concurring.
I agree with the majority. The “seat belt defense” is based upon the theory that a plaintiff should not recover damages for injuries that could have been avoided by taking precaution for his own safety before the defendant’s negligence took place. If that theory were adopted as a general proposition, its application cannot logically be limited to seat belt cases. Conceivably, defendant could attempt to prove that had plaintiff followed medical advice to strengthen her back, she would have sustained reduced injury. To permit a defendant to prove that some more or less remote negligent conduct by the plaintiff made him or her more susceptible to injury would raise collateral questions which would unduly complicate trials. The majority correctly points out that a defendant takes a plaintiff as he finds him, in the absence of legislation, with or without a seat belt.1
My concurrence here is not inconsistent with my comment in Dahl v. BMW, 84 Or App 483, 486, 734 P2d 387, rev allowed 303 Or 590 (1987). In that “crash-worthiness” case, the defendant did not offer the evidence that the vehicle contained a functional seat belt on the question of whether the vehicle contained features which, if used, made it capable of experiencing the accident without injury to the plaintiff.