Lowe by Gazley v. Estate Motors Ltd.

• Court: Court of Appeal of Michigan
• Writing for the Court: CYNAR; CHARLES, W. SIMON
• Citation: Lowe by Gazley v. Estate Motors Ltd., 382 N.W.2d 811, 147 Mich.App. 523 (Mich. App. 1986)
• Decision Date: 21 March 1986
• Docket Number: MERCEDES-BENZ,Docket No. 73531
• Parties: Ethel LOWE, by her conservator, Frank F. GAZLEY, Plaintiff-Appellant, v. ESTATE MOTORS LIMITED, a Michigan corporation, Mercedes-Benz of North America, Inc., a foreign corporation of Newark Auto Products, a division of Newark Auto Top Company, a foreign corporation, Defendants-Appellees, andOF NORTH AMERICA, INC., a foreign corporation, Third-Party Plaintiff, v. Ray Burnell NEIGHBORS and Newark Auto Products, a division of Newark Auto Top Company, a foreign corporation, Third-Party Defendants. 147 Mich.App. 523, 382 N.W.2d 811

Page 811

382 N.W.2d 811

Ethel LOWE, by her conservator, Frank F. GAZLEY, Plaintiff-Appellant, v. ESTATE MOTORS LIMITED, a Michigan corporation, Mercedes-Benz

of North America, Inc., a foreign corporation of Newark Auto

Products, a division of Newark Auto Top Company, a foreign

corporation, Defendants-Appellees, and MERCEDES-BENZ OF NORTH AMERICA, INC., a foreign corporation, Third-Party Plaintiff, v. Ray Burnell NEIGHBORS and Newark Auto Products, a division

of Newark Auto Top Company, a foreign corporation,

Third-Party Defendants.

Docket No. 73531.

147 Mich.App. 523, 382 N.W.2d 811

Court of Appeals of Michigan.

Submitted Dec. 17, 1984.

Decided Dec. 16, 1985.

Released for Publication March 21, 1986.

[147 MICHAPP 525] Gerald Tuchow Law Offices, P.C. by Stephen J. Trahey, Flat Rock, for plaintiff.

Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark by Daniel P. King, Farmington Hills, for Estate Motors Ltd.

Fitzgerald, Young, Peters, Dakmak & Bruno by Lisa Sewell DeMoss and Neil T. Peters, Detroit, for Mercedes-Benz of North American, Inc.

Kitch, Suhrheinrich, Smith, Saurbier & Drutchas, P.C. by Mark Willmarth, Detroit, for Newark Auto Products.

Before J. BRENNAN, P.J., and CYNAR and C.W. SIMON, ^* JJ.

CYNAR, Judge.

In this products liability action, plaintiff appeals by leave granted from an interlocutory order denying her motion to strike an affirmative defense pled by defendants and a motion in limine to preclude defendants from introducing evidence of plaintiff's failure to use a seat belt. Plaintiff claims that she was seriously injured on April 18, 1979, when she fell out of a rear passenger door of a 1979 Mercedes-Benz automobile following a collision with a truck. Defendants are the vendor of the automobile, the American outlet for the German manufacturer of the automobile, and the [147 MICHAPP 526] manufacturers of the floormats used in the automobile. Plaintiff claimed that a defective floor mat caused the accident by interfering with the drivers ability to apply the breaks and that her injuries were caused by a defective door and door locking mechanism on the automobile. Defendants pled that plaintiff's injuries were proximately caused by her own negligence, including her failure to wear a seat belt.

In Romankewiz v. Black, 16 Mich.App. 119, 125, 167 N.W.2d 606 (1969), the Court rejected claims that a plaintiff's failure to use a seat belt could amount to contributory negligence or a failure to mitigate injuries. The Court adopted the reasoning of Miller v. Miller, 273 N.C. 228, 233-234, 160 S.E.2d 65 (1968):

"So far as our research discloses, no court has yet held an occupant's failure to buckle his seat belt to be negligence per se. * * * If the failure to buckle a seat belt is not negligence per se, it could be contributory negligence only when a plaintiff's omission to use the belt amounted to a failure to exercise the ordinary care which a reasonably prudent person would have used under the circumstances preceding that particular accident. Since the fact and circumstances preceding any accident will vary, so must conduct constituting due care. Under what circumstances would a plaintiff's failure to buckle his seat belt constitute negligence? If a motorist begins his journey without buckling his belt, ordinarily he will not have time to fasten it when the danger of accident becomes apparent; so the duty to 'buckle up'--if any--must have existed prior to the injury. Furthermore, it must be remembered that until one has, or should have, notice of another's negligence, he is required to anticipate it. On the contrary, he is entitled to assume that others will use due care for his safety and their own." (Citations omitted; emphasis in original.)

Romankewiz was followed in Selmo v. Baratono, [147 MICHAPP 527] 28 Mich.App. 217, 184 N.W.2d 367 (1970), Placek v. Sterling Heights, 52 Mich.App. 619, 217 N.W.2d 900 (1974), rev'd 405 Mich. 638, 275 N.W.2d 511, DeGraaf v. General Motors Corp., 135 Mich.App. 141, 352 N.W.2d 719 (1984), lv. den. 422 Mich. 852 (1985), and Schmitzer v. Misener-Bennett Ford, Inc, 135 Mich.App. 350, 354 N.W.2d 336 (1984), lv. den. 422 Mich. 852 (1985).

We first considered the admissibility of a plaintiff's nonuse of a seat belt as evidence of comparative negligence in Schmitzer. The Court held that under Michigan's system of comparative negligence, evidence of a plaintiff's failure to use a seat belt is not admissible as evidence of plaintiff's contributory negligence or of plaintiff's failure to mitigate damages. 135 Mich.App. 359-360, 354 N.W.2d 336. Our holding is Schmitzer is controlling in this case.

As the Schmitzer Court stated, under the doctrine of comparative negligence the trier of fact must first find that the plaintiff was negligent. A finding of negligence can only be sustained if the plaintiff breached some statutory or common law duty. Proof that the plaintiff engaged in an injury-producing act, without more, is not a sufficient basis for establishing that plaintiff was negligent.

At the time the accident complained of occurred, the Michigan Legislature had not enacted the mandatory seat belt use law, M.C.L. Sec. 257.710e; M.S.A. Sec. 9.2410(5). ¹ Hence, plaintiff's failure to wear a seat belt did not constitute negligence per se.

The common law does not provide a basis for concluding that plaintiff's failure to use a seat belt was a breach of her duty to use ordinary care. Schmitzer, supra, p. 359, 354 N.W.2d 336. Plaintiff's failure to wear [147 MICHAPP 528] a seat belt was therefore not admissible as evidence of her comparative negligence.

The trial court's interlocutory order denying plaintiff's motion is reversed.

V.J. BRENNAN, P.J., concurs.

CHARLES, W. SIMON, Judge. (dissenting).

I respectfully dissent.

Michigan courts have previously rejected claims that a plaintiff's failure to wear a seat belt constitutes evidence of comparative negligence, sometimes reasoning that imposition of such a duty is an act more appropriately left to the Legislature. See e.g., Romankewiz v. Black, 16 Mich.App. 119, 167 N.W.2d 606 (1969); Schmitzer v. Misener-Bennett Ford, Inc., 135 Mich.App. 350, 354 N.W.2d 336 (1984). However, cases from other jurisdictions have reached conflicting conclusions on different theories as to the viability of a seat belt defense. See the cases discussed in Anno: Automobile Occupant's Failure to Use Seat Belts as Contributory Negligence, 15 A.L.R.3d 1428, Anno: Nonuse of Seat Belts as Failure to Mitigate Damages, 80 A.L.R.3d 1033, Anno: Automobile Occupant's Failure to Use Seat Belts as Contributory Negligence, 92 A.L.R.3d 9, and Anno: Nonuse of Seat Belts as Evidence of Comparative Negligence, 95 A.L.R.3d 239.

In Ins. Co. of North America v. Pasakarnis, 451 So.2d 447 (Fla.1984), the court addressed many of the objections to the seat belt defense expressed in Romankewiz and Schmitzer. Rejecting an argument that any decision to recognize the seat belt defense should be left to the Legislature, the court pointed out that the rule against the seat belt defense was formulated by the courts. The Florida court concluded that it would abdicate its judicial function if it left reconsideration of an old and [147 MICHAPP 529] unsatisfactory court-made rule to the Legislature. 451 So.2d 451. I find the Florida court's reasoning on this point persuasive. In Placek v. Sterling Heights, 405 Mich. 638, 657, 275 N.W.2d 511 (1979), the Court pointed out:

"[W]hen dealing with judge-made law, this Court in the past has not disregarded its corrective responsibility in the proper case.

" '[O]ur Court has heretofore believed that rules created by the court could be altered by the court. For example, we abrogated the defense of assumption of risk, Felgner v Anderson, 375 Mich 23; 133 NW2d 136 (1965), repudiated the doctrine of imputed negligence, Bricker v Green, 313 Mich 218; 21 NW2d 105 (1946), eliminated the privity requirement in actions for breach of an implied warranty, Spence v Three Rivers Builders &amp Masonry Supply, Inc., 353 Mich 120; 90 NW2d 873 (1958), overruled the common-law disability prohibiting the wife from suing for the loss of her husband's consortium, Montgomery v Stephan, 359 Mich 33; 101 NW2d 227 (1960), overruled the common-law disallowance of recovery for negligently inflicted prenatal injury, Womack v. Buchhorn, 384 Mich 718, 724-725; 187 NW2d 218 (1971); and even eliminated charitable immunity from negligence, Parker v. Port Huron Hospital, 361 Mich 1; 105 NW2d 1 (1960).' [Kirby v Larson, 400 Mich 585, 625; 256 NW2d 400 (1977) (opinion of WILLIAMS, J.) ]."

While the Legislature is, of course, free to act in this area, I see no reason why deference to the Legislature should prevent us from reexamining the validity of this Court's past decisions.

The Florida court also rejected the argument that plaintiffs need not anticipate the occurrence of an accident. Both Florida and Michigan have adopted the rationale of Larsen v. General Motors Corp., 391 F.2d 495 (CA.8, 1968). See Ford Motor Co. v. Evancho, 327 So.2d 201 (Fla.1976), and Rutherford v. Chrysler Motors Corp., 60 Mich.App. 392, 231 [147 MICHAPP 530] N.W.2d 431 (1975). The Larsen court explained, 391 F.2d 502:

"Where the manufacturer's negligence in design causes an unreasonable risk to be imposed upon the user of its products, the manufacturer should be liable for the injury caused by its failure to exercise reasonable care in the design. These injuries are readily foreseeable as an incident to the normal and expected use of an automobile. While automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury-producing impacts. No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resulting injury, usually caused by the so-called 'second...