WRIGHT V. NORFOLK AND WESTERN RAILROAD CO.

FACTS: The plaintiff was injured at a crossroad between the street and the defendant’s railroad
track. Plaintiff was an experienced truck driver who drove truck across RR tracks, he had driven
across the railroad nine times before, he also lived less than a mile to the train, and he was well
familiar with the track hit by train. Train had an advance warning signs painted in yellow but no
other warning devices, or traffic control in place. Plaintiff was known to turn his A/C, radio, and
CB radio on when driving. On this particular day the plaintiff didn’t hear the train.
The plaintiff filed a negligence action, the jury returned verdict for the plaintiff for $4
million but sustaining a post trial motion, the trial court set the verdict aside and awarded
judgment for the defendant. Plaintiff appealed

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

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

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

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

MCINTYRE V. BALENTINE
FACTS: The plaintiff was coming out of a truck stop traveling south when he was struck by the
defendant’s tractor also traveling south. Both men had consumed alcohol prior to the accident.
Plaintiff’s blood alcohol level was measured at .17 percent by weight and also evidenced
suggests the defendant had been travelling in excess of the posted speed limit.
Plaintiff filed a negligence suit and defendant answered the plaintiff was contributorally
negligence also because he drove his vehicle while intoxicated. The jury found the plaintiff and
defendant both equally at fault in the accident; and rule in favor of the defendant. Plaintiff
appealed claiming the court held by refusing to give the comparative negligence instruction.

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

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

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

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

DOBSON V. LOIUSIANA POWER AND LIGHT COMPANY

FACTS: The plaintiff’s decedent was electrocuted when the metallically reinforced safety rope
he was using came in contact with the defendant’s uninsulated 8,000 volt electric power
distribution line.
The trial court found in favor of the plaintiff and awarded them $1, 034,054.50 in
damages claiming the defendant was negligence for failure to insulate its high voltage power
lines or give adequate warnings regarding its dangerous nature. The Court of Appeals also
affirmed the defendant’s negligence but reversed in part, reducing the plaintiff’s recovery by
70% based on its finding that the decedent was at fault to a certain degree.

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

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

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

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

JENSEN V. INTERMOUNTAIN HEALTH CARE, INC

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

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

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

APPLICATION: Here, the unit rule that needs to be followed is one that allows the plaintiff’s
negligent to be measured against all negligence of the defendant not the Wisconsin rule that
allows the negligence of each defendant to be compared against that of the plaintiff’s negligence.
Under the Wisconsin rule, there are several defects to that rule; first, negligence of both the
defendant and the plaintiff when added up need to total 100 percent. Following the Wisconsin
rule would allowed the plaintiff’s 46 percent be compared to that of the defendant 36 percent and
the doctor’s 18 percent. Under the Wisconsin rule, the plaintiff’s negligent is used twice against
the defendant totaling 92 percent and the defendant added up totals 54 percent. The total
percentage of negligence in this case combined will equal 146 percent. Second, in a case where
there are two defendants (3313) with equal amount of negligence as the plaintiff (3313) the
plaintiff will be barred from recovery. Third, if there are two defendants who produced the injury
but one defendant was responsible for the larger portion of the injury, the plaintiff will recover a
larger share. Either way under the Wisconsin rule, the more likely that there are more defendants
the less likely the plaintiff will be able to recover. Utah comparative negligence requires
negligence of each D in a multi-D case to be compared individually against P’s negligence.

CONCLUSION: Therefore, the UCNA emphasize person or persons depending on whether it is

a single-defendant or a multi-defendant case as plural to compare the total negligence of all
defendants to that of the plaintiff’s negligent.
COLEMAN V. HINES

FACTS:
• Defendant was drinking prior to stopping by plaintiff’s decedent place of
employment
• Decedent’s employer stated decedent knew defendant had been drinking prior to
see her and decedent also stated they had planned later that night to drink on their
way to an engagement during the party and after the party
• Decedent’s employer begged decedent not to ride with the defendant and had also
offered to pick defendant and decedent up after the party and rive them home
• Defendant and decedent later that night went to a store and bought beer, and
drank it in the presence of each other
• The only alcohol defendant drank that night was in the presence of the decedent
• According to the treating physician, the defendant blood level alcohol was .184
twice the legal limit
• And, the officer at the scene of the accident sated the defendant was under the
influence of alcohol at the time of accident

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

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

In regards to the plaintiff’s claim that the last clear chance doctrine is applicable in the this case,
the court held that such doctrine is only applicable when plaintiff prove that
• Plaintiff’s negligence placed her in a position of peril from which she could not
escape
• Defendant saw, or by the exercise of reasonable care should have seen and
understood, the perilous position of plaintiff
• Defendant had the time and means to avoid the accident if defendant had seen or
discovered the plaintiff’s perilous position
• Defendant failed or refused to use every reasonable means at his command to
avoid impeding injury to plaintiff
• Plaintiff was injured as a result of the defendant’s failure or refusal to avoid
impending injury
APPLICATION: Here, the decedent’s own actions rise to a similar high degree of contributory
negligence as the defendant b/c she was with the defendant when they purchased the beer,
consumed the alcohol in the presence of each other, had made drinking plan with the defendant
prior to buying or consuming the alcohol, and was aware of the defendant’s plan to drive back
home, refused to accept the offer from her employer to drive them home and she willfully enter
the vehicle with the defendant knowing he was going to drive intoxicated. Her actions establish
same level of negligence as that of the defendant.
In regards to the applicability of the last chance doctrine, plaintiff presents no evidence that the
decedent had placed herself in a position of peril from which she could not escape. Based on the
offer from her employer, she had the opportunity to avoid getting in the car with the defendant
but refused.

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

FACTS: Plaintiff was a member of a pit crew at a midget car race promoted, organized and
supervised by the defendant. During the race, plaintiff notice one of the driver in the race car was
bicycling (when car’s inner wheels lose contact with the track surface) as it approach a turn near
the plaintiff and also at a distance. Both the plaintiff and another pit crew member noticed again
the car bicycled and stated the driver of the bicycled car should be blackflag of the track. When
the bicycled driver car reached the pit nearest to the plaintiff it bicycled again and then flipped
over and began skidding towards the plaintiff and other two pit crew members. Plaintiff was
struck by the car and pinned against the fence next to the track straightaway. He sustained
injuries that requires surgery and post operative care
Plaintiff filed suit claiming the UARA were guilty of willful and wanton conduct when
they failed to extend the guardrail next to the pit, failed to provide the pit with steward to ensure
person did not remain in the exposed area near the pit and also failed to blackflag the driver off
the track once it began to bicycle. The jury returned a verdict against the defendant and awarded
the plaintiff $1.5 million in damages, reduced to $615,000 for plaintiff’s comparative fault,
which was assessed at 59%. The trial court entered judgment in conformity with the verdict and
defendant appealed and plaintiff cross appealed. During the appealing, the plaintiff challenged
the apportionment of damages between both parties

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

RULE:

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

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

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

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

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

APPLICATION: On balance, (1) the agreement concerns an endeavor of a type generally

thought suitable for public regulation. In this case, a legislature statute has granted the school
the authority to supervise, control, regulate the conduct of interscholastic activities and in some
instance the power to delegate its authority to a third party like the WIAA. The WIAA’s
handbook has printed the rules and regulation in regards to interscholastic activity and it is the
rules that the school look to for guidance. (2) the party seeking exculpation is engaged in
performing a service of great importance to the public, which is often a matter of practical
necessity for some members of the public. In this case, the justification advanced for have
interscholastic athletics at school is for their educational and cultural value which is a substantive
portion of Washington educational schemes. Also the program creates a bridge between the
public and the system of public education. (3) such party holds itself out as willing to perform
this service for any member of the public who seeks it, or at least for any member coming
within the certain established standards. The programs as construed is that the doors are open
to all those who are eligible (4) because of the essentials of the service, in the economic
setting of the transaction, the party invoking the exculpation possesses a decisive advantage
of bargaining strength against any member of the pubic who seeks the services. The school
programs have become importance both to the student and the public at large. And likewise,
there are no alternatives option at least not one that many of the student can afford that does not
required relinquishing their rights to claim. (5) in exercising a superior bargaining power,
the party confronts the public with a standardized adhesion contract of exculpation, and
makes no provision whereby a purchaser may pay additional reasonable fees and obtain
protection against negligence. The schools have a strict policy of not allowing student to
participate without signing the release forms; while parents have tried to modify the language of
the release form they are unsuccessful. This gave them no alternatives, rather sign the form or the
student will be barred from joining. (6) the person or property of the members of the public
seeking such services must be placed under the control of the furnisher of the services,
subject to the risk of carelessness on the part of the furnisher, its employees or agents. In
this case, the school owes a duty to the students to employ the reasonable care to protect them
from danger and that duty extend to those participating or joining the interscholastic athletics.

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

FACTS: Plaintiff paid for a six week scuba diving course to the defendant. Upon enrollment,
participants are required to sign a release form excusing the defendant from liability pertaining to
any risks sustained during the duration of the course. In order to receive certification, the
participants are required to perform check out dives. On several occasions, the defendant
calculated the dive time to be 38 minutes and a dive of sixty feet for both dive for the
participants. The plaintiff began to feel the effect of decompression sickness known as bends on
his way home. He began to experience arthritic pain in his joint. He was to see an expert doctor
in diving, who told him he had dive too long and can never dive again. The doctor, an expert in
diving explained the defendant was negligent in planning the depths and failing to make safety
stops.
The plaintiff filed suit claiming the defendant was negligent in her supervision of the dive
and in exposing him to decompression injury. The defendant filed a motion for summary
judgment based on the release and the trial granted the motion and dismissed the case. The court
of appeal also found the release was a contract of purely personal nature and did not violate
public policy b/c scuba diving does not implicate public concerns.

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

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

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

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

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

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

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

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

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

FACTS: The plaintiff resides in Cotton Hope. A condominium of ninety-six units located in
multiple buildings. Each building consists of three levels, three stairways: one in the middle and
the others on the side of the building. The plaintiff lived on the top level, approximately five feet
to the stairway. Cotton Hope was maintained by PAI and PAI hired Carson to perform
landscape, maintenance on Cotton Hope. Its duty also includes checking outdoor lights and
changing bulbs as needed. The plaintiff noticed the light bulb at the bottom of the stairway he
used was not working. He noticed PAI on several occasions regarding the floodlight but
nevertheless continued to use the stairs. On this particular day, the plaintiff fell while descending
on the stair claiming he attempted to place his foot on what he thought was a step but rather it
was a shadow caused by the broken floodlights.
He sued Cotton Hope for his injuries. Trial court returned verdict against the plaintiff
finding he assumed the risk of the injury and also even if assumption of risk were not abrogated
by comparative negligence, the plaintiff was more than fifty percent negligent. Plaintiff appealed

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

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

APPLICATION: Here, the court stated the four requirements that established the defense of
assumption can also be used to established contributory negligence. Contributory negligence
barred recovery if the plaintiff is to be found at fault. S.C. has adopted the comparative
negligence but on such if likely abandon the assumption of risk since how it compatible to
contributory negligence particularly the secondary implied of assumption of risk. Primary and
express are compatible to comparative negligence while secondary is more in a way contributory
negligence b/c it shed lights on the plaintiff involvement to expose himself to the danger after
being aware of the dangerous condition. If the plaintiff is found guilty it bar recovery. The court
recognized there is a different between contributory negligence and secondary assumption of the
risk and the difference is that one secondary assumption of risk exercise one’s free will in
encountering the danger while the other.
CONCLUSION: Therefore, P not barred from recovery by the doctrine of secondary implied
assumption of risk unless the degree of fault arising therefrom is greater than the negligence of
the D.
KLANSECK V. ANDERSON SALES & SERVICE, INC

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

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

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

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

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

to mitigate damages.
MILLER V. EICHHORN

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

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

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

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

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

FACTS: The defendant pulled out in front of the plaintiff who swerved violently to avoid the
collision but his evasive maneuver overturned the vehicle. Both the plaintiffs weren’t wearing
their seat belt and were thrown from the car→ the husband through a closed sunroof. Plaintiff
brought a negligence claim against the defendant. During the trial, defendant requested
information regarding the plaintiff’s use of seat belt. Defendants replied with a case rule in which
the court of appeals held evidence of a passenger’s failure to wear seatbelt was inadmissible
either to show breach of duty to minimize damages or to prove contributory negligence
The trial court ruled there no duty wear seat belt. In an interlocutory appeal the court of
appeal held that evidence of non-use could be admissible.

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

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

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