*1 439 Lowe v Estate Motors LOWE ESTATE MOTORSLIMITED 77914, (Calendar 15, Argued January Docket Nos. 77926. No. 18). August 4, Rehearing Decided 1987. denied Mich 1207. Lowe, conservator, by Gazley, brought Ethel her Frank F. an against action in the Oakland Circuit Court Estate Motors Limited, America, Inc., Mercedes-Benz of North and Newark Products, negligent design alleging Auto implied and breach of warranty respect door-locking with to the door and mechanism seriously injured anof automobile in which she and a floor alleged wedged pedal mat which she had under the of brake and automobile contributed to the of driver’s loss control. comparative Mercedes-Benz an asserted affirmative of defense negligence ground plaintiff on the failed use an court, Andrews, J., seat available belt. The Steven N. found availability that where is there evidence of the of seat belts and relationship injuries of a causal between the sustained and the proper failure to use seat belts would be to submit the issue comparative negligence jury, of to the and that evidence belts could be used in defense the crashworthiness of the design Appeals, of the automobile as a Court whole. The P.J., (Simon, J., dissenting), V. J. Bkennan, Cynar, and J. reversed, holding that the failure to use a seat restraint was general duty not a ordinary deviation from the to exercise care plaintiffs as matter of law and concluded that the failure to comparative wear a seat belt was not admissible as evidence of (Docket 73531). appeal. No. The defendants opinions by joined Chief Justice Riley, Justices Brick- ley Supreme Cavanagh, and Boyle, Justice held: may Evidence of the existence of failure to use seat belts products liability support be admissible in a action References 2d, Highway seq. Am Jur Automobiles and TrafBc 717 et §§ 2d, 370, 506, Liability 559, 560, 804, 814, Am Jur Products §§ 930, 963. liability: determining' product Products Modern cases whether is defectively designed. 96 ALR3d 22. occupant’s contributory Automobile failure to use seat belt as negligence. 15 ALR3d 1428. Mich negligence; where the issue defense of affirmative as an issue of a vehicle raised of the crashworthiness system liability, availability of a seat-restraint evidence design purpose defending for the be admitted *2 whole, comparative entirely independent of the vehicle as a negligence defense. Brickley joined and Cav- Riley, Justices Chief Justice anagh, stated: arising liability involving injury products In actions 1. all of the an where the affirmative defense from use of automobile raised, comparative negligence the trier of fact should has been law, considering precluded, the matter from not be as a of injured party to use an available failure of the determining plaintiff reasonable care whether the exercised a failure to use seat belt under the circumstances. Whether question appro- comparative negligence of fact is a amounts to priately jury. every person province the of the within While safety, obligation to care for his own has an exercise reasonable regarding application may the the differ of reasonable minds buckling of of harm: The burden of an reasonableness the risk case, may, particular under the facts of a be available seat belt injury by jury to than the of when found a be less likelihood Thus, severity. compe- multiplied by accompanying where its proffered an that the failure to use tent evidence establish plaintiff’s operational to the available and seat belt contributed negligence, including damages, the the issue of causation, accompanying issue should be submitted to the of jury. cases, determining whether the 2. In crashworthiness defective, design vehicle be considered of vehicle is the must a integrated the as an whole. The should consider vehicle’s design, including safety a seat-restraint overall features such as factors, determining system its crashwor- and other relevant plaintiff’s the conduct and its causal relation to thiness. The design. injuries the issue of the vehicle’s is not relevant plaintiff a both that the vehicle was While must establish design proximately or that the defect caused defective in and injuries, entirely the elements are distinct. enhanced the considering vehi- the insufficient crashworthiness of a whether plaintiff’s injuries, the proximate the focus is was a cause of cle injuries. design upon and its to the vehicle’s relation plaintiff’s failure use Whether and to what extent the proximately injury properly caused available seat restraint determining only within the context of considered comparative negligence only then after considera- issue of negligence. tion of issue of substantive apply Legislation requiring use of seat belts does 3. Estate Lowe v Motors prior this case the accident because occurred to the effective statute, requirement applies pas- date of the to front-seat sengers plaintiff vehicle, and the was seated in the rear of the Michigan. and the accident without occurred the boundaries of upon The Court relied of a decision of that Court Supreme which was inconsistent with decisions of generally principles recognized law. given 4. The in this case decision should be limited retroac- effect, applying tive to cases tried date of after the decision and pending appeal concerning to those on cases in which issues admissibility properly pre- of seat belt evidence been have served. Boyle, concurring, plaintiffs Justice stated that evidence a failure to use seat belts should be admitted the extent it pertain question plaintiffs comparative would to the fault, presence and that evidence of seat belts should be admitted in a defense crashworthiness a vehicle. However, questions proper plaintiffs relation a alleged design failure to wear a seat belt and whether an defect proximate plaintiffs injuries was a factual or cause of a should ruling not be reached in the context of on motion in limine *3 in and the a full absence of trial record. Reversed and remanded. Archer, dissenting, Justice stated that evidence of failure to
use a seat belt should not be
as a
admitted
defense in a
products liability action where the crashworthiness of a vehicle
involving
is at issue. Case law
automobile accidents has consis-
tently
inadmissible, including
held such evidence
cases decided
following
adoption
comparative negli-
the
of the doctrine of
gence.
particularly important
prod-
Retention of the rule is
in
liability
types
being
ucts
actions where the
of conduct
consid-
usually
majority’s approach,
ered are
varied. Under the
a trial
judge
jury may
plaintiffs
recovery by any
or a
reduce a
percentage up
percent
pas-
to one hundred
where a rear-seat
belt,
senger
Legisla-
is found not to have worn a seat
while the
percent.
ture limited such a reduction to no
than
more
five
prior Michigan
enactments,
legislative
Given
case law and
the
inequitable.
result is unfair and
At the time of the accident in
case, absolutely
duty
this
no
to wear a
belt was
seat
declared or
negligence recognized
such an
by
issue of
common
at
law or
statute.
by
joined
writing separately,
Levin,
Archer,
Justice
Justice
stated:
question
1. The
whether
Fitzgerald, Young, (by Peters, Dakmak & Bruno Peters, Snider, T. Neill Stuart J. and Robert L. *5 428 Mich Riley, C.J. Jeffrey Sharbaugh) Freund and C. and Allan G. of Amer- Mercedes-Benz North Poll for defendant ica, Inc. Wagner Kenney; Drutchas;
Kitch, Saurbier, & Healy (by Willmarth, Zitter- Susan Mark D. P.C. Amone), Anthony defendant New- man, G. for and ark Products. Auto
Amici Curiae: Wolfgang (by Miller, Canñeld, & Paddock Stone Ott) Stephen Sawyer, Hoppe Mershon, J. & and (by Dunwody Johnston, Edward T. O’Don- Cole (William nell); Counsel, Crabtree, General H. counsel), Attorney, for Good, Senior of Edward P. Vehicle Manufacturers Association Motor Liability Inc., States, and the Product the United Advisory Council, Inc. products liability InC.J. this automobile Riley,
action, reversal of we review interlocutory plaintiffs the trial court’s denial of pled by defense motion to strike affirmative preclude defendants, and a motion limine concerning plaintiffs any introduction evidence seat The issue we to use an available belt. failure admissibility limited to the of evidence consider is concerning of and failure to use seat existence (1) attempting purpose for the to establish belts comparative negligence, affirmative defense of the and (2) defending design cases vehicle is doctrine as- in which "crashworthiness” liability. theory of We hold serted as introduction concerning the existence evidence to use belts is not to be treated of and failure differently seat concerning existence than evidence generally, safety and, devices to use of and failure Lowe v Estate Motors Opinion by Riley, C.J. therefore, such may evidence be admissible provided proper for either foundation purpose is For purposes negli- established. gence, applicable products liability all cases by act,1 legislative plaintiffs evidence of a failure to use an available raise a factual issue submitted to be jury consideration. crash- worthiness cases evidence restraint systems *6 relevant whether the vehicle as a whole was design. defective in
FACTS AND PROCEDURES 18, 1979, April plaintiff On was a passenger the rear seat of a 1979 Mercedes 300D owned and son, driven by third-party her defendant Raybur- Neighbors.2 traveling nell While southbound on Lima, Ohio, 1-75 Neighbors near Mr. lost control of approaching vehicle when a construction zone. The sideswiped vehicle construction truck lane, parked right in the traversed the southbound lanes, and struck a concrete barrier. At dividing point some impact, right after initial rear opened, door and plaintiff was from ejected vehicle, sustaining injuries. multiple
Plaintiff commenced this action asserting negli- gent design and breach implied warranty theo- ries of liability.3 She alleged that the cause of the accident to a defectively was attributable designed 1 27A.2949(1). 600.2949(1); Question, MCL MSA See In re Certified Co, Bryant Conditioning 558; Karl v Air 416 331 Mich NW2d 456 (1982). 2 Neighbors’ third-party currently Mr. status as a defendant Neighbors somewhat unclear. The record reflects Mr. reached a plaintiff thereby settlement with 600.2925d; and was released. See MCL 27A.2925(4). propriety Neighbors’ MSA of Mr. release subject procedure appearing seems to have been the of some motion not to have been concluded. exposition products For liability of these substantive theories of regarding defects, design opposed manufacturing defects as see Co, (1984). Mfg Prentis v Yale Mich NW2d 176 Riley, C.J. wedged the brake under had mat which
floor contributing of control pedal, loss to the driver’s injuries were automobile, that her further and designed defectively door and also caused door-locking the auto- rendered which
mechanism uncrashworthy.4 Mer- include Defendants mobile Mo- Estate America of North cedes-Benz (mbna), from which Limited, a local distributor tors purchased, Auto Newark automobile Products, mat. the floor manufacturer defense an affirmative asserted Defendant mbna negligence on the basis of plaintiff’s three-point the available failure to use passengers.5 provided for rear seat restraint seat Plaintiff defense that affirmative moved to strike any evi- trial the admission at and to exclude dence safety concerning device, her fail- plaintiff support motions, of her it. In to use ure argued law, her failure that, matter of did as a not constitute a seat belt wear because wear duty” plaintiff to defendant no "owed a seat belt, to wear that her failure
a seat accident, cause of the to the did not contribute *7 duty to avoid her it did not violate that 4 opinion to the in this relates as used "crashworthiness” The term against injuries passengers its protection resulting motor vehicle affords that a accidents, is, resulting injuries from the so-called that from impact or collision. the initial occur after collisions” which "second injuries.” injuries as "enhanced have been described Second-collision See Larsen Note, 1968). (CA 8, Corp, See also F2d 495 Motors 391 v General for de lity—A manufacturer liable Torts—Strict liabi u tomobile accident, injury 24 L R design Vand after initial that enhanced fective (1971). 862 "crashworthiness,” see statutory the term definition of For 1901(14). Act, Savings 15 USC and Cost Information Motor Vehicle 5 following: affirmatively pleaded the Mbna alleged accident injuries in the Plaintiff suffered [T]he negligence, includ- proximate of Plaintiffs own result
were the
seat
to wear the
ing,
the failure of Plaintiff
limited to
but not
subject
provided
vehicle
safety
with
restraint
or other
by MBNA.
447
Lowe
Estate
v
Motors
Opinion by Riley, C.J.
consequences
damages.
or minimize
Plaintiff relied
upon
authority
Baratono,
Selmo
28 Mich
(1970),
App 217; 184
367
NW2d
and Romankewiz v
(1969).
Black,
App 119;
16 Mich
to the the court ruled that could introduce seat belt evidence its mbna design defense of the crashworthiness of the auto- Finally, unclear, mobile aas whole. while plaintiff court seems to precluded ruled have could be any against recovery from if her mbna failure to use the available seat restraint could be proximate shown be the cause of her enhanced injuries, product’s rather than the lack of fitness.7 appealed
Plaintiff the Court of which in a reversed two-to-one decision. v Estate Lowe (1985). App Motors, 523; 147 Mich NW2d Appeals, relying upon Romankewiz, The supra, and the extension Romankewiz Ford, rationale in Schmitzer v Misener-Bennett apply Romankewiz, noting The trial court declined to Selmo and prior judicial abrogation that both cases were decided to the contributory negligence recovery. defense as a total bar that, opined principles pure comparative court consistent with the negligence adopted Sterling Heights, in Placek v (1979), plaintiffs NW2d 511 the focus is on the conduct as relates to injuries, being causality her itself. rather than limited to the of the accident Further, upon comparative negligence the court relied trea Schwartz, Placek, approval tise Professor which was cited with support ruling comparative negligence jurisdictions its a belt and the extent to which plaintiffs failure to use an available plaintiffs injuries that failure contributed to the should be submitted consideration. portion ruling The basis for that of the trial court’s is unclear. "misuse,” While the record reflects some reference the defense of support ruling mbna seeks to within the context the element of causation without reference to that defense. *8 Mich Riley, J.C. (1984), App 350; 354 held NW2d not, a seat restraint was
the failure to use matter of general duty law, from a deviation ordinary care, concluded, therefore, and to exercise plaintiff’s was not failure to wear a seat belt negligence. comparative as evidence admissible The admissibility majority did not address respect to the of crash- such evidence with issue design, but, nonetheless, reversed worthiness trial court’s order plaintiff’s
denying
motions
opinion
dissenting judge
was of the
toto.
the
comparative negligence
primarily
defense
which, consis-
matter,
a factual
the resolution
negligence principles,
appro-
general
is
tent with
priately
province
jury.
within the
granted
applications
We
defendants’
(1986).
appeal.
i relatively interlocutory appeal lim- involves This concerning permissible questions admissi- ited bility within the context evidence of seat belt implicated automo- in this the substantive issues required products liability to action. We are bile admissibility for two such evidence decide attempt independent purposes: entirely first, to negli- comparative partial defense of establish gence; de- second, the crashworthiness to defend gener- sign relevant evidence of the vehicle. All ally in this admissible, 402. MRE Our decision requires therefore, law case, discussion of the some liability products necessarily to the viabil- relates that it the extent sought plaintiff ity strike the defense sought plaintiff exclude. evidence presented of the issues Thus, the resolution (1) upon depends to use seat belt failure whether *9 Lowe v Estate Motors Opinion by Riley, C.J. held, may properly law, be as a matter of not to constitute a general deviation from the to duty exercise reasonable care for one’s own un- safety, (2) cases; der any circumstances and all and whether seat-restraint evidence is irrelevant an to safety automobile’s design. Unless those issues the,affirmative, may be resolved in the evidence in question may not properly excluded and with- consideration, held from the jury’s consistent with the applicable principles common-law to we which are bound. obligation
On the basis our to and analyze presented decide issues by the com- applying principles negligence mon-law developed in our prior manner, in a decisions consistent we are compelled to reverse the decision of the Court of Appeals. to Contrary the assertions in Justice dissent, unlike Justice Archer’s we Archer, not, however, do presume to decide whether fail- ure to use a belt is seat is or not a deviation from general duty universal of an automobile passenger to exercise ordinary care for own his hold, rather, We safety. that because reasonable might differ, question minds may not be withheld from jury decision. regard
With issue, to the second which is pre- independent first, sented entirely we con- that, clude because an seat automobile’s re- system straint relevant directly vehicle’s design, safety such may evidence not be excluded respect with to the limited issue of the vehicle’s delimitate, design. however, crashworthiness We the permissible scope of such evidence for this latter purpose.
ii origin doctrinal of the judicially created 428 Mich Riley, C.J. disallowing plaintiffs to to failure evidence rule jurisdiction be traced this a seat belt use Romankewiz, decision Court of ordinary supra. automobile Romankewiz was involving negligence modern theories case not liability products decided before which was comparative negligence adoption pure Sterling Heights, Placek (1979). Romankewiz, the Court NW2d 511 plaintiffs rejected failure to use a that a claims contributory amount belt could mitigate recovery total or a failure bar as damages. *10 negli- contributory regard to the issue of With gence, law, of "that as a matter the Court held duty [plaintiff] belt,” and no to a seat had wear "plaintiffs to his belt was failure fasten seat that negligence to the cause as to contribute such not of the accident plaintiffs do
[because] [u]nbuckled (em- supra, Romankewiz, cause accidents.” not given support original). phasis of in The reasons regard holding First, the as follow. were its then-recently statute enacted noted Court equipped requiring to with seat be automobiles obligate use them.8 did individuals to belts not Second, demon- Court mentioned "statistics strating general belts, of seat indicat- non-use ing only drivers 'buckle of nation’s 15% inju- [actually] up’ exacerbate [and] that belts can Finally, Id., reasoned that the 124. ries.” not amount to to a seat belt could failure buckle ordinary . . . under to exercise the care "a failure has, until one or [because] . . . the circumstances negligence, he is have, another’s should notice of contrary, required anticipate it. he to On not due care for that others will use entitled to assume 9.2410(2) required 257.710b; manufactured MSA automobiles MCL January 1, equipped with seat belts. after v Estate Lowe Motors Ltd Riley, C.J. Romankewiz, supra, safety his and their own.” (emphasis in original). Court disposed of issue avoidable
consequences mitigation damages or of by "a very bit simple if there is logic: duty no to buckle a belt, to do failure so cannot be held a breach duty consequences avoid or dam- minimize Id., ages.” 126. The Court held: as a "Accordingly, law, . . . matter failure to use a seat belt is appropriate as a un- damage-mitigating factor or Id., der the consequences.”9 doctrine avoidable 127. In "it closing, the Court said is for legislature ... to prescribe required any use” of seat belts. Id. Schmitzer, the Court con- a plaintiffs
sidered whether failure use a seat belt could be introduced as evidence of compara- tive partial as a bar light recovery adoption fault doctrine Placek, supra. The Court reasoned whether plaintiffs recovery could be reduced to the ex- tent that his own negligence caused or increased the severity of his injury, opposed to the acci- dent itself, event, was unclear. In any the Court Romankewiz, held, relying on that no duty to wear existed, law, seat belt as a matter of and there- *11 fore the failure to use an available belt seat could not constitute a the breach of to use duty ordinary care.10 to Referring duty, that the Court concluded: 9 Barker, Spier 444; 916; Cf. v 35 363 NY2d NYS2d 323 164 NE2d (1974). Spier, that, the New York of Court held while contributory negligence failure as a total bar to use a to seat belt could not constitute recovery, plaintiffs a failure seat to use available duty consequences belt could constitute a breach of the to avoid or and, mitigate therefore, damages, such that evidence could not be precluded jury from consideration. 10 duty The Schmitzer Court that reasoned where there is no there holding can be no breach. The Court’s the failure to use an duty seat belt available could not constitute a to use violation premised ordinary upon proposition "plaintiff care was also the 439 428 Mich
452 Riley, C.J. duty appro- more a is an act [IJmposition of such Legislature. Legisla- The by the priately performed various equipped to consider the ture better use, mandating seat-belt by a law raised issues majority population’s disinclination e.g., belts, contradictory studies wearing to seat safety de- efficacy of seat belts regarding the vices, problems associated with and the collateral [Schmitzer, types safety devices. other 359.] present in the majority of Appeals The Court noted in found Schmitzer controlling. to As case however, Simon, dissenting opinion Judge have reached jurisdictions the courts in other considering similar iss conclusions when contrary majority compara view present, ues.11 At in which the issue has jurisdictions tive negligence con allowing requires addressed been Note, nonuse defense. See sider seat belt man wear a Must reasonable seat belt defense: 976, 83, 968, cited seat belt? 50 Mo L R n cases (1985). therein, text accompanying Pasakarnis, 451 So America v In Ins Co North (Fla, 1984), the Florida example, for 2d reasoning adopted Supreme rejected Schmitzer. The court first addressed the assertion could failure to use seat belt that whether more appro- constitute Noting legislative consideration. priate App anticipate negligent 135 Mich acts a defendant.” not] [need 359. The Court did not attempt proposition reconcile that with the rejected proposition when which have such decisions considering this Court the See, e.g., liability State McMillan v. of defendants. Alfono, Comm, 46; (1986); Moning Hwy 393 NW2d (1977). 425; Mich 254 NW2d 11See, e.g., seatbelts as evidence of Anno: Nonuse automobile comparative negligence, Anno: Nonuse of seat belt as 95 ALR3d Werber, mitigate damages, A ALR3d 1033. See also failure issues, multi-disciplinary approach St 29 Clev L R 217 Comment, analysis, safety (1980); Self-protective devices: An economic Note, (1973); Must The seat belt defense: 40 U Chi L R 421 (1985). 50 Mo L R 968 man wear a seat belt? reasonable *12 453 Estate Lowe v Motors Ltd Opinion Riley, C.J. peculiarly nonstatutory tort law is and that past overturning court had not hesitated in the precedent law, unsound in the area of tort appropriate court viewed the issue as most judicial decision, "[t]o and concluded that abstain acting responsibly present from in the case on the legislative basis of deference would be to con- sciously ignore a limited area where decisions illogical courts lower exception of this state have created an to the doctrine negligence . . . Id.
Discussing pure comparative the doctrine of adopted judicially fault which had in Hoffman v (Fla, 1973), Jones, 431, 280 So 2d 453 the court concluded that the failure to wear available pertinent appropriate seat belt could be a factor by jury deciding for consideration whether plaintiff safety. exercised due care for his own supra, reaching Pasakarnis, 453. In that conclu- flatly rejected sion, the court the contention that safety precaution seat belt effectiveness as a is too "speculative,” stating that the evidence of seat belt reducing injury effectiveness "in deaths sever- ity unequivocal.” is substantial and Id. rejected
Likewise, court the assertion that and, automobile are accidents unforeseeable there- fore, "reasonable care under the circum- require not, law, stances” could aas matter of they anticipated. regard, In this the court dis- cussed its earlier decision Ford Motor Co (Fla, 1976), adopting Evancho, So 2d "crashworthiness” doctrine and of Lar- rationale (CA Corp, sen v General Motors 391 F2d 1968), "expressly acknowledged in which it [that] automobile collisions are so- foreseeable are the called 'second collisions’ with the interior Pasakarnis, automobile.” 453. The court Riley, C.J. Evancho, supra, passage from following quoted *13 204: on the roads made for use "Automobiles are cargo to and persons and transporting in
highways
use cannot be
points. This intended
from various
carried
encountering
de-
varying
out without
proved
injury-pro-
hazard of
statistically
grees the
.
types. .
.
ducing impacts of various
for the
are not made
". . . While automobiles
other,
frequent
a
colliding with each
purpose of
automobile
contingency of normal
and inevitable
injury-producing
will result
in collisions
use
impacts.”
York Court of
of the New
Following the decision
Barker,
444;
Spier
NY2d
Appeals
(1974),12
the court held:
hi
Pasakarnis,
Like the Florida
court
we are
convinced that
the reasons expressed by the Court
support
do
disallowing
trier of
from
considering
fact
failure to
use
seat belt
for the
purpose
defense of
affirmative
com-
parative negligence. Consistent with the underly-
ing
principles
the comparative
fault doctrine
*14
Placek,
adopted
this
in
supra, and made
Court
applicable
products
in all
liability
by legis-
actions
act,13
lative
general
and with the
principles
of
negligence law acknowledged
and relied upon by
Alfono,
in,
cases,
Moning v
among
Court
other
425;
(1977),
400 Mich
comparative negligence, differing while in perspec- tive,14 is indistinguishable theoretically from the applicable standard for determining in liability 27A.2949(1). 600.2949(1); MCL MSA purposes comparative negligence, perspective For of the in differs plaintiffs injuries it is the in conduct relation to his own which is at issue. 428 Mich Riley, C.J. negligence: of conduct the standard
common-law protection is for his own conform one must which that [person] like circum- under of "a reasonable objective the nature Because stances.”15 indistinguishable, person” standard "reasonable applica- equally negligence principles general are is identical. ble, distinction the law-fact and upon by duty” relied formulation The "no present is similar case of in Moning, rejected duty” analyses in we the "no supra. recently McMillan, That in and more combining sepa- developed by formulation gen- duty, proximate cause, and of rate issues specific care, and substan- standards eral tially appropriate functions of the obscures indisputable jury. course, is, It court negli- pursuant that, gence, the law obligation every person to exercise has an safety. thor- his own As was care for reasonable Moning, supra, oughly whether discussed question any given particular case conduct obligation "is not a of that be a violation would specific duty, question standard but of the risk of harm reasonableness care: thereby Id., 433. created.” Discussing the risk of the "reasonableness appropriate of the court functions and the harm” Moning making evaluation, and Court § Harper quoting James, Torts, said, & pp 16.5, 912-913: *15 whether reasonable The trier of fact decides thereby estab- taken and
precautions have been
of
specific
care:
standard
lishes
negligence
for the
stan-
formula
"The common
under like
man
is the
reasonable
dard
conduct
Torts,
Hardy
2d,
v Monsanto Enviro-
See
§464.
Restatement
(1982).
Inc,
Systems,
Concerning the evaluation, "reasonableness” explained: further The reasonableness depends the risk on magnitude outweighed whether its is by its utility. The provides: Restatement "Where an act is one which a recognize reasonable man would as involv- ., ing a risk of . . harm the risk is unreasonable negligent and the act is if the risk is of such magnitude outweigh as to regards what the law as utility of the particular act or manner Restatement, in which it is done.” 291. § [Id., 450.] The Court reasoned that the specific standard of care, "whether particu- conduct in the [the actor’s] lar case is general care, below the standard . . including . whether in the particular case risk of harm created conduct or is [actor’s] is not reasonable” is appropriately within province the jury, "unless ... all reasonable persons would or agree there is Id., . . overriding public . policy.” 438. The Court following offered the justification and rationale underlying that general principle of negligence law: preference resolution issue of . . . rooted the belief *16 Mich Riley, C.J. under the is reasonable judgment of what
jury’s likely is more particular a case circumstances than represent com- the judgment to judicial the judgment of how rea- [emphasis munity’s added] conduct themselves. persons would sonable is made so community judgment . . . Until questions that doubtful principle appear, of care of the regarding should application standard community to the by reference be decided requires jury submis- judgment [emphasis added] [Id., question so doubt. of the 435-436.] sion of a man- liability potential Moning involved slingshots for ufacturer, wholesaler, retailer of slingshots di- marketing alleged negligent Moning was plaintiff to children. rectly accidentally hit minor third-party a when injured a fired from such projectile eye in the with him selling held that whether The Court slingshot. negli- minors constituted slingshots directly harm, risk of (e.g., created an unreasonable gence gen- conform to the duty violating thereby care) appropri- of reasonable eral standard a jury. be decided ately 52-53, McMillan, rejected we asser- supra, "no duty,” can breach company a utility tion that law, failing utility pole to erect a matter of as a that an automo- "anticipation possibility control, would bile, out leaving roadway stated opinion of the Court it.” The collide with care, as as the well standard specific " 'in cause, part on depended proximate issue is foreseeable foreseeability —whether risk create conduct actor’s of that conduct . the result . . and whether harm ” Id., 61- foreseeable.’ causes were intervening 439). ex- The Court Moning, 62 (quoting contention that automo- with the disagreed pressly entirely located utility poles bile collisions with Lowe v Estate Motors Opinion by Riley, C.J. outside of the portions traveled of highways were id., See, unforeseeable. and n 6. The Court rejected likewise the contention that no jury ques- tion could exist because utility poles so located do not cause accidents. *17 the in Moning,
Applying
principle
articulated
that
reasonable
may
regard-
minds
differ
"[w]hen
ing
application
of the reasonableness
harm,
risk of
the question is best left for the jury,”
the McMillan
Court,
supra,
reversed the deci-
sion of the
Court of
which had affirmed
grant
trial court’s
of summary judgment,
overruled Dawson v
Co,
Postal Telegraph Cable
139;
251
(1933),
NW 352
and Cramer v
Co,
Detroit Edison
Mich
The "no duty” formulation adopted in Roman- kewiz, supra, have may product been a of the all or nothing analyses surrounding abrogated doctrine contributory of negligence as a total bar to recovery. Avoiding the potentially harsh and inequitable consequences of that complete defense attempts specific Judicial to define the standard of care to be applied by legal in all similar cases have been criticized writers and See, Keeton, e.g., have not withstood the test of time. Prosser & Torts (5th ed), 35, pp § 217-219. Mich Riley, C.J. directing appropriate concern been an have precisely case. It was Court’s decision judicially led this Court which
that concern comparative pure adopt fault doctrine of "accomplishing] Placek, toward to move apportionment goal system fair damages.” Id., 660. abrogated defense of contribu- to the contrast negligence
tory negligence, al- never entirely defendant an otherwise liable lows "escape” duty liability of due and thus "avoid” significant Hardy, supra, 40. difference That care. exceptions the creation aberrational renders general negligence inherently inconsistent with principles unwarranted. concerning plain- admissibility evidence purpose for the
tiffs to use a seat belt failure partial attempting to defense of com- establish question parative does not concern duty duty. is limited to The common-law issue *18 obligation plaintiff any under whether the safety. her It care for own exercise reasonable seriously that automobile cannot contended be obligation passengers are under no whatsoever safety own due care for their because exercise speciousness accidents are unforeseeable. particularly in the reflected such a contention present plaintiffs theories case which one of upon foreseeability premised liability is indeed failure to use of automobile accidents. Whether under of the instant seat belt the circumstances legal duty, deviation from that case constitutes a specific rather, above, as discussed concerns prior which, care, our standard of consistent with decisions, from the not withheld differ, or unless all reasonable minds could public policy re- consideration some ascertainable Lowe v Estate Motors Opinion by Riley, C.J. quires protecting, and therefore encouraging, conduct under any circumstances.
IV persuaded We are the decision of the Court is inconsistent foregoing with the prin- ciples. forming The rationale the basis of that decision —that one need not anticipate negli- others, gence foreseeable, even if that a high percentage of automobile occupants do not use seat belts, that seat belt speculative, effectiveness is too and that imposition of a duty to use them for purposes of the common-law compara- doctrine of negligence tive is more appropriate legislative consideration —is flawed and inconsistent with modern and traditional principles furthermore, law. That analysis, ob- substantially scures the appropriate functions of the court and the jury.
While high evidence of the percentage of fail ures to use seat belts is relevant to the issue of reasonableness, such evidence does not support withholding the issue from the jury. The assertion that certain conduct is customary, or that a major ity engage in question, conduct does not in and of itself make such conduct reasonable. The determinative requires evaluation contemplating the fictitious objective "reasonable person,” not the subjective vaverage person.” For con customary duct to be circumstances, reasonable under must be a product of what has been described is, "learned reason.”17 That as first articulated United States v Carroll Judge Learned Hand Co, Towing (CA 2, 1947), 159 F2d consistently applied jurisdic courts of this *19 Moning, tion as reflected in such conduct (5th Keeton, ed), 33, p Prosser & Torts 195. § 428 Mich Riley, C.J. magnitude if unreasonable found to be be (probability of harm of the risk of harm created harm) greater gravity multiplied by is of that adequate precautions or the than the burden of utility question. of the conduct applicability light of that of the uniform considering formula, defendant’s con- whether plaintiffs purposes liability or a duct for purposes agree reducing recovery, with his we reasoning of the York Court of New buckling Spier, supra, 452, that "the burden of may, under the facts of the available seat belt particular jury case, to be less be found multiplied by injury than the likelihood of when accompanying severity.” its per- persuaded that all reasonable We are agree use, would that the burden of seat belt sons or the resulting magnitude outweighs utility nonuse, of seat belt injury. are risk of We persuaded any pub- likewise not ascertainable require policy that such an lic approach considerations could adopted applied in all cases. be Accordingly, we hold that whether failure to use comparative negligence seat belt constitutes to tiffs so as require plain- proportionate reduction of a appropriately
recovery is an evaluative issue province jury. within proffered competent If evidence establish opera- that tional seat belt contributed to the failure to use an available #and producing plaintiffs damages, comparative negligence, then the issue of including accompanying causation, issue pursuant should submitted to the to the special ordinarily verdict form used such cases. addressing pause issue,
Before the second we *20 Lowe v Estate Motors Ltd Opinion by Riley, C.J. acknowledge the recent enactment of the manda- tory usage legislation, seat 257.710e; belt MCL 9.2410(5), respond positions MSA and to to the expressed dissenting opinions they in the relate legislation. statute, to that That took which effect July requires 1, 1985, on drivers and front-seat passengers operated of motor vehicles in this state making belts, to wear seat unlawful. Section five use them failure to
provides, furthermore, that failure to use a seat in violation belt statute negligence, be considered evidence also providing negligence that such shall reduce not plaintiff’s recovery by percent. than more five The requirement statutory usage belt seat and its ac- provisions companying inapplicable in are the in- (1) prior stant case the accident because: occurred (2) plaintiff date, to the statute’s effective was a passenger statute, rear-seat terms, whom its (3) applied, not would have the territorial the accident beyond occurred state boundaries contrary it where would not have been any passenger this statute for not to have used a seat belt. duty” upon
The "no formulation relied Schmitzer, to exclude evidence of failure to premised upon misplaced use a was analysis that because seat belt use was statuto- rily required, duty” "no to use seat belts within negligence context common-law could ever rejected analysis above, exist. We have con- cluding erroneously it combined and confused duty question actor under —whether any obligation to exercise reasonable care under specific the circumstances —with the standard question particular care—whether conduct in derogation legal duty. was in The mis- placed aspect duty” nature of this of that "no hardly discussion; formulation further warrants 428 Mich Riley, C.J. negligence jurispru- Common-law is self-evident. developed jurisdiction course, has, of in this dence entirely statutory independently any directives. "duty” has of common-law element upon dependent the existence and been never irrespective statute, one of whether of a violation perspective aof element from the considers that plaintiffs recovery. liability or a defendant’s concerning potential that the effect issue No *21 argu- might safety-belt statute enactment of ably has been in this case have in our decision parties. by Nevertheless, it or addressed raised dissenting opinions expressed in the has now been although and Justice of Justice Levin Archer, reasons, the enactment of that different somewhat case, in this our decision should affect that statute persuading adopt of this state’s as a matter us to Appeals of the Court of law the decision common clearly was erroneous. have concluded which we considering alternatives, without After advocacy, adversary appellate we are not benefit persuaded the Court of the decision of to affirm of that of the enactment the basis on legislation the seat belt Inasmuch statute. governed inapplicable, in this case is our decision City Taylor, Pittman v law. See the common (1976). The decision 41; NW2d entirely that likewise, on review, rendered we basis. that, extent to the hold Archer would
Justice required Legislature automobile not has that occupants belts, the failure evidence of to use negli- comparative purposes of them for to use gence from withheld must be excluded safety duty” to use "no because consideration anal- Justice exist. otherwise devices can Archer’s Lowe v Estate Motors Riley, C.J. ysis part on is based the assertion that because Legislature provided violation July may statute, 1985, effective on consid- negligence, by nega- ered evidence of it intended implication tive all other cases failure use a seat belt not be admissible as evidence comparative negligence. inclined, areWe engage statutory interpretation by however, to negative implication legislative on the basis of Legislature required That silence. has not passengers traveling rear-seat automobile outside prior the territorial boundaries of this state to the usage effective date of the seat belt law to "buckle up” persuade unsupporta- does not us to affirm exception ble to the common law the statuto- rily prescribed doctrine.18 that, We also note unlike Justice Justice Levin, opinion is of the decision of the Archer Appeals, adopting reasoning Court of Schmitzer, was not erroneous as a matter of common law. We find the additional reasons ex- pressed opinion regard in Justice Archer’s in this unconvincing. to be Some of those reasons are entirely misplaced they inasmuch as relate to a *22 18Contrary not, dissenting opinion, to the in assertions the we have regard, "engaged judicial in our in legislation,” decision this nor legislative have we analysis, action to affirm "invite[d] decision.” Our [our] rather, premised upon obligation appeal is our to it—the common law. decide by applying governs the law that our decision See, Pittman, e.g., supra. mandatory usage legislation inapplica- Inasmuch the seat belt is case, present entirely ble in the have our we reached decision as a law, matter of the common as did the trial court and the Court of not, course, Appeals. imply Legisla- We have intended to by development body Finally, ture is bound our of that of the law. we note, obvious, it by would if is not that the result favored dissent not, law, may —that a failure to use a belt seat as a matter of comparative negligence any constitute under circumstances —would usage not be more consistent with the seat than statute our statute, inapplicability, decision. That because of its not has affected entirely our decision in this case which we have reached on the basis of the law. common 439 Mich Riley, C.J. analysis,19 some are of our mischaracterization prior Court,20 decisions of this with inconsistent misleading.21 unpersuasively are and others opinion contrast, is of the Justice Levin, usage mandatory seat belt the enactment of effectively the decision of the Court law Appeals codified Schmitzer, and, therefore that deciding precluded from the issue this Court is application Thus, Justice of the common law. clearly erroneous decision would affirm Levin on the in the instant case of the Court of opinion incorrectly maintains for affirmance Justice Archer’s negligent; that that failure to use a seat belt is that we would hold That, course, duty” plaintiffs is not we have "a to use them. what rather, holding, minds is that because reasonable have held. Our differ, jury; may might may not from the the issue not be withheld position, way of law.” one or the other as "a matter Our be decided stated, plaintiff’s "negligence” simply determined in is that a is "negligence.” a defendant’s the same manner as upon comparative negligence premised analysis is issue Our inquiry does not concern the conclusion that the determinative view, plaintiff question, "duty” question. That in our is whether any obligation exercise reasonable care under the was under dissenting opinion, like the decision circumstances. Justice Archer’s of the Court of specific duty question Appeals, confuses the with result, care, and, respond analysis. to our as a does standard contributory negli plaintiff’s that a Justice Archer’s assertion distinguished differently gence products the statement less or treated should somehow be Likewise, Karl, supra. liability with n 1 cases is inconsistent plaintiff’s contributory opinion fault is exposes that a in that "merely culpable because the former than a defendant’s " the world the latter risks to to a risk” whereas distribute^] [oneself] alleged negligence implying plaintiff’s large,” is to that a at therefore defendant’s, differently with than a is inconsistent be determined fault, determining Hardy, supra. standards are identical. opinion majority view that the assertion in Justice Archer’s plaintiff’s view among jurisdictions prohibits of a the introduction other to use a seat belt majority misleading because failure referred to includes tive fault majority compara- contributory negligence jurisdictions. In addressed, jurisdictions has been in which the issue Note, contrary. list of those decisions see is to the For a view 976, 83, supra. L R n n 11 50 Mo issue, in other regard the courts the crashworthiness With features, safety unanimously jurisdictions held that evidence have belts, precluded including from consideration. not be Werber, See, also, supra, 250-251. part n 11 See vi. *23 Lowe v Estate Motors Ltd Opinion Riley, C.J. basis of legislative the doctrines of supremacy and judicial restraint. disagree We in gen- somewhat eral terms approach with the espoused by Justice and, more specifically, with the application Levin of that in approach this case. former,
With respect to the we rely upon the Pittman, decision of this Court supra. In Pitt- in man, the Court changed the common applica- law arising prior ble cases to the effective date of governmental act. immunity the statute Pittman, involved Legislature had expressly codified the common-law immunity established prior decisions of this Court. The Court analyzed case, however, its decision in that upon the correct axiom that the common law and the statutory law exist entirely independent of one another. The opinion in Pittman expressed the ap- dissenting proach that Justice suggests Levin now should be applied in present case. Five members of the Pittman Court, including however, Justice Levin, were of opinion they obligated were decide the presented issue by applying the law that governed their decision of it: the common law. While expressed separate two opinions, that, Court’s rationale was to the extent legislation inapplicable is, in cases like —that Pittman which prior arose to its effective date— the Court was not precluded from overruling its prior decisions. agree
We
that an appropriate
exercise of this
Court’s discretion may require
legislative
defer
ence
some cases on the basis that
Legisla
ture
expressed
has
public
policy
this state.
See, e.g.,
Co,
Kovacs v Chesapeake & O R
(1986).
647;
priate than it would have been the case in instant supra. Pittman, in Legislature expressly Pittman, codi- had
In the adopted prior the in rule fied the common-law contrast, this Court had Court. In decisions of this admissibility a of evidence of the not addressed compara- purposes of use a seat belt for failure to disagree negligence, Justice and we with tive appeal by denying in leave Schmit- that Levin tacitly acqui- any way zer, this Court in reasoning Appeals of in that in the Court esced case. Legislature expressly any event, had the adopted in rule Schmit- the common-law codified duty” and, belts, zer, "no to use seat that there is therefore, a failure to use a seat that evidence of comparative purposes of inadmissible belt expressed negligence, approach the Pittman the espoused by case dissent as might arguably Justice Levin persuasive. In the
have been more Legislature however, statute, has seat belt contrary: expressly failure to to the decreed of statute use a seat belt violation "shall negligence.” While admissible five-percent evidence recovery on the reduction of limitation escaped disagree consideration, we has not our concerning question that failure the substantive —whether to use be evidence a Legislature comparative negligence has codi- —the fied Schmitzer Court’s decision. question specific percentage limitations is Furthermore, unlike the not now before the Court. Legislature, judiciary traditionally has not arbitrary figures setting or in the involved itself question percentages. Thus, when faced with five-percent limitation, whether, we because affirm, law, of common an should as matter unsupportable exception to doc- and erroneous compelled negligence, we are trine of Lowe v Estate Motors Riley, C.J. persuaded negative. to answer in the areWe not adopting Appeals decision of the Court legislative on the basis of deference would be appropriate resolution of this issue. The issue presented statutory construction, not involve does and the decision of the Court of is errone- governs ous as matter of the common law which independent this case legislative continues to exist cognizant action. While we are potential argument five-per- the effect of the perhaps potentially lead, cent limitation could anomalously, protecting to the irrational result of of individuals use recoveries whose failure to statute, seat belts was protecting violation of the while of those the recoveries whose failure to *25 it, use seat belts was not in violation of we are compelled essentially to conclude that effect is legislative a concern.
Finally, unnecessary suggested while his to anal- ysis, affirming which would result the decision Appeals, of of the Court Justice Levin addresses another has issue which not been raised or ad- by parties: dressed Court whether decision of this changing by rule established common-law Appeals given complete the Court of be should prospective application. disagree We with Justice suggested analysis question, again of that Levin’s adversary appellate without the benefit of advo- cacy, generally contrary on the it basis that is to appellate jurisprudence policy. civil No cita- prior tion to decisions of this Court is even neces- sary support former; it is axiomatic. negative policy implications of such a rule are also litigants self-evident; what incentive would civil prosecute appeal have from an erroneous Appeals decision of when, the Court of if even successful, their success would of no immediate disagree benefit to Furthermore, themselves? we 428 Mich Riley, C.J. of the rule characterization with Justice Levin’s adopted first time Schmit- for the addressed supra, zer, Justice Levin’s established.” "well prior to this Court’s decided inclusion of cases adoption proposition support negligence of agreed misplaced. The issue we precisely presented was address in light case develop- significant jurisprudential ment. Appeals
The decision reasoning adopting Schmitzer, case, instant inconsistent with erroneous. It was was generally then-existing recognized Court and of this decisions principles law when pre- opportunity rendered. We decline to an intent to and Justice sented Justice Levin Archer legislative infer affirm the decision silence on basis Appeals in
of the Court of only Rather, that the we are convinced Schmitzer. requires apply- appropriate of this case resolution ing governs of it: the law that our decision common law.
VI
por-
did not address that
The Court
ruling allowing the admis-
tion of the trial court’s
sion of seat belt evidence
fending
purpose
of de-
design
of the automo-
the crashworthiness
asserted, as an inde-
a whole. Plaintiff has
bile as
design
theory
*26
pendent
liability, that
of the
question
injuries
cause of her
vehicle in
because
was a
design
risk
created an unreasonable
resulting
occupants
impact
an
of harm to its
from
theory
regard
in this
is
or collision. Plaintiffs
designing
upon
duty of
based
the manufacturer’s
adopted
crashworthy
Larsen,
vehicles
Chrysler
Corp, 60
and in Rutherford v
Motors
(1975).
App 392;
413
Mich
231 NW2d
Lowe
Estate
v
Motors
Riley, C.J.
Our research discloses
at least one Court of
Appeals panel
question.
has addressed this
See
Corp,
App
Motors
DeGraaf v General
(1984).
disapproving
141;
Mbna admissible in crashworthiness cases to defend the safety design vehicle, of the and the relation of design plaintiffs injuries, entirely that pendent inde- comparative negligence issue. We agree argument completely. with one-half
By nature, its the defective crashworthiness de- sign theory liability requires that the vehicle be Co, considered as whole. See Melia v Ford Motor (CA 1976); Volkswag- 8, 534 F2d 795 Dreisonstok v (CA 1974); Daly enwerk, AG, F2d Corp, Rptr General Motors Cal 3d 144 Cal (1978). expressed by 380; 575 P2d As Supreme Daly, California defective Court in "the issue of design respect determined with product Id., to the as a . .” whole . . 746. Accord- ingly, should consider the vehicle’s overall design, including safety features, in order to deter- issue, and, mine thus, crashworthiness design. whether the vehicle was defective weigh competing need to considerations product design, generally, overall and the relevant recently evaluation, factors in that were discussed supra. Prentis, this Court in system goes Evidence of the seat-restraint to the of the issue in heart which the crashworthiness cases in
plaintiffs injuries were sustained after being ejected vehicle, from the a result which seat *27 428 Mich Opinion Riley, C.J. prevent. designed specifically Whether to
belts are negli- through presents plaintiff case her theory attempting gence to establish that — design unreasonable risk created an of the vehicle implied through injury war- breach of ranty theory —or reasonably the vehicle was —that uses—the deter- foreseeable fit for its intended and liability concerns whether minative issue of unreasonably of its unsafe because vehicle specifi- product safety design. features Evidence complained prevent injuries designed cally entirely reason, to this issue. No relevant of is even evidence on excluding arguably sound, such exists for pro- liability Plaintiff has issue. none. vided us with cases, the vehicle is be
In crashworthiness Accordingly, integrated whole. as an considered seat purpose. is admissible for evidence proceeds trial, that this cause In the event permitted jury to consider evidence should along concerning system, with the seat-restraint determining factors, in whether relevant all other design pursuant the vehicle was defective theory. plaintiff’s crashworthiness scope permissible evidence of such The limited purpose, light appropriate however, com- of its part reject pels of defendant’s us to the second concerning argument has inter- this issue. Mbna concerning argument the element of twined presenting seat- within the context causation restraint evidence in its defense of vehicle’s independent design, arguing safety that, properly issue, it seek plaintiff’s failure to use a seat to establish proximate in fact and sole the cause belt was any injuries than rather of her enhanced cause Interposing design the issue in the defect vehicle. context as issue within same of causation Lowe Estate Motors Riley, C.J. negligent design purposes tends to confuse the for which defendant seeks to introduce seat belt plaintiffs evidence, as well as the elements of theory, cause of action. It was a similar instruction based *28 thereon, which the Court of DeGraaf, found to be error requiring reversal. plaintiffs
The conduct and its causal relation to injuries her are not relevant to the of the issue design. plaintiff vehicle’s itWhile is true that must establish both that design the vehicle was defective proximately
and that that defect caused her injuries, entirely enhanced those elements are considering distinct. whether the insufficient design proxi- crashworthiness of the vehicle was a plaintiffs injuries, upon mate cause of the focus is design plain- the vehicle’s and its relation to the injuries. plaintiff’s tiff’s conduct and the rela- injuries properly tion of that conduct to her are comparative considered within the context of the fault issue.
Assuming that the vehicle is determined to be uncrashworthy pursuant plaintiffs theory, to the plaintiffs assertion that failure to use a seat belt only could be found to the cause of her en injuries, regard hanced without to whether comparatively negli failure is found to have been gent, argument is a curious and unusual when purely causality. viewed in the context of While a may ordinarily that, manufacturer defectively designed, contend even if design product
the
of its
plaintiffs injuries,
theory by
not a cause of the
the
regard
which
to
seeks
do so
this
under
mbna
the facts of the instant case is improper.22
called misuse defense.
pendently
Defendant’s
is found not
comparative
argument
have been
Assuming
in this
negligent,
regard
and without reference to the so-
plaintiffs
mbna
presented entirely
failure to use a seat
does not
assert
inde-
any
VII conclusion, we hold that evidence of a failure support to use a seat belt be admissible may If comparative negligence. affirmative defense proffered, evidence the issue competent for consideration. be submitted appropriately hold that in crashworthiness Additionally, we cases, for the seat-restraint evidence is admissible as a defending design of the vehicle purpose whole, independently entirely however, emphasize, defense. We purpose design latter is the issue, is at and not the plaintiffs vehicle which in failing provided conduct to use the seat-re- system. straint given to be limited
Our decision this case is effect, retroactive to cases tried after the applying cases opinion pending date this is issued those appeal concerning on in which issues the admissi- of seat evidence bility properly have been concerning no preserved. express opinion We 257.710e; MCL MSA applicability future 9.2410(5) regard with to cases in which the injury occurred after date of that statute effective and a was in plaintiffs failure to use a seat belt provisions.24 violation of its Thus, we reverse the decision of the Court of and reinstate the trial court’s denial of plaintiffs motions to exclude all evidence fault, liability. plaintiffs Prior to a determination the causal damages of her conduct and the claimed is irrelevant relation liability. defendant’s *30 24 v, mandatory part seat belt For the reasons discussed in concerning usage present inapplicable in case. No issue law is the instant parties has been raised or future effect of that statute acknowledging recognition of the than our in this Court. Other potentially v, part concern discussed in we are not troublesome inclined to comment further. 476 428 Mich 439 Opinions by Boyle Archer, J. and J. belts,
existence of and failure to use seat with the appropriate expressed part limitations vi.
Brickley JJ., Cavanagh, and concurred with Riley, C.J. (concurring). approve
Boyle, J. I would the trial ruling plaintiffs court’s on the motion to exclude evidence of failure to use seat belts to the extent it permit question would that evidence on plaintiffs comparative agree fault. I also that evi- presence on dence of seat belt restraints is admissible in defense of the crashworthiness of a car. To this agree
extent, I with Chief Justice Riley’s rationale and result on both issues. I also specifically ley’s opinion. part concur of Chief v Justice Ri- decline,
I however, would in the context of a ruling on a motion in limine and in the absence of questions record, a full trial to reach the proper plaintiffs relation failure to wear alleged design seat belt and whether an a factual or defect was proximate plaintiffs inju- cause of a ries. J. I dissent.
Archer,
interlocutory appeal.
This case
The auto-
mobile accident occurred in Ohio. Under
Ohio1
Michigan law, evidence of
nonuse
a seat belt is
presently
having
brought
case,
excluded. This
been
Michigan,
Michigan’s jurisdiction
not hav-
ing
challenged,
apply Michigan
been
we
law. Olm-
Bohn,
App
50;
(1971),
v
Roberts
26 Ohio
2d
The of states enacted such required and federal statutes also the installation Following passage of seat belts automobiles. legislation, of this defendants in automobile acci- began raising dent cases the "seat belt defense.” Michigan consistently case law has held that evi- 2The safety statute does not define what constitutes such a re device, lap lap straint nor does indicate whether it refers to belts or belts with shoulder harnesses. 300, 710b, by 163, 1, Septem 1949 PA added 1961 PA § effective § 8, 1961, 212, 1, 6, September ber as amended 1963 PA effective § 1963. pertinent provision provides: currently The of the statute private passenger January A vehicle manufactured after 1965 shall not be offered for sale in this state unless the vehicle equipped safety with belts for the use of the driver and 1 passenger. other front seat 428 Mich Archer, J. Dissenting Opinion belt wearing a seat was not plaintiff that a
dence is inadmissible. the seat addressed first
The Court of Black, App issue in Romankewiz (1969). in- plaintiff The 167 NW2d In an affirmative accident. in an automobile jured plaintiff’s defense, alleged the defendant neg- contributory of a seat belt constituted nonuse mo- the plaintiff’s trial court denied ligence. *32 defense, and the strike the affirmative tion to reversed. The Court plaintiff appealed. seat belt installation reviewing Michigan’s After the Court jurisdictions, in other and cases statute law, had no held, plaintiff that the a matter of failure to plaintiff’s belt. "The to wear a seat duty negligence as to was not such his seat belt fasten Unbuckled of the accident. to the cause contribute Romankewiz, do not cause accidents.” plaintiffs original.) in p (Emphasis 126. damages, mitigation the Regarding issue a duty no to fasten "If there is the Court stated: a held to be belt, a failure cannot be such seat The damages.” minimize of the duty breach a seat belt that "failure to use also held or factor damage-mitigating as a appropriate consequences.” of avoidable under the doctrine "it is for the concluded, stating that The Court prescribed wisdom has which its legislature, if belts, use thereof any required prescribe seat ” added.) Id., it chooses. (Emphasis 127. p in Romankewiz Thus, prohibited the Court use did not plaintiff of evidence that admission or to negligence contributory to show a seat belt damages. mitigate in a later, applied prod- the rule was year
One Baratono, In Selmo v liability ucts case. (1970), den 384 Mich lv 217; 184 NW2d App in the trial (1971), found no error the Court Estate Lowe v Motors Dissenting Opinion Archer, J. court’s refusal to instruct could consider wear plaintiff’s failure to a seat belt damages. in determining
When Romankewiz
decided,
and Selmo were
Michigan still
adhered
the doctrine of contribu-
tort
tory negligence
According
cases.
to that
doctrine,
plaintiff
a
was completely barred from
damages
if
recovery
proof
there was
of any
Therefore,
negligence
plaintiff’s
on the
part.4
if a
belt,
had
plaintiff
duty
proof
had a
to wear a seat
plaintiff
did not use a
would bar
plaintiff
any recovery regardless
a
from
negligence
defendant’s
the accident.
causing
replaced
the Court
Subsequently,
doctrine of
contributory
negligence with the doctrine of com-
Placek
Sterling Heights,
parative
(1979),
Mich 638;
Following change, the of Appeals Court barring reviewed the rule of the plain admission tiff’s nonuse the of a seat belt under doctrine of Schmitzer v Misener- negligence Ford, Bennett 354 App 350; NW2d 336 (1984), (1985). Schmitzer, lv 422 den Mich 852 In the concluded that of a plaintiff’s evidence seat failure use a belt was inadmissible evidence of the plaintiff’s contributory negligence plaintiff’s of the mitigate damages. or failure to The Court two gave support reasons to its hold- 4 (5th Keeton, ed), 65, pp Prosser & Torts 458-459. See § forty adopted compara ofAs some states had some form of negligence. Prosser, supra, 67, p 471. tive § 428 Mich Dissenting Opinion Archer, J. any
ing. First, "[u]nder the Court noted that inter- comparative negligence, pretation no matter negligence compared, what, how, is the trier or to plaintiff negli- find that the of fact must first (Emphasis original.) gent.” p Id., 358. The Court negligence merely found will not be added injury. upon proof finding Such a of an act which causes only "where can be sustained committing person, injury-producing the the act, cognizable duty.” legally Id. breached some Second, that no statute mandates the Court stated argue use, so the defendants could seat negligent per Moreover, se. that nonuse was provide that the common fails to Court found law concluding plaintiff’s that the failure to a basis duty a breach of the to use wear seat belts was imposi- ordinary care. The Court concluded appropriately duty is an act more tion of such performed by Legislature. Specifically, Court observed: [imposition duty appro- more of such a act Legislature. Legisla-
priately performed by equipped
ture is better
issues raised
to consider
the various
use,
mandating
a law
seat-belt
disinclination
e.g.,
majority
population’s
belts,
wearing
contradictory
to
regarding
studies
safety
efficacy
of seat belts as
de-
vices,
problems
and the collateral
associated with
[Schmitzer, p
types
safety
other
devices.
359.]
jurisdictions
contrary
have reached
While other
considering
admissibility
conclusions when
plaintiff’s
belt,
of a
nonuse of a seat
evidence
Michigan’s
prohibiting
admissibility
rule of
Retaining
approach.6
such evidence is the better
Clark,
(1981),
App
Taplin
2d
Historically, passengers in automobiles have contributory been considered to be free of or com- parative negligence exceptional unless circum- present. stances were injured plaintiff
Furthermore, in this case passenger was a in the rear seat. The risks of passenger nonuse of a seat belt for a rear-seat are Legislature required unclear, and even the has not passengers rear-seat to use seat belts. Legislature, during
The its recent tort law re- forms, During addressed the issue of seat belt use. Legislature review, its was informed of the relating statistics to the effect of seat belt use on reducing injuries and deaths in automobile acci- dents. 9.2410(5), pro- statute, 257.710e; MCL MSA pertinent part:
vides in
(3) Each driver and
passenger
front seat
of a
motor
operated
vehicle
on a
highway
street or
this state shall
properly
wear a
adjusted and fas-
belt,
safety
tened
except
that a child less than 4
that such
fense,
rejecting
Hwy
evidence was inadmissible.
the seat belt de
quoted Hampton
Comm,
court
v State
209 Kan
(1972):
below the standard of a man. We nothing have confidently before us on which we could base a finding accepted community requires standard of care up routinely; experience one to buckle dictates to the con- trary.” [Id., p 67.] Taplin change The court concluded that in Kansas comparative negligence change required litigation. did not the basic duties passengers drivers and to be considered in automobile tort Mich *35 by Dissenting Opinion Archer, J. required age protected years of shall be 710d.[7] section to provides sanctions for failure The statute also safety wear a belt: (5) safety belt in violation of Failure to wear a negli- may
this section gence be considered evidence damages recovery reduce the for maintenance, or arising ownership, out However, negli- operation of a motor vehicle. such damages gence recovery shall not reduce the for by than more 5%. evaluation, Legislature
After its did two First, things. Legislature made seat belt use for the driver and front-seat mandatory only that a passenger. Legislature provided The also reduced more plaintiffs recovery could not be percent for his failure to wear a seat than five Second, Legislature belt. was silent about passengers. of seat use rear-seat issue Although Michigan’s seat belt stat mandatory failing ute for apportion has been criticized creating for damages injuries for collisions and plaintiffs, a windfall for the seat belt defense "would soon result in windfalls to tortfeasors who pay partially would for harm their only sed.”8 cau courts,
A
including contributory
neg-
majority
of a
ligence jurisdictions,
prohibit
the introduction
a
plaintiffs
plain-
nonuse of a seat belt
to reduce
a
recovery.9 Among
tiffs
the reasons cited are that
years
its results has en gaged legislation.12 judicial majority The is im posing duty passengers on rear-seat wear seat being negligent belts or risk found and suffer a damages. Legislature reduction impose did not *36 duty such a after it considered all of the presented regarding facts and evidence the use of Manufacturers, the seat belts. distributors, and parts suppliers certainly opportunity had the to Legislature address the on this issue. To the extent regarding that the law the use of seat belts should changed, Legislature it is for the and not for our Court. patently
I believe that it is unfair to retroac- tively impose duty passengers a on all rear-seat 10Id., p 328. cognizant potential argument While we are the five-percent lead, effect of the potentially limitation could perhaps anomalously, protecting to the irrational result of recoveries of individuals whose failure to use seat belts was in statute, protecting
violation of the while not the recoveries of it, those whose failure to use seat belts was not in violation of compelled essentially we are legislative to conclude that that effect is a [Ante, p concern. 469.] Legislature required That has not rear-seat automobile passengers traveling outside the territorial boundaries of this prior usage state to the effective date seat belt law to up” persuade unsupportable "buckle exception does not us to affirm an statutorily prescribed to the common-law and the comparative negligence [Ante, p doctrine. 465.] Mich by Dissenting Opinion Archer, J. duty clearly was no such de- when automobiles recognized negligence at common issue clared or policy public by decision statute. The law or passengers duty seat a to wear belts have rear-seat Legislature. left is best opinion, judge Following majority’s a or trial damage plaintiffs any may jury a award reduce percent percentage up a to one hundred when wearing passenger belt, not a seat rear-seat was Legislature has limited reduction while the percent damage more than five a award not passenger who were and front-seat driver inequitable wearing be- seat belts.13This result case, cause, in this at the time of accident negli- duty absolutely no declared or there gence recognized common or stat- issue at law majority’s Moreover, the to wear a seat belt. ute decision erly require prop- years of clarification to reach its decision instruct a as to how plaintiffs damages.14 if it chooses to reduce majority agree part that in I with the While vehicle should be consid- cases the crashworthiness 13Accordingly, that whether failure use a we hold require propor- comparative so as to constitutes plaintiffs recovery of a is an evaluative issue tionate reduction province jury. appropriately within the competent proffered evidence is to establish fail- If operational use an seat belt contributed to ure to available and plaintiffs damages, producing then the issue of *37 causation, including accompanying negligence, the issue of pursuant special to the verdict be submitted the should [Ante, p ordinarily used such cases. form 462.] 14 given retroactive decision in this case is limited Our opinion effect, applying tried after the date this is to cases appeal pending in which issues and those cases on issued concerning admissibility have of seat belt evidence been the concerning opinion preserved. express properly the We no 9.2410(5) 257.710e; applicability MSA with re of MCL future injury gard the effective to cases in which the occurred after 485 Lowe v Estate Motors Separate Levin, J. whole, would, I nevertheless, ered as a bar testi- mony regarding the nonuse seat subject belts 9.2410(5). 257.710e; applicability the of MCL MSA Legislature The enacted the mandatory seat belt more than six the years law after accident in this statute, therefore, The represents case. what Legislature considered be in the best interest the citizens state.
I would affirm the decision of Court of Appeals. (separate opinion). J. question
Levin,
reduction of issues. The question whether a decision of this Court changing given common-law rule should be ret- prospective roactive or effect a separate question is from whether common-law rule should be changed. There has been no briefing or advocacy plaintiff’s date that statute and a failure to a seat use belt provisions.24
inwas
violation of its
v,
part
For
mandatory
the reasons
discussed
usage
inapplicable
law
in the instant case. No issue
concerning
present
or future effect of that statute has been
parties
raised
our
acknowledging
this Court.
than
Other
recognition
potentially
troublesome concern dis
v,
part
cussed
we are not inclined to comment further.
[Ante, p 475.]
1Compare
City
Taylor,
41;
Pittman v
(1976), Co, Chesapeake with Kovacs v & O R Mich NW2d (1986). *38 Mich 439
486 428 Separate Opinion Levin, by J. given retroac- new rule should be whether the on question, prospective too, That effect. tive or briefing and advo- not be decided without should cacy.2 agree expressed in the lead with view concerning
opinion that the seat-restraint evidence system the trier of fact in considered be determining vehicle was defective a motor whether plaintiff design asserts the crashwor- in where theory liability. doctrine as thiness
i agree in the admonitions the lead We with regarding expressions opinion opinion issues on argued. raised, briefed, or An that have not been raising ordinarily justified appellate is not court regarding application in the cause an issue an established rule of law under consideration of litigants, not that has been noticed opinion, that, need surface the Court’s only decided, affect the out- if raised and would under consideration. come of cause speak only opinion not, however, The lead does instant case. It states: "Our outcome given case limited retroac- decision this is applying effect, tried the date tive to cases after pending opinion on issued and those cases is concerning appeal issues the admissibil- in which properly pre- ity have been seat belt evidence served.”3 ”inapplica- opinion Act 1 is states that lead (Levin, J., Kresge Co, concurring). Camaj v See S S point that a not briefed The rule indeed well-established Labor, Dep’t of
and 571, 609; is not decided. v [CSC considered (1986).] 384 NW2d 3Ante, p 475. Lowe Estate Motors Separate Opinion by Levin, J. (1)
ble the instant case because: the accident (2) prior date, occurred the statute’s effective plaintiff was a rear-seat passenger to whom the *39 statute, terms, its by would have will, . . . applied opinion .”4 The lead I expect, be perceived by deciding bench and bar as possible effect of 1 on Act cases that arose before its enactment.5
It
thing
is one
say
that Act 1 will not be
in
applied
the instant
case because no issue con
cerning the
or
present
future effect of Act 1 has
been raised
in
It
by
parties
quite
this Court.
is
another
that
say
applicable
Act
is not
because
the accident occurred before the effective
of
date
1Act
and because Act 1 by its terms does not
a
apply to
rear-seat
passenger. The latter
state
ments
say,
effect
with
contrast
what
Co,
Kovacs v Chesapeake &
Court did
O R
(1986),
Mich
The import of Act 1 affects not only plaintiff case, in the countless, instant but perhaps tens of thousands "cases tried after the issued,”6 date this opinion means, is which effect, every yet case not tried where the accident 1, 1985, occurred before July in- every case 4Ante, p 463. opinion suggests question The lead also there be a
regarding applicability the future of Act 1. It states: express opinion concerning applicability We no the future regard injury with
[Act to cases in which the occurred after plaintiff’s the effective date of that statute and failure to use [Ante, provisions. p a seat belt was in violation its 475.] 6Ante, p 475. 428 Mich Separate Opinion Levin, J. the accident passenger whether a rear-seat
volving before, on, date. or after that occurred Act 1 addressed import of the question The opinion the lead opinion only because in this ques- The discussion question.7 addresses on the justified opinion the lead cannot tion in the question. opinion another addresses basis concurring dissenting or thing for It is one neither or discuss an issue opinion advert plural- for a argued, quite nor another briefed so. Discussion of of the Court to do majority or ity concurring opinion dissenting or in a an issue deciding the the bench or bar as be read cannot question. concurring raises dissenting opinion or
aWhen issue, options. has several majority all, at respond if it wishes to respond, can majority *40 been that the issue has not noting simply briefed, opinion or and that no is raised, argued, A view opposing thereon. tentative intimated majority A or expressed. plurality might even be not, however, the purport to decide issue should should briefing argument. or The issue without briefing argu- after and to be decided open left ment. a plurality a or option open majority,
Another to concurring dissenting justices, or the vote of with argument so that briefing and is to order further adversary presenta- after the can be decided issue sug- that respectfully the course we tion. That is in this case. adopted should have gest the Court sentence, opinion part and and the second If v of the lead (in vn) footnote, penultimate paragraph part accompanying of the withdrawn, opinion opinion in its would be withdrawn were this opinion. paragraphs entirety except And if of this for first three withdrawn, paragraph penultimate were first of of this sentence opinion paragraph withdrawn. would be second Lowe v Estate Motors Ltd Separate Opinion by Levin, J. II Because we read the opinion lead expressing, in part opinion, of that a view regarding 1, import of Act importance because of the question this potentially approximately affects —it one-third the injury actions8 —we believe upon incumbent us to express our disagreement with perceive what we analysis be the opinion lead question. on this After this argued cause was in the Court of Appeals, Legislature 1, enacted Act generally requiring the driver and front-seat a passenger of motor vehicle wear seat belts. No such obliga- tion is imposed on rear-seat passengers. The act provides a wear safety "[f]ailure violation may section be considered evi- dence of negligence and reduce the recovery for damages arising out the ownership, mainte- nance, operation or However, a motor vehicle. such shall not reduce recovery for damages by more than 5%.”9 8, 1985,
The act approved March pro- 1, vides that it shall take effect on July 1985. The Report Administrator, Michigan p Annual State Court 29. 9.2410(5)(5). 257.710e(5); 9 MCL MSA large majority requiring A of the statutes adults wear seat belts provide grounds reducing either violation cannot be contributory on negligence, award the basis of or or limit percentage possible reduction to small of the award. Of the twenty-six approximately Michigan states other than that have stat- effect, presently Michigan limiting possible utes three follow 321.445(4)(b)(2) percentage. Ann, reduction to a small See Iowa Code § (5%); Ann, 32.295.1(E)(4) (2%); Stat, La Rev Stat Mo § Ann (1%). 307.178(3)(2) § *41 statutes, remaining twenty-three provide Of the sixteen either that action, evidence nonuse is not in civil or it admissible that cannot Ann, 14-100a(c)(4); be used reduce an award. See Conn Gen Stat § Code, 40-1607; Stat, 12-603.1(c); Ann, DC 111Ann Ann, ch § Ind Stat § 9-8-13-9; 8-2504(c); Ann, 22-412.3(g); Kan Stat § Md Code Nev § § Stat, Ann, 484.641(3); Stat, 66-7-373(B); Rev § NM Stat Gen 20- § NC § 4513.26.3(G) 135.2A(d); Ann, (Page); Ann, Ohio Rev Code Stat Okla § 428 Mich Separate Opinion Levin, J. over six case occurred
accident
in the instant
earlier,
18, 1979.
April
on
years
accident,
However,
years
ten
before
Black,
v
16 Mich
in Romankewiz
Appeals,
Court
(1969),
119;
held that
there
167 NW2d
App
belt,
the failure
a seat
and that
duty
no
to wear
contributory
negligence.
not
use a seat belt was
Baratono, in Selmo v
following
year,
The
(1970),
Ap-
the Court of
217;
Nine months Act 1 before was Court of Appeals again adhered to the rule of Romankewiz, Selmo, Placek, in DeGraaf v and Corp, General Motors 135 142; Mich App 352 (1984), NW2d 719 a products action where liability the driver claimed that she had suffered enhanced injuries because the steering column failed to col- lapse adequately upon impact with her body. The of Appeals Court held that the trial court had erred in instructing if it found that the driver’s "failure to wear her seat belt was the proximate sole of her cause enhanced it injuries should a render verdict for defendant.” in Schmitzer v Misener-Ben- later,
Two weeks
Ford, Inc,
nett
135 Mich App
Leave
in Romankewiz.
sought
was not
Selmo,
Leave to appeal was denied in
384 Mich
Placek,
(1971),
392
(1974), and,
Mich 811
twenty days
enacted,
after Act was
in DeGraaf
Schmitzer,
(1985).
or in an automobile damages otherwise to be awarded to reduce of this Court’s deci- injured person, light those decisions sions to decline to review Appeals. Court of effective its terms
Although Act 1, 1985, codified common-law July until *43 Court of rule,10 by Appeals, the established a not reduced for failure to wear damages be may 11 exception” permitting a "narrow seat belt with not more than damage by a award reduction of to occupant for of a front-seat percent five failure wear a seat belt. 1, 1985, Act 1 was the
The effective date of July on the by Legislature the which date selected exception for front-seat occu- five-percent narrow effective, not the date on pants was to become possible percent a hundred reduction of which one to to no than five damages was be reduced more 1, 1985, The lead turns the percent. opinion July a a date on which relief from effective date into takes ef- possible percent one hundred reduction appear to be consonant with fect. That does not legislative the decision. bar,12 Legislature, may like and
The
bench
con-
10
codify
Legislature
that
that
The
did not indeed
the common-law rule
belt,
changed
contrary
duty
on
no
to wear a seat
but
there is
rule
1, 1985,
require
occupants
July
to
to
front-seat
wear
effective
permit
requirement
evidence of violation of
seat belts and
consequence
negligence.
The tort
or
be considered as evidence
remedy
limited, however,
a
to a
for failure
wear
seat belt was
damages by
percent.
five
not more than
reduction
significance
consequence
and
viewed in terms of
tort
Act
enactment,
rule
no reduction
its
in effect codified the common-law
damages
failure to wear
seat belt
the narrow five-
for
with
exception.
percent
11
n 29.
See
12
Legislature,
litigants
who relied on this Court’s
like
Distributors,
Advertising
v
decisions not to review Jolliff American
(1973),
(1974),
Inc,
1;
App
lv
391
780
49 Mich
NW2d 260
den
Mich
507;
(1976),
Alexander,
App
lv
and Buxton v
69 Mich
NW2d
Lowe
Estate
v
Motors
Separate Opinion by Levin, J.
rely
sider and
on the decisions of the trial and
enacting
this
appellate
courts of
state when
new
uncertain,
At
legislation.
times the common law is
and it
appropriate
attribute
to the
Legislature
reading of
any particular
the common
law. Where the common law is well-established
however,
uncontradicted,
Legislature
and the
rule,13
essentially
accepts
proper
common-law
respect
legislative
on
supremacy
substantive
requires,
opinion,
issues
in our
the judiciary
ordinarily
legislative
defer to the
decision to enter
field,
solution,
abide
by
legislative
(1977),
justifiably proceed
assumption
den
that the law of
399 Mich
could
on the
Michigan
Appeals.
aswas
stated
the Court of
In
Products,
270;
Gusler v Fairview Tubular
412 Mich
iii Chesapeake Kovacs v authority14 On the Co, that, supra, we would light hold in & O R of the Court the enactment of Act context as the having previously established failure to use law of this state common to reduce the may not be considered seat belts this damages for injured person’s recovery decisions, Court’s denial of leave to review those change for retroac appropriate to to tively provide the common law of this state to wear a seat occupant if a or rear-seat fails front- belt, to be awarded damages otherwise percent one hundred for accidents reduced 1, and, 1985, appear before it would July occurred opinion, from one hundred analysis lead before, on, that date a rear- percent after occupant. Kovacs, to to granted appeal this Court leave percent from five whether to increase consider percent as much as twelve the interest rate stated re- concerning standard jury instruction15 present After the cause was duction value. decision, en- argued, Legislature but before PA a providing acted 1986 that after verdict of a had been rendered trier fact favor obliged judgment the court to enter a plaintiff, was for all future economic and all future noneconomic value,” gross present cash damages "reduced meaning "the total which latter term is defined damages present amount of future reduced (see Taylor, supra opinions City v There were three Pittman 1). opinion signed by majority participating. See n No those (1976). Slotkin, Negri 244 NW2d *45 53.03. SJI2d Lowe v Estate Motors Ltd Separate Opinion by Levin, J. at per value a rate of for each year year 5% damages which those . . . .”16 accrue Kovacs, this Court said that "[although amendatory provision except not effective as to 1, 1986,[17] filed on or cases after October we con clude, action, in light legislative that no further given consideration should to the reduc tion present-value issue.”18 The Court also said: Legislature per "The thus has for the opted five cent rate.”19 Kovacs,
Thus, this Court effect that said Legislature opted because for had the five- percent 1, rate toas cases filed on or after October 1986, it would not have been appropriate for this to consider changing rule common-law Kovacs, cases, for such as that had been filed that before date. same view expressed regarding
The
another
Kovacs.
issue
Chesapeake
&
Railway
Ohio
Company
charge
had asked the
judge
sum of
any
money
plaintiff
awarded the
is not
subject
controlling
income tax. There were no
of this
decisions
Court or indeed of the Court of
not, however,
observed,
It had
Appeals.
this Court
the practice
charge
"been
the jury regarding
consequences.”20
income tax
Act 178 had not ex-
pressly
question,
dealt with
but
had dealt with
questions,
other
related
requiring the reduction of
a judgment
past
damages
economic
by
amount of collateral
payments.21
source
This Court
Legis-
said
circumstance
"[u]nder
27A.6306,
600.6306;
16 MCL
MSA
added
PA 178. *46 Mich by Separate Opinion Levin, J. a recently judgment lature has considered whether accruing the other benefits to should be reduced by that it not be appro- conclude would plaintiff, we question” for this to address the priate Court "to jury the be instructed reduce whether should the might the that otherwise award amount payable the amount that would be as plaintiff by damages by jury tax if the assessed the income to income tax.”22 subject were Kovacs in in the analysis suggests The case, Act having spoken the Legislature instant 1, speak question not to the this Court should to be damages injured whether the awarded failure use reduced because of a to person may be 1, no signifi- 1985. There is belts before July Kovacs the instant cant difference between case. In both Kovacs and this case there was a common-law rule announced well-established the by appellate adhered to courts consistently Kovacs, interest rate for this state: the present reduction to value was five purposes of and, case, the in the instant amount percent, injured damages person be awarded for failure to use a seat belt. shall not be reduced case, the Legisla- both Kovacs In and the instant rule. agreed ture with the common-law essentially adopted, the issue considered Legislature Kovacs, a five-percent rule of judge-made rate, procedure: different the court provided but a As award. to the rather than reduces the considered, Legislature, being issue here damages possible for a reduction providing exceeding occupant to be awarded front-seat adopted (ninety-five per- in the main percent, five cent) damages rule that to be judge-made not be injured person shall reduced awarded for failure to use seat belt.
22 Kovacs, supra, p 650. Lowe v Estate Motors Ltd Separate Opinion Levin, J. Kovacs, said, this Court could have in accor- opinion dance with the of the lead in the analysis case, preclude instant that Act 178 did not changing from concerning Court common law Rather, filed cases before October 1986. in Kovacs said in effect that not, it would decision, light of the legislative be appropriate this Court change the common law after Legislature spoken has and essentially adopted the common-law rule.
IV
We have
possible application
considered the
of
Hyde
Michigan
Univ of
Bd of Regents, 426 Mich
223;
(1986),
pressly statute, impliedly by constitution, or mandated or authorized ordinance, local charter or or other law. [MCL 691.1401(0; 3.996(101)(f).] MSA (4) grant immunity governmental This act does not a agency respect operation ownership hospital with to the or of a county facility agents employees or medical care or the or of hospital county such subsection: facility. or medical care As used (a) "County facility” medical care means that term as defined code, public in section 20104 the health Act No. 1978, being Michigan Public Acts of section 333.20104 of the Compiled Laws. (b) "Hospital” facility offering inpatient, overnight means a care, observation, diagnosis, and services for and active treat medical, surgical, obstetric, ment of an individual with a chronic, requiring daily or rehabilitative condition direction supervision physician. or hospital aof The term does not include a operated by department owned or the department mental health hospital operated by or a of corrections. [MCL 691.1407(4); 3.996(107)(4).] MSA Mich by Separate Opinion Levin, J. Legislature, Hyde, this said24that In enacting 175, "codified” "broad 1986 PA granted by immunity Co [v Ross Consumers Power (On Rehearing), 567; 363 NW2d 420 Mich exception” public (1984)],” a "narrow with a facility. hospital general county too, So, or medical ninety- Legislature here, codified over effect no-reduction-of-damages percent rule five promulgated in Roman- the Court of DeGraaf, Schmitzer, Selmo, Placek, kewiz, exception, permitting reduction not with a narrow damages exceeding percent for front-seat five occupants. Highland ruled in Parker v
This Court had
(1978),
Park,
After Ross was Act 175 was 1, 1986, July providing effective govern- tort act mental does not liability grant immunity respect with to the or ownership operation aof hospital or county medical facility.28 care
This Court in considered Hyde possible ap- plication of 1986 amendatory legislation on the question whether impliedly Ross overruled Parker and said: suggested arguments We plaintiffs’ Ross that Id., Legislature.
would be better addressed to the
p
Ross,
In response
enacted,
621.
27Id., p 231.
[28] See n 23. 29 Id., pp 245-246. *49 428 Mich by Separate Opinion Levin, J. Legislature, case, when the the
In instant suppose 1, the no enacted Act had reason no-reduction-of-damages that had rule common-law Selmo, Romankewiz, restated in been stated and might Schmitzer, Placek, DeGraaf, in effect be years by after the enact- this Court two overruled again noteworthy that this 1. It is ment Act those review decisions Court had declined by this further where review Court sought. Court had been Hyde, analysis Court this
Under the Court’s
Legis
change
rule
not
of1Parker after the
did
adopted
had
that rule because Parker
lature had
already
impliedly
overruled
Ross before
been
Legislature
Legislature, clearly
acted, and the
believing
impliedly
Par
that Ross had
overruled
implied overruling
making
accepted
ker,
only
operative
future
from and after a
Act
date,
Legislature,
July
1,
It
1986.
cannot be said here that
making
July
1985,
1 effective
Act
accepted
change
prior
rule
a
common-law
opinions in the
not occur until
does
years
announced,
two
instant
are
over
after
case
Legislature enacted
Act l.30
30Hyde
question
change
in the
dealt with
whether
also
given
prospective
full
common law
be
or limited retroactive or
should
given
holding
that Ross
"limited retroactive
effect.
should
effect,” this
that Ross
not overrule
and uncon
Court said
did
"clear
Rather,
Parker,
single
“[bjeginning
tradicted case law.”
with
no
addition,
adopted by majority
definition
the case law in
tion of decisions which have overruled
reconstrued
Tebo,
prospective
Complete
applica-
statutes.
tion has