Warfel v. Cheney, 1

• Decision Date: 23 June 1988
• Docket Number: No. 1,CA-CIV,1
• Citation: 157 Ariz. 424,758 P.2d 1326
• Parties: , 85 A.L.R.4th 349 Joseph A. WARFEL, a single person, Plaintiff-Appellant, v. Becky L. CHENEY, a single person, and H. Edwin Cheney and Estelle Cheney, husband and wife, Defendants-Appellees. 9449.
• Court: Arizona Court of Appeals

Page 1326

758 P.2d 1326

157 Ariz. 424, 85 A.L.R.4th 349

Joseph A. WARFEL, a single person, Plaintiff-Appellant, v. Becky L. CHENEY, a single person, and H. Edwin Cheney and Estelle Cheney, husband and wife, Defendants-Appellees.

No. 1 CA-CIV 9449.

Court of Appeals of Arizona Division 1, Department C.

June 23, 1988.

Mandate Issued July 26, 1988.

[157 Ariz. 425] Jacoby & Meyers Law Offices by Mitchell Jay Klein, Phoenix, for plaintiff-appellant.

O'Connor, Cavanaugh, Anderson, Westover, Killingsworth & Beshears by Frank M. Fox, Scott E. Boehm, Phoenix, for defendants-appellees.

OPINION

CORCORAN, Judge.

Plaintiff-appellant Joseph A. Warfel (plaintiff) was injured when a car driven by defendant-appellee Becky L. Cheney (defendant) rear-ended plaintiff's motorcycle while he was stopped at a red light.

Plaintiff sued defendant, seeking compensatory and punitive damages. Defendant admitted her negligence in causing the accident and the case proceeded to jury trial to determine damages. The jury was instructed that it could reduce damages if plaintiff's failure to wear a helmet was a failure to exercise ordinary care for his safety and if this failure caused any portion of his injuries. The punitive damages issue was not sent to the jury. The jury returned a general verdict for plaintiff of $25,000.00 for compensatory damages, and the trial court entered judgment for that amount. The jury was given only one form of verdict, which did not indicate the total damages incurred by plaintiff or the amount the jury subtracted for damages attributable to plaintiff's failure to wear a helmet. Plaintiff moved for new trial, which the court denied.

Plaintiff appeals from the denial of his motion for new trial, arguing that he was wrongfully thwarted in his attempt to establish for the jury the damages to which he should be entitled because of two improper evidentiary rulings. First, plaintiff argues that the trial court committed prejudicial error by admitting evidence that plaintiff was not wearing a helmet. Second, plaintiff contends that the court erred by excluding evidence of defendant's conduct after the accident, from which plaintiff claims he would have been able to establish a right to punitive damages.

1. Plaintiff's Failure to Wear a Helmet

We first address the issue whether the trial court erred in admitting evidence that plaintiff was not wearing a helmet, thus allowing the jury to consider this evidence in determining whether plaintiff's damages should be reduced. Plaintiff filed a pretrial motion in limine to exclude any testimony about his failure to wear a helmet. Plaintiff acknowledged that this court had recently ruled that a defendant may introduce evidence of a plaintiff's failure to use an available seat belt if a defendant is able to demonstrate a causal relationship between the nonuse of the seat belt and injuries a plaintiff may have suffered; if defendant does, the jury may reduce plaintiff's damages accordingly. See Law v. Superior Court, 157 Ariz. 142, 755 P.2d 1130 (App.1986) (Law I ). ¹

Plaintiff argued, however, that the court should not expand the holding in Law I regarding seat belts to conclude that evidence of plaintiff's failure to wear a helmet would be relevant. Additionally, plaintiff argued that the evidence defendant would attempt to use would be too speculative to be admissible.

In ruling on the motion, the trial court determined that, because of the decision in Law I, testimony regarding plaintiff's failure to wear a safety helmet would be relevant to the issue of damages under comparative negligence principles. The trial court precluded the defense, however, until the court was apprised of what the defense witnesses would say.

On the second day of trial, counsel for plaintiff and defendant met with the trial judge. Defense counsel wanted to persuade the court that Fred Christensen, M.D., who had treated plaintiff after the accident, could provide evidence to link helmet nonuse with enhancement of plaintiff's injuries. During his voir dire examination, Dr. Christensen told the court, out of the presence of the jury, that based on his treatment of approximately 1,000 persons injured in motorcycle accidents, some wearing helmets and some not, that helmet use generally results in less severe head injuries after motorcycle accidents. He indicated he would not be able to state with medical probability what the difference in plaintiff's injuries would be but that it was more than likely that some of plaintiff's injuries were greater due to his helmet nonuse. Plaintiff's counsel objected to Dr. Christensen's testimony, arguing improper foundation and that it was too speculative. The trial court, however, allowed Dr. Christensen to testify. Thereafter, Dr. Christensen testified before the jury as follows:

Q [FRANK M. FOX, ESQ., COUNSEL FOR DEFENDANTS] Doctor, have you ever before treated persons involved in motorcycle accidents?

A [DR. CHRISTENSEN] Yes.

Q On how many occasions?

A Many occasions. In excess of 1,000.

Q In this case, Doctor, Mr. Warfel's major injury was right here on the forehead; isn't that correct?

A Yes.

Q And that would normally be where a motorcycle helmet would cover; isn't that correct?

A Yes.

Q Now, Doctor, I know you can't say with certainty that Mr. Warfel would not have injured his head would he have worn a helmet, but can you state more likely than not that his injury to his head would not be so severe had he been wearing a helmet?

MR. KLEIN: Objection, improper foundation.

THE COURT: Overruled.

THE WITNESS: I believe his head injury would not have been as severe had he been wearing a helmet.

On appeal, plaintiff argues that this court should conclude that evidence of helmet nonuse should never be admissible to reduce damages a plaintiff suffered as a result of a defendant's negligence. He points out that most states that have considered whether to allow evidence of helmet nonuse have excluded the evidence. He argues that admitting this evidence runs counter to the traditional ideas that a negligent party takes plaintiffs as they find them and that a plaintiff should not be required to mitigate damages before they occur. Additionally, he argues that, even if admissible in a proper case, this evidence should not have been allowed in this particular case because Dr. Christensen's testimony, presented to establish the causal link between helmet nonuse and injuries, lacked proper foundation and was too speculative.

After trial in this case, the Arizona Supreme Court accepted review of Law I; we now have the benefit of the supreme court's decision to aid us in answering the questions plaintiff raises in this appeal. See Law v. Superior Court, 157 Ariz. 147, 755 P.2d 1135 (1988) (Law II ).

Law II carefully limited the circumstances under which the evidence of seat belt nonuse would be admissible and limited the issue to which it would relate. The court concluded that under comparative negligence principles, the plaintiff's failure to use a seat belt that is available in his car is relevant to whether the plaintiff acted reasonably to minimize foreseeable injury and damages, provided that evidence shows the injury would not have occurred or would have been mitigated had the seat belt been used, and provided that evidence establishes the degree of enhancement of the injury because of the nonuse. Law II, at 157, 755 P.2d at 1145.

A. Applicability of Law II to Helmet Nonuse. Our first determination must be whether the principles enunciated in Law II in the context of automobile seat belts apply similarly to motorcycle helmets.

In recognizing seat belts as a "safety device," Law II first concluded:

[I]n almost every instance seat belt-induced injuries are far less drastic than those that would have been incurred without the seat belt use. As a general rule, a motorist is simply better off wearing a seat belt. We conclude from the technological data that continued nonrecognition of the seat belt defense cannot be based on the general concept that seat belts cause harm. The opposite is generally true.

Law II, at 153, 755 P.2d at 1141.

Here too, we start with the accepted premise that motorcycle helmets generally save lives and prevent enhancement of head injuries. Government statistical studies show that helmetless motorcycle riders have more than twice the head injury rate and almost six times the fatal head injury rate of helmeted riders. A. Berkowitz, The Effect of Motorcycle Helmet Usage on Head Injuries, and the Effect of Usage Laws on Helmet Wearing Rates, U.S. Dep't of Transp., Nat'l Highway Traffic Safety Admin. (DOT-HS-805-851, March 1981). Furthermore, the statistical relationship of helmetless riders to increasing fatalities has been well documented in those states that have repealed their helmet laws. See United States Dep't of Transp., Nat'l Highway Traffic Safety Admin., A Report to the Congress on the Effect of Motorcycle Helmet Use Law Repeal--A Case for Helmet Use (DOT-HS-805-312, April 1980).

Those opposed to laws requiring helmet use have generally attacked the safety of helmets on three grounds:

1. that helmets can themselves cause the neck and spinal injuries found in injured, helmeted cyclists;

2. that helmets dangerously restrict a rider's peripheral vision; and

3. that helmets dangerously reduce a cyclist's hearing.

Note, Helmetless Motorcyclists--Easy Riders Facing Hard Facts: The Rise of the "Motorcycle Helmet Defense," 41 Ohio St.L.J. 233, 236 n. 25 (1980) (hereafter Helmetless Motorcyclists ). However, when data from several studies were pooled, it was concluded that use of a safety helmet had no adverse effect on the rate of neck injuries, and actually reduced the rate slightly; furthermore, of 980 neck injuries, only 4 were attributed to the helmet use, and those 4 were minor injuries. Hurt, Status Report of Accident Investigation Data Motorcycle Accident Cause Factors and Identification of Countermeasures,...