
    McCartney et al. v. Ake. 
    (No. 83-CI-282
    Decided August 24, 1984.)
    Court of Common Pleas of Wayne County.
    
      Critchfield, Critchfield, Critchfield & Johnston and Ronald E. Holtman, for plaintiffs.
    
      Day, Ketterer, Raley, Wright & Rybolt and Jack R. Baker, for defendant.
   Schuler, J.

By judgment entry journalized herein on July 18, 1984, the court awarded plaintiffs, A. Craig McCartney et al., partial summary judgment on the issue of liability for the collision herein, and inarticulately expressed the opinion “that evidence that plaintiffs failed to make use of available safety restraints will require an instruction to -fhe jury on comparative negligence as it. relates to the proximate cause of plaintiffs’ claimed injuries.” In response to this opinion, plaintiffs filed herein on July 26,1984, a motion to reconsider the quoted opinion. Plaintiffs argue that since the Ohio Legislature has not mandated occupant use of restraints, evidence of plaintiffs-occupants’ failure to make use of available restraints should not be permitted on the issue of proximate cause of plaintiffs’ injuries. Plaintiffs cite two Ohio cases as authority for their proposition, Bertsch v. Spears (1969), 20 Ohio App. 2d 137 [49 O.O.2d 164], and Roberts v. Bohn (1971), 26 Ohio App. 2d 50 [55 O.O.2d 78],

The court has thoroughly reviewed both eases and notes that Bertsch does not stand for the proposition for which it is cited by plaintiffs. Bertsch stands for the proposition that the plaintiff therein, who failed to wear an available seat belt, “was not negligent per se.” Id. at 139. The Bertsch court observed, however, that ‘ ‘[i]t may be that in a future case the evidence introduced or proffered will indicate that the failure to use a seat belt was a contributing factor in the occurrence of the accident or in producing or aggravating plaintiff’s injuries and that the issue should be submitted to a jury.” (Emphasis added.) Id.

Roberts, on the other hand, does indeed support the proposition for which plaintiffs cite it. It is the opinion of the court that the determinative factor in the Roberts decision is set forth in the following language:

“If the failure to wear available seat belts can be considered as negligence and defendant established by competent evidence that a certain percentage of plaintiffs injuries, no matter how slight, were the direct and proximate result of the failure to use an available seat belt, then under our doctrine of contributory negligence, the plaintiff would be precluded from any recovery.” Id. at 57.

In view of Ohio’s recent legislative enactment of the comparative negligence statute, this court need not concern itself with the harshness of the earlier contributory negligence rule.

The court notes that neither Bertsch nor Roberts is controlling in this jurisdiction. The court notes further that both Bertsch and Roberts were decided before Ohio’s adoption of a comparative negligence statute. As a state employee, the court takes judicial notice of Executive Order 84-24, signed by Governor Richard F. Celeste, on May 24, 1984, and filed that date in the office of the Secretary of State, to become effective July 1, 1984, wherein it was ordered: “That all State employees who drive or ride in State or privately-owned vehicles on official travel status utilize the complete occupant restraint systems provided in those vehicles.” One of the premises upon which this executive order was based is that “seat and shoulder belt assemblies have been proven to be the single most effective measure for reducing traffic injuries and fatalities.” The court further accepts the proposition that “ ‘[t]here is considerable evidence that seat belts are effective safety devices and serve to save many lives and minimize many injuries.’ ” Roberts v. Bohn, supra, at 56, quoting from Robinson v. Lewis (1969), 254 Ore. 52, 457 P. 2d 483.

It is the opinion of the court that plaintiffs herein have a common-law duty to exercise ordinary care, and if evidence is adduced which tends to show that plaintiffs’ failure to use available safety restraints was a proximate cause of the severity of plaintiffs' injuries, then it will be for the jury to decide, based upon Ohio’s comparative negligence statute, that proportion of plaintiffs’ injuries proximately resulting from defendant’s heretofore determined liability for the collision and that proportion proximately resulting from the failure to use available safety restraints.

It is accordingly ordered that plaintiffs’ motion to reconsider be denied.

Motion denied.  