04 Feb Failure to Use Child Seat May Be Admissible in Trial
Written by: Sandro Stojanovic
The law in Georgia is clear that the failure to use seat belts, or “safety belts”, is not admissible in a civil trial. O.C.G.A. § 40-8-76.1(d). The statute provision states as follows: “The failure of an occupant of a motor vehicle to wear a seat safety belt in any seat of a motor vehicle which has a seat safety belt or belts shall not be considered evidence of negligence or causation, shall not otherwise be considered by the finder of fact on any question of liability of any person, corporation, or insurer, shall not be any basis for cancellation of coverage or increase in insurance rates, and shall not be evidence used to diminish any recovery for damages arising out of the ownership, maintenance, occupancy, or operation of a motor vehicle.” O.C.G.A. § 40-8-76.1(d). The legislature’s intent in 1988 was to make the failure to use seat belts completely inadmissible in civil trials. See C.W. Mathews Contracting Co., Inc. v. Gover, 263 Ga. 108 (1993) (The legislature stated that one of its purposes in O.C.G.A. § 40-8-76.1 was “to provide that a failure to use seat safety belts may not be introduced in evidence in any civil action.” citing 1988 Ga. Laws, p. 31). The law is clear that the failure to use a seat belt is not admissible in a civil trial to prove negligence, causation, or in any way diminish damages.
However, the law is unclear whether the use of a child seat is completely inadmissible in a civil trial. O.C.G.A. § 40-8-76 governs the use of child seats and section (c) only states the following:” Violation of this Code section shall not constitute negligence per se nor contributory negligence per se. Violation of subsection (b) of this Code section shall not be the basis for cancellation of coverage or increase in insurance rates.” The plain reading of this provision reveals that the failure to use a child seat is only inadmissible to show negligence or contributory negligence per se. In comparison to the provision prohibiting the use of seat belts in trial (O.C.G.A. § 40-8-76.1(d)), the provision prohibiting the use of child seats does not automatically make the failure to use a child seat inadmissible to prove causation or diminish damages. The legislature’s intent appears to fall short of complete inadmissibility, but rather leaves room for defendants to consider whether to raise the failure to use child seats as a causation or damages defense. See 2004 Georgia Laws Act 572 (H.B. 217).
It appears that in cases where plaintiff fails to use a child seat for a minor and the minor suffers injuries due to an accident, defendants may be able to raise a causation or damages defense, and potentially introduce expert testimony on causation or damages. In cases involving a minor with injuries due to a collision, defendants have to do thorough discovery, including obtaining photographs of the plaintiff’s vehicle involved in the collision in order to find out whether a child seat was used.