“Were you wearing a seat belt during the accident?” A Question Still Off Limits in Louisiana

Louisiana is a pure comparative negligence state. Pure comparative negligence is one of the ways that fault – and by extension liability – in a negligence lawsuit is apportioned. There are two other methods: modified comparative negligence, and contributory negligence.

Pure Comparative Negligence

Pure comparative negligence is a doctrine that assigns a percentage to the fault of each of the parties to a negligence action. Consider: someone fails to stop at a stop sign, and he or she is hit by an oncoming vehicle that is speeding. The driver of the oncoming vehicle is injured and sues the other driver for damages related to injuries. The driver that failed to stop may argue that the injuries to the driver of the oncoming vehicle were made worse by the fact that they were speeding. A jury could render a verdict that said the driver that failed to stop was mostly responsible, but the driver of the oncoming vehicle made his injuries worse by speeding. Therefore, the driver of the oncoming vehicle is 20 percent responsible for his injuries. A verdict like this means that the driver of the oncoming vehicle would only be entitled to 80 percent of the damages awarded.

Modified Comparative Negligence

Modified comparative negligence is similar to pure comparative negligence in that each party can be responsible for a portion of the fault. However, once an injured party is determined to be at least 51 percent responsible for their injuries, they are not allowed to recover any damages. Using the same facts from above, say that the oncoming driver’s speeding was excessive and a large cause of injury. If the jury determines that his speeding caused 51 percent of his injuries, and therefore he was 51 percent responsible for his damages, he would be entitled to no recovery.

Contributory Negligence

The harshest of the three, contributory negligence is only found in four states: North Carolina, Alabama, Maryland, and Virginia. Contributory negligence says that if the injured party was even one percent at fault, any recovery is completely barred.

What does this have to do with being asked about wearing your seatbelt?

You can probably guess: failing to wear your seatbelt greatly increases your risk of serious injury in an automobile accident. It would very clearly be something that could be used against the plaintiff – and would likely reduce any amount recoverable. However, the current rules in Louisiana prevent anyone from being forced to disclose whether they were wearing a seatbelt at the time of an accident during trial. State legislators are trying to change this law to allow plaintiffs to be questioned about whether a seat belt was worn. This change would immediately reduce any plaintiff’s possible recovery. It would also subject any driver injured in an accident to a situation where statements made to the responding officer could be used against the individual down the road.

Comparative negligence is designed to fairly apportion fault and gives juries the tools to properly account for damage responsibility and will continue to do so regardless of the loosening or tightening of evidentiary restrictions.

Price McNamara founded the Law Offices of J. Price McNamara in 1995 and has been serving his clients in personal injury, ERISA long term disability, fire and other insurance claims. He assists his clients from multiple locations in Louisiana and can be found on Facebook and Twitter.

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