There is the concept in the law of comparative negligence. In Jim's
example, if the defense can show that it's very likely that crash
injuries were significantly worse because someone was not wearing a
seat belt, which is a violation of law in many states, I would not be
surprised to see the judgement reduced.
No, but it could turn an accident that would have cost $10K in medical
bills into one that costs $1mil. Why should the defendent have to
pay the entire difference if the plaintiff was violating the law?
You don;t think not wearing a seat belt can have an effect on the
severity? In the case under discsussion, the occupants were ejected
from the vehicle.
Ever hear of a punitive damage award? If someone is flagrantly
violating a law and causes damages, the award can contain a component
for punitive damages that is above and beyond the actual cost of the
"Countering The Seat Belt Defense
By: IRA H. LEESFIELD
Leesfield Leighton & Partners P.A.
2350 South Dixie Highway
Miami, Florida 33133
If you are injured in a car accident, and it is not your fault at all,
you expect a full recovery. You may not get one because of the seat
belt defense. This defense can reduce the amount of damages plaintiffs
can recover for failing to wear their seat belts in car accidents. In
most jurisdictions, a successful seat belt defense allows plaintiffs
to recover only for damages they would have incurred if they had been
wearing their seat belts.
Few topics in tort law have been as controversial as the seat belt
defense. Perhaps that is why the following 31 jurisdictions have
definitively rejected it: Alabama, Arkansas, Connecticut, Delaware,
the District of Columbia, Idaho, Illinois, Kansas, Louisiana, Maine,
Maryland, Massachusetts, Minnesota, Montana, Nebraska, New Hampshire,
New Mexico, North Carolina, Oklahoma, Pennsylvania, Rhode Island,
South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington
On the other hand, the following 15 jurisdictions clearly allow for
the possibility of at least some reduction in a plaintiff's damages
for failure to wear a seat belt: Alaska, Arizona, California,
Colorado, Florida, Georgia, Iowa, Michigan, Missouri, New Jersey, New
York, Ohio, Oregon, West Virginia and Wisconsin. Two jurisdictions are
still not clearly decided,(2) and three others do not have fully
developed laws addressing the issue.(3)
Within the jurisdictions that allow for application of the seat belt
defense, a plaintiff's damages could be reduced under a "comparative
negligence" or a "failure to mitigate damages" theory.
On Mon, 1 Feb 2010 05:38:55 -0800 (PST), email@example.com wrote:
I mentioned that below.
Of course it can. I mentioned below that in calculating damages, the
other party's failure to wear a seat belt is relevant. But in
deciding liability for the accident, failure to wear a seatbelt by D**
isn't relevant unless it somehow helped to cause the accident, or make
things worse for P afterwards. It's very rare that not wearing a
seatbelt will *cause* an accident. And not wearing one by D*** is
likely to cause greater injuries to D, not P, unless D's body slams
into P and P is injured that way.
**P = plaintiff, D = defendant.
***D is the defendant and very likely to be the driver. It's possible
but pretty rare that something a passenger does or doesn't do causes
Right. We heard nothing about P's body being injured by D's body.
But punitive damages won't be awarded for failing to wear a seatbelt.
It's like driving without a license. That's illegal too, but it's not
what causes an accident, and it's not what causes injury. Driving
badly, perhaps because someone doesn't even know how to drive, perhaps
to the point where he can't pass a driver's test, is what causes
accidents. Not failure to have a license, and in all but some strange
situation, not failure to wear a seatbelt.
Here's an unusual situation where it might. If one is hit, not
stopped but thrown off course, and then he drives into something or
over a cliff, maybe someone could argue successfully that if the
driver had been wearing a seat belt, he would have regained control of
the car and avoided the second collision or going off the cliff. In a
case like that failure to wear the seatbelt can be relevant to
liability, but in 99% of accidents the seatbelt can't prevent the
accident. Or maybe failure to belt one's child or dog could let them
run wild and interfere with the driver, but that's very rarely a cause
of an accident afaik.
What you posted below is unrelated to *contributory negligence* rules.
You'll note that "contributory" is not used in your quote below,
because it is a term of art with a special meaning^^. Many states
that once had the contributory negligence rule have moved to
comparative negligence, because it seems more fair. I think it's more
fair too. That's what is described below.
I said that.
I said that.
The reasoning behind this tends to support what i've said. These
states reject the seat belt defense, because failure to wear a seat
belt is not what causes accidents. Although it often increasess the
injury, these states have decided that the person should be free to
ride safely with or without seatbelts.
I agree with that, and I suggested that it might happen.
^^More about contributory negligence:
http://en.wikipedia.org/wiki/Contributory_negligence "At common law,
contributory negligence is an absolute defense. If a defendant
successfully raises the defense, he would not be liable for the tort.
An undesirable result may occur when a plaintiff is completely barred
from recovery even if his own negligence was slight.
"Most jurisdictions in the U.S. have modified the doctrine, either by
court decision or by legislation, to comparative negligence. Under
comparative negligence, the jury reduces the award to the plaintiff by
the extent of the plaintiff's contribution to the harm."
^^^Although it's not relevant to this thread up till now, fwiw, I take
the opposite view about seatbelt laws. I think that neither drivers
nor passengers whould be required by law to wear seatbelts. It's not
the place of the government to tell us what to do do in order to
protect us from ourselves. And the idea put forth that the government
*may* have to pay medical bills for someone injured could also have
them regulating what we eat, what we dont't eat, how much we exercise,
and much of entire lives. It's no good.
OTOH, I do think a driver's liability for injury to others should be
reduced for the ones who weren't wearing seatbelts, if they would have
been less injured if they were wearing their belts. AFAIK "mitigation
of damages" has always referred to things done afterwards, so I
wouldn't use the term to refer to wearing seatbelts in advance of any
accident, but I still think it should limit liabillity.
So, to lessen injuries in the first place, I insist that hitchhikers
wear the seatbelt in my car. It's enough I'm giving them a lift, I
don't want to be sued later.
Actually they can ALL be shifted into neutral, and the ECU will limit
the RPM in neutral to a safe limit by cutting the injection.
IMPOSSIBLE to over-rev any OBD2 equipped vehicle in neutral or with
the clutch depressed.
Try it some day. Start the car. In neutral. Floor the accellerator.
What happens??? At about 4000 - 4200 RPM the engine cuts out and it
just sits there, bouncing between about 3500 and 4500 RPM until you
lift your foot. The engine protects itself from driver stupidity and
gives the driver a safe "out" if a throttle malfunctions.
This has been true since at least 1995 on most vehicles, and since
1996 on all vehicles officially sold in North America.
I couldn't find the article I saw this in again. The problem is
moisture getting into the accelerator somehow. Symptoms of a possible
problem include the accelerator being harder to depress, not operating
smoothly, and or not returning to the upper position.
There was a clip on CNN today that had a driver who said that he got a toe
under the gas pedal and pulled it up with no effect.
Could this be related to something like cruise control that pulls the pedal
down as it rengages?
The worry is that new or revised gas pedals will not turn out to be the
If that's the case and it's a mechanical problem then the design of
the pedal mechanism must be such that there is not a fixed connection
between the pedal and the "sensor" gizmo inside the pedal assembly,
i.e. the pedal an push it down ok against a coil spring that makes the
"sensor"gizmo push back and make the pedal return. But if the gizmo
itself is sticking down then it won't return the pedal AND the pedal
will not be able to pull it back. I can easily envision such a design,
it would make it easier to have one "box" that could be used with many
different pedals in different cars. Only problem would be that the
designers failed to anticipate that anyone would ever have a desire to
hook a toe under the pedal to make the darn thing return to "zero",
figuring instead that the spring would always be able to return it.
Well none of that is the pedal. They were still talking about the
actual pedal on Friday, the thing your foot rests on, right?
Then today Saturday they announced something but it's still about the
The pedal is not just the pedal any more. It is an electronic device
with a footpad that tells the computer how fast you want to go and
some other servo motor opens and closes the throttle as needed.
In the past, metal rods or cables worked the throttle and a spring
pulled it closed. It is now a drive by wire system that should
failsafe to a closed mode, but evidently is not.
Dang, new-fangled English. If God wanted us to have new words, he
wouldn't have given us a big supply of old words.
But, despite my complaint above, apprarently this accounts for it.
Now, of the millions of people in the US who have Toyatas, and the 100
million+ other car owners in the US, and many millions elsewhere who
have heard about this, how many do you think know what you just said,
and how many think they are still talking about the actual pedal? Both
because of the word and because they were talking about that before,
since it actually might have caught on a floor mat (but didn't).
Their PR depeartment is sleeping.
I'm still amazed and outraged. :) On my '95 Chrysler, the pedal is
still the pedal. There is a throttle position sensor near the end of
the accelerator cable, and a few other sensors unrelated to the pedal,
but I think everything else is in the computer, so there is no greater
meaning to pedal. So people with old cars -- I don't know how old --
are even more likely not to know what you said.
motorbikes now have throttle by ware too. And pretty soon most automatic
transmissions will be getting rid of the shifter to select or change gears
and will have a dial or buttons to select gears. Many high end cars already
have electronic transmissions.
On the news today they were still talking about the pedal "sticking".
If they were referring to the computer not failing in safe, closed
mode, or anything remotely like that, I would think they would say the
pedal "malfunctioned". That makes their language even more
Hey, like the '55 DeSoto, with the push button transmission.
I don't know whether they are suffering from 'we never had this
problem before' syndrome, or if it is a culture or language thing--
but Toyota has certainly blown the PR end of this whole fiasco.
Mid 60s dodge's had that too. When I was 16 my girlfriend's dad
said 'take my car' one day. At about 50, I went to downshift to
pass a car [because I was that cool] and hit the reverse button by
mistake. We came to a rather abrupt halt & the car stalled. After I
cleaned the crap out of my pants I got the nerve up to see what the
damages were. It started up & was none the worse for wear.
Years ago working on my camry under the hood I reved the motor and
released the half round cable holder that I reved it with, the motor
stayed at Full Rev, the cable did not slide back into the sleeve at
the top of the motor fast enough, the plastic cable holder binded up,
folded over in a kink, until I reved it or yanked on it again. Didnt
Audi "supposidly" have an issue years ago, Anybody who hits anyhing
now in a toyota says their car did it, not them, but the non accident
claims of acceleration are what make me wonder since they are not
finding beer cans wedged in the pedals, or the drivers quickly remove
To the best of my knowlege this may still be true. However, the early
Citroen D19 had a full pressure hydraulic braking system where a
"buuble" on the floor actuated a valve that controlled the brakes.
Also, electricall brake operation would be no less "positive" thanthe
current hydraulic system - which has NO mechanical linkage from the
foot to the wheel.
What the law DOES require is 2 totally independend brake actuating
systems - the service brake and the "parking" or "emergency" brake.
The 1949 VW did NOT technically pass this requirement as the same
cables operated all 4 wheels when the pedal was pushed OR the handle
And also this. Full Servo steering IS used on construction equipment
and farm equipment.
It is the pedal ASSEMBLY - which includes the pedal, proper, a
bellcrank type linkage with a damper, on a pivot, with a return spring
and a throttle position indicator.. This whole assembly fits into a
separate case, or box, that goes through the firewall
Apparently, if all the right (or wrong) conditions occur, condensation
can form and get into the damper mechanism part of the pedal assembly,
causing it to swell or deform, increasing the friction to the point
eventually the return spring cannot ovcercome it to return the pedal
They are working on a "field fix" to avoid having to replace all the
throttle assemblies of this type currently in the "wild". Apparently
it may be as simple as inserting a stainless steel shim into the
damper assembly to prevent the clearance from closing up and
increasing the friction.
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