Author: Richard H. Adler

It is common knowledge among Washington drivers that state law requires the wearing of a seat belt when operating a motor vehicle. (RCW 46.61.668). It is a safety rule with which few persons disagree. Before state law mandated the installation of safety belts and their use in 1990, auto accidents regularly inflicted severe and gruesome injuries as a result of occupants being propelled from the the vehicles or impacting the dashboard and windshield with varying degrees of force. The incidence of these serious injuries has been enormously reduced by the frequent and regular use of seat belts by drivers and occupants.

In a personal injury claim, the Washington courts have determined that the failure of an injured party to wear a seat belt at the time of impact may not be used as evidence against that person. In fact, the courts have ruled that not only is testimony about seat belt use prohibited, the issue of use or non-use of seat belts may not even be mentioned by the attorneys in the courtroom, let alone the lay or expert witnesses providing testimony.

Insurers and their counsel argue that an injured party's non-use of a seat belt contributes to or causes the injuries. As a result, they claim that the damages owed by the negligent party should be reduced by the injured party's own negligence for not wearing the seatbelt. This has been commonly referred to as the "seat belt defense."

In 1972, when the Washington Supreme Court first addressed the seat belt defense in Derheim vs Fiorito, it refused to allow evidence of non-use of seatbelts for several reasons. First, the Court did not want to prevent any recovery to non-belted claimants when, through no fault of their own, they were injured by the negligence of another driver. At that time, Washington law still provided for the complete bar to recovery for a claimant who was in any percentage responsible for his or her own injury. The 1972 Supreme Court also found persuasive that there was no state law mandating the use of safety belts, that installation of belts in new cars had begun only in 1964, and the introduction of evidence of non-belt use would prolong the trial of automobile cases with expensive, time consuming expert testimony on whether, in fact, greater injury had been inflicted because of the non-use of belts.

After the passage of comparative negligence legislation, the issue of failure to wear safety belts as negligence on the part of the injured party was revisited by the Court of Appeals in 1977. Again, the rule was reaffirmed and the Court held that evidence surrounding the use or non-use of seat belts was inadmissible. the court reasoned that defendants should not be allowed to diminish the consequences of their negligence by the failure of the plaintiff to anticipate the at-fault party's negligence in causing the accident itself. Moreover, the Court found that since seat belts were not required in all vehicles, defendants should not be entitled to take advantage of the fact that a plaintiff was riding in a car not equipped with seat belts. Finally, the Court stated that allowing the "seat belt defense" would lead to a "veritable battle of experts as to what would or would not have been avoided had the plaintiff been wearing a belt. At best it would cause substantial speculation by the trier of fact."

The Court of Appeals had the opportunity to address this issue again in 1991, at the urging of the insurance industry, since the Washington legislature passed a law in 1990 requiring the use of seat belts. However, in the same 1990 legislation, the legislature had also passed a law stating that the non-use of seat belts could not be used as evidence of negligence on the part of an injured party. The Court concluded that the legislature meant what it said that vehicle occupants must wear seat belts, and their non-use could not be used as evidence against a claimant in a personal injury claim.

The logic of the legislature in codifying the bar on the "seat belt defense was the same as the court decisions before it: the use or non-use should not excuse the negligent actions of the at-fault driver, would not prevent certain types of injuries, and the battle of experts over the issue would only lead to speculation on the part of the juries hearing the evidence.

Injured parties attempting to negotiate with insurance companies are often unaware of the invalidity of the "seat belt defense." As a result, they are vulnerable to misrepresentations or intimidation when the issue is raised by the claims adjuster, and presume that their claims have diminished value. This scenario is repeated throughout the state in cases where the claimant has not consulted with a personal injury attorney, and is an example of the myriad pitfalls facing injured people without legal representation.

Very truly yours,
ADLER GIERSCH, P.S.

Richard H. Adler
Attorney at Law