WEST virginia Legislature
2017 regular session
Senate Bill 55
By Senators Ferns and Sypolt
[Introduced February 8, 2017;
to the Committee on the Judiciary]
A BILL to amend and reenact §17C-15-49 of the Code of West Virginia, 1931, as amended, relating to admissibility of certain evidence in a civil action for damages; and allowing the admission of the use or nonuse of a safety belt on the issues of negligence, contributory negligence, comparative negligence and failure to mitigate damages.
Be it enacted by the Legislature of West Virginia:
That §17C-15-49 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 15. Traffic Regulations and Laws of the Road.
§17C-15-49. Operation of vehicles with safety belts; exception; penalty; civil actions; educational program by West Virginia State Police.
(a) A person may not
operate a passenger vehicle on a public street or highway of this state unless
the person, any passenger in the back seat under eighteen years of age, and any
passenger in the front seat of the passenger vehicle is restrained by a safety
belt meeting applicable federal motor vehicle safety standards. For the
purposes of this section, the term "passenger vehicle" means a motor
vehicle which is designed for transporting
ten fifteen passengers
or less, including the driver, except that the term does not include a
motorcycle, a trailer, or any motor vehicle which is not required on the date
of the enactment of this section under a federal motor vehicle safety standard
to be equipped with a belt system. The provisions of this section apply to all
passenger vehicles manufactured after January 1, 1967, and being 1968 models
(b) The required use of safety belts as provided herein does not apply to a duly appointed or contracted rural mail carrier of the United States Postal Service who is actually making mail deliveries or to a passenger or operator with a physically disabling condition whose physical disability would prevent appropriate restraint in the safety belt if the condition is duly certified by a physician who states the nature of the disability as well as the reason the restraint is inappropriate. The Division of Motor Vehicles shall adopt rules, in accordance with the provisions of chapter twenty-nine-a of this code, to establish a method to certify the physical disability and to require use of an alternative restraint system where feasible or to waive the requirement for the use of any restraint system.
(c) Any person who violates the provisions of this section shall be fined $25. No court costs or other fees may be assessed for a violation of this section.
(d) (1) The Legislature hereby declares that the purpose of this subsection is to allow, in any civil action for damages, the admission of evidence of a motor vehicle occupant’s use or nonuse of a safety belt to assess that occupant’s percentage of fault or mitigation of damages, and to abrogate any common-law rule that no violation of the duty of reasonable care may be construed from a passenger vehicle occupant’s failure to wear a safety belt. The Legislature further declares that the decisions of the Supreme Court of Appeals of West Virginia in Wright v. Hanley, Case No. 18609 (W. Va. Dec. 5, 1989), Miller v. Jeffrey, Case No. 30254 (W. Va. Oct. 25, 2002), Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., Case No. 33810 (W. Va. Dec. 10, 2008), and any other decisions of the Supreme Court of West Virginia inconsistent with this legislation, are contrary to the Legislature’s intent and shall be deemed overruled by the enactment of this provision.
(d) A violation of this
section is not admissible as evidence of negligence or contributory negligence
or comparative negligence in any civil action or proceeding for damages, and is
not admissible in mitigation of damages: Provided, That the court may,
upon motion of the defendant, conduct an in camera hearing to determine whether
an injured party's failure to wear a safety belt was a proximate cause of the
injuries complained of. Upon a finding by the court, the court may then, in a
jury trial, by special interrogatory to the jury, determine: (1) That the
injured party failed to wear a safety belt; and (2) that the failure to wear
the safety belt constituted a failure to mitigate damages. The trier of fact
may reduce the injured party's recovery for medical damages by an amount not to
exceed five percent thereof. In the event the plaintiff stipulates to the
reduction of five percent of medical damages, the court shall make the calculations
and the issue of mitigation of damages for failure to wear a safety belt may
not be presented to the jury. In all cases, the actual computation of the
dollar amount reduction shall be determined by the court.
(2) The use, misuse or nonuse of a safety belt by any driver or passenger is admissible in any civil action or proceeding for damages as evidence of negligence, contributory negligence, comparative negligence or failure to mitigate damages.
(e) Notwithstanding any other provision of this code to the contrary, no points may be entered on any driver's record maintained by the Division of Motor Vehicles as a result of a violation of this section.
(f) The Governor's Highway Safety Program, in cooperation with the West Virginia State Police and any other state departments or agencies and with county and municipal law-enforcement agencies, shall initiate and conduct an educational program designed to encourage compliance with safety belt usage laws. This program shall be focused on the effectiveness of safety belts, the monetary savings and the other benefits to the public from usage of safety belts and the requirements and penalties specified in this law.
(g) Nothing contained in this section abrogates or alters the provisions of section forty-six of this article relating to the mandatory use of child passenger safety device.
NOTE: The purpose of this bill is to allow admission of evidence in a civil action of the use or nonuse of a safety belt on the issues of negligence, contributory negligence, comparative negligence and failure to mitigate damages.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.