By Lee Mickus, a partner in the Denver, CO office of Evans Fears & Schuttert LLP.

The Georgia Supreme Court’s decision in Domingue v. Ford Motor Co.¹ observed that the state’s statute barring evidence of seat belt non-usage in civil lawsuits likely violates the due process rights of auto manufacturers defending crashworthiness cases.  Despite raising the concern, the court took no action to protect such defendants’ constitutional rights.  By questioning the constitutionality of Georgia’s seat belt gag rule, the Georgia Supreme Court joins a growing list of authorities that have identified the unfairness and irrationality of statutes that entirely preclude or drastically limit consideration of seat belt non-use evidence.

The Domingue Opinion and Georgia’s Gag Rule Statute

In Domingue, a federal district court certified three questions to the Georgia Supreme Court regarding the admissibility of seat-belt-related evidence under OCGA § 40-8-76.1(d), Georgia’s seat belt gag rule.  The questions arose during litigation of a product liability lawsuit brought against Ford on a crashworthiness theory.  The plaintiff asserted that his vehicle, and in particular the airbag restraint system, provided inadequate occupant protection during a collision.  The plaintiffs filed a motion in limine to exclude any evidence of seat belt non-usage at trial.  Ford argued in response that the court must allow it to offer evidence addressing the vehicle’s seat belt system because the “interconnected designs of restraints and airbags” rendered assessment of the vehicle’s design impossible without referencing seat belts.  The defendant also argued that exclusion of seat belt non-use evidence would leave the jury in an ill-informed position from which it would be “impossible to conclude that a differently designed airbag would be safer[.]”  To resolve these state-law disputes, the federal district court asked the Georgia Supreme Court to answer whether OCGA § 40-8-76.1(d) precludes evidence of the existence of seat belts as part of the subject vehicle’s restraint system design, compliance of the seat belts with applicable federal safety standards, and the occupant’s non-use of the vehicle’s seat belts as part of the manufacturer’s defense against the crashworthiness claims.

The Georgia Supreme Court focused on the text of OCGA § 40-8-76.1(d) to answer the certified questions.  For the first two questions, the court noted that the predicate language of the statute—“failure of an occupant to a motor vehicle to wear a safety belt”—does not address the existence of seat belts in the vehicle’s overall restraint-system design or the conformity of those seat belts to federal safety standards.  Accordingly, OCGA § 40-8-76.1(d) does not bar that evidence.  Conversely, that same predicate language “squarely precludes consideration of a motor vehicle’s occupant’s nonuse of a seatbelt[.]”

Importantly, in response to the plaintiffs’ original motion in limine that exclusion of seat belt non-usage evidence in a crashworthiness case focused on performance of the vehicle’s restraint system, Ford argued that such exclusion would violate Ford’s due process and equal protection rights.  Ford repeated those constitutional arguments before the Georgia Supreme Court.  Because the federal court did not certify a question on the constitutionality of Georgia’s seat belt gag rule when applied to a crashworthiness claim, the Georgia Supreme Court declined to resolve these disputes.  Despite passing on the constitutional issue, the court nonetheless expressed its uneasiness with Georgia’s gag rule:

To be sure, some of us have serious concerns about the constitutionality of a statute that strips from a defendant the ability to present evidence that could be critical to its ability to present a defense of a product it designs and manufactures—including but not limited to being prevented from making arguments related to proximate cause and risk-utility factors—which may occur if a defendant-manufacturer is precluded from raising in a product-liability case about a motor vehicle all (or almost all) evidence related to a vehicle occupant’s failure to wear a seatbelt.

This was not the first time that a Georgia court questioned the constitutionality of the statute’s broad exclusionary provision, particularly when applied to product liability crashworthiness claims.  Nearly two decades earlier, Cobb County District Court Judge Prodgers observed that “[i]f a crashworthiness issue were to relate to the passenger restraint system, then a strong argument could be made that has no applicability, or, if it did, then due process considerations might intervene.”²  By failing to address the constitutional question, the Georgia Supreme Court left this long-standing concern that the seat belt gag rule deprives product liability defendants of their basic rights to linger.  The court did, however, observe that Ford could assert constitutional challenges to the district court after remand.

The Irrationality and Unfairness of Georgia’s Gag Rule

The Georgia Supreme Court was right to make its due process concerns explicit, even if expressed in dicta.  OCGA § 40-8-76.1(d) is constitutionally unfair to defendants in crashworthiness cases. The statute prevents auto manufacturers from describing how the vehicle’s complete occupant protection system performed in the accident and showing that injuries at issue resulted from the occupants’ failure to use available seat belts.  Echoing the National Highway Traffic Safety Administration,³ Georgia’s own Governor’s Office of Highway Safety recognizes that other safety components cannot replace seat belts’ central role in the occupant protection function: “All of the safety features designed for automobiles work best when the occupant is properly using a restraint system such as seat belt for adults[.]”⁴  These agencies also observe seat belts’ critical injury prevention capability, recognizing that “[b]uckling up is the single most effective thing you can do to protect yourself in a crash”⁵ and that the failure to wear seat belts is “[o]ne of the leading causes of motor vehicle injuries and deaths” and is responsible for 46% of Georgia’s 2015 crash fatalities.⁶  By placing these well-established effects of seat belts off-limits at trial, Georgia’s gag rule prevents defendants from introducing proof capable of completely dispelling allegations of inadequate crash protection in the vehicle’s overall design and its role in causing an unbelted occupant’s injuries.  In so doing, OCGA § 40-8-76.1(d) is constitutionally on thin ice.⁷

The Role of the Legislature

The Georgia Supreme Court aimed its strong statement on the gag rule’s constitutional infirmities directly at the Georgia legislature.  The Georgia Supreme Court has previously recognized that the legislature controls the content of OCGA § 40-8-76.1(d).⁸  Although the court decided that the Domingue case did not present the right circumstances for ruling on the constitutional question, the legislature can and should act promptly and remediate the problematic arbitrary exclusion of critical seat belt non-usage evidence.

Notably, two state legislatures recently have opened their courts to seat belt non-use evidence.  West Virginia in 2021 modified its long-standing seat belt gag rule to allow consideration of evidence that a driver or occupant was unbelted in determining injury causation; and in crashworthiness cases the newly-revised statute also allows juries to use the evidence to assess comparative negligence.⁹  Louisiana in 2020 entirely repealed its gag rule that had been on the books since 1988.¹⁰  By taking these actions, each of these states remediated a statute properly described as “an anachronism” and “a vestige of a bygone legal system and an oddity in light of modern societal norms.”¹¹  In light of the unquestionable significance of seat belt non-use evidence to issues of injury causation, comparative fault, and, in crashworthiness cases, product design, legislatures in Georgia and other states that cling to archaic statutes that exclude seat belt non-use evidence should consider similar action.

Notes

1. Domingue v. Ford Motor Co., ___ S.E. 2d ___, 2022 WL 2230542 (Ga. June 22, 2022).
2. DiMaso v. Ford Motor Co., No. 99A-6172-6, 2003 WL 25432010 (Ga. Cobb Cty. Dist. Ct. July 1, 2003).
3. See National Highway Traffic Safety Administration, Seat Belts (last visited July 17, 2022) (“Air bags are not enough to protect you; in fact, the force of an air bag can seriously injure or even kill you if you’re not buckled up.”).
4. Georgia Governor’s Office of Highway Safety, Seat Belts (last visited July 17, 2022).
5. National Highway Traffic Safety Administration, supra. n. 3.
6. Georgia Governor’s Office of Highway Safety, Seatbelt Statistics (last visited Aug. 29, 2019).
7. See Clark v. Mazda Motor Corp., 68 P.3d 207, 210 (Okla. 2003) (Opala, J., concurring) (finding Oklahoma’s then-existing seat belt gag rule inapplicable on due process grounds and stating: “Statutory barriers to essential proof of . . . one’s complete exoneration (in a civil case) must yield to the Constitution’s superior gauge of fundamental fairness.”).
8. See C.W. Matthews Contracting Co. v. Gover, 428 S.E.2d 796, 798-99 (Ga. 1993).
9. W. Va. Code § 17C-15-49a.
10. 2020 Louisiana Session Laws & Resolutions, Act No. 37, repealing La. Rev. Stat. Ann. § 32:295.1(E).
11. Nabors Wells Svcs., Ltd. v. Romero, 456 S.W.2d 553, 555 (Tex. 2015).