When you are injured in a vehicle accident that is not your fault, you may expect you will receive full recovery. But certain actions (or inaction) by an injured person can reduce the overall amount of collectable damages.
These situations are recognized as forms of “comparable negligence” or “failure to mitigate damages.” Some states have barred the seat belt defense entirely. Unfortunately, Florida is not one of those. Under Florida law, failure to wear a seat belt is considered a form of comparable negligence.
While a defendant asserting the seat belt defense may be successful in reducing the overall damage award, the good news is that because Florida follows a standard of pure comparative fault, a finding that plaintiff was comparatively at fault – even up to 99 percent – will not bar the claim.
The seat belt defense asserts that plaintiffs should only be able to recover for damages they would have sustained had they been wearing a seat belt. Of course, this determination is often speculative.
Our Palm Beach traffic accident attorneys will usually seek suppression of any evidence that furthers this defense. We may also seek to factually challenge the seat belt defense by countering any government statistics regarding the effectiveness of seat belts, and also whether physical traits of plaintiff (very short, overweight, etc.) may have rendered the seat belt less effective than usual.
The seat belt defense was recently asserted in the case of Jones v. Alayon, before Florida’s 4th DCA. This was a wrongful death action in which the jury awarded less than what plaintiff sought, and plaintiff appealed. However, the 4th DCA affirmed.
According to court records, decedent was rear-ended by defendant driver, causing decedent’s car to strike a guardrail and overturn, resulting in his ejection from the vehicle. He was pronounced dead at the scene, and it was later opined his death was caused either when he hit the pavement or when he was struck by other motorists.
Defendant was an off-duty police officer who fled the scene and then reported his vehicle stolen. He later admitted he lied and was criminally charged for his actions, facing a maximum penalty of 30 years in prison.
Plaintiff, personal representative of decedent’s estate, sued for wrongful death. Defendant conceded liability, but disputed that his actions caused the death, alleging decedent’s failure to use a seat belt constituted comparative negligence.
Prior to trial, court barred admission of the fact defendant was a police officer who fled the scene, finding prejudice would outweigh probative value. Also during trial, the court allowed – over hearsay objections of plaintiff – testimony of one of decedent’s daughters criticizing decedent’s widow for spending money on drugs and alcohol. The court found this to be relevant to estate’s claim of losses.
Finally, with regard to the affirmative defense of failure to wear a seat belt, plaintiff presented evidence indicating decedent usually wore a seat belt. On this particular occasion, there was evidence gleaned from the investigating officer that the seat belt was likely inoperable due to coins falling inside it. Decedent and his daughter knew this, but only became aware of it less than two weeks prior to the accident. It was a problem he planned to have repaired, but had not yet had a chance when the accident occurred. Thus, plaintiff moved for a directed verdict on the seat belt issue because there was no evidence the seat belt was functional. However, defense countered there was still a question of fact as to whether plaintiff was negligent for seat belt’s inoperability and for not getting it fixed. Court declined to issue a directed verdict.
At trial, jurors assigned 30 percent of fault to defendant and 70 percent to decedent. Jury awarded $328,000 in total for funeral expenses, lost net accumulations, loss of support and services to wife and daughters, and pain and suffering. However, after decedent’s calculated share of comparative negligence was tallied, plaintiffs were to receive just $98,400.
Plaintiff appealed, but appellate court affirmed, finding trial court did not abuse its discretion in allowing the seat belt defense, allowing testimony regarding the widow’s alleged drug and alcohol use and barring evidence of defendant’s identity as a police officer and the fact that he fled the scene.
This case reveals how even seemingly straightforward claims can present very serious challenges for damage recovery. Having an experienced injury lawyer on your side is of critical importance.
If you have been injured in an accident, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Jones v. Alayon, April 8, 2015, Florida’s Fourth District Court of Appeal
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