Final Questions
There are several final questions that should be considered
regarding the potential crashworthiness case:
Was the injured party belted?
Even though Texas statutes make use or non-use of
a seatbelt inadmissible in collision cases (Section
545.413(g), Texas Transportation Code), the information
may be admissible in crashworthiness cases. First,
when the case alleges failure of the seatbelt system,
the evidence that the plaintiff was belted is admissible.
Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d
132, 134-35 (Tex. 1994). Second, automotive defendants
argue that when failure of the restraint system is
alleged, they should be able to show the plaintiff's
failure to use portions of the system which were provided.
In Texas, at present, the courts have not yet ruled
on this issue.
This is a situation in which the distinction between "true
crashworthiness" cases and other cases may be
important. Belt use or non-use is clearly inadmissible
in non-crashworthiness cases (e.g. tire failure or
brake failure), but is admissible in crashworthiness
cases alleging restraint failure, and might be admissible
in other crashworthiness cases.
The evidence of belt usage is frequently unclear or
difficult to capture and preserve.
Although police reports include an indication of belt
usage, it is rare that investigating officers have
good information on belt usage in catastrophic injury
cases. They frequently rely on information from early
arrivals at the scene, who frequently unfasten seatbelts
to assist an injured person. Locating such persons
and making a firm determination of the eyewitness testimony
of seatbelt usage can be very important. In ejection
cases, police may assume that belts were not being
used, and are generally not trained to make a careful
examination of the physical evidence to look for belt
usage.
It is important to locate and preserve both the best
eyewitness evidence and the best physical evidence
of belt usage.
Eyewitness evidence will generally come either from
the injured person, fellow occupants of the vehicle,
or first arrivals on the scene. First arrivals who
found the injured person belted are the best witnesses,
but are often difficult to locate. It can be critical
to locate all early scene arrivals immediately, before
police notes are lost, or addresses and phone numbers
change. It is not uncommon for one early arrival to
believe the injured was unbelted, not being aware that
another person arrived even earlier and unfastened
the belt. The injured person and fellow occupants are
also important, even though they may have somewhat
less credibility than the early arrivals who have "no
dog in the fight."
Physical evidence is of three types:
1) The condition of the belt as found at the scene,
which may be transitory and should be documented by
photographs immediately;
2) Witness marks in the vehicle, which may be difficult
to locate except by an expert;
3) Witness marks of belt usage on the body of the
occupant, in the form of distinctive strap-like bruises
on the pelvis, abdomen, chest, or shoulder.
We have handled cases in which the belt was found
still buckled although the occupant had been ejected.
(The ejection was due to a seatback failure during
a rollover of a topless SUV which allowed the occupant
to slide up and out of the belt.) It is not uncommon
for the belt to be found extended for most or all of
its length, and twisted or jammed in a D-ring or anchor
spool, mutely testifying to its usage prior to impact.
Occasionally a belt will be found extended and jammed
into a closed door, evidencing both belt usage and
door opening during the collision. All of these kinds
of transitory conditions should be documented photographically
at the earliest opportunity, and should not be disturbed
pending expert examination.
Experts frequently find witness marks inside the vehicle,
including on the belt, sometimes including human tissue,
markings from clothing patterns, and markings on the
seatbelts which demonstrate belt usage or non-usage,
or proper function or malfunction. Frequently these
markings are difficult for a non-expert to see or interpret,
and are fragile. Sometimes proper interpretation requires
DNA or similar testing.
It is quite common for seatbelts to cause bruising
on the bodies of occupants which is very important
in determining seatbelt usage and function. In death
cases, such markings may be preserved by autopsy photos.
In injury cases, the attorney should act quickly to
secure photos or medical record documentation before
the healing process destroys the evidence.
Does the case involve catastrophic injury or death?
If the answer is no, the case is unlikely to be a
viable crashworthiness case.
Most crashworthiness cases involve either death or
extremely serious, permanent injuries, such as brain
damage, spinal cord injury with resulting quadriplegia
or paraplegia, or some other similarly serious injury.
Unfortunately, minor injuries or even moderate injuries
are not suitable for handling as crashworthiness cases.
The unfortunate and unfair truth is that the cost of
pursuing a crashworthiness case, in terms of the cost
of expertise needed to prove the case, and the cost
of deposing defense engineers and discovering technical
documentation from the defense, is so great that the
expenses are likely to exceed the recovery which one
would expect from minor to moderate injuries.
Is there another financially responsible defendant
who is liable for the injury?
If the answer is yes, it is probably more efficient
to handle the case against the other defendant, rather
than a crashworthiness case against an auto manufacturer.
In crashworthiness cases, it is common that someone
other than the auto manufacturer causes the collision
and will be legally liable for the injuries, even though
an automotive defect is also one of the causes of the
injury. If this entity is also financially responsible,
such as a trucking company, it will probably be in
the best interest of the case to pursue the case against
the person who caused the collision.
There are several reasons for this conclusion. First,
it is far simpler to make a case against the person
at fault for the collision than to develop and explain
a crashworthiness case. Determining fault for the collision
is far easier, technically, and far simpler for jurors
to understand, than developing and explaining the crashworthiness
case. Second, the technical and legal complexities
of crashworthiness cases make the case much more expensive
to develop, in terms of both time and money. This reduces
the client's recovery and increases the time needed
to obtain it. Third, auto manufacturers are among the
toughest and most sophisticated defendants. This further
increases the time and money required to prosecute
the case, and reduces the chances of recovery.
In short, crashworthiness cases are usually a last
resort.
TOP
STRENGTH. INTEGRITY.
EXPERTISE.
Perry & Haas does not offer any guarantee of
case results.
Past success in litigation does not guarantee success in any new or future
lawsuit.
Our web site describes some of the cases that the attorneys of Perry & Haas have worked on in the past.
Our description of those cases is summary in nature.
You should be aware that the results obtained in each of the cases we have
worked on was dependent on the particular facts of each case. The results of
other cases will differ based on the different facts involved.
