Dziedzic v. St. John's Cleaners & Shirt Launderers, Inc.

• Citation: 53 N.J. 157,249 A.2d 382
• Decision Date: 20 January 1969
• Docket Number: No. A--43,A--43
• Parties: Jean DZIEDZIC and Louis Dziedzic, Plaintiffs-Appellants, v. ST. JOHN'S CLEANERS AND SHIRT LAUNDERERS, INC., a corporation, and JosephDingle, Defendants-Respondents, and Ivan Winger and Evelyn Winger, jointly, severally and/or in the alternative, Defendants.
• Court: New Jersey Supreme Court

Page 157

53 N.J. 157

249 A.2d 382

Jean DZIEDZIC and Louis Dziedzic, Plaintiffs-Appellants, v. ST. JOHN'S CLEANERS AND SHIRT LAUNDERERS, INC., a corporation, and JosephDingle, Defendants-Respondents and Ivan Winger and Evelyn Winger, jointly, severally and/or in the alternative, Defendants.

No. A--43.

Supreme Court of New Jersey.

Argued Nov. 6, 1968.

Decided Jan. 20, 1969.

William J. Murray, Jersey City, for defendants-respondents, St. John's Cleaners and Shirt Launderers, Inc., a corporation, and Joseph Dingle.

Frank Lerner, Jersey City, for plaintiffs-appellants (Schwartz, Horowitz & Krivitzky, Jersey City, attorneys).

The opinion of the court was delivered by

PROCTOR, J.

This automobile negligence case arose out of an intersection collision in which the plaintiff Jean Dziedzic was injured. She was a passenger in a delivery truck operated by defendant Dingle, an employee of defendant St. John's Cleaners and Shirt Launderers, Inc., owner of the vehicle. The truck collided with a car driven by defendant Winger. In Mrs. Dziedzic's suit against the three defendants, the jury found that Dingle, the driver of the truck, had negligently caused the collision and her ensuing injuries, and returned a verdict of $6,000.00 against him and his employer, St. John's. Winger was absolved of responsibility. On the appeal of Dingle and St. John's, the Appellate Division reversed and remanded for a new trial, holding that the trial court had erroneously granted the plaintiff's motion to strike the defense of contributory negligence. 99 N.J.Super. 565, 240 A.2d 697. We granted plaintiff's petition for certification. 51 N.J. 580, 242 A.2d 383 (1968).

The validity of plaintiff's motion to strike the defense of contributory negligence is the sole question on this appeal. At the trial, the defense contended that Mrs. Dziedzic had been negligent in riding in the laundry delivery truck, a vehicle equipped with only one seat for the driver. The driver's seat was elevated; between the seat and the truck's sliding door was 'the well' of the truck on a lower level, where Mrs. Dziedzic was standing at the time of the collision. She testified that she was 'holding on to the dashboard and there was like a, piece of pipe or something, I was holding on to that.'

The trial judge held that Mrs. Dziedzic's conduct had not contributed to the cause of the Collision. He further held that a jury could find that in riding in the truck as she did, plaintiff was not exercising reasonable care. However, with regard to the plaintiff's alleged contribution to her Injuries, since no evidence had been introduced by either party on this point, the judge held that the jury could only speculate as to which portion of plaintiff's injuries was due to her position in the truck. He therefore struck the defense of contributory negligence.

In reversing the plaintiff's judgment, the Appellate Division ordered a new trial which would be restricted to the question of the causal relation between plaintiff's asserted negligence and her injuries, holding that the plaintiff must bear the risk of a failure of the evidence to provide a reasonable basis for apportioning the damages. 99 N.J.Super. at p. 571, 240 A.2d 697.

At the outset, we agree with the trial court, and it is not otherwise contended, that the plaintiff's position in the truck did not in the slightest contribute to the cause of the collision. It is also undisputed that the jury could find, as it did, that defendant's negligent driving was a proximate cause of plaintiff's injuries. We assume, as did the Appellate Division, that the trial judge was correct in ruling that the jury could find that the plaintiff had not exercised reasonable care in standing in the truck, even though it might well be that in permitting the plaintiff to stand in the truck, defendants should be barred from asserting her contributory negligence in any aspect. Therefore, the only controversy centers upon the role of plaintiff's conduct as an alleged proximate cause of her injuries, concurrent with the defendant's negligence.

To best understand the dispute we must briefly mention the traditional framework for this kind of tort litigation. A plaintiff bears the burden of proving defendant's negligence, and that such negligence was a proximate cause of plaintiff's injury. In New Jersey, once the plaintiff's burden has been met, the defendant bears the burden of pleading and proving plaintiff's negligence, and that such negligence contributed to the injury as a proximate cause. R.R. 4:8--3. Contributory negligence is an affirmative defense. See Pangborn v. Central Railroad Co. of New Jersey, 18 N.J. 84, 112 A.2d 705 (1955); Kaufman v. Pennsylvania Railroad Co., 2 N.J. 318, 66 A.2d 527 (1949).

The question in the present case as the Appellate Division framed it was as follows: Once both the plaintiff and the defendant have met their respective burdens, i.e., that there is evidence that both parties were negligent and that both parties' negligent conduct contributed to the injury as a proximate cause, who then bears the burden of apportionment? Through an analysis of several sections of the Restatement of Torts 2d, the Appellate Division concluded that the plaintiff bears the risk of adducing evidence which is specific enough for a jury to reasonably apportion responsibility for the injuries. We hold that the conclusion of the Appellate Division was reached prematurely. That is, regardless of which party is to bear the burden of apportionment, in the present case the defendants have not met their traditional burden of proving the causal link between plaintiff's alleged negligent conduct and her injuries.

Meeting the burden of causation is a precondition for deciding the apportionment issue. Since contributory negligence is an affirmative defense, the defendants must show that Mrs. Dziedzic would have been injured more seriously by standing in the truck as she did than she would have been had she ridden as an automobile passenger normally rides, in a seated position. ¹ This the defendants did not show. For all the jury might have known, Mrs. Dziedzic could have been injured to a Greater extent if she had been seated. A jury could do no more than speculate on the facts presented. The trial court was therefore correct in striking the affirmative defense of contributory negligence.

The analogy to recent litigation involving the seat belt defense is helpful here. It has been said that in most situations it is better to fasten a seat belt than to ignore it. See Roethe, Seat Belt Negligence in Automobile Accidents, 1967 Wis.L.Rev. 288. ² Even if we assume, as we do For the purpose of the argument only, that a reasonable man would fasten an available seat belt, nevertheless those cases which make the same assumption hold that the only way the seat belt defense can go to the jury is if the defendant comes forward with specific evidence demonstrating the causal link; i.e., the relationship between failure to fasten the belt and the plaintiff's injuries. See Barry v. Coca Cola Co. et al., 99 N.J.Super. 270, 275, 239 A.2d 273 (Law Div.1967); Bentzler v. Braun, 34 Wis.2d 362, 363, 386, 387, 149 N.W.2d 626, 640, 641 (1967); Tom Brown Drilling Co. v. Nieman, 418 S.W.2d 337, 340--341 (Tex.Civ.App.1967); Kavanagh v. Butorac, 221 N.E.2d 824 (Ind.App.1966); Annotation, 15 A.L.R.3d 1428 (1967); Note, Failure to Fasten Seat Belt Is Not Contributory Negligence as a Matter of Law, 31 Albany L.Rev. 373, 378 (1967). The discussion by Chief Justice Currie of the Supreme Court of Wisconsin in Bentzler v. Braun, supra, is illustrative:

'While it is apparent that these statistics (in the Roethe article, supra) cannot be used to predict the extent or gravity of injuries resulting from particular automobile accidents involving persons using seat belts as compared to those who are not using them, it is obvious that, on the average, persons using seat belts are less likely to sustain injury and, if injured, the injuries are likely to be less serious. On the basis of this experience, and as a matter of common knowledge, an occupant of an automobile either knows or should know of the additional safety factor produced by the use of seat belts.

'We therefore conclude that, in those cases where seat belts are available and there is evidence before the jury indicating causal relationship between the injuries sustained and the failure to use seat belts, it is proper and necessary to instruct the jury in that regard. A jury in such case could conclude that an occupant of an automobile is negligent in failing to use seat belts. In the instant case, however, because of the lack of any evidence of causation, the trial judge properly refused the requested instruction (pertaining to the elimination or reduction of damages by plaintiff's failure to use the available seat belt).' (Emphasis added.)

Similarly, in the present case plaintiff's motion to strike contributory negligence was properly granted because of the lack of any evidence of causation.

We do not agree with the Appellate Division's holding because we think it derives from a mistaken premise. The Appellate Division assumed that the defendants' burden of proving causation had already been met; that the evidence presented a factual case justifying a finding of contributory negligence and causal connection with the plaintiff's injuries taken as a whole. 99 N.J.Super. at pp. 570--571, 240 A.2d 697. This assumption is not supported by the record. As we have said above, no evidence had been offered by the defendants as to causation. Mrs. Dziedzic's alleged carelessness in standing in the well of the truck could have been responsible for none or all of her injuries. By assuming that plaintiff's conduct was a contributing cause of her injuries, the Appellate Division relied on sections of Restatement, Torts 2d which apply to injuries caused by the combined action of two or more negligent parties. Of key...