Franklin v. Gibson

• Decision Date: 21 December 1982
• Court: California Court of Appeals Court of Appeals
• Parties: Harold FRANKLIN and Imagene Franklin, Plaintiffs and Appellants, v. Raymond Joseph GIBSON and Your Man Tours Charter Service, Inc., Defendants and Respondents. Civ. 65832.

Page 23

188 Cal.Rptr. 23

138 Cal.App.3d 340

Harold FRANKLIN and Imagene Franklin, Plaintiffs and Appellants, v. Raymond Joseph GIBSON and Your Man Tours Charter Service, Inc., Defendants and Respondents.

Civ. 65832.

Court of Appeal, Second District, Division 4, California.

Dec. 21, 1982.

Hearing Denied March 16, 1983.

Matz, Brody & Albert and Jeffrey A. Matz, Encino, for plaintiff and appellant.

Veatch, Carlson, Grogan & Nelson and Robert C. Carlson, Los Angeles, and Herbert F. Blanck, Encino, for defendant and respondent, Raymond Joseph Gibson.

H.P. NELSON, ^* Associate Justice.

In this personal injury action arising out of a rear-end collision by a bus against an automobile, the defendants raised as contributory negligence the failure of the plaintiffs to wear seat belts. The trial court permitted the jury to apportion damages to the plaintiffs' failure to wear seat belts, although the defendants presented no evidence, expert or otherwise, to show what consequences would have been avoided by the use of seat belts. We have concluded that the trial court should not have allowed the jury to consider the "seat belt" issue in view of the defendants' failure to establish that the plaintiffs' injuries were aggravated or made worse by the nonuse of seat belts.

Harold and Imagene Franklin sued the bus driver Raymond Gibson and his employer Y.M.T. Charter Service for personal injuries. The jury rendered verdicts in favor of plaintiffs, with special findings that Harold Franklin's negligence contributed 30 percent, and Imagene Franklin's negligence, 35 percent, to their respective injuries. Judgment was accordingly entered, and plaintiffs' motion for new trial was denied. A timely notice of appeal was filed. We modify the judgment by striking that portion resulting from the special findings, and affirm the judgment as modified.

The facts are relatively simple: Harold and Imagene Franklin, driver and passenger, respectively, were turning into the driveway of their place of employment, when a bus driven by Raymond Gibson, an employee of Y.M.T. Charter Service, struck the Franklin automobile in the rear. The force of the collision knocked the car into a cement wall. The front seat supports in the car broke, and the Franklins were thrown about, resulting in the front seat landing on the rear seat, and Imagene on top of Harold. The Franklins and their expert witnesses testified to severe injuries and wage loss, requiring surgeries by both plaintiffs, becoming permanent with work restrictions, and possible future need for medical care. A detailed summary of that evidence is unnecessary to the issue and decision here.

Following jury selection, a chambers conference was had concerning the anticipated evidence on the seat belt issue. Defense counsel took the position that no expert testimony should be required, and that none would be proffered. The sole evidence offered by defendants, produced on cross-examination of Harold, on the issue the Franklins' negligence was that neither Harold nor Imagene were wearing seat belts.

The trial court instructed the jury that they were to determine whether the nonuse of seat belts, under the facts of the case, was contributory negligence on the part of the plaintiffs, and, if so, to reduce the total damage for each by the proportion or percentage of the negligence found attributable to each of them.

The "seat belt defense" was first addressed in California in Truman v. Vargas (1969) 275 Cal.App.2d 976, 80 Cal.Rptr. 373. Defendants, thereafter, are required to prove two issues of fact: (1) the defendant must show whether in the exercise of ordinary care the plaintiff should have used the seat belt which was available to him. (Parenthetically, we note that there is no direct evidence here of an available seat belt--Harold was asked merely whether he or his wife Imagene was wearing seat belts. The jury was left to guess or imply their availability.) (2) The defendant must show what the consequence to the plaintiff would have been had seat belts been used. As to this second prong of Truman, the clear rule was expressed that "upon the facts of [the] case ... it was not for nonexpert minds to determine what the consequences to Truman would have been if he had been using a seat belt.

"... [E]xpert opinions are essential to an informed and intelligent determination as to these critical facts." Truman v. Vargas, supra, at 982, 983, 80 Cal.Rptr. 373.

In McNeil v. Yellow Cab Co. (1978) 85 Cal.App.3d 116, 147 Cal.Rptr. 733, the issue was the liability of the common carrier to the passenger plaintiff for failure to provide visible seat belts. The taxicab was equipped with seat belts, but they were not visible. Twisting the seat belt doctrine around, the defendant argued that the plaintiff McNeil ought to have proved by expert witnesses that his injuries were proximately caused by the nonuse of seat belts. The argument was rejected, the court observing: "It seems clear, simply as a matter of common sense, that the absence of seat belt restraints under these circumstances proximately caused at least some, if not all, of plaintiff's claimed injuries." (Id. at p. 118, 147 Cal.Rptr. 733.) Under those facts, expert testimony was not legally required to establish that the plaintiff's injuries were proximately caused by the failure to make seat belts available to plaintiff. Significantly the court in a footnote then forecasted the issue of apportionment: "In the damage phase of the trial of this...