HB2088 S JUD AM #1

Goins  7888


The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:


§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 18 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 15 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 and newer.

(b) The required use of safety belts as provided herein in this section 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 29A 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 Court costs or other fees may not be assessed for a violation of this section.

(d) (1) 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 excluding minors who are passengers in the vehicle, evidence of the violation of this section may be admitted in a civil action as to the causal relationship between the violation and the injuries or death alleged if any of the following conditions have been satisfied:

(A) The plaintiff, or in the case of an occupant’s death, the plaintiff’s decedent, was ejected from the passenger vehicle which was equipped with a safety belt meeting the applicable federal motor vehicle standards for the seat in which the occupant was seated immediately prior to being ejected;

(B) The plaintiff filed a product liability claim alleging that a defect in the overall crashworthiness of the passenger vehicle exists;

(C) The occupant’s alleged injuries resulted in death; or

(D) The medical expenses for which the plaintiff seeks recovery exceed $50,000.00.

(2) A defendant alleging a violation of this section shall raise this defense in its answer or timely amendment thereto in accordance with the rules of civil procedure. Provided, however, if the defendant was driving under the influence of drugs or alcohol that defendant is precluded from raising this defense.

(3) Each defendant seeking to offer evidence alleging a violation of this section has the burden of proving all of the following:

(A) A violation of subsection (a) of this section;

(B) Use of the available seatbelt would have reduced the alleged injuries or, if applicable, prevented the death; and

(C) The extent of the reduction of injuries if the available seatbelt had been used.

(4) Except with respect to an ejection under paragraph (A), subdivision (1), subsection (d) of this section, the defendant’s burden of proof regarding paragraph (B), subdivision (3), subsection (d) of this section and paragraph (C), subdivision (3), subsection (d) of this section must be supported by expert testimony, subject to a finding by the court that the testing and methodology supporting the expert testimony satisfies the threshold requirements of Rule 702 of the West Virginia Rules of Evidence.

(5) Upon request of any party, the trial judge shall conduct a hearing out of the presence of the jury as to the admissibility of the evidence in accordance with the provisions of this section and the rules of evidence.

(6) The finding of the trial judge shall not constitute a finding of fact but is limited to the issue of the admissibility of the evidence.

(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 §17C-15-46 of this code relating to the mandatory use of child passenger safety device.