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Dunn v. Durso

Decided: September 18, 1986.

MARY ELLEN DUNN, PLAINTIFF,
v.
GUGLIEMO DURSO, GERARDO DURSO AND THOMAS E. DUNN, DEFENDANTS



MacKenzie, J.s.c.

Mackenzie

CIVIL ACTION OPINION

On a snowy February 6, 1983, an automobile operated by Gugliemo Durso on Woodland Avenue in Chatham Township collided head-on with a vehicle driven by Thomas E. Dunn. Mary Ellen Dunn, a front seat passenger in the 1981 Plymouth Reliant driven by her husband, suffered serious facial lacerations and other bodily injuries when her head struck the dashboard and the gear shift box. Although the Dunn car was equipped with lap and shoulder belt restraints, Mrs. Dunn was not using her seat belt as she did ordinarily.*fn1 According to her testimony, Mrs. Dunn chose not to wear the available seat belt because of the expected short trip and because she desired freedom of movement to tend to her six-month old infant, who was on the back seat. At trial, this court had to define the legal ramifications of that choice.*fn2

In support of his argument that plaintiff's recovery should be reduced to the extent that her failure to use the seat belt had contributed to her injuries, defendant proposed to call Herman J. Rich, a licensed professional engineer who had conducted an engineering study of the motor vehicle accident. A report of Mr. Rich's findings and his opinion had been timely provided to plaintiff's attorney during the discovery period. R. 4:17-4. Mr. Rich was prepared to testify at trial that:

[W]hen a forward moving motor vehicle is involved in a front end collision, there is an abrupt change in its inertial state due to the sudden retardation of its forward motion. Because this change is so rapid, it is not immediately transmitted to objects that are not an integral part of the vehicle or persons who are not attached to it through the use of restraints. As a result, these persons or objects continue their forward motion independent of the rapidly decelerating vehicle. There then occurs was [sic] is frequently referred to as the "second impact" in which the forward moving persons or objects encounter some part of the vehicle interior in front of them. It is this second impact that restraining devices are intended to prevent.

It was the opinion of Mr. Rich that Mrs. Dunn suffered bodily injury as the result of the second impact, an impact which would not have occurred had she been wearing her seat belt. Her injuries, according to Mr. Rich, were "attributable primarily to her failure to use the restraining devices available." Plaintiff moved, in limine, to exclude the proffered expert testimony.*fn3

Is the so-called "seat belt defense" recognized in New Jersey? Stated another way, may the plaintiff recover for the full extent of her personal injuries resulting from an automobile accident where it can be shown by competent evidence that some of her injuries could have been eliminated, or at least minimized, had she worn an available seat belt? Prior decisional authority has suggested that the seat belt defense should be accepted in a suitable case. Before this trial, however, an appropriate factual situation had not arisen. Now it has, and accordingly, this court will permit Mr. Rich to offer to the jury his expert opinion on the effect of Mrs. Dunn's failure to wear her belt. In the judgment of this court, if a plaintiff acts unreasonably by failing to wear an available and operable seat belt, and such conduct demonstrably causes, or increases, the bodily injury for which compensation is sought, (s)he may not recover the incremental damages (s)he has caused. The seat

belt defense expresses and effectuates the long-standing principle that a defendant should not be liable for injuries (s)he did not proximately cause.*fn4

Barry v. The Coca Cola Co., 99 N.J. Super. 270 (Law Div.1967), opened the door in New Jersey, albeit cautiously, to the seat belt defense, and in so doing left open many questions. In Barry, plaintiff was a passenger in a car involved in a rear-end collision. Despite the availability of a seat belt, plaintiff did not use one. He struck the windshield, suffering severe facial injuries. On plaintiff's motion to strike the defense of contributory negligence, the Barry court was confronted with two questions: whether the failure to use seat belts constituted a defense sufficient to bar recovery to plaintiff; and, if not, whether the defense could be considered by the jury in diminution of plaintiff's damages, i.e., whether a jury could apportion damages to preclude plaintiff's recovery of such damages as may have been caused by his failure to use the seat belts. Id. at 273. As to the first question, the court found that the failure to use seat belts could not be a bar to recovery, as this omission was not a causative factor in bringing about the collision. Id. at 272. The court stressed the necessity to distinguish between negligence contributing to the accident and negligence contributing to the injuries sustained. Id. at 273.*fn5

Resolution of the second question required analysis of the sufficiency of the proofs. Defendant was not prepared to offer any expert evidence in support of his thesis that Mr. Barry's failure to wear his belt enhanced the likelihood of serious injury. Judge Lynch referred to Restatement (Second) of Torts, ยง 465 (1965) and particularly comment c thereto, incorporating the expressed standards into his analysis.*fn6 Comment c reads in pertinent part:

Where, however, there are distinct harms, or a reasonable basis is found for the division of a single harm, the damages may be apportioned, and the plaintiff may be barred only from recovery for so much of the harm as is attributed to his own negligence. Such apportionment is commonly made, under the damages rule as to avoidable consequences, where the plaintiff suffers an original injury, and his negligence consists in failure to exercise reasonable care to prevent further harm to himself. . . .

Such apportionment may also be made where the antecedent negligence of the plaintiff is found not to contribute in any way to the original accident or injury, but to be a substantial contributing factor in increasing the harm which ensues. There must of course be satisfactory evidence to support such a finding, and the court may properly refuse to permit the apportionment on the basis of mere speculation.

Judge Lynch accordingly determined that there was no "satisfactory evidence" to support a finding that the failure to use seat belts was a "substantial contributing factor increasing the harm" plaintiff suffered. Id. 99 N.J. Super. at 274. In the absence of expert testimony to this effect, an attempt by the jury to apportion damages would have been highly speculative. Id. at 275. The court, however, specifically stated that it was not deciding how it would have ruled had expert evidence been available. Id. at 275, 282. Moreover, the court observed that

the seat belt defense does not involve the application of the "avoidable consequences" doctrine, under which a plaintiff may not recover damages for injuries he may have avoided. As Judge Lynch explained, at 275, "That doctrine applies when his carelessness occurs after defendant's legal wrong has been committed. Contributory negligence comes into action before defendant's wrong has been committed." [Emphasis in original; footnote omitted.]

Although the court in Barry was compelled to reject the seat belt defense in light of the state of the record, it alluded to various other factors as supportive of its ultimate holding. Pointing to the comprehensive provisions of the Motor Vehicle Act, N.J.S.A. 39:3-1 et seq., dealing with equipment of motor vehicles and their use, the court declined to impose a duty to use seat belts in the absence of a legislative requirement. Id. at 279. In addition, the court was concerned with the practical and theoretical problems associated with damage apportionment in the seat belt situation:

This is a single injury on the record here. There can be no division, on this record, of how much or to what extent certain injuries were due to the accident, the impact itself on the one hand, or the failure to use seat belts on the other. Such a theory of permitting apportionment here would approach the question as is done where comparative negligence is accepted. And as we know, New Jersey is not such a state. [ Id. at 281; Emphasis in original.]

Nonetheless, Barry did lay an important foundation upon which to evaluate the seat belt defense in subsequent cases. Indeed, the nature of a defendant's burden of causation, as set forth in Barry, was discussed approvingly in Dziedzic v. St. John's Cleaners & Shirt Launderers, Inc., 53 N.J. 157 (1969). Dziedzic involved the propriety of the trial court's striking of the affirmative defense of contributory negligence where the plaintiff was a standing passenger in a delivery truck that provided only one seat for the driver. The Supreme Court agreed with the decision of the trial judge since defendants failed to show that the plaintiff was injured more seriously by standing in the truck as she did than she would have been had she ridden as a passenger normally rides, i.e., in a seated

position. Id. at 162. The Court analogized to the requirement in cases involving the seat belt defense that a defendant come forward with specific evidence demonstrating the causal link between the plaintiff's failure to fasten the seat belt and the injuries suffered. Id. at 162-63.

The problem of conjecture and the absence of "specific evidence" again surfaced in Polyard v. Terry, 148 N.J. Super. 202 (Law Div.1977), rev'd on other grounds 160 N.J. Super. 497 (App.Div.1978), aff'd o.b. 79 N.J. 547 (1979). In Polyard, a wrongful death action arising out of an automobile accident, the State raised a question of decedent's negligence as to her injuries based on her alleged failure to wear seat belts. The trial court granted plaintiffs' motion to strike the defense. In denying the State's subsequent motion for a new trial, the court noted that the seat belt defense had not been "clearly established" in New Jersey. Id. 148 N.J. Super. at 214. The court acknowledged that the Barry decision left open the possibility that "[t]here might be circumstances where the failure to wear seat belts may be shown by evidence to have substantially contributed to the injury occurring as the result of an accident, justifying an apportionment of damages." Ibid. However, the court concluded that in the particular case before it, a situation where the plaintiff passenger was killed in the accident, it was inappropriate to apply the defense. Ibid. The court stated at 215:

It would certainly have been mere speculation and conjecture to attempt division of damages for failure to wear seat belts in this case where death occurred and even defendant's medical witness did not attempt an apportionment. Would the jury be asked for this purpose to consider damages as if plaintiff had not died? This question answers itself.

Significantly, the medical examiner's testimony for the State on the effect of the failure to wear seat belts was inconsistent and speculative; there was even a concession that "even with seat belts on she might have died from other injuries." Ibid.

Barry was decided when the law of this State encompassed the absolute bar of contributory negligence. The automobile collision upon which this civil ...


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