Is Failure to Use a Child Seat Contributory Negligence?

A lawyer in Virginia emailed to ask me if failure to wear a child seat is contributory negligence in Maryland?

Setting aside for a moment the abject irresponsibility of this mother who failed to ensure the safety of her child, the answer is no.

The Maryland Transportation statute that requires the use of child safety seats specifically states that a violation of the statute, while a crime, is “not contributory negligence and may not be admitted as evidence in the trial of any civil action.” Maryland Transportation Code § 22-412.2(i).

Parenthetically, the same logic holds true with the failure to wear a seat belt in Maryland. While it may be a crime, a “party, witness, or counsel may not make reference to a seat belt during a trial of a civil action that involves property damage, personal injury, or death if the damage, injury, or death is not related to the design, manufacture, installation, supplying, or repair of a seat belt.” Maryland Transportation Code Annotated. § 22-412.3. In summary, the failure of a personal injury plaintiff to use a seat belt or a child seat is not admissible at trial, although it is a misdemeanor crime (I feel compelled to continue to repeat this).

With respect to the admissiblity of the use of seat belts in Maryland, this sword cuts both ways in that personal injury lawyers often want to present evidence that the lawyer’s client was wearing a seat belt to underscore that the injury victim did everything that he or she could to prevent serious injury. But this testimony is also not permissionble under § 22-412.3.

Nationally, there is a split of authority as to whether, under principles of mitigation of damages or as contributory or comparative negligence, a injury victim’s failure to wear a seatbelt can justify a reduction in the amount of damages that he or she receives. But even in jurisdictions that allow such evidence, a reduction is usually justified only if the Defendant’s attorney can provide medical evidence to a reasonable degree of medical certainty that Plaintiff’s injuries would have been eliminated or reduced had Plaintiff been wearing a seatbelt when the accident occurred. See DiPirro v. U.S., 181 F.R.D. 221 (W.D.N.Y. 1998).

Here is a quick summary of how some other jurisdictions have treated this issue:


The jury is allowed to consider nonuse of a seatbelt in determining damages in Arizona. Garcia v. GMC, 195 Ariz. 510 (1999)

Evidence of non use of a seat belt is not admissible for purposes of diminishing damages award in wrongful death action brought by passenger’s parents and estate. O.C.G.A. § 40-8-76.1(d). Whitley v. U.S., 170 F.3d 1061 (11th Cir. 1999) (evidence that passenger in a wrongful death action was not wearing seat belt at time of accident was not admissible for purposes of the jury’s consideration of damages).


Jury cannot consider consider non use of seat belt. Quick v. Craine, 111 Idaho 759, 727 P.2d 1187, 1208-09 (1986)


Evidence Plaintiff did not use seat belt is not admissible. Welsh v. Anderson, 228 Neb. 79, 421 N.W.2d 426, 429 (1988).

North Carolina

Hagwood v. Odom, 88 N.C. App. 513 (1988) (affirmed trial court’s order in limine prohibiting defendant’s attorney in a truck accident case from informing the jury that one of the occupants was not wearing a seat belt).


There has been long standing common law and later statutory support for preventing the introduction evidence that the injury victim did not use a seat belt. These statutes were repealed in 2003. Accordingly, there is no longer any statutory impediment for a defense attorney presenting evidence at trial that the Plaintiff was not wearing a seat belt.

  • noel spaid

    Dear Mr. Miller, this article was written in 2006 and I am asking if this is also the current law- that seat belts cannot be mentioned in a personal injury suit in Maryland (unless manufacturing defect, design) for contributory negligence, negligence, etc? The statute is ambiuguous in that is says that non-wearing can be used for negligence, contributory neg,
    ALso statute appears to exempt persons over 16 from wearing seat belts if they are in the back seat – is that also true?

    really appreciate a response and thank you in advance. noel spaid

  • Ron Miller

    It is current law.

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