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Estate of Hunter

January 14, 1999

THE ESTATE OF JOSEPH L. HUNTER, DECEASED AND IDA MAE ROGERS, WILLIE GREENWOOD AND JESSIE WARD
v.
GENERAL MOTORS CORPORATION AND FRANK WILSON, CHANCERY CLERK OF CLAIBORNE COUNTY, MISSISSIPPI, AS THE ADMINISTRATOR OF THE ESTATE OF JOSEPH HUNTER, DECEASED; AND GENERAL MOTORS CORPORATION AND CARTER AUTO SALES, INC.



The opinion of the court was delivered by: Prather, Chief Justice

DATE OF JUDGMENT: 8/30/96 TRIAL JUDGE: HON. J. BRAD PIGOTT COURT FROM WHICH APPEALED: CLAIBORNE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION: REVERSED AND REMANDED - 1/14/1999

BEFORE PRATHER, C.J., ROBERTS AND MILLS, JJ.

STATEMENT OF THE FACTS

¶1. On March 8, 1992, a tractor-trailer truck driven by Lowell D. Gann and owned by Rowe Machinery Salvage & Sales, Inc. ran a stop sign and collided with a 1981 Oldsmobile Toronado driven by Joseph Hunter. There were three passengers in the Toronado at the time of the accident: Ida Rogers, Willie Greenwood, and Jessie Ward. Officer William Neeley was one of the first officers on the scene of the accident, and he described the scene as follows:

A: The back part of both seats- the back part of the front seat on both sides was pushed forward. The black male that was in the back seat was lying on top of the passenger in the front seat. The driver's head was laying on the dashboard along with Ida Mae Rogers and the black male from the back seat. I mean there were heads laying on the dashboard. Q: Let me ask you about Ms. Rogers. Was any part of the seat laying up on top of her?

A: Right. The back part of the front seat had been pushed forward from the body- from the two bodies in the back seat of the car.

Q: Where was Mr. Greenwood ?

A: He was on the top of the back part of the seat which was folded down on top of Ida Mae Rogers.

The first witness to the scene, Michael Phillips, testified that the occupants of the Toronado were not wearing seatbelts, and Deputy Neeley also testified to this effect. Jessie Ward maintained, however, that she had in fact been wearing her seatbelts at the time of the accident. ¶2. Hunter died from injuries sustained in the accident, and he was survived by a fifteen-year old son, Joseph Jr. In addition to the death of Hunter, Ida Rogers suffered a subluxation of the spine at the C6-7 vertebral area, causing incomplete quadriplegia. Ida's sister, Jessie Ward, testified that Ida was unable to walk or use her hands to grasp objects as a result of her paralysis. Willie Greenwood suffered a concussion and severe head lacerations in the accident, and he testified to recurring headaches and dizziness following the accident. Dr. Richard Beattie testified that Willie had suffered significant neurological impairment as a result of the accident.

STATEMENT OF THE CASE

¶3. Following the accident, the passengers and the Estate of Hunter ("the plaintiffs") *fn1 sued the owner of the truck, William L. Rowe Machinery Salvage and Sales, Inc. and its driver, Lowell Gann, in the Circuit Court of Claiborne County. The passengers also sued the Estate of Hunter, alleging that Hunter's negligence had contributed to the accident. Prior to trial, the Plaintiffs reached a settlement with Gann and his employer, collecting over $1,000,000.00 in settlement proceeds from these defendants. The passengers reserved their claim for negligent driving against the Estate of Hunter, however, thus retaining venue in Claiborne County (and joining the Chancellor as administrator) even though the accident occurred in Adams County.

¶4. The Plaintiffs later joined General Motors and a Port Gibson used car dealer in their lawsuits, and the case against GM proceeded through extensive discovery. The Plaintiffs and Hunter took the depositions of several current and former GM employees, along with the depositions of all of GM's expert witnesses. The case proceeded to trial on August 19, 1996, following which the jury returned unanimous verdicts in favor of GM and in favor of Hunter as a defendant. The plaintiffs timely filed an appeal to this Court, and the passengers also filed an appeal as to the Estate of Hunter.

ISSUES

I. Did the trial court err in not applying the Settlement First Method?

¶5. The plaintiffs argue that the trial court erred in not implementing the "settlement first" method endorsed by this Court in McBride v. Chevron, USA, 673 So.2d 372 (Miss. 1996). This argument is without merit. The settlement-first method provides a method of adjusting a verdict against a defendant to reflect an earlier settlement with a joint tortfeasor. See McBride, 673 So.2d at 376. Given that the jury returned a verdict in favor of the defendants in the present case, there is no judgment which must be adjusted under the facts herein. Therefore, the settlement-first method is clearly inapplicable to the present case. In addition, it is worth noting that this Court held in McBride that:

"This opinion is limited, however, to cases in which, as here, the trial court instructed the jury to consider only the relative culpabilities of the plaintiff and the non-settling defendant(s) in apportioning fault under comparative negligence principles."

Id. at 381. The trial Judge in the present case instructed the jury to consider the fault of the settling defendant (Gann) in apportioning fault in the present case, and McBride would therefore be inapplicable on its face to the present case even if a verdict reduction procedure were required herein, which it is clearly not. This point of error is without merit.

II. Whether the trial court erred in admitting evidence of the non-use of seatbelts in violation of Miss. Code Ann. § 63-2-3?

Whether the trial court erred in instructing the jury that the failure of the plaintiffs to wear seat belts could be considered as evidence of contributory negligence, directly contrary to Miss. Code Ann. § 63-2-3 (1996).

¶6. The Plaintiffs argue that the trial court committed reversible error in admitting evidence that the rear passengers were not wearing seatbelts at the time of the accident and in instructing the jury that seat belt non-usage constituted contributory negligence. Miss. Code Ann. § 63-2-3 (1996) provides that:

"This chapter shall not be construed to create a duty, standard of care, right or liability between the operator and passenger of any passenger motor vehicle which is not recognized under the laws of the State of Mississippi as such laws exist on the date of passage of this chapter or as such laws may at any time thereafter be constituted by statute or court decision. Failure to provide and use a seat belt restraint device or system shall not be considered contributory or comparative negligence, nor shall the violation be entered on the driving record of any individual."

Miss. Code Ann. § 63-2-3 thus provides that the non-usage of seat belts may not be "considered contributory or comparative negligence," but the statute does not forbid the admission of evidence of seat belt non-usage outright *fn2 .

¶7. This Court has on two prior occasions reversed cases based at least in part upon the erroneous admission of evidence of seat belt non-usage. See: Roberts v. Graf Auto Co., 701 So.2d 1093 (Miss. 1997); Jones v. Panola County, 96-CA-00762 (Miss. May 14, 1998).

II (a) Is Miss. Code Ann. § 63-2-3 an improper statutory rule of evidence?

¶8. GM raises an argument which was not raised in either Roberts or Jones, arguing that § 63-2-3 should not be given the effect of a statutory rule of evidence. Specifically, GM argues that:

Finally, to allow § 63-2-3 to prevent admission of fact testimony that Plaintiffs were not wearing seat belts would equate to a statute to a rule of evidence. In Hughes v. Tupelo Oil Co., 510 So.2d 502 (Miss. 1987), this Court held that the adoption of the Rules of Evidence, particularly Rule 501, abrogated all statutory privileges. This Court has consistently ruled there can be no statutory rule of evidence. Whitehurst v. State, 540 So.2d 1319, 1323 (Miss. 1989).

¶9. In noting that this Court has held that there can be no statutory rule of evidence, GM is correct. Miss. Code Ann. § 63-2-3 is not an improper exercise of legislative power, however, given that the statute does not purport to bar the admission of seat belt non-usage in all cases, but rather forbids the non-usage of seat belts from being considered as contributory or comparative negligence. While this statute does have significant implications as far as the admission of seat belt evidence is concerned, this fact is hardly unusual, given that substantive rules of law set forth by the Legislature very often have implications in this regard.

¶10. It is apparent that many states have enacted statutes similar to § 63-2-3, and federal courts have grappled with the related issue of whether such statutes constitute substantive rules of law or procedural rules of evidence for Erie purposes. In Barron v. Ford Motor Co. of Canada, Ltd., 965 F.2d 195 (7th Cir. 1992), the Seventh Circuit noted that:

(The North Carolina seatbelt statute) is a rule of evidence if it is motivated by concern that jurors attach too much weight to a plaintiff's failure to wear his seatbelt. It is a substantive rule if it is designed not to penalize persons who fail to fasten their seatbelts. ... The more broadly the North Carolina rule is interpreted, the stronger the inference that its predominant character is that of a rule of evidence. ... If our understanding of the scope of the rule is correct, then the rule is substantive ... "

Barron, 965 F.2d at 199-200. A similar holding should apply with regard to § 63-2-3. As long as § 63-2-3 is enforced as written and not given an overbroad application, then the statute is best considered to be a substantive statute rather than an improper evidentiary one. ¶11. This Court concludes that evidence of seat belt non-usage may constitute relevant evidence in some (but by no means all or even most) cases, so long as (1) the evidence has some probative value other than as evidence of negligence; (2) this probative value is not substantially outweighed by its prejudicial effect (See Miss. R. Evid. 103) and is not barred by some other rule of evidence and (3) appropriate limiting instructions are given to the jury, barring the consideration of seat belt non-usage as evidence of negligence.

¶12. Persuasive authority indicates that Courts applying statutes similar to Miss. Code Ann. § 62-2-3 have permitted the introduction of seatbelt non-usage with appropriate limiting instructions in crash-worthiness cases. In DePaepe v. General Motors Corp., 33 F.3d 737 (7th Cir. 1994), for example, the trial court granted a limiting instruction which provided in part that:

You may consider the fact that plaintiff's 1984 Buick Regal was equipped with functional seat belts in accordance with federal and Illinois law for the purpose of determining whether the overall design of the vehicle was reasonably crashworthy. However, you may not consider plaintiff's use or non-use of seat belts in determining, one, whether the plaintiff was at fault for his own injuries and/or, two, whether plaintiff's use or non-use of his seat belt caused his injury.

DePaepe, 33 F.3d at 745. In the view of this Court, the instruction in DePaepe effectively balances the manufacturer's right to establish his defense in a crash-worthiness lawsuit while at the same time precluding the jury's consideration of seatbelt non-usage as evidence of negligence.

¶13. It is quite apparent, however, that the instruction in the present case did not make any attempt whatsoever to limit the jury from considering evidence of seat belt non-usage as evidence of contributory negligence. To the contrary, Instruction D2-26 explicitly instructed the jury that:

The Court instructs the jury that Jessie Ward, Willie Greenwood, Ida Rogers, and Joseph Hunter had a legal duty, in the exercise of their reasonable care for their own safety, to use the seat belts that were available to them. If you find from a preponderance of the evidence in this case that Jessie Ward, Willie Greenwood, Ida Rogers and Joseph Hunter failed to use their seat belts, then such failure was negligence. If you should further find from a preponderance of the evidence that such negligence, if any proximately caused or contributed to their injuries, then you cannot award Plaintiffs any damages for injuries that you find from a preponderance of the evidence could have been avoided by the use of the seat belts and you should reduce the amount of your verdict accordingly.

Instruction D2-26 thus constitutes a clear violation of § 63-2-3, and the record indicates that the trial Judge was aware of the provisions of this statute. In response to the plaintiffs' objections to the proposed GM instruction, the trial Judge stated that:

I'm going to give it. I'm going to give it. And if the Supreme Court wants to say that you don't have to use your seat belts, that you can just sit on the top of the buckles and claim damages, let them say so, you know. That's all right with me. It doesn't bother me at all. I buckle mine, but ...

The Judge later stated that:

It's quite likely that the damages in this case would have been substantially less severe if they'd just buckled up the seat belt that was manufactured and put in the car for that purpose. And just because some people got the legislature to pass that (§ 63-2-3), it doesn't bother me at all. All right.

It is thus apparent that the trial Judge and GM were both on notice as to the requirements of this statute.

II(b) Does Miss. Code. Ann. § 63-2-3 apply to a crashworthiness cause of action?

¶14. GM next argues that § 63-2-3 should be held inapplicable in a crashworthiness lawsuit. GM submits that "other courts across the United States have held evidence of seat belt non-use is highly relevant to claims of defective product (sic.) in a crash worthiness case." Ironically, the first case cited by GM in support of this proposition is the DePaepe case discussed supra, in which the court specifically instructed the jury that:

However, you may not consider plaintiff's use or non-use of seat belts in determining, one, whether the plaintiff was at fault in his own injuries and/or, two, whether plaintiff's use or non-use of his seat belt caused his injury. Id.

While the court in DePaepe specifically instructed the jury not to consider seat belt non-usage as evidence of negligence, the Judge in the present case specifically instructed the jury that the non-usage of seat belts was in fact negligence. Such an instruction constitutes a violation of ยง 63-2-3, and there is no aspect of a ...


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