Published July 12, 2006

BURLINGTON — When she filed suit in federal court in February, Julie Jensen of Irving, Texas, asked the court to come to one of two legal conclusions.

One was that she and her son bore no liability for the deaths of Norman Woolard and Philip Leno, who were passengers in the car Charles Meyer drove into the ledges along Willoughby Lake in August 2004.  Alternatively, her complaint argued, her son’s liability “is offset by the comparative/contributory negligence of Woolard and Leno.”

Elsewhere, the complaint notes that neither of the passengers was wearing a seat belt.

That has generated the first substantive legal dispute in what promises to be a long and argumentative road to trial.

Citing a state law known to lawyers as “the safety belt gag statute,” lawyers for the families of the two victims have filed motions to strike seat belt use from the evidence in the case.

In virtually identical motions, Duncan Kilmartin for the Leno family and Vince Illuzzi for the Woolard family cite a section of Vermont’s seat belt law.

“Vermont law forbids the use of seatbelt evidence in any civil action,” they argue.  And both quote the following section of the law:  “Failure to wear a safety belt in violation of this section shall not constitute negligence or contributory negligence in any civil proceeding or criminal action…”

The law was passed to protect otherwise blameless accident victims from being held partially responsible for their own suffering, because they didn’t fasten their seat belts.

In opposing the motion to strike, Ms. Jensen’s attorney, Marc Heath, acknowledges this legislative purpose.  But, he argues, there are other reasons a jury should hear evidence about seat belts.

Ms. Jensen and her son, he writes, “intend to use the issue of safety belt use to defend accusations of recklessness on the part of Charles Meyer.  The Counterclaimants portray the behavior of Charles Meyer as reckless to the point of willful malice.  To defend against this claim, counsel anticipate that they will introduce evidence that Charles Meyer insisted that safety belts be worn.

“While Woolard drove Plaintiff Jensen’s car dangerously, aggressively, and at extremely high speed,” Mr. Heath continues, “Meyer, age 14, sat helplessly, with safety belt fastened, in the passenger seat.  When Woolard and Meyer switched seats, Meyer cautiously buckled up, which Woolard failed to do.

“It would be unfair,” the attorney concludes, “to permit Counterclaimants to portray Meyer as reckless, while at the same time prevent him from offering evidence showing he was in fact very conscientious about the use of a potentially life saving safety measure.”

Seat belt evidence might also speak to the question of how fast Charles Meyer was driving when he hit the ledges, Mr. Heath argues.

The lawyers for both families cite a report that the car was seen headed south on Route 5A “at a high rate of speed, estimated at 100 mph,” moments before the accident.

“Charles denies this,” Mr. Heath writes.

The evidence may include expert testimony, based in part on the damage the impact did to the car, he adds.  That calculation depends on the weight of the vehicle and its occupants, Mr. Heath says.  And, in turn, “whether the occupants are belted in or not can have an impact on the induced damage to the vehicle.”

Arguments like this one, about what a jury would be permitted to hear, have to be settled by the court before the case can go to trial.

Lawyers on both sides estimate that the case will come to trial in 2007, if it comes to trial at all.

“Most cases settle,” Mr. Illuzzi said Tuesday.  Barring an out-of-court settlement, he said, the trial “would probably be next spring — but who knows?”

“Federal court moves fairly quickly,” Mr. Heath said Monday.  “It’s possible it could go to trial in 12 months — but that’s just a guess.”

Also unsettled is whether the case is heading for one trial, or two.

Mr. Kilmartin wants his clients’ case tried separately from Mr. Illuzzi’s.

“I anticipate they will be tried together,” Mr. Heath said.

“I think they’re going to be separate,” said Mr. Illuzzi.