky. 1987) so that now, Kentucky does not allow for application of the seat belt defense. Conversely in Ohio, OHIO REV. CODE ANN. § 4513.263(f) (Baldwin 1997) overruled Vogel v. Wells, 566 N.E.2d 154 (Ohio 1991) so that now, Ohio does allow for application of the seat belt defense.
2. The two jurisdictions which have not clearly decided on the issue are Hawaii and North Dakota. Neither state has a statute or case law specifically on point. In Halvorson v. Voeller, 336 N.W.2d 118 (N.D. 1983), however, the North Dakota Supreme Court indicated that it would probably be inclined to accept the seat belt defense.
3. The three states which do not have fully developed seat belt defense laws are Indiana, Mississippi and Nevada. Indiana's seat belt defense law is not fully developed because no statute or case specifically prohibits application of the seat belt defense based on a comparative negligence theory. See, e.g., State v. Ingram, 427 N.E.2d 444 (Ind. 1981); Rhinebarger v. Mummert, 362 N.E.2d 184 (Ind. Ct. App. 1977). Mississippi's seat belt defense law is not fully developed because no statute or case specifically prohibits application of the seat belt defense based on a failure to mitigate damages theory. See, e.g., MISS. CODE ANN. § 63-2-3 (1997); Roberts v. Grafe Auto Company, Inc., 701 So.2d 1093 (Miss. 1997). Nevada's seat belt defense law is not fully developed for the same reason as in Mississippi.
4. FLA. STAT. ANN. § 316.614(9) (West 1997); N.Y. VEHICLE AND TRAFFIC LAW § 1229-c(8) (McKinney 1997).
5. MO. REV. STAT. § 307.178(4).
6. IOWA CODE ANN. § 321.445(4) (West 1997); MICH. COMP. LAWS ANN. § 257.710(e)(6) (West 1997); OR. REV. STAT. § 18.590 (1996).
7. WIS. STAT. ANN. § 347.48 (West 1998).
8. See, e.g., Forsberg v. Volkwagen of America, Inc., 769 F.Supp 33 (D. New Hampshire 1990) as an example of a court which would not consider the seat belt defense as bearing on comparative negligence.
9. See, e.g., Welsh v. Anderson, 421 N.W.2d 426 (Neb. 1988) for an example of a court which rejected the seat belt defense as being part of a plaintiff's duty to mitigate damages. See also, State v. Ingram, 427 N.E.2d 444 (Ind. 1981).
10. See, e.g., Amend v. Bell, 570 P.2d 138 (Wash. 1977).
11. See, e.g., Fischer v. Moore, 517 P.2d 458 (Colo. 1973) (noting that the seat belt defense would tend to cause rampant speculation as to the reduction (or increase) in the amount of recoverable damages (emphasis added)." See also Amend, 570 P.2d 138, noting that "allowing the seat belt defense would lead to a veritable battle of the experts as to what injuries would have or have not been avoided had the plaintiff been wearing a belt. At best it would cause substantial speculation by the trier of facts (emphasis added)."
12. See, e.g., Vogel v. Wells, 566 N.E.2d 154 (Ohio 1991). Note, however, that some courts have rejected this reasoning. In Insurance Company of North America v. Pasakarnis, 451 So.2d (Fla. 1984), the Florida Supreme Court held that judicial, rather than legislative, establishment of the seat belt defense was "particularly appropriate" since the courts had a "continuing responsibility to the citizens of [the] state to ensure that the law remains both fair and realistic as society and technology change."