This week is national Child Passenger Safety Week. As part of this campaign, there will be child seat checking events throughout the week across the state of North Carolina. Yesterday morning, CMPD conducted a seatbelt checking station at North Tryon and 11th Streets. 40 tickets were issued for seatbelt violations at the checking station, and 2 were issued for child seat violations.
The NCDOI Child Passenger Safety Week press release states that over 54,000 children under the age of 16 were involved in car accidents in 2013. Last year there were 36 children killed in car accidents in North Carolina, and of those 36, almost 25% were not buckled in a car seat or seatbelt. There were also 73 children injured in car accidents in 2013 in North Carolina, and the press release estimates that 15% of those injuries would have been less severe if the children had been buckled up.
North Carolina statute requires the use of seat belts and appropriate child safety seats. G.S. 20-135.2A requires that “each occupant of a motor vehicle manufactured with seat belts … [has] a seatbelt properly fastened about his or her body at all times when the vehicle is in forward motion on a street or highway in this State.”
The requirement that children passengers sit in child safety seat is contained in a separate statute provision. G.S. 20-137.1 states that
(a) Every driver who is transporting one or more passengers of less than 16 years of age shall have all such passengers properly secured in a child passenger restraint system or seat belt which meets federal standards applicable at the time of its manufacture.
(a1) A child less than eight years of age and less than 80 pounds in weight shall be properly secured in a weight-appropriate child passenger restraint system. In vehicles equipped with an active passenger-side front air bag, if the vehicle has a rear seat, a child less than five years of age and less than 40 pounds in weight shall be properly secured in a rear seat, unless the child restraint system is designed for use with air bags. If no seating position equipped with a lap and shoulder belt to properly secure the weight-appropriate child passenger restraint system is available, a child less than eight years of age and between 40 and 80 pounds may be restrained by a properly fitted lap belt only.
Typically, the violation of a statute enacted to protect the public (such as obeying the speed limit) is considered negligence per se. However, although both of these statutes were enacted to protect the public, they contain provisions which exempt the violation thereof from qualifying as negligence per se. Subsection (d) of G.S. 20-135.2A (the seatbelt statute) states that “[e]vidence of failure to wear a seat belt shall not be admissible in any criminal or civil trial, action, or proceeding except in an action based on a violation of this section or as justification for the stop of a vehicle or detention of a vehicle operator and passengers.” Similarly, subsection (d) of G.S. 20-137.1 (the child safety seat statute) states that “[t]he violation shall not constitute negligence per se or contributory negligence per se” and “[t]he violation shall not be evidence of negligence or contributory negligence.”
Part of the effort of the Child Passenger Safety Week Campaign is making sure that child safety seats are properly installed. Although most people think their child seats are properly installed, by some estimates, 7 out of 10 are improperly installed. Furthermore, 60% of those surveyed in the Safety Kids Worldwide survey of 1000 parents claimed that they had seen other parents bending the rules by not making children buckle up or letting children sit in the front seat, and 25% of those surveyed admitted to not making children wear seatbelts. The misuse of child safety seats raises the question of whether the misuse, as opposed to the nonuse, could be considered contributory negligence should a child be injured in a car accident.
In 1996, the North Carolina Court of Appeals considered this issue in the case Chaney v. Young and concluded that the misuse of a seatbelt is equivalent to the nonuse of a seatbelt, and similarly cannot be used as evidence of contributory negligence. In Chaney, a mother was sitting in the front passenger seat, holding her infant son on her lap, and the seatbelt was strapped around them both. When their car was involved in an accident, the infant son suffered injuries and died.
The court noted that it could find no previous cases dealing with the misuse of seatbelts, so it looked to the cases dealing with the nonuse of seatbelts. These cases were decided before the statutory requirement that car passengers wear seatbelts and that the failure to wear a seatbelt could not be considered contributory negligence. Most notably, the 1968 North Carolina Supreme Court case Miller v. Miller “rejected the seat belt defense as a bar to a claim of actionable negligence and to mitigate damages in an automobile accident” because
It would be a harsh and unsound rule which would deny all recovery to the plaintiff, whose mere failure to buckle his belt in no way contributed to the accident, and exonerate the active tortfeasor but for whose negligence the plaintiff's omission would have been harmless.
The court of appeals then concluded that “improper use of a seat belt under the circumstances of this case is tantamount to nonuse” and “the statutory provisions are applicable.” Therefore, the misuse of a seatbelt, or presumably a child safety seat, would not be considered contributory negligence.
If you have been injured in a car accident, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.