Opinion
No. CV 06 5004948S
August 4, 2008
MEMORANDUM OF DECISION AS TO PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S SPECIAL DEFENSES AS TO THE SECOND AND THIRD COUNTS OF THE PLAINTIFF'S THIRD REVISED COMPLAINT
This is an action arising out of an automobile accident which occurred on November 10, 2004. The husband, the defendant in this case, was the owner and operator of an automobile and his wife, the plaintiff, was a right front seat passenger. The allegation is that the husband disabled the motorized passenger restraint system (MPRS) in his car and thus rendering it unavailable for use at the time of the accident. Specifically, the allegation is that he disabled the shoulder portion, leaving operable the lap belt. The accident involved numerous vehicles. Tragically, the wife was seriously injured and is, as a result, a C7 quadriplegic.
The motions which have been filed in this case have been a proper way to sort out the law of this case and bring this case to a final resolution, either by settlement or trial. There have been interesting questions of law raised by both sides.
The plaintiff filed Motion to Strike Defendant's Special Defenses As To The Second and Third Counts (Motion #128). The Plaintiff claims that the defenses are legally insufficient and not cognizable special defenses pursuant to Connecticut jurisprudence and are specially barred by Connecticut General Statutes Section 14-100a(c)(3) and 14-222 and that this court previously ruled on the same issues in its Memorandum of Decision dated May 9, 2008.
The defendant filed an Objection to the Motion to Strike (should be coded as Motion #131) which is dated July 31, 2008.
It is not necessary to discuss the history of this case, for this court did so in its May 9, 2008 decision.
DISCUSSION OF THE LAW CT Page 12701
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999). A plaintiff may move to strike a special defense. See Girard v. Weiss, 43 Conn.App. 397, 417, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996); Practice Book § 10-39(a)(5). "In ruling on the motion to strike, the trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). Bravo v. Ford Motor Company, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 000594807 (April 16, 2001, Berger, J.) 2001 Ct.Sup. 5438, 5439 [ 29 Conn. L. Rptr. 676].ISSUE OF LAW
The issue before the court today is whether failure to use a seatbelt and misuse of a seat belt are the same.
There is no case law on this issue in the State of Connecticut.
Therefore, this court has looked at decisions from other states.
In Chaney v. Young, 122 N.C.App. 260, 264, 468 S.E.2d. 837 (1996), the court held that "improper use of a seat belt under the circumstances of this case is tantamount to nonuse. Therefore, contrary to defendant's contentions, the statutory provisions are applicable. Defendant's argument is disingenuous and seeks to circumvent the intent of the legislature and the clear language of the statute. The intent of the legislature is to prevent tortfeasors from using evidence of a failure to use or the improper use of a seat belt in any civil action or proceeding. The statutory provisions explicitly state that the `failure to wear a seat belt shall not be admissible in any . . . civil trial, action, or proceeding[,]' N.C. Gen. Stat. § 20-135.2A(d) `nor shall a violation constitute negligence per se or contributory negligence per se[,] nor shall it be evidence of negligence or contributory negligence.' N.C. Gen. Stat. § 20.137.1(d) [20-137.1(d)]. Hence, the trial court properly granted the motion in limine."
In Verni ex rel Burnstein v. Steven, 387 N.J.Super. 160, 213, 903 A.2d 475 (2006), the court held that "courts in states with similar statutes have also precluded evidence of the misuse of a child safety seat or seatbelt to establish comparative negligence, reasoning that such evidence was indistinguishable from the evidence of failure to use such restraints. See Watkins v. Hartsock, 245 Kan. 756, 783 P.2d 1293, 1299 (1989) (misuse of child safety belt was not admissible to show that parent was comparatively negligent); Chaney v. Young, 122 N.C.App. 260, 468 S.E.2d 837, 839 (1996) (misuse is tantamount to non-use)."
In Watkins v. Hartsock, 245 Kan. 756, 783 P.2d 1293 (1989), the court discussed the issue of misuse. "Defendant states that misuse of a seat belt would occur if the occupant of an automobile wrapped a seat belt around his neck and then broke his neck in an accident. He argues that such misuse is negligence and is admissible to compare fault or to prove failure to mitigate damages. A more likely example of misuse is when the automobile occupant uses only the shoulder restraint and not the lap belt. Plaintiffs point out that a distinction between nonuse and misuse could lead to absurd results." Id., p. 758. Further the court held that "The legislature has clearly stated that evidence concerning the failure to use a seat belt or the failure to secure a child in a safety restraining system or in a seat belt is not admissible for the purpose of determining comparative negligence or mitigation of damages in any action. In addition, when the legislature enacted the comparative negligence statute, K.S.A. 60-258a, it contained an explicit provision changing the rule as to apportionment of causation negligence, but the common-law rule, that an act or omission which merely increases or adds to the extent of the loss or injury without contributing to the happening of the event will not affect contributory negligence, remained unchanged by the legislature. The legislature's requirement in K.S.A. 1988 Supp. 8-1344 that parents or legal guardians protect their children by properly using child safety restraining devices makes no distinction between nonuse and misuse of a safety device. The rationale in Hampton, Ratterree, Rollins, and Taplin concerning nonuse of a safety device also applies to the misuse of a child safety seat. The common-law rule that one is not required to anticipate negligence and guard against damages which might ensue if such negligence should occur applies to nonuse and misuse of a seat belt and a child passenger safety restraint device." Id., p. 764-65.
This court finds that the statutory prohibition that it found in its May 9, 2008 decision also applies to the misuse of the seatbelt.
Therefore, the Motion to Strike is granted.