Breault v. Ford Motor Co.

• Decision Date: 05 December 1973
• Citation: 364 Mass. 352,305 N.E.2d 824
• Parties: Mathilda BREAULT et al. 1 v. FORD MOTOR COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 824

305 N.E.2d 824

364 Mass. 352

Mathilda BREAULT et al. ¹ v. FORD MOTOR COMPANY.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Oct. 2, 1973.

Decided Dec. 5, 1973.

William C. O'Neil, Jr., Worcester, for defendant.

John J. O'Connell, Worcester, for plaintiffs.

Before TAURO, C.J., and BRAUCHER, HENNESSEY, KAPLAN, and WILKINS, JJ.

WILKINS, Justice.

Mathilda Breault (the plaintiff) was injured while a passenger in a motor vehicle manufactured by the defendant Ford Motor Company (Ford). Ford concedes that there was sufficient evidence to warrant a finding that the plaintiff was injured due to negligence in the manufacture of the vehicle. Ford claims, however, that the judge improperly excluded a question put to the plaintiff asking whether she had a seat belt on at the time of the accident. Ford's answer, in addition to a general denial, alleged the affirmative defences of contributory fault and assumption of the risk.

On October 10, 1967, the plaintiff, aged sixty-two, was a passenger in the front seat of a 1966 Ford owned by her husband and operated by her daughter-in-law. The two door vehicle had a front seat the backs of which folded to permit passengers to get in the back seat. The plaintiff testified on direct examination that a condition arose requiring her daughter-in-law to stop the car abruptly. As the car was being stopped, the back of the seat snapped 'and threw the . . . (plaintiff) on the dashboard.' She then came back and the area between her shoulder blades struck the back of the seat which had twisted. Evidence, introduced later, indicated that the seat had not been properly attached on one side. The defect was not obvious without close inspection of the mechanism by which the seat was intended to be held in place.

On cross-examination, the plaintiff testified that the car had seat belts in the front seat. Counsel for Ford then inquired, 'Did you have the seat belts on at the time (of the accident)?' Counsel for the plaintiff objected; the judge sustained the objection; and Ford claimed an exception. No offer of proof was made by Ford. Nor did Ford undertake then or at any subsequent time to explain to the judge why the excluded question sought to elicit evidence which was relevant or material.

Ford does not seriously contend that a statutory obligation to wear seat belts is imposed by G.L. c. 90, § 7, as amended by St.1963, c. 826, which generally requires each private passenger vehicle used for other than public or commercial purposes, registered in the Commonwealth and manufactured for model years subsequent to 1964, to 'be equipped with two seat safety belts for the use of occupants of the front seats.' ² Ford does contend, however, that the absence of a statutory obligation to wear seat belts does not foreclose the existence of a jury question as to whether the plaintiff had a common law duty to wear a seat belt in the circumstances. In making this contention Ford asserts that the availability of seat belts, in response to a statutory mandate that they be made available, is an element to be considered in determining whether the plaintiff had a common law duty to wear the available seat belt.

Ford's argument that the plaintiff should have worn a seat belt is based on claims of (a) assumption of the risk, (b) contributory fault and (c) mitigation of damages. ³

The defence of assumption of the risk is not applicable in this case. Assumption of the risk, which must be pleaded as an affirmative defence (Winchester v. Solomon, 322 Mass. 7, 11, 75 N.E.2d 653 (1947)), as it was in this case, involves the voluntary consent of a person to encounter the risk and to take his chances. Hietala v. Boston & Albany R.R., 295 Mass. 186, 189--192, 3 N.E.2d 377 (1936). Holand v. Pitocchelli, 299 Mass. 554, 558, 13 N.E.2d 390 (1938). See Restatement 2d: Torts, § 496C. The plaintiff must be shown to know of the risk of harm from the defendant's conduct and to appreciate the unreasonable character of the risk. Restatement 2d: Torts, § 496D. Here there was no evidence that the plaintiff knew of the defect in the seat caused by Ford's negligence in the manufacture of the vehicle. Because the plaintiff did not know of the risk created by the defendant's negligence, she could not and did not assume it. Farley v. Hampson, 323 Mass. 550, 551--552, 83 N.E.2d 165 (1949).

Decisions in other jurisdictions have considered the seat belt defence in terms of the possibility of contributory fault or in terms of a possible duty of the plaintiff to take protective action analogous to a plaintiff's duty to mitigate damages. ⁴ A majority of the cases conclude that in normal driving circumstances there is no common law duty to wear a seat belt which would either constitute contributory fault ⁵ or justify a mitigation of the damages otherwise recoverable. ⁶ A minority of jurisdictions conclude that the failure to wear a seat belt creates a jury question on contributory fault ⁷ or mitigation of damages. ⁸ We have found no decision which makes the failure to wear a seat belt negligence as matter of law.

Courts which have rejected the seat belt defence have generally been unwilling to assume that seat belts have such an obvious beneficial effect that a common law duty to wear them should be found. See, e.g., Britton v. Doehring, 286 Ala. 498, 508, 242 So.2d 666 (1970). ⁹ At the same time, those courts have been willing in effect to take judicial notice that most people do not wear seat belts. See, e.g., Petersen v. Klos, 426 F.2d 199, 204 (5th Cir. 1970); Hampton v. State Hy. Commn., 209 Kan. 565, 580, 498 P.2d 236 (1972); Miller v. Miller, 273 N.C. 228, 232--233, 160 S.E.2d 65 (1968); Robinson v. Lewis, 254 Or. 52, 56, 457 P.2d 483 (1969). Common practice, which usually tends only to show that action consistent with it is not negligent (Clough v. New England Tel. & Tel. Co., 342 Mass. 31, 35, 172 N.E.2d 113 (1961)), has thus been regarded as virtually conclusive where the beneficial effect of seat belts is not assumed and no special circumstances exist calling for the use of seat belts. If one does what others do in like circumstances, the inference that he is conforming to the community standard of reasonable conduct may be so strong in particular circumstances as to establish that the individual was not negligent. See Corthell v. Great Atl. & Pac. Tea Co., 291 Mass. 242, 196 N.E. 850; Restatement 2d: Torts, § 295A, comment b; Prosser, Torts (4th ed.) § 33, pp. 166--168.

There was a reasonable basis for concluding in 1967 that one who did not wear a seat belt was conforming to a general, but not universal, practice in the community. Although the State had required two seat belts in the front seat of most private passenger vehicles manufactured for 1965, and for subsequent model years, it had not required the installation of seat belts in all passenger positions in such vehicles and had not required the installation of seat belts in all new vehicles nor at all in older motor vehicles. In 1967, the net benefit of wearing seat belts had not effectively been brought to the attention of the public. ¹⁰

Viewing this case therefore in the posture both of the trial at the time the evidence was excluded and of circumstances in October, 1967, when the accident occurred, we hold that Ford had an obligation to do more than simply except to the judge's ruling on the plaintiff's objection. In excluding the answer the judge did not have before him a readily apparent, material issue to which the failure to wear a seat belt was obviously relevant. Admittedly the question was excluded on cross-examination where an offer of proof is normally not required. Malden Equip. Corp. v. Malden Redevelopment Authy., 353 Mass. 495, 496, 233 N.E.2d 211 (1968). However, Ford was undertaking to establish a new principle of motor vehicle tort law in the Commonwealth. ¹¹ Standing alone, an answer that the plaintiff was not wearing the seat belt would have been insufficient to submit the seat belt issue to the jury. Ford should have disclosed that it proposed to connect the failure to wear the seat belt both to the plaintiff's injuries (or at least some of them) and to the existence of a duty to wear the seat belt. This case, therefore, falls into that relatively rare group of cases where, if the purpose or significance of the question is obscure and the prejudice to the cross-examiner is not clear, we have held that the record must disclose the cross-examiner's reason for seeking an answer to an excluded question. See Stevens v. William S. Howe Co., 275 Mass. 398, 401, 176 N.E. 208 (1931); Perry v. Carter, 332 Mass. 508, 513, 125 N.E.2d 780 (1955). Cf. Commonwealth v. Baker, 348 Mass. 60, 63, 201 N.E.2d 829 (1964). The materiality of the plaintiff's failure to wear a seat belt was particularly unclear in this atypical motor vehicle accident where the injury was caused by a defect in the seat in which the plaintiff was sitting. An inference was possible that the plaintiff would have sustained an equal or greater injury from the displacement of the seat if she had worn the seat belt.

We express no opinion whether the seat belt defence would have been appropriate in this case, if clearly presented, nor whether it would be appropriate in other circumstances, particularly in more recent years when the percentage of vehicles with seat belts has increased and the persistence of the Federal government on the subject of seat belts has reached the point where a functioning warning system must be installed in new motor vehicles. For example, an operator of a vehicle who defeats the purpose of the warning system by connecting the seat belt behind him may well be in a different position from the plaintiff here. ¹²

From what we have said the judge properly excluded the question whether the plaintiff was wearing the available seat belt.

Exceptions overruled.

1 The other plaintiff, the husband of Mathilda Breault, sued for comsequential...