Devaney v. Sarno

• Decision Date: 08 January 1973
• Citation: 299 A.2d 95,122 N.J.Super. 99
• Parties: Robert A. DEVANEY, an infant, by his Guardian ad Litem, John R. Devaney and John R. Devaney and Jeanne Devaney, individually, Plaintiffs, v. Louis SARNO et al., Defendants.
• Court: New Jersey Superior Court

Page 99

122 N.J.Super. 99

299 A.2d 95

Robert A. DEVANEY, an infant, by his Guardian ad Litem, John R. Devaney and John R. Devaney and Jeanne Devaney individually, Plaintiffs, v. Louis SARNO et al., Defendants.

Superior Court of New Jersey Law Division.

Jan. 8, 1973.

Arthur C. Gundersdorf, Hackensack, for plaintiffs.

John R. Kingsland, East Orange, for defendant Louis Sarno.

Crummy, O'Neill, Del Deo & Dolan, Newark, for defendant Volkswagen of America, Inc.

Shenier, Gilady & Harwood, Hackensack, for defendant Central Volkswagen, Inc.

TOSCANO, J.C.C.

This action arises out of an accident between autos driven by plaintiff Robert A. Devaney and defendant Louis Sarno on October 4, 1970, on East Shore Road, Warwick, New York. At the time of the accident plaintiff was operating a 1970 Volkswagen sedan that he had purchased about three weeks earlier in Fair Lawn, New Jersey, from defendant Central Volkswagen, Inc., a distributor of defendant Volkswagen of America, Inc., the manufacturer. Plaintiff settled with the defendant Sarno in the amount of $20,000 and now proceeds against the Volkswagen defendants.

Plaintiff's case against the auto manufacturer and distributor is based upon the theories of negligence, breach of express and implied warranties, and strict liability in tort for the alleged failure of defendants to provide him with a functional seat belt, which failure allegedly caused plaintiff to be more seriously injured than he otherwise would have been had the seat belt been operative. Plaintiff's deposition indicates that he wore the seat belt when he first drove the car from the showroom and that upon his arrival at home he experienced difficulty in releasing the belt. He testified that it took minutes for him to unfasten the belt initially and that immediately thereafter a second attempt to release the belt was successful after 'a couple of secends' but that the mechanism was still not working in a normal fashion. Plaintiff thereafter did not attempt to use the belt and he pointed out the difficulty when he took the vehicle back to the distributor for the 1000 mile checkup about ten days later, at which time the actual mileage was 951. When the car was returned to plaintiff, he was told that the parts needed to repair the seat belt were on order and that he would be notified when they arrived. Plaintiff subsequently drove the vehicle without utilizing the seat belt.

Defendant Volkswagen of America, Inc. has filed a motion for summary judgment on the ground that plaintiff is barred from recovery since he voluntarily chose to drive the auto without the benefit of a seat belt. The usual standards for the determination of such a motion must be applied. Where it palpably appears that there is no genuine issue of material fact presented, the court is to decide the matter on the applicable law. Bowler v. Fidelity & Cas. Co. of New York, 99 N.J.Super. 184, 239 A.2d 22 (App.Div.1968). All doubts in such proceedings are to be resolved in favor of the opponent of the motion. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 110 A.2d 24 (1954).

Applying these standards to the instant case, the court must assume, for purposes of this motion, that plaintiff was not operating his vehicle in a negligent manner at the time of the accident; that the defect in the seat belt was such that it was in effect unavailable to plaintiff at that time; that the defect arose through the negligence of defendant Volkswagen, and that plaintiff would have been wearing the seat belt if it had been functioning properly. Nevertheless this court concluded that defendant is entitled to summary judgment regardless on any of the three theories advanced by plaintiff.

As far as contributory negligence is concerned, plaintiff argues that there is no common law duty on the part of the occupant of a motor vehicle to use a seat belt; plaintiff cites Barry v. Coca Cola Co., 99 N.J.Super. 270, 239 A.2d 273 (Law Div.1967), in support of this proposition. That case involved an attempt by a driver-defendant to assert contributory negligence on the part of a passenger-plaintiff. Such a case is decidedly different from the instant situation: there the party who had negligently caused the impact from which injuries ensued wanted to evade partial responsibility of focusing on the failure of the plaintiff to use a seat belt; here the moving defendant had nothing to do with the impact but is only collaterally involved via the seat belt issue. In any event, Judge Lynch indicated in Barry that the decision to strike the defense of contributory negligence, was based in part on the fact that defendant offered no evidence as to how much the injuries were aggravated by the failure to use a seat belt. See Cierpisz v. Singleton, 247 Md. 215, 230 A.2d 629 (Md. 1967), and Tom Brown Drilling Co. v. Nieman, 418 S.W.2d 337 (Tex.Civ.App.1967). In the present case there Is a proffer of testimony of an 'accident reconstruction expert' to substantiate the claim that failure to use a seat belt aggravated the injuries. But here such proof is offered by Plaintiff, the reverse of the usual situation!

Plaintiff, by settling with driver-defendant Sarno and proceeding against the Volkswagen defendants, has put himself in the unique position of having to argue on the one hand that it was negligence for the Volkswagen defendants to aid in the creation of a situation wherein plaintiff failed to use a seat belt, but on the other hand that it was not contributory negligence for him to drive without a seat belt. If defendant had a duty to provide for the protection of plaintiff against the injuries complained of, its duty was only coextensive with that of plaintiff, once plaintiff became aware that the vehicle was not equipped with a functional seat belt. In all logic, it is inconsistent to maintain that a manufacturer must provide a working safety feature but that the individual for whose benefit the safety feature was designed may act in conscious disregard of the fact that the safety feature is in effect unavailable to perform its function.

Therefore, plaintiff should not be entitled to go to trial against the moving defendant regardless of the view taken as to the proper resolution of the current judicial debate (involved in the Barry case, Supra) as to whether a Driver-defendant should be entitled to assert the failure of a plaintiff to use a seat belt as a defense or in mitigation of damages. The resolution of that issue depends upon whether a plaintiff as an occupant of a motor vehicle has a duty to see that he is secured by a seat belt before embarking on a trip in the vehicle. (The courts of several states that have considered the matter are in disagreement: it was held that the issue could be submitted to the trier of fact in Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626 (Sup.Ct.1967), and in Sams v. Sams, 247 S.C. 467, 148 S.E.2d 154 (S.C.Sup.Ct.1966); it was held that evidence of the failure of a plaintiff to wear a seat belt was not admissible in Robinson v. Lewis, 254 Or. 52, 457 P.2d 483 (Or.Sup.Ct.1969), and Miller v. Miller, 273 N.C. 228, 160 S.E.2d 65 (Sup.Ct.1969).) if a plaintiff has no such duty to take steps for his own safety in this respect, he cannot logically assert that the manufacturer has such a duty; if, on the other hand, a plaintiff has such a duty, the duty was breached in this ase and plaintiff was consequently guilty of contributory negligence.

In anticipation of an objection that might be made to the approach taken by the court in this regard, it should be pointed out that the enactment of the Federal Motor Vehicle Safety Standards, 32 Fed.Reg. 2408 (1967), did not impose upon the manufacturer a duty the breach of which would entitle plaintiff to the relief that he claims. The federal regulation required only that manufacturers incorporate approved sets of seat belts in their new vehicles for the benefit of the driving public at large. Clearly there was no violation of the federal regulation in this case. The duty to avoid installing a defective seat belt arises out of the common law and/or out of the law of warranties and extends to one who relies on an assumption that the item is free of defects. That is Not the case here; plaintiff did not rely on the seat belt in question. The matter would, of course, be different if plaintiff had unknowingly used the seat belt and been injured due to the failure of the belt to unfasten normally, which is the specific defect that existed in this case.

An alternative basis for the holding that plaintiff cannot prevail on the negligence count is the fact that the failure to use the seat belt was not a proximate cause of any of the injuries; rather, all injuries were proximately caused solely by the negligence of the driver-defendant Sarno, with whom a settlement has been reached. Such a theory would foreclose any inquiry into whether plaintiff or the Volkswagen defendants or both were responsible for the failure of plaintiff to be wearing the seat belt at the time of the accident. The Barry opinion did not rule out the possibility that it might be proper, as a general rule, to disallow evidence of a plaintiff's nonuse of a seat belt on the grounds that at this point it is for the Legislature, if it so chooses, to declare that the use of seat belts is mandatory. (Courts of other states have taken the position that the matter is one for the consideration of the Legislature. See, E.g., Lipscomb v. Diamiani, 226 A.2d 914 (Del.Super.Ct.1967), and Brown v. Kendrick, 192 So.2d 49 (Fla.App.Ct.1966).) Such a general rule would leave responsibility for all injuries sustained with the driver-defendant, whose negligence would stand as the sole proximate cause of such injuries. Under such an approach, if plaintiff had gone to trial against Sarno, the latter would have been precluded from asserting that plaintiff's failure...