Thibeault v. Campbell

Johnson, J.,

dissenting: I dissent from the majority’s holding that evidence of a party’s failure to use a seat belt is inadmissible to show the party’s comparative negligence. In particular, I disagree with the *705majority’s conclusion that automobile accidents are insufficiently foreseeable to impose a duty on drivers and passengers to take reasonable steps to protect themselves from harm. The majority aptly considers the issue of foreseeability dispositive of this case, see Manchenton v. Auto Leasing Corp., 135 N.H. 298, 305, 605 A.2d 208, 213-14 (1992), but misapplies the reasoning of Manchenton and Piateck v. Swindell, 84 N.H. 402, 403, 151 A. 262, 263-64 (1930), to support its conclusion.

Manchenton did not involve an issue of an injured party’s comparative negligence, Manchenton, 135 N.H. at 299, 605 A.2d at 210, and therefore is inapposite. The case, moreover, involved circumstances considerably less foreseeable to the reasonable person than the automobile collision that engendered this lawsuit. Piateck, decided in 1930, is similarly inapposite. It was written long before a national consciousness concerning motor vehicle safety had risen to its present level. Today, federal motor vehicle safety regulations occupy reams of paper in the Code of Federal Regulations, 49 C.F.R. § 571 (1991), and mandatory installation of seat belts in automobiles by manufacturers has been a matter of course since 1962, Bentzler v. Braun, 34 Wis. 2d 362, 385, 149 N.W.2d 626, 639 (1967).

It is common knowledge that motor vehicle accidents are one of the leading causes of death in this country. The WORLD Almanac and Book of Facts 941 (Mark S. Hoffman et al. eds., 1992); Bureau of the Census, United States Department of Commerce, Statistical Abstract of the United States: 1987 75 (107th ed. 1986). In addition,

“it is obvious that, on the average, persons using seat belts are less likely to sustain injury and, if injured, the injuries are likely to be less serious. On the basis of this experience, and as a matter of common knowledge, an occupant of an automobile either knows or should know of the additional safety factor produced by the use of seat belts.”

Bentzler, 34 Wis. 2d at 386-87, 149 N.W.2d at 640 (footnote omitted); see also Insurance Co. of North America v. Pasakarnis, 451 So. 2d 447, 453 (Fla. 1984); Lowe v. Estate Motors Ltd., 428 Mich. 439, 454, 410 N.W.2d 706, 715 (1987); Waterson v. General Motors Corp., 111 N.J. 238, 269, 544 A.2d 357, 373 (1988). Our own legislature has recognized these truths by enacting RSA 265:107-a (Supp. 1992) (requiring children under twelve years of age to wear seat belts or be secured in a child passenger restraint) as an obvious safety measure. To say, as the majority does, that a plaintiff owes no duty to wear a *706seat belt because “the accident-causing negligence of another driver is not considered a readily foreseeable danger,” defies common experience.

I conclude that such negligence is reasonably foreseeable and therefore would adopt the reasoning of the Supreme Court of Florida:

“[T]he failure to expend the minimal effort required to fasten an available safety device which has been put there specifically in order to reduce or avoid injuries from a subsequent accident is, on the very face of the matter, obviously pertinent and thus should be deemed admissible in an action for damages, part of which would not have been sustained if the seat belt had been used.”

Pasakarnis, 451 So. 2d at 453 (quotation omitted). I would join the growing number of States that hold that evidence of failure to wear an available and fully operational seat belt may be considered by the jury in assessing a plaintiff’s damages where the so-called “seat belt defense” was adequately pled and it was shown by competent evidence that failure to use the seat belt produced or contributed substantially to producing at least a portion of the damages. See id. at 454; Potts v. Benjamin, 882 F.2d 1320, 1322-23 (8th Cir. 1989); Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561, 1568 (D. Vt. 1985); Hutchins v. Schwartz, 724 P.2d 1194, 1199 (Alaska 1986); Wemyss v. Coleman, 729 S.W.2d 174, 179 (Ky. 1987); Lowe, 428 Mich, at 455, 410 N.W.2d at 715-16; Dahl v. BMW, 304 Or. 558, 566, 748 P.2d 77, 81-82 (1987); Bentzler, 34 Wis. 2d at 387-88, 149 N.W.2d at 640-41.

The majority’s citation to RSA265:107-a, IV (Supp. 1992) does not alter my resolution of this problem. This particular provision of the child seat belt law states: “A violation of this section shall not be used as evidence of contributory negligence in any civil action.” While the majority interprets this as an indication of general legislative disapproval of the admission of seat belt evidence to prove negligence, I do not. The provision prohibits admission of evidence that the statute was violated—not that a child was not wearing a seat belt. Accordingly, RSA 265:107-a, IV (Supp. 1992) merely evinces an intent to prohibit evidence of lack of seat belt use from being considered per se negligence, and the defendant is left to prove that, in his or her particular case, lack of seat belt use was in fact negligent and contributed to the plaintiff’s injuries.

Even if the legislature did not have this distinction in mind when it enacted RSA 265:107-a, IV (Supp. 1992), there are two more reasons *707not to apply it here. First, a child suing for injuries suffered in a motor vehicle accident is in a different position than an adult with regard to seat belt use. RSA 265:107-a (Supp. 1992) makes it a violation for a person to operate a motor vehicle with a child occupant unless the child is wearing a seat belt or secured in an appropriate restraint. Thus, it is the adult’s responsibility to make sure the child is secured, and the child cannot fairly be held contributorily negligent in a damages action for the child’s injuries. In a damages action for an adult’s injuries, the question of the adult’s contributory negligence can fairly be raised because it is the adult who is responsible for his or her own seat belt use. Second, RSA 265:107-a, IV (Supp. 1992) refers only to violations of the child restraint law. It does not in any way refer to instances of adults failing to use seat belts or imply that the defense of contributory negligence may not be pled, argued, and proven when it is discovered that a plaintiff did not use an available seat belt.

For the above reasons, I respectfully dissent.