Holding Defendants to Their Proof on the Seat Belt Defense

Prior to Ridley v. Safety Kleen, 693 So.2d 934 (Fla. 1996), there were two possible standard jury instructions that could be given on the failure to wear a saat belt. Florida Standard Jury Instruction 6.14, which was commonly given before the decision in Ridley, read as follows:

An additional question for your determination on the defense is whether some or all of (claimant’s) damages were caused by[his][her] failure to use a seat belt.The issues for your determination on this question are whether the greater weight of the evidence shows [that the automobile occupied by (claimant) was equipped with an available and fully operational seat belt,] that (claimant) did not use the seat belt, that a reasonably careful person would have done so under the circumstances, and that (claimant’s) failure to use the seat belt produced or contributed substantially to producing the damages sustained by claimant.If the greater weight of the evidence does not support (defendant) on each of these issues, then your verdict on this question should be for (claimant).If the greater weight of the evidence supports (defendant) on these issues, you should determine what percentage of (claimant’s) total damages were caused by [his][her] failure to use the seat belt.

In Ridley , the Supreme Court held that the proper instruction to be given on the seat belt defense was FSJI 4.11, rather than FSJI 6.14. FSJI 4.11 is the instruction on violation of a traffic regulation as evidence of negligence. It provides:

Violation of [a traffic regulation] is evidence of negligence.It is not, however, conclusive evidence.If you find that a person alleged to have been negligent violated such traffic regulation, you may consider that fact, together withthe other facts and circumstances, in determining whether such person was negligent.

FSJI requires the court to read or paraphrase the applicable parts of the statue alleged to have been violated (in this case F.S. 316.614, the “seat belt statute”), prior to reading the above instruction.The seat belt statute provides, in part:

(4) It is unlawful for any person
(a) To operate a motor vehicle unless each front seat passenger of the vehicle under the age of 16 years is restrained by a safety belt or by a child restraint device pursuant to s. 316.613, if applicable, or
(b)To operate a motion vehicle in this state unless the person is restrained by a safety belt.
(5) It is unlawful for any person 16 years of age or older to be a passenger in the front seat of a motor vehicle unless such person is restrained by a safety belt when the vehicle is in motion.

Subsection ten (10) of F.S. 316.614 discusses how the seat belt statute should be used in a civil action:

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.

Thus, the seat belt defense is to be treated solely as an issue of comparative fault. In State Farm v. Smith, 565 So.2d 751 (Fla. 5th DCA 1990), the court held that: 1. The burden of introducing competent evidence to support a seat belt defense is on the defendant; and, 2. “The ‘competent evidence’ standard . . . requires a defendant to introduce evidence of the causal relationship between the injury and the failure to use a seat belt that is not uncertain, speculative, or conjectural–because that is the evidentiary standard applicable to plaintiffs for establishing their damages.” Smith at 755 FN 8 (Citations omitted).

A defendant asserting the seat belt defense must present competent evidence on the following three elements of the seat belt defense: 1. that the Plaintiff did not use an available and operational seat belt; 2. that the failure to use a seat belt was unreasonable; and, 3. that there was a causal relationship between the injuries sustained and the failure to buckle up. It is the burden of the defendant to establish all three of these elements. Ridley, citing, Insurance Company of North America v. Pasakarnis v. 451 So.2d 447, 454 (Fla. 1984). If a defendant is successful in proving all three of the above elements, and if the defendant has timely and properly asserted the affirmative defense of comparative fault for failure to wear a seat belt, only then should the jury “be permitted to consider this factor, along with all other facts in evidence, in deciding whether the damages for which defendant may otherwise be liable should be reduced”. Ridley at 940 (emphasis added).

The Florida Supreme Court seems to have adopted a rather a low standard for the proof a defendant must present on the first element, “failure to use an available and operational seat belt”. Following a number of District Courts of Appeal opinions holding the defendant to strict proof that a seat belt was available and fully operational, the Supreme Court,in Bulldog Leasing Co. v. Curtis, 630 So.2d 1060 (Fla. 1994), apparently established a lower standard of proof on the “fully operational” element stated created by Pasakarnis. Although the court stated that “In rendering this decision, we emphasize that we are not receding from the requirements for the seat belt defense we set forth in Pasakarnis . . . “, the court in Bulldog also stated: “We hold that a defendant has the initial burden to present competent evidence that the plaintiff’s vehicle contained seat belts that could have been used. Such evidence is a prima facie showing that the seat belts were operational”. This statement certainly sounds like it releases the defendant’s burden to prove that a seat belt was fully operational and creates an inference that, if the vehicle contained seat belts that could have been used, those belts were operational. A plaintiff can, of course, present contrary evidence to rebut the evidence presented by a defendant, but that is certainly not the same thing as requiring “competent evidence” from the defendant that the plaintiff failed to use an available and fully operational seat belt.

With regard to the second element, whether or not failure to wear a seat belt was unreasonable, Plaintiffs’ attorneys should remember that F.S. 316.614 specifically states that violation of that statute is not negligence per se. The fact that failure to wear a seat belt is a statutory violation does not, by itself, shift the burden for proving reasonableness or unreasonableness from the defendant to the plaintiff. However, the burden for showing unreasonableness is also probably rather low.

The issue of the seat belt defense can be raised either early, in a motion for summary judgment, or shortly before trial in a motion in limine to exclude evidence on the defense, or lastly, at the close of evidence. If the issue is raised at the close of evidence, it can be raised in a number of ways, including a motion for summary judgment, motion for directed verdict, or motion to strike the defendant’s proposed jury instruction on the defense. It is more difficult to have the defense struck on summary judgment or to obtain a motion in limine that all evidence of seat belt use will be kept from the jury because, the issue of whether the plaintiff acted reasonably in failing to wear a seat belt, indeed the issue of reasonableness in general, is typically a jury issue.

Plaintiffs who do not typically wear seat belts and had no intention of wearing one at the time of the accident are very likely to be found to have acted unreasonably; however, not having a seat belt on at the time of an accident might be found to be reasonable under some circumstances. For example, if the plaintiff had a habit of always wearing a seat belt and had worn a seat belt for the entire duration of a trip and had only taken it off for a few seconds to pick something up off the floor, help a child who had become improperly seated in a child seat, etc. the jury may find that the plaintiff had not acted unreasonably. Likewise, if a parent made sure that a child under 16 years of age was properly belted at the start of the trip, and was unaware that the child had gotten himself in front of the shoulder harness rather than behind it, the jury might find that the plaintiff’s failure to discover this fact was not unreasonable.

Most battles over the applicability of the seat belt defense center on the third element, whether the failure to wear a seat belt substantially contributed to the plaintiff’s injuries. One frequent issue is whether expert testimony is required on the issue of causation. Most cases have held that expert testimony is necessary to show that the plaintiff’s injuries were cased in whole or in part by failure to wear a seat belt.

One case that held expert testimony was not required was Burns v. Smith, 476 So.2d 278 (Fla. 2nd DCA 1985). The decision in Burns is less than one page long and does not provide details about the evidence on which the jury could have found causation. The court simply said: “The evidence showed that Mr. Burns did not use a seat belt and that he was thrown from his seat in the car following the impact. He received head and neck injuries.” Whatever the circumstances were in that case, the court held that it was proper for the jury to reach a decision on comparative fault for failure to wear a seat belt without the benefit of testimony of an accident reconstruction expert.

In State Farm v. Smith, supra, the defendant attempted to rely on the Second DCA opinion in Burns for the proposition that evidence that the plaintiff was thrown about in the vehicle was sufficient to permit the jury to conclude that the failure to wear a seat belt contributed to the plaintiff’s injuries. The trial court in Smith rejected the notion that lay testimony indicating Plaintiff was thrown about in the collision was sufficient to sustain the defendant’s seat belt defense, and refused to instruct the jury on the defense. The Fifth DCA affirmed, stating that Burns “merely held that an accident reconstruction expert was not essential under the undisclosed factual circumstances of that case”. The court in Smith went on to say:

Moreover, review of the literature on this subject indicates that windshield, door or dashboard impact injuries, which as laymen we have come to believe are avoided by the use of seat belts, are not necessarily prevented when a seat belt is worn. Here the plaintiff’s injuries may have resulted from the initial impact or from a secondary impact resulting from the absence of a seat belt–or, in part, from both . . . We have concluded, however, that evidence that the plaintiff was thrown from her seat in the car, apparently deemed sufficient in Burns, is not competent evidence in the present case. Smith at 754-755.

More recently, the Fourth DCA agreed with the Fifth District’s analysis in Smith and applied it in the case of Zurline v. Levesque, 642 So.2d 1169 (Fla. 4th DCA 1994). In Zurline, the court held that the trial court committed reversible error when it submitted the seat belt defense to the jury in the absence of competent evidence where there was not evidence of the causal connection between the injuries suffered other than the “common understanding of the jury”. :

We agree with the Fifth District’s analysis of this issue [in Smith] and apply it to this case. The facts are perhaps more compelling in this case where the appellant was injured from a side collision rather than a frontal collision. The dynamics of seatbelt protection from injuries from side impacts may be even less a matter of common understanding than from frontal collisions. In fact, if the automobile in which appellant was driving did not have side impact protection, wearing a seatbelt may have actually increased appellant’s chances of suffering fatal injuries in the crash. Thus, the ‘common understanding of the jury’ cannot be substituted for proof where there is no evidence of the causal connection between the injuries suffered and the nonuse of the seatbelt under the circumstances of this case. Zurline at 1171.

In what appears to be the only case in Florida in which a defendant has received a summary judgment on its affirmative defense of failure to wear a seat belt, the Fourth DCA held in Brito v. County of Palm Beach, 753 So.2d 109 (Fla. 4th DCA 1998), that “the undisputed facts in this case demonstrate that [the plaintiff’s] failure to wear a seatbelt, and his subsequent ejection from the jeep leading to his fatal injuries, constituted negligence as a matter of law”. The decision in Brito didn’t detail what the “undisputed” evidence of comparative negligence was, or whether there was any evidence at all beyond the fact that the plaintiff was ejected. Since the Florida legislature “did not intend to make failure to wear a seat belt negligence per se, or prima facie evidence of negligence, but rather just ‘evidence of comparative negligence’, a decision that the plaintiff was comparatively at fault simply because he was not wearing a seat belt and was ejected would seem to violate F.S. 316.614(1), but it is not clear from the written opinion in Brito whether the fact that Plaintiff was ejected was the evidence to support the seat belt defense.

In the recent decision of DO & CO Miami Catering, Inc. v. Chapman, 899 So.2d 1236, 1238 (Fla. 3rd DCA 2005), the Third DCA reaffirmed the requirement for a defendant to prove causation in order to sustain its burden of proof on its seat belt defense. The court stated: “. . . we cannot agree with [the] argument that Ridley relieves a defendant of the burden of presenting evidence of causation. In fact, Ridley reiterates the defendant’s burden of proof announced in Pasarkarnis.” Id at 1238 citing Ridley at 939-940 (citations omitted). “Nonuse of the seatbelt may or may not amount to a failure to use reasonable care on the part of the Plaintiff. Whether it does depends on the particular circumstances of the case.” Ridley at 939.

In closing, a plaintiff’s first line of attack on a seat belt defense should be to have the defense stricken on the basis of a proffer to the court before trial. Filing either a motion for summary judgment or a motion in limine on the defense will require the defendant to proffer whatever evidence he has to support the defense. If the court denies the plaintiff’s motion for summary judgment or refuses to exclude evidence on the defense, plaintiffs should still seek to keep the issue from going in the jury instructions or on the verdict form on the basis that the evidence actually admitted at trial fails to satisfy the defendant’s burden of proof on the defense. A plaintiff should seek to hold the defendant to a standard of proof that is not uncertain, speculative, or conjectural because, as the court stated in State Farm v. Smith, supra, “ that is the evidentiary standard applicable to plaintiffs for establishing their damages.” Smith at 755 FN 8 (Citations omitted).