On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Garibaldi, J.
Plaintiff's car went out of control and crashed into a utility pole. A defective right rear axle shaft on plaintiff's car caused the accident. At the time of the accident plaintiff was not wearing a seat belt. This appeal focuses on what effect, if any, plaintiff's failure to wear a seat belt has on her right to recover damages for the personal injuries she received as a result of the accident caused by the defective axle.
The general principle that we adopt in this case is that if a jury finds that a plaintiff's failure to wear a seat belt constitutes negligence that contributed to plaintiff's injuries and damages, that negligence shall be considered in determining plaintiff's award. This principle will require only a limited expansion of the jury's responsibilities in automobile accident cases. If a jury finds plaintiff negligent for failure to wear a seat belt, plaintiff's recovery for injuries that could have been avoided by seat-belt use may be reduced by an amount reflecting plaintiff's comparative fault in not wearing a seat belt. We refer to the damages that arise from these avoidable injuries as "seat-belt damages." The jury may take into account plaintiff's negligent failure to use a seat belt only to reduce plaintiff's recovery for these seat-belt damages. Plaintiff's failure to wear a seat belt will not affect recovery for injury and damages that would have occurred regardless of whether plaintiff had worn a seat belt. The amount of the reduction of seat-belt damages must fairly reflect all of the parties' contributions to the seat-belt damages: defendant's contribution in causing the accident in the first place, plaintiff's contribution in causing the accident in the first place, and plaintiff's contribution to the extent of his or her injuries in not wearing a seat
belt. The court will mold these jury findings, expressed as percentages of comparative fault, into the final verdict.
Considerations of fairness and public policy, as expressed in this state's mandatory seat belt law, lead us to the principle we announce today. Our focus is on the avoidance of injury; unquestionably, persons in certain instances could avoid certain injuries from automobile accidents if they wore seat belts. Thus the principle we announce does not concern a plaintiff's fault in causing an automobile accident and, accordingly, does not rest on this state's comparative negligence law.
On April 9, 1980, at approximately 12:30 in the afternoon, plaintiff was driving her 1979 Chevrolet Monte Carlo along Broadway in Clark, New Jersey. It was raining and the road surface was wet. Plaintiff was traveling at a speed of twenty-five to thirty miles per hour. Christopher Corbett, the driver of a vehicle traveling approximately 100 feet behind plaintiff's vehicle, testified about what happened next. According to Mr. Corbett's testimony, as plaintiff was coming out of a bend in the road, "there was a drastic move of the rear end of the car towards the curb and from that point on [the car] just went straight for the telephone pole." Plaintiff, who was traveling with only her two cats, has no recollection of the accident or the moments preceding it. Plaintiff was not wearing the available passenger restraint system*fn1 (seat belt) at the time of the accident.
Following the accident, plaintiff was taken to Rahway Hospital and examined by Dr. Mark Schottenfeld, the orthopedic surgeon on call in the emergency room. Dr. Schottenfeld testified that plaintiff had sustained bilateral dislocations of the
hips, a fracture of the left clavicle, a fracture of the left fourth rib, and an open fracture (an open fracture means there was a laceration in the area) of the right patella. Plaintiff also had a right eye that was totally red, a cut that stretched from the left eye down her nose, and a fractured nose.
Within a matter of hours after the accident Dr. Schottenfeld performed a closed reduction of the hip dislocations under general anesthesia. Once Dr. Schottenfeld completed this procedure, he confined plaintiff to her hospital bed; her entire lower extremities were placed at rest with traction exerted on the legs until late April 1980. Dr. Schottenfeld treated the fracture of plaintiff's left clavicle by putting the left arm in a sling for two weeks in order to immobilize it. The surgeon did not treat the open fracture of the right patella since the plaintiff was already immobilized due to the hip dislocations.
Late in April, after the traction was removed, plaintiff was able to get out of bed and into a wheelchair using only her arms to support herself. Dr. Schottenfeld counseled plaintiff not to try to walk because he believed the avoidance of stress on her hip joints would diminish the probability of permanent damage or deterioration of the joints. Approximately one month after the accident, Dr. Schottenfeld discharged plaintiff from the hospital. When she left the hospital, she was still experiencing soreness in her hips, shoulder, and kneecap. Additionally, her ribs were so sore that when she coughed or took a deep breath she experienced pain. Mrs. Waterson remained confined to a wheelchair for three months following her discharge during which time she stayed at her parents' home.
In June 1980, plaintiff was readmitted to Rahway Hospital for a rhinoplasty (restructuring of the fractured nose), a surgical procedure performed under local anesthesia. Following surgery, plaintiff's nose was sore and remained in a cast for two weeks. Once the cast was removed, plaintiff was pleased with the results of the operation. After spending three days at Rahway Hospital, she returned to her parents' home.
In July 1980, plaintiff began to walk with the aid of crutches. She remained on crutches until August 1980. Once plaintiff discarded her crutches, she experienced soreness when she walked or when she stood or sat for a prolonged period of time. On August 31, 1980, approximately five months after the accident, plaintiff returned to her job with Dental Associates as a chairside dental assistant. At the time of the accident, plaintiff earned approximately $150 a week after taxes.
At trial, plaintiff testified that she continued to suffer physical pain as a result of the injuries she sustained in the accident. Her treating physician and only medical witness, Dr. Schottenfeld, testified that he could not "in any way predict whether the injuries she sustained would cause 'future problems.'" Based on Dr. Schottenfeld's inability to predict future difficulties arising from plaintiff's injuries, the trial court precluded plaintiff from soliciting his opinion regarding the permanency of her injuries. Significantly, with regard to the nose fracture, plaintiff had suffered damage to her nose prior to this automobile accident. Due to this previous injury and plaintiff's intent to have surgery on the nose even before the accident, the trial court refused to allow admission into evidence of the Rahway Hospital records concerning this operation.
Finally, concerning plaintiff's injuries, Dr. Schottenfeld also testified that as of his last pretrial examination on June 28, 1983, plaintiff "had full . . . internal and external rotation of the hip." He remarked that he had no way of comparing plaintiff's post-accident hip rotation with her hip rotation prior to the accident since he had not examined her before the accident. At the time of the trial plaintiff was a registered nurse and was employed as an operating room nurse.
Plaintiff sued General Motors Corporation, the manufacturer of her automobile, and Reedman Motors Corporation, the dealership that sold the car, for injuries arising out of the accident. The parties raised several evidentiary questions at two pretrial Rule 8 hearings. Following the second Rule 8 hearing, the
trial court ruled by letter opinion that plaintiff's failure to use the seat belt was admissible; but before a jury could consider seat belt testimony, "there must be 'satisfactory evidence' to support a finding that plaintiff's failure to use the seat belt was a substantial contributing factor to her injuries." Subsequently, at trial, the court applied this ruling as a comparative negligence concept to plaintiff's injuries.
Plaintiff produced an expert witness, Dr. Ciesla, who testified regarding the alleged axle defect. The only additional witnesses, other than herself, produced by plaintiff were Christopher Corbett, the eyewitness; Officer Roy George, the policeman called to the scene; and Dr. Schottenfeld.
Defendants introduced expert testimony regarding the axle from Dr. Edward Reynolds, a Senior Staff Analysis Engineer for General Motors, who contradicted plaintiff's expert's testimony concerning the allegedly defective axle shaft. In conjunction with Dr. Reynolds' testimony, defendant produced several videotapes of General Motors crash tests. Although at trial General Motors repeatedly challenged the factual foundation of Dr. Ciesla's conclusions, on appeal General Motors dropped this claim, and conceded that the axle was the cause of the accident. Defendant also introduced expert testimony regarding the seat-belt issue from Frank Montalvo, a biomedical engineer employed by General Motors. Mr. Montalvo's testimony, which speaks to the central issue in this appeal, is fully discussed below. Infra at 246-47.
The trial court denied motions by defendant General Motors for dismissal at the conclusion of plaintiff's case and again at the conclusion of defendant's case. The jury awarded plaintiff damages of $28,000 against both defendants. The jury also found that plaintiff's failure to wear her seat belt proximately contributed forty percent (40%) to her injuries. The trial court reduced plaintiff's recovery to $16,800 plus interest and costs to reflect her negligence. The court also entered judgment in
favor of defendant Reedman Motors Corporation on its cross-claim for indemnification against General Motors.
The court denied a motion for additur or, in the alternative, for a new trial on damages on behalf of the plaintiff and a motion for judgment n.o.v. on behalf of defendant General Motors. Defendant General Motors appealed the trial court's decision and plaintiff cross-appealed. The Appellate Division affirmed the trial court's findings on all issues. Specifically, the Appellate Division ruled that plaintiff could not object to the submission of the seat-belt question to the jury on appeal since she had not objected at trial. The Appellate Division also concluded that the damages award was permissible and that the trial court had properly denied plaintiff's additur motion. The jury verdict, according to the court, should not be disturbed.
Subsequently, defendant General Motors filed a Petition for Certification on the seat belt issue and plaintiff filed a Cross-Petition for Certification seeking additur or, in the alternative, a new trial on damages. We granted both petitions for certification, 108 N.J. 575 (1987).
We begin our analysis of the seat-belt defense by reviewing the specific evidence regarding seat-belt use. The only expert testimony in connection with the use of seat belts was given by Frank Montalvo, a biomedical engineer, who has a Bachelor's Degree in Physics and Mathematics and a Master's Degree in Biomedical Engineering from the University of Michigan. He is employed by General Motors, where he is senior engineer of the safety research and development laboratory, and is a member of the American Association for Automotive Medicine and the Society of Automotive Engineers. For over seven years, he has designed and supervised crash tests and other similar experiments to study the impact of automobile collisions on the occupants of automobiles. He testified that he has observed several hundred crash tests in which the purpose was to study
the movement of human occupants of an automobile during a collision through the use of dummies. On the basis of these credentials, the trial court qualified Mr. Montalvo as an expert on the seat belt issue.
Mr. Montalvo testified in detail concerning the injuries sustained by plaintiff. He also testified about the occupant kinematics,*fn2 or movement of the occupant of an automobile during a collision, and the specific causes of each of plaintiff's injuries, and the specific parts and surfaces of the car's interior with which plaintiff came into contact during the crash. Mr. Montalvo primarily relied on police records and photographs to form his opinions of the part that seat belts would have played in protecting plaintiff. Ultimately, his opinion was that plaintiff would not have sustained any of her injuries had she been wearing her seat belt at the time of the accident. Montalvo outlined which details of the interior of the wrecked automobile substantiated his view that plaintiff could have walked away from this accident if she had been wearing her seat belt. On cross-examination, Montalvo acknowledged that at the time of the accident only twelve to fifteen percent of automobile occupants used their seat belts.
Montalvo's testimony constituted the only evidence before the jury concerning the seat belt issue. Plaintiff did not present any seat belt evidence. At the close of its case, defendant General Motors moved for a dismissal contending, inter alia, that the unrefuted testimony of Montalvo conclusively established that plaintiff would have sustained no injury had she been wearing a seat belt. The trial court rejected defendant's contention and denied the motion. On appeal, the Appellate Division also rejected defendant's argument "substantially for the reasons stated by Judge Ironson in his May 14, 1985 letter opinion."
Initially, we note that the trial court and Appellate Division properly determined that the seat belt issue should go to the jury. The lower courts' determination comports with case law and common sense. See, e.g., Amaru v. Stratton, 209 N.J. Super. 1 (App.Div.1985). To be sure, Montalvo's expert testimony was "uncontradicted" by any expert testimony offered by plaintiff. Nonetheless, as recognized by the trial court, the jury could have found that plaintiff's failure to wear a seat belt was not negligence. Mr. Montalvo himself testified that in 1980 only twelve to fifteen percent of the population wore seat belts. Moreover, even if the jurors found plaintiff was negligent, they were not compelled to accept Mr. Montalvo's testimony. Defendant is not entitled to a directed verdict simply because plaintiff did not produce expert testimony contradicting the testimony produced by defendant. See State in the Interest of C.A.H. & B.A.R., 89 N.J. 326, 343 (1987) ("Obviously, the court was not required to give controlling effect to the testimony of the experts. Expert testimony need not be given greater weight than other evidence or than it otherwise deserves in light of common sense and experience.") (citations omitted); Amaru v. Stratton, supra, 209 N.J. Super. at 20 ("A jury has no duty to give controlling effect to any or all of the testimony provided by the parties' experts, even in the absence of evidence to the contrary. 'The jury may adopt so much of it as appears sound, reject all of it, or adopt all of it.'").
In this case, various inferences can be drawn from the evidence. It is not disputed that plaintiff's automobile struck the utility pole at the scene of the accident while traveling approximately thirty miles per hour. The jury itself watched a series of videotapes of crash tests conducted by General Motors illustrating the very significant forces that can be generated in this type of front-end impact with an immovable object and its effect on unrestrained dummies. The jury did not observe videotapes demonstrating the effect of such an impact on restrained dummies. Furthermore, Mr. Montalvo never testified that tests on restrained dummies showed a complete lack
of movement of these dummies or that on a similar impact as in this case a restrained dummy would make no contact with the steering wheel, dashboard, or other parts of the interior of the car. Finally, the jury knew Mr. Montalvo was an employee of General Motors. Plainly, this fact could weigh heavily in assessing the credibility and objectivity of his testimony. See Haver v. Central R.R. Co. of New Jersey, 64 N.J.L. 312 (E. & A. 1900); State v. Taylor, 38 N.J. Super. 6 (App.Div.1955).
The jury, therefore, could reach its own conclusions concerning the effect of the collision on plaintiff and the effect of plaintiff's failure to use her seat belt. As the trial court aptly stated, "[j]ust because Mr. Montalvo said it, did not mean that the Court as a matter of law had to accept it or that the jury as the fact finders had to believe him." Thus, we conclude that the trial court properly denied defendant's motion for a directed verdict on the sole ground of the proffered expert testimony of its employed expert, Mr. Montalvo.
We also recognize that plaintiff failed specifically to object at trial to the admission of the seat belt testimony. She also failed to object to the charge given by the trial court regarding the seat belt issue. The Appellate Division concluded that plaintiff's failure to object to the submission of this issue to the jury was fatal to her claim on appeal. See Fox v. Township of Parsippany-Troy Hills, 199 N.J. Super. 82, 89 (App.Div.), certif. den., 101 N.J. 287 (1985); R. 1:7-2. Consequently, the Appellate Division never reached the merits of the seat-belt defense.
Although plaintiff never made a formal objection to the submission of the seat belt issue to the jury, she did strenuously argue against admitting any seat belt evidence at the hearings on the in limine motions. Rule 1:7-2. in pertinent part, provides:
For the purpose of reserving questions for review or appeal relating to rulings or orders of the court or instructions to the jury, a party, at the time the ruling or order is made or sought, shall make known to the court specifically the action which he desires it to take or his objection to the action taken and the grounds therefor. [R. 1:7-2 (emphasis added).]
Clearly, plaintiff made known her desire that seat belt testimony be excluded at the time the order was sought regarding the admissibility of seat belt testimony. Plaintiff's position, therefore, is compatible with a literal reading of R. 1:7-2 and with the policy goals beyond the Rule.
The primary policy justification for the requirement of timely objection is to enable the trial court to take appropriate curative action, if possible, where an error has been made. See, e.g., State v. Douglas, 204 N.J. Super. 265 (App.Div.), certif. den., 102 N.J. 378 (1985). It cannot be argued under these facts that the trial court was unaware of plaintiff's arguments before formulating the jury charge.
Moreover, "[i]t is a well-settled principle that appellate courts should decline to consider issues not fully presented at trial unless the issues are jurisdictional or concern matters of great public interest.' Matter of Board of Educ. of Town of Boonton, 99 N.J. 523, 536 (1985), cert. den., 475 U.S. 1072, 106 S. Ct. 1388, 89 L. Ed. 2d 613 (1986) (emphasis added). Accordingly, appellate courts may consider matters of significant public interest even though, strictly speaking, the matter has not been procedurally preserved.
In this case, admission of the seat-belt testimony resulted in plaintiff's award being reduced by almost half. Although plaintiff's counsel did not formally object to the jury charge on the issue, counsel vigorously opposed the admission of the seat belt testimony at the pretrial hearings. Furthermore, due to the implications of this case on the safety of motorists and the allocation of the costs of automotive accidents in this State, the issue in this case undoubtedly concerns a matter of great public interest. For all of these reasons, the Court will address the merits of the seat belt defense.
Courts throughout the country and a host of legal commentators have discussed the seat-belt defense extensively, particularly
in the context of negligence cases. See Ackerman, The Seat Belt Defense Reconsidered: A Return to Accountability in Tort Law ?, 16 N.M.Law Rev. 221 (1986); Note, The Seat Belt Issue: Judicial Disregard for Legislative Action, 4 Alaska L.Rev. 387 (1987); Note, A Compromise Between Mitigation and Comparative Fault?: A Critical Assessment of the Seat Belt Controversy and a Proposal for Reform, 14 Hofstra L.Rev. 319 (1986); Note, The Seat Belt Defense: Must a Reasonable Man Wear a Seat Belt?, 50 Mo.L.Rev. 968 (1985).
Cases and articles discussing the defense in the strict-liability context are much more limited, however. See Daly v. General Motors Corp., 20 Cal. 3d 725, 575 P. 2d 1162, 144 Cal.Rptr. 380 (1978); Lowe v. Estate Motors Ltd., 410 N.W. 2d 706, 715 (1987); 2 L. Frumer & M. Friedman, Products Liability § 3.01 [iii] at 3-116 (1988); Westenberg, The Safety Belt Defense at Trial and in Out-of-Court Settlement, 37 U.Fla.L.Rev. 785, 803-05 (1985); Ackerman, The Seat Belt Defense Reconsidered: A Return to Accountability in Tort Law?, 16 N.M.L.Rev. 221 (1986). The seat-belt defense has been widely litigated ...