Derheim v. N. Fiorito Co.

Hunter, J.

The plaintiff, Lawrence Derheim (respondent), recovered a jury verdict for personal injuries incurred in a collision with a dump truck owned by defendant, N. Fiorito Company, Inc. (appellant), and operated by defendant's employee. Defendant's appeal to Division 2 of the Court of Appeals was certified to this court. Specifically, the so-called "seat belt defense" is a principal issue in the case, and as this court has not addressed itself to the appropriateness of this defense in automobile litigation, the Court of Appeals concluded that a fundamental issue of broad public interest is presented.

The facts are as follows. On June 6, 1968, defendant construction company was engaged in performance of a highway improvement contract on a section of Interstate Highway 5 from Burnt Bridge Creek north to the Ridgefield junction, a distance of approximately 14 miles. The actual work was being performed by the defendant north of the 134th Street exit, approximately 5 miles north of Vancouver, Washington. Trucks were being loaded with dirt at a point approximately 1 mile from the 134th Street off ramp, and were then directed to proceed south along Interstate 5 to the off ramp, down this 2-lane ramp roadway, under Interstate 5 for several hundred feet at which point they were to turn left across the end of two lanes of old Highway 99 (which two lanes joined the 2-lane off ramp at that point), and across 15 feet of grass median to a parallel on ramp. At that point they turned north on the on ramp for approximately 600-800 feet to a dump area.

At approximately 1:20 in the afternoon, plaintiff, driving his 1959 Chevrolet in a southerly direction on Interstate 5, proceeded down the off ramp behind defendant's dump truck at a lawful rate of speed. Just north of the underpass, a sign stating "End of Construction" was erected facing southbound traffic. The facts are in dispute as to whether two additional signs (one on each side of the roadway) stating "Truck Crossing" were in place south of the underpass and approximately 500 to 600 feet north of the impact area.

The impact occurred when plaintiff, overtaking the defendant's truck, struck the left front of defendant's truck which was engaged in a left-turn maneuver preparatory to crossing the two lanes of old Highway 99 to reach the on ramp. There seems to be no dispute but that defendant's truck commenced its left turn from the right lane, swinging over to the right-hand shoulder of the road and back across both lanes to the left, or inside lane, at which point the impact occurred. The testimony conflicts as to whether or not the truck's left turn signal was on. Plaintiff received a fracture of his right kneecap and injury to his mouth. . . .

We therefore turn to the principal issue for consideration in this case. This issue was presented to the trial court in the following manner. Shortly before the trial commenced, defendant filed an amended answer raising the issue of contributory negligence on the part of the plaintiff for failure to wear an available seat belt and to sound the horn. The trial court allowed the amendment insofar as the horn was concerned, but denied the portion relating to the seat belt issue. In addition the trial court ruled, on plaintiff's motion in limine, that during the trial the defendant was prohibited from making any reference to plaintiff's failure to wear a seat belt. These pretrial rulings are assigned as errors. Specifically, defendant asserts that the plaintiff's failure amounted to contributory negligence, or in the alternative, that evidence should have been admitted in mitigation of damages or in proof of an avoidable consequence.

By way of offer of proof, defendant offered plaintiff's admission that his 1959 Chevrolet was equipped with seat belts and that he was not wearing one at the time of the accident. The defendant offered testimony of Dr. William Snell, physician and surgeon in charge of the Department of Orthopedics at the University of Oregon Medical School, to the effect that plaintiff's knee injury would not have been sustained if his seat belt had been properly fastened. . . .

We are thus called upon to determine the rule in this state with respect to the so-called "seat belt defense". No subject in the field of automobile accident litigation, with the possible exception of no-fault insurance, has received more attention in recent years than has the seat or lap belt defense. The question being one of first impression in this state, we have reviewed the published material extensively, concluding that while the research and statistical studies indicate a far greater likelihood of serious injuries in the event of nonuse, nevertheless the courts have been inconsistent in their handling of the defense. This inconsistency seems to result from the fact that the defense does not fit conveniently into the familiar time-honored doctrines traditionally used by the courts in deciding tort cases. Thus, the conduct in question (failure to buckle up) occurs before the defendant's negligence, as opposed to contributory negligence which customarily is thought of in terms of conduct contributing to the accident itself. While more precisely, contributory negligence is conduct contributing, with the negligence of the defendant in bringing about the plaintiff's harm, it is a rare case indeed where the distinction need be made. Furthermore, while states with comparative negligence do not have the problem to the same extent, contributory negligence in many states (such as Washington) is a complete bar to any recovery by a plaintiff -- an obvious unjust result to apply in seat belt cases. The same result would be reached if the defense were presented in terms of assumption of risk, that is, that one who ventures upon the highway without buckling up is voluntarily assuming the risk of more serious injuries resulting from a possible accident proximately caused by the negligence of another.

The doctrine of avoidable consequences has been suggested as a possible solution to this conceptual dilemma, but here again, the problem is one of appearing to stretch the doctrine to fit an unusual fact pattern. As a legal theory, avoidable consequences is closely akin to mitigation of damages, and customarily is applied when plaintiff's conduct after the occurrence fails to meet the standards of due care. Moreover, courts have traditionally said that a defendant whose negligence proximately causes an injury to plaintiff, "takes the plaintiff as he finds him."

The practical implications of allowing seat belt evidence, has also given the courts pause. For example, most automobiles are now manufactured with shoulder straps in addition to seat belts, and medical evidence could be anticipated in certain cases that particular injuries would not have resulted if both shoulder belts and seat belts had been used. Additionally, many automobiles are now equipped with headrests which are designed to protect one from the so-called whiplash type of injury. But to be effective, its height must be adjusted by the occupant. Should the injured victim of a defendant's negligence be penalized in ascertainment of damages for failure to adjust his headrest? Furthermore, the courts are aware that other protective devices and measures are undergoing testing in governmental and private laboratories, or are on the drawing boards. The concern is, of course, that if the seat belt defense is allowed, would not the same analysis require the use of all safety devices with which one's automobile is equipped. A further problem bothers the courts, and that is the effect of injecting the seat belt issue into the trial of automobile personal injury cases. The courts are concerned about unduly lengthening trials and if each automobile accident trial is to provide an arena for a battle of safety experts, as well as medical experts, time and expense of litigation might well be increased. . . .

We believe the cases in those jurisdictions rejecting the "seat belt defense" are the better reasoned cases. It seems extremely unfair to mitigate the damages of one who sustains those damages in an accident for which he was in no way responsible, particularly when, as in this jurisdiction, there is no statutory duty to wear seat belts.

Moreover, in the state of Washington the installation of seat belts is required only in cars sold in this state manufactured after 1964. The problem of unequal treatment of owners and occupants of motor vehicles immediately arises. To charge a person with negligence for failure to wear an available seat belt and thereby require a mitigation of his damages resulting therefrom, would constitute preferential treatment to owners of vehicles who failed to have their cars equipped with seat belts, and passengers who knowingly entered cars not equipped with seat belts who sustained injuries. Under the proposed rule, no mitigation of their damages resulting from their failure to wear seat belts would be required. The resolution of this problem encompasses the legislative judgment of whether all vehicles on the roads or highways should be equipped with seat belts.

In addition, the state of Washington has not adopted the doctrine of comparative negligence. As viewed by the court of Alabama, Britton v. Doehring, supra, the admission of evidence on the "seat belt defense" issue is tantamount to adopting the rule of comparative negligence. Also see D. W. Boutwell Butane Co. v. Smith, supra. This poses a question of a change in public policy as to the doctrine of comparative negligence, which issue is not properly before us in this case.

For the reasons heretofore stated, we believe the trial court was correct in refusing admission of evidence on the "seat belt defense."

The judgment of the trial court is affirmed.