Spring 2022

Click it or Risk it. Buckle up, West Virginia

In tort trials, many jurisdictions are aligned in giving no evidentiary consequence to an injured party’s failure to wear a safety belt. Delaware, Maryland, and Virginia statutes all prohibit the introduction of such evidence to either argue for comparative negligence or reduce an at-fault party’s responsibility for damages.

West Virginia previously took a similar approach, generally excluding safety belt usage evidence from the jury’s consideration. Perhaps, as a consolatory nod to those legislators who suggested non-use of a safety belt must be given some weight, the old West Virginia law set a five percent medical damage reduction by default if the injured party stipulated that they had not used a safety belt. In exchange for the stipulation, the plaintiff could keep their failure to wear a safety belt a secret from the jury.

Suppose the plaintiff contested whether they were wearing their safety belt. In that case, defendants could get the matter in front of the factfinders by demonstrating to the court in a pretrial hearing that the injured party was not wearing a seatbelt and that such failure proximately caused damages. The jury could consider the issue, although the allowed medical damage reduction remained capped at just five percent.

The legislative dissenters likely took little comfort in the nominal acknowledgment. They could easily imagine an accident where the lack of a seatbelt contributed to much more than one-twentieth of the resulting injury. Defendants also challenged (unsuccessfully) the safety belt evidence exclusion as an unconstitutional restraint on the ability to present a full defense. Estep v. Ferrell Ford Lincoln-Mercury, 672 S.E.2d 345 (W. Va. 2008). The Estep court reminded litigants that statutes need not make perfect sense to pass constitutional review and that any action to remedy the perceived shortcomings of the law would need to be completed by the legislature.

In 2021, West Virginia representatives decided it was time to tune up the law. Now, W.Va. Code § 17C-15-49a (applying to motor vehicle accidents occurring on or after July 6, 2021) permits a jury to thoroughly consider an injured adult’s failure to wear a safety belt as evidence of exacerbation of the party’s damages. The allowable damage reduction is no longer capped at five percent and is no longer restricted to medical damages.

The burden of proving damages should be reduced rests with the defendant and must be supported by expert testimony. The court can bifurcate the trial proceedings into a liability and damage phase to “prevent prejudice or avoid confusion of the jury.” The court must further instruct the jury that the evidence may only be considered on the issue of damages and not for the purposes of finding comparative negligence on the part of the injured party. A child’s damages may not be reduced for not wearing a seatbelt – but in an interesting twist – the absence of a safety restraint on a child may be admissible to show the driver of the vehicle the child occupied was negligent.

The new West Virginia code also contains a provision forfeiting the damage reduction protection for a tortfeasor who causes an accident while in an impaired state or while fleeing law enforcement.

A 50 state survey indicates a slim majority of jurisdictions continue to prohibit the introduction of evidence that an injured party failed to utilize a safety belt. With West Virginia now moving further down the road less traveled, we will see if its Mid-Atlantic neighbors follow along.

For more information contact Stephen J. Marshall.