Lowe v. Estate Motors Ltd.

382 N.W.2d 811, 147 Mich. App. 523

• Court: Michigan Court of Appeals
• Decided: December 16, 1985
• Docket: Docket 73531
• Status: Published

Opinions

Cynar, J.

In this products liability action, plaintiff appeals by leave granted from an interlocutory order denying her motion to strike an affirmative defense pled by defendants and a motion in limine to preclude defendants from introducing evidence of plaintiff’s failure to use a seat belt. Plaintiff claims that she was seriously injured on April 18, 1979, when she fell out of a rear passenger door of a 1979 Mercedes-Benz automobile following a collision with a truck. Defendants are the vendor of the automobile, the American outlet for the German manufacturer of the automobile, and the manufacturers of the floor mats used in the automobile. Plaintiff claimed that a defective floor mat caused the accident by interfering with the driver’s ability to apply the brakes and that her injuries were caused by a defective door and door locking mechanism on the automobile. Defendants pled that plaintiffs injuries were proximately caused by her own negligence, including her failure to wear a seat belt.

In Romankewiz v Black, 16 Mich App 119, 125; 167 NW2d 606 (1969), the Court rejected claims that a plaintiffs failure to use a seat belt could amount to contributory negligence or a failure to mitigate injuries. The Court adopted the reasoning of Miller v Miller, 273 NC 228, 233-234; 160 SE2d 65 (1968):

"So far as our research discloses, no court has yet held an occupant’s failure to buckle his seat belt to be negligence per se. * * * If the failure to buckle a seat belt is not negligence per se, it could be contributory negligence only when a plaintiffs omission to use the belt amounted to a failure to exercise the ordinary care which a reasonably prudent person would have used under the circumstances preceding that particular accident. Since the fact and circumstances preceding any accident will vary, so must conduct constituting due care. Under what circumstances would a plaintiffs failure to buckle his seat belt constitute negligence? If a motorist begins his journey without buckling his belt, ordinarily he will not have time to fasten it when the danger of accident becomes apparent; so the duty to 'buckle up’ — if any — must have existed prior to the injury. Furthermore, it must be remembered that until one has, or should have, notice of another’s negligence, he is not required to anticipate it. On the contrary, he is entitled to assume that others will use due care for his safety and their own.” (Citations omitted; emphasis in original.)

Romankewiz was followed in Selmo v Baratono, 28 Mich App 217; 184 NW2d 367 (1970); Placek v Sterling Heights, 52 Mich App 619; 217 NW2d 900 (1974), rev’d 405 Mich 638; 275 NW2d 511 (1979); De Graaf v General Motors Corp, 135 Mich App 141; 352 NW2d 719 (1984), lv den 422 Mich 852 (1985), and Schmitzer v Misener-Bennett Ford, Inc, 135 Mich App 350; 354 NW2d 336 (1984), lv den 422 Mich 852 (1985).

We first considered the admissibility of a plaintiff’s nonuse of a seat belt as evidence of comparative negligence in Schmitzer. The Court held that under Michigan’s system of comparative negligence, evidence of a plaintiff’s failure to use a seat belt is not admissible as evidence of plaintiff’s contributory negligence or of plaintiffs failure to mitigate damages. 135 Mich App 359-360. Our holding in Schmitzer is controlling in this case.

As the Schmitzer Court stated, under the doctrine of comparative negligence the trier of fact must first find that the plaintiff was negligent. A finding of negligence can only be sustained if the plaintiff breached some statutory or common law duty. Proof that the plaintiff engaged in an injury-producing act, without more, is not a sufficient basis for establishing that plaintiff was negligent.

At the time the accident complained of occurred, the Michigan Legislature had not enacted the mandatory seat belt use law, MCL 257.710e; MSA 9.24NX5).¹ Hence, plaintiff’s failure to wear a seat belt did not constitute negligence per se.

The common law does not provide a basis for concluding that plaintiffs failure to use a seat belt was a breach of her duty to use ordinary care. Schmitzer, supra, p 359. Plaintiffs failure to wear a seat belt was therefore not admissible as evidence of her comparative negligence.

The trial court’s interlocutory order denying plaintiffs motion is reversed.

V. J. Brennan, P.J., concurred.

1 We note that the mandatory seat belt use law does not apply to rear seat passengers of motor vehicles, like plaintiff herein. See MCL 257.710e(3); MSA 9.2410(5).