Taplin v. Clark, 51603

• Decision Date: 24 April 1981
• Docket Number: No. 51603,51603
• Citation: 626 P.2d 1198,6 Kan.App.2d 66
• Parties: Debra M. TAPLIN, a minor, by and through her Mother and Father and next of friends, Gail H. Taplin and Jeaneen Taplin, Plaintiffs-Appellees, v. Sandra CLARK; Vernon Clark and Joan Clark, husband and wife, Defendants-Appellants.
• Court: Kansas Court of Appeals

Page 1198

626 P.2d 1198

6 Kan.App.2d 66

Debra M. TAPLIN, a minor, by and through her Mother and Father and next of friends, Gail H. Taplin and Jeaneen Taplin, Plaintiffs-Appellees, v. Sandra CLARK; Vernon Clark and Joan Clark, husband and wife Defendants-Appellants.

No. 51603.

Court of Appeals of Kansas.

April 24, 1981.

Syllabus by the Court

A passenger in an automobile has no legal duty to use an available seat belt in anticipation of the driver's negligence and evidence of nonuse is inadmissible under the comparative negligence doctrine either on the issue of contributory negligence or in mitigation of damages (following Hampton v. State Highway Commission, 209 Kan. 656, 498 P.2d 236 (1972)).

John W. Mize, of Clark, Mize & Linville, Chartered, Salina, for defendants-appellants.

John F. Stites, of Stites, Hill & Wilson, Manhattan, for plaintiffs-appellees.

Before PRAGER, Justice Presiding, ABBOTT, J., and J. PATRICK BRAZIL, District Judge, Assigned.

PRAGER, Justice Presiding:

This is an action by a passenger against the driver of an automobile to recover damages for personal injuries sustained in a one-car accident. The plaintiff, Debra M. Taplin, was a passenger in the rear seat where a seat belt was installed and available for use. She failed to "buckle up." The district court sustained plaintiff's motion for summary judgment on the issue of liability. The district court had previously sustained plaintiff's motion in limine which had the effect of precluding defendant from introducing evidence of plaintiff's failure to use the available seat belt. Failure of plaintiff to use her seat belt was the only act of negligence asserted against plaintiff by defendant. The case was submitted to the jury on the issue of damages only and plaintiff was awarded substantial damages.

The basic issue raised on the appeal is essentially this: Under the Kansas comparative negligence law (K.S.A. 60-258a), may a jury consider as a negligence factor to reduce a negligent driver's liability for damages the failure of a passenger in an automobile to use an available seat belt? Prior to the adoption of comparative negligence, effective July 1, 1974, the Kansas Supreme Court held that a driver had no legal duty to use an available seat belt and that evidence of nonuse was not admissible on the issue of either contributory negligence or mitigation of damages. In Hampton v. State Highway Commission, 209 Kan. 565, 579, 498 P.2d 236 (1972), the court, after noting a decision of the Alabama Supreme Court in Britton v. Doehring, 286 Ala. 498, 242 So.2d 666 (1970), reasoned as follows in rejecting the seat belt defense:

"Our own legislature has required new cars sold after October, 1966, to be equipped with seat belts (K.S.A. 1971 Supp. 8-5,135) but it has not made their use mandatory, nor has it required them to be installed on older vehicles. Plaintiff was therefore not violating any statutory duty. Neither, we believe, was he falling below the standard required of the reasonable, prudent man. We have nothing before us on which we could confidently base a finding that the accepted community standard of care requires one to buckle up routinely; experience dictates to the contrary. Some people, in fact, deliberately refuse to wear seat belts for fear of aggravating an injury or being trapped in a collision. If such persons are to be declared unreasonable in their concern for their own safety as a matter of law, we believe with the Alabama court that at this stage the declaration should be legislative and not judicial.

"While as a general rule one must use reasonable diligence to mitigate one's damages once the risk is known (Atkinson v. Kirkpatrick, 90 Kan. 515, 135 P. 579), one is not required to anticipate negligence and guard against damages which might ensue if such negligence should occur (Rig & Reel Co. v. Oil & Gas Co., 111 Kan. 37, 205 P. 1020). So likewise the traveler has the right to assume the highway is reasonably safe for travel as the jury here was instructed without objection.

"In short, there was no duty to use a seat belt, either under the common law standard of due care or to mitigate damages. That being so, the trial court did not err in excluding evidence of plaintiff's nonuse for it was not relevant to any issue to be determined." pp. 580-81, 498 P.2d 236.

The factual circumstances in this case are somewhat different from those in Hampton, because here the defendant made an offer of proof prior to the determination of the issue by the trial court. The evidence proffered by the defendant would have shown that, prior to the accident, plaintiff had completed a driver's education course where she had been instructed to wear a seat belt when occupying a vehicle. The only window broken in the accident was the front windshield. Kenneth Razak, an automobile accident reconstruction expert, examined all pertinent data relating to the accident. He researched the numerous and exhaustive studies which had been made demonstrating that seat belts are effective protection devices to guard occupants of automobiles against injuries in automobile collisions. He testified in a deposition that, in his expert opinion, had the plaintiff been wearing the seat belt which was installed in the automobile, she would not have sustained facial lacerations in the accident and her injuries would thus have been reduced.

The defendant concedes that, under the former contributory negligence doctrine, evidence of plaintiff's nonuse of the seat belt was inadmissible under Hampton. Defendant argues, however, that Hampton is no longer valid law because of the adoption of the system of comparative negligence in Kansas in 1974. She contends, in substance, that the rule barring evidence of nonuse of seat belts in automobile negligence cases, as espoused in the Hampton case, is obsolete and should be abandoned. Defendant maintains that, since Kansas no longer adheres to the harsh contributory negligence doctrine which barred a plaintiff completely from recovery if she were in the slightest degree negligent, much of the underlying rationale of Hampton has disappeared. Defendant further contends that Hampton is distinguishable on its facts from the present case because of defendant's proffered evidence that plaintiff would not have sustained the injuries of which she complains, if she had been wearing her seat belt, and that, under comparative negligence, the question of whether a passenger in a motor vehicle who fails to wear his seat belt has exercised...