Enders v. Boggs
| Decision Date | 19 October 1998 |
| Citation | 178 Misc.2d 528,679 N.Y.S.2d 561 |
| Parties | , 1998 N.Y. Slip Op. 98,591 Kelly E. ENDERS, Plaintiff, v. Steven W. BOGGS et al., Defendants and Third-Party Plaintiffs. County of Schoharie, Third-Party Defendant. |
| Court | New York Supreme Court |
Bouck, Holloway, Kiernan & Casey, Albany, for defendants and third-party plaintiffs.
Michael M. Emminger, Albany, for third-party defendant.
Wiley & Clyne, L.L.P., Albany, for plaintiff.
The instant action arises out of a motor vehicle accident which occurred on July 5, 1992. Plaintiff Kelly E. Enders was a passenger in an automobile being operated by defendant Melanie K. Boggs on Grovenor Corners Road, Cobleskill, New York. The motor vehicle allegedly failed to negotiate a turn in the road, left the road, crashed and rolled over. It is uncontroverted that plaintiff was wearing a seat belt at the time of the accident. Defendant contends that plaintiff was resting her feet on the dashboard at the time of the accident. Defendant has requested a charge that the jury, in assessing defendant's liability, consider plaintiff's comparative fault in resting her feet on the dashboard of the motor vehicle.
The Court has reviewed the memorandums of law submitted by counsel for the parties and the cases which have been cited. In the Court's view, the situation presented in the case at bar has similarities to the situation before the Court of Appeals in Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164. In that case (which arose before the advent of legislation mandating the use of automobile seat belts) the defendant sought to raise the seat belt defense within the context of a defense of contributory negligence. The Court of Appeals found that since there was no causal connection between the nonuse of the seat belt and the accident itself, there could be no contributory negligence on the part of the plaintiff (id., at 451, 363 N.Y.S.2d 916, 323 N.E.2d 164), but that the defendant's seat belt defense could be considered by the trier of fact in determining the issue of damages. The Court noted, however, that with respect to the issue of damages, the seat belt defense should not be submitted to the jury unless the defendant could demonstrate by competent evidence, (1) a causal connection between the plaintiff's nonuse of an available seat belt and the injuries and damage sustained and (2) that the plaintiff's injuries were enhanced or exacerbated by such nonuse (see, Spier v. Barker, 35 N.Y.2d 444, 450, 451, 363 N.Y.S.2d 916, 323 N.E.2d 164).
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Estevez v. U.S.
...5. "`Each passenger has an independent common-law duty to exercise reasonable care for his [or her] own safety.'" Enders v. Boggs, 178 Misc.2d 528, 679 N.Y.S.2d 561, 562 (Supt. Ct. Rensselear Co.1998 (citing cases)). A passenger must exercise reasonable care and mitigate damages by wearing ......