It's Time for Missouri to Buckle Up and Adopt the Seat Belt Defense
by Scott E. Harvison1
Given the statutory requirement to wear a seat belt and the overwhelming public policy favoring increased seat belt use, Missouri should adopt the seat belt defense consistent with the principles of its pure comparative fault system.
I. Introduction - The Seat Belt Defense
If the failure to wear an available seat belt contributes to injuries suffered by a plaintiff in an automobile accident, a defendant should be able to introduce evidence that such a failure constitutes comparative negligence, reducing plaintiff's recovery to the extent that plaintiff's injuries could have been avoided had a seat belt been utilized. There is a direct correlation between the failure to wear a seat belt and enhanced injuries suffered in an automobile accident. Seat belt use reduces the risk of fatality from an automobile accident by 45% and the risk of moderate-to-critical injury by 50%.2 Undoubtedly, the 922 fatalities from the 94,623 accidents on Missouri highways in 2002 would have been substantially reduced had all vehicle occupants worn their seat belts.3
Despite national and state statutes, regulations, and policies advocating and/or requiring the use of seat belts and the abundance of evidence supporting the fact that seat belt use reduces the severity of injuries sustained in an automobile accident, under Missouri law the failure to use a seat belt cannot be considered evidence of comparative negligence. Hence, the "seat belt defense," which can reduce a plaintiff's recovery in proportion to the amount of injury that could have been avoided by the use of a seat belt, is not available to defendants under Missouri law.
The body of law surrounding the "seat belt defense . . . is split, fragmented and changing. It varies in time, place, rationale, effect, and implementation."4 Currently, 26 states and the District of Columbia have statutes prohibiting evidence of a plaintiff's non-use of a seat belt as evidence of comparative negligence, 22 of these states via statute;5 four states only allow evidence of a plaintiff's non-use in products liability actions;6 eight states allow evidence of non-use in order to mitigate damages, but six of these states limit any damage reduction to a certain percentage (Missouri falls into this category);7 eight states allow evidence of non-use as evidence of comparative fault and/or negligence, three by way of statute;8 and three states are undecided as to the seat belt defense.9
This article will analyze judicial interpretation of the seat belt defense in Missouri as well as Missouri's seat belt statute. The article will then argue that the seat belt defense is consistent with Missouri jurisprudence and will endorse a statutory approach allowing evidence of seat belt non-use as comparative negligence.
II. The Seat Belt Defense In Missouri
A. Missouri's Common Law
The Missouri Court of Appeals for the Eastern District first analyzed the seat belt defense in Miller v. Haynes, holding that it was improper to allow evidence of a failure to wear a seat belt as evidence of a plaintiff's contributory fault.10 The Miller court, relying on the Michigan case of Romankewiz v. Black, held that there was no duty to wear a seat belt absent a statute "imposing such a duty."11 At the time Miller was decided, automobiles were required to be equipped with seat belts; however, this requirement did not impose a duty upon automobile occupants to wear a seat belt "nor any penalty for the failure to do so."12
The Court of Appeals reasoned that the failure to wear a seat belt could only be considered contributory negligence if the "omission to use the [seat] belt [constituted] a failure to exercise the ordinary care which a reasonably prudent person would have used under the circumstances preceding that particular accident."13 Since an individual would not ordinarily have time to buckle his or her seat belt when the danger of accident becomes apparent, such an obligation would have to arise prior to the injury.14 One is not required to anticipate another's negligence; in fact, one is entitled to assume that others will use due care for their own safety as well as the safety of others.15
The doctrines of assumption of risk, mitigation of damages, and avoidable consequences were also nixed as grounds to admit evidence of a plaintiff's failure to wear a seat belt.16 One traveling in an automobile cannot be held to appreciate the risk that every time he or she enters an automobile, an accident is so likely to occur as to have assumed the risk of injury.17
Finally, the Court of Appeals held that even if a statutory duty to wear seat belts existed, it would be difficult to apportion damages for a breach of such a duty and would "'invite verdicts [based] on prejudice and sympathy contrary to the law,' create 'unnecessary conflicts in result,' and 'degrade the law by reducing it to a game of chance.'"18 Interestingly, Romankewiz, the Michigan case upon which Miller relied so heavily, has since been superseded in favor of statutory and common law seat belt defenses.19 In 1985, Michigan enacted legislation requiring the use of seat belts, allowing evidence of the failure to wear seat belts as comparative negligence.20 The seat belt defense was adopted, in part, following the replacement of contributory negligence in favor of the less harsh system of comparative negligence.21
B. Missouri's Seat Belt Statute
Although Missouri's seat belt statute requires the use of a seat belt, it explicitly precludes non-use of a seat belt to be used as evidence of comparative fault. A defendant may plead that a plaintiff's failure to use a seat belt constitutes a failure to mitigate damages; however, the total amount that a plaintiff's recovery can be reduced is limited to a nominal one percent.22 Section 307.178.4, RSMo, provides:
In any action to recover damages arising out of the ownership, common maintenance or operation of a motor vehicle, failure to wear a safety belt in violation of this section shall not be considered evidence of comparative negligence. Failure to wear a safety belt in violation of this section may be admitted to mitigate damages, but only under the following circumstances:
(1) Parties seeking to introduce evidence of the failure to wear a safety belt in violation of this section must first introduce expert evidence proving that a failure to wear a safety belt contributed to the injuries claimed by plaintiff;
(2) If the evidence supports such a finding, the trier of fact may find that the plaintiff's failure to wear a safety belt in violation of this section contributed to the plaintiff's claimed injuries, and may reduce the amount of the plaintiff's recovery by an amount not to exceed one percent of the damages awarded after any reductions for comparative negligence.23
In adopting the seat belt statute, the Missouri legislature manifested an intent to promote the use of seat belts.
24 The legislature also manifested an intent to preclude the use of one's failure to wear a seat belt as evidence of comparative fault in actions arising out of the "ownership, common maintenance or operation of a motor vehicle."
25 However, the lack of legislative history surrounding Missouri's seat belt statute makes it difficult to determine the reasoning behind the legislature's refusal to allow the seat belt defense. Given the absence of a legislative history for the seat belt statute, the following traditional rationales behind the disallowance of the seat belt defense will be analyzed: (1) the lack of a statutory duty to wear seat belts; (2) the nature of the contributory fault system; (3) the fact that the failure to wear a seat belt did not cause the initial accident; and (4) the general effect the seat belt defense would have on the judicial system. Each of these rationales are based in antiquated legal concepts and are contrary to overwhelming public policy behind the promotion of seat belt use. These outdated concepts and notions should yield in favor of adopting the seat belt defense.
Two changes in Missouri jurisprudence have made the time ripe for the acceptance of the seat belt defense: (1) the statutory requirement to wear seat belts; and (2) the adoption of a pure comparative fault system.
III. The Statutory Requirement to Wear a Seat Belt together With a Pure Comparative Fault System Embraces the Seat Belt Defense
A. Statutory Requirement to Wear a Seat Belt
As touched upon above, Missouri's seat belt statute requires drivers and front seat passengers in passenger cars and trucks to wear a seat belt.26 The relevant portion of § 307.178, RSMo, provides the following:
2. Each driver . . . and front seat passenger of a passenger car manufactured after January 1, 1968, operated on a street or highway in this state, and persons less than eighteen years of age operating or riding in a truck ... on a street or highway of this state shall wear a properly adjusted and fastened safety belt that meets federal National Highway, Transportation and Safety Act requirements. . . .27
Even though the seat belt statute disallows evidence showing that a breach of the statute can constitute comparative fault, the statute should be amended in a manner consistent with the principles of pure comparative negligence.
B. Pure Comparative Fault
A "pure comparative fault [system], in accordance with the Uniform Comparative Fault Act" (UCFA), was adopted by the Supreme Court of Missouri in 1983.28 Comparative negligence usually pertains to a plaintiff's conduct as an initial cause of his or her injuries, and a plaintiff's failure to mitigate damages usually occurs after wrongful conduct on the part of the defendant.29 These doctrines, along with avoidable consequences, are nearly indistinguishable when applied to cases involving the failure to use a seat belt, and all three rest upon the same fundamental policy - that a plaintiff's recovery is dependent upon the exercise of reasonable care in the protection of his or her own interests.30 Given the similarity in policy considerations, these doctrines are often discussed interchangeably in the context of the seat belt defense.
Comparative fault ameliorates the concerns posed by the former contributory fault regime, whereunder a plaintiff's recovery could have been barred altogether based on conduct that contributed to his or her injuries. Under a pure comparative fault system, however, a plaintiff's recovery may only be diminished in an amount proportionate to the extent that his or her failure to wear a seat belt contributes to his or her injuries. Therefore, former concerns, as expressed in Miller, over a plaintiff being barred from recovery because of the failure to wear a seat belt no longer exist. Missouri's current regime is just for both plaintiffs and defendants.
The UCFA endorses pure comparative fault over other modified types of comparative fault.31 Pure comparative fault allows for a plaintiff's recovery to be reduced by his or her percentage of fault, regardless of how high or low that percentage may be. Section I of the UCFA delineates that "[i]n an action based on fault seeking to recover damages for injury or death to a person or harm to property, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant's contributory fault, but does not bar recovery."32
Under the UCFA, "'[f]ault' includes acts or omissions that are in any measure negligent or reckless toward the person. . . . The term also includes . . . [the] unreasonable failure to avoid an injury or to mitigate damages."33 The Commissioners' Comments to Section I of the UCFA state that "[t]he doctrine of avoidable consequences is expressly included in the coverage."34 The UCFA, in detailing the requirement that a causal relationship exist between the particular damage sought to be reduced and the claimant's comparative fault, even provides the example that the "negligent failure to fasten a seat belt would diminish recovery only for damages in which the lack of a seat-belt restraint played a part. . . ."35 As is evident from this example, the framers of the act upon which Missouri's comparative fault system is based accepted as a basic tenet that the failure to wear a seat belt could be considered comparative negligence.
A plaintiff's failure to wear a seat belt should be considered a breach of the general duty to exercise reasonable care for one's own safety. It is implicit in the doctrine of pure comparative negligence that a person should bear the responsibility for injuries due to his or her negligence. Encompassed within the doctrine is the concept that every individual bears the duty to take affirmative steps to prevent his or her own injury.36 In Wemyss v. Coleman, the appellee was injured in an automobile accident when her head snapped back and struck an icebox installed behind the passenger seat of the van in which she was a passenger.37 Appellee was not wearing her seat belt at the time of the accident.38 A medical expert for the defense testified that the appellee probably would not have sustained injuries had she worn her seat belt.39 The Supreme Court of Kentucky, in holding that the appellee's failure to wear a seat belt could be considered as evidence of comparative negligence, analyzed the same language of the UCFA as did the Supreme Court of Missouri in Gustafson.40 Specifically, the court analyzed the "Comment" to Section I under which a plaintiff's failure to wear a seat belt can be considered "fault" because it is an "'unreasonable failure to avoid injury or to mitigate damages,' if there is proof that 'the lack of a seat belt restraint played a part.'"41
In Wemyss, even though appellee's negligence did not play a part in the automobile accident, there was a causal relationship between the appellee's failure to wear a seat belt and the degree of her subsequent injury.42 The court agreed that the concept of antecedent negligence covered by the UCFA's "unreasonable failure to . . . mitigate damages" language falls in the same class of conduct as the doctrine of avoidable consequences.43
The court analogized the argument that a plaintiff is not required to anticipate a defendant's negligence to "second impact" cases in which a plaintiff may argue that an automobile manufacturer is liable for any enhanced injury due to an automobile's design or construction defect.44 For example, if a person is involved in an accident and is wearing a seat belt that fails to restrain him or her, the automobile manufacturer may be held liable for any injury to which the seat belt's failure is a substantial contributing factor, even though the manufacturer's negligence did not cause the accident.45 The principle underlying the manufacturer's liability is essentially the same as the negligent failure to wear a seat belt, except that a plaintiff's liability for a failure to wear his or her seat belt turns on the failure to exercise ordinary care in the circumstances presented.46
It is apparent that, given Missouri's statutory scheme requiring seat belt use and a comparative fault system that weighs equally the rights of plaintiffs and defendants, Missouri should accept the seat belt defense.
IV. Missouri Seat Belt Statute Should Be Amended to Accept the Seat Belt Defense
Missouri should amend its seat belt statute consistent with modern fault principles by accepting the seat belt defense. Specifically, Missouri should model its statutory approach after Florida's seat belt statute, which provides the following relevant provision:
A violation of the provisions of this section shall not constitute negligence per se, nor shall such violation be used as prima facie evidence of negligence or be considered in mitigation of damages, but such violation may be considered as evidence of comparative negligence, in any civil action.47
The Florida legislature, in enacting its seat belt statute, analyzed a University of Kentucky study "which concluded that the average cost per patient involved in an accident not wearing a seat belt was 4.4 times more than the cost of those using seat belts."
48 "The Kentucky study also found that while 98 percent of the belted victims were treated and released, 21 percent of the unbelted victims were admitted to the hospital and their average stay was 5.2 times longer."
49
The Florida statute allows a jury to consider the failure to use a seat belt as evidence of negligence but does not allow such evidence as a failure to mitigate damages.50 The legislature drafted the language in this manner in order to prevent a plaintiff from being penalized twice for his or her failure to wear a seat belt. In addition, by addressing the seat belt defense under the doctrine of comparative negligence rather than under mitigation of damages, the single issue of whether a person's failure to wear a seat belt contributed to his or her injuries is simplified.51 If the statutory approach precludes seat belt non-use from being considered negligence per se or prima facie evidence of negligence, concern over prejudicing a plaintiff for his or her non-use will largely be eliminated and will require direct evidence of a causal connection between the failure to wear a seat belt and the plaintiff's enhanced injuries.
In Ridley, the plaintiff was involved in an intersection collision in which a service truck being driven by an employee of the defendant allegedly ran a stop sign and collided with the plaintiff's truck.52 In its answer, defendant pled plaintiff's failure to wear a seat belt as an affirmative defense.53 Defendant, however, was refused a jury instruction at trial on the Florida statute requiring motorists to wear seat belts.54 The Florida Supreme Court reversed the trial court and held that, consistent with Florida's seat belt statute, the defendant was entitled to an instruction under which the plaintiff's failure to wear a seat belt could be considered comparative negligence.55
The Florida Supreme Court noted that "[t]he intended use of an automobile cannot be carried out without encountering in varying degrees the statistically proved hazard of injury-producing impacts of various types."56 "A frequent and inevitable contingency of normal automobile use will result in collisions and injury producing impacts."57 The court also embraced the logic discussed in Weymess in that, although the failure to wear a seat belt will rarely be the cause of the initial automobile accident, such a failure can be the cause of the second accident in which the automobile occupant's body collides with the inside of the automobile.58 Accordingly, an occupant's failure to wear a seat belt can be considered comparative fault in causing the second accident.59 To prove such negligence, a defendant must plead and prove "that the plaintiff's failure to use the seat belt was unreasonable under the circumstances, and that there was a causal [connection] between" plaintiff's non-use and his or her injuries.60 If a defendant can provide competent evidence of such a causal connection, "the jury should be permitted to consider" it, "along with all other . . . evidence, in deciding whether [plaintiff's] damages . . . should be reduced."61
V. Conclusion
Consistent with a statute requiring the use of a seat belt and fault principles embracing pure comparative negligence, Missouri should adopt the seat belt defense. In addition, permitting jury instructions on the seat belt defense helps educate and convince the parties, the jury, the spectators and even those who only read about the litigation in the newspaper of the value of seat belts in preventing serious injuries. It underscores the value of seat belts in preventing serious injuries by warning that a jury may reduce an injured party's recovery for injuries that would have been avoided by using a seat belt.62
Footnotes
1 Mr. Harvison graduated from Seattle University School of Law in 2002 and wrote this article while practicing as a litigation associate with Baty, Holm & Numrich, P.C. in Kansas City.
2 National Highway Traffic Safety Admin., U.S. Dep't. of Transp., A Public Information Fact Sheet on Motor Vehicle and Traffic Safety Published by the National Highway Safety Administration's National Center for Statistics and Analysis (2002).
3 Missouri Department of Transportation, 2002 Missouri State Highway System Traffic Accident Statistics, available at www.modot.state.mo.us/safety/documents. Last visited August 26, 2004.
4 LaHue v. General Motors Corp., 716 F. Supp. 407, 410 (W.D. Mo. 1989).
5 Statute: Ala. Code § 32-5B-7 (Cum. Supp. 2003); Conn. Gen. Stat. § 14-100a(3) (2003); Del. Code Ann. tit. 21 § 4802(i) (2003); D.C. Code Ann. § 40-1807 (2003); Ga. Code Ann. § 40-8-76.1(d) (2004); 625 Ill. Comp. Stat. 5/12-603.1(c) (Cum. Supp. 2004); Kan. Stat. Ann. § 8-2504(c) (2002); La. Rev. Stat. Ann. § 32:295.1(E) (West Cum. Supp. 2004); Md. Code. Ann., Transp. I § 22-412.3(h) (2002); Miss. Code Ann. § 63-2-3 (2003); Mont. Code Ann. § 61-13-106 (2003); Nev. Rev. Stat. 484.641(4) (2003); N.H. Rev. Stat. Ann. § 265:107-a(IV) (Cum. Supp. 2003); N.M. Stat. Ann. § 66-7-373(A) (Michie Cum. Supp. 2004); N.C. Gen. Stat. § 20-135.2A(d) (2003); Okla. Stat. tit. 47, § 12-420 (2000); 75 Pa. Cons. Stat. § 4581(e) (Cum. Supp. 2004); S.D. Codified Laws § 32-38-4 (Michie 2003); Utah Code Ann. § 41-6-186 (Cum. Supp. 2004); Va. Code. Ann. § 46.2-1094(D) (Michie 2003); Wash. Rev. Code 46.61.688(6) (Cum. Supp. 2004); Wyo. Stat. Ann. § 31-5-1402(f) (Michie 2003) and Common Law: Quick v. Crane, 727 P.2d 1187, 1208-09 (Idaho 1986); Hopper v. Carey, 716 N.E.2d 566 (Ind. Ct. App. 1999); Sheltra v. Rochefort, 667 A.2d 868 (Me. 1995), applying, Me. Rev. Stat. Ann. tit. 29, § 1368-A (West 1978) (repealed); Swajian v. General Motors Corp., 559 A.2d 1041 (R.I. 1989); Keaton v. Pearson, 358 S.E.2d 141 (S.C. 1987).
6 Ark. Code Ann. § 27-37-703 (Michie 2003); Minn. Stat. Ann. § 169.685(4) (West 2001); Ohio Rev. Code Ann. § 4513.263(F) (West Cum. Supp. 2004); Tenn. Code Ann. § 55-9-604 (2003).
7Unlimited: Colo. Rev. Stat. § 42-4-237(7) (2003); N.Y. Veh. & Traf. Law § 1229-c(8) (Consol. Cum. Supp. 2004) and Limited: Iowa Code § 321.445(4)(b) (2003); § 307.178.4, RSMo (2003); Neb. Rev. Stat. § 60-6,273 (2003); Or. Rev. Stat. § 18.590 (1999); W. Va. Code § 17C-15-49(d) (2003); Wis. Stat. § 347.48(g) (2003).
8 Statute: Fla. Stat. ch. 316.614(9) (2003); Mich. Comp. Laws § 257.710e(6) (2001); Cal. Veh. Code § 27315(i) (West Cum. Supp. 2004) and Common Law: Law v. Superior Court, 755 P.2d 1130 (Ct. App. 1986); Hutchins v. Schwartz, 724 P.2d 1194 (Alaska 1986); Wemyss v. Coleman, 729 S.W.2d 174 (Ky. 1987); Waterson v. General Motors Corp., 544 A.2d 357 (N.J. 1988); See Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561, 1563 (D. Vt. 1985).
9 Hawaii, Massachusetts, and North Dakota are undecided as to the validity of the seat belt defense.
10 454 S.W.2d 293, 299-300 (Mo. App. E.D. 1970).
11 Id. at 300, citing 167 N.W.2d 606 (Mich. Ct. App. 1969).
12 Id., citing § 307.165, RSMo 1959. The Court of Appeals noted that "the Missouri statute [was] directed to automobile manufacturers and dealers" and that, presumably, "seat belts could . . . be torn out" by consumers. The statute itself did not authorize an inquiry into whether the plaintiff's automobile was equipped with seat belts. Id. n. 5.
13 Id., quoting Miller v. Miller, 160 S.E.2d 65, 70 (N.C. 1968) (emphasis in original).
14 Id.
15 Id.
16 Id.
17 Id.
18 Id. at 301.
19 See Mann v. St. Clair County Rd. Comm'n, 657 N.W.2d 517, 521 (Mich. Ct. App. 2002), referencing Mich. Comp. Laws § 257.710e(6) and Lowe v. Estate Motors Ltd., 410 N.W.2d 706 (Mich. 1987).
20 Mich. Comp. Laws § 257.710e(6) (1985).
21 Id. The Supreme Court of Michigan held in Klinke v. Mitsubishi Motors Corp., 581 N.W.2d 272 (Mich. 1998), that the five percent statutory cap did not apply to an automobile manufacturer in a products liability case.
22Section 307.178, RSMo 2000.
23 Section 307.178.4, RSMo 2000.
24 LaHue, 716 F. Supp. at 412.
25 Section 307.178.4, RSMo 2000.
26 Section 307.178, RSMo 2000.
27 Section 307.178.2, RSMo 2000.
28 Gustafson v. Benda, 661 S.W.2d 11, 11-12 (Mo. banc 1983).
29 Ridley v. Safety Kleen Corp., 693 So.2d 934 (Fla. 1997).
30 Id. at 942.
31Gustafson, 661 S.W.2d at 17-19, Appendix A, UCFA, Commissioners' Prefatory Note.
32 Id. at 18, Appendix A, UCFA, § I (a).
33 Id. at 18, Appendix A, UCFA, § I (b).
34 Id. at 20, Appendix A, Commissioners' Comments to UCFA, § I.
35 Id.
36 Ridley, 693 So.2d at 942, quoting John A. Hoglund & A. Peter Parsons, Caveat Viator: The Duty to Wear Seat Belts Under Comparative Negligence Law, 50 Wash. L. Rev. 1, 1-2 (1974).
37 729 S.W.2d 174, 175 (Ky. 1987).
38 Id.
39 Id.
40 Id. at 177.
41 Id., quoting UCFA, § I (emphasis in original).
42 Id. at 177-78.
43 Id. at 178.
44 Id. at 178-79.
45 Id.
46 Id.
47Fla. Stat. ch. 316.614(9) (2003).
48 Ridley, 693 So.2d at 944, n. 10, citing "Fla. H.R. Comm. on Ins., CS for SB 2670 (1990) Staff Analysis 13 (final June 21, 1990)."
49 Id.
50 Id. at 940.
51 Id.
52 Id. at 935.
53 Id.
54 Id.
55 Id. at 936.
56 Id. at 938, quoting Ford Motor Co. v. Evancho, 327 So.2d 201, 204 (Fla. 1976).
57 Id.
58 Id. at 939.
59 Id.
60 Id. at 939-40.
61 Id. at 940.
62 Housley v. Godinez, 4 Cal.App.4th 737, 746 (Cal. Ct. App. 1992).