May 18 roundup


  • You also can’t present evidence that the plaintiff wasn’t wearing his seatbelt in Virginia. I once had a plaintiff whose head and neck injuries were 100 percent preventable had he been wearing a seatbelt. He basically flew from one end of a truck cab to the other, striking his head on the passenger window. But we settled the case for $50,000.

    This rule smacks of total hypocrisy by the plaintiff’s bar. First, they’re the ones always getting pious and righteous over “those few steps” that a defendant didn’t take, thus causing injury.

    Second, it goes against the very basic notion of fairness to the civil defendant — he shouldn’t have to pay for that portion of the damage caused by the plaintiff himself.

    And third, everybody knows you’re supposed to wear your damn seatbelt. It’s negligence per se, really, since it’s legally required in most places.

  • In states in which evidence about seatbelt use is not admissible, where is the prohibition? State law? Court rules? Decisions of the state apellate courts?

  • It’s generally statutory, but not codified into the Rules of Evidence Bill. In states where the rule stems from case law, courts deem the use of seatbelts to be irrelevant to liability as the accident would surely have happened anyway, and too speculative to be admissible on mitigation of damages.

  • I can also see plaintiffs making the argument — not crazy — that evidence of no seatbelt would be highly prejudicial. That is, once the jury hears that, they won’t listen to anything else. In my case above, the other driver might still have been negligent — but I would argue that I should be able to mitigate damages.

    In Virginia, I think the ban is statutory.

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