By Michael T. Burke & Brandon D. Meshbesher
The overwhelming majority of drivers and passengers use a seat belt. A 2019 study found that nationwide seat belt use was over 90 percent for drivers and just under 90 percent for right-front seat passengers.1 While compliance has been historically lower for backseat passengers, backseat passengers nonetheless use a seat belt about 75 percent of the time.2 The combination of governmental efforts to mandate seat belt availability and compliance, awareness campaigns such as “click it or ticket,” and the introduction of technological features like seat belt reminders and interlocks have helped make wearing a seat belt the rule rather than the exception.3
Even though the vast majority of motor-vehicle occupants use seat belts and many states—including Minnesota—impose monetary penalties for noncompliance, the use or failure to use a seat belt is not admissible in evidence in any litigation involving personal injuries or property damage resulting from the use or operation of a motor vehicle.4 But evolving social norms and legal developments have rendered the original purpose of the seat-belt gag rule obsolete, and it should be modified to better reflect 21st century norms.
History of seat belt legislation
In late 1963, the federal government passed legislation allowing the Commerce Department to issue mandatory safety standards for seat belts sold in interstate commerce.5 Minnesota followed suit that same year and passed legislation providing that after January 1, 1964, all new motor vehicles subject to Minnesota license fees needed to be equipped to allow the installation of seat belts in the front seat.6 Absent from that legislation, however, was any mandate to actually wear a seat belt.7 At that time, wearing a seat belt was optional and, while it may seem unconscionable now, there was substantial debate over whether seat belts could prevent injuries.8 As a compromise, the Minnesota Legislature passed the seat-belt gag rule to ensure that a driver who caused a motor vehicle accident could not blame the other driver for failing to wear a seat belt.9 The new legislation provided that “proof of the use or failure to use seat belts… shall not be admissible in evidence in any litigation involving personal injuries or property damage resulting from the use or operation of any motor vehicle.”10
Near the end of the 1960s Congress passed the first federal seat belt law, which mandated that all new cars include seat belts installed at all seating positions.11 Today, with the exception of New Hampshire, all states and the District of Columbia require adult front-seat occupants to use seat belts, and adult rear-seat passengers are also covered by laws in 31 states and the District of Columbia.12 In Minnesota, failing to use a seat belt is a primary offense, meaning that drivers and passengers must be buckled up or face a monetary fine.13
The admissibility of seat belt evidence at trial
Minnesota’s seat-belt gag rule last saw appreciable attention in the 2018 appellate decision Jensen v. Arndt.14 In Jensen, the court of appeals considered the district court’s application of the seat-belt gag rule, which precluded the plaintiff from presenting evidence of injuries that were the result of her seat belt use.15 The court of appeals affirmed the district court with respect to its evidentiary decision, but Judge Kirk, writing separately, expressed the view that it was time for the Legislature to reconsider the seat-belt gag rule because the rule, in effect, “provides no consequence for damages in a civil action for those who fail to wear their seat belts, but it does, as in this case, punish a person who is faithful to the law by buckling up, where the seat belt causes the injuries.”16 He noted that the seat-belt gag rule is rooted in Minnesota’s “frontier past, along with the sense that personal freedom extends to the right to endanger one’s self,” despite the fact that Minnesota law requires drivers and passengers to use seat belts and penalizes them for failing to do so.17 Judge Kirk concluded that “Minnesota’s seat-belt gag rule is outdated, and the legislature should reconsider it.”18
In 2019, both houses of Minnesota’s 91st Legislature drafted bills attempting to repeal the seat-belt gag rule, but neither bill passed.19 The Legislature’s attempt to repeal the seat-belt gag rule follows a trend set in other jurisdictions since the beginning of the 21st century. States such as Oklahoma and Texas, for example, have repealed their seat-belt gag rules.20 In 2015, the Texas Supreme Court overruled its state’s seat-belt gag rule by reasoning that “seat belts are now required by law and have become an unquestioned part of daily life for the vast majority of drivers and passengers,” thus rendering the seat-belt gag rule “an anachronism.”21 While acknowledging that “[t]he rule may have been appropriate in its time,” the Texas Supreme Court explained that by 2015, it was “a vestige of a bygone legal system and an oddity in light of modern societal norms.”22
It’s time for Minnesota to modify the seat-belt gag rule
Minnesota’s original justifications for the seat-belt gag rule are no longer applicable or relevant. For the last 60 years, new motor vehicles have been manufactured with seat belts already installed and, along with nearly every other state, Minnesota has enacted legislation to mandate the use of seat belts for all motor vehicle passengers.23 Moreover, data shows that the overwhelming majority of people wear a seat belt when in a motor vehicle.24 While it might once have been common for a driver or passenger to be unrestrained, that is now a rarity.25 Due to changes in law and behavior over the past half century, it makes little sense to continue using the seat-belt gag rule in its current form. Excluding seat belt use from consideration at trial, given the state and the country’s significant increase in seat belt use and the passage of laws mandating compliance, is antiquated.
Some, particularly attorneys representing injured plaintiffs, have expressed concerns over the effect an outright repeal of the seat-belt gag rule might have.26 Specifically, it has been argued that the ability to present evidence of seat belt non-use will result in increased cost of litigation because both plaintiffs and defendants will need to present expert testimony concerning what injuries would or would not have been prevented if a seat belt had been used.27 This argument, however, overlooks potential benefits to plaintiffs. If the seat-belt gag rule were repealed or modified, plaintiffs (as well as defendants) would have the opportunity to present evidence concerning the use or non-use of seat belts. Judge Kirk highlighted this benefit from the plaintiff’s perspective in Jensen v. Arndt when reasoning that it was unjust to preclude the plaintiff from introducing evidence of injuries caused by the seat belt itself.28 Even in cases where a plaintiff is not asserting a claim for injuries caused by a seat belt, plaintiffs would nevertheless benefit from introducing evidence of its use. For example, a plaintiff could argue to the jury that he or she sustained significant injuries despite wearing a seat belt, which would potentially decrease the percentage of contributory negligence assigned to the plaintiff and increase his or her potential recovery.
How other states address the introduction of seat belt evidence at trial
Recognizing some of the concerns raised by proponents of the seat-belt gag rule, other jurisdictions have taken differing approaches on how seat belt evidence can be presented to a jury. In Florida, for example, the failure to wear a seat belt does not “constitute negligence per se, nor shall such violation be used as prima facie evidence of negligence or be considered in mitigation of damages.” However, such evidence “may be considered as evidence of comparative negligence.”29 New York, on the other hand, does not allow seat belt evidence to be considered with respect to comparative negligence, but allows such evidence to be introduced for purposes of proving the plaintiff’s failure to mitigate his or her damages, provided that the defendant pleaded the failure to use a seat belt as an affirmative defense.30 In order for seat belt non-use to be submitted to the jury in New York, the defendant must “demonstrate, by competent evidence, a causal connection between the plaintiff’s nonuse of an available seat belt and the injuries and damages sustained.”31
Other jurisdictions have balanced the interests of both plaintiffs and defendants by limiting either the percentage of fault attributable to the plaintiff, or the amount of any reduction for the plaintiff’s failure to mitigate damages. Missouri, for example, does not allow seat belt non-use to be considered as evidence of comparative fault, but the amount of a plaintiff’s recovery may be reduced by 1 percent—after any reduction for comparative negligence—if the party seeking to introduce such evidence presents expert testimony proving that the plaintiff’s failure to wear a seat belt contributed to his or her injuries.32 Iowa’s statute is nearly identical to Missouri’s statute.33 In 2018, however, Iowa amended its statute to increase the available reduction of a plaintiff’s recovery from 5 percent to 25 percent.34 Michigan and Oregon both limit reductions in damages to 5 percent, although Michigan allows seat belt non-use to be considered as evidence of negligence while Oregon limits its consideration to the mitigation of damages.35 Wisconsin also allows evidence of seat belt use to be presented for contributory negligence purposes, but limits any reduction in damages to 15 percent.36
In California, failing to use a seat belt when required by law neither establishes negligence as a matter of law nor negligence per se for comparative fault purposes.37 Juries, however, are permitted to consider evidence of a plaintiff’s failure to use a seat belt, and there is no statutory limit on any reduction in damages based upon such evidence.38 California courts have held that “[t]he burden is on the defendants to prove whether in the circumstances of the case, plaintiffs in the exercise of ordinary care should have used the seat belts available to them and what injuries plaintiffs would have sustained, according to expert testimony, if the seat belts had been used.”39 Thus, California allows courts to instruct juries “on the existence of the seat belt statute in appropriate cases, while allowing the jury to decide what weight, if any, to give the statute in determining the standard of reasonable care.”40
Three ways to reform Minnesota’s seat-belt gag rule
As described above, state legislatures across the country have crafted different ways for seat belt evidence to be presented at trial while keeping in mind the need to balance the interests of both plaintiffs and defendants. Minnesota can and should adapt to these already changed times by using one of three potential methods.
The first is an outright repeal of the seat-belt gag rule, as the Minnesota Legislature tried to do in 2019. Although this is the simplest course for the Legislature, courts would be left with the task of deciding how such evidence can or should be presented to a jury, whether the failure to use a seat belt constitutes negligence per se or negligence as a matter of law, the applicable burdens of proof, whether expert testimony is required, and many other important issues. It seems clear that if the Legislature chooses to repeal the seat-belt gag rule, it should replace the rule’s provisions with guidance for the courts as to how such evidence may be presented and interpreted.
The second method is the percent-reduction method used in states like Wisconsin and Iowa.41 Both Wisconsin and Iowa place a limit on the available reduction in damages, but differ as to whether such evidence may be considered for contributory negligence purposes or only with respect to the mitigation of damages. Preventing seat belt non-use from being considered for contributory negligence purposes but allowing non-use to be considered for the failure to mitigate damages makes little sense. Considering state laws that require the use of seat belts, vehicle seat belt alerts, and the significant amount of education on safety benefits of wearing a seat belt, it is difficult to call the failure to use one anything other than negligence. As such, if the Legislature is inclined to adopt a percent-reduction method that limits the available reduction to a specified percentage, it should allow seat belt evidence to be considered for contributory negligence purposes and not limit its application to the failure to mitigate. It should also set the available percentage reduction between 15 and 25 percent. The 1 percent limit in Missouri and 5 percent limit in Michigan and Oregon do not adequately reflect the known safety benefits of seat belt use and the near-ubiquitous compliance with state mandates. The data shows that seat belt non-use is extremely uncommon and a reasonable person either knows or should know that failing to wear a seat belt may result in significant injury. Any percent-reduction method should reflect these considerations.
A third option is the California method, which appears to present the cleanest and fairest approach to balancing the interests of plaintiffs and defendants.42 The California method provides that failing to use a seat belt is not considered negligence as a matter of law or negligence per se. Nevertheless, such evidence may be presented to and considered by a jury. Importantly, California leaves the jury to decide what weight, if any, to give such evidence in determining the standard of reasonable care. This makes sense given the jury’s role in apportioning fault between the parties. California also places the burden on the defendant to prove whether the plaintiff should have used a seat belt in the exercise of ordinary care, and requires the defendant to present expert testimony as to what injuries, if any, the plaintiff would have sustained if a seat belt had been used.
If the Legislature chooses to adopt the California method, it should supplement it with New York’s approach by making the failure to use a seat belt an affirmative defense.43 This proposed method allows the jury to determine the weight of all the evidence and does not artificially restrict the jury from assigning negligence to any party. It also places the burden squarely on the defendant to: (1) establish evidence showing that the plaintiff, in the exercise of ordinary care, should have worn a seat belt under the circumstances; and (2) introduce expert testimony as to what injuries the plaintiff would have sustained if he or she had used a seat belt. It is then left to the jury to interpret all the evidence and decide what weight to give it—as is the standard in nearly every other civil case.
Whether in the form of an outright repeal, a percentage reduction from a verdict, or a system similar to California’s, the Minnesota Legislature should bring the seat-belt gag rule into the 21st century. At this time, the policy considerations underlying the rule are extinct. States like California, Wisconsin, New York, Iowa, and Michigan all allow seat belt evidence to be presented to civil juries, and there is no reason that Minnesota cannot or should not do the same.
MICHAEL T. BURKE is an attorney with Lind, Jensen, Sullivan & Peterson, P.A., and represents clients in state and federal courts throughout Minnesota, Wisconsin, and Iowa.
BRANDON D. MESHBESHER is an attorney with Lind, Jensen, Sullivan & Peterson, P.A., and represents clients in state and federal courts throughout Minnesota, Wisconsin, and South Dakota.
Notes
1 Seat Belt Use in 2019 – Overall Results, Nat’l Hwy. Traffic Safety Admin. (Dec. 2019), available at https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812875 .
2 R. Li & Timothy M. Pickrell, Occupant Restraint Use in 2017: Results From the NOPUS Controlled Intersection Study, Nat’l Hwy. Traffic Safety Admin. (Feb. 2019), available at https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812594.pdf .
3 Increasing Teen Safety Belt Use: a Program & Literature Review, Nat’l Hwy. Traffic Safety Admin. (Nov. 2005), available at https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/809899.pdf .
4 Minn. Stat. §169.685, subd. 4; see also Minn. Stat. §169.686; see also Seat Belt Defense in All 50 States, Matthiesen, Wickert & Lehrer, S.C., available at https://www.mwl-law.com/wp-content/uploads/2018/02/SEAT-BELT-DEFENSE-CHART.pdf .
5 UNITED STATES STATUTES AT LARGE, PL 88-201, (12/13/1963), 77 Stat. 361.
6 Minn. Stat. §169.685, subd. 1 (1963).
7 Id.
8 Elizabeth Stawicki, Seat Belt Law Challenged, Minn. Public Radio http://news.minnesota.publicradio.org/features/199903/23_stawickie_seat/ (3/23/1999).
9 Id.
10 Minn. Stat. §169.685, subd. 4.
11 See 49 U.S.C.A. §30127(d) (“Congress finds that it is in the public interest for each State to adopt and enforce mandatory seat belt use laws and for the United States Government to adopt and enforce mandatory seat belt use regulations.”).
12 Insurance Inst. for Hwy. Safety & Hwy. Loss Data Inst., Seat belts, https://www.iihs.org/topics/seat-belts#:~:text=With%20the%20exception%20of%20New,of%20Columbia%20have%20primary%20enforcement .
13 Minn. Stat. §69.686, subd. 1.
14 Jensen v. Arndt, 2018 WL 1702408 (Minn. Ct. App. 4/9/2018).
15 Id. at *2–3.
16 Id. at *9.
17 Id.; see also Minn. Stat. § 169.686, subd. 1(a), (b) (2016).
18 Jensen, 2018 WL 1702408 at *9.
19 HF 2454, 91st Leg., (Minn. 2019), available at https://www.revisor.mn.gov/bills/text.php?number=HF2454&type=bill&version=0&session=ls91&session_year=2019&session_number=0 ; see also SF 1350, 91st Leg., (Minn. 2019), available at https://www.revisor.mn.gov/bills/text.php?number=SF1350&version=latest&session=ls91&session_year=2019&session_number=0 .
20 Okla. Stat. Ann. tit. 47, § 12-420 (“the use or nonuse of seat belts shall be submitted into evidence in any civil suit in Oklahoma unless the plaintiff in such suit is a child under sixteen (16) years of age.”); see also Tex. Transp. Code §§545.412(d) and 545.413(g) (repealed in 2003 by REFORM OF CERTAIN PROCEDURES AND REMEDIES IN CIVIL ACTIONS, 2003 Tex. Sess. Law Serv. Ch. 204 (H.B. 4)).
21 Nabors Well Servs., Ltd. v. Romero, 456 S.W.3d 553, 555 (Tex. 2015).
22 Id.
23 Supra note 14.
24 Supra note 2.
25 Id.
26 James H. Manahan, Legal Learning: Bill Could Repeal Seat Belt Gag Rule, Duluth News Trib. (2/24/2017), available at https://www.duluthnewstribune.com/opinion/1884608-Legal-Learning-Bill-could-repeal-seat-belt-gag-rule .
27 Id.
28 Jensen, 2018 WL 1702408 at *9.
29 Fla. Stat. §316.614(10).
30 N.Y. Vehicle & Traffic Law §1229-C(8).
31 Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164 (1974) (internal citation omitted).
32 Mo. Rev. Stat. §307.178(4).
33 Iowa Code §321.445(4).
34 Iowa Code §321.445(4)(b)(2). Iowa’s statute was amended shortly after Judge Kirk’s concurrence in Jensen to increase the available reduction from five percent to twenty-five percent.
35 Mich. Comp. Laws §257.710e(8); see also Or. Rev. Stat §31.760(1).
36 Wis. Stat. §347.48(2m)(g).
37 Cal. Vehicle Code §27315(i).
38 Id.
39 Housley v. Godinez, 4 Cal. App. 4th 737, 743, 6 Cal. Rptr. 2d 111, 115 (1992).
40 Id.
41 Supra at note 38; see also supra at note 40.
42 Supra at note 41.
43 Supra at note 34.