Supreme Court of Texas.
NABORS WELL SERVICES, LTD. f/k/a Pool Company Texas, Ltd. and Lauro Bernal Garcia, Petitioners,
Asuncion ROMERO, Individually and as Representative of the Estate of Aydee Romero, Deceased, and as Next Friend of Edgar Romero and Saul Romero; Esperanza Soto, Individually and as Next Friend of Esperanza Soto, Guadalupe Soto, Martin Soto, Respondents
Argued October 9, 2014
OPINION DELIVERED: February 13, 2015
*554 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE EIGHTH DISTRICT OF TEXAS
Attorneys & Firms
Mauro Fernando Ruiz, Ruiz Law Firm, McAllen, TX, for Respondent Martin Soto.
Jeffrey R. Vaughan, Clark, Love & Hutson, Houston, TX, for Respondent Asuncion Romero.
W. Bruce Williams, Cotton Bledsoe Tighe & Dawson PC, Midland, TX, for Petitioner Nabors Well Services, Ltd.
John Blaise Gsanger, The Edwards Law Firm, Corpus Christi, TX, for Amicus Curiae Texas Trial Lawyers Association.
Scott Alan James, Shook Hardy & Bacon LLP, Houston, TX, for Amicus Curiae Alliance of Automobile Manufacturers.
Ruth G. Malinas, Plunkett & Griesenbeck, Inc., San Antonio, TX, for Amicus Curiae Texas Association of Defense Counsel.
*555 Justice Brown delivered the opinion of the Court.
For more than forty years evidence of a plaintiff’s failure to use a seat belt has been inadmissible in car-accident cases. That rule, which this Court first announced in 1974, offered plaintiffs safe harbor from the harshness of an all-or-nothing scheme that barred recovery for even the slightest contributory negligence. Moreover, the Court reasoned that although a plaintiff’s failure to use a seat belt may exacerbate his injuries, it cannot cause a car accident, and therefore should not affect a plaintiff’s recovery.
In 1985 the Legislature jumped in to statutorily prohibit evidence of use or nonuse of seat belts in all civil cases. It repealed that law in 2003, leaving our rule to again stand alone. But much has changed in the past four decades. The Legislature has overhauled Texas’s system for apportioning fault in negligence cases—a plaintiff’s negligence can now be apportioned alongside a defendant’s without entirely barring the plaintiff’s recovery. And unlike in 1974, seat belts are now required by law and have become an unquestioned part of daily life for the vast majority of drivers and passengers.
These changes have rendered our prohibition on seat-belt evidence an anachronism. The rule may have been appropriate in its time, but today it is a vestige of a bygone legal system and an oddity in light of modern societal norms. Today we overrule it and hold that relevant evidence of use or nonuse of seat belts is admissible for the purpose of apportioning responsibility in civil lawsuits.
This case arises from a collision between a Nabors Well Services, Ltd. transport truck and a Chevrolet Suburban with eight occupants—three adults and five children. Both vehicles were traveling southbound on two-lane U.S. Highway 285 in rural West Texas. As the transport truck slowed to make a left turn into a Nabors facility, Martin Soto, the Suburban’s driver, pulled into the opposing traffic lane and attempted to pass the transport truck. As Soto passed, the transport truck began its left turn and clipped the Suburban, which careened off the highway and rolled multiple times. The evidence is disputed as to whether the transport truck used a turn signal and for how long and whether Soto could have passed the transport truck within the legal passing zone.
Aydee Romero, an adult passenger, was killed in the accident. Martin, his wife Esperanza Soto, and all five children—Esperanza, Guadalupe, and Marielena Soto, and Edgar and Saul Romero—suffered injuries. There is conflicting evidence as to which occupants were belted and which were ejected from the Suburban. A responding state trooper wrote in his report that all occupants were unrestrained except Marielena and the elder Esperanza. But both of them, along with the younger Esperanza, testified they did not use seat belts, while Martin and Guadalupe testified they wore theirs. Guadalupe testified all occupants were ejected except for Martin and Edgar, but Edgar testified he was ejected. And an EMS report stated one of the family members reported at the scene that seven of eight occupants were ejected.
The Soto and Romero families sued Nabors and its truck driver. At trial, Nabors sought to offer expert testimony from a biomechanical engineer, James Funk, Ph.D., that seven of the eight Suburban occupants were unbelted (all except Martin, the driver), that five of those seven were ejected from the vehicle, and that the failure to use seat belts caused the passengers’ injuries and the one fatality. Nabors also *556 hoped to introduce evidence of a citation issued to Soto for driving without properly restraining the child passengers as well as testimony from the plaintiffs as to who was unbelted and who was ejected.
Following our precedent in Robinson. The jury found Nabors 51% and Soto 49% responsible for the accident, and awarded the Soto and Romero families collectively just over $2.3 million.
The court of appeals affirmed the trial court’s judgment based solely on the Carnation in light of the Legislature’s repeal of its statutory ban on seat-belt evidence.
Texas’s earliest cases on the admissibility of seat-belt evidence first appeared in the late 1960s. They culminated in this Court’s 1974 decision in Parrott v. Garcia, 436 S.W.2d 897, 901 (Tex.1969).
The first court of appeals to address the issue was quick to point out that no statute required seat-belt use and no Texas authority supported a common-law duty to use seat belts. See Quinius v. Estrada, 448 S.W.2d 552, 554 (Tex.Civ.App.–Austin 1969, writ ref’d n.r.e.). By the time this Court weighed in, all courts of appeals that reached the issue had either decided a failure to use seat belts was not actionable negligence or left the issue undecided. None supported admitting seat-belt evidence with the aim of reducing or negating a plaintiff’s recovery.
This Court first encountered the issue in Id.
This Court reversed both lower courts and restored Kerby’s recovery in full, reasoning that “[c]ontributory negligence must have the causal connection with the accident that but for the conduct the accident would not have happened.” Id. In so doing, the Court declared seat-belt evidence incompatible with the only two legal doctrines—contributory negligence and failure to mitigate damages—that arguably could accommodate it.
A year later in Id.
About a decade after Carnation was mothballed—not stricken from the books but preempted by a stricter statutory prohibition.
Texas’s seat-belt law has expanded in its applicability over the years. In 2004, when the car accident at issue in this case occurred, Texas law required a driver to properly restrain most children riding anywhere in the vehicle. Act of June 14, 2001, 77th Leg., R.S., ch. 910, § 2, 2001 Tex. Gen. Laws 1821, 1821–22 (amended 2005) (current version at 545.413(g)). The Legislature did not replace the prohibition with any language affirming the use of seat-belt evidence—it simply struck the provision altogether.
Nabors argues legislative history reveals the purpose of the repeal was to begin allowing seat-belt evidence in civil trials. The families argue that if the Legislature intended that, it could have enacted language favoring admissibility or overruling Carnation about the assignment of responsibility in negligence lawsuits.
The evolution of Texas’s system for attributing fault in negligence cases over the past four decades is well documented. At the time TEX. CIV. PRAC. & REM. CODE §§ 33.001–.004). Section 33.003(a) now provides:
The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person’s causing or contributing to cause in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these:
(1) each claimant;
(2) each defendant;
(3) each settling person; and
(4) each responsible third party who has been designated under Section 33.004.
Gone is the “harsh system of absolute victory or total defeat.” See Kerby is still viable in light of the Legislature’s current mandate. In other words, can a plaintiff’s failure to use a seat belt, though it did not cause the car accident, limit his recovery if it can be shown that the failure to use a seat belt caused or contributed to cause his injuries?
This Court has never absolved plaintiffs of a duty to use seat belts, nor has it held seat-belt evidence irrelevant. Rather, in Carnation, 516 S.W.2d at 116 (“We reject those cases barring completely plaintiff’s recovery based on contributory negligence; our courts have not followed such an approach.”) (citations omitted). So under the existing legal framework, there simply was no vehicle to logically or fairly admit seat-belt evidence.
The holdings in Dugger, 408 S.W.3d at 827.
The systematic elimination of outmoded ameliorative doctrines has led to speculation about the continued viability of the “sharp distinction” we recognized in Carnation as an example of how “[s]ome courts used to forgive a plaintiff of pre-accident negligence that merely aggravated the injury.” RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIAB. § 3 Reporter’s Note, cmt. b at 39 (2000) (emphasis in original). Of such decisions, the Restatement observes:
They gave various rationales for this rule, including that the legislature had not mandated the conduct, that counting the conduct would constitute a windfall for the defendant, and that a plaintiff should not have to foresee and guard against the possibility of a defendant’s negligence. None of these rationales provides an adequate account for the rule, because each of them could be applied with equal force to ordinary contributory negligence.... [T]he most satisfactory explanation is that courts were hostile to the harsh consequences of contributory negligence as an absolute bar to recovery and developed the rule as an ameliorative device. Comparative responsibility eviscerates that rationale.
Id. at 39–40 (internal citations omitted).
Our precedents holding that a plaintiff’s injury-causing negligence cannot reduce a plaintiff’s recovery cannot stand if today’s proportionate-responsibility statute contradicts those precedents. And we hold it does. We recently observed in TEX. CIV. PRAC. & REM. CODE § 33.003(a). And “percentage of responsibility” is defined as:
that percentage, stated in whole numbers, attributed by the trier of fact to each claimant, each defendant, each settling person, or each responsible third party with respect to causing or contributing to cause in any way, whether by negligent act or omission, by any defective or unreasonably dangerous product, *562 by other conduct or activity violative of the applicable legal standard, or by any combination of the foregoing, the personal injury, property damage, death, or any other harm for which recovery of damages is sought.
Id. § 33.011(4) (emphasis added).
Section 33.011(4) directs the fact-finder to assign responsibility to plaintiffs who cause or contribute to cause “in any way” personal injury or death. Similarly, United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) (“[T]he word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’ ”) (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 97 (1976)). We cannot maintain a “sharp distinction” between two categories of evidence when the Legislature has instructed fact-finders to consider conduct that was “in any way” a cause of the plaintiff’s damages.
Furthermore, D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002)). Though the facts of the occurrence, such as who caused the car accident, shape the narrative of the case and rightly contribute to the fact-finder’s responsibility apportionment, the proportionate-responsibility statute specifies the apportionment should ultimately be based on responsibility for the damages suffered, in this case personal injury and death. Accordingly, the question is not simply who caused the car accident, but who caused the plaintiff’s injuries.
We believe most reasonable people considering who caused a plaintiff’s injuries in a car accident would not lean on a logical distinction between occurrence-causing and injury-causing conduct. Rather, most would say a plaintiff who breaks the law or otherwise acts negligently by not using a seat belt is at least partially responsible for the harm that befalls him. This is true even if he did not cause the car accident, provided it can be shown the failure to buckle up exacerbated his injuries. It is this common-sense approach, and not a philosophical abstraction articulated over forty years ago, that our proportionate-responsibility statute captures. We do not suggest there is no logical difference between occurrence-causing and injury-causing conduct. The sharpest rhetorical argument against admitting seat-belt evidence has been that failure to use a seat belt cannot cause an accident, and it is those who cause accidents who should pay. But it is equally true that failure to use a seat belt will sometimes exacerbate a plaintiff’s injuries or lead to his death. Accordingly, the conclusion is unavoidable that failure to use a seat belt is one way in which a plaintiff can “cause[ ] or contribut[e] *563 to cause in any way” his own “personal injuries” or “death.” 33.011(4). The proportionate-responsibility statute calls for an apportionment of fault for “personal injuries” and “death” rather than for the underlying occurrence that introduced a sequence of events in which the end result is potentially influenced by whether the plaintiff acted unreasonably or even broke the law.
Given the statute’s plain language, and without any statutory language preserving the distinction set out in Carnation to effect today’s decision, we do not reject them as mistaken jurisprudence, but as once-prudent measures that have outlived their usefulness.
Today’s holding opens the door to a category of evidence that has never been part of our negligence cases, but we need not lay down a treatise on how and when such evidence should be admitted. Seat-belt evidence has been unique only in that it has been categorically prohibited in negligence cases. With that prohibition lifted, our rules of evidence include everything necessary to handle the admissibility of seat-belt evidence. As with any evidence, seat-belt evidence is admissible only if it is relevant. See 402. And relevance is the trial court’s province. See id.(a). The defendant can establish the relevance of seat-belt nonuse only with evidence that nonuse caused or contributed to cause the plaintiff’s injuries. And the trial court should first consider this evidence, for the purpose of making its relevance determination, outside the presence of the jury. See id.(c). Otherwise, the jury will have already heard evidence of nonuse before such evidence has been deemed relevant. Expert testimony will often be required to establish relevance, but we decline to say it will be required in all cases. And, of course, like any other evidence, even relevant seat-belt evidence is subject to objection and exclusion under Rule 403.
Our holding should likewise not introduce any confusion into how to construct a jury charge when seat-belt evidence or any other pre-occurrence, injury-causing conduct is admitted. Under Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201, 204 (1959). The jury may further apportion third-party responsibility to the person upon whom the law places the burden to properly restrain the child.
There also should be no confusion on the relationship of this holding with the existing failure-to-mitigate-damages doctrine. A plaintiff’s failure to mitigate his damages traditionally occurs post-occurrence and, as noted in 503 S.W.2d at 528 (noting “conceptual difficulty of applying the mitigation[-]of[-]damages concept to Plaintiff’s conduct antedating the negligence of the Defendant”). That distinction remains. A plaintiff’s post-occurrence failure to mitigate his damages operates as a reduction of his damages award and is not considered in the responsibility apportionment. It is only the plaintiff’s pre-occurrence, injury-causing conduct that should be considered in the responsibility apportionment.
Lastly, there is no need, as some have suggested, to deviate from a single apportionment question. See Bagley, supra, at 736–37 (suggesting two fault analyses). A jury can consider a plaintiff’s pre-occurrence, injury-causing conduct alongside his and other persons’ occurrence-causing conduct. In crashworthiness cases, for instance, a product defect often “causes or enhances injuries but does not cause the accident”; nonetheless, “[t]he jury is asked to apportion responsibility between all whose actions or products combined to cause the entirety of the plaintiff’s injuries.” Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 428 (Tex.1984). This exercise may at times prove challenging for jurors, but no more so than what they already face in distilling the multiple factors they must consider in one responsibility allocation. There is nothing about injury-causing conduct that renders it incompatible with being considered alongside occurrence-causing conduct in one responsibility apportionment for the harm suffered by the plaintiff.
Today’s holding is rooted in statutory interpretation and the unavoidable conclusion that our proportionate-responsibility statute both allows and requires fact-finders to consider pre-occurrence, injury-causing conduct. But the arguments against allowing seat-belt evidence, including some urged by the families in this case, transcend statutory interpretation and touch on themes of general fairness and fundamental principles of tort law. We respond to them because we believe our holding is not merely correct statutory interpretation; it also promotes sound public policy.
Attitudes toward use of seat belts have evolved drastically since the early 1970s. When we decided The Final Piece of the Seat Belt Evidence Puzzle, 36 HOUS. L. REV. 1371, 1378 n.43 (1999). But in the intervening time since seat-belt use became the law, that number has jumped to 84%. NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., DEP’T OF TRANSP., DOT HS 811 651, TRAFFIC SAFETY FACTS, CRASH STATS—SEAT BELT USE IN 2011 1–2 (Aug. 2012). And Texas boasts an even higher usage rate of 93.7%. Id.
A wealth of research has established that seat belts reduce injuries and save lives. According to the National Highway Traffic Safety Administration, seat belts prevent more than 11,000 deaths each year. NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., DEP’T OF TRANSP., DOT HS 810 649, PRIMARY ENFORCEMENT SAVES LIVES—THE CASE FOR UPGRADING SECONDARY SAFETY BELT LAWS 25 (Sept. 2006). And while ejection is “one of the most injurious events that can happen to a person during a crash,” seat belts are up to 99% effective at preventing “total ejections.” Id. The percentage of seat-belt nonuse in fatal accidents is alarming. For example, in 2012, between 48% and 54% of people killed in car accidents were not using seat belts. NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., DEP’T OF TRANSP., DOT HS 812 070, TRAFFIC SAFETY FACTS, 2012 DATA—PASSENGER VEHICLES 4 (Sept. 2014). But we will not belabor the point with statistics. To do so suggests there is still legitimate debate over the propriety of seat-belt use. That debate has long ended. Seat-belt laws are now in effect in every state, and the vast majority of Texans buckle up on a regular basis. Yet until today a contradictory legal system punished seat-belt nonuse with criminal citations while allowing plaintiffs in civil lawsuits to benefit from juries’ ignorance of their misconduct.
Perhaps the most common argument against seat-belt evidence is one we have already addressed—that the failure to use a seat belt does not cause an accident, and it is those who cause accidents who should pay. But as we have pointed out, our legal system now takes a broader view toward assigning responsibility for a plaintiff’s damages. So although this argument points out a logical distinction between occurrence-causing and injury-causing conduct, it engages a debate the Legislature has settled—the distinction does not immunize a plaintiff from his own injury-causing conduct.
Some argue that admitting seat-belt evidence violates the principle that a plaintiff is not required to anticipate the negligent or unlawful conduct of another. See Law v. Superior Court, 157 Ariz. 147, 755 P.2d 1135, 1141 (1988). Indeed, by enacting seat-belt laws, the Legislature has required motorists to anticipate the negligence of others.
Finally, some insist that admitting seat-belt evidence provides a windfall for defendants who will be relieved of paying the full damages caused by their negligence. But the reverse is equally arguable—a plaintiff whose injuries were exacerbated by failure to use a seat belt benefits from the jury’s ignorance of his own conduct. The result is certainly an oddity: the unbelted plaintiff is likely to be punished with a criminal citation carrying a monetary fine from the police officer investigating the accident, but in the civil courtroom his illegal conduct will be rewarded by monetary compensation. There are no windfalls under the rule we announce today. Even when trial courts properly admit seat-belt evidence, defendants will still be held liable for the damages they caused, but not the injuries the plaintiff caused by not using a seat belt.
The families argue we need not reconsider the seat-belt evidence prohibition in Robinson grounds, Nabors has no evidence the plaintiffs’ failure to use seat belts caused their injuries or the lone fatality. Nabors argues the jury could have inferred injury causation from other evidence even without the excluded expert testimony. Specifically, Nabors suggests ejection itself gives rise to a reasonable inference that the occupant was unbelted, and that Dr. Funk’s “biomechanical testimony” alone would have established the plaintiffs “would not have been flung around inside—nor ejected from—the Suburban if they had been wearing their seat belts.”
The trial court relied on our precedent in prohibiting seat-belt evidence but insisted it would have struck Dr. Funk’s injury-causation testimony on Robinson issues.
We decline to consider whether the trial court acted within its discretion in limiting Dr. Funk’s testimony or whether Nabors had sufficient injury-causation evidence without Dr. Funk’s full testimony. Those issues were not considered by the court of appeals and were not fully briefed to this Court. Instead, this appeal has turned on whether Carnation prohibition no longer in place and that the parties will benefit from the opportunity to narrow their focus at the court of appeals to these remaining issues.
* * *
We hold relevant evidence of use or nonuse of seat belts, and relevant evidence of a plaintiff’s pre-occurrence, injury-causing conduct generally, is admissible for the purpose of apportioning responsibility under our proportionate-responsibility *567 statute, provided that the plaintiff’s conduct caused or was a cause of his damages. Accordingly, we reverse the court of appeals’ judgment and remand this case to the court of appeals for further proceedings consistent with this opinion.