Karczmit v. State

• Decision Date: 27 August 1992
• Docket Number: No. 82270,82270
• Citation: 588 N.Y.S.2d 963,155 Misc.2d 486
• Court: New York Court of Claims
• Parties: Joseph KARCZMIT, Jr., Executor of the Last Will and Testament of Rosemary P. Karczmit, Deceased, Claimant, v. The STATE of New York, Defendant. Claim

Page 963

588 N.Y.S.2d 963

155 Misc.2d 486

Joseph KARCZMIT, Jr., Executor of the Last Will and Testament of Rosemary P. Karczmit, Deceased, Claimant, v. The STATE of New York, Defendant.

Claim No. 82270.

Court of Claims of New York.

Aug. 27, 1992.

Gregory W. Bagen, for claimant.

Robert Abrams, Atty. Gen. (J. Gardner Ryan, Asst. Atty. Gen., of counsel), for defendant.

JOHN L. BELL, Judge.

In this claim for wrongful death, claimant contends that defendant failed to maintain proper drainage and guide rails adjacent to State Route 172 in the Town of Bedford, Westchester County, and that such failure was a proximate cause of fatal injuries sustained by his wife, Rosemary P. Karczmit, in a motor vehicle accident. Resolving the claim involves numerous factual and legal issues. Ostensibly, certain of the legal issues are matters of first impression.

I. FACTUAL BACKGROUND

On January 5, 1990, Mrs. Karczmit was traveling alone in her 1989 Mazda 626 in an easterly direction on Route 172, a two-lane highway. At approximately 8:40 a.m., she lost control of the car while negotiating a slight curve in the highway. The car crossed the westbound lane of Route 172 and left the highway in an area where an old guide rail system was located in front of trees, a utility pole and a slope. The car proceeded through the guide rails, striking, among other things, a utility pole and a tree, and it came to rest at the bottom of the slope on the north side of Route 172. The accident occurred approximately 300 feet west of the intersection of Route 172 and Old Corner Road. The autopsy report revealed that as a result of the accident Mrs. Karczmit suffered, inter alia, complete transection of the medulla; hinge fracture extending in front of both petrosal bones of the skull; laceration of the dura above both petrosal bones; hemorrhage in the right frontoparietal, frontotemporal and occipital areas, and the left occipital, temporal area; subarachnoid hemorrhage over both cerebral hemispheres; rib fractures and contusions of the intestines. The cause of death was attributed to skull and rib fractures, transection of the medulla, intermeningeal hemorrhages, and contusions of the intestines. Death occurred before eyewitnesses to the accident reached the deceased's vehicle.

Claimant asserts that improper drainage contiguous to Route 172 caused a patch of ice to form on the eastbound lane of the road and that the ice caused Mrs. Karczmit to lose control of her car. He further contends that after his wife's car crossed Route 172, it impacted guide rails that were not properly maintained with the result that the guide rails failed to prevent the car from leaving the highway and striking a tree and utility pole. Although defendant denies liability, it argues that if liability is found damages should be diminished due to the alleged failure of Mrs. Karczmit to utilize an available seat belt.

VI. MITIGATION OF DAMAGES--WHETHER CLAIMANT WAS WEARING AN

AVAILABLE SEAT BELT

Defendant seeks to mitigate damages due to the alleged failure of Mrs. Karczmit to use an available seat belt (see, Vehicle & Traffic Law § 1229-c[8]. Two issues that must be addressed as regards the seat belt defense are (1) whether Mrs. Karczmit was wearing an available seat belt and, if not, (2) the effect of the failure to wear a seat belt in a claim for wrongful death. Each issue necessarily involves not only a factual determination but also legal analysis. Initially, it is necessary to consider the development of the law as regards the seat belt defense before making a factual determination as to whether the deceased was wearing an available seat belt.

Although some jurisdictions analyze the seat belt issue as an element of comparative or contributory negligence (see generally, Annotation, Nonuse of Automobile Seatbelts as Evidence of Comparative Negligence, 95 A.L.R.3d 239; Annotation, Automobile Occupant's Failure to Use Seat Belt as Contributory Negligence, 92 A.L.R.3d 9), ¹ New York has fashioned a rule that failure to use a seat belt shall not be introduced into evidence in regard to the issue of liability but rather as an element in mitigating damages (Vehicle & Traffic Law § 1229-c[8]; Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164; DiMauro v. Metropolitan Suburban Bus Auth., 105 A.D.2d 236, 483 N.Y.S.2d 383; Costanza v. City of New York, 147 Misc.2d 94, 553 N.Y.S.2d 616; see generally, Annotation, Nonuse of Seat Belt as Failure to Mitigate Damages, 80 A.L.R.3d 1033). The failure to use a seat belt is an affirmative defense that must be properly pleaded and proved by the defendant (Vehicle & Traffic Law § 1229-c[8]; Baginski v. New York Tel. Co., 130 A.D.2d 362, 515 N.Y.S.2d 23; Costanza v. City of New York, supra ).

The seat belt issue was first directly presented to the Court of Appeals in 1974 in Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164, supra. In Spier, the court held that "nonuse of an available seat belt, and expert testimony in regard thereto, is a factor which the jury may consider, in light of all the other facts received in evidence, in arriving at its determination as to whether the plaintiff has exercised due care, not only to avoid injury to himself, but to mitigate any injury he would likely sustain * * * " (id. at 449-450, 363 N.Y.S.2d 916, 323 N.E.2d 164). Judge Gabrielli presaged the overwhelming statistics that would follow concerning the reduction of the incidence of death and serious injuries by using seat belts when he wrote: "At this juncture, there can be no doubt whatsoever as to the efficiency of the automobile seat belt in preventing injuries" (id. at 452, 363 N.Y.S.2d 916, 323 N.E.2d 164).

New York was the first state to pass legislation directing that no motor vehicle should be sold, registered or operated in the state unless equipped with seat belts approved by and conforming to standards established by the commissioner of the department of motor vehicles (see, L.1968, ch. 86; Vehicle & Traffic Law § 383). A majority of states have followed New York's lead and have adopted mandatory seat belt laws in some form. New York continued to lead in seat belt legislation and, in 1984, it became the first state to mandate legislatively that occupants of motor vehicles utilize seat belts. In approving the 1984 bills requiring the mandatory use of seat belts (Vehicle and Traffic Law § 1229-c), Governor Cuomo, in expanding upon the prior observation of Judge Gabrielli, commented as follows:

"With the approval of this legislation, which is the first seat belt law of its type in the country, New York again demonstrates to the nation its strong commitment to the safety of our travelling public.

The evidence and statistics in favor of seat belt law are overwhelming. Each year, this law will save 300-400 lives and reduce or eliminate approximately 70,000 injuries. In addition, it will result in a savings of approximately $240 million annually in various costs imposed on society as a result of these needless tragedies.

Scientific studies have proven that seat belt use has a direct and immediate impact on highway fatalities and injuries. Persons who wear seat belts are more likely to remain in control of their vehicle and less likely to be ejected or hurled to other parts of the vehicle. Thus, they protect themselves, passengers in their vehicle, and other motorists and pedestrians as well." (L.1984, ch. 366, at 3599).

The policy underlying seat belt legislation and its introduction as a defense in tort litigation has thus been recognized by the judicial, legislative and executive branches of state government.

Applying the facts to the law in the claim sub judice, the court must decide initially whether the deceased utilized a seat belt. At the trial conflicting evidence was presented as to whether Mrs. Karczmit was wearing a seat belt at the time of the accident. ² The shoulder harness on the car operated by Mrs. Karczmit was a passive restraint that required no active intervention. It could, however, be manually disengaged. The lap belt had to be manually engaged. The first individuals to reach Mrs. Karczmit following the accident were Mr. and Mrs. Goodman. Mr. Goodman testified that he observed a shoulder harness on Mrs. Karczmit. On cross-examination, Mr. Goodman indicated that he did not see whether the lap belt was engaged nor was he sure whether the shoulder harness was attached. Mrs. Goodman described the shoulder harness as "draped over" Mrs. Karczmit. Susan Rubin, a member of the local volunteer ambulance corps, was next to arrive at the scene. Ms. Rubin, one of whose children had been a student in the deceased's class, related that she intentionally looked for a seat belt since it was standard procedure when arriving at an accident to ascertain whether a seat belt had been utilized. She testified that neither the lap belt nor the shoulder harness was engaged.

Inconsistencies in the Goodmans' testimony, coupled with their uncertainty as to what they had observed and their obvious distress following the accident, made their testimony on the seat belt issue unconvincing. Ms. Rubin, on the other hand, who appeared pursuant to a subpoena, was a particularly credible witness. She was both articulate and forthright in her testimony. Dr. James Pugh, a well-qualified expert retained by defendant relative to the seat belt issue, testified convincingly that only an unrestrained occupant would have sustained the type of injuries indicated in the autopsy report of Mrs. Karczmit, whereas a restrained occupant would have received minimal injuries. There was no proof or suggestion that either a driver's shoulder harness or lap belt in the deceased's vehicle was unavailable or defective. In the absence of such proof, it "should be presumed that all of the seat belts with which a vehicle has been equipped are both operable and available." (DiMauro v. Metropolitan Suburban Bus Auth., supra, 105 A.D.2d at...