Hewing Toward First Principles by Admitting Seat Belt Non-Use in Crashworthiness Cases (Part One)March 2, 2018 – Article
I went to elementary school with a kid whose father cut out all the seat belts from the family’s car (take that, Nanny State). At the time, Georgia had a law that allowed secondary enforcement of its seat belt requirement. As a result, by cutting off his nose to spite his face, the dad also risked a $15 fine. Although few are quite as cavalier as my classmate’s father, a sizeable minority of people still fail (or simply forget) to wear a seat belt. (The National Highway Transportation Safety Administration estimates 27.5 million people do not wear seat belts.). As a public safety matter, this is an unfortunately persistent issue that federal and state agencies spend millions of dollars annually trying to eliminate. For litigators, seat belt non-usage raises different issues. Accidents often lead to lawsuits, and the admissibility of this evidence varies widely by the type of claim and jurisdiction.
This article looks to the admissibility of seat belt non-use in crashworthiness (also known as “second injury” or “enhanced injury”) cases in two parts. Heather Fox Vickles and Michael E. Oldham, Enhanced Injury Should Not Mean Enhanced Liability, 36 S. TEX. L. REV. 417, 418 (1995). First, to place the issue in context, we look at the rapid rise of seat belt usage in this country. This increase, an incomplete public safety success story, brings new norms and expectations that necessarily displace others. This results in some growing pains, reflected in peculiar laws and precedent, which (hopefully) are ironed out over time. Part Two, which will be published in next month’s edition, considers these legal issues, delighting in the trend of admitting seat belt non-use as evidence in crashworthiness cases. This development is an example of Professor Owen’s theory that tort law hews to moral principles. For Owen, the tort system springs from and serves much broader commitments: “[l]ying at the center of the law of torts is the Great Pit of Fault, a kind of legal inferno, into which moral miscreants are thrown kicking and screaming to their certain doom. Yet the Fault Pit contains much more than darkness and despair, for it is lined not with recrimination but with moral rectitude. Finding its source deep within philosophical values, moral and political, the Fault Pit generates a wellspring of ethical bounty, providing a touchstone of propriety.” David G. Owen, The Fault Pit, 26 GA. L. REV. 703, 724 (1992). Such a firm foundation does not necessarily obviate litigation but leaves little doubt as to why we are fighting.
Seat belts, a(n Incomplete) Public Safety Success Story
Seat belt usage in America provides a window to consider perennial issues of a free society, such as the interplay between market forces and government regulation, the capacity for consensus, and the legal system’s paradoxical essence as the branch that must keep pace with the times to serve its conservative function. We focus on the last in this article.
In a matter of decades, the percentage of people wearing seat belts has increased more than six-fold. Seat belts were available since the 1950s, but only 14% of adults used them until the early 1980s. Tina Wescott Cafaro, You Drink, You Drive, You Lose: Or Do You?, 42 GONZ. L. REV. 1, 5–6 (2013/14). This is about the same percentage of American adults who cannot read. See https://www.huffingtonpost.com/2013/09/06/illiteracy-rate_n_3880355.html. By contrast, in 2016, more than 90% of adults wore seat belts, which is around the same percentage of people who now use the internet at home or Americans who identified as Christian in 1948.
This safety Great Awakening—expanding seat belt usage, in a generation and a half, from a dedicated minority to more than nine in ten drivers—was no accident. The year after Ralph Nader’s bestselling book Unsafe at Any Speed: The Designed-In Dangers of the American Automobile, Congress passed The National Traffic and Motor Vehicle Safety Act of 1966. A complete treatment of the Act, and all the regulations passed pursuant to the Act, would span volumes, but previous commentators Jerry Mashaw and David L. Harfst identified two “revolutionary” features that are important to understand the seat belt issue. Jerry Mashaw and David L. Harfst, Regulation and Legal Culture: The Case of Motor Vehicle Safety, 4 YALE J. ON REG. 257, 257-258 (1987). Unlike much New Deal legislation that was passed decades earlier, the Act created a proactive bureau (the National Highway Transportation Safety Administration) that was responsible for setting rules that would operate industry-wide (as compared with a reactive regulatory commission that would adjudicate issues between particular parties after the fact). Second, the Act adopted an “epidemiological” or public health approach to the issue of automobile safety, which expands the factors to consider for automobile accidents. As Mashaw and Harfst describe the result: “the safety issue became how to modify the vehicle (environment) so that the interaction of the passenger (host) and the deceleration forces of accidents (agent) produced less trauma.”Id. In short, the Act created front-end powers over a (national) public health issue that left the federal government with expansive power over the automobile industry.
The agency moved swiftly to address the issue, and seat belts were soon required as a safety feature in all cars. See Maggie Wittlin, Buckling Under Pressure: An Empirical Test of the Expressive Effects of Law, 28 YALE J. ON REG. 419, 429 (2011); see also https://icsw.nhtsa.gov/cars/rules/import/FMVSS/#SN208. The public’s reaction was not so swift and, as the statistic above indicates, the new law did not engender people using seat belts more often. Consumer groups then advocated for “passive restraints,” like airbags. During President Carter’s administration, the agency adopted a rule requiring such passive restraints, but the rule was not scheduled to be implemented until the 1980s. After President Reagan took office, the rule was discarded. The agency was also criticized for budgeting millions of dollars on an advertising campaign that included items such as distribution of information on how to pray for automotive safety on “Safety Sabbaths” and put reminders to use seat belts into fortune cookies. Thomas O. McGarity, The Preemption War: When Federal Bureaucracies Trump Local Juries(New Haven: Yale University Press 2014), at 63. The Supreme Court found the agency’s about-face on passive restraints was arbitrary and capricious and threw the regulation out. The agency’s response prompted the wave of seat belt laws: the agency renewed the passive restraint requirement but provided that the implementation would be suspended if states passed seat belt laws that covered two-thirds of the country.
Seat belt laws, beginning with New York in 1986, soon followed, and, now, every state except New Hampshire has a law requiring seat belt usage. The results are undeniable; seat belt usage rose significantly, and the trend continues as the rate increased from 70.7 in 2000 to 90.1 percent since 2016.
The National Highway Transportation Safety Administration pushes for still higher seat belt usage by publishing annual statistics on its website: “Of the 35,092 people killed in motor vehicle crashes in 2015, 48 percent were not wearing seat belts. In 2015 alone, seat belts saved an estimated 13,941 lives and could have saved an additional 2,814 people if they had been wearing seat belts.” Thus, despite incredible progress, the federal agency still attributes thousands of deaths each year to failure to wear a seat belt.