Insurance Co. of North America v. Pasakarnis, 63312

• Decision Date: 12 April 1984
• Docket Number: No. 63312,63312
• Citation: 451 So.2d 447
• Parties: INSURANCE COMPANY OF NORTH AMERICA and John Menninger, Petitioners, v. Richard D. PASAKARNIS, Respondent.
• Court: Florida Supreme Court

Page 447

451 So.2d 447

INSURANCE COMPANY OF NORTH AMERICA and John Menninger, Petitioners, v. Richard D. PASAKARNIS, Respondent.

No. 63312.

Supreme Court of Florida.

April 12, 1984.

Rehearing Denied July 10, 1984.

Marjorie Gadarian Graham of Jones & Foster, West Palm Beach, for petitioners.

James C. Gavigan of the Law Offices of Hoadley & Gavigan, West Palm Beach, for respondent.

Kenneth L. Ryskamp of Goodwin, Ryskamp, Welcher & Carrier, Miami, for the Florida Defense Lawyers Association; Aubrey V. Kendall, P.A., Miami, and Edward T. O'Donnell of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for the Motor Vehicle Manufacturers Association of the United States, Inc.; Frederick C. Heidgerd, Ft. Lauderdale, for Florida Safety Councils; and Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amici curiae.

ALDERMAN, Chief Justice.

We review the decision of the District Court of Appeal, Fourth District, in Insurance Co. of North America v. Pasakarnis, 425 So.2d 1141 (Fla. 4th DCA 1982), wherein the district court certified as a question of great public importance whether Florida courts should consider seat belt evidence as bearing on comparative negligence or mitigation of damages. This is the first opportunity we have had to consider what effect, if any, plaintiff's failure to wear a seat belt has upon his or her right of recovery in an action for personal injuries incurred as a result of an automobile accident. Contrary to the decision of the district court, we hold that evidence of failure to wear an available and fully operational seat belt may be considered by the jury in assessing a plaintiff's damages where the "seat belt defense" is pled and it is shown by competent evidence that failure to use the seat belt produced or contributed substantially to producing at least a portion of the damages.

The facts of this case are simple and straightforward. While driving a jeep, without having fastened the available and fully operational seat belt contained therein, Richard Pasakarnis was injured in an accident caused entirely by John Menninger who had run a stop sign and struck Pasakarnis's jeep broadside. Pasakarnis was thrown from the jeep and landed on his posterior. As a result, he sustained a compression-type injury to his lower back. His treating physician testified that his injury was caused by his flying through the air and impacting on the pavement.

In their answer to the complaint, defendants, petitioners here, alleged as an affirmative defense that at the time of the accident, Pasakarnis had available for his use a seat belt which, had it been utilized, would have substantially reduced or prevented any bodily injuries to him; that Pasakarnis was negligent in failing to use this safety device; and that his damages should be reduced in proportion to his negligence. Relying upon Brown v. Kendrick, 192 So.2d 49 (Fla. 1st DCA 1966), Pasakarnis moved to strike this affirmative defense, contending that, because he had no duty to wear a seat belt, the fact that he was not wearing his seat belt when this accident occurred does not establish a legal basis to reduce the amount of his damage award. The trial court granted the motion to strike, holding that expert testimony pertaining to the nonuse of seat belts and the causal relationship between nonuse and Pasakarnis's injuries would not be admissible at trial. The court did allow the defendants to take the deposition of their expert and proffer it so that it would be a part of the record for purposes of review by the appellate court.

The defendants proffered the deposition of an engineer-accident analyst who stated that had Pasakarnis properly utilized his seat belt, it would have restrained him in the seat of the jeep and he would not have been ejected. The engineer explained in detail the approach he took to reach this conclusion. Further, in response to the question of whether Pasakarnis would have been likely to suffer any injury inside the jeep itself if he had been restrained by his seat belt and shoulder harness at the time of impact, the expert opined that within a high degree of probability, Pasakarnis would not have sustained any injury.

The jury found that Menninger was 100 percent responsible for the accident and that the total amount of Pasakarnis's damages was $100,000. Petitioners' motion for new trial, alleging, among other things, that the court erred in granting the motion to strike the "seat belt defense," was denied.

Upon appeal, the District Court of Appeal, Fourth District, affirmed the judgment of the trial court holding the seat belt evidence inadmissible on the authority of Lafferty v. Allstate Insurance Co., 425 So.2d 1147 (Fla. 4th DCA 1982), which decision is also before us for review. The Fourth District in Lafferty elected to follow a line of authority which disallows evidence of failure to use an available operational seat belt. It found that the effectiveness of seat belts in preventing or limiting injury is still questionable and concluded that their nonuse should not be deemed prima facie unreasonable. It asserted judicial restraint as a compelling reason to answer the certified question in the negative and, agreeing with the First District's decision in Brown v. Kendrick, decided that it was not within the province of the courts to legislate on the use of seat belts.

Judge Schwartz, dissenting, agreed with another line of authority which permits such evidence to be submitted to the jury in those cases where there is competent evidence to show that the plaintiff's failure to use an available seat belt bore a causal relation to the plaintiff's injuries. He concluded that nonuse of a seat belt may not be deemed negligent or nonnegligent conduct as a matter of law, but it is necessarily a matter to be determined in each instance by the jury.

Although we have not previously had an opportunity to address the issue of the viability of the "seat belt defense," this issue has been raised in several decisions of the district courts of appeal. The majority of district courts, however, have not considered the viability of the defense under any theory because in the cases before them either the facts did not establish that plaintiff failed to use his or her belt or the evidence did not establish that the injuries would have been prevented or their severity lessened by use of an available and operational seat belt.

This issue was first considered in the 1966 First District case of Brown v. Kendrick. In that case, plaintiff was injured in an automobile accident while she was riding as a guest in an automobile owned by the defendant and driven by his sixteen-year-old son. In his answer, the defendant attempted to raise the defense of contributory negligence based upon an allegation that plaintiff had not used an available seat belt. The trial court struck the defense, and the First District affirmed. The First District held that the defendant had failed to show, except by conjecture, that use of the seat belt would have prevented the plaintiff's injury. Because of the controversy over the safety features of seat belts in 1966 when that case was decided, the First District felt that the issue of the "seat belt defense" was one for the legislature rather than the courts to resolve. See also Paschal v. Pinkard, 228 So.2d 633 (Fla. 1st DCA 1969).

In Chandler Leasing Corp. v. Gibson, 227 So.2d 889 (Fla. 3d DCA 1969), defendants sought reversal of a judgment on the basis that the trial judge had erred in not permitting argument to the jury on the failure of plaintiff to fasten her seat belt. Finding that defendants did not plead contributory negligence and did not seek any instructions on the issue, the Third District affirmed. It additionally commented that had the issue been properly raised, defendants would still have to face Brown v. Kendrick.

This issue was more recently argued in Quinn v. Millard, 358 So.2d 1378 (Fla. 3d DCA 1978), wherein defendants argued that the trial court erred in directing a verdict against them on their claimed defenses of comparative and contributory negligence where they had asserted that plaintiff's failure to buckle his seat belt contributed to the severity of his injuries. The Third District did not rule on this issue, however, because it held that the record did not contain sufficient evidence to demonstrate that plaintiff would have sustained less serious injuries had he been wearing his seat belt at the time of collision.

In Selfe v. Smith, 397 So.2d 348 (Fla. 1st DCA), review denied, 407 So.2d 1105 (Fla.1981), the First District, in addressing the issue of whether parents had a duty to install a child restraint device in their pickup truck, expressly said: "[W]e have read no authoritative suggestion that a parent's duty to anticipate and protect his infant passenger against the negligence of other drivers extends beyond buckling an available restraint device and encompasses an earlier duty to buy and install such a device." 397 So.2d at 351. ¹ The court then commented that in light of its ruling, it was unnecessary for it to advance the "troublesomely unconvincing, arguments against reducing the damages to be awarded in a comparative negligence state to one whose injury was more serious because he did not buckle an available seat belt." Id.

Pasakarnis urges that we adhere to the First District's ruling in Brown v. Kendrick and answer the certified question in the negative. He asserts that the single most compelling reason for such a holding is the principle that courts are law interpreting and not lawmaking and argues that we should not act in a peculiarly legislative matter.

We disagree and find this issue particularly appropriate for judicial decision. In the past, this Court has not abdicated its continuing responsibility to the citizens of this state to ensure that the law remains both fair and realistic as society and technology change. Hoffman v. Jones, 280...