
    Schaeffer et al. v. Burdette. 
    (No. 84-CV-0751
    Decided January 13, 1986.)
    Court of Common Pleas of Clermont County.
    
      Donald W. White, for plaintiffs.
    
      Gary Ostendarp, for defendant.
   Watson, J.

Plaintiffs, June C. Schaeffer et al., filed their complaint for personal injuries on October 11, 1984. Defendant, Sharon L. Burdette, filed her answer on October 22, 1984. Thereafter, on October 29,1985, plaintiffs filed their motion in limine to prevent the defendant from raising the issue and presenting evidence of possible negligence in reference to the wearing or non-wearing of a seat belt by June Schaeffer at the time of the collision.

Plaintiffs argue that Ohio case law supports the position that evidence of the non-use of a seat belt is inadmissible to show negligence on the part of a plaintiff in the sense that plaintiff contributed to her own injuries and failed to mitigate damages. Defendant asserts on the other hand that the case law on non-use of a seat belt is in such a state of flux that this court should rule that evidence of non-use is-admissible.

Plaintiffs argue that Roberts v. Bohn (1971), 26 Ohio App. 2d 50, 55 O.O. 2d 78, 269 N.E. 2d 53, reversed on other grounds sub nom. Suchy v. Moore (1972), 29 Ohio St. 2d 99, 58 O.O. 2d 194, 279 N.E. 2d 878, and Bertsch v. Spears (1969), 20 Ohio App. 2d 137, 49 O.O. 2d 164, 252 N.E. 2d 194, support their position that evidence of non-use is inadmissible.

In Bertsch, the court of appeals held that the failure to wear a seat belt is not negligence per se. The court said that it may be that in a future case the evidence will show or proffer that the failure to use a seat belt was a contributing factor in the occurrence of the accident or in producing plaintiffs injuries, and that the issue should be submitted to a jury. But the court noted that it was not required to so hold in Bertsch because defendant proffered no evidence that the wearing of the seat belt would have prevented plaintiffs injuries and because the answer was in the form of a general denial and the defense of contributory negligence was not alleged affirmatively.

In Roberts, the court of appeals held that in the absence of legislation to the contrary, there is no duty of an occupant of an automobile to wear a seat belt and the failure to do so is not contributory negligence as a matter of law. The court also ruled that in the absence of a contrary statute, there is no duty on the part of an occupant of an automobile to anticipate another’s negligence and to protect himself by taking such precautions as wearing an available seat belt.

Plaintiffs also cite in support of their motion several 1985 common pleas court decisions: Wilson v. Collins (Feb. 22, 1985), Hamilton C.P. No. A8404177, unreported; and Miller v. Lovejoy (May 13, 1985), Summit C.P. No. CV84-1-0046, unreported. In Wilson, defendant argued in opposition to plaintiffs’ motion for summary judgment that plaintiffs failure to use his seat belt was a proximate cause of his alleged damages and that evidence of non-use is admissible under Ohio’s comparative negligence law. The Wilson plaintiffs cited, as do plaintiffs herein, Bertsch and Roberts to counter defendant’s arguments. The Wilson court found that the issue of the proximate cause of damages is an issue of fact for trial, but that defendant may not offer seat belt evidence as relevant to contributory negligence on their damages. The Miller court ruled similarly.

In support of its argument that evidence of non-use is admissible, defendant cites Sours v. General Motors Corp. (C.A. 6, 1983), 717 F. 2d 1511, for the proposition that both Bertsch and Roberts are neither current nor uniform, and that the law on the admissibility of seat belt evidence is in a state of flux. The Sours court concluded that if the Ohio Supreme Court were called upon to decide the question now, it might very well adopt a rule different from that of Roberts. Defendant notes that Sours avoided a final conclusion on the question by determining that its exclusion was therein harmless error.

This court would note that it does not consider the obiter dictum of Sours to be controlling of the case herein. First, Sours recognized the “peculiarly legislative nature of the issue.” (Emphasis sic.) Id. at 1520. Second and more importantly, Sours distinguished Roberts and Bertsch because in those cases the defendants actually caused the accident while in Sours the allegation against General Motors was that it failed to adequately protect plaintiff from injury. Sours found in such an instance, considering the gist of the allegation, it was appropriate to inquire into what steps plaintiff himself took to avoid injury, i.e., seat belt use. Sours found the difference to be significant since Roberts “exhibited antipathy towards a defendant who would negligently cause an accident and then claim that that plaintiff failed to protect himself against defendant’s negligence.” Id. For this reason, Sours is not at all controlling.

Defendant also cites other decisions in support of her argument. In McCartney v. Ake (Aug. 21, 1984), Wayne C.P. No. 83-CI-282, unreported, the court held that the jury must decide, based on Ohio’s comparative negligence statute, and on non-use of seat belt evidence, that proportion of injuries proximately resulting from the failure to use an available seat belt. In Moore v. Arrow Truck Lines (S.D. Ohio 1984), 16 OBR 306, the district court concluded that Roberts and Bertsch no longer expressed the law of Ohio and that evidence of non-use of a seat belt is relevant to the issue of whether injuries were the proximate result of the accident or of the non-use of the seat belt. Also, in Scott v. Peterson (July 15, 1985), Stark C.P. No. 83-1970, unreported, the trial court concluded that defendant, pursuant to an affirmative defense of comparative negligence, may show, if it can, that the failure to use a seat belt was a proximate cause of any injuries sustained by the plaintiff.

The court would note that the case law from other jurisdictions is split on the question of whether evidence of non-use is admissible.

In State v. Ingram (Ind. 1981), 427 N.E. 2d 444, the court held that evidence of seat belt non-use is inadmissible to show that plaintiff failed to mitigate damages, because the evidence looked to acts of the injured only after injury occurred which does not comport with the concept of mitigation. The Ingram court reasoned that without a clear mandate from the legislature requiring riders to buckle up, the court would not judicially mandate such conduct.

In Fischer v. Moore (1973), 183 Colo. 392, 517 P. 2d 458, the court found evidence of seat belt non-use inadmissible to show contributory negligence or failure to mitigate damages. Likewise, in Brown v. Kendrick (Fla. App. 1966), 192 So. 2d 49, the court held proper the granting of a motion to strike the defense of contributory negligence based on the failure to utilize an available seat belt. Further, in Britton v. Doehring (1970), 286 Ala. 498, 242 So. 2d 666, evidence of failure to fasten a seat belt was inadmissible to mitigate damages for defendant’s wantonness. In Bentzler v. Braun (1967), 34 Wis. 2d 362, 149 N.W. 2d 626, the court ruled that a statute requiring seat belt installation could not be considered a safety statute in the sense that it is negligent per se to fail to use an available seat belt. Also, in Fields v. Volkswagen of America, Inc. (Okla. 1977), 555 P. 2d 48, the court held there was no statutory duty to use seat belts and, thus, the trial court was not required to charge the jury on mitigation of damages for non-use. Additionally, in Kunze v. Stang (N.D. 1971), 191 N.W. 2d 526, the court held that the failure to use seat belts is not contributorily negligent as a matter of law. And in Robinson v. Lewis (1969), 254 Ore. 52, 457 P. 2d 483, the failure to wear an available seat belt was not negligence per se in the absence of a legislative mandate requiring their use; there is no common-law duty to buckle up. Lastly, the failure to use a seat belt cannot be used to show contributory negligence or to show failure to mitigate damages even where there is a statute requiring passengers to buckle up. Clarkson v. Wright (1985), 108 Ill. 2d 129, 483 N.E. 2d 268.

Cases allowing non-use evidence to be admitted include: Mays v. Dealers Transit (C.A. 7, 1971), 441 F. 2d 1344 (failure to use seat belt admissible to show both failure to prevent or lessen injury); Baker v. Hlavachek (1976), 51 App. Div. 2d 739, 379 N.Y. Supp. 2d 481 (safety expert may testify to reduction of plaintiff’s injuries had seat belt been fastened); Spier v. Barker (1974), 35 N.Y. 2d 444, 363 N.Y. Supp. 2d 916 (admissible as to plaintiff’s avoiding injury and to his mitigating damages, not as to liability).

On January 10, 1986, the court received word of the passage by the state legislature of the new mandatory seat belt law, R.C. 4513.263.

The new law, in subdivision (G), specifically prohibits the use in civil proceedings of evidence of the non-use of a seat belt to reduce an injured person’s damages. In this court’s mind, that provision demonstrates clearly the legislative intent not to alter the prior Ohio case law of Bertsch and Roberts, which found that evidence of non-use is inadmissible to show contributory negligence or to show a plaintiff’s failure to mitigate his damages.

Whether or not the new provision as to the non-use evidentiary prohibition is remedial and to be retroactively applied to causes arising before its enactment is not a question that this court need decide, for whether or not it can be retroactively applied, the court holds that the result would be the same. Under prior Ohio case law, it would havé been inappropriate for a court to judicially mandate that car drivers and passengers utilize available seat belts where the legislature had not yet seen fit to require their use, nor spoken on the issue of whether such non-use is evidence to be assessed in the computation of damages. Further, neither an Ohio court of- appeals nor the Supreme Court of Ohio has ever held that there was a non-statutory duty to utilize an available seat belt, nor has any Ohio court held that the principle of mitigation of damages applied to a situation where a plaintiff failed to buckle up. Therefore, even if the new seat belt law were to be applied prospectively only as affecting substantial rights, the prior case law of Ohio supports the conclusion that evidence of non-use of an available seat belt is inadmissible.

The court would note its opinion, however, that the new seat belt provision is remedial in nature and does not affect substantial rights of persons and thus is to be applied to causes arising prior to the date of its enactment.

The motion is well-taken and granted.

Motion in limine granted.  