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In ‘Nabor Well Services v. Romero’ in 2015, the Texas Supreme Court upended more than 40 years of precedent when it allowed evidence of a plaintiff’s nonuse of seat belts to reduce a plaintiff’s recovery in a car crash case. This evidence is not now automatically admissible, however. The defendant must first show that the evidence is relevant, and the probative nature of the evidence must outweigh its prejudicial nature.

The Texas Supreme Court first addressed the admissibility of seat belt evidence in 1973, in Kerby v. Abilene Christian College. The Kerby court sharply distinguished between negligence contributing to causing a crash and negligence contributing to causing a plaintiff’s damages. The court excluded seat belt evidence because it reasoned that any negligence in not wearing a seat belt could not be contributory negligence that contributed to causing the crash.

One year later, in Carnation v. Wong, the Texas Supreme Court stopped short of holding that there was no common law duty to wear seat belts. Instead, the court noted the prohibitive difficulty of admitting seat belt evidence under any of the existing legal theories, including contributory negligence, mitigation of damages, and apportionment of damages theories. The court then broadly held that plaintiffs in car crash cases should not have their damages reduced or mitigated because of their failure to wear seat belts.

Carnation‘s common-law general prohibition of seat belt evidence to reduce a plaintiff’s damages remained the rule in Texas until 1985. In that year, the Texas Legislature made it a criminal offense for anyone 15 years or older to ride unbelted in a front seat, and made drivers responsible for belting children under 15 years old riding in a front seat. The 1985 statute also mandated that, “Use or nonuse of a seatbelt is not admissible evidence in a civil trial.” The statute’s flat prohibition of seat belt evidence for any purpose went a step further than Carnation, which had prohibited its admissibility solely when it was used to reduce a plaintiff’s damages recovery.

Then, in a 2003 as part of sweeping “tort reform” changes in HB4, the Texas Legislature simply repealed the statute’s prohibition of the admissibility of seat belt evidence, without taking any legislative position on whether such evidence was now admissible. This repeal revived the dormant, but never-overruled holdings of Kerby and Carnation.

In Nabor Well Services v. Romero in 2015, the Texas Supreme Court considered whether the sharp distinction that it drew between occurrence-causing and injury-causing negligence in Kerby was still viable, and whether a plaintiff’s failure to wear a seat belt could reduce a plaintiff’s damages recovery, even though it did not cause the accident.

Romero was a car crash case in which a Nabors Well Services truck slowed to make a left hand turn, and the plaintiffs’ Suburban with eight occupants pulled into the oncoming lane of traffic in an attempt to pass the Nabors truck. The Nabors truck hit the Suburban, which then left the highway and rolled multiple times. Although the evidence was conflicting on exactly which occupants were unbelted and which were ejected from the Suburban, there was no dispute that a number of the occupants were unbelted and ejected. One passenger was killed and all others suffered injuries.

The trial court, relying in part on Carnation, excluded expert testimony from Nabors’ biomechanical engineer that seven of the eight passengers in the Suburban were unbelted, that five of those seven were ejected from the vehicle, and that the failure to wear seat belts caused those passengers’ injuries.

The Nabors court rationalized that Kerby and Carnation, like many later-overruled opinions decided by the court, were simply “common-law doctrines designed to blunt the austerity of the all-or-nothing contributory negligence scheme” in effect at the time they were decided. The court discarded Kerby and Carnation as “once-prudent measures that have outlived their usefulness.”

Chapter 33, enacted after Kerby and Carnation, now requires fact-finders to assign responsibility to plaintiffs who cause or contribute to cause “in any way” personal injury or death, and “the harm for which recovery of damages is sought.” The Nabors court concluded that this language in Chapter 33 establishes that “the Legislature both intends and requires fact-finders to consider relevant evidence of a plaintiff’s pre-occurrence, injury-causing conduct.” Accordingly, the court held that “relevant evidence of use or nonuse of seat belts, and relevant evidence of a plaintiff’s pre-occurrence, injury-causing conduct generally, is admissible for the purpose of apportioning responsibility,” provided the plaintiff’s conduct was a cause of his damages.

The Nabors court noted that the Texas Supreme Court has so far “stopped short of a formal declaration that proportionate responsibility incorporates both occurrence-causing and injury-causing conduct,” and the court conceded that there is a “logical difference” between such conduct. Nevertheless, the court’s holding appears to have largely eliminated any distinction.

The court clarified that its holding was not based on a failure to mitigate damages theory. A plaintiff’s post-occurrence failure to mitigate damages, unlike pre-occurrence conduct such as not wearing a seat belt, operates only to reduce the plaintiff’s damages award, and is not to be considered in the fact-finder’s responsibility apportionment.

Defendants in the wake of Nabors cannot assume that a trial court necessarily must admit seat belt evidence. Nabors erects some hurdles for the admissibility of the evidence: 1) defendants must establish its relevance by showing that nonuse contributed to cause the plaintiff’s injuries, 2) the trial court must first scrutinize the evidence for relevance outside the presence of the jury, and 3) the evidence is subject to exclusion as overly prejudicial under rule of evidence 403. Further, although the Nabors court declined to say that expert testimony will always be required to establish the relevance of the evidence, the court noted that “expert testimony will often be required.”

In ‘Nabor Well Services v. Romero’ in 2015, the Texas Supreme Court upended more than 40 years of precedent when it allowed evidence of a plaintiff’s nonuse of seat belts to reduce a plaintiff’s recovery in a car crash case. This evidence is not now automatically admissible, however. The defendant must first show that the evidence is relevant, and the probative nature of the evidence must outweigh its prejudicial nature.

The Texas Supreme Court first addressed the admissibility of seat belt evidence in 1973, in Kerby v. Abilene Christian College. The Kerby court sharply distinguished between negligence contributing to causing a crash and negligence contributing to causing a plaintiff’s damages. The court excluded seat belt evidence because it reasoned that any negligence in not wearing a seat belt could not be contributory negligence that contributed to causing the crash.

One year later, in Carnation v. Wong, the Texas Supreme Court stopped short of holding that there was no common law duty to wear seat belts. Instead, the court noted the prohibitive difficulty of admitting seat belt evidence under any of the existing legal theories, including contributory negligence, mitigation of damages, and apportionment of damages theories. The court then broadly held that plaintiffs in car crash cases should not have their damages reduced or mitigated because of their failure to wear seat belts.

Carnation‘s common-law general prohibition of seat belt evidence to reduce a plaintiff’s damages remained the rule in Texas until 1985. In that year, the Texas Legislature made it a criminal offense for anyone 15 years or older to ride unbelted in a front seat, and made drivers responsible for belting children under 15 years old riding in a front seat. The 1985 statute also mandated that, “Use or nonuse of a seatbelt is not admissible evidence in a civil trial.” The statute’s flat prohibition of seat belt evidence for any purpose went a step further than Carnation, which had prohibited its admissibility solely when it was used to reduce a plaintiff’s damages recovery.

Then, in a 2003 as part of sweeping “tort reform” changes in HB4, the Texas Legislature simply repealed the statute’s prohibition of the admissibility of seat belt evidence, without taking any legislative position on whether such evidence was now admissible. This repeal revived the dormant, but never-overruled holdings of Kerby and Carnation.

In Nabor Well Services v. Romero in 2015, the Texas Supreme Court considered whether the sharp distinction that it drew between occurrence-causing and injury-causing negligence in Kerby was still viable, and whether a plaintiff’s failure to wear a seat belt could reduce a plaintiff’s damages recovery, even though it did not cause the accident.

Romero was a car crash case in which a Nabors Well Services truck slowed to make a left hand turn, and the plaintiffs’ Suburban with eight occupants pulled into the oncoming lane of traffic in an attempt to pass the Nabors truck. The Nabors truck hit the Suburban, which then left the highway and rolled multiple times. Although the evidence was conflicting on exactly which occupants were unbelted and which were ejected from the Suburban, there was no dispute that a number of the occupants were unbelted and ejected. One passenger was killed and all others suffered injuries.

The trial court, relying in part on Carnation, excluded expert testimony from Nabors’ biomechanical engineer that seven of the eight passengers in the Suburban were unbelted, that five of those seven were ejected from the vehicle, and that the failure to wear seat belts caused those passengers’ injuries.

The Nabors court rationalized that Kerby and Carnation, like many later-overruled opinions decided by the court, were simply “common-law doctrines designed to blunt the austerity of the all-or-nothing contributory negligence scheme” in effect at the time they were decided. The court discarded Kerby and Carnation as “once-prudent measures that have outlived their usefulness.”

Chapter 33, enacted after Kerby and Carnation, now requires fact-finders to assign responsibility to plaintiffs who cause or contribute to cause “in any way” personal injury or death, and “the harm for which recovery of damages is sought.” The Nabors court concluded that this language in Chapter 33 establishes that “the Legislature both intends and requires fact-finders to consider relevant evidence of a plaintiff’s pre-occurrence, injury-causing conduct.” Accordingly, the court held that “relevant evidence of use or nonuse of seat belts, and relevant evidence of a plaintiff’s pre-occurrence, injury-causing conduct generally, is admissible for the purpose of apportioning responsibility,” provided the plaintiff’s conduct was a cause of his damages.

The Nabors court noted that the Texas Supreme Court has so far “stopped short of a formal declaration that proportionate responsibility incorporates both occurrence-causing and injury-causing conduct,” and the court conceded that there is a “logical difference” between such conduct. Nevertheless, the court’s holding appears to have largely eliminated any distinction.

The court clarified that its holding was not based on a failure to mitigate damages theory. A plaintiff’s post-occurrence failure to mitigate damages, unlike pre-occurrence conduct such as not wearing a seat belt, operates only to reduce the plaintiff’s damages award, and is not to be considered in the fact-finder’s responsibility apportionment.

Defendants in the wake of Nabors cannot assume that a trial court necessarily must admit seat belt evidence. Nabors erects some hurdles for the admissibility of the evidence: 1) defendants must establish its relevance by showing that nonuse contributed to cause the plaintiff’s injuries, 2) the trial court must first scrutinize the evidence for relevance outside the presence of the jury, and 3) the evidence is subject to exclusion as overly prejudicial under rule of evidence 403. Further, although the Nabors court declined to say that expert testimony will always be required to establish the relevance of the evidence, the court noted that “expert testimony will often be required.”