Insurance Co. of North America v. Pasakarnis, 80-1895

• Decision Date: 15 December 1982
• Docket Number: No. 80-1895,80-1895
• Citation: 425 So.2d 1141
• Parties: INSURANCE COMPANY OF NORTH AMERICA and John Menninger, Appellants, v. Richard D. PASAKARNIS and Lucille Mekjian, Appellees.
• Court: Florida District Court of Appeals

Page 1141

425 So.2d 1141

INSURANCE COMPANY OF NORTH AMERICA and John Menninger, Appellants, v. Richard D. PASAKARNIS and Lucille Mekjian, Appellees.

No. 80-1895.

District Court of Appeal of Florida,

Fourth District.

Dec. 15, 1982.

Rehearing Denied Feb. 9, 1983.

Marjorie D. Gadarian of Jones & Foster, West Palm Beach, and Robin A. Lloyd, Sr. of Jones, Foster & Moss, Vero Beach, for appellants.

James C. Gavigan of Hoadley & Gavigan, West Palm Beach, for appellees.

Larry Klein, West Palm Beach, for amicus curiae--The Academy of Florida Trial Lawyers.

LETTS, Chief Judge.

This cause is affirmed upon the authority of Lafferty v. Allstate Insurance Company, 425 So.2d 1147 (Fla. 4th DCA, Case No. 81-279, opinion filed December 15, 1982).

GLICKSTEIN, J., concurs.

SCHWARTZ, ALAN R., Associate Judge, dissents with opinion.

SCHWARTZ, ALAN R., Associate Judge (dissenting).

The question in this case is whether a plaintiff's failure to fasten his seat belt, when coupled with competent expert evidence that it contributed to the extent of the injuries he sustained in an automobile accident, may be considered by the jury as an aspect of the defense of comparative negligence. Contrary to the ruling on this point below, I would hold that the "seat belt defense" indeed exists in Florida and therefore reverse the judgment under review. ¹

The inherent difficulty of resolving this important issue is eased somewhat by the purity of the factual posture in which it is presented. The plaintiff Pasakarnis was involved in an intersection accident near Stuart caused when the defendant Menninger ran a stop sign. Pasakarnis was driving a jeep which he acknowledgedly knew was a relatively unstable vehicle; notwithstanding this fact, he stated that he had deliberately chosen not to fasten the fully operational seat belt with which it was equipped. There was substantial evidence that this decision had serious consequences. When the collision occurred, the jeep was flipped over and Pasakarnis was hurled from the vehicle. He landed on his posterior, sustaining a compression-type injury of his lower back. By deposition, an expert engineer-accident analyst stated that if the seat belt had been fastened, the plaintiff would have remained inside the vehicle and would have been injured only slightly, if at all. In granting the plaintiff's pre-trial motion to that effect, however, the trial court ruled that the failure to use the seat belt was legally irrelevant and that evidence concerning it would not be submitted to the jury. After a trial which consequently concerned only the issues of liability for the collision and resulting damages, the plaintiff won a verdict and judgment of $100,000 for his back injury. I agree with the defendants' primary contention on this appeal ² that the seat belt ruling was erroneous.

Because the question of whether to buckle one's seat belt--which is faced as a practical matter and issue by virtually every person on virtually every occasion he gets into a motor vehicle--is one of such overwhelming universality, its consequences have been the subject both of numerous scientific studies and of countless and diverse commentaries and decisions. See, Mount v. McClellan, 91 Ill.App.2d 1, 234 N.E.2d 329 (1968); Barry v. Coca Cola Co., 99 N.J.Super. 270, 239 A.2d 273 (1967); Glover v. Daniels, 310 F.Supp. 750 (N.D.Miss.1970); Kircher, The Seat Belt Defense--State of the Law, 53 Marq.L.Rev. 172 (1970); Snyder, The Seat Belt as a Cause of Injury, 53 Marq.L.Rev. 211 (1970); Pollock, The Seat Belt Defense--A Valid Instrument of Public Policy, 44 Tenn.L.Rev. 119 (1976); Timmons & Silvas, Pure Comparative Negligence in Florida: A New Adventure in the Common Law, 28 U.Miami L.Rev. 737, 775 (1974); Roethe, Seat Belt Negligence in Automobile Accidents, 1967 Wis.L.Rev. 288; Annot.--Nonuse of Seat Belt as Failure to Mitigate Damages, 80 A.L.R.3d 1033 (1977); Annot.--Automobile Occupant's Failure to Use Seat Belt as Contributory Negligence, 92 A.L.R.3d 9 (1979); Annot.--Nonuse of Automobile Seatbelts as Evidence of Comparative Negligence, 95 A.L.R.3d 239 (1979). There is no need to reproduce the competing arguments here. It is enough to say as a starting point that it seems clear to me that the failure to expend the minimal effort required to fasten an available safety device which has been put there specifically in order to reduce or avoid injuries from a subsequent accident is, on the very face of the matter, obviously pertinent and thus should be deemed admissible in an action for damages, part of which would not have been sustained if the seat belt had been used. This very practical viewpoint is the essential basis of those decisions which, as I would do, have accepted the viability of the "seat belt defense." Melia v. Ford Motor Co., 534 F.2d 795 (8th Cir.1976); Mays v. Dealers Transit, Inc., 441 F.2d 1344 (7th Cir.1971); Henderson v. United States, 429 F.2d 588 (10th Cir.1970); Caiazzo v. Volkswagenwerk, A.G., 468 F.Supp. 593 (E.D.N.Y.1979), modified on other grounds, 647 F.2d 241 (2d Cir.1981); Wilson v. Volkswagen of America, 445 F.Supp. 1368 (E.D.Va.1978); Pritts v. Walter Lowery Trucking Co., 400 F.Supp. 867 (W.D.Pa.1975); Benner v. Interstate Container Corp., 73 F.R.D. 502 (E.D.Pa.1977); Uresky v. Fedora, 27 Conn.Sup. 498, 245 A.2d 393 (1968); 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); Sonnier v. Ramsey, 424 S.W.2d 684 (Tex.Civ.App.1968); Hernke v. Coronet Ins. Co., 72 Wis.2d 170, 240 N.W.2d 382 (1976); Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626 (1967).

When, notwithstanding what I thus think is the common sense of the matter, the seat belt defense has been rejected, this has occurred only when courts have discovered and applied one or more of a variety of policy reasons against, or legal impediments to its acceptance. This has been true in Florida in which the presently leading case is Brown v. Kendrick, 192 So.2d 49 (Fla. 1st DCA 1966) ³ which, citing several such factors, declined to recognize the defense. Largely because of significant changes and developments in the law since Kendrick, I not only agree with the first district's own recent observation that the arguments against the defense are "troublesomely unconvincing," Selfe v. Smith, 397 So.2d 348, 351 (Fla. 1st DCA 1981), but would directly hold that no acceptable reason exists for the continued rejection of the appellant's position.

1. The subsequent adoption of the comparative negligence doctrine in Hoffman v. Jones, 280 So.2d 431 (Fla.1973) has eliminated the inequitable harshness inherent in the contributory negligence model, under which the plaintiff would be precluded from recovery of any damages--even those incurred in the initial accident in which, as here, he may not have been at all at fault--simply because he was negligent in not minimizing the extent of the damages he sustained only after it occurred. Moreover, the Florida formulation of the comparative negligence rule as relating to whether any negligence of the plaintiff was a legal cause, not of the accident, but of his "damages," "loss" or "injury," see Hoffman v. Jones, supra, 280 So.2d at 439; Lawrence v. Florida East Coast R. Co., 346 So.2d 1012 (Fla.1977); Fla.Standard Jury Instructions (Civil), Model Charges Nos. 1 & 2 (1981), completely obviates the theoretical obstacles many courts have found in applying principles of avoidable consequences or mitigation of damages, which are usually thought to concern only the plaintiff's conduct after the accident, and which would therefore exclude the pre-accident failure to buckle up. ⁴ See W. Prosser, Law of Torts § 65 (4th ed.1971). Accordingly, several courts have either held that the seat belt defense is a good one under newly-adopted comparative negligence principles, Bentzler v. Braun, supra, or strongly hinted that it would become so when the doctrine became effective in that jurisdiction. Fischer v. Moore, 183 Colo. 392, 517 P.2d 458 (1973); Horn v. General Motors Corp., 17 Cal.3d 359, 131 Cal.Rptr. 78, 551 P.2d 398 (1976).

2. The claim that a "veritable battle of experts" on the issue of causation, see Amend v. Bell, 89 Wash.2d 124, 570 P.2d 138 (1977) would result from a recognition of the seat belt defense is perhaps best met by a response of "so what?" There is no reason whatever why the jury cannot be entrusted with weighing expert opinions on this, as it is on so many other complex issues. ⁵

3. The argument that, apparently as a matter of law, a driver or passenger need not anticipate and guard against an accident and the consequences of an ensuing "second collision," see Amend v. Bell, supra, is similarly totally without substance. Indeed, it is so commonly known that automobile accidents must be anticipated that the necessity of exercising reasonable care to minimize their effects forms the basis of an entire body of products liability law, as established in Florida since Brown v. Kendrick. Ford Motor Co. v. Hill, 404 So.2d 1049 (Fla.1981); Ford Motor Co. v. Evancho, 327 So.2d 201 (Fla.1976); Nicolodi v. Harley-Davidson Motor Co., 370 So.2d 68 (Fla. 2d DCA 1979). The most basic principles of evenhandedness preclude the imposition of a different standard of foreseeability depending on which party asserts it. ⁶

4. The objection to judicial recognition of the seat belt defense which I consider last is at once the most difficult and the one as to which it must be acknowledged there has been no decisional or statutory change since it was relied upon in Kendrick. It is, simply stated, that the matter is not for the courts, but the legislature. More elaborately, the line of reasoning is that just because the issue of whether one must buckle up is both so common and so simple, it should be the subject of a state-wide standard of conduct applicable to all our citizens; since the only body properly capable of enacting such a rule and with the...