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OPEN ROAD Q3

From where you sit, TIME

From where you sit, TIME IS MONEY. The proven solution for bypassing and tolls saves time, fuel and money. ENDORSED FEATURED PRODUCT 855-822-7277 PrePassNow.com ATTENTION LMTA MEMBERS! Mention promo code LAMTA and we’ll pay your first invoice. PROUD TO SUPPORT LMTA AND ITS MEMBERS 24 ❘ Open Road Q3 2016

By Doug Williams, Partner Breazeale, Sachse & Wilson, L.L.P. Louisiana has a mandatory seatbelt usage law under which drivers and occupants of passenger vehicles, vans, etc. are required to wear a safety belt when the vehicle is in forward motion (Louisiana Revised Statute 32:295.1). However, Louisiana, like the vast majority of states, has a “Seatbelt Gag Rule” which prohibits defendants from introducing evidence of an injured person’s failure to wear a seatbelt. The applicable language states: In any action to recover damages . . . failure to wear a safety belt . . . shall not be considered evidence of comparative fault. Failure to wear a safety belt . . . shall not be admitted to mitigate damages. (Louisiana Revised Statute 32:295.1(E)). Louisiana’s mandatory seatbelt law was first passed in 1985. Like similar laws in most states, that statute appears to have been passed in response to U.S. DOT rules promulgated in 1984 regarding seatbelts and airbags. The addition of the seatbelt gag rule into Louisiana’s law appears to have been a political move designed to pressure the U.S. DOT to pass mandatory airbag rules. Also, at the time, there was not general public acceptance of seatbelts, and usage was below 15%. However, today, there is public acceptance of the use of seatbelts, and seatbelt usage by drivers is approaching 90%. Louisiana’s law appears to be contrary to general public policy to encourage behavior (by both defendants and plaintiffs) which reduces the risk of injury. The seatbelt gag rule is also contrary to the Louisiana Civil Code (evidencing public policy) which provides for apportionment of negligence (among all responsible parties including plaintiffs), when negligent conduct contributes to damages. That public policy is set forth in Louisiana’s comparative fault law which states: In any action for damages where a person suffers injury, death or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined . . . If a person suffers injury, death or loss as the result partly of his own negligence . . . the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence . . . (Louisiana Code of Civil Procedure Article 2323). There is irrefutable evidence confirming that the use of seatbelts significantly reduces the risk of serious injury and death in automobile accidents. In the face of that research, no one can seriously argue that it is reasonable not to wear a seatbelt. Louisiana’s refusal to allow the admission of evidence of failure of an injured person to wear a seatbelt is contrary to our public policy of reducing the risk of injury and holding people accountable for injuries caused by unreasonable behavior (such as the failing to wear a seatbelt). Louisiana’s seatbelt gag rule also appears to be inconsistent with the way the failure to use other safety equipment is handled. For example, motorcycle riders in Louisiana are required to wear a safety helmet (Louisiana Revised Statute 32:190 a). If an injured person has failed to wear his/her helmet, a defendant is entitled to raise that failure as an issue of comparative fault and/ or mitigation of damages. If a worker fails to use safety equipment mandated by regulations, defendants in a lawsuit can raise that failure as an issue of comparative fault and/or mitigation of damages. There is no logical reason why the failure to wear a seatbelt should not also be available to address issues of comparative fault and causation of damages. There is no public policy which is advanced by refusing to allow the introduction of evidence of an injured person’s failure to wear his/her seatbelt. In the last several years, other states, through legislation or judicial action, have begun to allow the admission of evidence regarding the injured party’s failure to wear a seatbelt (see Oklahoma Statute, Title 47 § 12-420). In Louisiana, the issue will have to be addressed legislatively. In light of the public acceptance of seatbelts, and the overwhelming research supporting the efficacy of seatbelts, it appears to be time for Louisiana Revised Statute 32:295.1(E) to be repealed so that all behavior which contributes to injury in an automobile accident (including failure to wear a seatbelt) can be considered by the trier of fact. K Open Road Q3 2016 ❘ 25

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