Before addressing the merits of General Motor's first argument, I must outline the state court decisions concerning the question of whether a "seat belt defense" exists under Pennsylvania law and the history of the Occupant Protection Act, 75 Pa. C.S.A. §§ 4581-85. In 1979, the Superior Court of Pennsylvania first grappled with the issue in Parise v. Fehnel, 267 Pa. Super. 79, 406 A.2d 345 (1979). In Parise, the plaintiff was injured, as a result of a motor vehicle collision, when she was thrown forward causing her chest to hit the steering wheel and her legs to hit the dashboard.
See: 92 A.L.R.3d at § 5; 80 A.L.R.3d at § 3; Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626 (1967); Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164 (1974). This issue and the division of authority were recognized by the Superior Court in Parise v. Fehnel, 267 Pa. Super. 79, 406 A.2d 345 (1979). Because a resolution of the issue was not essential to the decision, however, the Court expressly cautioned, "[o]ur decision today should not be seen as foreclosing the possibility of a so-called seat belt defense in future cases."
Appellants contend that the trial court erred in finding that their request to amend, in order to plead a "seat belt defense", was contrary to a positive rule of law. Appellants cite to the decision in Parise v. Fehnel, 267 Pa. Super. 79, 406 A.2d 345 (1979), in support of their position that the availability of a "seat belt defense" remains an open question in Pennsylvania. In Parise, a panel of this Court held that, in the absence of expert testimony demonstrating a causal connection between the plaintiff's injuries and plaintiff's failure to wear a seat belt, it was not error on the part of the trial court to refuse to instruct the jury that the failure to use a seat belt could be evidence of contributory negligence on the issue of damages.
Our research has discovered only three appellate cases in Pennsylvania dealing with the defense of failure to wear seat belts. In Parise v. Fehnel, 267 Pa. Super. 79, 406 A.2d 345 (1979), the court affirmed the trial court's ruling that refused a jury instruction that failure to wear a seat belt could be contributory negligence. There, the defendant argued that common knowledge was such that it was recognized that use of seat belts prevented one from being thrown about the automobile in an accident; the Superior Court rejected this argument out of hand.
Although the courts which reject the seatbelt defense appear to constitute a clear majority, no small number of courts are in the minority: Caiazzo v. Volkswagenwerk A.G., 647 F.2d 241 (2d Cir. 1981); Wilson v. Volkswagen of America, Inc., 445 F. Supp. 1368 (E.D.Va. 1978); Benner v. Interstate Container Corp., 73 F.R.D. 502 (E.D.Pa. 1977); Pritts v. Walter Lowery Trucking Company, 400 F. Supp. 867 (W.D.Pa. 1975); Franklin v. Gibson, 138 Cal.App.3d 340, 188 Cal.Rptr. 23 (1982); Wagner v. Zboncak, 66 Ill.Dec. 922, 111 Ill. App.3d 268, 443 N.E.2d 1085 (1982); Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164 (1974); Sams v. Sams, 247 S.C. 467, 148 S.E.2d 154 (1966); Coryell v. Conn, 88 Wis.2d 310, 276 N.W.2d 723 (1979). And see Glover v. Daniels, 310 F. Supp. 750 (N.D. Miss. 1970); Parise v. Fehnel, 267 Pa. Super. 79, 406 A.2d 345 (1979); cf. Garrett v. Desa Industries, Inc., 705 F.2d 721 (4th Cir. 1983). One of the major criticisms of considering a plaintiff's failure to use a safety device in mitigation of damages which has moved some courts to reject the helmet defense and a larger number of courts to reject the seatbelt defense is that the doctrine of mitigation of damages, sometimes called the doctrine of avoidable consequences, has been traditionally used by courts to reduce damages for injuries a plaintiff could have avoided or made less severe by reasonable conduct on his part after he has suffered an initial injury.
Conversely, it is axiomatic that a trial judge must not charge the jury on contributory negligence in the absence of any evidence to support such a finding. Heffernan v.Rosser, 419 Pa. 550, 215 A.2d 655; Thomas v. Tomay, 413 Pa. 270, 196 A.2d 740 (1964); Parise v. Fehnel, 267 Pa. Super. 79, 406 A.2d 345 (1979); Smith v. Port Authority Transit, 257 Pa. Super. 66, 390 A.2d 249 (1978). In DeJohn v. Orell, 429 Pa. 359, 240 A.2d 472 (1968), Justice Musmanno articulated the reason for this prohibition:
In reaching its decision, the Stouffer court looked to three Superior Court cases that discussed the availability of the seat belt defense. In Parise v. Fehnel, 267 Pa. Super. 79, 406 A.2d 345 (1979), the trial court refused to instruct the jury that it could consider plaintiff's failure to use a seat belt as evidence of contributory negligence. The Superior Court affirmed on the basis that defendant did not produce direct evidence that plaintiff's injuries would have been less serious had she been wearing a seat belt.