If someone were to ask me whether failing to wear a helmet or a seat belt was a contributing factor to an injury, I would tell them “no” and that evidence of the seat belt and helmet should not be admissible. The idea being that there is a difference between (1) causing an accident and (2) failing to do everything you can to protect yourself from injury, just in case someone else causes an accident.
Generally, it is accepted that evidence of seat belt use is not admissible in trial unless you are suing the manufacturer for an injury related to the seat belt. Courts around the country go either way on the seat belt defense, but the prohibition of the seat belt defense is codified in NRS 484D.495(4)(b) and (c), which states that not wearing a seat belt:
(b) May not be considered as negligence or as causation in any civil action or as negligent or reckless driving under NRS 484B.653.
(c) May not be considered as misuse or abuse of a product or as causation in any action brought to recover damages for injury to a person or property resulting from the manufacture, distribution, sale or use of a product.
Thus, Nevada does not allow evidence of the use of a seat belt, except when the seatbelt manufacturer is being sued under a products liability theory.1)Naturally, it makes sense to let the product manufacturer argue that its product did not cause the injury because the victim was not using the product at the time
Nevada does not have a corresponding helmet admissibility rule, but the principle is the same. To the extent that courts accept the wisdom of “failure to wear a helmet did not cause the injury, instead the driver that knocked you off the motorcycle caused the injury” then a jury should never know about the helmet.
A few (not so) rhetorical questions to consider in reference to a seat belt or helmet
1) Did the failure to use a seat belt or helmet cause the accident? No. Use (or lack thereof) of a seat belt or helmet had nothing to do with the accident. The negligence of the defendant caused the accident.
2) Did the failure to use a seat belt or helmet cause the injury? No, the impact of the victim’s head on the ground caused the injury. Thus, use or non-use of seat belt or helmet has nothing to do with causation of the accident or the causation of the injury.
3) Most importantly, did the plaintiff violate the Rule of Avoidable Consequences and fail to mitigate damages by non-use of a seat belt or helmet? Here people differ. I agree with the courts that say “no”. Failure to mitigate the harm of the tort only involves actions taken after the accident. The decision to not use a seat belt or helmet happens before the tort occurs. Thus, the plaintiff’s requirement to mitigate damages does not apply, unless the plaintiff had the power2)as most 7 year olds think they have to put the seat belt on between the time that the crash was obviously imminent and when the injury was sustained.
4) What about the statutory obligation to use seat belts or helmets? Interesting question. To whom does that duty run? Does my duty to wear a helmet run to the state or society generally3)to decrease public obligation to pay hospital bills, does it run to me, or does it run to the person who hit me? It does not seem reasonable that I should owe a duty to the person who hit me. If it does not run to the person who hit me, s/he should not gain the benefit of said duty.
It may seem unfair that a tortfeasor should pay for an injury that could have been avoided by the prudence of the victim. But which is more unfair?
Consider the following scenario:
A 30 year old single mother of two is riding as a passenger on a motorcycle and is not wearing a helmet. At a stop light, a car rear-ends the bike, ejecting our victim. She clearly is not at fault for the accident. She dies as a result of a traumatic brain injury from the accident. It is likely that she would not have been severely injured if she had been wearing a helmet. Do we really give the driver of the car a break because the person he killed might have lived if she was wearing a helmet? Does that really lessen his fault in the accident? As a society, where is it just to assign the burden of the loss? On the innocent victim who knows that there is some risk of an accident every time she goes on the road, but does not consent to being hit? Or on the tortfeasor who actually has committed a wrongful act?
Any simple Coasian4)Read The Problem of Social Cost here analysis would conclude that haphazard driving of the tortfeasor is adding no utility to society, so why should s/he be shielded from liability? Although we would prefer that all folks wear seat belt or helmet, but the primary objective of the law in these instances is to encourage people to drive with prudence, regardless of their fellow road travelers are helmeted/wearing a seat belt.
Footnotes [ + ]
|1.||↑||Naturally, it makes sense to let the product manufacturer argue that its product did not cause the injury because the victim was not using the product at the time|
|2.||↑||as most 7 year olds think they have|
|3.||↑||to decrease public obligation to pay hospital bills|
|4.||↑||Read The Problem of Social Cost here|