William W. Pepper, Esq.|
Andrew S. Nason, Esq.
Pepper, Nason & Hayes
Charleston, West Virginia
Attorneys for Appellant
Ancil G. Ramey, Esq.|
Hannah B. Curry, Esq.
Steptoe & Johnson
Charleston, West Virginia
Attorneys for Appellee Laurel Coal
1. As a general rule, the refusal to give a requested jury instruction is
reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly
instructed is a question of law, and the review is de novo. Syl. pt. 1, State v. Hinkle, 200
W. Va. 280, 489 S.E.2d 257 (1996).
2. In the absence of a mandatory statutory duty to wear seat belts,
evidence of plaintiff's failure to wear a seat belt is not admissible in a negligence action to
assess plaintiff's percentage of fault or to show plaintiff's failure to mitigate damages. Syl.
pt. 1, Wright v. Hanley, 182 W. Va. 334, 387 S.E.2d 801 (1989).
3. Such parts of the common law as are not displaced by existing statutes,
and have not been expressly repealed, are still in effect. Syl. pt. 5, Harper v. Middle States
Loan, etc., Association, 55 W. Va. 149, 46 S.E. 817 (1904).
4. When our mandatory seatbelt statute, West Virginia Code § 17C-15-49 (1993), is inapplicable, evidence of a plaintiff's failure to wear a seatbelt is not admissible in a negligence action to assess plaintiff's percentage of fault or to show plaintiff's failure to mitigate damages.
Appellant Randle Miller was injured in a car accident while at work when his
vehicle collided with a vehicle operated by appellee Randall Jeffrey, who was also at work,
and was employed by appellee Laurel Coal. Mr. Miller sued Mr. Jeffrey, Laurel Coal, and
Hobet Mining, on whose property the accident occurred. The court granted summary
judgment for Hobet. At trial, the court allowed the jury to consider the issue of whether or
not Mr. Miller was wearing his seatbelt, and the jury returned a defense verdict. Appellant
and Hobet subsequently agreed to dismiss Hobet from the case. Before this Court, appellant
argues that the jury was not instructed properly. Because we agree with the appellant on this
issue, we reverse.
Randle L. Miller was employed by a private security firm to provide security
for Hobet Mining, Inc., at a strip mine in Boone County, West Virginia. Hobet
Mining contracted with Laurel Coal Corporation to mine coal at this location.
Appellee Randall Jeffrey was employed as a driver for Laurel Coal at this
same mine site. On August 12, 1999, appellant Miller was involved in a head-on-collision
with appellee Jeffrey on a private access road at the mine. As a result, Mr.
Miller suffered a broken pelvis and other injuries.
Because large trucks used the road to haul coal, the normal rules of the road were changed to make the road a drive left road, where drivers were instructed to drive in the left lane (from their perspective), as one would drive in England or other countries following such a practice. The parties dispute just what caused the accident, but appellant Miller contends that Mr. Jeffrey was in the wrong lane. In addition to suing Mr. Jeffrey, appellant Miller sued Laurel Coal, on a theory of respondent superior, and Hobet Mining, for negligent design and construction of the road.
contends that, at trial, the defense introduced evidence that suggested
that Mr. Miller was not wearing his seatbelt at the time of the accident.
Although Mr. Miller asserted that he was wearing his seatbelt, the court
permitted the defense to raise this issue in closing argument. Counsel for
Mr. Miller offered several jury instructions with respect to this issue,
which were refused by the court. Specifically, plaintiff's instruction number
twenty would have instructed the jury to not consider the failure to wear
seatbelts when assessing percentages of negligence.
judge granted summary judgment in favor of Hobet Mining, and appellant Miller
proceeded to trial against appellees Jeffrey and Laurel Coal. The jury returned
a defense verdict, refusing to find that defendant/appellee Jeffrey was negligent,
which verdict necessarily exonerated his employer Laurel Coal as well. Mr.
Miller moved for a new trial and
the trial court denied that motion by order dated October 2, 2001. Mr. Miller
appealed that order and the lower court's grant of summary judgment to this
to the date of argument, Mr. Miller and Hobet Mining presented a joint motion
to dismiss Hobet Mining from the case, which motion this Court granted in
an order dated May 9, 2002. Because we find that the evidence and argument
concerning seatbelt usage could have mislead the jury in the absence of
proper instruction, we reverse the decision of the lower court.
In this case, we believe the question before us is whether or not the jury
was instructed properly, thus our review is de novo.
The basis of appellant's argument is that the jury should not have been able to consider the seatbelt issue at all, with respect to negligence, or with respect to damages. Specifically, he argues that the court erred both in allowing the defendant/appellee to make certain arguments in closing and by not giving a jury instruction proffered by the appellant. Appellant Miller offered an instruction that would have directed the jury to ignore the seatbelt evidence when assessing percentages of negligence. (See footnote 1) Appellant also argues that the court erred in allowing the defendant/appellee to argue in closing that appellant Miller was negligent for not wearing his seatbelt, and that the jury should consider this when determining who was at fault for the accident. (See footnote 2)
To the contrary, appellee argues that the seatbelt evidence was admissible, that the court was correct in refusing appellant's proffered instruction, and that none of this affected the outcome of the case; or in other words, the jury was supplied with sufficient evidence to conclude that appellant Miller caused the accident, thus the jury had no need to consider the seatbelt issue at all. (See footnote 3) Again, because we feel that proper instruction might have cured other evidentiary problems, we focus upon the instruction issue.
Both parties point to West
Virginia Code § 17C-15-49 (1993) and to a decision of this Court in a case
with somewhat similar facts, Wright v. Hanley, 182 W. Va. 334, 387 S.E.2d
801 (1989). In that case, Mr. Wright and Ms. Hanley were involved in a car accident
on a street in Wheeling and both accused the other of running a red light and
causing the accident. The parties presented evidence that suggested that Mr.
Wright and his children passengers were not wearing seatbelts. Also, Ms. Hanley
offered a jury instruction, given by the court, that the jury could consider
Mr. Wright's failure to use seatbelts both in deciding damages and in assessing
fault for the collision.
(See footnote 4)
In its decision to reverse
the lower tribunal, this Court considered the applicability of evidence of seatbelt
usage both in determining negligence for the accident, and in determining the
amount or extent of damages. After examining law from several jurisdictions,
the Court rejected the defense argument that the common law duty to act with
reasonable care extended to a duty to wear seatbelts. Noting that our Legislature
had not yet acted on this issue, the Court stated:
Because of the continuing legislative debate over a mandatory automobile seat belt law, we decline to judicially impose a penalty on the occupant who chooses not to wear a seat belt and refrain from imposing a standard of conduct that the legislature has thus far been unsuccessful in imposing.Wright v. Hanley, 182 W. Va. 334, 336, 387 S.E.2d 801, 803 (1989) (footnote omitted). While observing that a minority of states had found that such a common law duty existed, the Court held: In the absence of mandatory seat belt legislation, no violation of a common law duty of reasonable care may be construed from failure to wear an automobile seat belt. Syl. pt. 1, Wright. This position is consistent with the longstanding theory that a common law practice will remain unless supplanted by statute or later Court decision. Such parts of the common law as are not displaced by existing statutes, and have not been expressly repealed, are still in effect. Syl. pt. 5, Harper v. Middle States Loan, etc., Association, 55 W. Va. 149, 46 S.E. 817 (1904).
The Wright Court went on to consider whether a defendant could offer evidence of a plaintiff's failure to wear a seatbelt to demonstrate that the plaintiff had failed to mitigate damages. The Court found persuasive the logic of the Supreme Court of Rhode Island, which had stated a plaintiff owes no duty to anticipate a defendant's negligence and to minimize damages by buckling up before the tortious impact occurs. Wright v. Hanley, 182 W. Va. 334, 337, 387 S.E.2d 801, 804 (1989) (quoting, Swajian v. General Motors Corp., 559 A.2d 1041, 1046 (R.I.1989) (emphasis in original)).
Combining these two notions, that failure to wear a seatbelt has no bearing on who is at fault for an accident, and that requiring anticipatory mitigation of damages is at odds with the traditional functioning of our tort system, the Court ultimately held:
In the absence of a mandatory statutory duty to wear seat belts, evidence of plaintiff's failure to wear a seat belt is not admissible in a negligence action to assess plaintiff's percentage of fault or to show plaintiff's failure to mitigate damages.
Syl. pt. 2, Wright v. Hanley, 182 W. Va. 334, 387 S.E.2d 801 (1989).
Of course, Wright predated
our current seatbelt statute, now found in W. Va. Code § 17C-15-49 (1993).
The statute provides, inter alia, that no one may operate a car on a
public road unless seatbelts are used as described, and that a violation of
the statute is not admissible as evidence of negligence. The statute reads in
(a) Effective the first day of September, one thousand nine hundred ninety-three, a person may not operate a passenger vehicle on a public street or highway of this state unless the person, any passenger in the back seat under eighteen years of age, and any passenger in the front seat of such passenger vehicle is restrained by a safety belt meeting applicable federal motor vehicle safety standards. . . .
(d) A violation of this section is not admissible as evidence of negligence or contributory negligence or comparative negligence in any civil action or proceeding for damages, and shall not be admissible in mitigation of damages: [except as provided, discussed below].
W. Va. Code § 17C-15-49 (1993). Both parties agree that, because the accident in this case occurred on a private road that the statute does not apply. However, we find it instructive that the Legislature, like this Court in Wright, also determined that evidence of not wearing a seatbelt should not be admitted to show the non-wearer was negligent. The statute goes on to discuss in paragraph (d) when and how seatbelt evidence may be used with respect to a victim's damages:
Provided, That the court may, upon motion of the defendant, conduct an in camera hearing to determine whether an injured party's failure to wear a safety belt was a proximate cause of the injuries complained of. Upon such a finding by the court, the court may then, in a jury trial, by special interrogatory to the jury, determine (1) that the injured party failed to wear a safety belt and (2) that the failure to wear the safety belt constituted a failure to mitigate damages. The trier of fact may reduce the injured party's recovery for medical damages by an amount not to exceed five percent thereof. In the event the plaintiff stipulates to the reduction of five percent of medical damages, the court shall make the calculations and the issue of mitigation of damages for failure to wear a safety belt shall not be presented to the jury. In all cases, the actual computation of the dollar amount reduction shall be determined by the court.Id. Again, the parties agree that the accident occurred on a private road, and it is clear that the statute, by its own language, restricts itself to those driving on a public street or highway of this state. (See footnote 5) Thus, we find ourselves in a posture very similar to that of Wright. Under the facts of this case, there is indeed an absence of applicable statutory authority, so we find the language of syllabus point two of Wright controlling. Thus, we hold that when our mandatory seatbelt statute, West Virginia Code § 17C-15-49 (1993), is inapplicable, evidenceof a plaintiff's failure to wear a seatbelt is not admissible in a negligence action to assess plaintiff's percentage of fault or to show plaintiff's failure to mitigate damages.
In the instant case, because
our statute did not apply, the court erred in allowing evidence or argument
of Mr. Miller's alleged failure to wear his seatbelt. Because of the unusual
facts of this case, it is understandable that this evidence found its way into
the record. However, the court compounded this problem and erred by not instructing
the jury to ignore such evidence.
We concur with appellant Miller's
position that this evidence and argument could have confused the jury. The defense
made a powerful, common sense argument that Mr. Miller should have
been wearing his seatbelt. If should means only that it would have
been in Mr. Miller's interest to do so, we agree. However, people should
do many things that our law does not require. Allowing the jury to consider
the effect wearing a seatbelt might have had on the accident confuses several
distinct issues. As we noted of the instruction given in Wright :
Finally, in addition to finding that the seat belt instruction was not properly given, we also find that the instruction was very confusing in that it referred to the appellant's refusal to wear a seat belt as constituting a negligent act which may or may not have proximately caused the appellant's injuries. The jury may very well have used this instruction in determining the plaintiff's percentage of negligence.
Wright v. Hanley, 182 W. Va. 334, 337, 387 S.E.2d 801, 804 (1989). We by no means wish to discourage people from wearing seatbelts. It is clear that seatbelts prevent thousands of deaths and serious injuries every year.
However, we also do not wish
to undermine the longstanding goals of loss spreading and recovery for victims
that are the foundation of our modern tort system. Under the limited facts of
this case, our mandatory seatbelt statute, W. Va. Code § 17C-15-49 (1993),
did not apply. Because the statute is inapplicable, our holding in Wright
controls, and the seatbelt evidence should never have been admitted. The appellant's
proffered jury instruction might have overcome this error, but the lower court
refused to give it. We conclude that this left the jury without the guidance
it needed to properly consider this case. Accordingly, we must reverse and remand
for a new trial.
(See footnote 6)
For the reasons stated, the
judgment of the Circuit Court of Boone County is reversed and remanded for further
proceedings consistent with this opinion.
Reversed and remanded.
The Court instructs the
jury that there is no evidence to support a finding that the accident in question
was in any manner caused by the failure to wear seatbelts. In assessing percentages
of negligence in this case, you should not take into consideration the failure
to wear seatbelts.