Michael Glenn MADARIS, Respondent,
v.
STATE of Oregon, HIGHWAY DIVISION, Appellant.
84-2151; CA A36939.
Court of Appeals of Oregon.
Argued and Submitted February 14, 1986. Decided August 13, 1986.*1055 Kendall M. Barnes, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
Robert E. Brasch, North Bend, waived appearance for respondent.
Before JOSEPH, C.J., and VAN HOOMISSEN and YOUNG, JJ.
VAN HOOMISSEN, Judge.
This is a negligence action. Defendant appeals the trial court's ruling striking its affirmative defense that plaintiff was negligent in failing to use a seat belt. The dispositive issue is whether failure to use a seat belt may be considered in determining the comparative fault of persons involved in automobile accidents. We affirm.
Plaintiff lost control of his car while driving on Highway 101. It rolled over, and he sustained lacerations on his face and neck, which resulted in permanent scarring. The Highway Division had recently resurfaced the highway. Plaintiff notified the state, see ORS 30.265, and filed a complaint alleging that the Division was negligent in creating a slippery surface and in failing to post warning signs. The Division denied any negligence and asserted several affirmative defenses, including plaintiff's failure to use a seat belt. The trial court granted plaintiff's motion to strike the seat belt defense. The jury found the parties each 50 percent negligent. The Division appeals.
In Robinson v. Lewis, 254 Or. 52, 55-57, 457 P.2d 483 (1969), the Supreme Court held that failure to use a seat belt was not negligence per se and that there is no common-law duty to use a seat belt in ordinary vehicular travel. However, at the time of that decision, Oregon followed the commonlaw rule of contributory negligence. A holding that failure to use a seat belt constituted negligence would have prevented a plaintiff from recovering anything. Oregon is now a comparative negligence jurisdiction. See ORS 18.470 et seq. Thus, a finding of failure to use an available seat belt would not bar recovery; it merely would affect the extent of recovery. Therefore, Robinson is not controlling.
This is a case of first impression in Oregon. Therefore, we examine how other states have resolved similar claims. At the outset, it should be noted that states have dealt with the question of the admissibility of seat belt evidence for two purposes. The first is whether the evidence is admissible to determine whether the plaintiff was contributorily or comparatively negligent and, if so, to what extent. The second is whether the evidence is admissible to determine whether the damages the plaintiff is claiming should be apportioned to exclude any damages that could have been avoided if the plaintiff had been using the seat belt. The second question is not before us.[1]
*1056 Several states have dealt with the admissibility of seat belt evidence statutorily. Of those states only two permit its introduction for purposes of determining the relative fault of the parties.[2] Five states permit its introduction for purposes of apportioning damages,[3] and four states, whose statutes deal only with requirements for restraining children, permit introduction of evidence that the child was not properly restrained in actions involving injuries to the child.[4] Twelve states provide that seat belt evidence is not admissible[5] and twelve states, including Oregon, provide that evidence of failure properly to restrain a child is not admissible in actions for injuries to the child.[6] The remaining states either do not have a statute dealing with the issue[7] or provide only that the evidence is not admissible on the issue of negligence.
Several states have dealt with the issue of admissibility in judicial decisions. Only three states permit introduction of the evidence *1057 on the question of negligence.[8] Seven states permit its introduction for purposes of mitigation.[9] Seventeen states do not permit its introduction at all.[10] The remaining states have left the issues open or have not addressed them.
One of the most common arguments against admitting the evidence is that the failure to use a seat belt is not the cause of the accident itself and, thus, should not affect the plaintiff's recovery.[11] Other reasons for excluding the evidence on the issue of negligence include a concern that a plaintiff could be barred from any recovery in contributory negligence jurisdictions;[12] a concern that a plaintiff could be barred from recovery, even in comparative negligence jurisdictions, if the jury were unable to separate the damages;[13] and the recognition that, because not all cars are required to have seat belts, a plaintiff could be penalized for driving a car so equipped.[14]
The states that permit introduction of evidence of failure to use a seat belt have answered many of the concerns expressed by the courts excluding that evidence. However, most of those states have limited the use of the evidence to the issue of mitigation of damages,[15] in the absence of some showing that the failure to use a seat belt contributed, in some way, to the cause of the accident. We agree with those jurisdictions. There was no such showing in this case. The trial court did not err in striking defendant's affirmative defense.
Affirmed.
NOTES
[1] In its brief, defendant argues that both issues are before us. However, defendant's affirmative defense stated, in part:
"Plaintiff's negligence was a cause in fact and a substantial factor in causing his alleged injuries in the following particulars: " * * *
"9. Failing to wear an available seat belt." The only issue raised by that allegation was whether plaintiff's failure to use the seat belt constituted negligence. There was no contention that defendant should be permitted to use plaintiff's failure to wear a seat belt to apportion or mitigate his damages. Therefore, we do not reach that issue.
[2] See Cal.Veh.Code § 27315(i); Mich.Comp. Laws § 257.710 d.
[3] See Cal.Veh.Code § 27315(i); La.Rev.Stat.Ann. tit. 32, § 295.1; Mich.Comp.Laws § 257.710 d; Mo.Rev.Stat. § 307.178(3); N.Y.Veh. & Traf. Laws § 1229-C.
[4] See Mont.Code Ann § 61-9-422; N.D.Cent. Code § 39-21-41.2(3); W.Va.Code § 17c-15-46; Wis.Stat. § 347.48(d).
[5] See Conn.Gen.Stat. § 14-100a(c)(4); Ill.Rev. Stat. ch. 95½ § 12-603.1(c); Ind.Code § 9-9-14-1; Me.Rev.Stat.Ann. tit. 29, § 1368-A; Mass. Gen.Laws Ann. ch. 90, § 70BB; N.J.Rev.Stat. § 39:3-76.2a; N.M.Stat.Ann. § 66-7-373(B); N.C.Gen.Stat. § 20-135.2A; Okla.Stat. tit. 47, § 12-420; Tex.Civ.Stat. art. 6701d, § 107c; Va. Code § 46.1-309.1(b); Wash.Laws 1986, ch. 152, H.B. 1182. The New Jersey and North Carolina statutes provide that they do not change the existing laws, rules or procedures with respect to civil trials. However, as indicated below, caselaw in those states forbids the use of evidence of failure to wear a seat belt for purposes of mitigating damages.
[6] See Ala.Code § 32-5-222; Ariz.Rev.Stat.Ann. § 28-907; Ark.Stat.Ann. § 75-2606; Del.Code Ann. tit. 21, § 4199 C; Fla.Stat. § 316.613(3); Idaho Code § 49-763(3); Md.Transp.Code Ann. § 22-412.2; ORS 811.210; Pa.Stat.Ann. tit. 75, § 4585; R.I.Gen.Laws § 31-22-22; S.C.Code Ann § 56-5-6460; S.D. Codified Laws Ann 32-27-4. The Alabama statute provides that it does not create a duty or standard of care not otherwise recognized in the state; however, as indicated below, caselaw in Alabama forbids the use of evidence of failure to wear a seat belt for purposes of mitigating damages.
ORS 811.210 provides, in part:
"(1) A person commits the offense of endangering a child passenger if:
"(a) The person operates a motor vehicle on the highways of this state and any passenger younger than 16 years of age is not secured with a child safety system, safety belt or safety harness as required by subsection (2) of the section; or
"(b) The person is a licensed driver 21 years of age or older accompanying a person 15 years of age who is operating a motor vehicle on the highways of this state under a permit issued pursuant to OR 807.280 and:
"(A) The person 15 years of age who is operating the motor vehicle is not secured with a safety belt or safety harness that meets requirements under ORS 815.055; or
"(B) Any passenger younger than 16 years of age is not secured with a child safety system, safety belt or safety harness as required by subsection (2) of this section; or
"(c) The person is younger than 16 years of age and operates a motor vehicle on the highways of this state under an emergency driver permit issued pursuant to ORS 807.220 or under a special student driver permit issued pursuant to ORS 807.230 and:
"(A) The driver is not secured with a safety belt or safety harness that meets requirements under ORS 815.055; or
"(B) Any passenger younger than 16 years of age is not secured with a child safety system, safety belt or safety harness as required by subsection (2) of this section. " * * *
"(3) A violation of this section shall not be considered under any circumstances to be negligence nor shall evidence of such a violation be admissible in any civil action."
[7] Hawaii, Iowa, Kentucky, Minnesota, Nebraska, Ohio, Tennessee and Utah have recently enacted mandatory seat belt statutes. We have been unable to determine whether those statutes also establish rules for admitting evidence of failure to use a seat belt in civil actions.
[8] See Insurance Co. of North America v. Pasakarnis, 451 So. 2d 447 (Fla.1984); Curry v. Moser, 89 App.Div.2d 1, 454 N.Y.S.2d 311 (1982); Smith v. Goodyear Tire and Rubber Co., 600 F. Supp. 1561 (D.Vt.1985) (applying Vermont law).
[9] See Harlan v. Curbo, 250 Ark. 610, 466 S.W.2d 459 (1971) (by implication); Truman v. Vargas, 275 Cal. App. 2d 976, 80 Cal. Rptr. 373 (1969); Insurance Co. of North America v. Pasakarnis, supra; Melia v. Ford Motor Co., 534 F.2d 795 (8th Cir.1976) (applying Missouri law); Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164 (1974); Smith v. Goodyear Tire and Rubber Co., supra; Foley v. City of West Allis, 113 Wis. 2d 475, 335 N.W.2d 824 (1983). Connecticut and Virginia have caselaw which would have permitted the admission of such evidence for purposes of mitigation; however, the rule in those states has been changed by statute. See Conn.Gen.Stat. § 14-100a(c)(4); Va.Code § 46.1-309.1(b).
[10] See Britton v. Doehring, 286 Ala. 498, 242 So. 2d 666 (1970); Nash v. Kamrath, 21 Ariz. App. 530, 521 P.2d 161 (1974); Fischer v. Moore, 183 Colo. 392, 517 P.2d 458 (1973); Lipscomb v. Diamiani, 226 A.2d 914 (Del.1967); Hansen v. Howard O. Miller, Inc., 93 Idaho 314, 460 P.2d 739 (1969); Clarkson v. Wright, 108 Ill. 2d 129, 90 Ill. Dec. 950, 483 N.E.2d 268 (1985); State v. Ingram, 427 N.E.2d 444 (Ind.1981); Taplin v. Clark, 6 Kan. App. 2d 66, 626 P.2d 1198 (1981); D.W. Boutwell Butane Co. v. Smith, 244 So. 2d 11 (Miss.1971); Polyard v. Terry, 148 N.J.Super. 202, 372 A.2d 378, reversed on other grounds, 160 N.J.Super. 497, 390 A.2d 653, aff'd, 79 N.J. 547 401 A.2d 532 (1977); Selgado v. Commercial Warehouse Co., 88 N.M. 579, 544 P.2d 719 (App. 1975); Miller v. Miller, 273 N.C. 228, 160 S.E.2d 65 (1969) (but may admit the evidence in a future case if a connection is shown between failure to use a seat belt and aggravation of injuries); Roberts v. Bohn, 26 Ohio App. 2d 50, 269 N.E.2d 53, rev'd on other grounds, 29 Ohio St. 2d 99, 279 N.E.2d 878 (1971); Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Okla.1976); Stallcup v. Taylor, 62 Tenn.App. 407, 463 S.W.2d 416 (1970) (based on express statutory rule); Carnation Co. v. Wong, 516 S.W.2d 116 (Tex. 1974); Amend v. Bell, 89 Wash.2d 124, 570 P.2d 138 (1977).
[11] See, e.g., Clarkson v. Wright, supra; Lawrence v. Westchester Fire Insurance Co., 213 So. 2d 784 (La.App.1968) (rule changed by statute); Cierpisz v. Singleton, 247 Md. 215, 230 A.2d 629 (1967); Placek v. City of Sterling Heights, 52 Mich.App. 619, 217 N.W.2d 900 (1974) (rule changed by statute); Miller v. Miller, supra n. 10; Carnation Co. v. Wong, supra, n. 10.
[12] See Miller v. Miller, supra, 273 N.C. at 237, 160 S.E.2d 65; Roberts v. Bohn, supra, 26 Ohio App.2d at 56, 269 N.E.2d 53.
[13] See Lipscomb v. Diamiani, supra, 266 A.2d at 917.
[14] See Lipscomb v. Diamiani, supra, 266 A.2d at 917.
[15] See Insurance Co. of North America v. Pasakarnis, supra, 451 So.2d at 453-54; Foley v. City of West Allis, supra, 113 Wis.2d at 480, 335 N.W.2d 824.