Fischer v. Moore

Citation517 P.2d 458,183 Colo. 392
Decision Date24 December 1973
Docket NumberNo. C--329,C--329
PartiesRonald G. FISCHER, Petitioner, v. Raymond MOORE, Respondent.
CourtSupreme Court of Colorado

White & Steele, Lowell M. Fortune, Denver, for petitioner.

Holley, Boatright & Villano, George Alan Holley, Wheat Ridge, for respondent.

ERICKSON, Justice.

On certiorari, the sole issue which we are called upon to resolve relates to the pleading and use of the so-called seat belt defense in Colorado to establish contributory negligence. In a well reasoned opinion expressing the views of the Court of Appeals, the late Judge William F. Dwyer thoroughly analyzed the law relating to the failure to use seat belts and concluded that under the doctrine of contributory negligence, as it then existed in Colorado, the failure to use seat belts neither established contributory negligence nor provided an affirmative defense. Moore v. Fischer, 31 Colo.App. 425, 505 P.2d 383 (1972). We affirm the Court of Appeals.

The automobile collision, upon which this civil tort action for damages was predicated, occurred prior to the time that the Colorado legislature enacted the comparative negligence statute. 1971 Perm.Supp., C.R.S.1963, 41--2--14. As a result, the disposition of this appeal is controlled by the doctrine of contributory negligence. Moreover, because contributory negligence acts as a complete bar to recovery and rests upon different policy considerations, the conclusions reached in this decision should not be construed to apply as a bar to the seat belt defense, in a similar factual setting, under the Colorado comparative negligence statute.

The plaintiff instituted this action to recover damages for personal injuries which he suffered as a result of a rear-end automobile collision. The severe impact which occurred between the vehicles in the collision indicated that the defendant was traveling at a high rate of speed when he collided with the plaintiff's stopped vehicle and that the defendant made little effort to decrease his speed prior to the creash. In fact, the proceedings held in the trial court, as reflected in the record, establish that the defendant was negligent as a matter of law in contributing to the collision and the plaintiff's resulting injuries. Dilts v. Baker, 162 Colo. 568, 427 P.2d 882 (1967).

At the time of the collision, the plaintiff was not wearing the seat belt which was available in his automobile. The defendant has argued that the plaintiff's failure to use a seat belt constitutes contributory negligence and should bar recovery. In the alternative, the defendant has argued that the failure to wear seat belts, if not contributory negligence Per se, at least should be considered in mitigation of damages. The trial court and the Court of Appeals rejected both arguments.

Under the common-law principles of tort law, it is axiomatic that the tortfeasor must accept the plaintiff as he finds him and may not seek to reduce the amount of damages by spotlighting the physical frailties of the injured party at the time the tortious force was applied to him. W. Prosser, Law of Torts, § 50 (3d ed. 1964), p. 299; Dulieu v. White & Sons, 2 K.B. 669 (1901). See Williams, The Risk Principle, 77 L.Q.Rev. 179 (1961); Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811 (1963). Along similar lines of reasoning, the common law dictates that the tortfeasor may not rely upon the injured party's failure to utilize a voluntary protective device to escape all or a portion of the damages which the plaintiff incurred as a consequence of the defendant's negligence. See Perkins v. Vermont Hydroelectric Corp., 106 Vt. 367, 177 A. 631 (1934); Osborne v. Montgomery, 203 Wis. 223, 234 N.W. 372 (1931); Federal Register, Vol. 34, No. 126, July 2, 1969; Tourin & Garrett, Safety Belt Effectiveness in Rural California Automotive Accidents, Automotive Crash Injury Research (ACIR), Cornell University (New York, 1960); Huelke & Gikas, Causes of Death in Automobile Accidents, University of Michgan (1966); Seat Belt Status of Motor Vehicle Occupants Who Died in Accidents on Labor Day Weekend, 1966, Statistics Division, National Safety Council, March 10, 1967; A Study of Seat Restraint Use and Effectiveness in Traffic Accidents, Highway Safety Foundation (1970); Chicago Traffic Safety Review, May--June, 1968; Accident Facts, National Safety Council, 1971 Edition.

We conclude, as the Court of Appeals has, that the failure of the driver or passenger in a motor vehicle to use a seat belt does not constitute contributory negligence and may not be pleaded as a bar to recovery of damages in an action against a tort-feasor whose negligence provides the initiating force and is a proximate cause...

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38 cases
  • Kopischke v. First Continental Corp.
    • United States
    • Montana Supreme Court
    • 22 Mayo 1980
    ...362 A.2d 720; Miller v. Haynes (Mo.App.1970), 454 S.W.2d 293; Miller v. Miller (1968), 273 N.C. 228, 160 S.E.2d 65; Fischer v. Moore (1973), 183 Colo. 392, 517 P.2d 458; Nash v. Kamrath (1974), 21 Ariz.App. 530, 521 P.2d 161; Placek v. City of Sterling Heights (1974), 52 Mich.App. 619, 217 ......
  • Waterson v. General Motors Corp.
    • United States
    • New Jersey Supreme Court
    • 27 Julio 1988
    ...v. Diamiani, 226 A.2d 914, 918 (Del.Super.Ct.1967); a tortfeasor must accept the plaintiff as he finds him, see Fischer v. Moore, 183 Colo. 392, 394-95, 517 P.2d 458, 459 (1977); seat belt effectiveness is too speculative, see Britton v. Doehring, 286 Ala. 498, 242 So.2d 666, 675 (1970); D.......
  • LaHue v. General Motors Corp., 88-5063-CV-SW-1.
    • United States
    • U.S. District Court — Western District of Missouri
    • 5 Julio 1989
    ...mandate creating a duty to use a seat belt. Dunn v. Durso, 219 N.J.Super. 383, 530 A.2d 387, 395 (1986). See e.g., Fischer v. Moore, 183 Colo. 392, 517 P.2d 458 (1973); Britton v. Doehring, 286 Ala. 498, 242 So.2d 666 (1970); Thomas v. Henson, 102 N.M. 326, 695 P.2d 476 (1985), aff'g in par......
  • Davis v. Knippling
    • United States
    • South Dakota Supreme Court
    • 1 Abril 1998
    ...Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 (1978); Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Okla.1976); Fischer v. Moore, 183 Colo. 392, 517 P.2d 458 (1973); Hagwood v. Odom, 88 N.C.App. 513, 364 S.E.2d 190 (N.C.Ct.App.1988); Hillier v. Lamborn, 740 P.2d 300 (Utah Ct.App.1987);......
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8 books & journal articles
  • RULE 59
    • United States
    • Colorado Bar Association C.R.S. on Family and Juvenile Law (2022 ed.) (CBA) Colorado Rules of Civil Procedure
    • Invalid date
    ...trial record which requires reversal of judgment but not new trial, see Moore v. Fischer, 31 Colo. App. 425, 505 P.2d 383 (1972), aff'd, 183 Colo. 392, 517 P.2d 458 (1973). No relief under this rule for malpractice of party's own attorney. In re Jaeger, 883 P.2d 577 (Colo. App. 1994). Susta......
  • Chapter 3 - § 3.4 • ISSUES RELATING TO LIABILITY AND DAMAGES IN LITIGATION OF MOTOR VEHICLE ACCIDENT CLAIMS
    • United States
    • Colorado Bar Association Colorado Automobile Accident Litigation & Insurance Handbook (CBA) Chapter 3 Automobile Liability Claims and Liability Insurance
    • Invalid date
    ...the liability of a defendant or the damages available to a plaintiff in an automobile accident." Id. In Colorado, in Fischer v. Moore, 517 P.2d 458, 459 (Colo. 1973), the supreme court held that evidence of a failure to wear a seatbelt could not be used to establish contributory negligence.......
  • COLORADO RULES OF CIVIL PROCEDURE
    • United States
    • Colorado Bar Association C.R.S. on Family and Juvenile Law (CBA) Colorado Rules of Civil Procedure
    • Invalid date
    ...trial record which requires reversal of judgment but not new trial, see Moore v. Fischer, 31 Colo. App. 425, 505 P.2d 383 (1972), aff'd, 183 Colo. 392, 517 P.2d 458 (1973). No relief under this rule for malpractice of party's own attorney. In re Jaeger, 883 P.2d 577 (Colo. App. 1994). Susta......
  • Rule 59 MOTIONS FOR POST-TRIAL RELIEF.
    • United States
    • Colorado Bar Association Colorado Rules of Civil and Appellate Procedure (CBA)
    • Invalid date
    ...trial record which requires reversal of judgment but not new trial, see Moore v. Fischer, 31 Colo. App. 425, 505 P.2d 383 (1972), aff'd, 183 Colo. 392, 517 P.2d 458 (1973). No relief under this rule for malpractice of party's own attorney. In re Jaeger, 883 P.2d 577 (Colo. App. 1994). Susta......
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