Evidence of Failure to Use a Seatbelt Now Admissible in Texas

In a landmark decision delivered last month in Nabor Well Services, Ltd v. Romero, the Texas Supreme Court overturned more than 40 years of precedent and unanimously reversed the Court's long-standing prohibition on evidence concerning a claimant's failure to use a seatbelt.^[1] The Court had previously held that such evidence was inadmissible to reduce a claimant's recovery for injuries sustained in an automobile accident, thus rendering such evidence easily susceptible to an objection on relevance grounds.^[2] However, in Romero, the Court ultimately held that relevant evidence of use or nonuse of seatbelts is now admissible for the purpose of apportioning responsibility in civil lawsuits.^[3]

While the practical impact of the Court's holding is yet to be seen, the Court's abrupt about-face is significant and signals the Court's willingness to revisit a rule that has outlived both its usefulness and its purpose.

Background:

The Court first limited the use of so-called "seatbelt evidence" in a series of opinions beginning in the early 1970s. First, in Kerby v. Abilene Christian College, the Court drew a sharp distinction between negligence contributing to an accident and negligence contributing only to damage sustained, and also recognized the difficulty in applying a mitigation of damages theory to conduct occurring before the negligence of the defendant. Only a year later, in Carnation v. Wong, the Court held that persons whose negligence did not contribute to an automobile accident should not have their damages reduced or mitigated because of their failure to wear available seatbelts.

Notably, at the time the Kerby and Carnation cases were decided: (1) there was no statute in Texas that required the use of a seatbelt, (2) no Texas courts had ever recognized any common-law duty to wear a seatbelt, and (3) a plaintiff would be barred from recovery if his or her own negligence was found to have caused or contributed to the accident in any way.  Thus, the rule barring the introduction of seatbelt evidence was created by the Court in an effort to ameliorate the effects of Texas's harsh "all-or-nothing" system of contributory negligence, and was premised upon the Court's recognition that a plaintiff's failure to use a seatbelt may exacerbate his or her injuries but could not actually cause a car accident.   By this reasoning, such evidence would not affect a plaintiff's recovery, and perhaps this rule made sense given the legal landscape of the time. Of course, Texas has since transitioned from the "all-or-nothing" system of contributory negligence, to the current system of apportioning responsibility according to the relative fault of the actors.^[4] Curiously, however, while the laws pertaining to the use of seatbelts, and negligence law in general, have evolved over the last several decades, this particular vestige of the old way remained intact.

Starting about a decade after Kerby and Carnation, the federal government began several initiatives to promote the widespread use of seatbelts in consumer and commercial vehicles, paving the way for many states, including Texas, to pass legislation requiring the use of seatbelts.[5] In 1985, the Texas Legislature passed legislation making it a criminal offense for anyone fifteen years or older to ride in a front seat unbelted, and further placed on drivers a responsibility to properly restrain children under fifteen riding in a front seat.[6] The law also provided that: "Use or nonuse of a safety belt is not admissible evidence in a civil trial."[7] This rule was significantly broader that the Texas Supreme Court's holding in Carnation, which merely held that seatbelt evidence was inadmissible to reduce a plaintiff's recovery.

Since that time, the Legislature has significantly overhauled Texas's system for apportioning fault in negligence cases, and the laws requiring the use of seatbelts have been broadened significantly. In 2003, the Legislature completely eliminated its own blanket prohibition of seatbelt evidence in civil trials as part of its sweeping House Bill 4 tort reform legislation. This left the lower Texas courts to speculate as to the admissibility of seatbelt evidence and whether the prohibitions in Kerby and Carnation had survived.

The Facts in Romero:

Romero involved an accident between a transport truck and a Chevrolet Suburban with eight occupants, including three adults and five children.  Both vehicles were travelling on the highway in the same direction.  As the transport truck slowed to execute a turn, the driver of the Suburban pulled into the opposing traffic lane and attempted to pass the transport truck on the left.  As the Suburban passed, the transport truck began its left turn and clipped the Suburban, which careened off the highway and rolled multiple times killing the adult driver and injuring the remaining passengers. The surviving passengers of the Suburban then sued the driver of the transport truck for their individual injuries and on behalf of the deceased driver.

At trial, the defendant driver of the transport truck sought to offer expert testimony from a biomechanical engineer that seven of the eight passengers were unbelted at the time of the accident, and that their failure to use seatbelts caused their injuries and the death of the driver.[8] Following the Texas Supreme Court's precedent in Carnation, the trial court excluded this evidence of plaintiffs' failure to use their seatbelts.   The court of appeals affirmed the trial court's judgment based solely on the Carnation prohibition of seatbelt evidence. The Texas Supreme Court granted review to consider the current viability of Kerby and Carnation in light of the Legislature's repeal of its statutory ban on seatbelt evidence.

The Court's Holding and Reasoning:

The defendant driver of the transport truck argued that the Legislature's repeal of the prohibitory language in 2004 signaled the Legislature's intent to allow the use of seatbelt evidence in civil trials. The Court patently rejected this argument, but still ultimately held that its prior decisions in Kerby and Carnation were simply inconsistent with the current proportionate–responsibility framework embodied in Chapter 33 of the Texas Civil Practice and Remedies Code. Thus, after tracing the evolution of negligence law over the last four decades, and after careful consideration of the current state of the law in Texas, the Court held that relevant evidence of use or nonuse of seatbelts is now admissible for the purpose of apportioning responsibility in civil lawsuits.

The Court also recognized the Legislature's clear departure from the distinction between accident-causing and injury-causing negligence. For example, the current version of Section 33.003(a) provides:

The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person's causing or contributing to cause in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these:…

The Court reasoned that the language in the statute reflected the clear directive from the Legislature – fact finders should consider each person's role in causing, "in any way," the harm for which recovery of damages is sought and should "cast a wide net over conduct that may be considered" in making the determination.  The practical reality recognized in the decision is that plaintiffs do not simply sue because they were involved in an automobile accident, but rather, they sue because they suffered damages for which they have not been compensated.  Accordingly, the Court adopted a common sense approach by holding that the failure to use a seatbelt is one way, of many, in which a plaintiff can cause or contribute to cause in any way his own personal injuries or death.

The Court's holding in Romero certainly paves the way for the use of seatbelt evidence in negligence cases, but it also raises questions regarding the standards for admissibility of such evidence. To that end, the Court anticipated some of these issues and suggested that seatbelt evidence is unique only in that it has been categorically prohibited in negligence cases.  With that prohibition now lifted, the Texas Rules of Evidence include everything necessary to handle the admissibility of such evidence. To further explain, as with any other evidence, seatbelt evidence is admissible only if it is relevant -- a determination within the trial court's province. Such evidence is relevant only if there is evidence that the nonuse caused or contributed to the plaintiff's injuries. The Court acknowledged that expert testimony will often be required to establish the relevance of such evidence (i.e., causation), but declined to hold that expert testimony is required in all cases. Thus, litigators will have to wait and see what test develops in the lower Texas courts for assessing whether expert testimony is required. In the meantime, the cautious practitioner planning to utilize seatbelt evidence as part of the defense should also plan on retaining an expert to opine that the failure to use the available seatbelt caused or contributed to the injuries sustained.

The Court also anticipated certain scenarios that might prove problematic to a trial court attempting to apply this holding. As one specific example, the Court discussed a minor plaintiff that does not violate seatbelt laws by failing to properly restrain himself or herself; rather, the law places the responsibility on the driver to ensure such passengers are properly restrained. Nonetheless, the 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." Thus, a minor plaintiff could be attributed fault by a jury, and the jury could further apportion third-party responsibility to the person upon whom the law places the burden to properly restrain the child.

Finally, the Court utilized this opportunity to clarify the distinction between this doctrine and the existing doctrine of failure-to-mitigate damages. A plaintiff's failure to mitigate damages traditionally occurs post-occurrence and operates as a reduction of any damages awarded. To the contrary, as discussed above, evidence regarding a plaintiff's failure to use his or her seatbelt should properly be considered in the apportionment of responsibility for plaintiff's injuries.

To summarize, the Texas Supreme Court held that relevant evidence of use or nonuse of seatbelts, and relevant evidence of a plaintiff's pre-occurrence, injury-causing conduct generally, is admissible for the purpose of apportioning responsibility under the Texas proportionate-responsibility statute, provided that the plaintiff's conduct caused or was a cause of his damages. While it can certainly be argued that the Court is over a decade late to the party, it has, nevertheless, decisively eliminated a rule many believed anachronistic, and in doing so, has added another useful tool to the arsenal of the savvy defense attorney.

[1] No. 13-0136, 2015 WL 648858 (Tex. Feb. 13, 2015).

[2] See Kerby v. Abilene Christian College, 503 S.W.2d 526 (Tex. 1973); Carnation v. Wong, 516 S.W.2d 116 (Tex. 1974).

[3] Romero, 2015 WL 648858 at *17.

[4] See Tex. Civ. Prac. & Rem. Code § 33.001, et seq.

[5] For example, in 1984 the National Highway Traffic Safety Administration issued a regulation requiring all passenger vehicles beginning with the 1990 model year to include passive-restraint systems unless states constituting two-thirds of the nation's population adopted mandatory seat-belt laws. See Federal Motor Vehicle Safety Standard; Occupant Crash Protection, 49 Fed. Reg. 28, 962—01 (July 17, 1984) (codified as amended at 49 C.F.R. § 571.208).

[6] Act of June 15m 1985, 69^th Leg., R.S., ch. 804, § 1, sec. 107C, 1985 Tex. Gen. Laws 2846, 2846—47, repealed by Act of May 23, 1995, 74^th Leg., R.S., ch. 165, § 24(a), 1995 Tex. Gen. Laws 1870, 1870—71.

[7] Id.

[8] Id.

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