Twohig v. Briner

• Citation: 168 Cal.App.3d 1102,214 Cal.Rptr. 729
• Court: California Court of Appeals
• Decision Date: 05 June 1985
• Parties: Candace TWOHIG, Plaintiff and Appellant, v. Janet BRINER, Defendant and Respondent. D000896, Civ. 31012.

Page 729

214 Cal.Rptr. 729

168 Cal.App.3d 1102

Candace TWOHIG, Plaintiff and Appellant, v. Janet BRINER, Defendant and Respondent.

D000896, Civ. 31012.

Court of Appeal, Fourth District, Division 1, California.

June 5, 1985.

James J. Warner, San Diego, for plaintiff and appellant.

Morris, Polich & Purdy and Charles R. Bongard, Los Angeles, for defendant and respondent.

WORK, Acting Presiding Justice.

Candace Twohig appeals a summary judgment in favor of Janet Briner on her complaint for personal injuries incurred while a passenger in a car from which the seat belts had been removed. The sole issue is whether the trial court erred in granting summary judgment on the basis Briner, the driver and owner of the automobile, as a matter of law on these facts owed no duty to provide seat belts to her passengers. We conclude the trial court did err in granting summary judgment, because there exists a triable issue of fact regarding whether Briner breached her duty to exercise due care in the safe operation and maintenance of her vehicle owed to passengers when she removed the seat belts. Accordingly, we reverse the judgment.

I

Twohig, a passenger in the front seat of a 1970 Volkswagen owned and driven by Briner, was injured in a two-car collision. At the time of the accident, there were no seat belts in the car for a passenger to use because it is alleged they were removed after Briner purchased it. Briner may not have been at fault in the accident.

Twohig's suit alleges Briner negligently operated and maintained her automobile, including its seat belts or by failing to install seatbelts. Briner filed Twohig's answers to interrogatories and responses to certain admissions to support the motion for summary judgment. In response to the question "Do you contend that any act or omission on the part of [Briner] proximately caused or contributed to [the] injury?" Twohig answered, in part, "I spoke with [Briner] in regards to the seat belt availability, and she told me that they had been removed after she bought the car." Briner does not deny making the alleged statement, nor that the seat belts were removed while she owned the car.

II

For the purposes of summary judgment, the trial court must have accepted as factual that Briner did own the car when the seat belts were removed and, in the absence of contrary evidence, that they were removed with her knowledge, because:

" '[T]he matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in its favor [fn. omitted] and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of the affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.' " (Corwin v. Los Angeles Newspaper Service Bureau, Inc., 4 Cal.3d 842, 851-852 [94 Cal.Rptr. 785, 484 P.2d 953], quoting Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785]; People ex rel. Deukmejian v. CHE, Inc., 150 Cal.App.3d 123, 129 [197 Cal.Rptr. 484]; Rebeiro v. Nor-Cal Integrated Ceilings, 135 Cal.App.3d 522, 525 ; Elam v. College Park Hospital, 132 Cal.App.3d 332, 347 ; see LaRosa v. Superior Court, 122 Cal.App.3d 741, 744-745 .)

Simply stated, "[i]f any triable issue of fact exists, it is error for a trial court to grant a party's motion for summary judgment." (Bigbee v. Pacific Tel. & Tel. Co., 34 Cal.3d 49, 56, 192 Cal.Rptr. 857, 665 P.2d 947.)

III

Twohig concedes no statute requires a private owner/operator to provide seat belts in a motor vehicle. However, Twohig focuses on the general duty of due care Briner owes her, as a passenger, to operate the car in a reasonably safe manner and maintain it in a safe operating condition. She contends a triable issue of material fact exists regarding whether that duty was breached by Briner's removing already installed safety devices, seat belts.

As this court explained in Marois v. Royal Investigation & Patrol, Inc., 162 Cal.App.3d 193, 197-199, 208 Cal.Rptr. 384, judicial treatment of the concept of "duty" within the negligence context has left a legacy of analytical confusion. For instance, here the precise issue is not whether there exists a duty to provide seat belts, but rather whether a triable issue of fact exists regarding whether removing existing seat belts breaches the duty of due care owed a passenger.

It is settled an owner/operator of a motor vehicle has a statutory and common law duty to use reasonable and ordinary care to prevent increasing the danger of injury to a passenger, or others, from operating or maintaining the automobile. (Bewley v. Riggs, 262 Cal.App.2d 188, 194, 68 Cal.Rptr. 520; Sherman v. Frank, 63 Cal.App.2d 278, 282, 146 P.2d 704; Spring v. McCabe, 53 Cal.App. 330, 333, 200 P. 41; Civ.Code, §§ 1708, 1714; Veh.Code, § 24002.) Thus, the issue is not, as Briner contends, whether she had a duty to provide Twohig a seat belt while a passenger in her car, but rather whether the risk of the particular harm suffered by Twohig was reasonably foreseeable under the circumstances and, if it were, whether it was unreasonable to remove the seat belts in light of the risk involved. (See generally Marois v. Royal Investigation & Patrol, Inc., supra, pp. 198, fn. 2, 201, fn. 6, 208 Cal.Rptr. 384.)

Foreseeability of risk is usually a question of fact. It may be decided by the trial court as a question of law only if " 'under the undisputed facts there is no room for a reasonable difference of opinion.' [Citations.]" (Big bee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, 56, 192 Cal.Rptr. 857, 665 P.2d 947, quoting Schrimscher v. Bryson, 58 Cal.App.3d 660, 664, 130 Cal.Rptr. 125; Hedlund v. Superior Court, 34 Cal.3d 695, 705, 194 Cal.Rptr. 805, 669 P.2d 41.) Accordingly, we determine here whether foreseeability remains a triable issue of fact, mindful

" 'foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.' [Citation.] One may be held accountable for creating even ' "the risk of a slight possibility of injury if a reasonably prudent [person] would not do so." ' [Citations.] Moreover, it is settled that what is required to be foreseeable is the general character of the event or harm ... not its precise nature or manner of occurrence. [Citations.]" (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, 57-58, 192 Cal.Rptr. 857, 665 P.2d 947; see also Gomez v. Ticor, 145 Cal.App.3d 622, 629, 193 Cal.Rptr. 600.)

In 1970, as now, "[i]t is ... a matter of common knowledge that safety belts are effective in reducing fatalities and minimizing injuries in motor vehicle collisions. [Citations.]" (Greyhound Lines, Inv. v. Superior Court (1970) 3 Cal.App.3d 356, 358, 83 Cal.Rptr. 343.) Each year motor vehicle accidents kill approximately 50,000 Americans and injure another two million. ¹ More than one-half of these fatalities and injuries result from "second collisions" when the occupant is either hurled against the vehicle's interior or ejected. Statistical studies show lap and shoulder seat belts reduce an occupant's chance of death and serious injury by 50 to 60 percent. (Comment Legal Issues Presented by Motor Vehicle Restraint Systems (1984) 17 Akron Law Review 781; 3 Barzeley, Personal Injury--Scientific Automobile Accident Reconstruction (1984) page 31-47; see W. Allen Ames, The Constitutionality of Mandatory Seat Belt Use Legislation (Virginia Highway Research Council 1972), pages 1-3.) "A seat belt, by its very nature, is designed to prevent 'second collision' injuries and has been effective in doing so [citation]." (McMahon v. Butler (1980) 73 A.D.2d 197, 426 N.Y.Supp.2d 326, 327; Spier v. Barker (1974) 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164, 168-169.) By restraining the automobile occupant during and immediately after initial impact, it significantly reduces the likelihood of ejection and "second collision" injuries, while providing the driver with more effective control of the vehicle in accident situations. (Spier v. Barker, supra, 363 N.Y.S.2d at 920-921, 323 N.E.2d at pp. 168-169; 3 Barzeley, supra, at pp. 31-6, 31-46, 31-47.)

The immense proportions of the carnage occurring on our highways caused the installation in 1964 of front seat lap belts in all cars as standard equipment. Fourteen states, including California, already required them. ² The following year, rear seat belts were added. In 1966, Congress reacted to the alarming number of deaths and personal injuries on the nation's highways by enacting the National Traffic and Motor Vehicle Safety Act of 1966. (15 U.S.C. § 1381, et seq.) ³ Pursuant to the Act, the Secretary of Transportation delegated the authority and responsibility of issuing motor vehicle safety standards to the United States National Highway Traffic Safety Administration (NHTSA). The NHTSA promulgated the original Federal Motor Vehicle Safety Standard 208 in 1967 requiring manufacturers to install seat belts in all new cars after January 1, 1968, (32 Fed.Reg. 2408, 2415 (Feb. 3, 1967))....