Recent Texas case law and the Texas Pattern Jury Charges have distinguished between a plaintiff’s actions that lead to injury prior to an incident and their subsequent efforts to mitigate damages. The pre-occurrence injury-causing conduct is differentiated from a plaintiff’s post-occurrence failure to mitigate damages, which is submitted as an exclusionary instruction to the questions concerning damages.
A plaintiff’s non-seatbelt use is no longer treated as a failure to mitigate damages defense, which is limited to situations where a plaintiff fails to mitigate damages after an occurrence. Rather, a plaintiff’s non-seatbelt use can be considered as pre-occurrence negligence that caused or contributed to the plaintiff’s alleged injuries. In other words, the jury may consider it negligent behavior and apportion fault to the plaintiff when deciding who caused the injury in question.
However, seatbelt evidence is admissible only if it is relevant.[1] A defendant can establish the relevance of seatbelt nonuse only with evidence that nonuse caused or contributed to the plaintiff’s injuries.[2] Notably, the trial court should first consider this evidence outside of the presence of the jury to determine its relevance. Otherwise, the jury will have already heard evidence of nonuse before such evidence has been deemed relevant.
Expert testimony will often be required to establish relevance, but the Texas Supreme Court has declined to say it will be required in all cases or for all injuries.[3] Biomechanical experts may be used to demonstrate that a plaintiff’s injury was caused by his or her failure to use a seatbelt.
In its landmark Romero decision, the Texas Supreme Court also provided insight on how to construct a jury charge when seatbelt evidence is admitted. Under Section 33.003(a) of the Texas Civil Practice and Remedies Code, the fact-finder may consider relevant evidence of a plaintiff’s failure to use a seatbelt as a “negligent act or omission” or as a violation of “an applicable legal standard” in cases where the plaintiff was personally in violation of an applicable seatbelt law.[4] In cases where an unrestrained plaintiff was not personally in violation of a seatbelt law, the fact-finder may consider whether the plaintiff was negligent under the applicable standard of reasonable care.[5]
Even children absolved of any statutory responsibility due to their age may be held to an age-appropriate, “ordinary prudent child” degree of care for securing their own persons by seatbelt and shoulder strap.[6] Moreover, the jury may further apportion third-party responsibility to the person upon whom the law places the burden to properly restrain the child.[7] Further, recent case law indicates a parent passenger riding in the car who fails to ensure his or her child was belted could also be apportioned fault for that child’s injuries under a common-law duty to use ordinary care to protect their child from injury.[8]
In conclusion, the treatment of a plaintiff’s failure to use a seatbelt within the legal framework of Texas has changed significantly in recent years. Formerly considered a potential failure to mitigate damages, this conduct is now recognized as pre-occurrence negligence that can directly impact the allocation of fault in personal injury cases. The admissibility of seatbelt evidence hinges on its relevance to the plaintiff’s injuries, as determined by the trial court. Expert evidence will often be required in this regard, depending on the facts and injuries alleged. Additionally, it is now clear that the nonuse of seatbelts by those injured or killed while traveling in a passenger vehicle—whether the driver or merely a passenger—involves an applicable legal standard for consideration by a factfinder when making a proportionate responsibility determination. Even children who are not statutorily responsible for seatbelt compliance due to their age may still be held to a standard of care appropriate to their age group. By considering seatbelt nonuse as a factor in apportioning fault, the legal system aims to encourage safer behavior while ensuring fairness and accountability in determining liability for injuries sustained in accidents.
[1] Nabors Well Servs. v. Romero, 456 S.W.3d 553, 563 (Tex. 2015).
[2] Id.
[3] Id. at 563.
[4] Id.
[5] Id. at 563–64.
[6] In re Gamble, 676 S.W.3d 760, 784 (Tex. App.—Fort Worth 2023, no pet. h.) (citing Romero, 456 S.W.3d at 564).
[7] Romero, 456 S.W.3d at 654.
[8] See In re Gamble, 676 S.W.3d at 784.
