Chapter 3 - § 3.4 • ISSUES RELATING TO LIABILITY AND DAMAGES IN LITIGATION OF MOTOR VEHICLE ACCIDENT CLAIMS

• Jurisdiction: Colorado

§ 3.4 • ISSUES RELATING TO LIABILITY AND DAMAGES IN LITIGATION OF MOTOR VEHICLE ACCIDENT CLAIMS

§ 3.4.1—The "Seat Belt Defense"

a—Defendant entitled to jury instruction on seat belt defense even if no evidence of relationship between failure to use and injuries

Once evidence is presented that a plaintiff failed to wear a seat belt, the trial court must instruct the jury on the seat belt defense, even if the defendant presents no evidence showing a causal relationship between the failure to wear a seat belt and enhancement of the plaintiff's injuries. To request a jury instruction regarding mitigation of damages, the defendant does not bear the burden of proving a causal relationship between the plaintiff's non-use of a seat belt and the plaintiff's pain and suffering damages. Anderson v. Watson, 953 P.2d 1284 (Colo. 1998).

Putting teeth in the seat belt defense, the court in Anderson v. Watson, 953 P.2d 1284 (Colo. 1998), held that once evidence was presented that a plaintiff failed to wear a seat belt, the trial court could instruct the jury on the seat belt defense, even if the defendant presented no evidence showing a causal relationship between the failure to wear a seat belt and enhancement of the plaintiff's injuries.

The case arose from an automobile accident on October 24, 1992. The plaintiff, Anderson, was injured in a T-bone collision after the defendant, Watson, ran a red light. Anderson was taken to the emergency room, where she was treated for cervical strain. Eventually, Anderson underwent shoulder surgery. At trial, Watson admitted negligence but contested the nature and extent of Anderson's injuries. Anderson asserted that she was still suffering from lower back, shoulder, and neck pain due to the accident. As an affirmative defense, Watson asserted that Anderson had not been wearing her seat belt at the time of the accident. However, very limited evidence was presented at trial regarding the relationship between Anderson's injuries and her failure to wear a seat belt. Anderson's medical experts did not testify as to this issue, nor did the defendant present any expert testimony. Despite this limited evidence, the trial court instructed the jury on the seat belt defense. The jury returned a verdict in favor of Anderson, but awarded no damages for pain and suffering and only $640 for economic loss. Anderson appealed, and the court of appeals affirmed in Anderson v. Watson, 929 P.2d 6 (Colo. App. 1996). The supreme court granted certiorari to address the issue of whether the trial court had properly instructed the jury on the seat belt defense. Although the supreme court agreed with the result reached by the court of appeals, it disagreed with its reasoning that a defendant was required to prove a causal connection between failure to wear a seat belt and enhancement of injury before the jury could be instructed on the seat belt defense.

The supreme court noted that the seat belt defense was based upon C.R.S. § 42-7-237, which provided that it was mandatory for drivers and front-seat passengers to wear seat belts. In addition, the statute stated that evidence of failure to wear a seat belt "'shall be admissible to mitigate [pain and suffering] damages with respect to any person who is involved in a motor vehicle accident and who seeks in any subsequent litigation to recover damages for injuries resulting from the accident.'" 953 P.2d at 1290. Only damages for pain and suffering were subject to mitigation. Recovery of economic loss and medical expenses was not limited by failure to wear a seat belt.

Interpreting this statute, the supreme court held that a defendant was not required to prove affirmatively a causal connection between failure to wear a seat belt and enhancement of the plaintiff's injuries before the jury could be instructed on the seat belt defense. Id. at 1291-92. If the defendant came forward with some competent evidence that the plaintiff was not wearing a seat belt at the time of the accident, the statute required that the seat belt defense be submitted to the jury. "By decreasing the amount of pain and suffering damages in proportion to injuries attributable to seat belt non-use, the General Assembly sent a signal to drivers and front seat passengers to buckle up." Id. at 1290.

The court held that once the defendant established, or the plaintiff admitted, that the plaintiff was not wearing a seat belt, the plaintiff could then produce evidence to demonstrate that there was no causal connection between his or her injuries and the non-use of a seat belt. Such evidence could include expert testimony. If the plaintiff presented expert testimony, the defendant could counter with his or her own experts. The defendant could also present expert testimony even if the plaintiff chose not to do so. However, the defendant did not have the burden of coming forward with expert testimony to prove causation.

In conclusion, the court held that the defendant had to prove a prima facie case of seat belt non-use before the jury could be instructed on that defense. However, "[f]ailure to wear a seat belt automatically satisfies any obligation on the defendant's part to show a causal relationship to pain and suffering," and the defendant was not required to present further evidence, such as expert testimony, before the jury could be instructed regarding the seat belt defense. Id. at 1292. The court held that "the defendant is not required to prove a causal relationship between the plaintiff's non-use of a seat belt and pain and suffering damages." Id.

b—If vehicle is equipped with separate lap and shoulder seat belts, plaintiff must use both to avoid application of the "seat belt defense" — Evidence of failure to wear seat belt may be used to mitigate plaintiff's non-economic damages, but not as a basis for comparative negligence

Where a vehicle was equipped with separate lap and shoulder seat belt restraints, and plaintiff was utilizing the shoulder belt but not the lap belt at the time of an accident, the trial court erred in failing to give a seat belt defense instruction and in precluding defendants from referring to a statutory violation of C.R.S. § 42-4-237. In a situation where a vehicle is equipped with two separate safety belt systems, a motorist must use both to comply with the requirements of § 42-4-237. Carlson v. Ferris, 58 P.3d 1055 (Colo. App. 2002), aff'd, Carlson v. Ferris, 85 P.3d 504 (Colo. 2003).

In Carlson v. Ferris, 58 P.3d 1055 (Colo. App. 2002), aff'd, Carlson v. Ferris, 85 P.3d 504 (Colo. 2003), an action for damages for bodily injury resulting from a motor vehicle accident, the court of appeals held that the trial court erred by failing to instruct the jury regarding the seat belt defense and by precluding the defendants from referring to the plaintiff's failure to utilize a seat belt system during opening statement and closing argument. The plaintiff stipulated that the vehicle that she was driving was equipped with separate lap and shoulder belts, but she was not using the lap belt at the time of the accident.

The plaintiff, Leslyn Carlson, was injured in an accident when her car was struck by a car driven by the defendant, Kimberly Sue Ferris, who failed to yield the right-of-way at a stop sign. At the time of the accident, Ferris was in the course and scope of employment as a driver for the defendant, Man-Made Pizza, Inc.

Under C.R.S. § 42-4-237(2), "'every driver of . . . a motor vehicle equipped with a safety belt system shall wear a fastened safety belt while the motor vehicle is being operated on a street or highway in this state.'" 58 P.3d at 1057. The term "safety belt system" is defined by § 42-4-237(1)(b) to mean "'a system utilizing a lap belt, a shoulder belt, or any other belt or combination of belts installed in a motor vehicle to restrain drivers and passengers, which system conforms to federal motor vehicle safety standards.'" Id. If a driver violates § 42-4-237(2), evidence of that failure may be admitted into evidence pursuant to § 42-4-237(7) to mitigate the driver's damages for pain and suffering. Id.

Carlson argued that she did not violate the statute because if a vehicle is equipped with two separate safety belts, a driver complies with the statute if he or she only uses one of the installed belts. The court of appeals rejected this argument. The court could not "interpret § 42-4-237(2) to reach a result clearly in conflict with legislative intent and disharmonious with § 42-4-237(7) by permitting drivers to avoid using an available safety belt." Id. The court held that, in a case such as this, where "the system includes a separately fastened lap belt and shoulder belt, the driver is required to fasten both belts to comply with § 42-4-237(2) in order to defeat the safety belt defense to claims for pain and suffering under § 42-4-237(7)." Id. at 1058. Thus, the trial court erred in failing to give a seat belt defense instruction and precluding the defendants from referring to the statutory violation during trial. Accordingly, the court reversed the judgment in favor of Carlson and remanded the case for a new trial.

The court of appeals also addressed several issues that might occur on retrial. First, the court held that the trial court did not abuse its discretion in excluding the testimony of a specially retained defense expert who failed to comply with the disclosure requirements of C.R.C.P. 26(a)(2)(B)(I). This rule requires, among other things, a retained expert to provide "'a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.'" Id. "The identification of cases in which an expert has previously expressed opinions should include, at a minimum, the name of the court or administrative agency where the testimony occurred, the names of the parties, the case number, and whether the testimony was by deposition or at trial." Id.

In this case, the defendants argued that the...