Barry v. Coca Cola Co.

• Citation: 239 A.2d 273,99 N.J.Super. 270
• Decision Date: 10 May 1967
• Docket Number: No. L--16551,L--16551
• Parties: Bernard J. BARRY, Plaintiff, v. The COCA COLA CO. and Thomas Coghan, Defendants.
• Court: Superior Court of New Jersey

Page 270

99 N.J.Super. 270

239 A.2d 273

Bernard J. BARRY, Plaintiff, v. The COCA COLA CO. and Thomas Coghan, Defendants.

No. L--16551.

Superior Court of New Jersey

Law Division.

May 10, 1967.

Prospero De Bona, Jersey City, for plaintiff (Milton, Keane & De Bona, Jersey City, attorneys).

John J. Gaffey, East Orange, for defendants (Gaffey, Webb & McDermott, East Orange, attorneys).

LYNCH, J.S.C.

At the close of the evidence plaintiff moves to strike the defense of contributory negligence and for judgment in his favor on the issue of liability. Plaintiff was a passenger in a car operated by defendant Coghan. Seat belts were available, but plaintiff did not use them. Coghan drove into the rear of a police car which was at a standstill at a red traffic light. Plaintiff struck the windshield, suffering severe facial scars. Defendant Coghan ¹ opposes plaintiff's motion, on the ground that his failure to use available seat belts suffices to warrant submission of the issue of contributory negligence to the jury. ²

There are no reported New Jersey decisions bearing on the question as to whether failure to use available seat belts may constitute contributory negligence and, if so, the legal consequences thereof.

The problem really involves two separate and distinct questions. The first question is, assuming that the failure to use seat belts was contributory negligence, is it of such a nature as to Bar recovery against defendant on the issue of liability? The second question is, if such contributory negligence is not sufficient to bar recovery, then may it be considered by the jury in Diminution of plaintiff's damages? As to the latter question, are the proofs in this case such that the jury should be permitted to apportion plaintiff's damages so as to subtract from his total damages such amount thereof as may have been due to the failure to use seat belts?

As to question number one, i.e., whether the failure to use seat belts shall be a bar to recovery, the court is convinced that, assuming defendant was negligent and that plaintiff suffered some degree of injuries as a proximate result thereof, the defense of contributory negligence cannot bar recovery. The fact that plaintiff failed to use the seat belts had nothing to do with the happening of the accident, or that he suffered some degree of injuries, prescinding, for the moment, from their extent. The failure to use seat belts was not a proximate cause or a substantial factor in producing an accident from which 'some' injuries flowed or occurred.

Therefore, the court holds that the failure to use seat belts does not constitute a defense sufficient to bar recovery to plaintiff or absolve defendant from liability.

The relevant principle applied herein, i.e., the necessity of distinguishing between negligence contributing to The accident, and negligence contributing to The injuries sustained, is effectively rationalized in Mahoney v. Beatman, 110 Conn. 184, 147 A. 762, 66 A.L.R. 1121 (Sup.Ct.Err.1929), and annotation thereto in 66 A.L.R. 1134. In that case the court quoted from Greenland v. Chaplin, 5 Exch. 243, 115 Eng.R. 104, where the court said:

"I entirely concur with the rest of the court that a person who is guilty of negligence, and thereby produces injury to another, has no right to say 'Part of that mischief would not have arisen if you yourself had not been guilty of some negligence.' I think that where the negligence of the party injured did not, in any degree, contribute to the Immediate cause of the accident, such negligence ought not to be set up as an answer to the action; and certainly I am not aware that, according to any decision which has ever occurred, the jury are to take the consequences and divide them in proportion according to the negligence of the one or the other party.' Id.; Rigby v. Hewitt, 5 Ex. 240 (155 Eng.Reprint, 103).' (Emphasis added)

The annotation (at page 1135), in referring to Mahoney, points up the issue which this court believes is involved in a seat belt case:

'The decision indicates now sharply the distinction must be drawn between negligence contributing to the accident, and negligence contributing to the injuries sustained.'

As to question number two, i.e., apportionment of damages so as to preclude plaintiff's recovering for such damages as may have been caused by his failure to use the seat belts, an entirely different principle is relevant. Restatement, Torts 2d, § 465, is headed: 'Causal relation between harm and plaintiff's negligence.' It reads '(1) The plaintiff's negligence is a legally contributing cause of his harm if, but only if, it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility for it.

(2) The rules which determine the causal relation between the plaintiff's negligent conduct and the harm resulting to him are the same as those determining the causal relation between the defendant's negligent conduct and resulting harm to others.'

Comment (c) to this section reads as follows:

'In particular, the rules stated in Section 433A as to the apportionment of harm to different causes are applicable in cases of contributory negligence. Where the harm is single and indivisible, it is not apportioned between the plaintiff and the defendant, in the absence of a statute providing for such division of the damages upon an arbitrary basis. Where, however, there are distinct harms, or a reasonable basis is found for the division of a single harm, the damages may be apportioned, and the plaintiff may be barred only from recovery and so much of the harm as is attributed to his own negligence. Such apportionment is commonly made, under the damages rule as to avoidable consequences, where the plaintiff suffers an original injury, and his negligence consists in failure to exercise reasonable care to prevent further harm. See Section 918. The apportionment may, however, be made in other cases, as where, for example, the plaintiff has contributed to the pollution of a stream, along with one or more defendants.

Such apportionment may also be made where the antecedent negligence of the plaintiff is found not to contribute in any way to the original accident or injury, but to be a substantial contributing factor in increasing the harm which ensues. There must of course be satisfactory evidence to support such a finding, and the Court may properly refuse to permit the apportionment on the basis of mere speculation.'

The last paragraph of that quotation is appropriate to the situation before this court in the sense that plaintiff's negligence, if any, in not using seat belts did not 'contribute in any way to the original accident.' Was it a 'substantial contributing factor in increasing the harm' which ensued? Possibly so, but more to the target here is the last sentence of the comment quoted above. That puts before this court the question as to whether or not there is, in this case, 'satisfactory evidence' to support a finding that the failure to use seat belts was a 'substantial contributing factor increasing the harm' which plaintiff suffered. There is no such evidence here. I am not now deciding how I would rule if there were here expert evidence to the effect that, if seat belts had been used by plaintiff, he would not have suffered the injuries which have been revealed in this testimony. Parenthetically, the court can see many difficulties in producing effective expert testimony to establish that fact. It would have to be based upon a hypothetical question of detailed specificity, strictly tailored to the facts proved with respect to the kind of seat belt used, its adjustment, the distance of the passenger from, let us say, the windshield, and many other imponderables which I would not attempt to fully envision here. ³ In any event, there is no such expert testimony in the record. But applying the last observation of the comment above (i.e., the court may properly refuse to permit the apportionment on the basis of mere speculation), the court finds that an attempt by the jury to apportion plaintiff's damages which were due to his failure to use seat belts, as against what injuries he would have suffered if the seat belts were used, would be the purest kind of speculation.

This is not an instance of the application of the 'avoidable consequences' doctrine, where a plaintiff may not recover damages for injuries which he may have avoided. That doctrine applies when his carelessness occurs After defendant's legal wrong has been committed. Contributory negligence comes into action before defendant's wrong has been committed. ⁴

Prosser on Torts, (3d ed. 1964), § 64, pp. 433 and 434, after distinguishing the doctrine of 'avoidable consequences' from the doctrine of 'contributory negligence,' says as to the former: 'If no such division can be made, the plaintiff's negligence will bar all recovery. * * *' He then goes on to say: 'In a limited number of situations, the plaintiff's unreasonable conduct, although it is prior or contemporaneous, may be found to have caused only a separable part of the damage.' We stress the word 'separable.'

And:

'In such a case, even though it is called contributory negligence, the apportionment will be made. This is true, for example, where plaintiff and defendant both pollute the same stream, or flood the plaintiff's property, or cause other damage similar in kind but capable of logical division. A more difficult problem is presented when the plaintiff's prior conduct is found to have played no part in bringing about an impact or accident, but to have aggravated the ensuing damages.' (id. at 433)

The latter problem is what is involved here. Prosser then says that in such a situation a Connecticut court refused to make any division. On the other hand, courts in Iowa and Kansas have apportioned damages, holding that plaintiff's recovery will be reduced to the extent that they have been aggravated by his own negligence....