Opinion
No. CV 06 5004948S
May 9, 2008
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 motion which has 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 #122). 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.
The defendant filed an Objection to the Motion to Strike (Motion #125).
It is important to discuss the history of this case.
On October 10, 2006 a complaint was filed with a return date of October 31, 2006 sounding in negligence and reckless operation. The defendant filed an Apportionment Complaint as to the drivers of the other motor vehicles involved in this incident. (#102). Releases have been obtained regarding those apportionment defendants, therefore they remain in this case to apportion the damages between their negligence and any negligence which may be proven as to the defendant, husband. On April 9, 2007 a Revised Complaint was filed (#104).
The defendant filed a Motion to Strike (Motion #108) and an Objection was filed by the plaintiff (Motion #110). This motion was ruled on by Gilardi, J., by Memorandum of Decision dated September 4, 2007 (#113). The salient point of the ruling is: "In this case the plaintiff will have the burden of proof that she suffered additional or more serious injuries than she would have suffered as a result of the removal of the motorized passive restraint system for the shoulder harness . . . There is nothing in the legislative history nor would it be reasonable to assume that the legislature enacted C.G.S. Section 14-100a(c)(1) and C.G.S. Section 14-222 prohibiting any conduct which renders a vehicle defective and exposes its occupants to injuries and also enact C.G.S. Section 14-100a(c)(3) intending it to be interpreted as to exonerate any individual who violates those two statutes . . . Although this court finds that a plaintiff may, in fact, institute an action for an enhanced injury as a result of a deliberate removal of a seatbelt in violation of Section 14-100a(c)(1) . . . "(page 7-8 of Decision). The court then instructed to plaintiff to revise their complaint in accordance with it's ruling.
Pursuant to the ruling on the Motion to Strike, the plaintiff filed a Second Revised Complaint dated Septemeber 13, 2007 (#114).
The defendant filed a Request to Revise dated September 24, 2007 (#116) to which the plaintiff filed an Objection (#117).
The undersigned filed a Memorandum of Decision dated January 30, 2008 (#119) granting the Request to Revise ordering the plaintiff to plead the enhanced injuries in a separate count. The plaintiff did that in the Third Revised Complaint dated February 5, 2008. The defendant filed an Answer and Special Defenses.
That brings us to the Motion to Strike the Special Defenses which is presently before this court.
DISCUSSION OF THE LAW
"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." (International 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.
AS TO COUNT TWO — RECKLESS OPERATION
In count two of the Third Revised Complaint, the plaintiff claims that the defendant was reckless in that he disconnected the MPRS in violation of Connecticut General Statute Section 14-100a(c)(1) and thereby knowingly operated his vehicle with defective equipment in violation of Connecticut General Statute Section 14-222.
In his Special Defense to this count, the defendant claims that the injuries and damages alleged in count two were proximately caused in part by the plaintiff's own carelessness and that she herself was negligent in eight ways. All of these defenses are an attempt to hold the plaintiff responsible for her failure to wear her seat belt.
The law of the state of Connecticut is very clear. We have a statute which reads as follows:
Sec. 14-100a(c)(3)
(3) Failure to wear a seat safety belt shall not be considered as contributory negligence nor shall such failure be admissible evidence in any civil action. (Emphasis added.)
In Bower v. D'Onfro, 38 Conn.App. 685 (1995) 663 A.2d 1061, the court held that the provisions of the above statute were constitutional. It held: "The defendant's first claim is one of substantive due process. They argue that it was the plaintiff's failure to wear her seat belt that caused her injuries and not Bradley Ausmus' reckless driving. The defendants claim, therefore, that they cannot constitutionally be liable for the plaintiff's injuries because Ausmus did not cause her to be thrown from D'Onfro's vehicle." Bower, p. 689.
"The defendants' due process argument is based on their assertion that a defendant cannot be held liable for an injury when his conduct does not directly cause the injury. This argument ignores the fact that the legislature can assign statutory responsibility for certain injuries. Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 627 A.2d 1296 (1993), for example, held that the plaintiff could not prevail on her claim that the legislature intended that the public treasury, rather than the landowner, be required to bear the cost of the cleanup of the contaminated property; the legislature could legitimately have determined that an owner's lack of culpability for the existence of a contaminated condition was outweighed by the state's interest in protecting public resources. Therefore, the fact that the defendants claim that the statute would punish people who did not directly cause an injury does not make the statute irrational." Id., 690. "Even if we were to adopt the defendants' premise that a party must have caused an injury in order to be liable for damages, the defendants' definition of causation is unworkable. The plaintiffs alleged and presented evidence at trial to show that Bower's injuries were caused by the joint negligence of D'Onfro and Bradley Ausmus, which began before Bower was thrown from the D'Onfro vehicle. The plaintiffs showed that the conduct of Ausmus and D'Onfro was concurrently negligent, and that the defendants would be liable for Bower's injuries even had she not been thrown from the car. See Tetro v. Stratford, 189 Conn. 601, 605, 458 A.2d 5 (1983). In Tetro, our Supreme Court stated: "Proximate cause is ordinarily a question of fact . . . The test for finding proximate cause `is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence.' . . . The foreseeable risk may include the acts of the plaintiff and of third parties." Id. Despite the fact that the jury could reasonably have found that Ausmus was speeding, was driving recklessly, did not apply his brakes quickly enough, followed D'Onfro's vehicle too closely and failed to maintain a proper lookout, the defendants' position appears to be that it is irrational for the legislature to have abolished the seat belt defense, especially where the plaintiff is thrown from the vehicle. This issue was addressed in legislative debate. "The failure to wear a seat belt would be in no way involved in the issue of causation of the accident. The courts have clearly held that the failure to wear a seat belt doesn't cause the accident." 28 H.R. Proc., Pt. 23, 1985 Sess., pp. 8352, 8354, remarks of Representative Robert Farr. Cases such as the present case were anticipated and addressed by the legislature. During the legislative debates, the possibility was discussed that a passenger could suffer an injury that he would not have suffered but for the failure to wear a seat belt. Id. 8354. It was made clear that the seat belt defense could not be raised in such a case. Id. Representative Farr stated that "[t]his amendment says . . . you can never raise that defense." Id. Clearly the legislature has decided not to allow arguments such as the defendants' to prevent redress for injured plaintiffs. The legislature focused on the action of the driver, not on the use of a seat belt. The legislature in its debate went so far as to consider that a passenger or driver might have an accident, remove a seat belt, and lose consciousness. Such persons might be barred from seeking redress for damages sustained, a result that the legislature did not want. 28 H.R. Proc., Pt. 23, 1985 Sess., pp. 8343, 8348. As the statute is not irrational, and the defendants were afforded a full and fair trial as to their liability, the defendants were not denied due process of law. Due process is denied when the legislature enacts a law that prescribes new or alters existing rules of evidence or prescribes methods of proof that altogether deny a party his or her constitutional rights. 29 Am.Jur.2d, Evidence § 6. Eliminating the seat belt defense on the issue of causation did not preclude the defendants from making other defenses as to causation." Id., pps 690-91.
All superior court cases that followed have held firm and fast to the rule that the Connecticut safety belt statute, enacted in 1985, provides that "[f]ailure to wear a seat safety belt shall not be considered as contributory negligence nor shall such failure be admissible evidence in a civil action." General Statutes § 14-100a(c)(4). The legislative history of that statute indicates that certain representatives favored allowing a mitigation of damages for failure to wear a seat belt, but did not prevail. Although the issue of mitigating damages has not been directly addressed by our Appellate Courts, the Superior Court appears to have held consistently that "§ 14-100a(c)(4) bars evidence of the failure to wear a seat belt for the purpose of proving contributory negligence or the failure to mitigate damages." Rivera v. Agency Rent-A-Car, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 385994 (April 20, 1992, 6 Conn. L. Rptr. 355) (Burns, J.); Dunn v. Newington Children's Hospital, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 529291S (February 14, 1994, 11 Conn. L. Rptr. 77) (Mulcahy, J.) (motion to strike seat belt defense granted); Anderson v. Peerless Ins. Co., Superior Court, Judicial District of Middlesex, Docket No. 66861 (February 3, 1993, 8 C.S.C.R. 241) (Walsh, J.) [ 8 Conn. L. Rptr. 728] (motion to strike seat belt defense granted); Sirotnak v. Rivera, Superior Court, Judicial District of Fairfield, Docket No. 243066 (October 14, 1988, 3 C.S.C.R. 886) (Berdon, J.) (motion to strike seat belt defense granted). "By making evidence of the failure to wear a safety belt inadmissible, the legislature endorsed a policy that, despite the duty to wear a safety belt, a driver or passenger who was injured (while not wearing a safety belt) through the negligence of another should not have his or her recovery reduced." Ruth v. Poggie, Superior Court, Judicial District of Rockville, Docket No, 9352750S (November 22, 1993, 10 Conn. L. Rptr. 412, 413) (Klaczak, J). See Partman v. Budget Rent-A-Car of Westchester, 43 Conn.Sup. 239 (1999) (Lewis, J.). See also Landodolfi v. Barnett, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 07-5011334 (April 9, 2008, Cosgrove, J.).
All of these cases (and the cases they cite in their opinions) have held that the "sole purpose of 14-100(a) was to benefit the plaintiffs by preventing the defendants from using the seatbelt defense to reduce damage awards in civil cases . . ." Landolfi, p. 5712.
To the extent that the defendant's special defenses sound in "assumption of the risk" (though not specifically plead in that language), since assumption of the risk was abolished those defenses are inappropriate.
Therefore, the Motion to Strike the Special Defense as to Count Two is granted.
AS TO COUNT THREE — ENHANCED INJURIES CLAIM
In count three of the Third Revised Complaint, the plaintiff claims that by violating Connecticut General Statutes Section 14-100a(c)(1) the defendant exposed the plaintiff to an unreasonable risk of enhanced injuries.
In his Memorandum of Decision dated September 4, 2007, Judge Gilardi ruled that the plaintiff could plead enhanced injuries due to the failure of the plaintiff to have available a properly functioning seat belt system.
in his Special Defense to this count, the defendant claims that the injuries and damages alleged in count three were proximately caused in part by the plaintiff's own carelessness and that she herself was negligent in eight ways. All of these defenses are an attempt to hold the plaintiff responsible for her failure to wear her seat belt.
The defendant argued that he is not claiming that the amount of damages for the plaintiff should be reduced due to her failure to wear a seat belt from the initial impact, rather the defendant argued that since the plaintiff is entitled to raise the claim of enhanced injuries due to failure to have a properly functioning seat belt system available to the plaintiff, the defendant should be able to argue that the plaintiff knew or should have known that her failure to wear a seat belt, or in this case wear only the lap portion of the seat belt and not the shoulder belt, would result in more injuries to her.
Enhanced injuries are usually plead in products liability cases. It is also known as crashworthiness. Usually in those cases, there is a "negligent" driver of a motor vehicle and a "defect" in the automobile that lead to "enhanced injuries" which would not have taken place but for the defect.
Both the plaintiff and the defendant agree that there are no cases in Connecticut which discuss enhanced injuries and a motor vehicle accident wherein the "defect" was "created" by the defendant. The following three cases direct this court to a decision on the Motion to Strike.
Dunn v. Newington Children's Hospital, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 93-0529291S (February 9, 1994 Mulcahy, J.) 1994 Ct.Sup 1332, wherein the defendant's first special defense asserted that any injuries and losses suffered by Deborah D. Dunn were a direct and proximate result of her failure to wear the seat belt which was available in the automobile for her use. The court found that: "The language of General Statutes Section 14-100a(c)(4) is dispositive; it provides: `[f]ailure to wear a seat safety belt shall not be considered as contributory negligence nor shall such failure be admissible in any civil action.' The accident in this case occurred well after the enactment of Section 14-100a(c)(4) and, therefore, the statute pertains. cf. Futterleib v. Mr. Happy's, Inc., 16 Conn.App. 497, 50203 (1988). See also: Anderson v. Peerless Insurance Co., 8 CSCR 241 (1993); Rivera v. Agency Rent-A-Car, (Htfd. J.D. 4/20/92); Patel v. W.F. Painting, Inc., 7 CSCR 136 (1992); DeAlba v. George, (Htfd. J.D. 12/4190)." Pp. 1332-333.
In Partman v. Budget Rent-A-Car of Westchester, 43 Conn.Sup. 239 () 649 A.2d 275 (1994), in the second special defense the defendant alleged that the plaintiff failed to use a seat belt in violation of New York Vehicle and Traffic law and the plaintiff filed motions to strike claiming that under Connecticut law, the failure to use a seat belt is not a defense to liability nor does it mitigate damages. The Partman case involved an issue of choice of law, New York which allowed mitigation of damages for failure to wear a seat belt and Connecticut's law. The court found that "the legislature endorsed a policy that a driver or passenger injured while not wearing a seat belt should not have his or her recovery reduced. Thus, Connecticut has an interest in protecting the compensation rights of its domiciliaries" Id., p. 245. The court went on "Application of New York law on the issue of damages, however, would indeed impair Connecticut's interest in providing full compensation for its injured domiciliaries" Id., p 246. In footnote 3 the court noted that "[B]efore passage of the amendment to the statute making seat belts mandatory, there was debate in the House of Representatives regarding the fact that the statute did not permit mitigation of damages, and several representatives expressed their opinions that if a citizen is injured through the fault of another, he or she should not suffer a penalty, even if a seat belt was not worn at the time of the accident. 28 H.R. Proc. Pt. 231, 1985 Sess. pp. 553, 556, 564, 568, 572-73" Id., p. 246.
In Ciccarelli v. Turner, Superior Court, judicial district of New London at New London Docket No. CV 5000551 (November 17, 2006, Hurley, J.T.R.) [ 42 Conn. L. Rptr. 399] the plaintiff was a passenger in a truck which was being driven by one of the defendants, Ryan Scarpa. The plaintiff was a minor and was not wearing a seat belt. The plaintiffs claim that Mr. Scarpa was negligent in that he failed to secure his minor passenger in a seat belt. The defendant's filed a motion to strike.
In their motion to strike, "the defendants argued that § 14-100a(c)(3) precludes the admission of evidence of failure to wear a safety belt, barring the plaintiff's claim under § 14-100a(c)(1). In opposition to the motion to strike, . . . the plaintiffs claim that § 14-100a(c)(3) was designed to protect injured plaintiffs from the defense that their injuries were caused by their failure to wear safety belts." Ciccarelli, p 21561.
The Ciccarelli court did an extensive review of the legislation and the legislative history of Conn. General Statute Section 14-100a. The court found that "the purpose of subsection (c)(3) of that section is to prevent a defendant from introducing evidence of a plaintiff's violation of § 14-100a(c)(1) as a defense in a civil action to reduce the plaintiff's damage award; neither the text nor the legislative history contains any indication that it was intended to preclude a plaintiff from stating a claim against a defendant based on a violation of § 14-100a(c)(1). During the discussion of the amendment to this statute in 1985 in the House of Representatives, House Bill No. 5338, entitled "An Act Requiring the Use of Seat Safety Belts," Representative Wenc described how the statute would operate without the amendment by stating: "If this amendment is rejected . . . the seat belt defense will be used to reduce or eliminate the damages to the injured party." 28 H.R. Proc., Pt. 23, 1985 Sess., p. 8359. Representative Farr stated that the amendment "is about the question of mitigation of damages . . . This [amendment] would make the law say that it doesn't matter whether you wear the seatbelts or not. If you [don't] wear the seatbelts and you get injured, you're going to get exactly the same recovery . . ." 28 H.R. Proc., supra, p. 8343-44. Representative Farr, an opponent of the amendment, summarized the then current law and the effect of the amendment by stating: "In Connecticut today, you can raise that defense of failure to wear a seatbelt. Under this bill, you could not raise that defense." 28 H.R. Proc., supra, p. 8354." Id., pp 21561 — 62.
As to the facts of this case the key language of the legislative history is as follows: "During the legislative debates, the possibility was discussed that a passenger could suffer an injury that he would not have suffered but for the failure to wear a seat belt . . . It was made clear that the seat belt defense could not be raised in such a case . . . Clearly the legislature has decided not to allow arguments [that the plaintiff's failure to wear her seatbelt caused her injuries] to prevent redress for injured plaintiffs." (Citations omitted.) Bower v. D'Onfro, 38 Conn.App. 685, 691, 663 A.2d 1061, cert. denied, 235 Conn. 911, 665 A.2d 606 (1995)." Ciccarelli, p. 21563.
Therefore, the Motion to Strike the Special Defense to Count Three is granted.