WRIGHT V. NORFOLK AND WESTERN RAILROAD CO.

FACTS: The plaintiff was injured at a crossroad between the street and the defendant’s railroad track. Plaintiff was an experienced truck driver who drove truck across RR tracks, he had driven across the railroad nine times before, he also lived less than a mile to the train, and he was well familiar with the track hit by train. Train had an advance warning signs painted in yellow but no other warning devices, or traffic control in place. Plaintiff was known to turn his A/C, radio, and CB radio on when driving. On this particular day the plaintiff didn’t hear the train.

The plaintiff filed a negligence action, the jury returned verdict for the plaintiff for $4 million but sustaining a post trial motion, the trial court set the verdict aside and awarded judgment for the defendant. Plaintiff appealed

ISSUE: Whether the plaintiff was liable for contributory negligence when he drove through the track without exercising the precaution he should have which ultimately was the proximate cause of his injury.

RULE: For the purpose of determining proximate cause of injury, when a person acted negligently as to cause a reasonable person to differ as a matter of law that their contributory negligence was the proximate cause of the injury, the actor is barred from recovery

APPLICATION: Here, the defendant’s track was not reasonably safe but the plaintiff is an experienced truck driver, had lived near the track for ten years, driven over the track several times that day and the day before, was aware about the lack of visibility in regards to the angle of the track to the road, also from his truck and therefore needs to utilize his senses to cross the track b/c he had failed to listen due to his closed window, radio and A/C blasting he had failed to exercise reasonable care needed to cross the road. Had he look and listen, he would have noticed the train and would have easily avoided the train.

CONCLUSION: Therefore, the plaintiff failure to look and listen was contributory negligence as a matter of law, which barred him from recovery any damages.

MCINTYRE V. BALENTINE

FACTS: The plaintiff was coming out of a truck stop traveling south when he was struck by the defendant’s tractor also traveling south. Both men had consumed alcohol prior to the accident. Plaintiff’s blood alcohol level was measured at .17 percent by weight and also evidenced suggests the defendant had been travelling in excess of the posted speed limit.

Plaintiff filed a negligence suit and defendant answered the plaintiff was contributorally negligence also because he drove his vehicle while intoxicated. The jury found the plaintiff and defendant both equally at fault in the accident; and rule in favor of the defendant. Plaintiff appealed claiming the court held by refusing to give the comparative negligence instruction.

ISSUE: Whether contributory negligence that bars recovery for plaintiff under Tennessee law should be put aside and adopt the comparative negligence system that allows partial recovery for plaintiff.

RULE: For the purpose of determining negligence in regards to fault, the court adopted the modified comparative negligence that allows plaintiffs to recover in pure jurisdiction, but only if the plaintiff’s negligence either (1) does not exceed (50 percent jurisdiction) or (2) is less than (49 percent jurisdiction) the defendant’s negligence. And in such case, plaintiff’s damages are to be reduced in proportion to the total negligence attributable to the plaintiff.

APPLICATION: Here, the plaintiff’s conduct was contributory negligence b/c he drove while intoxicated and under Tenn. Law is barred from any recovery. Under the new modified comparative rule, the plaintiff will not bar him from recovery as long as the jury does not found his negligent to exceed that of the defendant.

CONCLUSION: Therefore, since the jury found the plaintiff and the defendant both equally negligent but without the proper instruction to guide them made a gratuitous apportionment of fault, which is not sufficient to form the basis of final determination between both parties.

DOBSON V. LOIUSIANA POWER AND LIGHT COMPANY

FACTS: The plaintiff’s decedent was electrocuted when the metallically reinforced safety rope he was using came in contact with the defendant’s uninsulated 8,000 volt electric power distribution line.

The trial court found in favor of the plaintiff and awarded them $1, 034,054.50 in damages claiming the defendant was negligence for failure to insulate its high voltage power lines or give adequate warnings regarding its dangerous nature. The Court of Appeals also affirmed the defendant’s negligence but reversed in part, reducing the plaintiff’s recovery by 70% based on its finding that the decedent was at fault to a certain degree.

ISSUE: Whether the degree or percentage of negligence attributable to the decedent following the comparative system is adequately calculated compared to that of the defendant who fails to insulate its power distribution line or give adequate warning about its dangerous nature.

RULE: Using the learned hand formula, If the burden of prevention or avoidance is less than the magnitude of the risk occurrence multiplied by the probability of the loss. A person about to caused injury inadvertently must expend much more effort to avoid a danger than need one who is at least aware of the danger involved.

APPLICATION: Here, the burden of prevention or avoidance is less for the defendant than the decedent b/c the defendant was clearly in a superior position to take effective precautions. The magnitude of risk in this case is the loss of life by the defendant. While there is a greater responsibility on the defendant to exercise reasonably precaution, the probability of the risk occurrence is slim b/c its not everyday people climb trees and the fact that the plaintiff a tree trimmer climbed the tree with a metallically safety rope next to a power line is unusual. The plaintiff was partially negligence and should be found faulty as to absorb some portion of the damages.

CONCLUSION: Therefore, the defendant negligent is not so great as to absorb all the cost and accordingly we attribute 60 percent of the negligence to the defendant and 40 percent to the decedent. The plaintiff recovery will be reduced by 40 percent.

JENSEN V. INTERMOUNTAIN HEALTH CARE, INC

FACTS: The plaintiff’s decedent died as a result of negligence on part of an emergency room physician and the hospital.

The plaintiff filed a malpractice suit against the doctor and the hospital. The doctor settled and the hospital went to trial. The jury returned a special verdict, finding plaintiff’s decedent 46 percent negligence in his own death, the defendant 36 percent negligent and the doctor 18 percent negligent. Judgment was entered for the plaintiff and against the hospital. The trial court set aside the original reward and entered a judgment of no cause of action.

ISSUE: Whether the Utah Comparative Negligence Act requires the negligence of each defendant in a multi-defendant case to be compared individually against the negligence of the plaintiff or whether the total negligence of all defendants should be compared to that of the plaintiff to determine whether a particular defendant is liable.

RULE: The UCNA stated Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence or gross negligence resulting in death or in injury to person or property if such negligence was not as great as the negligence or gross negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion of the amount of negligence attributable to the person recovering. In looking at the way the statute defines person, it means “persons” in a multi-defendant case so that the plaintiff’s negligence is compared against the aggregate of all the defendants or in a single-defendant case to be compared against the negligence of the defendant.

APPLICATION: Here, the unit rule that needs to be followed is one that allows the plaintiff’s negligent to be measured against all negligence of the defendant not the Wisconsin rule that allows the negligence of each defendant to be compared against that of the plaintiff’s negligence. Under the Wisconsin rule, there are several defects to that rule; first, negligence of both the defendant and the plaintiff when added up need to total 100 percent. Following the Wisconsin rule would allowed the plaintiff’s 46 percent be compared to that of the defendant 36 percent and the doctor’s 18 percent. Under the Wisconsin rule, the plaintiff’s negligent is used twice against the defendant totaling 92 percent and the defendant added up totals 54 percent. The total percentage of negligence in this case combined will equal 146 percent. Second, in a case where

there are two defendants (3313

) with equal amount of negligence as the plaintiff (3313

) the plaintiff

will be barred from recovery. Third, if there are two defendants who produced the injury but one defendant was responsible for the larger portion of the injury, the plaintiff will recover a larger share. Either way under the Wisconsin rule, the more likely that there are more defendants the less likely the plaintiff will be able to recover. Utah comparative negligence requires negligence of each D in a multi-D case to be compared individually against P’s negligence.

CONCLUSION: Therefore, the UCNA emphasize person or persons depending on whether it is a single-defendant or a multi-defendant case as plural to compare the total negligence of all defendants to that of the plaintiff’s negligent.

COLEMAN V. HINES

FACTS: Defendant was drinking prior to stopping by plaintiff’s decedent place of

employment Decedent’s employer stated decedent knew defendant had been drinking prior to

see her and decedent also stated they had planned later that night to drink on their way to an engagement during the party and after the party

Decedent’s employer begged decedent not to ride with the defendant and had also offered to pick defendant and decedent up after the party and rive them home

Defendant and decedent later that night went to a store and bought beer, and drank it in the presence of each other

The only alcohol defendant drank that night was in the presence of the decedent According to the treating physician, the defendant blood level alcohol was .184

twice the legal limit And, the officer at the scene of the accident sated the defendant was under the

influence of alcohol at the time of accident

ISSUE: Whether the decedent’s conduct shows similar high degree of negligence as the defendant’s conduct thereby contributing to her own death when she saw the defendant purchased alcohol, consumed alcohol with him before and during the party, and willingly entered a car with an intoxicated person.

RULE: Plaintiff’s claim will be barred as a result of the decedent’s own actions, if it rise to the same level of negligence as that of the defendant, to the extent the allegations of the complaint establish more than ordinary negligence on the part of the defendant, they also establish a similarly high degree of negligence on part of the decedent.

In regards to the plaintiff’s claim that the last clear chance doctrine is applicable in the this case, the court held that such doctrine is only applicable when plaintiff prove that

Plaintiff’s negligence placed her in a position of peril from which she could not escape

Defendant saw, or by the exercise of reasonable care should have seen and understood, the perilous position of plaintiff

Defendant had the time and means to avoid the accident if defendant had seen or discovered the plaintiff’s perilous position

Defendant failed or refused to use every reasonable means at his command to avoid impeding injury to plaintiff

Plaintiff was injured as a result of the defendant’s failure or refusal to avoid impending injury

APPLICATION: Here, the decedent’s own actions rise to a similar high degree of contributory negligence as the defendant b/c she was with the defendant when they purchased the beer, consumed the alcohol in the presence of each other, had made drinking plan with the defendant prior to buying or consuming the alcohol, and was aware of the defendant’s plan to drive back home, refused to accept the offer from her employer to drive them home and she willfully enter the vehicle with the defendant knowing he was going to drive intoxicated. Her actions establish same level of negligence as that of the defendant.In regards to the applicability of the last chance doctrine, plaintiff presents no evidence that the decedent had placed herself in a position of peril from which she could not escape. Based on the offer from her employer, she had the opportunity to avoid getting in the car with the defendant but refused.

CONCLUSION: Therefore, the plaintiff and the defendant conduct both establish a high degree of contributory negligence and bar the plaintiff’s claim from prevailing against the defendant for negligence.

DOWNING V. UNITED AUTO RACING ASSOCIATION

FACTS: Plaintiff was a member of a pit crew at a midget car race promoted, organized and supervised by the defendant. During the race, plaintiff notice one of the driver in the race car was bicycling (when car’s inner wheels lose contact with the track surface) as it approach a turn near the plaintiff and also at a distance. Both the plaintiff and another pit crew member noticed again the car bicycled and stated the driver of the bicycled car should be blackflag of the track. When the bicycled driver car reached the pit nearest to the plaintiff it bicycled again and then flipped over and began skidding towards the plaintiff and other two pit crew members. Plaintiff was struck by the car and pinned against the fence next to the track straightaway. He sustained injuries that requires surgery and post operative care

Plaintiff filed suit claiming the UARA were guilty of willful and wanton conduct when they failed to extend the guardrail next to the pit, failed to provide the pit with steward to ensure person did not remain in the exposed area near the pit and also failed to blackflag the driver off the track once it began to bicycle. The jury returned a verdict against the defendant and awarded the plaintiff $1.5 million in damages, reduced to $615,000 for plaintiff’s comparative fault, which was assessed at 59%. The trial court entered judgment in conformity with the verdict and defendant appealed and plaintiff cross appealed. During the appealing, the plaintiff challenged the apportionment of damages between both parties

ISSUE: Whether evidence was for jury to decide if the defendant were guilty of willful and wanton conduct for failure to extend guardrail or require presence of pit steward to protect pit crew member from injuries that occurred when driver lost control of his car, which flipped over, skidded, and struck crew member, pinning him against fence.

RULE:

APPLICATION: Here, there are different divergent views in regards to how social stigma is weighted against the equitable principles of comparative fault. While some see the weight has overriding, others see it has underbidding the equitable principles of comparative fault. According to the court, when such disparity occurs it should be left to the jury to decide the plaintiff’s comparative fault, based upon the principles of ordinary negligence, as an offset to the compensatory damages awarded for the defendant’s willful and wanton conduct and since this was a comparative negligence state, jury can prorate damages between the plaintiff and defendant. And they did that by reducing P’s negligence damage by 59%

CONCLUSION: Therefore, jury should be left to decide if defendant was guilty of willful or wanton conduct and prorate the damages as they see fit.

Wagenblast v. Odessa School District

FACTS: School districts require students and their parents to sign a release of all potential future claims as a condition to student participation in certain school related activities.

ISSUE: Whether the School Districts release forms requiring the students and their parent signature barring all allege future claims violate public policy.

RULE: Six factors determine whether a release forms violate public policy. They are: (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within the certain established standards (4) because of the essentials of the service, in the economic setting of the transaction, the party invoking the exculpation possesses a decisive advantage of bargaining strength against any member of the pubic who seeks the services (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence (6) the person or property of the members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees or agents.

APPLICATION: On balance, (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation. In this case, a legislature statute has granted the school the authority to supervise, control, regulate the conduct of interscholastic activities and in some instance the power to delegate its authority to a third party like the WIAA. The WIAA’s handbook has printed the rules and regulation in regards to interscholastic activity and it is the rules that the school look to for guidance. (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. In this case, the justification advanced for have interscholastic athletics at school is for their educational and cultural value which is a substantive portion of Washington educational schemes. Also the program creates a bridge between the public and the system of public education. (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within the certain established standards. The programs as construed is that the doors are open to all those who are eligible (4) because of the essentials of the service, in the economic setting of the transaction, the party invoking the exculpation possesses a decisive advantage of bargaining strength against any member of the pubic who seeks the services. The school programs have become importance both to the student and the public at large. And likewise,

there are no alternatives option at least not one that many of the student can afford that does not required relinquishing their rights to claim. (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. The schools have a strict policy of not allowing student to participate without signing the release forms; while parents have tried to modify the language of the release form they are unsuccessful. This gave them no alternatives, rather sign the form or the student will be barred from joining. (6) the person or property of the members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees or agents. In this case, the school owes a duty to the students to employ the reasonable care to protect them from danger and that duty extend to those participating or joining the interscholastic athletics.

CONCLUSION: Therefore, the more factors that applies to any kind of release form, the more likely it violates public policy. The release forms presented by the school encompasses all six factors thereby making it unenforceable constituting a violation of public policy.

Turnbough v. Ladner

FACTS: Plaintiff paid for a six week scuba diving course to the defendant. Upon enrollment, participants are required to sign a release form excusing the defendant from liability pertaining to any risks sustained during the duration of the course. In order to receive certification, the participants are required to perform check out dives. On several occasions, the defendant calculated the dive time to be 38 minutes and a dive of sixty feet for both dive for the participants. The plaintiff began to feel the effect of decompression sickness known as bends on his way home. He began to experience arthritic pain in his joint. He was to see an expert doctor in diving, who told him he had dive too long and can never dive again. The doctor, an expert in diving explained the defendant was negligent in planning the depths and failing to make safety stops.

The plaintiff filed suit claiming the defendant was negligent in her supervision of the dive and in exposing him to decompression injury. The defendant filed a motion for summary judgment based on the release and the trial granted the motion and dismissed the case. The court of appeal also found the release was a contract of purely personal nature and did not violate public policy b/c scuba diving does not implicate public concerns.

ISSUE: Whether the release exculpate the defendant from liability when she negligently miscalculate the participants’ depths and time causing the plaintiff to suffered decompression sickness.

RULE: The wording of an exculpatory agreement should express as clearly and precisely as possible the extent to which a party intends to be absolved from liability, the circumstances existing at the time of the instrument’s execution and negotiate the terms of the agreement with the plaintiff.

APPLICATION: Here, the plaintiff signed the release form but the contract was not negotiated, and contained broad waiver of negligence provision. One, the language of the provision can be broadly construed to cover all claims. Second, the plaintiff’s harm was brought on by the defendant’s negligent. The plaintiff’s acceptance of the release form does not mean he waive his right to recover for any injuries brought on by the defendant negligence in failing to follow basic safety guidelines that should be common knowledge to any instructor of novice students. If the defendant intended not to be liable for negligent, it should do so in specific terms in the release form.

CONCLUSION: Therefore, the agreement fails to specific in the release form that defendant’s negligent of any kind will also not be claimable. Court reverse and remanded the case for further processing.

SCHROYER V. MCNEAL

FACTS: Plaintiff arrived at the defendant hotel; saw about four inches of sleet and ice had accumulated, she noticed the entry way into the hotel was shoveled but the other vicinities weren’t. Nevertheless, she registered for a room and requested a room closest to an exit due to her shoving boxes back and forth to her room. She was given a room closest to the exit as requested against hotel’s policy not to assign such rooms during inclement weather and contrary to policy was not warned not to use the west entrance of the hotel. No warning was also posted. The plaintiff parked her car on ice and snow near the west entrance, noticed the side walkway had not been shoveled and further more the entrance was slippery. Nevertheless, she begins to remove his boxes from the car and crossed the ice and snow carefully and without mishap. On her return to the car to retrieve more boxes, she slipped and fell sustaining the injury.

The defendant move for a motion both at the beginning of trial and at the end for a motion n.o.v. both motion was denied. The jury returned verdict for the plaintiff and defendant appealed.

ISSUE: Whether the plaintiff assumed the risk, when she saw the dangerous condition and acted voluntarily when she started to cross the ice and snow covered parking lot and sidewalk.

RULE: The defense of assumption of risk rest upon the plaintiff’s consent to relieve the defendant of an obligation of conduct toward him and to take his chance of harm from a particular risk. Such consent may be found by implication the conduct of the parties. When the plaintiff enters voluntarily into a relation or situation involving danger, he may be taken to assume the risk, and to relieve the defendant of responsibility, such implied assumption of risk requires the knowledge and appreciation of the risk, and voluntary choice to encounter it.

APPLICATION: Here, the plaintiff voluntarily assumed the risk b/c she parked on ice and snow, saw the west entrance was unshoveled, knew the packed ice and snow was slippery and according to her own testimony, traverse over the snow carefully to unload her luggage. She was well aware of her vicinity, the possible danger pertaining to crossing the slippery snow and nevertheless proceeded cautiously over the slippery snow before she fell. Her awareness means she knew about the danger and appreciate the risks involve.

CONCLUSION: Therefore, her contributory negligence may very well be for the court to decide but her assumption of the risk is uncontested. Judgment of the Court of Appeals is reversed and remanded to the court with directions to reverse the judgment of the trial court in Garrett County.

Davenport v. Cotton Hope

FACTS: The plaintiff resides in Cotton Hope. A condominium of ninety-six units located in multiple buildings. Each building consists of three levels, three stairways: one in the middle and the others on the side of the building. The plaintiff lived on the top level, approximately five feet to the stairway. Cotton Hope was maintained by PAI and PAI hired Carson to perform landscape, maintenance on Cotton Hope. Its duty also includes checking outdoor lights and changing bulbs as needed. The plaintiff noticed the light bulb at the bottom of the stairway he used was not working. He noticed PAI on several occasions regarding the floodlight but nevertheless continued to use the stairs. On this particular day, the plaintiff fell while descending on the stair claiming he attempted to place his foot on what he thought was a step but rather it was a shadow caused by the broken floodlights.

He sued Cotton Hope for his injuries. Trial court returned verdict against the plaintiff finding he assumed the risk of the injury and also even if assumption of risk were not abrogated by comparative negligence, the plaintiff was more than fifty percent negligent. Plaintiff appealed

ISSUE: Whether a plaintiff should be completely barred from recovery when he voluntary assumes a known risk, regardless of whether his assumption of that risk was reasonable or unreasonable.

RULE: There are four requirements to establishing the defense of assumption of risk: (1) the plaintiff must have knowledge of the facts constituting a dangerous condition; (2) the plaintiff must know the condition is dangerous; (3) the plaintiff must appreciate the nature and extent of the danger; and (4) the plaintiff must voluntarily expose himself to the danger.

APPLICATION: Here, the court stated the four requirements that established the defense of assumption can also be used to established contributory negligence. Contributory negligence barred recovery if the plaintiff is to be found at fault. S.C. has adopted the comparative negligence but on such if likely abandon the assumption of risk since how it compatible to contributory negligence particularly the secondary implied of assumption of risk. Primary and express are compatible to comparative negligence while secondary is more in a way contributory negligence b/c it shed lights on the plaintiff involvement to expose himself to the danger after being aware of the dangerous condition. If the plaintiff is found guilty it bar recovery. The court recognized there is a different between contributory negligence and secondary assumption of the risk and the difference is that one secondary assumption of risk exercise one’s free will in encountering the danger while the other.

CONCLUSION: Therefore, P not barred from recovery by the doctrine of secondary implied assumption of risk unless the degree of fault arising therefrom is greater than the negligence of the D.

KLANSECK V. ANDERSON SALES & SERVICE, INC

FACTS: The plaintiff bought a motorcycle from the defendant and on the way home the motorcycle began to fishtail. Plaintiff applied brakes and the motorcycle slide sideways and went down. Plaintiff suffered severe injuries and brought action against the defendant seeking damages for the injuries. Defendant replied alleging the plaintiff failed to mitigate damages.

ISSUE: Whether the plaintiff failure to adhere to his physician recommendation mitigates his damages.

RULE: An injured party has a duty to exercise reasonable care to minimize damages.

APPLICATION: Here, the plaintiff did not exercise reasonable care to minimize damages b/c he refused his physician’s recommended undergo additional diagnostics test to determine if he had a herniated disk. He declined taking the test unless his symptoms worsened.

CONCLUSION: Therefore, plaintiff’s refusal to undertake additional diagnostics test is failure to mitigate damages.

MILLER V. EICHHORN

FACTS: Plaintiffs collided with the defendants when the defendant backed his car out of his driveway into the street. Plaintiffs (husband and wife) sued defendant for injuries. The jury returned verdict for the wife’s damages to be $3,569. 70 (plaintiff) and denied husband (plaintiff). The court also found the plaintiffs’ fault to be 15% and the defendants’ fault to be 85%. Plaintiff challenged the mitigating instruction given to the court.

ISSUE: Whether there are mitigating circumstances on the plaintiff that makes the instruction proper.

RULE: In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party and the extent of the causal relation between the conduct and the damages claimed and under Iowa Comparative Fault Act, the term fault means unreasonable failure to avoid or to mitigate damages.

APPLICATION: the plaintiff was advice by her doctor more chiropractic treatment is required but plaintiff failed to consult her doctor as needed. Failure to visit doctor is not evidence of failure to mitigate.

CONCLUSION: Therefore, evidence support the submission of the mitigating of damage issue and is evidence from which jury could find she did not use due care in following her doctor’s advice.

LAW V. SUPERIOR COURT

FACTS: The defendant pulled out in front of the plaintiff who swerved violently to avoid the collision but his evasive maneuver overturned the vehicle. Both the plaintiffs weren’t wearing their seat belt and were thrown from the car→ the husband through a closed sunroof. Plaintiff brought a negligence claim against the defendant. During the trial, defendant requested information regarding the plaintiff’s use of seat belt. Defendants replied with a case rule in which the court of appeals held evidence of a passenger’s failure to wear seatbelt was inadmissible either to show breach of duty to minimize damages or to prove contributory negligence

The trial court ruled there no duty wear seat belt. In an interlocutory appeal the court of appeal held that evidence of non-use could be admissible.

ISSUE: Whether a plaintiff who does not wear an automobile seat belt is at fault for injuries enhanced or caused by the failure to use the seat belt.

RULE: Fault includes acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or the others, or that subject a person to strict tort liability. The term also includes unreasonable failure to avoid an injury or mitigate damages. Negligent failure to use seat belt would reduce damages solely for those injuries directly attributable to the lack of seat belt restraint.

APPLICATION: Here, the plaintiffs were not wearing seat belt which would have in some way prevent them from been thrown out through a closed sunroof. This shows fault on their part that could reasonably have mitigate their damages. The plaintiff claims wearing seat belt is irrelevant therefore he is shielded by the doctrine of seat belt. The court in this case held that the duty to use restraint is not so much failure to use reasonable care but reasonably more obligated to reduce damages. The seat belt defense also opens up the doctrine of avoidance consequence→ which denies recovery for those injuries plaintiff could reasonably have avoided. The court held that this doctrine has been modified by its adoption of the comparative fault statute which requires each person under an obligation to act reasonably to minimize foreseeable injuries and damages. Thus if someone should failed to use their seat beat, then they are at fault. The plaintiffs argued allowing the seat belt defense will create windfall for tortfeasors. The court held that the process of comparative negligence is to apportioned damages based on the plaintiff’s and defendant’s fault thereby allocating damages based on fault. Plaintiffs also maintained that allowing apportionment of the failure to use seat belt will unnecessarily complicate and protract litigation. The recognized that in some case it might but also the defendant has to established several factual predicates before the seat belt nonuse is presented to the court. To prove these factors, defendant may have to utilize several resources, testimonies and it is then will the fact-finder be able to evaluate the evidence and apportion as it see fit. The plaintiffs assert that introducing evidence of seat belt nonuse will propel the court into morass of unforeseen consequences.

CONCLUSION: Therefore, the court recognize the seat belt defense as a matter which the jury can take into consideration in deciding apportionment damages due to fault of the plaintiff.