In our last post, we continued our discussion about the potential impact
of failure to wear a seat belt in personal injury litigation. The discussion
was prompted by a recent government report highlighting the fact that
Tracy Morgan and other passengers involved in New Jersey
car accident last year were not wearing safety belts at the time of the crash.
As we’ve noted, failure to wear a seat belt cannot be used as evidence
of contributory negligence, but it can be admitted for demonstrating failure
to mitigate damages. If it is determined that the plaintiff did fail to
mitigate damages, his or her recovery may not be reduced by more than
one percent of the damages awarded after figuring in any reductions due
to comparative negligence.
Mitigation of damages, then, can only account for a rather small reduction
in overall damages. Still, every little bit counts when it comes to maximizing
damages. It bears repeating, though, that it isn’t always going
to be easy for a defendant to successfully argue for failure to mitigate
damages based on not wearing a seat belt. It really depends on the circumstances
of the case.
Because a plaintiff’s contributory negligence can result in a significant
reduction in damages, it is critical for plaintiffs facing this possibility
to work with an experienced personal injury attorney. Building a strong
case can help a plaintiff to make a strong case for liability and maximize
his or her damages award by reducing the possibility of reductions in damages.