Partially for education reasons and partially for enforcement reasons, lawmakers made the existing child restraint law much more specific.
The current Vehicle Code 27360 requires children under 8 to be in the back seat and to be restrained in “an appropriate child passenger restraint system meeting applicable federal motor vehicle safety standards,” a vague phrase that is almost impossible to enforce and also gives parents almost no guidance as to what kind of restraint is appropriate for what ages and sizes.
The new law uses the 2-40-40 rule: children under 2 who weigh less than 40 pounds and are less than 40 inches (3’3″) tall must be in rear-facing car seats. Children from 2 to 8 must be in front-facing car or booster seats; children over 8 can sit buckled in the rear seat if the seat belt fits naturally over the waist and through the center of the chest. “This new law is straight-forward and should help avoid the confusion that existed in the past,” says Sherwin Arzani, a personal injury attorney in Los Angeles, CA.
The government says that correctly-used child safety seats reduce infant car crash fatalities by 71 percent, and toddler deaths by 54 percent.
Safety Seats and Car Crash Damages
As the statistics suggest, safety seat compliance is very high among infants, goes down a bit during the toddler stage, and goes even lower among younger school-age kids. Most infant car seats are rather difficult to install but fairly easy to use. Toddler forward-facing car seats and booster seats are a little harder to use, and children of this age are not always excited about the prospect of riding in “baby seats.” Many parents are tempted to make an exception just this once and allow children to simply buckle their seat belts, and that one-time exception soon becomes almost a habit. By the time their children start school, many parents no longer bother with car safety seats at all.
Murphy’s Law sometimes kicks in, because the one time the children are not properly restrained is sometimes the one time that a drunk driver makes a sudden lane change or someone backs out of the driveway without looking. In many states, not wearing a seat belt or not being properly restrained effectively prevents the victim from obtaining fair compensation. But California only has a limited seat belt defense.
In order to reduce damages because of seat belt or car seat non-use, the insurance company must prove that:
- Duty: There are a few cases that do not give rise to a duty to wear a seat belt, such as backing down the driveway, but on almost every trip, “a reasonably careful person would have used the seat belt”
- Availability: All vehicles have seat belts, but not all vehicles have working seat belts. Additionally, some older cars have seat belts that were designed for comfort instead of safety.
- Failure to Wear: As a general rule, the victim must wear both the lap and shoulder belts. However, there is no case law as to Vehicle Code 23760, a point that is explored below.
- Proper Restraint Would Have Reduced Injury: The insurance company must do more than cite safety statistics or regurgitate slogans like “buckle up for safety.” Instead, the insurance company must present specific evidence that proper seat belt use would have reduced the victim’s injuries. Such evidence nearly always must come from paid experts, and most jurors understand that these “experts” are little more than legal hired guns.
Back to the third point. Many car seats have five-point harnesses, so could an insurance company employ the seat belt defense if the child was in a seat with a three-point harness, or if the child was in a seat that was only partially secured, is the seat belt defense available?
The Bigger Picture
Seat belt non-use does not prevent recovery, at least in most cases. Instead, the seat belt defense is part of the state’s contributory negligence law. Before 1975, California was a pure contributory negligence state that completely barred recovery, even if the tortfeasor (negligent driver) was 99 percent responsible for the car crash. In Li v. Yellow Cab, the California Supreme Court completely reversed course, and ever since then, California has been a pure comparative fault state.
Assume that a 7-year-old child was wearing a seat belt but not in a booster seat. To reduce the family’s damages, the insurance company must first prove that the booster seat would have reduced the victim’s injuries, e.g., a booster seat would have kept the child in place and so there would have been no whiplash. Then, the jury would determine how much to reduce damages based on that non-use.
Causation contributory negligence basically works the same way. If the victim was speeding and the tortfeasor made an unsafe lane change, the jury must divide fault proportionally between the parties, such as 50-50 or whatever. Then, the judge will reduce the victim’s damages in proportion to that fault determination.
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