Schmitzer v. Misener-Bennett Ford, Inc.

• Decision Date: 19 September 1984
• Docket Number: 68924,Docket Nos. 67515,MISENER-BENNETT
• Citation: Schmitzer v. Misener-Bennett Ford, Inc., 135 Mich.App. 350, 354 N.W.2d 336 (Mich. App. 1984)
• Parties: Gary B. SCHMITZER, Administrator of the Estate of Nathan Blair Schmitzer, Deceased, Plaintiff-Appellee, v.FORD, INC., a Michigan Corporation, and Monica Tanner, Personal Representative of the Estate of Jerry Lee Tanner, Deceased, Defendants-Appellants. Kenneth A. SEIFERT and Viola Seifert, his wife, Plaintiffs-Appellants, v. Bruce A. ANDERSON and Pamela K. Anderson, his wife, Jointly and Severally, Defendants-Appellees. 135 Mich.App. 350, 354 N.W.2d 336
• Court: Court of Appeal of Michigan

Page 336

354 N.W.2d 336

Gary B. SCHMITZER, Administrator of the Estate of Nathan

Blair Schmitzer, Deceased, Plaintiff-Appellee, v. MISENER-BENNETT FORD, INC., a Michigan Corporation, and Monica Tanner, Personal Representative of the

Estate of Jerry Lee Tanner, Deceased,

Defendants-Appellants.

Kenneth A. SEIFERT and Viola Seifert, his wife, Plaintiffs-Appellants, v. Bruce A. ANDERSON and Pamela K. Anderson, his wife, Jointly and Severally, Defendants-Appellees.

Docket Nos. 67515, 68924.

135 Mich.App. 350, 354 N.W.2d 336

Court of Appeals of Michigan.

Submitted March 13, 1984.

Decided June 18, 1984.

Rehearings Denied July 27 and

Aug. 9, 1984.

Released for Publication Sept. 19, 1984.

[135 MICHAPP 352] David N. Andreychuk, Vassar, and Cicinelli, Mossner, Majoros & Alexander, P.C. by Eugene D. Mossner and Charles A. Nicholson, Saginaw, of counsel, for plaintiff-appellee in No. 67515.

Smith & Brooker, P.C. by Darlene A. Conness and A.T. Lippert, Jr., Saginaw, for defendants-appellants in No. 67515.

Shapack, Singer & McCullough, P.C. by Alan M. Kanter, Bloomfield Hills, for plaintiffs-appellants in No. 68924.

Berry, Puleo & Noeske by Richard H. Winslow, Troy, for defendants-appellees in No. 68924.

Before WAHLS, P.J., and BRONSON and N.J. KAUFMAN, ^* JJ.

BRONSON, Judge.

In this appeal we are asked to [135 MICHAPP 353] reconsider the admissibility of evidence of a plaintiff's non-use of a seat belt as evidence of contributory negligence in light of this state's adoption of comparative negligence. ¹

I

In No. 67515, defendants, Misener-Bennett Ford and Monica Tanner, sought to amend their complaint following the deposition of Ronald Hines, M.D., the coroner, during which he opined that if Nathan Schmitzer, plaintiff's decedent, had used his seat belt, "he would still be alive". After hearing oral arguments, the circuit court denied defendants' motion to amend their answer to include the decedent's failure to use a seat belt as an affirmative defense, but reserved ruling on whether evidence of the decedent's non-use of a seat belt could be introduced as evidence of decedent's "comparative negligence". This Court granted defendants' application for leave to appeal from the order denying their motion to amend and consolidated the case with No. 68924.

In No. 68924, plaintiffs, Kenneth and Viola Seifert, moved to strike the affirmative defense of comparative negligence by reason of failure to wear a seat belt. The circuit court issued an opinion and order denying plaintiffs' motion and ruling that "evidence of availability and use or non-use of seat belts may be admitted for consideration by the jury". Plaintiffs appeal by leave granted from the order denying their motion to strike.

II

It is undisputed that prior to the adoption of [135 MICHAPP 354] comparative negligence in this state, evidence of plaintiff's non-use of a seat belt was not admissible on either the question of plaintiff's contributory negligence or plaintiff's failure to mitigate damages. When first confronted with the issue of the admissibility of evidence of the non-use of a seat belt, this Court reviewed the decisions from other jurisdictions addressing the "seat-belt defense". Romankewiz v. Black, 16 Mich.App. 119, 122-123, 167 N.W.2d 606 (1969). Noting that the Michigan statute mandating the installation of seat belts, M.C.L. Sec. 257.710b; M.S.A. Sec. 9.2410(2), imposed no sanction for failure to use a seat belt, and the statistics demonstrating the general public's non-use of seat belts as well as studies showing that belt use can exacerbate injuries, this Court explicitly adopted the view expressed in 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. (Citing cases.) 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 facts 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 not required to anticipate it. On the contrary, he is entitled to assume that others will use due care for his safety and their own. (Citing cases.)'

[135 MICHAPP 355] "Accordingly, we hold that as a matter of law, [plaintiff's minor] had no duty to wear a seat belt. The plaintiff's failure to fasten his seat belt was not such negligence as to contribute to the cause of the accident. Unbuckled plaintiffs do not cause accidents." Romankewiz, supra, pp. 125-126, 167 N.W.2d 606. (Emphasis in original.)

Relying on the analysis in Miller, supra, this Court further held that evidence of a plaintiff's failure to use a seat belt was inadmissible under the theory of avoidable consequences or mitigation of damages. We reasoned that where there was no duty to buckle a seat belt, failure to do so cannot be held to be a breach of the duty to avoid consequences or minimize damages.

One year later, this Court affirmed the holding of Romankewiz, supra, in Selmo v. Baratono, 28 Mich.App. 217, 228, 184 N.W.2d 367 (1970), lv. den. 384 Mich. 834 (1971), where we found no error in the trial court's refusal to instruct the jury that it could consider failure to wear a seat belt in determining the amount of damages. Finally, in Placek v. Sterling Heights, ² 52 Mich.App. 619, 217 N.W.2d 900 (1974), lv. den. 392 Mich. 811 (1974), this Court held that the questioning of a plaintiff concerning his failure to wear a seat belt with or without a shoulder harness is so irrelevant and prejudicial that the plaintiff is entitled to a new trial even in the absence of proof that the jury was influenced by the testimony.

In summary, this Court has consistently opposed the introduction of evidence of a plaintiff's failure [135 MICHAPP 356] to use a seat belt. This rule was based on our determination that there is no duty to use a seat belt as well as the practical "facts of automobile travel today", Romankewiz, supra, 16 Mich.App. pp. 125-126, 167 N.W.2d 606.

III

In 1979, the Michigan Supreme Court, acting under its authority to change the common law, replaced the doctrine of contributory negligence as a total bar to recovery with the doctrine of comparative negligence "in the interest of justice for all litigants in this state". Placek, supra, 405 Mich. 650, 275 N.W.2d 511. The various defendants involved in this appeal argue that the bar against the admission of evidence of a plaintiff's failure to use a seat belt is inconsistent with the doctrine of comparative negligence which dictates that each party to an accident is to bear damages commensurate with his or her degree of fault. Defendants point to cases from other jurisdictions which have allowed the trier of fact to consider seat belt non-use on the issues of comparative negligence or the failure to mitigate damages. ³ Defendants further argue that it would [135 MICHAPP 357] be inappropriate for us to defer to the Legislature in this matter.

The Supreme Court's preference for pure comparative negligence was based on the Court's view that justice is served by a doctrine which "hold[s] a person fully responsible for his or her acts and to the full extent to which they cause injury". Placek, supra, 405 Mich. 661, 275 N.W.2d 511. The Supreme Court's opinion does not specifically address whether, under the doctrine, plaintiff's negligence should be compared with defendant's negligence in terms of the degree to which the parties' negligence caused the accident or the degree to which the parties' negligence caused or increased the severity of plaintiff's injury. Certain portions of the opinion focus on plaintiff's causation of his or her injuries and damages while other statements by the Court could be interpreted as focusing on "blame" for the accident. The distinction raised is important because rarely does the failure to use a seat belt actually contribute to the occurrence of the accident; rather, the "seat belt defense" primarily arises where, as in the instant cases, plaintiffs' failure to use a seat belt may have increased the severity of their injuries. ⁴

[135 MICHAPP 358] Defendants' interpretation of comparative negligence as a doctrine which focuses on contribution to injury does not compel the conclusion that evidence of the plaintiffs' respective failures to use a seat belt should be admissible. Under any interpretation of comparative negligence, no matter how, or to what, negligence is compared, the trier of fact must first find that the plaintiff was negligent. Negligence will not be found merely upon proof of an act which causes injury; a finding of negligence can be sustained only where the person, in committing the injury-producing act breached some legally cognizable duty. Butrick v. Snyder, 236 Mich. 300, 306, 210 N.W. 311 (1926); Sowels v. Laborers' International Union of North America, 112 Mich.App. 616, 620, 317 N.W.2d 195 (1981). Thus, even if we subscribe to defendants' contention that plaintiffs' failure to wear a seat belt proximately caused their injuries, we are still left with the question of whether plaintiffs' failure to wear a seat belt was a breach of some legal duty.

As this Court noted in Romankewiz, supra, 16 Mich.App. at p. 124, 167 N.W.2d 606, at present, no statute mandates seat belt use, ⁵ thus precluding defendants from arguing...