Mary Vizzini, Administratrix of the Estate of Salvatore Vizzini, Deceased v. Ford Motor Company C/o C. T. Corp. System

(CommissionerO’Neal By the Commission result).

concurring in major Federal This

Note: decision affecting the significantly

action

quality of the human environment meaning

within the of the National Policy Act 1969.

Environmental

Mary VIZZINI, Administratrix of the Es- Vizzini, Deceased,

tate of Salvatore

FORD MOTOR COMPANY C. T. c/o System,

Corp. Appellant.

No. 76-2529. Appeals,

United States Court of

Third Circuit.

Argued Sept. Dec.

Decided Donohue, Pinto, Phil from his Philadelphia James J. suburban Joseph V. home to O’Donnell, Seabreeze, Dear Pa., Jersey, T. New Edward where the adelphia, family appellant; cottage. had vacation Mich., During Ford Motor the 28 or born, so Pa., Williams, preceding of hours his Philadelphia, death Vizzini had White short which naps during were taken counsel. Seabreeze, trip drive to a that approxi- took Schermer, Philip Liss, A. Phila- S. Oscar mately hours. Vizzini, Pa., appellee, Mary Ad- for delphia, Vizzini remained at this vacation home Viz- the Estate of Salvatore ministratrix for about hours before he left on his zini, deceased. IV2 During fatal ride. that time he drank three SEITZ, Judge, Chief GIB- Before and autopsy bottles of beer. The revealed a WEIS, Judges. and Circuit .168, BONS blood alcohol concentration of in ex- percentage required

cess for pre- a sumption intoxication under both Penn- OF OPINION THE COURT sylvania Jersey New and law. After drink- SEITZ, Judge. Chief ing beer, cottage Vizzini left the driving (“Ford”) diversity Defendant in this ac- pickup, the F-100 and shortly thereafter Pennsylvania’s tion under Wrongful Death was involved the accident in which he and appeals judgment Survival Statutes a died. There was no witness. The day of on jury’s based a verdict dry, clear, favor. accident was sunny, and v. Ford Motor the road Vizzini 72 F.R.D. 132 was free of hazards and obstruc- (E.D.Pa.1976). tions. wife,

Vizzini’s administratrix his es- tate, I. brought then against this action Ford. Her complaint alleged negligence in the FACTUAL BACKGROUND or, manufacture of the truck in the alterna- (Vizzini), tive, Vizzini late Salvatore husband that the truck was defective and un- in a plaintiff, died one-vehicleaccident at reasonably dangerous under a strict liability approximately p. 12:30 m. on Saturday, theory. She based her claim upon a defect September 1972. Vizzini was killed in the left front brake assembly that was impact when his Ford F-100 pickup during discovered post-accident inspections through skidded inter- truck “T”-type alleged truck. She a that self-ad- juster section of two rural roads near his vacation cable that brake assembly was Seabreeze, Jersey, home New and struck negligently defectively or assembled in that a tree. The skid marks on macadam it was not properly result, connected. aAs length, claimed, road were measured at 363 feet in she the left front brake shoe was straight nearly expand and were in a line. The compensate unable to wear, by were resulting marks left the tires on one set eventually in failure of the brake entirely of wheels. The marks were almost which in turn caused the accident. Plain- wrong alleged on the side of the road. When Vizzi- tiff also leakage there was found, protruding ni was he was from the brake fluid from the master cylinder, and up out of the win- leakage waist driver’s side door such contributed to the failure Although dow. the truck was equipped of truck’s brake. asserted that She belts, found, lap-type safety with when Viz- failure of the left front brake of her hus- wearing safety zini was not proximate belt. band’s truck was the cause of her husband’s death. job Vizzini had worked at his trou- as a Philadelphia ble-shooter for the Electric Co. The case first was tried to a day night acci- preceding liability. entire issue of expert gave Plaintiff’s e., dent, Friday, August 8:00 a. opinion i. from m. his the accident had been 31, straight through until a. 8:00 m. caused the failure of the Satur- truck’s front September day, experts 1. His son then drove him brakes. Her further testified that defectively was caused of his such failure death could expected have to receive self-adjuster system, aggra- manufactured yearly pay increases per year, of 3% fig- cylinder. the defective master vated ure the economist projected based on in- experts alleged testified that the de- Ford’s creases in national productivity. An actu- accident, could not have caused the fects ary testified for to the value of the argued proximate Ford the sole various fringe benefits Vizzini was receiv- accident was the cause of the ing part of his compensation package, to Vizzini himself. his expectancy, life and to the value of his services as a husband and father. The ac- jury’s special verdict was in the form tuary computed present value of Vizzi- interrogatories. of answers to six ni’s total lost earnings future using a 6% negligent have been in the found Ford to simple interest factor. truck, manufacture of the and that such proximate negligence was cause of the objected to various aspects plain- It found Vizzini to have been accident. tiff’s addition, evidence on well, negligent as and that his proof Ford’s offer of concerning non-usage proximate cause of the accident. was also of safety belts Vizzini rejected it found that the truck was defective And the court. The court also denied Ford’s point being unreasonably danger- to the request that it be allowed to demonstrate ous, proximate and that such defect was a impact of taxes on Vizzini’s future cause of thе accident. earnings. presented Ford no further evi- dence in rebuttal. The jury plain- A trial on the issue of was then awarded $421,000.00 tiff jury. hearing held the same After under the Pennsylvania before Act, $52,298.00 on plaintiff’s damages extensive evidence Survival and under claim, days Pennsylvania after two full Wrongful of delibera- Death Act. tion, agree was unable to on dam- to the court ages. In note ex- II. juror

plained agree that one was unable to FORD’S MOTION FOR JUDGMENT damage figure. with the others on a NON OBSTANTE VEREDICTO juror that note indicated one holdout compromised had his or earlier vote on her on appeal Ford seeks a reversal of the in order to achieve liability unanimity on district court’s refusal grant j.n.o.v. its verdict, but the first had done so the motion. The motion was based on the liability belief that verdict as rendered ground that the failed to introduce would result in a “draw” with no adequate evidence that the allegedly defec- against party. either Accordingly, assessed self-adjuster tive cable caused Vizzini’s ac- juror agree was unable to with the judge cident. The trial also had denied plain- others on the amount to be awarded Ford’s earlier motion for a directed verdict. tiff. Though he characterized causa- “very thin,” tion evidenсe as at F.R.D. ascertaining After deadlock was the trial did believe that suffi- insoluble, indeed the court declared a mis- cient evidence had been introduced to war- judg- Ford’s trial. It denied motions for rant question submission of the of causation liability ment n. o. v. and for a new trial on jury. damages, as well as and ordered a new trial

limited to the issue of under the deciding j. Before merits Ford’s strict claim. motion, n.o.v. we first must determine what guide standards are to this court in gauging damages, plaintiff At that second trial on alia, sufficiency evidence. feder- produced testimony, inter courts, income, commentators, al as well as the have expenses the deceased’s and em- split ployment history. put over whether federal or state stan- Plaintiff also an economist on the stand who testified that dards should control such determinations cases, employee position diversity Miller, an in Vizzini’s at the time see 9 Wright C. & A. (1971). fendant.” Practice & Procedure Kademenos v. Equitable Federal Life Assurance circuit, however, applying Society States, in cases United This 1073, 1074 F.2d (3d 1975); accord, Cir. Moy law, there has found to be “no Co., er v. Ford Motor 205 Pa.Super. followed in in the standard difference (1965). 209 A.2d the federal Pennsylvania courts quantum of “the courts” us urges Ford to reverse the district jury ques establish a necessary to j.n.o.v. court’s denial of its motion Kridler v. on the issue of causation.” tion ground failed to show suffi Co., 422 1183-84 & Motor F.2d Ford cient evidence prove causal connec court, therefore, 1970). (3d This alleged Cir. tion between the defect in the self- law, adjuster pro has applying Pennsylvania cable of truck’s left when front brake and the accident that killed Vizzini. distinguishing without between the ceeded course, Plaintiff, of even under a lia strict Pennsylvania approaches. See federal bility theory, prove not only must the exist Chemical Co. Union Carbide Neville ence of the but defect also that such defect 1205, 1211-12 (3d Corp., 422 F.2d Cir. proximate was a cause of the injury Neville Chemical v. Union Carbide Co. Drilling issue. Cornell Co. v. Motor Ford 1970), Corp., 422 F.2d 1205 Pa.Super. 359 A.2d j. characterized the standard which court argues expert upon Ford motions are evaluated under n.o.v. federal relied, whom plaintiff chiefly Pruyn, Mr. requiring we law “that ‘determine conclusory offered only a assertion cau whether, law, aas matter of the record is assertion, sation. argues, That critically quan- deficient of that minimum objective buttressed supporting no data jury which a might tum of from theory his that the weakness in the self-ad ” reаsonably afford relief.’ 422 F.2d at juster capable cable of causing brake 1211-12, omitted), (footnote quoting Denne- cable, failure. of similarly faulty No tests 433, Siegel, v. ny 407 F.2d or of the itself, ‍​​​​‌‌​‌‌​‌‌‌‌​​‌​‌‌​​‌​​‌‌​​‌​​‌‌‌​‌​‌​‌‌‌‌​‌‌​‍cable in Vizzini’s truck were court in Neville stated the The also Penn- run Mr. No Pruyn. treatises were cited sylvania standard: support theory, to his no authorities offered test, Pennsylvania as for the assertion an stated in that unconnected Smith cable similar to that Vizzini’s Pa., 134, in truck lead Telephone v. Bell of 397 Pa. could Co. to brake failure. (1959) 153 A.2d 477 was summarized in Denneny requiring “the trial [to] Moreover, argues Pruyn’s Ford that Mr. requirement as a determine minimum testimony was often inconsistent im- with prima plaintiff facie case whether the portant points plaintiff’s theory of the produced has ‘substantial evidence’ of case. pedal The brake reserve evi- and the having capacity braking ‘sufficient facts’ the dence of residual action in left the tire, front both Mr. supporting logical Pruyn conclusion.” noted in his [foot- post-accident inspection truck, of the were notes omitted] inconsistent with brake that failure v. Neville Chemical Co. Union Carbide plaintiff alleged Further, occurred. Ford’s Corp., supra, quoting F.2d own test movies showed that the skid marks Denneny Siegel, F.2d fоund at the scene the accident not were task, then, evaluating Our in Ford’s consistent with those that would expect- judgment for n.o.v. is the same motion ed to occur after front brake failure. Ford federal whether or standards points also to inconsistencies in the testimo- applied. are And since has the ny plaintiff’s witnesses concerning favor, jury’s in benefit verdict her in marks, number of that left wheels the skid reviewing the district court’s denial of and concerning alleged leakage from Ford’s motions “we must consider the evi cylinder. master And Ford that argues in the light plain dence most favorable to experts its own tests con- and demonstrated tiff, drawing all reasonable inferences clusively alleged that defect did against favor the de- cause the in which Vizzini and accident died. Co., on cross-examination of Ford’s witnesses v. Ford Motor Moyer relies self-adjuster relationship A.2d 43 Pa.Super. failure, cable failure to brake to bolster her (3d Cir. Siegel, Denneny case. plaintiffs assertion 1969) support its to insufficiently sup- testimony was

expert whole, Viewing the record as a jury question to create a facts by the ported plaintiff’s light most favorable Moyer, how- causation. issue of case, we as a matter of law that say cannot support evidence in ever, plaintiff’s “critically her case is deficient of that mini result- accident at issue theory that the his quantum mum of evidence from which a the front wheels “freezing up” of from a ed jury might reasonably afford relief.” Ne the “rather con- the court called what Co., supra, ville Chemical 422 F.2d at 1211- automobile mechan- testimony of an fused” plaintiff’s 12. Much of evidence is conflict nor examined the “had neither seen ic who ing. Some of her witnesses were confused. and who admitted automobile” damaged enough But evidence was introduced to sup for the ac- explanations several were there port plaintiff’s claim, provided causation 386-87, 209 A.2d Pa.Super. cident. chose to believe that evidence. produced had Moyer The defendant credibility plaintiff’s witnesses was had examined one of whom experts, two jury. necessary “It is not . testified that car, both of whom every point fact or circumstance unerr up. not frozen wheel had ingly liability;' enough it is that there be say sufficient facts for the reason plaintiff of- Denneny the Similarly, ably preponderance favors liabili experts prove two testimony of fered Pa., Bell ty.” Telephone Smith v. Co. of had bеen infection post-operative her 397 Pa. 153 A.2d in allow- hospital’s negligence by the caused deny j. It was therefore not error to Ford’s persons wear- operating room into the ing n.o.v. motion.1 plain- But one of clothing. ing unsterilized to determine unable experts had been tiff’s III. infection, while any cause that, had the infection acknowledged other FORD’S MOTION FOR A NEW TRIAL conditions, any by non-sterile been caused ALL AS TO ISSUES than the one al- factors other number of Ford seeks a reversal of the dis those might have created leged by plaintiff trict court’s denial of its motion for a new at 436. 407 F.2d conditions. alia, ground, trial on the inter that it was Here case is different. This inconsistent with the sound exercise of dis qualified testify adequately were experts judge cretion for the trial to limit in the testified to a defect experts. They as of damages. second trial below issue brake. of the left front adjuster cable court, 59(a) Under Fed.R.Civ.Pro. the trial leakage evidence of was credible discretion, There may grant in its sound limit the from that mas- shortly before the accident only portion a new trial a of those brake. controlling the left front cylinder ter litigated original proceeding, in the issues that the skid testimony Plaintiff introduced including damagеs only. the issue of 6A left of the accident were at the scene marks Federal Practice at 59-81 Moore’s 159.06 tires, supporting her rear thus (1973). grant The trial court’s decision to had not worked the front brake is court theory limited new trial reviewable this us, explanations offered when comes before as it She that decision properly. case, braking power in the left part appeal of some does in this of an from presence ' Moreover, Crusher, judgment. Springfield a final Inc. wheel after the accident. front Co., v. of the tests conducted Transcontinental Ins. plaintiff used some (3d 1967). itself, Cir. as well as admissions elicited by Ford foregoing grounds discussion that there was sufficient seeks a new trial on 1. Ford support jury’s weight jury’s against in the record to verdict was apparent verdict. it from We believe evidence. 760 review of an standard of order latter without confusion and uncer- tainty, which 59(a) “is a matter of would Fed.R.Civ.Pro. amount to a denial

under a fair is, trial. wise, subject no procedure federal Kramer, v. 314 practice.” to state Silverii 500, Id. at (citations 51 S.Ct. 515 omit- Accord, 407, 1963). 11 (3d Cir. C. F.2d 413 ted). Milier, Wright A. Federal Practice & & In the forty-six years since the decisionin (1973). 2802 And the standard Procedure § Products, judicial Gasoline limitation on whеther, viewing is apply we on review power grant partial new trials has whole, circumstances as was consistent retained its force. It has been read to exercise of discretion for the with the sound prevent limited new trials tangled where a judge trial to limit the new trial to the issue or complex fact situation would make it damages. Though the discretion of the unfair party to one to determine damages cases, judge is broad in such it is not trial apart from liability, 6A Moore’s Federal boundless. Practice at 59-89 or where 159.06 “there is reason to think that the verdict must, recognize, as we that a mo- may represent compromise among jurors

tion for new trial ... is ad- with different views on whether defendant dressed to the sound discretion of the was liable.” 11 Wright Miller, C. & A. judge ordinarily trial and its denial is not Federal Practice and Procedure 2814at 96 in the showing reviewable absence of a (1973)(footnotes omitted). exceptional circumstances such as an of discretion. . . . There abuse is This circuit has consistently observed the stricture of Gasoline meaning an abuse of discretion within the Products. For exam ple, this rule, required court has partial when the new action of the trial “ trials should granted ‘only in those clearly сontrary to reason and cases where it is plain that the error which justified by the evidence. crept has into one element of the verdict Crusher, Springfield Inc. v. Transcontinen- any way did not in affect the determination Co., 125,126 (3d tal Insurance 372 F.2d Cir. ” Baldwin, other issue.’ Romer v. 1967)(citations omitted). (3d 317 F.2d 1963), 922-23 Cir. quoting argues the issues of Thompson Camp, (6th 167 F.2d were so intertwined that it Cir.), denied, cert. U.S. S.Ct. improper to allow the second Accord, 93 L.Ed. g., e. Darbrow try damage only. issue The circum- McDade, 255 F.2d proper stances under which it is to limit a opinion The district court in Feinberg v. new trial to certain issues were set out Mathai, 60 (E.D.Pa.1973) F.R.D. 69 repre- Supreme Court in the venerable case of sents what we believe to ap- be a sound Co., Champlin Gasoline Products Inc. v. Re- proach in circumstances similar to those fining U.S. S.Ct. involved in appeal. In Feinberg, plain- L.Ed. 1188 That case resolved a tiff’s decedent had died in a crash between split among the by establishing circuits the defendant’s automobile and the motor- trials; propriety partial of new but it also cycle upon plaintiff’s which decedent was a qualified power to do so: passenger. bifurcated, The trial was with Where practice permits partial a damages separately tried from liability. trial, may properly new it not be resorted The trial original stated that his deci- clearly appears to unless it that the issue sion to bifurcate the trial was based on “the to be retried is so distinct and separable question close liability” of hope and the from the others that a trial of it alone that a verdict for liability on may injustice. be had without . might induce a settlement on damages. Id. question Here the of damages on the jury, at 70. The in answers to several counterclaim is so interwoven with that interrogatories, found both the defendant liability of the former cannot be and the driver motorcycle negligent. of the jury independently submitted to the of It plaintiff’s also found that decedent had injury. The court it is say the risk of difficult to that allowing assumed a not second liability verdict in jury molded a to determine the accordingly damages issue of isolation from the whole favor. circumstanc- plaintiff’s surrounding es injustice the case was not an trial, damages phase After to Ford. however, what the court jury returned The question is a close one. On this verdict as to insufficient “patently termed original record we think the jury’s failure then moved at 71. Plaintiff damages.” Id. agree damages on indicates that its delib- damages only, trial limited new erations on were affected any new trial argued while defendant liability issues in the ease. Here the liabili- extend to all issues. granted should ty presented by plaintiff, though analysis its from began trial court sufficient to warrant submission of the is- grant it could limit the premise jury, “very sue to the was thin.” Plaintiff’s requiring error trial if “the- a new expert witnesses were self-contradictory on the determina- not affected new trial [had] many points, strongly and were contradict- at 70. The other issue.” Id. any tion of experts many ed Ford’s on others. Sev- requirement of Romer noted court eral facts inconsistent with theo- Baldwin, new trials supra, partial were ry entirely explained case not the issue to granted “unless should not be Nevertheless, away. nine after hours of separate retried is distinct jury returned a deliberation verdict for one element of crept which has into error liability strict count. any way not in affect the verdict did hand, On the other the evidence on dam- any other verdict.” Id. determination ages sufficiently convincing support was close F.R.D. at 70. Given the nearly a substantial award. But after two to find ade- liability jury’s and the failure full days deliberation on —sub- strong evi- damages in the face of quate stantially longer than it toоk to decide the damages, the trial of substantial dence liability jury agree issue—the could on inter- “possible jury that the court found Feinberg, supra, an award. As in this indi- over testimony concerning liability wove jury’s cates that the deliberations on dam- with ele- damages, tainting the verdict into ages may have been influenced its views 71. It there- compromise.” Id. at ments liability. may indicate on Or it that the new on all issues. required fore trial jury responsibilities confused its in one or the court been satisfied But even had phases event, the trial. In either both jury that the did not take into consideration problems we believe that the that led ato compromise, an element of it nevertheless damages portion mistrial in the of the trial that a new trial was dictated. For if felt liability phase. also affected the compromise there were no The Fifth Circuit reached a similar result then there is little left but to conclude facts, analogous on overruling the trial disobeyed misunderstood or that the judge’s determination Hatfield v. Sea- given the instructions it. If that was the (5th Airline board RR case, then there is no reason to believe In that case the evidence of jury actually that the followed the court’s close, and the evidence of charge liability. reflected some extensive. record con- Id. among fusion the members of the of the case now In the circumstances finding contributory neg- the effect of a us, we conclude that the issue of event, before ligence. jury’s answers to separable damages is not “so distinct special interrogatories found the railroad liability] that a trial of it any from the the free from negligent, plaintiff [issue may injustice.” be had without Gaso contributory negligence. jury, alone The how- Co., Champlin Refining ever, only damages. line Products Inc. v. The awarded $1.00 Co., at judge request at 51 S.Ct. 515. We U.S. trial refused damages, reluctant to disturb the trial new and from are most limited trial on appealed. new trial. But judge’s ruling plaintiff on the limited that decision the for the Fifth Cir- Appeals The Court therefore reverse the decision of the scope of review of recognized that the cuit court, lower and order a new trial on the grant a new by a trial a refusal issue of liability Ford’s under the strict “necessarily narrow.” Id. at 723. trial was liability claim as well as on the issue of Nevertheless, it an abuse of discre- it found damages.2 have judge to denied a new tion for the of the case: trial in the circumstances IV. liability hotly was close and cоn-

issue tested; jury there was evidence of confu- issue; important an and after sion on FORD’S ASSIGNMENTS OF ERROR ON jury had awarded

lengthy deliberations THE ISSUE OF DAMAGES only the teeth of an “nominal Ford asserts that the trial court commit- showing of substantial uncontroverted dam- ted several errors the issue of ages.” Id. damages. provide To guidance for the trial Appeals directed a new trial Court court we will discuss those issues which the well as liability verdict district court decided and which probably held, damages, pointed “irrefutably will recur in a new trial. jury impropriety kind of which could some help but affect the verdict as a whole.” Id. A. unlikely jury, upon highly It Ford argues did not meet deliberation, proper found the first four her burden of proving the cost of her hus- interrogatories in accordance with the band’s maintenance. Under Wrongful instructions, then, in contra- court’s Death and Survival Acts bore the instructions, of those same refus- vention burden of showing the amount Vizzini ed, through misunderstanding either or spent in support of himself. Such amounts willfulness, through to assess the dam- not, course, did constitute part ages ensuing. contrary, On the nomi- her damage nal award can be seen losses as the after his death. Blackburn v. Aetna compromise result of either a on one of Freight Lines, Inc., (3d 368 F.2d 345 Cir. liability аttempt issues or as an 1966). render a verdict for with Seaboard Sea- Controlling Pennsylvania “only law re- paying board In costs. either event quires quantity that a reasonable of infor- necessarily misconduct contaminated ‍​​​​‌‌​‌‌​‌‌‌‌​​‌​‌‌​​‌​​‌‌​​‌​​‌‌‌​‌​‌​‌‌‌‌​‌‌​‍mation supplied by plaintiff must be so that verdict, precludes the entire a new the jury may fairly estimate the amount of damage trial on the issue alone. damages from the evidence.” Ashcraft v. (footnote omitted). Id. Co., Hussey C. G. 132-33, & 359 Pa. Our there decision must be a com- A.2d And as the court plete retrial is also consistent with the rea- Flock, noted in Smail v. 407 Pa. soning of those cases that have allowed a A.2d 59 the Pennsylvania Supreme damages only. new trial limited to In those consistently Court has held that the law cases, requiring the error a new trial was require proof “does not support relating peculiarly error an claims for or in support of only, portion of the trial one that did not compensation claims for must conform to implicate jury’s liability g., verdict. E. standard of mathematical Wagner Reading exactness. Co., Inc., Mix, In Western Show case, light disposition required jury’s ap- of our of this we do new trial is because of the parent assigning damage not reach Ford’s contention that the note to the error amounts judge concerning original jury’s separate trial dead- causes of action. We assume that competent compro- crept phase lock was evidence of error that into of the trial verdict, requiring by proper mise on a new will be corrected instruction of the trial. Nor do we reach Ford’s assertion that a at the new trial.

763 668, 215, 667, we held that income. Fringe 162 A. benefits such testi- Pa. as those a claim for dam- support by of fied to are properly part Mr. Goodfarb was sufficient ‘if it afforded a rea- ages case, damages portion plaintiff’s of calculating for the sonably States, fair basis’ Curry F.Supp. see v. United 338 loss.” plaintiffs (N.D.Cal.1971), agree 1219 and we it was to evaluate value of such jury 62, quoting 180 A.2d at Getz Pa. at 407 benefits, including any duplication whether l02, Freed, Pa. A.2d v. judge, of benefits trial how- occurred. omitted) (citations (1954) (emphasis 104-05 ever, jury care to instruct must take original). is duplication of not that allowable case, testified that plaintiff In this and that the should scrutinize the com- habitually kept for his own husband her damage ponents plaintiff’s of claim to in- out of his expenses approximately $50.00 sure no double occur. recoveries gave the rest weekly salary of $400.00 family adduced testi her for use. She C. alia, her concerning husband’s mony, inter personal his hab situation and employment objections We next consider Ford’s opportuni ample for had Ford its. Counsel concerning to the exclusion of evidence and other wit plaintiff to cross-examine ty impact income taxes on the lost future on such bring out He able to nesses. of plaintiff’s Pennsylva income decedent. set $350.00 that some of examination issue, law clear. nia controls this and it is may have family gone expenses for aside fixing is Pennsylvania The rule in that “in The evidence used Vizzini. items for of dece for determination was sufficient to allow thus capacity, the tax con earning dent’s income fairly amount estimate sequences the matter not be taken should it exactness “Certainly lacked mathematical into Girard Trust Corn Ex consideration.” detailed, fully far from or precise and was change Philadelphia Transportation Bank v. law it not Pennsylvania but under 530, 538, Pa. A.2d Blackburn v. should be.” essential States, See Frankel United Inc., Lines, 368 F.2d Freight Aetna (E.D.Pa.1970), aff’d F.Supp. 1348-49 1966). (3d Cir. issue, on this sub nom. without comment Frankel Heym, B. agree with the trial court We objects testimony Ford also Superior the brief Court comment aсtuary the value of certain Motel-Hotel, 233 Gallagher v. Four Winds his employ due Vizzini from fringe benefits Pa.Super. A.2d 394 is not to be testimony by introduced er. The could, if it altering, read as even the well- Goodfarb, actuary, Mr. her rule Pennsylvania established on this mat certain pay sick and insurance ben value ter. argues Ford those benefits had efits. already been accounted for Goodfarb in D. income, his forecast Vizzini’s future since Ford argues that the formula used would position worker in Vizzini’s be ex computing present value of pected days to receive either income for her damages is outdated. Plaintiff’s actu- for days or insurance benefits worked formula, ary simple used a 6% interest missed, but both. argues higher while interest rates the trial agree with compound interest are the norm. properly admitted. testimony that such requir ample opportunity to examine Mr. law is clear in Ford had testimony ing reducing to their present and to rebuttal “in Goodfarb present worth, comput prop elements are the interest must be of what simply per ed of six calculation of lost and at the lawful rate includable in the erly 764 Transportation Philadelphia appellate only.” Brodie

cent courts would view evidence con- 300, 296, 203 ., 415 Pa. A.2d cerning non-usage governed in a case Co actuary 657, (1964). Plaintiff’s liability strict principles. computing his method of in thus correct Pennsylvania bases its liability strict doc- losses, future plaintiff’s of worth present trine on (Second) Torts, the Restatement of is point on this without objection Ford’s 402A. Following § the Restatement’s rea- merit. soning, Pennsylvania recognize does not negligence defenses of contributory or com- E. parative negligence in cases tried under the trial court erred Ford contends example, 402A. For in McCown v. Inter- offer of evidence rejecting its national 13, Harvester Pa. 342 A.2d non-usage of of seat belts consequences (1975), sought defendant to intro- damages phase During of by Vizzini. duce of plaintiff’s negligent driv- below, Ford asked be al- the trials ing as a defense to liability strict expert way testimony of prove lowed to claim. negligence The evidence of was of- wearing a lap-type been that had Vizzini fered both to liability defeat under injuries, have been would far safety belt his liability strict claim and to reduce damages were. they actually than There less severe equal an amount to the plaintiff’s lack of record that the already was evidence due care. belts, and equipped truck was with such wearing not a belt at that Vizzini had been Jones, Chief writing Justice for a unani- body was discovered. time his Court, mous Pennsylvania Supreme reject- ed defendant’s both grounds. evidence on proffered on non-us- this evidence To admit contributory such evidence of neg- age solely attempt in an to reduce ligence as liability a defense to the strict judge, noting The trial that there seemed to claim, reasoned, the Court would be to “de- point, be no Pennsylvania precedents feat one acceptance theoretical basis for our rejected grounds the offer on the that such by contradicting Section 402A” evidence made the the con- determination dam- ages conjectural, expectation too sumer’s “normal product since the would 16-17, have to safety.” determine what the extent at Id. 342 A.2d at 382. The injuries nature of Vizzini’s have would been Court said that argument defendant’s had he suffered some harm lesser as a re- that the evidence of negligence should serve wearing sult of a belt. court also not- reduce create a system “would ed that evidence of non-use was “akin to a of comparative of damages assessment claim contributory negligence, which is 402A actions” unknown to Pennsylvania not a liability casе,” defense in a strict 72 law. Such a comparative doctrine of negli- 139, rejected F.R.D. at the evidence for gence, continued, the Court would be “un- well. reason as wise to embrace ... the context of an appeal involving Section 402A.” Id. Pennsylvania’s appellate have courts not 16, (footnote 342 A.2d at 382 omitted). yet propriety considered the “seat- footnote, In a defense,” the Court added belt either liability in strict cases “[t]o initially apply theory comparative or in negligence neg- more traditional actions. ligence area The new trial here will to an of the law be limited to the in which liability liability premised and extent Ford’s un- on negligence only. der the particularly strict claim There- seems inappropriate.” Id. at n. predict 3, fore Pennsylvania’s we must how at 382 n. A.2d 3.3 Pennsylvania recently adopted comparative applied prospectively that it “to be rather statute, No. retrospectively”. Pa.Laws than Id at 363 A.2d at (Purdon Therefore, Pa.Stat.Ann. tit. §§ even if statute could Supp. 1977). September 9, interpreted Act took effect apply liability, in strict actions Lair, Pa.Super. and in Costa apply it does not here. Vizzini was killed Superior 363 A.2d 1313 Court held tort of the believе that evidence defendant. few We therefore Some courts admitted in Penn non-usage cannot be have the rule extended of avoidable conse- theory of com any general under quences sylvania encompass negli- antecedent argues, also negligence. Ford parative gence plaintiff, though many others however, is admissible that the evidence have refused to do so.4 Prosser on See of avoidable conse the doctrine under 423-24; Comment, Torts 65 at The Seat § plaintiff’s failure to miti prove quences Defense, (1974). Belt 19 N.Y.L.F. 672 And rule in Penn general The gate Torts, (Second) the though Restatement plaintiff may is that a as elsewhere sylvania it confines the rule of avoidable conse- resulting from the for harm not recover quences per negligence se to after the com- act or omission that wrongful defendant’s injury, recognizes mission of the could have avoided. plaintiff reasonably the “apportionment may some cases also be reasonably could argues Vizzini negligence made where the antecedent injuries by buckling his have avoided severe plaintiff the is found not to contribute in belt, the fact the notwithstanding seat any way original injury, to the accident or have caused his originally may defect cable contributing but to be a substantial factor to fail. Ford contends that truck’s brakes harm increasing the which ensues.” Re- for caused it should not be liable statement of Torts comment Second § wear the belt. only by that failure to 433A, c at 511 id.Cf. comment f § consequences rule of avoidable tradi- at 438. plain- where tionally applied only has been courts, Pennsylvania’s appellate however, mitigate damages by has failed to some tiff have not considered whether to extend original injury after the had act or omission mitigate damages to en plaintiff’s duty to injured by the already occurred. “[0]ne compass negligent prior acts to the occur another is not entitled to recover tort of injury they rence of the at issue. Nor have damages for such harm as he could have vel non of applicability considered the effort or avoided the use of reasonable lia consequences rule of avoidable strict after the commission of the expenditure Rather, bility Pennsylvania cases. deci (Second) Torts, Restatement tort." applied only sions have the rule in tort cases 19, 1973) 918(1) (Tent. (empha- Draft No. § negligence premised where the suit was added). Restatement of Torts sis See principles where conduct after 918(1) (1939). negligence prior Plaintiff’s § injury occurrence of the was involved. E. injury to the injury that contributes (1871) g., Morgan, 68 Pa. 168 Chamberlin in terms of generally has been addressed (failure injury); to seek medical aid after negligence. contributory comparative 518, 144 (1928) 294 Pa. A. 529 Kay, Gervis McCormick, of the Law of Handbook C. (failure price after to sell stock at favorable (hereinafter Damages (1935) McCor- § brokerage contract breach defendant of Prosser, Damages); W. Handbook mick sell); Ferguson, James v. 401 Pa. (4th 1971) the Law of Torts ed. § (1960) (failure A.2d 690 to seek medical aid Torts). (hereinafter Prosser on injury). after case, negligence that Ford whether, predict We therefore first must against asserts occurred before liability princi- in a case based on strict injury. We thus do not face the tradi- 402A, ples of which the rule courts tional situation in of avoida- consequences applied has been as we would extend the rule of avoidable conse- ble would, quences encompass example, plaintiff’s had failed to antecedent being injured negligence.5 seek medical aid after McKenna, place (1878) and thе trial took late 1975 and 5. Gould v. 86 Pa. 297 has early proposition Pennsylva been cited for the consequences nia’s avoidable compass does en doctrine plaintiffs negligence. antecedent

4. See note 6 infra. Lowery Trucking Pritts v. Walter consequences is of avoidable volve fault for causing original rule injury, contributory to the doctrine of akin

closely corresponding no bar to recovery total de- legal impli- Both describe the negligence. veloped. acts. Both plaintiff’s negligent cations cases, In the “avoidance consequence” policy of conservation of are based damage initial logically cannot the same upon And rest

resources. “[b]oth charged own policy making recovery de- fundamental cause, as a while the damages may later upon plaintiff’s proper care pend made, no such be. If division can be of his own Prosser on protection interests.” plaintiff’s negligence will bar all recov- at 423. 65§ Torts ery, notwithstanding that subsequent it is that, concepts two differ in as tradi- of point time to that of the defendant. negligence tionally applied, contributory (footnote omitted.) at Id. See § injury ‍​​​​‌‌​‌‌​‌‌‌‌​​‌​‌‌​​‌​​‌‌​​‌​​‌‌‌​‌​‌​‌‌‌‌​‌‌​‍play into before the occurs. comes 127-130; Damages McCormick on 33 at § consequences play into at Avoidable “comes Ford Motor Co. v. Light Dallas Power & stage the has al- a later defendant [after] Co., (5th 499 F.2d 1974); 414-15 Cir. wrong.” committed an ready actionable Steamship Alcoa Co. Ferran Charles & at Damages on 128-29. McCormick § (5th 383 F.2d so, say McCormick went on to Even consequences To extend avoidable may be a mere matter of “this distinction proportionate rule to for recovery plain- bar different labels for sides of the using two prior tiff’s acts of negligence shifts the Similarly, Id. at 129. same bottle.” Pros- away focus from the question plaintiff’s of suggested “that the doctrines of contrib- ser aggravation of an existing injury to the negligence conse- utory avoidable plaintiff’s to contribution quences reality are in the same.” Prosser original Thus, cause of that injury. on 65 at § Torts inquiry essentially becomes one into the The two doctrines do differ in contributory negligence plaintiff. finding contributory negli A effect. Whether labelled an extension of “avoida- gence complete recovery. is a bar to Fail consequences” ble or an “apportionment of mitigate damages, hand, on other ure to to damages,” reduce recovery in an amount only proportionate in a results reduction in equal plaintiff’s negligence antecedent plaintiff’s damages. This distinction is comparative to apply negligence standards more in grounded the different times that in the assessment of damages. play each doctrine comes into than it is in We believe that McCown v. International between types negli difference Co., supra, Harvester is evidence that Penn- gent Contributory negli- acts involved. sylvania’s courts would not allow the intro- gence plaintiff’s negligence focuses on be- duction such comparative negligence injury, fore the and so on the cause of the principles into a 402A case in plaintiff’s § Where this manner. injury. negligence is held In McCown the contributing injury to be cause of the defendant-manufacturer defect, recovery argued is denied admitted but entirely, part at least in damages ought law to be by because traditional common re- reduced an amount apportion equal negligence driving luctance fault. Prosser on prior 65 at recklessly Torts 416-418. But to the § the avoidable accident. In this consequences rule similarly does not focus on the case Ford plain- seeks to reduсe injury. cause of the It the negli- focuses on tiff’s for neg- Vizzini’s antecedent aggravates already gence existing ligence. an believe the negligence courts, Since that does not injury. they McCown, in- did in reject as would F.Supp. (W.D.Pa.1975); Prosser on consequences: recovery ble it denied injuries Torts and Pritts Gould § 65 at 424 n. 75. he sustained as a result of his own only negligence pre- independent negligence, injuries sounded are not so he would have Moreover, cisely relevant even had issue here. suffered been defendant not himself clearly independently Gould negligent. was not concerned with avoida- also 86 Pa. actions. premised in cases Nor need we reach improper the difficult such principles.6 question, controversial not yet 402A decided on § by Pennsylvania’s courts, of whether and McCown distin not believe We do under what circumstances failure to that the ground guishable wear may negli- a seat belt be considered con against asserted there Thus, gence. we also do not decide whether accident, while that cause of the cerned the the admission of non-usage evidence of the cause of goes asserted here seat belts makes the determination of dam- legаl cause” is injury. “Proximate ages undertaking. too an speculative Fi- assigns which the law of acts to description nally, express opinion proprie- we no harm suffered responsibility ty extending Pennsylvania’s avoidable (Second) Torts Restatement plaintiff. consequences encompass plaintiff’s rules to rigid term con seq. et It is not §§ prior negligence in not premised cases of mechani only to the determination fined principles.7 402A it is a flexible and effect. Rather cal cause the varied designed to effectuate concept reported other decision we have whom the law holds that determine policies been able to find evidence of plaintiff. for harm suffered liable non-usage of seat belts in a strict position. case is in accord with our In Horn policy it clear that the McCown makes 359, v. Corp., General Motors 17 Cal.3d 131 served, alleged best once 402A is § 78, Cal.Rptr. (1976), 551 P.2d 398 the Cali- proxi- have been the is determined to defect rejected Supreme fornia Court evidence of foreclosing injury, by cause mate non-usage grounds on the to allow it contributing negligence of into the inquiry contributory would introduce elements of course, injury. Of prior comparative nеgligence that had no prove must liability in a strict case place in strict cases. The Court defect, and that existence of the specifically rejected the defendant’s at- injury. cause of the proximate was a defect tempt to have the evidence admitted for the negli- alleged that the acts of possible It is purpose reducing damages only: limited of part plaintiff prior to the gence cognate prof- claim that Defendant’s in that determi- injury should be considered prove fered evidence was relevant to cause, v. In- proximate McCown nation of plaintiff’s damages some of could have 17, Harvester, supra, 463 Pa. at ternational action on her been avoided reasonable J., (Pomeroy, concurring), 383 342 A.2d at word formu- part again merely is another is not before us. but that inadmissible claim of lation of same the effects of Viz The evidence of contributory negligence. safety wear his belt was failure to zini’s 370, 84, Cal.Rptr. Id. at at 551 P.2d at 131 empha below. We excluded properly thus we do not determine holding in so size that Pennsylvania courts of the traditional believe applicability vel non (cid:127)the non-usage consequences reject to 402A would evidence of avoidable § rule Sophistry, Exercise in 18 Hast. courts have refused to extend Defense —An 6. Several other consequences plaintiffs (1967). to L.J. the rule of avoidable negligence, apportion prior or to dam- acts theory. ages any opinion Several of these express on similar 7. We therefore do not evidence, g., e. have involved seat belt cases the decision of the district court in Pritts v. Miller, Lowery F.Supp. 160 S.E.2d 65 Trucking Miller v. 273 N.C. Walter Diamiani, (1968); Lipscomb A.2d (W.D.Pa.1975), Pennsylvania’s in which avoid- Frush, (Del.Super.Ct.1967); Rogers consequences see able extended to al- rule was so (1970) (rule avoidable non-usage 262 A.2d 549 Md. low evidence of in a ac- recovery portion consequences supra. Pennsylvania’s not a bar to for tion. See note 5 new motorcyclist’s injuries may because of comparative negligence sustained well obvi- statute Comment, helmet). to wear See failure ate the need so to alter the traditional avoida- Defense, nn. consequences many 19 N.Y.L.F. 679 & Seat Belt rules in cases. See ble Kleist, Seat Belt supra. 22-23 See also note 3 a by plaintiff approach in case tried such issues.8 But of seat belts we believe of the Restatement that a recеnt decision of the principles Pennsylvania under the Court, 402A, Superior Tonner, even for the Havens v. (Second) of Torts 243 Pa. Super. 365 A.2d 1271 reducing pet. Such purpose limited denied, allocatur No. 692 properly (Pa.Supreme excluded therefore evidence Court, 11, 1977), July evidence is below. thinking courts on this F. point. Havens, contends that district

Ford next the Pennsylvania Superior allowing plaintiff to intro erred in court Court held that evidence pro- of increased growth a yearly evidence of 3% ductivity, “simply duce a substitute for in- purpose productivity equally speculative national flation and and inadmis- wages her showing that husband’s could sible earnings,” in a calculation of future id. to have increased expected have been at at 365 A.2d 1274. The Court went per year years approximately 3% say Adams, Dr. an his death. F. G. econo after [a]ny estimate of earnings future over

mist, led him testified that his studies period substantial of years based upon growth produc in national project yearly predictions economic necessarily ex- 3%, tivity of that he believed a worker speculative tremely in nature. Much expected position Vizzini’s could be satisfactory more is evidence of the earn- growth rate. have shared in ing potential ques- of the individual objected, testimony was im arguing tion. proper simply because was method of Pa.Super. 365 A.2d at 1275. judge inflation. The trial accounting for Thus, productivity increased citing testimony, admitted the decisions of should not admitted at new trial.9 this court which trial believed CONCLUSION approved proper evidence a such where foundation been laid. He believed such had judgment The the district court on the appeared a foundation ‍​​​​‌‌​‌‌​‌‌‌‌​​‌​‌‌​​‌​​‌‌​​‌​​‌‌‌​‌​‌​‌‌‌‌​‌‌​‍in this case. 72 products liability claim will be vacated and F.R.D. at 137-38. the matter remanded for a new trial in opinion. manner consistent with this

We believe law controls on Supreme this issue. of Pennsyl- Court WEIS, Judge, concurring Circuit and dis- vania yet has not considered whether or in senting: what manner inflation or productivity in- may creases accounted in damage agreement be I majority am in with the changing E, awards. This is difficult and opinion, except affirming as to IV Part law, area of the and the various state and on nonusage exclusion evidence agreed not on the proper federal courts are the seat belt. thorough up-to-date analysis questioned event, any For its value. we believe varying approaches Magill of the Federаl Courts of both Hoffman and now must be read Note, Appeals problem, to this see Future restrictively light Infía- in of the decision of the Penn- tion, Damages, Prospective and the Circuit sylvania Superior Court in Havens. Nor do we Courts, 63 105 Va.L.Rev. Rispo Freight Express, believe v. Motor 74 (Phila.), Pa.D. & C.2d aff’d. mem. 236 Pa.Su- court, admitting productivity 9. The in trial per. 718, (1975), pet. 347 A.2d 724 for allocatur evidence, that, cited decisions of this court al- (Pa.Sup.Ct., 1976), requires denied March though they rejected such in the cir- Rispo such evidence be admitted. in- cases, given open cumstances of the left judge volved a decision a trial rendered possibility might such evidence be admis- prior Superior to the Court decision Havens. upon laying proper sible of a foundation. And, event, Rispo defendant failed Co., Sterling Drug (3d Hoffman v. timely object pro- to the introduction of the 1973); Magill Westinghouse Corp., Cir. Elec. evidence, ductivity point waived so agree 464 F.2d Ford here asserts. completely neither of those decisions ruled out strongly such evidence. But both decisions present impact, tors which caused the prepared was collision or

The defendant would decedent testimony that the similar event and uses the relative expert degree wearing had he been been killed not have of fault reduce the damages. Mitigation truck. The trial in the seat belt apportionment or damages and avoidable not be sub- evidence should ruled that hand, consequences, the other are direct- Thus, the fact finder jury. mitted (or activity nonaction) ed toward having a consider opportunity denied .to bearing direct on the extent of injury but truck defect in the alleged whether not on the conduct causing the litigated have or whether it would the death caused event. physical harm some lesser brought about In McCown v. International Harvester the belt which fastened the decedent had Pa. A.2d 381 available. readily Pennsylvania Supreme Court held that the use the belt did failure to The decedent’s driving careless could not be used bring about the collision any way as a contributory negligence defense to de therefore, that its agree, I the tree. with fendant’s for manufacturing a dan contributory neg- constitute did not nonuse truck, gerously defective nor could it be the risk and there- assumption of ligence or damages. plain used to reduce Since the the determination of not affect fore should were tiff’s actions connected with the hap Howevеr, testimony, if ac- liability. collision, pening they were relevant relevant to the jury, would be cepted the matter of responsibility I recoverable. believe amount accident—not sustained.2 The this evidence. to exclude it is erroneous case, therefore, is not inconsistent with a indicates, there is majority opinion As the damage approach. diminution question- the courts on this split among monetary result reached appor- as wide as the continent might say one the diminution of tioning damages may York allows be the same itself. New as in defense, Barker, Spier v. application comparative negligence but 323 N.E.2d 363 N.Y.S.2d N.Y.2d leading there the factors must be distin- not, does Horn v. (1974),and California illustration, By way may guished. Genera] Corp., 17 Motors Cal.3d helpful to examine the results which could (1976). Scholarly Cal.Rptr. 551 P.2d 398 occur in a routine intersection accident case also divided.1 commentary is applies comparative negli- which in a state apportionment and also gence of dam- apportionment Mitigation A might well determine driver juryA concepts than contributo- ages are different percent failing at fault for to ob- was ten comparative negligence. Contributo- ry or gоing past stop sign, B a and serve driver from lia- negligence frees the defendant ry wearing if A had been a also that driver damages. responsibility for bility and all belt, have been damages his would appraises the fac- seat Comparative negligence (1977). 119 3 Hofstra L.Rev. 883 Although exten- Tenn.L.Rev. the literature is somewhat 1. Barker, supra). (1975) (concerning Spier sive, following listing representative, is Kircher, though complete: The Seat Belt not Law, Marq.L.Rev. justifies 172 philosophy of the 53 Defense —State which re- Whether Kleist, (1970); contributory negligence Ex- The Seat Belt Defense —An as a defense moval of (1966); Hastings Sophistry, L.J. 613 ercise 402A action should also bar reduction of to a Injury, Snyder, negligence damages comparative Belt as a Cause of The Seat stat- under a Note, (1970); Analy- Marq.L.Rev. hotly A Basic is controverted. ute is an issue which Defense, Schwartz, Comparative Negligence 34 Alb.L.Rev. 593 the Seat Belt sis of See V.E. Note, Legislative (1970); dispute the Seat Enactment of arises 4.6 at 97-98 Often § Note, Defense, (1973); distinguish 58 Iowa L.Rev. 730 Belt between liabili- because of failure to observes, Contributory Negligence, majority 12' ty damages. Belts and Seat and As the Note, (1967); negligence Pennsylvania comparative The Seat Belt S.D.L.Rev. since thе Escape, Temp.L.Q. Sophist’s the acci- Defense —The at the time statute was not in effect Comment, (1967); occurred, The Seat Belt De- and not reach that we do dent in this case Policy, 44 question. of Public Valid Instrument fense —A actually sus- consequences than those doctrine avoidable less is an percent twenty applied then be would Both factors application tained. of the rule. Because avoidable Because recoverable. the amount to reduce consequences applies to actions taken after com- reached under can be same result impact, it has been inapplica- said to be over without concern negligence parative ble to the seat belt defense. That distinc- lia- goes conduct whether the observed, always tion has not been how- tendency to there is a damages, or bility ever,4 and controlling should not be in this them. line between blur Simply case. because the pigeon- correct damages legal theory are hole for the is not liability immediately and concepts The There has kept apparent so. does not mean that critical evi- and must distinct law suggestion disregarded. no been denсe should be Its relevance damages in the same law of apply not does apparent. is The test should be not when Log- actions. negligence cases as in 402A challenged activity nonactivity § or took responsibility just is as much ically, there rather, place; the focus should be whether medical assist- injured person to seek on an played part producing the event or leg resulting a broken from ance for totally unrelated to that event and dangerously 402A caused § collision injury. inquiry affected as one inflicted defective automobile chronological, should not be but causal. Apportionment car. as negligently driven Corp., supra, Horn v. General Motors is mitigation damages should be well as persuasive not because it does not distin- The thrust of 402A is equally applicable. § guish activity liability related to and that liability. It establishing toward directed going only The opinion simply the traditional purport change does equates diminution of and contrib- applied law of which is to be once utory negligence recognition without view, my In liability has been determined. Barker, Spier differences between them. damages is to be apportionment whether hand, supra, analyzes on the other the mat- liability was applied does not turn on how length adopts ter some and the chrono- in strict apply determined. The rule should logical approach. causal the analy- See liability negligence as well cases. as Spier (1975).5 sis of in 3 Hofstra L.Rev. 883 (Second) pro- Restatement of Torts § underlying theory strict apportionment vides for when to make it easier to shift the loss caused plaintiff’s conduct was a factor in the product explains harm3 and comment a defective to the manufacturer f Braun, (Second) liability), states § Restatement of Torts 433A and Bentzler v. 34 Wis.2d “[djamages apportioned (1967) (evidence for harm are to be 149 N.W.2d 639-40 among (a) nonusage duty or where are two more causes there admissible since common law addition, harms . ordinary requires usage), distinct . . care seat belt Sams, comment c states: Sams v. 247 S.C. 148 S.E.2d 154 (1966) apportionment may plaintiffs (granting made “Such also be motion to strike seat plain- erroneous), where the antecedent belt defense held with Fischer v. any way Moore, (1973) (en tiff is found not to contribute in 183 Colo. 517 P.2d 458 injury, original banc) to be a (adoption rejected accident or but of seat belt defense increasing contributing substantial factor being legislature), King а matter Co., the harm which ensues.” Wong Son v. Carnation 509 S.W.2d 385 Prosser, See also W. Law of Torts 65 at (Tex.Civ.App.1974) (seat rejected belt evidence (4th ed. ground mitigation damages has no application to a conduct which ante- (1975). 4. See L.Rev. 3 Hofstra negligence), Lipscomb dated defendant’s and Many Diamiani, 1967) (seat (Del. Super. considered the “seat 5. state courts have 226 A.2d 914 have rejected being proper belt defense” and their determinations belt defense matter Compare, g., e. Mount v. legislature). been inconsistent. See also Derheim v. N. McClellan, Ill.App.2d 234 N.E.2d 329 Fiorito 80 Wash.2d 492 P.2d (1968) (seat admissible on issue belt evidence (1972) (en banc); Symposium: 1034 n.2 relationship damages where there is a causal Practice, Marq.L.Rev. Seat Belt Defense in injuries failure to use between sustained and 172-225, apps. A & B at 226-28 belts, determining seat but not admissible for course, and, ultimately to his customers. here. The nonuse of the seat belt was a justification in questionable But there is factor which had no causal relationship to price with increases saddling customers impact injuries but to the received mini- the failure of to caused thereafter. proven with the use of

mize persuaded I am not objection safety devices. practical acceptancе testimony by of seat belt a jury which protective belt is a device The seat speculation will require on the proper regulations to be required by federal amount of It is naive indeed to every on manufacture of automo- installed say permit juries that the law does not to statistical studies show Impressive bile. speculate on damages daily when they are severity inju- that belts do reduce the asked to determine the pain value of future years for some there has been an ries and suffering. There things are few more advertising campaign urging extensive uncertain in this world length than the of a Penalizing nonuse to the extent their use. ‍​​​​‌‌​‌‌​‌‌‌‌​​‌​‌‌​​‌​​‌‌​​‌​​‌‌‌​‌​‌​‌‌‌‌​‌‌​‍life, particular person’s yet juries regularly injury would be an added incen- enhanced Indeed, determine in death cases. advantage proven safety tive to take very in this case that problem was sub- jury con- deny right feature. To jury. Damage apportionment mitted to the contrary sider evidence of this nature is to in a seat belt case would not be more con- policy requiring the national installation of jectural. encouraging their use. The seat belts permitted should have been who doubt the value of arguments of those consider the evidence of seat belts as bear- presented belts should be seat ing mitigation of damages. I would to exclude the evidence initial- and not used place the prove burden on the defendant to

ly- mitigation the elements of but would not Levin, In Huddel v. the jury considering bar from this valuable 1976), required predict we were how the evidence. Jersey Supreme Court would react to New for enhance-

a novel gener-

ment of in tort actions. In

al, Jersey law on strict liability New is not

significantly different from that of Penn-

sylvania, perti- at least insofar as the issues concerned, are nent to this case and hence America, UNITED Appellee, STATES helpful the rationale of that case is here. Huddel, the defendant driver negligently Joseph MURPHY, William Appellant. drove his automobile into the rear of dece- causing dent’s car decedent to be thrown No. 77-1162. against a defective headrest. We held that United States Court of Appeals, the manufacturer of the headrest was liable Third Circuit. only to the extent that device en- injuries original hanced received in the Argued Dec. 1977. impact. distinguished between the cir- Decided Jan. cumstance where the actions of tortfeasors April Certiorari Denied contemporaneously produce combine See S.Ct. 1588. single impact and the situation inju- where ries were caused a defective accessory original

within the car after the impact had reasoning

occurred. That same applies Comment, e.g., 6. See Policy, The Seat Belt Defense —A Valid Instrument of Public 44 Tenn.L. Rev. 120-21

Case Details

Case Name: Mary Vizzini, Administratrix of the Estate of Salvatore Vizzini, Deceased v. Ford Motor Company C/o C. T. Corp. System

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 16, 1977

Citation: 569 F.2d 754

Docket Number: 76-2529

Court Abbreviation: 3rd Cir.