No. 91-563
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
GLORIA CALIFATO, as Guardian
ad litem for RYAN JOHNSON,
Plaintiff and Respondent,
v.
RUSSELL GERKE and RUSTY GERKE,
Defendants and Appellants.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. NcNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Mark L. Stermitz, Warden, Christiansen,
Johnson & Berg, Kalispell, Montana
For Respondent:
James A. Manley, Manley Law Office,
Polson, Montana
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Submitted on Briefs: February 20, 1992
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Justice Terry N. Trieweiler delivered the opinion of the Court.
Plaintiff Gloria Califato filed her complaint in the District
Court of the Twentieth Judicial District, Lake County, as guardian
ad litem on behalf of her son, Ryan Johnson. She alleged that he
was injured while operating a vehicle owned by Russell Gerke
because the seatbelts had been rendered inoperable by Russell's
son, Rusty Gerke. Pursuant to Rule 12(c), M.R.Civ.P., defendants
moved for judgment on the pleadings. Plaintiff moved the court to
order, by summary judgment, that § 61-9-409, MCA, established a
standard of care applicable to defendants, and that its violation
was negligence as a matter of law. The District Court denied
defendants1 motion, granted plaintiff's motion, and pursuant to
stipulation of the parties, certified its judgment as final for
purposes of appeal, pursuant to Rule 54(b), M.R.Civ.P. From that
judgment, defendants appeal. We affirm.
The issue on appeal is:
Can an alleged failure to comply with § 61-9-409, MCA, form
the basis for plaintiff's cause of action, or is such claim barred
by the terms of 5 61-13-106, MCA, and by our decision in Kopirchkev.
First ContinentalCorporation (1980)~187 Mont. 471, 610 P.2d 668?
For purposes of this appeal, the allegations in plaintiff's
complaint are assumed to be true. Those facts are as follows:
On November 19, 1989, Ryan Johnson and Rusty Gerke drove in
Russell Gerkels pickup from Polson to Kalispell. On the return
trip, Rusty was tired. He asked Ryan to drive, and Ryan agreed to
do so.
Sometime prior to November 19, 1989, Rusty had taken the
seatbelt from the driver's side of his father's vehicle and used it
to permanently fasten a stereo speaker behind the seat. For that
reason, even though Ryan normally used a seatbelt, he was prevented
from doing so on the return trip from Kalispell to Polson.
While Ryan was proceeding in a southerly direction on
Highway 93, an oncoming vehicle crossed over the center line and
into the southbound lane. Ryan took evasive action to avoid a
head-on collision, lost control of the vehicle, hit an embankment,
and crashed into a barrow pit on the opposite side of the road. He
was thrown through the windshield and out of the vehicle. After
flying through the air a considerable distance, he landed on some
boulders where he sustained a serious closed head injury, as well
as injuries to other parts of his body.
Plaintiff alleged that Ryan's injuries were caused by the
negligence of the oncoming vehicle, but also from the concurrent
negligence of the Gerkes. She alleged that Rusty was negligent by
rendering the driver's side seatbelt inoperable, and that Russell
was negligent by allowing the seatbelt to be used in that fashion.
She alleged that this conduct by both defendants violated
§ 61-9-409, MCA, and was, therefore, negligence per se.
In support of their motion for judgment based on the
pleadings, defendants contended that:
1. Use or nonuse of seatbelts is inadmissible pursuant to
our decision in Kopkchke and 5 61-13-106, MCA;
2. Section 61-9-409, MCA, did not impose a duty on the owner
of a vehicle to maintain seatbelts in an operable condition; and
3. The unavailability of seatbelts in defendants1 vehicle
could not, as a matter of law, have been the proximate cause of
Ryan's injury.
The District Court concluded that 5 61-9-409, MCA, imposed a
legal duty on defendants, and that its violation was negligence as
a matter of law. Because these conclusions are interrelated with
the District Court's denial of defendants' motion for judgment on
the pleadings, we will limit our discussion to those issues raised
by defendants in support of their motion.
ADMISSIBILITY OF SEATBELT USE
In Kopkchke we held that since there was no statutory duty to
wear a seatbelt, failure to use one which was available was not
admissible to prove that an injured driver was contributorily
negligent. We held that 3 61-9-409, MCA, which required that
vehicles manufactured after 1966 be equipped with seatbelts, and
furthermore, that those vehicles not be operated unless the belts
remained installed, did not require the driver of a vehicle to use
the seatbelt. In 1987, the Montana Legislature created a statutory
duty to use seatbelts when it enacted the "Montana Seatbelt Use
~ct." See 5 5 61-13-101 to -106, MCA. Section 61-13-103, MCA, of
that Act, requires that no driver may operate a motor vehicle
unless each occupant of a designated seating position is wearing a
seatbelt. However, 5 61-13-106, MCA, provides that:
Evidence of compliance or failure to comply with
61-13-103 is not admissible in any civil action for
personal injury or property damage resulting from the use
or operation of a motor vehicle, and failure to comply
with 61-13-103 does not constitute negligence.
Defendants contend that if failure to use a seatbelt is
inadmissible to establish Ryan's contributory negligence, then
plaintiff cannot offer evidence that Ryan had no seatbelt on at the
time of this accident and there is no basis for plaintiff's claim.
However, defendants confuse the duty discussed in Kopischke with
the duty provided for in 5 61-9-409, MCA.
In Kopkchke, the issue was whether the defendant could offer
evidence that the plaintiff failed to use a seatbelt which was
available for her use, and thereby, contributed to her own injuries
and the damages which she sought to recover. In reviewing the
common law from other jurisdictions, we discussed the basis on
which such evidence had been held inadmissible elsewhere. The
recurrent reasoning from other jurisdictions was that since the
legislature had not mandated the use of seatbelts as a standard of
conduct, the court should not impose that standard on all persons
riding in vehicles. Significant to the rationale for these
decisions were studies which established that the vast majority of
drivers and occupants of vehicles did not use seatbelts, even
though they were available. See Amend v Bell (Wash. 1977), 570 P.2d
.
138; Fischer v Moore
. (Colo. 1973), 517 P.2d 458; Britton v. Doehrilzg
(Ala. 1970), 242 So. 2d 666; Millerv. Miller (N.C. 1968) , 160 S .E.2d 65;
McCord v Green (D.C. App. 1976), 362 A.2d 720; Fields v. Volhwagen of
.
America, Ifzc. (Okla. 1976), 5 5 5 P.2d 48. Based on this lack of
statutory duty, we held that:
In light of the history and the numerous legislative
problems that must be considered to effectively extend
the seatbelt rule of law, we have concluded that the
well-reasoned position of the Washington court in Amend
v. Bell, supra, produces the better rule and reach the
conclusion that to adopt a seatbelt defense when the
legislature has failed to do so would be ill-advised.
The trial court properly refused to allow defendant to
introduce a seatbelt defense into this case.
Kopkchke, 610 P.2d at 683.
In other words, our reason for refusing to admit evidence that
plaintiff had failed to use a seatbelt in Kopkchke was that there
was no statutorily created duty and we chose not to create one.
That holding was not based on a lack of causation.
As noted above, in 1987, the Legislature did create a
statutory duty for drivers and occupants of vehicles to use
seatbelts. However, at the same time, the Legislature provided
that where seatbelts are available and a driver or occupant chooses
not to use one, that choice is not admissible as evidence of
negligence. Section 61-13-106, MCA.
However, neither Kopischke nor 5 61-13-106, MCA, apply to the
facts in this case. In this case, there was not a seatbelt
available for Ryan's use. The duty which forms the basis of
plaintiff's complaint is defendants' duty to maintain their vehicle
in such a way that seatbelts are available for the driver's and
6
passenger's use in the event that they choose to use them. If that
duty exists, it exists pursuant to 5 61-9-409, MCA, and there is no
comparable provision in that statute which would exclude evidence
that seatbelts were unavailable and for that reason, were not used
at the time of the accident.
We hold that neither Kopiscltke nor the Montana Seatbelt Use Act,
§§ 61-13-101 to -106, MCA, preclude evidence that in this case Ryan
Johnson did not have a seatbelt on at the time of his accident
because the seatbelt had been rendered inoperable and was
unavailable for his use.
STATUTORY DUTY TO MAINTAIN SEATBELTS
Defendants next contend that there is no statutory duty to
maintain seatbelts in a operable condition, and that just as we
have refused to create a common law duty to use seatbelts in
Kopkcltke, we should decline to create a common law duty to maintain
seatbelts in this case.
Section 61-9-409, MCA, provides that:
It is unlawful for any person to buy, sell, lease,
trade, or transfer from or to Montana residents at retail
an automobile which is manufactured or assembled
commencing with the 1966 models unless such vehicle is
equipped with safety belts installed for use in the left
front and right front seats thereof, and no such vehicle
shall be o~eratedin this state unless such belts remain
installed. [Emphasis added.]
Defendants contend that the statute pertains only to sellers
of vehicles. However, the plain language of the statute clearly
imposes more than one duty. It prohibits sellers from transferring
vehicles which are not equipped with safety belts, but also
prohibits owners of vehicles from operating the vehicle unless the
seatbelts remain installed. To hold that the statute has been
complied with if the seatbelts are present in the vehicle, even
though rendered inoperable by the owner of the vehicle, would
clearly frustrate the Legislature's purpose for enacting the
statute. We agree with the District Court when it held that:
It is the opinion of the Court that it would not be
necessary that seatbelts be cut out or unbolted and
physically removed in order to constitute a violation of
the foregoing statute. The phrase "unless such belts
remain installed" of necessity means "and reasonably
available for use. "
In the past, we have held that statutory provisions relating
to motor vehicle equipment imposed a duty and that the violation of
that duty constituted negligence per se.
In Ashley v. Safeway Stores, Ztzc. ( 1935), 100 Mont . 312, 47 P.2d 53 , we
held that failure to comply with the statute, 5 1753, RCM (1921)
(now 5 61-9-214, MCA) , which requires a display of lights on parked
vehicles during certain hours of the night, established negligence
as a matter of law. . .
In Littdberg v Leatham Brotlzers, Znc. (1985), 215 ~ o n t
11, 693 P.2d 1234, we held that where there was evidence that
defendant failed to comply with 5 61-9-221, MCA, which sets forth
requirements for the use of multiple beam lighting equipment on
vehicles, it would have been appropriate for the trial court to
instruct the jury that failure to comply with that statute was
negligence as a matter of law. Finally, in Smith v Rorvik (1988), 231
.
Mont. 85, 751 P.2d 1053, we held that 5 61-9-412, MCA, (1) requires
the use of warning device equipment when a vehicle is disabled upon
the traveled portion of a highway, and (2) establishes the proper
standard of care for the owner and operator of a disabled vehicle.
We held that it was proper to instruct the jury on the requirements
of that statute.
Likewise, in this case we hold that § 61-9-409, MCA,
prohibited defendants from rendering the seatbelts in their vehicle
inoperable and unavailable for use, and that breach of that duty
constituted negligence as a matter of law.
CAUSATION
Finally, defendants contend that to establish causation,
plaintiff must establish both cause in fact and proximate cause.
Defendants rely on our decision in Kitclzenfiaftersv. EastsideBank (1990),
242 Mont. 155, 789 P.2d 567. They contend that because Ryan's
accident was precipitated by another vehicle swerving into his lane
of travel, the lack of seatbelts could not have been the cause in
fact of his accident, and therefore, the Kitchen fiaflersl test for
causation is not satisfied. However, defendants' reasoning is
faulty. Plaintiff need not prove that the unavailability of
seatbelts caused Ryan's accident. Plaintiff need only prove that
the lack of seatbelts was the cause, or one of several concurring
causes, for Ryan's injuries and the resulting damages. For
,
example, in Brandenburger v Toyota Motor Sales, USA., Znc. (1973) 162 Mont.
.
506, 513 P.2d 268, we stated that:
While the construction of the vehicle is not the cause of
the accident, it is most often the contributing factor in
the case of "second collision" injuries. In the recent
years courts have held that where the manufacturer's
negligence in design causes an unreasonable risk to be
imposed upon the user of its products, the manufacturer
should be liable for the injury caused by its failure to
use reasonable care in design. These injuries are
readily foreseeable as an incident to the normal and
expected use of the car. While automobiles are not made
for the purpose of colliding with each other, a frequent
and inevitable contingency of normal automobile use will
result in collisions and injury producing impacts.
Brandenburger, 5 1 3 P.2d at 274. For the above reason, we held that
where the driver overturned his vehicle, the top of the vehicle
came off, and the plaintiff, who was a passenger, was thrown out of
the car through the opening created through the top of the vehicle,
"the duty of Toyota to provide a safe roof is not eliminated simply
because the defective roof did not cause the accident."
Brandenburger, 513 P.2d at 274.
Likewise, seatbelts are clearly forthe purpose of restraining
occupants of motor vehicles and it is foreseeable that in the event
of a motor vehicle accident the occupant is more likely to be
thrown from the vehicle if he has no seatbelt, than if he is
wearing one. The fact that the unavailability of a seatbelt did
not cause the original accident does not relieve defendants of
their duty to comply with 5 61-9-409, MCA. Whether or not the lack
of a seatbelt was, in fact, the cause of Ryan's injuries, or
whether his injuries were worse than they would have been had he
been wearing a seatbelt is a question of fact to be resolved based
on evidence which has not yet been produced.
For these reasons, we affirm the District Court's denial of
defendants' motion to dismiss, and its order granting plaintiff's
motion for summary judgment. We hold that rendering the driver's
side seatbelt inoperable was negligence as a matter of law, and we
remand to the District Court for further proceedings consistent
with this opinion.
We concur:
Chief Justice
Justices
Justice Fred J. Weber dissents as follows:
As pointed out in the majority opinion, plaintiff moved the
court to order, by summary judgment, that 5 61-9-409, MCA,
established a standard of care applicable to defendants, and that
its violation was negligence as a matter of law. The District
Court denied the defendantst motion for a judgment on the pleadings
and granted the plaintiffst motion for summary judgment.
The majority opinion states that for the purposes of this
appeal, "the allegations in plaintiffsq complaint are assumed to be
true." The majority then sets forth extensive facts from the
plaintiffs' complaint with regard to the various aspects, pointing
out that Rusty Gerke had taken the seat belt from the driver's side
of his father's vehicle and used it to permanently fasten a stereo
speaker behind the seat, and for that reason, even though plaintiff
normally used a seat belt, he was prevented from doing so. In
addition the various facts alleged with regard to the accident and
the manner of injury are all set forth.
Procedurally the foregoing was incorrect. The essential
allegations in the plaintiffst amended complaint which set forth
the facts forming the basis for the opinion are denied by the
answer of the defendants. There are no other pleadings,
depositions, answers to interrogatories or admissions on file, or
affidavits to prove the material facts upon which summary judgment
could be based. I therefore conclude there is a total absence of
proof of material facts essential to the making of the decision by
the District Court on summary judgment. I conclude that under Rule
56 (c), M.R. C i v . P., and the cases interpreting the same, there is no
established factual basis upon which a summary judgment of law may
be rendered. The majority has rendered an advisory opinion on a
significant issue of law without any established factual basis. I
therefore dissent.
I will now discuss the majority holding, The majority
concludes that 5 61-9-409, MCA, establishes a statutory duty to
maintain seat belts, and quotes that section as follows:
61-9-409. Beatbelts required in new vehicles. It
is unlawful for any person to buy, sell, lease, trade, or
transfer from or to Montana residents at retail an
automobile which is manufactured or assembled commencing
with the 1966 models unless such vehicle is equipped with
safety belts installed for use in the left front and
right front seats thereof, and no such vehicle shall be
oaerated in this state unless such belts remain
installed.
I have left the emphasis as inserted in the majority opinion. The
foregoing statute must also be compared with 61-13-103, MCA,
which provides in pertinent part:
61-13-103. Seatbelt use required--exceptions. (1)
No driver mav operate a motor vehicle upon a highway of
the state of Montana unless each occupant of a designated
seating position is wearing a properly adjusted and
fastened seatbelt. ... (Emphasis added.)
We must also consider I 61-13-106, MCA, which in pertinent part
provides :
61-13-106. Evidence not admissible. Evidence of
comliance or failure to complv with 61-13-103 is not
admissible in any civil action for personal injury or
property damage resultins from the use or aeration of a
motor vehicle, and failure to comply with 61-13-103 does
not constitute negligence. (Emphasis added.)
The majority opinion holds that neither Ko~ischkq nor the
Montana Seatbelt Use Act, § 61-13-101 through -106, MCA, preclude
e v i d e n c e t h a t in this case Ryan Johnson did not have a seat belt on
at the time of his accident because the seat belt had been rendered
inoperable and was unavailable for his use. That holding is not
appropriate when all three statutes are considered.
When referring to the three quated sections, Z will use the
last three numbers only. Section 103 provides that no driver may
"operate a motor vehiclets unless each occupant, which includes the
driver, is wearing a properly adjusted and fastened seat belt.
Clearly t h a t s e c t i o n required Ryan Johnson to w e a r a seat belt.
However, under the express provisions of 5 106, evidence of Ryan
Johnson's failure to comply with 1 103 "is not admissible in any
c i v i l action f o r personal injury . . . resulting from the use or
operation of a motor vahicle.I1 As a result, 5 106 expressly
prohibits proof that Johnson was not wearing a properly adjusted
and fastened seat belt.
Having reached t h e foregoing conclusion, we next consider the
majority analysis of S 409. The majority concludes that 409
llprohibitsowners of vehicles from operating the vehicle u n l e s s the
belt remains installed.I1 As above quoted, 3 409 provides that no
vehicle shall be "operated i n this state unless such belts remain
in~talled.~~ reference is made to ownership. The only specific
No
reference is to the operation of the vehicle.
The majority then takes the additional step to add the word
"ownersw to operators and affirms the conclusion of the District
Court which held:
It is the opinion of the court that it would not be
necessary that seatbelts be cut out or unbolted and
physically removed in order to constitute a violation of
the foregoing statute. The phrase %nless such belts
remain installed" of necessity means "and reasonably
available for use."
The majority then concludes that 9 409 prohibited the defendants
from rendering the seat belts inoperable and unavailable for use,
and such breach of duty constituted negligence as a matter of law.
I suggest the majority has not considered the full impact of
9 409. That section provides that no such vehicle shall be
owerated unless the belts remained installed. Clearly that
restriction applies to the operator. As a result, if there is a
duty which applies to the owner, even more clearly there is a duty
which must be applied to the operator, Ryan Johnson. If it is
correct that 5 409 prohibited the owners from rendering the seat
belts inoperable and that breach of duty constituted negligence as
a matter of law--then the same rule must apply to the operator who
is expressly designated in the statute--the holding requires that
Ryan Johnson's operation of the vehicle with seat belts inoperable
constituted a breach of his duty as an operator under 5 409 and
constituted negligence as a matter of law on the part of Ryan
Johnson. At that point, the logic of the majority opinion requires
a conclusion that Ryan Johnson's actions constituted negligence as
a matter of law and Gerkes' actions also constituted negligence as
a matter of law.
The dilemma then presented is that 5 106 states that evidence
of compliance or failure to comply with wearing the seat belt is
not admissible in any civil action. I suggest this section
properly should be held applicable to both the owners and operators
15
of motor vehicles. That seems consistent with the intent of the
legislature which has established duties regarding seat belts but
nonetheless has refused to allow failure to use seat belts as proof
of negligence. I would hold that § 106 bars proof of the usage and
non-usage of seat belts as to both operators and owners.
I would therefore reverse the holding of the District Court.
Chief Justice J. A. Turnage and Justice Karla M. Gray concur in the
foregoing dissent.
April 20, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Mark L. Stermitz
WARDEN, CHRISTIANSEN, JOHNSON & BERG
P.O. Box 3038
Kalispell, MT 59903-3038
James A. Manley
MANLEY LAW OFFICES
201 Fourth Ave. E.
Polson, MT 59860
ED SMITH
CLERK OF THE! SUPREME COURT
STATLOF MONTANA