I want to know if the driver of a car in New York state can be held
liable for injurys to an adult back seat passenger who isn't wearing
their seatbelt.  My friends were saying that it's the driver's
responsibility to make sure everyone inside the car is safe, even
those over 16 in the back seat.  And that if there's an accident the
driver could be held responsible because of their failure to enforce a
"everybody-wears-a-seatbelt-in-my-car" policy.  I already did a bit of
research on the web and it looks like if the driver is responsible for
the crash and I'm wearing a seatbelt, then I could recover medical
costs from the driver.  If I'm not wearing a seatbelt the driver can
still be found responsible for causing the initial cause of my
injuries, but might only be responsible for a percentage of the cost
of the medical bills.  I'm looking for specific laws, court findings,
or literature relating to my question.  I don't need any information
regarding how to decide who is at fault in various accidents, just
whether the driver would be at all more responsible for adult back
seat passengers if they're not wearing a seatbelt.

swillis...

You state:
"If I'm not wearing a seatbelt the driver can still be
 found responsible for causing the initial cause of my 
 injuries, but might only be responsible for a
 percentage of the cost of the medical bills.  I'm
 looking for specific laws, court findings,
 or literature relating to my question."

What you state is essentially correct.
What I've located indicates that the driver may be 
sued for damages relating to the injuries, but the
amount of damages awarded can be mitigated by whether
the passenger chose to use seat belts.

New York State's seat belt law is as follows:

"New York State law requires seat belt use for all
 front-seat occupants."

"The driver and all front-seat passengers are required
 to wear seat belts, one person per belt. The driver
 and any front-seat passengers aged 16 or older can be
 fined up to $50 each if they fail to buckle up. If the
 violation involves a front-seat passenger under age 16,
 the driver can be fined from $25 to $100 and receive 3
 driver license penalty points."

"Children under age 16 must wear seat belts in the back
 seat (effective 11/28/00).  Children under age four
 must be in safety seats that meet Federal Motor
 Vehicle Safety Standard 213."

"New York is a 'primary enforcement' state. Your failure
 to wear a seat belt is grounds for a law enforcement
 officer to stop you."

"Drivers are responsible for making sure passengers
 aged 15 or younger comply with the seat belt law.
 Persons aged 16 or older are responsible for themselves.
 The law applies to out-of-state visitors as well as
 New York State residents."
Quoted from New York State's Motor Vehicle Division site:
http://www.nydmv.state.ny.us/broch/c-1.htm

So it is not required that drivers enforce the wearing
of seat belts by adult passengers in the back seat.

As for mitigated liability, the following citations are
excerpts from a page from the American University Law 
Review: Volume XX, Book X, at the American University 
Washington College of Law website:

"In reaching its conclusion, the court relied on the
 New York Court of Appeals' reasoning in Spier v. Barker,
 which held that the availability of a seat belt was such
 a unique opportunity for plaintiffs to minimize damages
 beforehand that a departure from the general rule
 limiting mitigation considerations to post-injury conduct
 was justified. (citing Spier v. Barker, 323 N.E.2d 164
 (N.Y. 1974)) The North Dakota Supreme Court analogized
 motorcycle helmets to seat belts to reach the same
 conclusion. Id. The issue of pre-incident mitigation also
 arises in the context of employees' suits against their
 employers. See Johnson v. Farmers Union Cent. Exch., 414
 N.W. 2d 425, 433 (Minn. Ct. App. 1987) (maintaining that
 employee's failure to wear goggles was properly
 considered as basis for mitigating damages paid by
 employer where employee had been trained in workplace
 safety and had been instructed repeatedly to wear goggles)"

and

"See, e.g., Insurance Co. of N. Am. v. Pasakarnis, 451
 So. 2d 447, 453 (Fla. 1984) (holding that seat belt
 defense is "viable" in Florida); Thomas v. Henson, 696
 P.2d 1010, 1016 (N.M. 1984) (changing course from prior
 decisions and recognizing seat belt defense in context
 of pre-accident mitigation); Spier, 323 N.E. 2d 164,
 167 (N.Y. 1974) (referring to "the seat belt defense").*
 Evidence of failure to wear a seat belt has been exluded
 by some courts on the ground that plaintiffs should not
 be subjected to such a standard of care. See Johnson,
 414 N.W.2d at 433 (referring to Clarkson v. Wright, 483
 N.E.2d 268 (Ill. 1985); Amend v. Bell, 570 P.2d 138, 143
 (Wash. 1977) (excluding evidence that plaintiff wasn't
 wearing seat belt because "the plaintiff need not predict
 the negligence of the defendant"))."*****

and

"See Spier, 323 N.E.2d at 166 (noting that defense expert
 testified at trial that seat belts were most effective
 safety improvement in automobiles in past 20 years and
 that plaintiff probably would not have been seriously
 injured if she had worn one)."

and

"See, e.g., Dudanas v. Plate, 358 N.E.2d 1171, 1175-78
 (Ill. App. Ct. 1976) (upholding lower court's jury
 instruction on seat belt non-use as basis for reduction
 of damages because competent evidence established causal
 connection to severity of plaintiff's injuries);
 Vredeveld v. Clark, 504 N.W.2d 292, 297-98 (Neb. 1993)
 (stating that jury instructions allowing reduction in
 damages for seat belt non-use are permissible, but
 finding instruction improperly given because defendant
 offered no proof to establish causation between
 plaintiff's non-use and injuries)."

and

"See Mark L. McAlpine, Comment, A Realistic Look at the
 Seat Belt Defense, 1983 DETROIT C.L. REV. 827, 830
 ("The seat belt allows the user to protect himself
 before an accident occurs. It affords insurance against
 the probable consequences of unpredictable accidents. .
 . . Seatbelts, then, provide an opportunity for
 protection at a time when it really counts before the
 accident occurs.") (emphasis added)."

and

"Insurance Co. of N. Am. v. Pasakarnis, 451 So. 2d 447,
 451 (Fla. 1984) (emphasis added). The court limited the
 idea of personal responsibility, however, by carefully
 stating that failure to use an available and operational
 seat belt is not per se negligent or unreasonable. Id.
 at 454. In this court's formulation, a defendant must
 prove both that the non-use was unreasonable under the
 circumstances and that it was causally linked to some
 portion of the plaintiff's damages."

and

"Law v. Superior Court, 755 P.2d 1130, 1133 (Ariz. Ct.
 App. 1986), aff'd, 755 P.2d 1135, 1145 (Ariz. 1988).
 Because of this principle, the court held that the
 non-existence of a mandatory seat belt law in Arizona
 did not foreclose a finding that the plaintiff was
 partially responsible for her own injuries."

*****The "seat belt defense" mentioned above, is one
"whereby a defendant in an action resulting from an
 auto accident is not liable for any injuries that
 probably would have been prevented had the plaintiff
 been wearing a seat belt."
Quoted from Minnesota's Hamline University website:
http://web.hamline.edu/personal/jpielemeier/cf99s.htm

Not all states have such a law, and I did not locate
the existence of one in New York. Rather, on the same
page cited above, I found "...States that have adopted
interest analysis, including New York." 

'Interest Analysis' is explored on the following page,
on the website of John C Cabaniss, Attorney at Law,
written by Thomas F. Harrison:
http://www.cabanisslaw.com/pub/newway.html

"Suppose you represent the plaintiff in a products
 liability case and there's a good potential for
 punitive damages, but punitive damages are prohibited
 or severely restricted in your state. What can you do?"

"Why not tell the judge that you want your state's law
 to apply to the liability issues in the case, but you
 want to apply another state's law on the issue of
 punitive damages?"

"That may sound ridiculous, but in fact it's a sound
 application of a well-respected principle known as
 depecage."

"In many states, choice-of-law questions are resolved
 according to which state has the greatest interest in
 the litigation. What isn't well known is that this
 interest analysis doesn't apply to the case as a whole
 - it applies separately to each significant issue in
 the case. Thus, a court could decide that one state
 has the greatest interest in the liability part of the
 case, but another state has the greatest interest in
 the imposition of punitive damages."

"The principle that interest analysis applies separately
 to each issue in a case is called depecage (Pronounced
 DEP e cazh). Although the theory is not very well known,
 it has been accepted as valid in every published case
 that has discussed it."

Thus, if the plaintiff and the defendant are from different
states, or if the accident occurred in a different state
than the one in which the driver lived, the principle of
'interest analysis' could be brought into play.


Additionally, some states have a "seat belt gag rule"
which is discussed in the following pdf file by:
Gerard T. Noce, Esq., which is available on the US
Senate website, and was presented in the
Auto Insurance Reform Hearing, June 9, 1999, regarding
S.837, the Auto Choice Reform Act.
http://www.senate.gov/~commerce/hearings/0609noc.pdf

The Auto Choice Reform Act can be viewed here:
http://thomas.loc.gov/cgi-bin/query/z?c106:S.837:

"The Seat Belt Defense"
"The "seat belt gag rule" is an exception to the negligence
 per se doctrine which plaintiffs' bar lobbyists have had
 inserted in many states' mandatory seat belt laws. The
 common law doctrine of negligence per se holds that a jury
 should consider a party's violation of a statute in
 determining whether he was negligent. The seat belt gag
 rule says that a plaintiff's failure to comply with the
 seat belt law cannot be used against him, even if
 that non-use increased the damages he suffered. This
 anomaly rewards the lawbreaker and punishes the consumer.
 According to a University of Kentucky study, the average
 cost of treating a motor vehicle accident victim who was
 not wearing a seat belt is 4.4 times more than the cost
 of treating seat belt wearers. We urge that states permit
 a seat belt defense. While it is expensive for the defense
 lawyer to bring in expert evidence at trial showing how
 failure to wear a seat belt added to a plaintiff's damages,
 the seat belt defense allows us to discount settlement
 amounts in such cases. That is only fair, since it is
 wrong for other insurance consumers to pay increased
 premiums to cover injuries that could have been mitigated
 if the driver acted responsibly. Note that the Auto Choice
 plan actually moves away from the principle of personal
 responsibility-- under Auto Choice, injured drivers would
 be compensated without regard to whether they caused an
 accident by their own negligence and without regard to
 whether they obeyed the seat belt law."

I found no indication that New York State has enacted
a "seat belt gag rule".


Please do not rate this answer until you are satisfied that
the answer cannot be improved upon by means of a dialog with
the researcher through the "Request for Clarification" process.

sublime1-ga


Searches done, via Google:

"seat belt law" "new york"
://www.google.com/search?num=50&hl=en&lr=&ie=UTF-8&oe=UTF-8&safe=off&q=%22seat+belt+law%22+%22new+york%22

"seat belt law" "new york" "medical liability"
://www.google.com/search?num=50&hl=en&lr=&ie=UTF-8&oe=UTF-8&safe=off&q=%22seat+belt+law%22+%22new+york%22+%22medical+liability%22&spell=1

"the seat belt defense"
://www.google.com/search?hl=en&ie=UTF-8&oe=UTF-8&q=%22the+seat+belt+defense%22

"the seat belt defense" "new york"
://www.google.com/search?num=50&hl=en&lr=&ie=UTF-8&oe=UTF-8&safe=off&q=%22the+seat+belt+defense%22+%22new+york%22

"seat belt gag rule" "new york"
://www.google.com/search?hl=en&ie=UTF-8&oe=UTF-8&q=%22seat+belt+gag+rule%22+%22new+york%22

"interest analysis" law "New York"
://www.google.com/search?hl=en&ie=UTF-8&oe=UTF-8&q=%22interest+analysis%22+law+%22New+York%22

---

Request for Answer Clarification by swillis-ga on 05 Jan 2003 13:41 PST

I had already done research on the topic and used searches very
similar to the ones you used, and I came to the same conclusions about
how the driver could be found responsible for causing the injuries but
might only have to pay a certain percentage (found by the jury I
believe) of the plaintiff's medical bills if the plaintiff wasn't
wearing a seatbelt.  I was looking for specific information on whether
the driver could be held negligent for not making sure everyone was
buckled up (even if they're over 16 in the back seat).

One of my friends was saying that while taking driver's education he
read something along those lines in the text book.  It was one of
those little facts they threw out there to make you think.  I on the
other hand think it was just something they said to scare you.

---

Request for Answer Clarification by swillis-ga on 05 Jan 2003 14:13 PST

For an example if Fred is the passenger in the back seat, and Bob is
the driver.  Fred isn't wearing his seatbelt and Bob gets into an
accident in which Fred is injured.  Fred argues that it was Bob's
responsibility to make sure that everyone in his car was safe, so he
should have forced Fred to wear a seatbelt.  Therefore Bob is
responsible for all of Fred's injuries

Would this be a valid argument?

Another example would be if Fred died in the crash and Fred's family
brings a wrongful death suit against Bob for the same reasons listed
above.

---

Clarification of Answer by sublime1-ga on 05 Jan 2003 15:26 PST

swillis...

The New York State Seatbelt law, which I quoted,
clearly states:

"Persons aged 16 or older are responsible for themselves. 
 The law applies to out-of-state visitors as well as 
 New York State residents."

...unless they are in the front seat:

"New York State law requires seat belt use for all 
 front-seat occupants."

There isn't a court in the land which could argue
with that.

While some courts may succeed in reducing the amount
of damages that a person in the back seat can collect
from an insurance company or an auto manufacturer,
due to not wearing a seat belt, there is absolutely
no indication that the driver can be held liable
for not having 'forced' an adult to wear a
seat belt in the back seat. If you think about it,
it's not really something which can be enforced, 
since a back-seat passenger can easily unlatch the
belt without the driver detecting it. Nor is it 
conceivable that the law would find the driver 
'negligent' in that he keeps his eyes on the road,
where they belong, rather than constantly monitoring
his passengers' compliance.

The entire New York Drivers Manual is online, here:
http://www.nydmv.state.ny.us/dmanual/default.html

And, in regard to adult passengers and seat belts,
it simply states, in Chapter 8:

"Whenever you drive, you should make sure everyone in
 your vehicle wears a seat belt. In the event of a crash,
 a person without a belt becomes a projectile, and a danger
 to everyone else in the vehicle."

There is not the slightest hint that you might be held
accountable for the injury or death of the passengers
because you didn't force them to wear a seatbelt -
only that you risk being bombarded from the rear by
a human projectile.

As for them, they're "responsible for themselves"

...UNLESS they're paying passengers.

I found this in Google's cache of the Rieke & Savage, P.C.
website:

"Duty of a Vehicle Driver to Passengers"   

"If you are injured in a traffic collision while riding as
 a passenger in a vehicle, you may want to know about the
 driver's liability toward you. The driver does have a duty
 to act responsibly toward you, but the extent of that duty
 depends on what kind of passenger you are."

"The Non-Paying Passenger"
"The free rider, also known as the gratuitous guest, is
 typically not paying the driver to be transported. In
 most jurisdictions, the driver's duty is that of reasonable
 care. As long as the driver isn't foolishly reckless, or
 intentionally driving dangerously, he or she is relatively
 free from liability."

"The Paying Passenger"
"The duty of the driver is somewhat heightened, however,
 when the passenger is a paying customer conferring a
 benefit (money) to the driver. Providing companionship
 to the driver is not enough benefit for a higher standard
 of care to be attributed. Neither is a contribution for
 gasoline expenses. For paying passengers, if the driver
 is negligent in any way, he or she will be held liable
 for damages."

"What if the Passenger Isn't Wearing a Seat Belt?"
"The driver may claim that the passenger was injured
 because he or she failed to wear a seat belt. However,
 the courts normally reject this defense, since it is
 the driver who caused the collision, not the seatbelt,
 or lack thereof."
http://216.239.53.100/search?q=cache:pC9G2gElOpcC:www.lawyers.com/savagelawyer/article.jsp%3FpractArea%3D20%26articleIndex%3D0+%22driver+liability%22+passenger+seatbelt&hl=en&ie=UTF-8

The last scenario refers, again, to the 'paying' passenger.
There's more information available on that page.

The difference, of course, is that a driver of paid 
transportation is totally empowered to tell the passengers
to comply with the rules or get out of the vehicle, both
because the company for which they work would be liable
for negligence on the driver's behalf, and because they
have the right to act on behalf of their own safety and 
the safety of other paying customers.

Try that on your father-in-law, on the other hand, and
see where it gets you...  : )


If anything remains unclear, please feel free to request
another clarification of the answer before rating it.


Searches done, via Google:

"driver liability" "adult passenger" seat belt
://www.google.com/search?num=50&hl=en&lr=&ie=UTF-8&oe=UTF-8&safe=off&q=%22driver+liability%22+%22adult+passenger%22+seat+belt&spell=1

"driver liability" "adult passenger" seatbelt
://www.google.com/search?hl=en&ie=UTF-8&oe=UTF-8&q=%22driver+liability%22+%22adult+passenger%22+seatbelt

"driver liability" passenger seatbelt
://www.google.com/search?num=50&hl=en&lr=&ie=UTF-8&oe=UTF-8&safe=off&q=%22driver+liability%22+passenger+seatbelt

Dear swillis-ga,

Perhaps this will help clarify the issue. The four essential elements
of a cause of action in negligence are:

1. duty,
2. breach of duty,
3. proximate cause, and
4. damages.

Liability for negligent acts exists when person A owes a duty to
person B, and violates that duty through his negligent acts (with the
negligence being a proximate cause of an injury suffered by person B,
and the injury being reasonably foreseeable to person A as a
consequence of the negligence).

As researcher sublime1-ga has documented that there is no duty on the
part of the driver to ensure that an adult passenger is wearing a seat
belt, there can be no cause of action in negligence based upon the
driver's failure to do so.