|
Seat Belts and Comparative Fault
Many of us assume that there is
no comparative fault in Oregon for failure to wear a
seatbelt, and the best we can do is a 5% “mitigation” of
damages. There are, however, some circumstances where
this limitation may not apply and comparative fault
will.
The provisions of ORS 31.760(1) are familiar to most
adjusters. It says:
In an action brought to recover damages for personal
injuries arising out of a motor vehicle accident,
evidence of the nonuse of a safety belt or harness may
be admitted only to mitigate the injured party's
damages. The mitigation shall not exceed five percent of
the amount to which the injured party would otherwise be
entitled.
Subsection (2) provides that
that this restriction does not apply to product
liability claims or to claims in which the nonuse of
safety belt is a substantial contributing cause of the
accident itself.
What about the case where the claimant is lying down on
the back seat without a seat belt? Or where the claimant
is sitting on another person’s lap without the benefit
of a seatbelt? A 1991 case, Anderson v. Loomis,
110 Or App 396, says that there are situations in which
comparative fault, in addition to the 5% mitigation, can
apply.
The plaintiff in Anderson, a logger, was injured
while a passenger in a truck. He had been wearing both
the lap belt and shoulder harness but before the
accident had unhooked his shoulder harness in order to
lean forward to unlace his boots. He was in that
position, with his head close to the dash and
windshield, when the collision happened. His head hit
the windshield and he sustained neck injuries.
In addition to seeking mitigation for failure to wear
the shoulder harness, defendant alleged comparative
fault on the part of plaintiff in “positioning himself *
* * so that he was leaning forward toward the dash and
unlacing his boots.” The jury found plaintiff 40% at
fault and assessed 3% mitigation of damages. The Court
of Appeals agreed with the trial court that a person may
be held negligent for placing himself in a dangerous
position. The Court further held that a person may be
found negligent for so positioning himself whether or
not a seat belt is worn, such as when a person lean or
sits in such a way as to be closer to the dash, windows,
or some other unforgiving vehicle surface.
Most of the claims we see do not have any unusual
issues regarding seatbelts or positioning. But keep an
eye out for the case where the claimant has put himself
in a dangerous position in the car. It could mean a
substantial reduction in the value of the claim.
Please direct any questions in this area of law to the
author, Tim Heinson, at 503-768-9600, or by email to
tim@lerlaw.com.
© 1999 -
2006 Lachenmeier Enloe Rall & Heinson
|
