Halvorson v. Voeller, 10294

• Decision Date: 24 June 1983
• Docket Number: No. 10294,10294
• Citation: 336 N.W.2d 118
• Parties: Lester V. HALVORSON, Individually and as Guardian and Conservator of Kevin John Halvorson, Plaintiff and Appellee, v. Neil VOELLER and Robertson Companies, Inc., d/b/a Robertson-Gambles, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 118

336 N.W.2d 118

Lester V. HALVORSON, Individually and as Guardian and Conservator of Kevin John Halvorson, Plaintiff and Appellee, v. Neil VOELLER and Robertson Companies, Inc., d/b/a Robertson-Gambles, Defendants and Appellants.

Civ. No. 10294.

Supreme Court of North Dakota.

June 24, 1983.

Richard A. Ohlsen (argued) and Jerome J. Mack, of Mack, Moosbrugger, Ohlsen & Dvorak, Grand Forks, and Alvin A. Anderson, of Davies, Pearson, Anderson, Seinfeld, Gadbow, Hayes & Johnson, Tacoma, Wash., for plaintiff and appellee.

James L. Lamb (argued) and Ralph F. Carter, of Degnan, McElroy, Lamb, Camrud, Maddock & Olson, Grand Forks, for defendants and appellants.

VANDE WALLE, Justice.

This is an appeal from an order of the district court, Grand Forks County, denying motions for judgment notwithstanding the verdict and for a new trial. We affirm the order denying judgment n.o.v. and reverse the order denying the motion for a new trial.

The motions were made following a jury trial in which the defendant, Neil Voeller, was found 92 percent negligent for causing an accident in which Kevin Halvorson, who was then 18 years old, was injured. The accident occurred when Voeller, who was stopped at a stopsign, moved north into an intersection toward which Halvorson was traveling from the west on a motorcycle he was operating. Before Voeller crossed the eastbound lane of traffic, Halvorson collided with the driver's side of the car Voeller was driving and was thrown from the motorcycle, which resulted in his suffering a severe brain injury. The jury awarded damages to Halvorson in the amount of $2,767,324.61. We affirm the jury's determination on the issue of liability, but we reverse for a redetermination on the issue of damages.

I

Prior to the trial, Voeller indicated an intention to present evidence to show Halvorson's head injuries would not have been so severe had he been wearing a helmet. In response, Halvorson made a motion in limine to prevent Voeller from presenting evidence of Halvorson's nonuse of a helmet on the issue of either liability or damages. Voeller argues that the court erred in granting the motion.

In its order denying Voeller's motion for a new trial, the trial court answered Voeller's contention that the court abused its discretion in not allowing testimony on Halvorson's failure to wear a helmet by saying:

"In the absence of legislation imposing a statutory duty for helmet usage for motorcycle riders over the age of eighteen, this Court finds that it would have been improper to establish a common law duty of care."

The court concluded with the statement:

"Just as evidence of use or non-use of seat belts is inadmissible, the evidence of use or non-use of motorcycle helmets is also inadmissible."

The obvious import of the court's response is that whether or not a qualified expert were prepared to testify that Halvorson's nonuse of a helmet increased the injuries he sustained, the proffered testimony would have been inadmissible as a matter of substantive law.

The precise question confronting us is whether or not the court's refusal to allow testimony of Halvorson's failure to wear a helmet was reversible error. We decide it was, but only as to the issue of damages.

Ordinarily, evidence of nonuse of a helmet has no relevance to the issue of liability for causing an accident; that is, seldom, if ever, will the fact that a person did not wear a protective helmet contribute to the cause of an accident. But cf. Curry v. Moser, 89 A.D.2d 1, 454 N.Y.S.2d 311 (1982). Nonuse of a helmet may, however, in many instances be a contributing cause to the injuries sustained, and therefore be relevant to the issue of damages. Helmetless Motorcyclists--Easy Riders Facing Hard Facts: The Rise of the "Motorcycle Helmet Defense," 41 Ohio St.L.J. 233 (1980); cf. Note, The Seat Belt Defense: A Comprehensive Guide for the Trial Lawyer and Suggested Approach for the Courts, 56 Notre Dame Law. 272 (1980).

In this regard, Comment c to Section 465 of 2 Restatement of Torts 2d states that apportionment of harm to different causes may be made "where the antecedent negligence of the plaintiff is found not to contribute in any way to the original accident or injury, but to be a substantial contributing factor in increasing the harm which ensues." ¹ [Emphasis added.]

Of three reported cases which discuss the "helmet defense," only one has followed the Restatement position and allowed testimony on helmet nonuse in apportioning damages. Dean v. Holland, 76 Misc.2d 517, 350 N.Y.S.2d 859 (1973). In the other two cases, the helmet defense was rejected. Rogers v. Frush, 257 Md. 233, 262 A.2d 549 (1970); Burgstahler v. Fox, 290 Minn. 495, 186 N.W.2d 182 (1971).

Similarly, the majority of courts that have considered the related issue of whether or not a person's failure to use an available seatbelt may be considered in mitigation of damages have decided to disallow testimony of seatbelt nonuse. E.g., Britton v. Doehring, 286 Ala. 498, 242 So.2d 666 (1970); Insurance Co. of North Am. v. Pasakarnis, 425 So.2d 1141 (Fla.Dist.Ct.App.1982) [relying on the decision in Lafferty v. Allstate Ins. Co., 425 So.2d 1147 (Fla.Dist.Ct.App.1982)]; Hampton v. State Highway Comn., 209 Kan. 565, 498 P.2d 236 (1972); Kopischke v. First Continental Corp., 610 P.2d 668 (Mont.1980); Carnation Co. v. Wong, 516 S.W.2d 116 (Tex.1974); Amend v. Bell, 89 Wash.2d 124, 570 P.2d 138 (1977). Even within the majority, however, there are differences of opinion. For example, in the decisions cited above from the courts of Florida, Montana, and Washington, there are vigorous dissents which argue that evidence that an available seatbelt was not used should be admissible on the issue of damages.

Although the courts which reject the seatbelt defense appear to constitute a clear majority, no small number of courts are in the minority: Caiazzo v. Volkswagenwerk A.G., 647 F.2d 241 (2d Cir.1981); Wilson v. Volkswagen of America, Inc., 445 F.Supp. 1368 (E.D.Va.1978); Benner v. Interstate Container Corp., 73 F.R.D. 502 (E.D.Pa.1977); Pritts v. Walter Lowery Trucking Company, 400 F.Supp. 867 (W.D.Pa.1975); Franklin v. Gibson, 138 Cal.App.3d 340, 188 Cal.Rptr. 23 (1982); Wagner v. Zboncak, 66 Ill.Dec. 922, 111 Ill.App.3d 268, 443 N.E.2d 1085 (1982); Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164 (1974); Sams v. Sams, 247 S.C. 467, 148 S.E.2d 154 (1966); Coryell v. Conn, 88 Wis.2d 310, 276 N.W.2d 723 (1979). And see Glover v. Daniels, 310 F.Supp. 750 (N.D.Miss.1970); Parise v. Fehnel, 267 Pa.Super. 79, 406 A.2d 345 (1979); cf. Garrett v. Desa Industries, Inc., 705 F.2d 721 (4th Cir.1983).

One of the major criticisms of considering a plaintiff's failure to use a safety device in mitigation of damages which has moved some courts to reject the helmet defense and a larger number of courts to reject the seatbelt defense is that the doctrine of mitigation of damages, sometimes called the doctrine of avoidable consequences, has been traditionally used by courts to reduce damages for injuries a plaintiff could have avoided or made less severe by reasonable conduct on his part after he has suffered an initial injury. E.g., Rogers, supra, 262 A.2d at 553. Where the failure to minimize injury is allegedly due to a person's nonuse of a helmet, the criticism is that the omission to wear a helmet is an act which occurred before, and not after, the plaintiff sustained an injury.

According to W. Prosser, Handbook of the Law of Torts, § 65, at 423-424 (4th Ed.1971), however, if damages are capable of reasonable apportionment to separate causes, it should make no difference whether the plaintiff's negligence in aggravating his injuries preceded or succeeded the defendant's negligence.

It can also be argued that use of the avoidable-consequences theory in a case where a plaintiff's injuries are increased by his failure to wear a helmet would place upon the plaintiff a pre-accident obligation to wear a helmet in anticipation of the defendant's negligence which in turn would deny the plaintiff the right to assume the due care of others toward him. Cf. Lafferty, supra, 425 So.2d at 1149-1150; Amend, supra, 570 P.2d at 143.

In response to the same argument made about a plaintiff's failure to use an available seatbelt, the court in Spier said:

"We concede that the opportunity to mitigate damages prior to the occurrence of an accident does not ordinarily arise, and that the chronological distinction, on which the concept of mitigation [of] damages rests, is justified in most cases. However, in our opinion, the seat belt affords the automobile occupant an unusual and ordinarily unavailable means by which he or she may minimize his or her damages prior to the accident. Highway safety has become a national concern; we are told to drive defensively and to 'watch out for the other driver'. When an automobile occupant may readily protect himself, at least partially, from the consequences of a collision, we think that the burden of buckling an available seat belt may, under the facts of the particular case, be found by the jury to be less than the likelihood of injury when multiplied by its accompanying severity." 363 N.Y.S.2d at 922, 323 N.E.2d at 168.

We believe this reasoning applies with equal force to a case in which nonuse of a safety helmet is considered in mitigation of damages. Accordingly, we adopt the position, amply supported by the decisions which accept the seatbelt defense, that evidence of a person's failure to wear a protective helmet while traveling on a motorcycle is admissible to reduce the plaintiff's damages so long as there is competent testimony by a qualified expert that the use of a helmet would have lessened the injuries the plaintiff sustained.

We do not mean to say that whenever the defendant demonstrates by satisfactory evidence that the plaintiff's injuries would not have been so great had a safety helmet been worn, the jury must reduce ...