8.21 Nonuse of Seatbelt Including
Ultimate OutcomE Civil Model Jury Charge
As
I told you earlier[2],
defendant's contention that plaintiff was not wearing a seatbelt is not
relevant in deciding who is at fault for causing the accident. But it may be meaningful in determining the
amount of money plaintiff may recover for any injuries you find he/she
received. I would now like to tell you
how this works.
In
order to succeed on this reduction of damages issue, defendant must prove by
the greater weight of the evidence that:
1. Plaintiff was not using an available seatbelt
at the time of the accident.[3]
2. Plaintiff
was negligent in not using that seatbelt at the time of the accident.
3. Plaintiff's
injuries were made greater or more severe because he/she was not using a seatbelt. In other words, some or all of plaintiff's
injuries could have been prevented or avoided if he/she had been using a seatbelt.[4]
I
would like now to talk with you about how you go about deciding if defendant
has proven each of these three points to you.
You may note that each of these points is set out on the jury verdict
sheet as questions ( ).
The
first point you must decide is whether defendant has shown that plaintiff was
not using an available seatbelt at the time of the accident.
The
second point that defendant must show is that plaintiff was negligent for not
using the seatbelt.
Negligence
in this type of situation is the failure to use the degree of care for one's
own safety and protection that a reasonably prudent person would use in the
same or similar circumstances. By a
reasonably prudent person I mean neither the most cautious person nor one who
is unusually bold, but rather one of reasonable vigilance, caution and
prudence.
New
Jersey law[5]
requires the driver [and front seat passengers] of a car to wear a properly
adjusted and fastened seatbelt while the vehicle is in operation on any street
or highway of this State. If you find
that the plaintiff was in violation of that law at the time of the accident,
you may consider that violation of a statutory duty of care on the issue of
negligence. However, the violation is
not conclusive as to the issue of whether plaintiff was negligent.[6] It is a factor or circumstance which you
should consider in assessing the negligence, if any, of the plaintiff. You may also take into account the prevailing
custom of seatbelt use at the time of the accident.[7] [That is, what percentage generally of the
drivers (and front seat passengers) used a seatbelt at the time of the accident?] Think about all of these factors in deciding
whether plaintiff acted as a reasonably prudent person and, therefore, was or
was not negligent in not using a seatbelt.
If
you decide that a reasonably prudent person would not have been using a seatbelt,
then you should find that the plaintiff was not negligent and stop deliberating
on the seatbelt damage reduction claim.[8] However, if you decide that a reasonably
prudent person would have used a seatbelt in that situation at that time, then
you should find that the plaintiff was negligent and continue deliberating on
the seatbelt damage reduction claim.
If
you find that the plaintiff was negligent, you must then decide whether the
failure to use a seatbelt increased the extent or severity of his/her
injuries. In making this decision, you
are to consider all of the evidence in this case, including the testimony of
the expert witness(es) who testified.
Think about the total extent of plaintiff's injuries and whether any of
those injuries would have been avoided if he/she had been using a seatbelt. [WHERE
APPLICABLE: If you find that
the plaintiff was severely injured, and the evidence shows that his/her severe
injuries could not have been avoided by the use of a seatbelt, it is immaterial
that some very minor injuries could have been avoided by seatbelt use. Therefore, if the negligent failure to wear a
seatbelt had no impact on the extent of the injury, you should cease to
consider the seatbelt issue. If, on the
other hand, you find that the negligent failure to wear a seatbelt increased
the extent or severity of injuries, you must then evaluate the impact of the
failure to wear a seatbelt.][9]
If
you decide three facts — one, plaintiff was not using an available seatbelt at
the time of the accident; two, plaintiff was negligent in not using the seatbelt;
and three, as a result, plaintiff's injuries were made greater or more severe —
then you must make two more decisions.
You will see that these appear as questions ( ) on your jury verdict sheet.
The
first is to decide what part of plaintiff's injuries would have been avoided if
a seatbelt had been used. The defendant
has the burden of proving this to you.
To do this, you must first determine the value of the total damages
which plaintiff incurred. Then, you must
set the amount of the damages that would have been sustained in the accident if
a seatbelt had been used. You will
subtract that amount from the total damages actually sustained in order to
obtain what I will call seatbelt damages.
The final decision you must make about
the seatbelt claim is whether you will allocate or assign some percentage of
negligence or fault to plaintiff because of his/her failure to use a seatbelt. This is a separate consideration of fault
from your earlier one concerning the fault of the parties in causing the
accident. The percentage of negligence
or fault I am talking about now is only in connection with the increased
injuries. For how much of that fault —
in a percentage ranging from one to one hundred percent — do you find plaintiff
is responsible?[10]
You may be
wondering why you have to make all of these decisions and how they may affect
the final outcome of this case. I want
to describe that to you now.
From
the jury verdict sheet, you can see that you are making two separate decisions
about fault. The first one is as to the
cause of the accident. The second is as to
the cause of any enhanced or increased injuries which occurred by not using a
seatbelt.
Understand
that you are not being asked to make the mathematical calculations; that will
be my job — to put your findings into effect.
But I am going to give you some idea as to how your decisions will work
in affecting the final outcome in this case.[11]
What
I shall do is begin with your total amount of damages and then separate that
money amount into two portions. One
portion shall be the sum you calculated for the plaintiff's enhanced injuries
as a result of not wearing a seatbelt, which I have been calling seatbelt
damages, and the other shall be the remainder sum of the non-seatbelt damages,
which is the total damages, less seatbelt damages.
I
shall reduce the non-seatbelt damages by the percentage of fault, if any, you
decide is plaintiff's for causing the accident.
I shall reduce the seatbelt damages by the total amount which you decide
is plaintiff's for the fault of the accident and the failure to wear the seatbelt,
taking into consideration defendant's fault for causing the accident. I shall then add the two reduced amounts together
to arrive at the total award to the plaintiff.
But,
as I said a moment ago, you do not do these calculations. I do them, based on your answers on the jury
verdict sheet.
JURY VERDICT SHEET
(Including
Seatbelt Damages)
1. Was D negligent in the operation of
his/her motor vehicle?
Yes _____ go on
to 2.
No
_____ end your discussions.
2. If D was negligent, was his/her negligence
a proximate cause of the accident?
Yes _____ go on
to 3.
No
_____ end your discussions.
3. Was P Negligent in the operation of
his/her motor vehicle?
Yes _____ go on
to 4.
No
_____ skip over 4 and 5, and go on to 6.
4. If P was negligent, was his/her negligence
a proximate cause of the accident?
Yes _____ go on
to 5.
No
_____ skip over 5 and go on to 6.
5. Comparison of negligence in causing the
accident:
P _____%
D _____%
Total
100 %
Go on to 6 only if the
negligence of D in causing the accident is 50% or more; if D's negligence in
causing the accident is less than 50%, end your discussions.
6. Was P using an available seatbelt at the
time of the accident?
Yes _____ skip
over 7 and 8 and go on to 9.
No
_____ go on to 7.
7. Was P negligent for not using a seatbelt?
Yes _____ go on to 8.
No
_____ skip over 8 and go on to 9.
8. Were P's injuries made greater or more
severe because he/she was not using a seatbelt?
Yes _____ go on
to 9.
No
_____ go on to 9.
9. P's total damages from the accident: $___________.
Go on to 10 only
if you answered 8 as "yes." If
you answered 6, 7 or 8 as "no," end your discussions.
10. P's damages, if he/she had used a seatbelt
$___________.
Go
to 11.
11. P's seatbelt damages (answer to 9 minus
answer to 10): $___________.
Go
to 12.
12. P's negligence for not using a seatbelt:
______% (from 1% to 100%).
[1]
This charge incorporates the standards of Waterson v. General Motors
Corp., 111 N.J. 238 (1988), but does not incorporate the standard
charge on ultimate outcome regarding liability, which appears at Model Civil
Charge 7.31.
[2] This refers to Model Civil Charge 5.30M.
[3]Under Federal Motor Vehicle
Safety Standards, all passenger automobiles manufactured after June 30, 1986,
must be equipped with a safety seat belt system. Since the determination of Waterson
that the enactment of N.J.S.A. 39:3-76.2(e) et seq.
reinforced a public policy encouraging the use of seat belts, and since those
statutes require the driver and front seat passenger to wear a properly
adjusted and fastened seat belt, several questions continue after Waterson. For example, could plaintiff be negligent for
knowingly occupying a vehicle with a non-functioning seat belt? If there is a factual dispute whether the
available seat belt was functional, who has the burden of proving that it was
functional? Does the rationale of Waterson
apply to vehicles other than passenger automobiles? Does Waterson apply to situations
exempted under N.J.S.A. 39:3-76.2(g) from seat belt usage requirements?
[4]
Normally, this will require expert testimony. See,
Dunn v. Durso, 219 N.J. Super. 383, 388-389 (Law Div.
1986), and Barry v. The Coca Cola Co., 99 N.J. Super. 270,
274-275 (Law Div. 1967).
[7]
Waterson,
supra, 111 N.J. at 266.
[8]
See, Bleeker v. Trickolo,
89 N.J. Super. 502 (App. Div. 1965), and Johnson v. Salem Corp.,
97 N.J. 78, 97-98 (1984).
[10]
Query: Does this apply when the
plaintiff-front seat passenger is between 5 and 17 years of age? See N.J.S.A.
39:3-76.2(f)(b).
[11]
The process is fully described in Waterson, supra, 111 N.J.
at 270-275, especially at 274.
