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From Products Liability Law Daily, February 17, 2015

Seat-belt evidence is now admissible in Texas

By Georgia D. Koutouzos, J.D.

Evidence of use or nonuse of seat belts—and relevant evidence of a plaintiff’s pre-occurrence, injury-causing conduct in general—is admissible for purposes of apportioning responsibility in civil lawsuits, the Texas Supreme Court ruled, reversing a decades-old prohibition on evidence of a plaintiff’s failure to use a seat belt in an auto-accident case. Even when seat-belt evidence is properly admitted, defendants still will be held liable for the damages that they have caused but not the injuries that a plaintiff has caused by not using a seat belt, the high court elucidated (Nabors Well Services, Ltd. v. Romero, February 13, 2015, Brown, J.).

Background. A transport truck owned and operated by Nabors Well Services, Ltd., was involved in an accident in 2004 that allegedly caused a sport utility vehicle filled with people to careen off the road and roll multiple times. Several of the SUV’s eight occupants were ejected from the vehicle. One passenger was killed in the accident and all of the remaining occupants—two adults and five children—sustained personal injuries.

The injury victims and their families sued Nabors and its truck driver. At trial, Nabors sought to offer expert testimony from a biomechanical engineer that all of the SUV’s occupants except its driver were not wearing seat belts, that five of the seven unbelted passengers were ejected from the vehicle, and that the passengers’ failure to use seat belts caused the injuries and the fatality. Nabors also had hoped to introduce evidence of a citation issued to the SUV’s driver for driving without properly restraining the juvenile passengers as well as testimony from the injury victims as to who was unbelted and who was ejected at the time of the accident.

Following applicable case precedent, the trial court excluded all evidence of the nonuse of seat belts as well as portions of the expert’s testimony on the basis that he was unqualified to opine that the unbelted occupants’ failure use seat belts had caused their injuries. Finding that Nabors was 51 percent responsible for the accident and the SUV’s driver was 49 percent responsible for the accident, the jury awarded the victims and their families just over $2.3 million in damages. The appeals court affirmed the lower court’s judgment, after which the state supreme court granted review.

Statutory language. At the time of the accident, Texas law required drivers to properly restrain most children riding anywhere in the vehicle. Currently, anyone age 15 or older in any seat is required to buckle up, and drivers have a responsibility to make sure that anyone age 17 or younger anywhere in the vehicle is properly restrained. Separately, in 1995, Texas’ statutory system for attributing fault in negligence cases replaced the comparative responsibility scheme with proportionate responsibility (see Tex. Civ. Prac. & Rem. Code Sec. 33.003(a)).

Finally, as part of sweeping tort-reform legislation enacted in 2003, the Texas legislature repealed the statutory prohibition against the use of seat-belt evidence in civil trials, striking the provision entirely but neglecting to replace it with any language affirming the use of seat-belt evidence.

Admissibility of seat-belt evidence. Texas’ proportionate-responsibility statute indicates the state legislature’s desire to compare responsibility for injuries rather than to bar recovery even if the claimant was partly at fault or violated some legal standard. Under the current statutory scheme, the finder of fact must allocate the percentage of responsibility for each claimant, defendant, settling person, and responsible third party.

Although the facts of the occurrence—such as who caused the car accident—shaped the narrative of the case and rightly contributed to the fact-finder’s apportionment of responsibility, the current statute specifies that apportionment ultimately should be based upon responsibility for the damages suffered; in the instant case, personal injury and death. Accordingly, the question underpinning this case was not simply who had caused the car accident, but who had caused the plaintiffs’ injuries.

While the sharpest rhetorical argument against admitting seat-belt evidence has been that the failure to use a seat belt cannot cause an accident, it is equally true that failure to use a seat belt may exacerbate a plaintiff’s injuries or lead to his/her death. Accordingly, the unavoidable conclusion is that the failure to use a seat belt is one way in which a plaintiff can “cause[] or contribut[e] to cause in any way” his/her own “personal injuries” or “death.” Texas’ proportionate-responsibility statute calls for an apportionment of fault for “personal injuries” and “death” rather than for the underlying occurrence that introduced a sequence of events in which the end result was potentially influenced by whether the plaintiff acted unreasonably or even broke the law.

Given the statute’s plain language and absent any language preserving the distinction set out in previously instructive case precedent, for purposes of the statute, the legislature both intended and required fact-finders to consider relevant evidence of a plaintiff’s pre-occurrence, injury-causing conduct. That conclusion comports with the modern trend in tort law toward abolishing doctrines that give “all-or-nothing” effect to certain types of plaintiff’s negligence based on the timing of the plaintiff’s and defendant’s negligence” and, instead, considering the timing of the plaintiff’s and defendant’s negligence as factors for assigning percentages of responsibility.

Admissibility standard. With the prohibition on seat-belt evidence lifted, seat-belt evidence is admissible only if it is relevant (relevance is the trial court’s province). A defendant can establish the relevance of seat-belt nonuse only with evidence that nonuse caused or contributed to cause the plaintiff’s injuries.

For purposes of making the relevancy determination, trial courts should first consider the seat-belt evidence outside of the jury’s presence (lest the jury hear the evidence of nonuse before it has been deemed to be relevant). Expert testimony may be required in order to establish relevance, but it cannot be said that expert testimony will be required in all cases, the court cautioned. Finally, like all other evidence, relevant seat-belt evidence is subject to objection and exclusion if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Jury instructions. A finder of fact may consider relevant evidence of a plaintiff’s failure to use a seat belt as a “negligent act or omission” or as a violation of “an applicable legal standard” in cases in which the plaintiff was personally in violation of an applicable seat-belt law. In addition, in cases in which an unrestrained plaintiff was not personally in violation of a seat-belt law, the fact-finder may consider whether the plaintiff was negligent under the applicable standard of reasonable care. Nonetheless, a minor is still held to the degree of care that would be exercised by an ordinarily prudent child of the same age, intelligence, experience, and capacity under the same or similar circumstances. The jury may further apportion third-party responsibility to the person upon whom the law places the burden to properly restrain the child.

Given the above, the appellate panel’s judgment affirming the trial court’s exclusion of seat-belt evidence in the accident case at bar was reversed and remanded for further proceedings consistent with the newly established precedent.

The case is No. 13-0136.

Attorneys: Anna Meredith (Dubose Jones & Townsend LLP) for Nabors Well Services, Ltd., and Lauro Bernal Garcia. Richard J. Plezia (The Law Offices of Richard J. Plezia & Associates) for Asuncion Romero, Esperanza Soto, and Martin Soto.

Companies: Nabors Well Services, Ltd.

MainStory: TopStory DefensesLiabilityNews EvidentiaryNews MotorEquipmentNews TexasNews

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