Benner v. Interstate Container Corp.

10 Citing cases

  1. Smith v. Goodyear Tire Rubber Co.

    600 F. Supp. 1561 (D. Vt. 1985)   Cited 14 times
    Applying Vermont law

    Support for this proposition may be found not only in this court's jury instructions in Beaudoin and Cameron, supra, but also in cases from several other jurisdictions. See, e.g., Benner v. Interstate Container Corp., 73 F.R.D. 502 (E.D.Pa. 1977); Curry v. Moser, 89 A.D.2d 1, 454 N.Y.S.2d 311 (Sup.Ct., 2d. Dept. 1982). As noted below, however, simply admitting evidence of certain conduct on the question of negligence does not establish that conduct as negligence per se.

  2. Caiazzo v. Volkswagenwerk, A.G.

    468 F. Supp. 593 (E.D.N.Y. 1979)   Cited 8 times

    Cf. Langford v. Chrysler Motor Corp., E.D.N.Y. 1974, 373 F. Supp. 1251, 1255-1256 (denying any mitigation based on failure to use seat belt, citing Spier in the court below), aff'd, 2d Cir. 1975, 513 F.2d 1121. But see Benner v. Interstate Container Corp., E.D.Pa. 1977, 73 F.R.D. 502, 504. See Annotations, 1967, 13 A.L.R.3d 1428, and, 1977, 80 A.L.R.3d 1033.

  3. Wilson v. Volkswagen of America, Inc.

    445 F. Supp. 1368 (E.D. Va. 1978)   Cited 20 times
    Holding that evidence of plaintiff's, failure to wear seat belt could be considered for purposes of mitigation of damages

    Although it is impossible to predict with certainty and difficult to predict at all how the Virginia courts would decide this question, the Court is of the opinion that on the facts of the instant case evidence of non-use of a seat belt would be admitted for consideration by the jury in mitigation of damages. For courts that have allowed the introduction of evidence regarding plaintiff's non-use of his seat belt, see e.g., Melia v. Ford Motor Co., 534 F.2d 795 (8th Cir. 1976); Henderson v. United States, 429 F.2d 588 (10th Cir. 1970); Benner v. Interstate Container Corp., 73 F.R.D. 502 (E.D.Pa. 1977); Pritts v. Walter Lowery Trucking Corp., 400 F. Supp. 867 (W.D.Pa. 1975); Spier v. Barker, 35 N.Y.2d 444, 363 N YS.2d 916, 323 N.E.2d 164 (1974). For courts that have disallowed it, see e.g., Vizzini v. Ford Motor Co., 72 F.R.D. 132 (E.D.Pa. 1976); Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Okla. 1976); Horn v. General Motors Corp., 17 Cal.3d 359, 131 Cal.Rptr. 78, 551 P.2d 398 (1976); Miller v. Miller, 273 N.C. 228, 160 S.E.2d 65 (1968).

  4. McCormick v. City of Wildwood

    439 F. Supp. 769 (D.N.J. 1977)   Cited 6 times

    Prentice v. Zane's Administrator, 49 U.S. (8 How.) 470, 12 L.Ed. 1160 (1850); Hartnett v. Brown Bigelow, 394 F.2d 438 (10th Cir. 1968). In Benner v. Interstate Container Corp., 73 F.R.D. 502, 504 (E.D.Pa. 1977), the court stated, "There is both federal and state law, though no Third Circuit case on point, to support the proposition that the trial judge should not receive an inconsistent or perverse verdict . ." Granting a new trial is the appropriate remedy where the jury's verdict does not comport with the Court's instructions.

  5. Vredeveld v. Clark

    244 Neb. 46 (Neb. 1993)   Cited 22 times
    In Vredeveld v. Clark, 244 Neb. 46, 504 N.W.2d 292 (1993), a tort action for damages, we held that the court did not err in refusing to tax expert witness fees to the defendant.

    A number of states allow evidence of a plaintiff's failure to wear a seatbelt for mitigation of damages, but only when the defendant has demonstrated a causal connection between the plaintiff's failure to wear an available seatbelt and the damages sustained by the plaintiff. See, Benner v. Interstate Container Corp., 73 F.R.D. 502 (1977) (instruction on nonuse of seatbelt for mitigation proper where expert testified plaintiff's injuries could have been avoided if she had worn seatbelt); Law v. Superior Court of State of Ariz., 157 Ariz. 147, 755 P.2d 1135 (1988) (under comparative negligence statute, nonuse of seatbelt can be considered and used to reduce damages if nonuse either caused or enhanced injuries to plaintiff); Foley v. City of West Allis, 113 Wis.2d 475, 335 N.W.2d 824 (1983) (failure to wear seatbelts not negligence per se, but proper to instruct jury where seatbelts are available and evidence indicates causal relationship between injuries sustained and failure to wear seatbelts). See, also, Knapp v. Shores, 550 So.2d 1155 (Fla. App. 1989) (error to instruct jury on seatbelt defense in absence of evidence that seat belts were fully operational); Thomas v. Gottlieb, 520 So.2d 622 (Fla. App. 1988).

  6. Insurance Co. of North America v. Pasakarnis

    451 So. 2d 447 (Fla. 1984)   Cited 69 times
    Holding such evidence admissible

    Judge Schwartz, in his dissenting opinion, asserted that this very practical viewpoint is the essential basis of those decisions which have accepted the viability of the "seat belt defense." Melia v. Ford Motor Co., 534 F.2d 795 (8th Cir. 1976); Mays v. Dealers Transit, Inc., 441 F.2d 1344 (7th Cir. 1971); Henderson v. United States, 429 F.2d 588 (10th Cir. 1970); Caiazzo v. Volkswagenwerk, A.G., 468 F. Supp. 593 (E.D.N.Y. 1979), modified on other grounds, 647 F.2d 241 (2d Cir. 1981); Wilson v. Volkswagen of America, 445 F. Supp. 1368 (E.D.Va. 1978); Pritts v. Walter Lowery Trucking Co., 400 F. Supp. 867 (W.D.Pa. 1975); Benner v. Interstate Container Corp., 73 F.R.D. 502 (E.D.Pa. 1977); Uresky v. Fedora, 27 Conn. Sup. 498, 245 A.2d 393 (1968); Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164, 363 N.Y.S.2d 916 (1974); Sams v. Sams, 247 S.C. 467, 148 S.E.2d 154 (1966); Sonnier v. Ramsey, 424 S.W.2d 684 (Tex.Civ.App. 1968); Hernke v. Coronet Ins. Co., 72 Wis.2d 170, 240 N.W.2d 382 (1976); Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626 (1967). Those jurisdictions adopting the "seat belt defense" have considered three different approaches: (1) plaintiff's nonuse is negligent per se; (2) in failing to make use of an available seat belt, plaintiff has not complied with a standard of conduct which a reasonable prudent man would have pursued under similar circumstances, and therefore he may be found contributorily negligent; and (3) by not fastening his seat belt, plaintiff may, under the circumstances of a particular case, be found to have acted unreasonably and in disregard of his or her best interests and, therefore, should not be able to recover those damages which woul

  7. Halvorson v. Voeller

    336 N.W.2d 118 (N.D. 1983)   Cited 15 times
    Adopting minority view that pre-injury conduct, such as not wearing motorcycle helmet, may be used to mitigate damages in amount that injury could have been avoided by such use

    For example, in the decisions cited above from the courts of Florida, Montana, and Washington, there are vigorous dissents which argue that evidence that an available seatbelt was not used should be admissible on the issue of damages. 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).

  8. Ins. Co. of North Am. v. Pasakarnis

    425 So. 2d 1141 (Fla. Dist. Ct. App. 1983)   Cited 20 times
    In Pasakarnis, we held that evidence of failure to wear an available and fully operational seat belt may be considered by the jury in assessing a plaintiff's damages where the "seat belt defense" is pled and it is shown by competent evidence that failure to use the seat belt produced or contributed substantially to producing at least a portion of the damages.

    This very practical viewpoint is the essential basis of those decisions which, as I would do, have accepted the viability of the "seat belt defense." Melia v. Ford Motor Co., 534 F.2d 795 (8th Cir. 1976); Mays v. Dealers Transit, Inc., 441 F.2d 1344 (7th Cir. 1971); Henderson v. United States, 429 F.2d 588 (10th Cir. 1970); Caiazzo v. Volkswagenwerk, A.G., 468 F. Supp. 593 (E.D.N.Y. 1979), modified on other grounds, 647 F.2d 241 (2d Cir. 1981); Wilson v. Volkswagen of America, 445 F. Supp. 1368 (E.D. Va. 1978); Pritts v. Walter Lowery Trucking Co., 400 F. Supp. 867 (W.D.Pa. 1975); Benner v. Interstate Container Corp., 73 F.R.D. 502 (E.D.Pa. 1977); Uresky v. Fedora, 27 Conn. Sup. 498, 245 A.2d 393 (1968); 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); Sonnier v. Ramsey, 424 S.W.2d 684 (Tex. Civ.App. 1968); Hernke v. Coronet Ins. Co., 72 Wis.2d 170, 240 N.W.2d 382 (1976); Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626 (1967). When, notwithstanding what I thus think is the common sense of the matter, the seat belt defense has been rejected, this has occurred only when courts have discovered and applied one or more of a variety of policy reasons against, or legal impediments to its acceptance.

  9. Parise v. Fehnel

    267 Pa. Super. 79 (Pa. Super. Ct. 1979)   Cited 7 times
    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.

    In Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164 (1974), the case on which appellant relied in formulating the requested point for charge, the defendant proved by the testimony of a professor of mechanical and aerospace engineering that had the plaintiff been wearing her seat belt she would not have been ejected from her automobile and, consequently, would not have been seriously injured. See alsoBrenner v. Interstate Container Corp., 73 F.R.D. 502 (E.D.Pa. 1977); Pritts v. Walter Lowery Trucking Co., 400 F. Supp. 867 (W.D.Pa. 1975). Our decision today should not be seen as foreclosing the possibility of a so-called "seat belt defense" in future cases.

  10. Rhinebarger v. Mummert

    173 Ind. App. 34 (Ind. Ct. App. 1977)   Cited 1 times

    A growing minority of courts have determined that although failure to use seat belts does not constitute contributory negligence, evidence of non-use can properly be considered as to mitigation of damages or avoidable consequences. Henderson v. U.S. (10th Cir. 1970), 429 F.2d 588; Benner v. Interstate Container Corp. (E.D. Pa. 2/8/77), 73 F. Supp. 502; Pritts v. Lowery Trucking Co. (W.D. Pa. 1975), 400 F. Supp. 867; Glover v. Daniels (D.C. Miss. 1970), 310 F. Supp. 750; Mount v. McClellan (1968), 91 Ill. App.2d 1, 234 N.E.2d 329; Josel v. Rossi (1972), 7 Ill. App.3d 1091, 288 N.E.2d 677; Spier v. Barker (1974), 35 N.Y.2d 444, 323 N.E.2d 164; Estate of Abrams v. Woods (1970), 64 Misc.2d 1093, 316 N.Y.S.2d 750; Sonnier v. Ramsey (Tex. Civ. App. 1968), 424 S.W.2d 684. Such a theory seems, in effect, to impose liability for non-use of seat belts under the guise of failure to mitigate damages for an act (omission) that occurred prior to the event, which is inconsistent with mitigation which occurs after the event.