dissenting.
A wise and old judge of a court of limited jurisdiction in one of our sparsely populated rural communities was once asked, “Do judges make law?” His response was: “Of course they do, I made some myself today.” And so today our court assumes a position of extreme judicial activism in derogation of constitutional powers given to 90 elected legislators by enacting for the people of the state of Wyoming, retroactively, a seat belt law.
Bad cases make bad law. Sadly, this is one of those bad cases. It is a case in which members of this court cannot accept a jury finding of no negligence, thus denying recovery for the death of this minor child. But, instead of confronting the issue honestly and forthrightly, by reversing the judgment as not supported by the evidence and granting a new trial in accordance with W.R.C.P. 50(d), which provides:
If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted[,]
the court legislates for Wyoming a seat belt law that the Wyoming legislature has consistently refused to adopt, although lobbied heavily in every session. Finally on March 14, 1989, the legislature adopted our present seat belt law, W.S. 31-5-1402, which provides:
(a)Each driver and front seat passenger of a passenger vehicle operated in this state shall wear, and each driver of a passenger car shall require that a front seat passenger shall wear, a properly adjusted and fastened safety belt when the passenger vehicle is in motion on public streets and highways.
(b) Subsection (a) of this section does not apply to:
(i) Any person who has a written statement from a physician that it is not advisable for the person to wear a safety belt for physical or medical reasons;
(ii) Any passenger vehicle which is not required to be equipped with safety belts under federal law;
(iii) A carrier of the United States postal service performing duties as a postal carrier;
(iv) Any person properly secured in a child safety restraint system in accordance with W.S. 31-5-1301 through 31-5-1305; or
(v) Any person occupying the front seat in a vehicle in which all operable safety restraints are being used by the driver or passengers.
(c) No violation of this section shall:
(i) Be counted as a moving violation for the purpose of suspending a driver’s license under W.S. 31-7-129;
(ii) Be grounds for increasing insurance premiums or made a part of the abstracts kept by the department pursuant to W.S. 31-5-1214.
(d) No motor vehicle shall be halted for and no driver or passenger shall be cited for a violation of this section.
(e) All citations for violations of the motor vehicle laws of this state and for violations of traffic ordinances or traffic regulations of a local authority shall contain a notation by the issuing officer indicating whether the licensee complied with this section. Compliance with this section shall entitle a licensee to a five dollar ($5.00) reduction in the fine otherwise imposed by any court having jurisdiction over the alleged offense.
(f) Evidence of a person’s failure to wear a safety belt as required by this act shall not be admissible in any civil action.
Approved March 14, 1989, effective June 8, 1989; amended February 15, 1991, effective July 1, 1991.
The legislation adopted demonstrates the detail necessary to know what is required *1168for compliance and is illustrative of the problems created by court meddling in an area of this kind which more properly is suited to legislative consideration. The court goes outside the record and recites in detail all of the statistics which they claim support the benefits that accrue from wearing seat belts. All of those statistics and more were presented over and over again to legislative committees and to legislators during hearings on the seat belt question. For me, it is entirely inappropriate that this court, without the power or authority to take evidence, conduct hearings, assemble data and statistics, and enact legislation, undertakes this kind of judicial activism.
We have not previously recognized a duty that would require the wearing of seat belts. In Chrysler Corp. v. Todorovich, 580 P.2d 1123 (Wyo.1978), the trial court sustained an objection to the admission of evidence of failure to wear seat belts, and that was affirmed on appeal. I have a problem with what purports to be the new law now enacted for the people of the state of Wyoming. As stated in the court’s opinion, it is this:
We find sound public policy in light of the fore mentioned statistics to impose on parents a duty to buckle the seat belts of their minor passengers who are dependent on adult care and supervision for their well being and safety.
Maj. op. at 1160. And why will this now be the rule of law? As said in McCullough v. Golden Rule Ins. Co., 789 P.2d 855, 865 (Wyo.1990) (Golden, J., dissenting):
“This ‘it-is-so-because-we-say-so’ jurisprudence constitutes nothing other than an attempted exercise of brute force; reason, much less persuasion, has no place.”
(quoting from Webster v. Reproductive Health Serv., 492 U.S. 490, 552, 109 S.Ct. 3040, 3075, 106 L.Ed.2d 410 (1989) (Black-mun, J., concurring in part and dissenting in part)).
The purported new rule finds a duty never before articulated by any other court. Added to that is that the purported duty, in many cases, may be almost impossible with which to comply. Who will agree that a four- or five-year-old child can be strapped in a seat belt for a three-to-five hour trip across country on a family vacation? Children are so full of energy that is impossible that they sit strapped to a seat for any substantial period of time. And what of the fifteen year old who unbuckles his seat belt 40 miles from any city or town? Does the parent beat him or put him out of the car to walk to the next town if he refuses? If he does neither, is he negligent for continuing the trip? Or, must he just helplessly sit in his car? How can one know what course of action should be chosen?
There is a flip side to the rule now adopted. Failure to wear a seat belt has generally been called the “seat belt defense.” The defense (contributory negligence) is asserted against the injured persons seeking to recover damages for personal injuries. Traditionally failure to wear seat belts could defeat a claim of damage for personal injury. If it is thought that the recently enacted statute prevents that result, think again about the propensity of this court for declaring legislative enactments unconstitutional. See e.g., Hoem v. State, 756 P.2d 780 (Wyo.1988) (holding unconstitutional the Wyoming Medical Review Panel Act); Mills v. Reynolds, 837 P.2d 48 (Wyo.1992) (Nos. 89-193 and -195, published July 20, 1992) (Mills II) (holding unconstitutional a worker’s compensation statute which granted immunity from suits by coemployees to employees who acted within the scope of their employment); Johnson v. State of Wyoming Hearing Examiner’s Office, 838 P.2d 158 (Wyo.1992) (holding unconstitutional a statute which provided for driver’s license suspension for persons under 19 after conviction of any alcohol-related offense). Once declared unconstitutional, the seat belt defense will again be in effect.
Cases cited for support of this newly discovered and claimed always-existing rule in Wyoming involve leaving a loaded revolver where a child could find it, a child exiting a vehicle unsupervised and injured, and a child crossing a street. I seriously question that these cases support the far-*1169out duty of a parent to force a minor to be seat belted at all times while in the vehicle being driven.
I have no doubt that seat belts save lives. But are we, as judges, constitutionally vested with the power and authority to adopt this kind of vague, incomprehensible legislation? We know we are not, and we do a disservice to separation of powers and the orderly, efficient functioning of our form of government when we do. I would prefer to face head on what we perceive as an incorrect and unjust verdict by a jury. The jury system is not perfect, although it is right most of the time. We have the power and duty to supervise the jury and correct an injustice when reasonable minds would not differ that the jury was wrong, and we should do so.
Accordingly, I concur in the result only but dissent otherwise from the opinion of the court.