Comer v. Preferred Risk Mut. Ins. Co.

• Decision Date: 26 October 1999
• Docket Number: No. 93,207.,93,207.
• Citation: 991 P.2d 1006,1999 OK 86
• Parties: Ron and Lisa COMER, as parents and next friends of Marie Comer, deceased, Plaintiffs/Appellants, v. PREFERRED RISK MUTUAL INS. CO., an Iowa corporation; Adam G. Sepulveda, an individual, Defendants, First Baptist Church of El Reno, an Oklahoma non-profit corporation, Defendant/Appellee.
• Court: Oklahoma Supreme Court

991 P.2d 1006

1999 OK 86

Ron and Lisa COMER, as parents and next friends of Marie Comer, deceased, Plaintiffs/Appellants, v. PREFERRED RISK MUTUAL INS. CO., an Iowa corporation; Adam G. Sepulveda, an individual, Defendants, First Baptist Church of El Reno, an Oklahoma non-profit corporation, Defendant/Appellee.

No. 93,207.

Supreme Court of Oklahoma.

October 26, 1999.

Reggie N. Whitten, Simone Gosnell Fulmer, Oklahoma City, Oklahoma, For Plaintiffs/Appellants.

Jack Dawson, Steven E. Bracklein, Oklahoma City, Oklahoma, For Appellee.

¶ 1 KAUGER, J

¶ 2 The dispositive issue presented is whether 47 O.S.1991 § 12-420¹ of the Oklahoma Mandatory Seat Belt Use Act, [the Act]² precludes the introduction of evidence of the use or nonuse of seat belts to support a claim of negligence in a wrongful death action — it does. The Act clearly and unambiguously states: "Nothing in this act shall be used in any civil proceeding in this state and the use or nonuse of seat belts shall not be submitted into evidence in any civil suit in Oklahoma."³

FACTS

¶ 3 On July 7, 1997, the appellee, the First Baptist Church of El Reno [Church] arranged transportation to a summer youth camp for its youth group. The Church borrowed a van from one of its members, and allegedly, the van owner told the Church's youth director that the van would carry seven people. However, it was occupied by eight passengers at the time of the accident.

¶ 4 Although each of the teen-age girls occupied a seat in the van at the time of the accident, there were only seat belts for five girls in the back of the van — one of which was stuffed down in the seat and out of view. The van was occupied by a church volunteer driver, Jackie Reeves, and a front seat passenger, Jessica Baker. They wore seat belts, but the other passengers did not. Marie Comer, Heather Fuhr, and Emily Wilds occupied the middle seat bench, and Jessica Lee, Rebekah Swaim, and Kelsy Wint sat on the back bench seat. Marie Comer was seated directly behind the driver and although a seat belt was available for her use, she did not use it.

¶ 5 Marie Comer was killed when the van was struck by another vehicle en route to camp. On January 4, 1999, her parents, Ron and Lisa Comer, (appellants/parents) sued the Church⁴ alleging that it was negligent because the van did not have enough seat belts for the number of back seat passengers it carried, and that the passengers were not required to wear the seat belts which were provided. The Church appeared specially and moved to dismiss the parents' claim. It argued that the parents had failed to state a claim for which relief could be granted, and that 47 O.S.1991 § 12-420⁵ prohibited the presentation of any evidence to support the allegations of negligence.

¶ 6 Pursuant to 12 O.S.1991 § 2012(B),⁶ the trial court treated the motion to dismiss as a motion for summary judgment, and on May 18, 1999, it entered judgment in favor of the Church and against the parents. The parents appealed on June 16, 1999, and filed a motion to retain the cause in this Court. On September 17, 1999, we retained the cause to address the first impression question regarding the application of 47 O.S.1991 § 12-420⁷ to a claim for negligence.

¶ 7 PURSUANT TO 47 O.S.1991 § 12-420, EVIDENCE OF THE USE OR NONUSE OF SEAT BELTS MAY NOT BE INTRODUCED TO SUPPORT A CAUSE OF ACTION.

A.

The Oklahoma Mandatory Seat Belt Use Act does not impose a statutory duty upon the operator of a passenger vehicle to require back seat passengers to use a seat belt, nor has this Court recognized such a duty at common law.

¶ 8 The parents concede that the Oklahoma Mandatory Seat Belt Use Act, [the Act], 47 O.S.1991 § 12-416 et seq., requires only that the occupants of the front seat in passenger vehicles wear seat belts and that the Act does not require back seat passengers to buckle-up.⁸ Nevertheless, they argue that they should recover damages for the wrongful death of their daughter because of the breach of the Church's common law duty. They assert that after the Church voluntarily assumed a parental/supervisory role it was charged with the duty to provide a safe environment in which to travel; the duty not to overload the van in such a way as to preclude the opportunity for every girl to use a seat belt;⁹ and the duty to instruct or require the minor passengers to use seat belts.

¶ 9 The Church acknowledges that Marie Comer was not wearing a seat belt at the time of the accident, but it contends that regardless of whether this was due to any action of the Church, the parents' claim must fail. The Church alleges that: 1) seat belts are only required to be used by the driver and front seat passenger; 2) Marie Comer was neither driving nor in the front seat; 3) there is no duty to require all passengers to wear seat belts; 4) the Legislature has mandated the inadmissibility of evidence of use or nonuse of seat belts in any civil trial; and 5) even if there were a duty to require back seat passengers to wear seat belts, 47 O.S. 1991 § 12-420¹⁰ precludes the parents' submission of evidence to support their allegations.

¶ 10 A party seeking to establish negligence must prove by a preponderance of evidence the existence of a duty owed by the defendant to the plaintiff to use ordinary care, a breach of that duty, and an injury proximately caused by the defendant's breach of duty.¹¹ The parties agree that we have never recognized that the common law duty of care of a parent, adult, group, or organization toward a minor includes the duty to make seat belts available in all seating positions or to instruct or require the use of seat belts. However, they urge that we should do so now.

¶ 11 The duty to use a seat belt and evidence of its use or nonuse is not entirely new to Oklahoma jurisprudence. In Fields v. Volkswagen of America, Inc., 1976 OK 106, 555 P.2d 48, 84 A.L.R.3d 1199, the Court addressed seat belt evidence admissibility as it related to establishing a defense of contributory negligence or for mitigation of damages. Fields involved an action for personal injuries sustained by a driver when his steering wheel locked while he was driving the car. The driver alleged that the steering wheel locking mechanism was defective. During the trial on damages, the trial court refused to allow the admission of testimony that the driver was not wearing his seat belt, and it refused to instruct the jury that the failure to wear a seat belt could be considered in mitigation of damages.

¶ 12 After considering the question on appeal, the Fields Court held:

"There is no common law or statutory duty requiring the use of seat belts. Imposition of new and recent technological advances are not usually inducted into doctrines of law, until such time as they have been sufficiently tried, proven and accepted for the purpose they were intended. Historically, the seat belt phenomenon is in its infancy. It is in a state of influx.

. . .

Although there is a conflict in other jurisdictions who have been confronted with this issue, the majority of the cases hold that the failure to use seat belts is not a defense to establish contributory negligence or to reduce the amount of damages to the injured party.

In view of the lack of unanimity on a proper seat belt system, the lack of public acceptance, and in the absence of any common law or statutory duty, we find that evidence of the failure to use seat belts is not admissible to establish a defense of contributory negligence or to be considered in mitigation of damages. For the present time we await the direction of the legislature."

Although our 1976 holding in Fields related to establishing a defense of contributory negligence or consideration of mitigation of damages, we also recognized that the only legislation relating to seat belts was a statute which made it unlawful to sell a post-1966 model vehicle without seat belts for the front right and left seats.¹²

¶ 13 After almost a quarter of a century the use of seat belts is no longer in its infancy, and it is generally accepted that seat belt usage reduces traffic fatalities. In support of their position, the parents direct our attention to statistics contained in Oklahoma Crash Facts, 1997 Edition, a report issued by the Oklahoma Highway Safety Office. It finds that in 1997, 87.2% of fatality victims should have been using seat belts or child restraints; 73.6 % of fatality victims were not using seat belts or child restraints; only 22.2% of fatality victims were using seat belts or child restraints; 4.2% were cases in which seat belt usage was unknown; and 12.8% of fatality accidents were cases in which seat belt usage was not applicable.

¶ 14 The Legislature first responded to Fields in 1983, with its enactment of 47 O.S. Supp.1983 § 11-1112,¹³ regulating the use of child passenger restraint systems. Under the current version of § 11-1112,¹⁴ drivers are required to provide for the protection of children under the age of four, weighing sixty pounds or less, by properly using a child passenger restraint system. Children four or five years of age are required to be protected by either a child passenger restraint system or a seat belt. Any person convicted of violating the statute is imposed with fine of $10.00 and a maximum of $15.00 in court costs.¹⁵ Incongruously, these requirements do not apply to the "driver of a vehicle if all of the seat belts in the vehicle are in use."¹⁶

¶ 15 In 1985, the Legislature enacted the Oklahoma Mandatory Seat Belt Use Act, 47 O.S.1991 § 12-416 et seq. Operators and front seat passengers of passenger cars are required to wear seat belts, unless they are excused for medical reasons.¹⁷ The fine and court costs for violating this section are limited to $20.00.¹⁸ Inexplicably, the Act does not require that back seat passengers wear seat belts, nor does it distinguish between ages of passengers or make any particular requirements for minors.

¶ 16 However, under this statutory scheme,...