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01/15/02 "See News Release 004 for any concurrences and/or dissents."

SUPREME COURT OF LOUISIANA
No. 01-CC-1182 JESSICA ANN ROUGEAU versus HYUNDAI MOTOR AMERICA, ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

VICTORY, J.* We granted this writ to determine whether evidence of the plaintiff's failure to wear a seat belt is admissible in this automobile product liability case in light of La. R.S. 32:295.1(E). After reviewing the record and the applicable law, we hold that evidence of seat belt non-use may be admissible in a product liability case under certain limited circumstances; however, in this case, such evidence is inadmissible, and we affirm the judgment of the court of appeal. FACTS AND PROCEDURAL HISTORY Plaintiff, Jessica Ann Rougeau ("Rougeau"), was injured in a single vehicle accident on December 25, 1990, when she drove through an intersection and struck a steel utility pole. She alleged that as she was proceeding south on Louisiana Highway 23, her vehicle, suddenly and without warning, veered sharply to the right, causing the vehicle to strike the pole head-on. She alleged that the week earlier, between December 14 and December 21, 1990, the vehicle was in the possession of

Retired Judge Robert L. Lobrano, assigned as Associate Justice Pro Tempore, participating in the decision.

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Dickie's Master Craft for the purpose of making repairs, including a front-end alignment and straightening of the vehicle's front frame, that were associated with a prior automobile accident that had occurred on October 27, 1990. Rougeau sued Hyundai Motor America ("Hyundai") alleging that design defects in her 1988 Hyundai Excel caused her accident and her resultant debilitating injuries.1 She also sued Dickie's Master Craft, alleging that it failed to properly repair the vehicle. She was not wearing her seat belt at the time of the accident. On February 23, 1999, Rougeau moved to strike Hyundai's third party fault and non-use of seat belt affirmative defenses, relying on La. R.S. 32:295.1(E) At oral argument, the trial court denied plaintiff's motion and the court of appeal denied writs, finding that La. R.S. 32:295.1 was not applicable to a product liability action. Rougeau v. Hyundai, 99-1060 (La. App. 4 Cir. 5/11/99). This Court granted plaintiff's writ application and remanded the matter to the Fourth Circuit for briefing, argument and opinion. Rougeau v. Hyundai, 99-1538 (La. 6/16/99), 745 So. 2d 604. Upon remand, plaintiff raised constitutional challenges to La. R.S. 32:295.1(E) not previously raised in the district court. Thus, the Fourth Circuit remanded the case to permit the district court to consider the constitutionality of La. R.S. 32:295.1(E) and its application to the facts of this case. Rougeau v. Hyundai, 99-1060 (La. App. 4 Cir. 10/20/99), 748 So. 2d 39. The district court held a hearing on the constitutionality issues and denied plaintiff's constitutional challenge. The court of appeal granted
Rougeau alleges the following design and failure to warn defects in her original and first amending petition: failure to properly design, engineer, and/or manufacture the aforesaid 1988 Hyundai Excel; failure to equip the aforesaid vehicle with appropriate vibration eliminating devices; failure to provide the vehicle with appropriate and compatibly designed tires; failure to warn of the dangers associated with a known potential defect, or to warn of the dangers associated with improper wheel alignment; such further and other acts or neglect, fault, omission, or commission to be proven at the trial of this cause; and the manufacturing and design and warning defects alleged in her original petition relative to the front end vibration of her car and the braking system. 2
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plaintiff's writ application and reversed the district court judgment, holding that, because plaintiff was not making an allegation of uncrashworthiness or of a defect in the safety restraint system, to allow introduction of seat belt non-use would be in direct contravention of La. R.S. 32:295.1(E). Rougeau v. Hyundai, 00-2737 (La. App. 4 Cir. 3/23/01). We granted Hyundai's writ application to determine if, and under what circumstances, seat belt evidence may be used in a product liability action. Rougeau v. Hyundai, 01-1182 (La.6/22/01). DISCUSSION La. R.S. 32:295.1(E) provides: In any action to recover damages arising out of the ownership, common maintenance, or operation of a motor vehicle, failure to wear a seat belt in violation of this Section shall not be considered evidence of comparative negligence. Failure to wear a safety belt in violation of this Section shall not be admitted to mitigate damages. (Emphasis added.) Courts in Louisiana have split on the issue of whether seat belt evidence is admissible in product liability cases under La. R.S. 32:295.1(E). The Second Circuit has held that seat belt non-use is not admissible in a crashworthiness2 case. Wright v. Louisiana Power & Light Co., 33,202 (La. App. 2 Cir. 10/15/99), 752 So. 2d 919, writ denied, 99-3232 (La. 12/17/99), 752 So. 2d 858. In McElroy v. Allstate Ins. Co., 420 So. 2d 214 (La. App. 4 Cir.), writ denied, 422 So. 2d 165 (La. 1982), relying on pre-statutory jurisprudence providing that seat belt non-use was not admissible to

"Crashworthiness" cases are product liability cases concerning a manufacturer's duty to use reasonable care in designing automobiles. See Larsen v. General Motors Corp., 391 F.2d 495, 503 (8th Cir. 1968). Ordinarily, the injuries occur when, in an accident, occupants collide with the interior of their cars or are thrown from the cars and collide with something else. The cases also are known variously as "second collision" cases and "enhanced injury" cases. They focus on injuries attributable to alleged design defects, rather than initial impacts. Contrary to the holding in Wright, most courts throughout the country have held that seat belt evidence is admissible in crashworthiness cases. See footnote 7, infra. 3

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prove contributory negligence, the Fourth Circuit Court of Appeal held that such evidence could be used to prove that the automobile's design as a whole was not defective. In Fedele v. Tujague, 98-0843 (La. App. 4 Cir. 4/15/98), 717 So. 2d 244, where plaintiff alleged inadequate warnings regarding the airbag system, the Fourth Circuit held that a product liability claim is not a claim "arising out of the ownership, common maintenance, or operation" of a vehicle, such that seat belt evidence was admissible. In the instant case, the Fourth Circuit reasoned that its decision in Fedele was limited to cases in which a plaintiff alleges a defect in the safety restraint system, and that because this plaintiff is alleging defects in the front-end vibration and braking system of her vehicle, her injuries "clearly arose `out of the ownership, common maintenance, or operation'" of a vehicle, making seat evidence inadmissible. Rougeau v. Motor America, supra, Slip Op. at 5.3 In this case, Rougeau alleges that her accident was caused by manufacturing, design, and warning defects of the "front-end vibration of her car," braking system, and tires.4 In her original petition, she had alleged "failure to provide the aforesaid

The case cited by plaintiff for the proposition that seat belt evidence is inadmissible in cases involving the DOTD, and thus is not limited to vehicle-to-vehicle collisions, Keeth v. State through Dept. of Public Safety and Transp., 618 So. 2d 1154 (La. App. 2 Cir. 1993), was actually an ordinary twovehicle accident case, involving the DOTD only because a police officer was a driver involved in the accident.
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Under the LPLA, to prove a design defect, a plaintiff must show:

(1) that the vehicle is defective or unreasonably dangerous because: (a) there existed an alternative design for the vehicle that was capable of preventing the claimant's damage; and (b) the likelihood that the vehicle's design would cause the claimant's damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the vehicle; and (continued...) 4

vehicle with sufficient crashworthiness features," but she withdrew this allegations in an amended petition. She argues that, as this is an action to recover damages arising out of her operation of a motor vehicle, evidence that she was not using her seat belt is prohibited under La. R.S. 32:295.1(E). Defendant argues that this evidence is admissible because a product liability action is not an action "arising out of the ownership, common maintenance, or operation of a motor vehicle," and that, even if it were, such evidence is only inadmissible to prove comparative fault or to mitigate damages. The function of the statutory interpretation and the construction to be given to legislative acts rests with the judicial branch. Touchard v. Williams, 617 So. 2d 885 (La. 1993). The starting point in the interpretation of any statute is the language of the statute itself. Id. "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La. C.C. art. 9. "When the language of a law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law." La. C.C. art. 10. Initially, we must determine whether this product liability action is an action "arising out of the ownership, common maintenance, or operation of a motor vehicle" under the statute. If so, we must then determine whether the statutory prohibition against the introduction of seat belt non-use evidence to prove comparative fault or to

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(...continued) (2) that such defective or unreasonably dangerous condition proximately caused claimant's damages. La. R.S. 9:2800.54 and 9:2800.56. 5

mitigate damages also prohibits its use by Hyundai in this case to disprove causation or design defect. The statutory phrase "arising out of the . . . operation" of a motor vehicle does not require that the defendant "operate" the vehicle; it simply requires that the underlying event arise from the "operation" of a vehicle. See Newman v. Ford Motor Co., 975 S.W.2d. 147, 155 n.26 (Mo. 1998); but see LaHue v. General Motors Corp., 716 F. Supp. 407 (W.D.Mo. 1989) ("arising out of the ownership, operation, or common maintenance" does not include design or construction); Hodges v. Superior Court, 21 Cal. 4th 109, 86 Cal. Rptr. 2d 884 (1999) (under the California uninsured motorist statute, "arising out of the operation or use" of a vehicle does not include product liability actions). Further, there is nothing in the legislative history to indicate that the drafters intended to limit the application of La. R.S. 32:295.1(E) to exclude product liability actions. La. R.S. 32:295.1 was originally enacted in 1985 in response to Federal Motor Vehicle Safety Standard (FMVSS) 208, part of the National Traffic and Motor Vehicle Act, which required states to enact mandatory seat belt use laws.5

In 1966, Congress enacted the National Traffic and Motor Vehicle Safety Act whereby the Department of Transportation was directed to "reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents." Accordingly, the Department of Transportation established the National Highway Transportation Safety Administration (NHTSA) to oversee the enactment and enforcement of the National Traffic and Motor Vehicle Safety Act, 15 U.S.C.

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