Law v. Superior Court, 755 P.2d 1130

Law v. Superior Court

755 P.2d 1130

Ariz. Ct. App.

1986

Check Treatment

*1 755 P.2d 1130 Law, LAW,

Cindy Law and Carol Tom Petitioners, wife,

husband and Arizo

SUPERIOR COURT State

na, MARI In the COUNTY OF and For

COPA, Thomas W. and The Honorable

O’Toole, Respondents, Judge, Harder, R. HARDER and Jean M.

James wife, Interest. Real Parties in

1No. CA-CIV 9006-SA. Arizona, Appeals

Court of 1, Department A.

Division

Sept. 1986. Greer, Robert L.

Greer Seletos Phoenix, for petitioners.

Kleinman, Grego- & Kleinman Carroll Novak, Phoenix, respondents ry P. parties in interest. real OPINION MEYERSON, Judge. called

In legal viability upon to reconsider the defense, by Arizo last addressed Kamrath, 21 Ariz. na courts Nash v. Nash, (1974). In App. 521 P.2d 161 upheld II an order of this court Division excluding failure disagree to use a seat belt. We that evi reasoning and conclude ad of nonuse of seat belts dence if the to use a seat belt missible plaintiff’s injuries. proximate cause I. FACTS November, 1985, respondents James (Harder) involved Jean Harder were Tempe, Arizo- accident in a one-car rollover Mrs. were Both Mr. and na. la- from their vehicle. One month thrown driver, against the they brought ter suit Law, peti- petitioner Cindy parents, her (collectively Tom tioners and Carol Law Law) alleging that the referred to herein as *2 143 resulting universally accident and were caused It injuries agreed is almost that a plaintiff’s be failure use negligence. Law’s Harder’s suit will to a seat is not belt negligence per se provisions tried under the and therefore such Uniform fail ure should not absolute Among (Act). be an bar to Contribution Tortfeasors Act recov ery. E.g., Spier Barker, v. 444, 35 N.Y.2d A.R.S. 12-2501-2509. §§ 450, 916, 921, 363 N.Y.S.2d 323 N.E.2d During discovery the course of in the (1974). Comparative negligence 167-68 litigation, requested from Law information however, jurisdictions, disagree concerning concerning ex Harder’s use of and whether evidence nonuse of of seat belts perience re with seat belts and shoulder should be admitted connection with the respond straints. Harder refused to to damage portion plaintiff’s the of suit. discovery requests these ground on the Compare Insurance Co. North Amer of that such matters were not discoverable Pasakarnis, ica (Fla.1984) 447 they because were not Law relevant. admissible) with (holding such evidence compel moved discovery concerning this Clark, Taplin Kan.App.2d 6 626 P.2d June, 1986, information and in (1981) (holding 1198 such evidence inadmis concluding, court denied the motion based sible). Nash, on that Harder’s “failure to wear Nash, II Division of this court held being seat belts as a of cause [his] such evidence inadmissible. The court irrelevant and that has no [Harder] admitting plain- found that the evidence of to wear seat belts.” trial court further tiff’s a seat failure wear belt would be relied the recent decision of to the that counter traditional notion one Wright, 108 Ill.2d 90 Ill.Dec. right persons that has a assume other (1985). 483 N.E.2d 268 highway negligent. will not the Law then filed petition for special that has The court reasoned one the action. Because of the impor- statewide right assume others drive ac- will tance of this issue and because of the likeli- cording to the of the road there rules then hood may many that there pend- similar judicially-imposed duty should be no ing cases, we have jurisdic- exercised our preventive wear measure in a seat as a grant tion to review this action. of an case accident. generally Kleinschmidt, See The Final But the doctrine that one is not re Judgment Arizona, Rule in 47 &Law quired negligence of oth Contemp.Probs. 103 ers is one which under arises the law of

contributory negligence. See Norwood v. Co., II. LAW Sherwin-Williams 303 N.C. 279 S.E.2d 563 And under There plethora litigation has been a of Arizona’s historic formulation of contrib concerning the issue of a whether defend law, utory negligence on the personal ant a injury may intro part could completely pre duce evidence failure recovery. Accordingly, agree clude generally Annot.,

use See seat belts. 92 jurisdictions majority with the that a (1979); Annot., A.L.R.3d 9 80 A.L.R.3d up” failure driver’s to “buckle should not (1977); Annot., 1033 15 1428 A.L.R.3d complete recovery. constitute a bar to (1967). The law review articles on this Nash, however, rationale is founded subject simply too men numerous to upon the court’s belief the doctrine of g., tion. E. Hoglund Parsons, Caveat & mitigation damages has place in these Duty to Viator: The Wear Seat Belts Un Herein disagreement cases. lies our Law, Comparative Negligence der Nash court. (1974-75); Note, The Seat Wash.L.Rev. Comprehensive Belt A Guide opinion, In our wear Defense: for Lawyer Suggested Ap the Trial aspect seat belts should be viewed as an Courts, proach Notre Dame doctrine of avoidable (1980-81). Law. 272 requiring mitigation broader rule During generally years the twelve which have See W. Prosser W. decision, elapsed the date of the since Keeton, The Law Torts at 458-59 doc- new authoritative (5th 1984) (Prosser). the doc ed. Under important safety umented the benefits person consequences, of avoidable trine “ from the use of seat belts. ‘injured who is the result *3 safety seats, Safety belts and child negligence another is to exercise bound they properly, when and used are used prevent or ordinary care to reduce dam percent to estimated be 50-60 effec- ages cannot consequent injury, to an preventing inju- tive in serious or fatal damages growing out of recover enhanced persons highway ries in to involved ve- ” care.’ v. his failure to use such Sanders protection hicle Use of the de- crashes. Beckwith, 67, 71-72, 235, 283 P.2d 79 Ariz. by occupants year all vices last could (1955) (quoting Negligence 238 65A C.J.S. 15,000 18,000 have saved lives and (1950)). commonly ap rule 135 This is § 200,000 avoided than moderate-to- more post-accident plied conduct. We find injuries. severe applying logical no reason to refrain from Department Transporta- United States consequences pre rule the avoidable tion, Safety Highway National Traffic Ad- failing to use an avail accident conduct ministration, Usage Safety National Belt Although duty no able seat belt. one has Program, Re- Progress and Assessment others, we port Usage Safety on the National Belt engaging judicial in fiction would be 1983) origi- Program (Sept. (emphasis in 2 myth perpetuate that the occurrence of nal). restraining “By the automobile occu- an automobile accident not foreseeable.* during immediately after pant initial affords the automo Because “the seat belt significantly impact, reduces seat belt] [a occupant ordinarily an unusual and bile ejection likelihood of and ‘second colli- he by means which or she unavailable driver injuries, providing while sion’ minimize damages prior her to the his or effective control of the vehicle in with more accident,” Barker, Briner, Twohig 35 N.Y.2d at situations.” v. Spier v. accident 1107, 1102, Cal.Rptr. Cal.App.3d 214 168 452, 922, N.Y.S.2d at 323 N.E.2d at 363 729, (1985). recognition of the 732 Federal 168, that the doctrine of avoidable we hold unequivocal. of seat belts is clear and value pre-accident applies to authority of the National Traffic Under the of failure to use an available seat conduct Act, Safety Vehicle 15 U.S.C. and Motor (Second) Torts belt. Restatement Cf. 1381-1431, Highway Traf- the National §§ 465, (1965) (damages may c comment required Safety fic Administration automo- apportioned negli the antecedent where install seat in manufacturers to belts bile contributory gence of the 1, January effective 1968. 32 new cars all ensues). the harm factor to which 1967). (Feb. 3, 2408, 2415 Fed.Reg. This doctrine was alluded to the court authority on Although split there is a it in Nash when concluded there was issue, decisions of we conclude that the therefore duty fasten a seat belt and allowing belt evidence are those courts do so cannot be held to be a the failure to Supreme persuasive. The Wisconsin more duty to minimize breach recognized the seat belt defense in Court 532-33, Ariz.App. 521 P.2d 163-64. 21 at at Braun, Wis.2d v. 34 1967. Bentzler any “duty” to rejected wear seat court (1967). dis- That court 149 N.W.2d 626 that there was its belief thoroughly belts based in recent the issue cussed its Allis, in- Foley City in some cases seat belts 113 evidence that decision West 824 injuries. 335 N.W.2d frequency of certain Wis.2d creased the collision," *Indeed, which occurs when the foreseeability of automobile “second it is the accidents, Corp., against passenger v. General Motors 391 the interior Larsen thrown (8th Cir.1968), led following F.2d 502 Ford Motor Co. an accident. vehicle impose manu (Fla.1976). duties automobile Evancho, courts to 204 design anticipation of vehicles in facturers

145 The seat defense is this court’s rec- 90 at Ill.2d at Ill.Dec. ognition N.E.2d at 270. light frequency automobile accidents and the extensive persuaded not We are that the ab cause, injuries they general availabili- mandatory sence of a seat belt law Ari ty belts, public of seat and the knowl- zona should be Contra determinative. edge that riders and drivers should Henson, Thomas N.M. 695 P.2d up safety,’ ‘buckle those who fail to above, explained As the victim use respon- available seat belts should of a tort has the to exercise due care sible for the incremental harm caused diligently protect to act his or her their failure wear available seat belts. Therefore, own interests. the absence of a mandatory seat belt law in Arizona is not 483-84, at Id. N.W.2d at 828. In Fo- *4 controlling ruling is simply because our ley, plaintiff’s the court reasoned that the applying principles requiring common law failure to use seat belts “did not cause the mitigation the principle of The accident, wrong and the conduct not so was plaintiff that a must undertake reasonable party that the completely should be barred protect measures to his own interest is a from recovery injuries for those caused paradigm judicial principle of historic ori culpable the defendant’s conduct.” Id. at gins. Lines, Ellerman The Ltd. v. Presi 489, 335 N.W.2d at 831. the On other (2d Harding, dent 288 F.2d 289-90 hand, “the defendant not held [should] [be] Cir.1961); Dobbs, generally see D. Reme liable for plaintiff incremental the (1973). Moreover, is the dies 8.9 it obli § could and prevented by should have wear- gation judiciary apply to tailor and ing an available seat belt.” Id. at society technology the common as and law N.W.2d at 830-31. change. Kroeger v. Buttes See Twin R.R. Supreme The adopted Florida Court the Co., 348, 351-52, 114 P. Ariz. 554- seat belt defense in Insurance Co. of (1911), rehearing, on 14 Ariz. aff'd North Pasakarnis, America v. 127 P. 735 The court found that the “seat parties Both have discussed this belt has proven been occupant afford the subject recently in connection with the en of an whereby a automobile means he or Among acted Uniform Tort Contribution may she personal minimize his or her dam provides, among feasors Act. It other ages prior to occurrence of the accident.” things: Id. at 453. The court held: The of contributory defense importance view of the of the seat belt assumption or of of all risk is in cases a precaution as a safety available for a question of and shall all fact at times be plaintiff’s protection, failure to wear it jury left to If the jury. applies the either under certain circumstances be a defense, claimant’s the action not pertinent in deciding factor whether barred, damages full shall but the plaintiff exercised due for his care or her proportion reduced the relative de- safety. own gree which of the claimant’s fault Id. We concur with rulings. the above proximate death, or injury cause any---- Supreme recently Illinois Court re- jected the belt seat defense. Clarkson v. 12-2505(A). appears A.R.S. The statute § Wright. upon case This was relied jury’s ability to restrict the to reduce the Legislature trial court here. The Illinois damages only plaintiff's if it chooses to adopted mandatory a seat law belt effec- apply contributory negli- the defenses of July tive 1985. The court rea- gence or assumption risk. conclude We soned time Act, that at the of the accident there purposes for the the term was no wear a negligence” seat belt and there- “contributory includes doc- fore there im- authority was “no trine consequences. “Both avoidable posed on the duty contributory negligence and and avoidable con- guard against negligence.” sequences defendant’s rest the same fundamental depend A making recovery p. special the State L.J. policy of action 535..

plaintiff’s merely procedure obtaining for the proper protection care ex- interests, him require traordinary “[sjhall own and both relief. It not be avail- person only equally plain, the standard of the reasonable an able where there is 65 at speedy, adequate remedy by appeal; under the circumstances.” Prosser and agree “in 458. We view that nothing in these rules shall be con- contributory negli- reality” the doctrines enlarging scope of relief strued tra- gence are the ditionally granted avoidable under writs certio- Accordingly, rari, mandamus, at 459. for the prohibition.” same. Id. Rule 1. 12-2505(A), purposes jury A.R.S. § majority does not state its basis for plaintiff’s damages by virtue may reduce a extraordinary granting relief use an available 3(c): it That the but must be Rule trial proximate which is cause of judge his discretion in somehow abused plaintiff’s injuries. following as it was before this the law reasons, foregoing For opinion. denying requested Law the court’s order peti- is that The fact situation us before trial, At discovery is reversed. Law will compelling tioners for an ordér re- moved pertaining to introduce evidence allowed *5 discovery requests spondents respond long to use a so Harder’s failure seat belt concerning and use experience their as Law is able demonstrate a causal the issue was briefed and seat belts. After relationship between the nonuse of the seat argued, the court denied the motion. trial any injuries may belt and have It stated: suffered. sympathetic is Although the Court argument that Plaintiff with Defendant’s HAIRE, J., concurs. respond dis compelled to should be EUBANK, Presiding Judge, knowledge, covery regarding dissenting: in experience seat belts and use of my in opinion special incident, Kamrath, I 21 Ariz.App. dissent because should not exercised jurisdiction (1974), squarely action P.2d [521 161] discovery dispute. in Rule this situation: a regarding held that Plaintiff’s evidence Special of Procedure for Arizona Rules being failure to seat belts wear (Rule) states: Actions is cause of irrelevant Plaintiff’s duty to has no wear only questions be raised and Plaintiff finds that special action are: seat belts. The Court ra in a Wright, tionale of Ill.2d [108 (a) the defendant has failed Whether (Ill. 483 N.E.2d Ill.Dec. 950] discretion he has a to exercise 1985), which held that exercise; perform duty duty to or to admissible on to wear belts is not seat required by law as which he has comparative negli question either the discretion; or persuasive. damages, is gence/liability or (b) pro- the defendant has Whether threatening to with- proceed ceeded or is 20, 1986, following the denial of June On jurisdiction legal or out or in excess special discovery, petitioners filed this ac- authority; or tion, judge alleging that had (c) a determination was arbi- Whether discretion; his that there was no abused capricious or an of dis- trary and abuse plain, adequate remedy equally speedy cretion. Uniform Contribu- by appeal; and that the (A.R.S. Act Among Tortfeasors tion mandamus; 3(a) 3(b) Rule certio- Rule 12-2501, changed the seq.) had 3(c) et goes beyond Rule prohibition; rari and or not law Arizona. Whether the traditional writs review “abuse refusing judge his discretion Note, trial abused judge. of the trial Law discretion” situation should discovery order in this Apprentice: Plight Sorcerer’s my opin- Practice, appeal process. Ariz. be left Special Action Arizona’s judge ion the did trial not abuse his discre- Thus, ruling.

tion so ex-

traordinary relief should have been denied

pursuant to Rule 3.

755 P.2d 1135 LAW;

Cindy Law, Tom Law and Carol wife, Petitioners,

husband COURT of the of Arizo

SUPERIOR State

na, In For the COUNTY OF MARI

COPA, and The Honorable Thomas W.

O’Toole, Judge, Respondents, Harder,

James R. HARDER and M. Jean wife, Real Parties in Interest.

No. CV-86-0607-PR.

Supreme Court of Arizona.

Jan. 1988.

Supplemental Opinion May 1988. July

Reconsideration Denied 1988. Greer,

Greer & Seletos Robert L. Phoenix, petitioners. for Kleinman, Grego- Carroll Kleinman Phoenix, ry Novak, respondents P. parties real in interest.