Mott v. Sun Country Garden Products, Inc.

• Decision Date: 26 May 1995
• Docket Number: No. 15548,15548
• Citation: 1995 NMCA 66,120 N.M. 261,901 P.2d 192
• Parties: D'on MOTT, Executor and Heir to the Estate of Michael Hagen, deceased, and D'on Mott, as Mother and Next Friend of Jonathan Hagen, a minor, Plaintiff-Appellee, v. SUN COUNTRY GARDEN PRODUCTS, INC., a New Mexico corporation, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 192

901 P.2d 192

120 N.M. 261

D'on MOTT, Executor and Heir to the Estate of Michael Hagen deceased, and D'on Mott, as Mother and Next Friend of Jonathan Hagen, a minor, Plaintiff-Appellee, v. SUN COUNTRY GARDEN PRODUCTS, INC., a New Mexico corporation Defendant-Appellant.

No. 15548.

Court of Appeals of New Mexico.

May 26, 1995.

Certiorari Denied July 12, 1995.

[120 N.M. 263] Jeffrey E. Jones, Miller, Stratvert, Torgerson & Schlenker, P.A., Santa Fe, William H. Sutton, C. Tab Turner, Scott H. Tucker, Friday, Eldredge & Clark, Little Rock, AR, Marcy F. Branham, Phoenix, AZ, for plaintiff-appellee.

Penni Adrian, Robert L. Hlady, Gallagher, Casados & Mann, P.C., Albuquerque, for defendant-appellant.

OPINION

BLACK, Judge.

This case involves the use of the so-called "seat belt defense" in an automobile accident where the driver died after being thrown from his vehicle. A lawsuit by the decedent's estate resulted in a jury award of $1,780,200, holding the driver 30% liable for his own injuries and Defendant 70% liable. On appeal, Defendant argues that the district court committed error in three areas: (1) excluding evidence that neither the driver nor his passenger were wearing seat belts at the time of the accident; (2) refusing jury instructions tendered by Defendant; and (3) refusing to admit relevant evidence. We affirm.

FACTS

On the morning of April 15, 1989, Michael Hagen, accompanied by his seven-year-old son, Jonathan, drove from their home to Sun Country Garden Products, Inc. Michael was driving a 1988 Ford Bronco II, to which he had attached his five-by-twelve-foot utility trailer. He ordered and paid for less than two cubic yards of fine black mulch and drove around to the mulch pile to have it loaded into his trailer. A Sun Country employee loaded the mulch using a front-end loader.

With some assistance from Jonathan, Michael covered the load with a tarpaulin. Approximately five miles from Sun Country, the Bronco hit a bump while travelling between forty-five and sixty miles per hour. When the Bronco hit the bump, Jonathan dropped some plastic pipes on the floor and jumped off the seat to retrieve them. From the floor, he saw his father briefly look down at him.

When the trailer hit the bump it began to fishtail. Michael apparently attempted to correct the fishtailing trailer, but the Bronco and trailer swerved onto the unpaved shoulder. The trailer then broke free and came to a stop some distance down the road. The Bronco rolled over at least once. Michael was ejected through the driver's side window, struck his head on the pavement, and died instantly. Jonathan had become lodged under the dashboard when the Bronco rolled, thus escaping serious injury.

Additional facts will be considered as relevant to Defendant's specific arguments.

I. THE DISTRICT COURT DID NOT ERR IN EXCLUDING EVIDENCE OF FAILURE TO USE SEAT BELTS.

A. Application of NMSA 1978, Section 66-7-373 (Repl.Pamp.1987), Did Not Violate New Mexico Constitution Article IV, Section 34.

In 1984, this Court held that the fact finder should be allowed to consider the use of available seat belts on the issue of a plaintiff's comparative fault. Thomas v. Henson, 102 N.M. 417, 420, 696 P.2d 1010, 1013 (Ct.App.1984), rev'd in relevant part, 102 N.M. 326, 695 P.2d 476 (1985). This Court stated that a seat belt defense, employed to reduce a plaintiff's damages by the amount that could have been avoided through the use of a seat belt, was a proper use of apportionment and not an improper return to the doctrine of contributory negligence. Id. at 422-23, 696 P.2d at 1015-16.

The New Mexico Supreme Court, on its own motion, entered a writ of certiorari to review our Thomas decision. Thomas v. Henson, 102 N.M. 326, 695 P.2d 476 (1985). The Supreme Court concluded its four-paragraph opinion by saying:

[W]e believe that the creation of a "seat belt defense" is a matter for the Legislature, not for the judiciary. We therefore affirm that part of the Court of Appeals' opinion that upholds the award in favor of plaintiffs and reverse that part that creates a "seat belt defense."

Id. at 327, 695 P.2d at 477.

In response to the Supreme Court's holding that the seat belt defense was "a matter for the Legislature," the 1985 New Mexico Legislature took up the issue and specifically addressed the admissibility of the failure to wear seat belts in tort actions. One bill proposed in the Senate expressly provided that such evidence "shall be admissible concerning mitigation of damages, apportionment of damages or comparative fault." S.111, 37th Legis., 1st Sess. § 4(B) (1985). The 1985 Legislature did not pass that bill, but instead enacted the Safety Belt Use Act, 1985 N.M. Laws, ch. 131 (codified at NMSA 1978, Sections 66-7-370 to -373 (Repl.Pamp.1987)). Although the Safety Belt Use Act required front seat occupants of passenger cars to wear seat belts and provided fines for the failure to do so, id., Subsection B provided that the failure to be secured by a seat belt or child restraint device "shall not in any instance constitute fault or negligence and shall not limit or apportion damages." Section 66-7-373(B).

In 1991, the Legislature amended Section 66-7-373 by deleting Subsection B. 1991 N.M. Laws, ch. 192, § 8. Two years later, the Legislature again amended Section 66-7-373, 1993 N.M. Laws, ch. 349, and again reinserted the provision that "[f]ailure to be secured by a child passenger restraint device or by a safety belt as required by the Safety Belt Use Act ... shall not in any instance constitute fault or negligence and shall not limit or apportion damages." Id. at § 1(A) (codified at NMSA 1978, § 66-7-373(A) (Repl.Pamp.1994)).

Based on this legislative history, Defendant argues that the seat belt defense was not prohibited by statute when Plaintiff brought this action on April 8, 1992. Defendant contends that the district court therefore violated Article IV, Section 34 of the New Mexico Constitution by prohibiting the introduction of seat belt evidence in this case. Plaintiff responds that the seat belt defense is substantive and "[i]t is axiomatic that substantive law (as opposed to a procedural or remedial law) is the law applicable at the time of injury."

Article IV, Section 34 of the New Mexico Constitution provides: "No act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case." Id. In order to sustain a challenge based on Article IV, Section 34, then, it is Defendant's burden to prove that application of Section 66-7-373 would affect its preexisting rights or remedies. Health & Social Servs. Dep't v. Garcia, 88 N.M. 640, 642, 545 P.2d 1018, 1020 (1976) (party attacking legislation must show the invalidity thereof).

In Thomas, this Court implicitly recognized that the existing New Mexico common law did not recognize a seat belt defense. Thomas, 102 N.M. at 424, 696 P.2d at 1017. Rather, our opinion attempted to extend the common law to encompass that defense:

In an area of the law peculiarly appropriate for judicial development, we have no hesitation in extending a common law duty when deemed needed. Tort law is such an area. Therefore, we recognize, as part of the continuing duty to exercise reasonable care for his or her own safety, an occupant of an automobile has a duty to fasten an available seat belt or similar safety restraint device unless the circumstances dictate otherwise....

Further, we believe the adoption of the seat belt defense as part of the apportionment of damages fits within the developing law of comparative fault as contemplated in Scott v. Rizzo[, 96 N.M. 682, 634 P.2d 1234 (1981) ].

Thomas, 102 N.M. at 424, 696 P.2d at 1017.

As noted above, however, the Supreme Court promptly rejected this Court's attempt to expand the common law to embrace the seat belt defense and held that the admission of seat belt evidence would have to await legislative authorization. Thomas, 102 N.M. at 327, 695 P.2d at 477. No such authorization has been forthcoming from the New Mexico Legislature. Thus, Defendant misses the mark in arguing that the 1991 amendment of Section 66-7-373 to delete the prohibition against evidence of seat belt non-use somehow restored a preexisting common law seat belt defense. Because Defendant did not possess the right to limit Plaintiff's recovery for seat belt non-use at common law, Section 66-7-373 does not limit Defendant's rights or remedies.

In Armijo v. Atchison, Topeka & Santa Fe Ry., 754 F.Supp. 1526 (D.N.M.1990), rev'd in part on other grounds, 19 F.3d 547 (10th Cir.), and rev'd in part on other grounds, 27 F.3d 481 (10th Cir.1994), Judge Campos specifically rejected an argument based on the premise that Section 66-7-373 somehow altered a defendant's common law right to introduce seat belt evidence. Id. at 1535. The plaintiff's decedent in Armijo died in a collision between the car he was driving and the defendant's train. Id. at 1528. The plaintiff moved to exclude any evidence of "the alleged failure by the Plaintiff's Decedent to use a seat belt, and the consequences flowing therefrom." Id. at 1534. In response, the defendant argued, in part, that Section 66-7-373 denied the defendant equal protection "by making [it] pay for damages caused entirely by the plaintiff's failure to exercise due care for his safety by failing to use an available seat belt." Armijo, 754 F.Supp. at 1535. Judge Campos rejected this argument, using language that is equally applicable to Defendant's argument in the present case:

The problem with this argument is that a common law duty to wear a seat belt did not exist prior to the enactment of this statute and with the enactment of this statute the legislature specifically declined to make failure to wear a seat belt the basis for negligence or fault. Therefore, the statute does not affect the substantive rights of defendants or plaintiffs. In New Mexico, there never was a ...