Hierta v. General Motors Corp. , 196 Mich. App. 20 ( 1992 )

196 Mich. App. 20 (1985) 492 N.W.2d 738

HIERTA
v.
GENERAL MOTORS CORPORATION

Docket No. 105753.

Michigan Court of Appeals.

Decided November 19, 1985. Clarified by supplemental opinion February 4, 1986. Decided on rehearing September 9, 1992, at 9:00 A.M.

Meklir, Schreier, Nolish & Friedman, P.C. (by Jay B. Schreier), for the plaintiff.

Dykema Gossett (by Derek I. Meier and Terrence E. Haggerty), for the defendant.

Before: HOLBROOK, JR., P.J., and MacKENZIE and WAHLS, JJ.

ON REHEARING

PER CURIAM.

The plaintiff sustained injuries while riding as a passenger in a truck. The plaintiff's elbow hit the door handle, and he fell out of the truck. Following a trial, a jury found that the defendant was negligent in designing the truck door locking mechanism, but that the plaintiff was comparatively negligent. The jury also found that the defendant did not breach an implied warranty.

In our initial opinion regarding this matter, we reversed and remanded for a new trial on the basis that the trial court erred in allowing the defendant to use as a defense and as evidence of comparative negligence the plaintiff's failure to use a seat belt. Hierta v General Motors Corp, 147 Mich. App. 274; 382 NW2d 765 (1985). We also held that the jury verdict was not inconsistent in finding that the defendant was negligent in designing the truck door locking mechanism and also finding that the defendant did not breach an implied warranty. Id. In a supplemental opinion, we explained that the scope of the remand ordered in our initial opinion was limited to a redetermination of the issue of comparative negligence only. Hierta v General Motors Corp (Supplemental Opinion), 148 Mich. App. 796; 385 NW2d 690 (1986). Our Supreme Court then remanded^[1] for our consideration in light of Granger v Fruehauf Corp, 429 Mich. 1; 412 NW2d 199 (1987). Upon reconsideration, we again concluded, in an unpublished opinion per curiam, decided February 13, 1990 (Docket No. 105753), that the verdicts were not inconsistent beyond reconciliation.

Since our original opinion in this case, our Supreme Court has held that a trier of fact may not be precluded from considering a failure to use an available seat belt when determining if a plaintiff exercised reasonable care under the circumstances. Lowe v Estate Motors Ltd, 428 Mich. 439, 455; 410 NW2d 706 (1987). The defendant in this case argues that this Court's original ruling that the trial court erred in admitting evidence of the plaintiff's failure to use a seat belt is erroneous and that a retrial on the issue of comparative negligence without such evidence would be contrary to the current state of the law.

In our original opinion, we cited Schmitzer v Misener-Bennett Ford, Inc, 135 Mich. App. 350; 354 NW2d 336 (1984), as authority for the proposition that the failure to use a seat belt could not be used to show comparative negligence. We stated that because there was no statute mandating the use of seat belts at the time of the accident, the plaintiff's failure to wear a seat belt did not constitute negligence per se. We reasoned that, at most, the defendant could argue that the plaintiff breached a duty to use ordinary care, but that the Schmitzer Court had held that the duty to exercise ordinary care did not include an obligation to wear a seat belt. See Hierta, supra, 147 Mich App 278-279.

In light of Lowe, we now affirm the trial court's decision to allow the defendant to use as a defense and as evidence of comparative negligence the plaintiff's failure to use a seat belt. The Lowe Court rejected the reasoning in Schmitzer and stated that the admissibility of evidence concerning the failure to use a seat belt does not concern the question of duty. Lowe, supra at 460. Under the law of comparative negligence, every person has an obligation to exercise reasonable care for his own safety. Id. at 456. Consequently, whether the failure to use a seat belt constitutes a departure from the applicable standard of care is a question of fact for the jury. Id. at 462.

Plaintiff in the case at bar argues that this Court's decision to remand the case for retrial on the issue of comparative negligence is unaffected by Lowe. He asserts that Lowe limited the use of evidence of the failure to use a seat belt for the purpose of establishing comparative negligence to situations in which there had been a collision. Accordingly, he further maintains that Lowe is inapplicable because this case does not involve a collision in which the failure to use a seat belt enhanced the injuries.

We are not persuaded by the plaintiff's arguments. Although the incident in Lowe involved a collision, the decision in Lowe is not limited to collision situations only. The Lowe Court's discussion of a plaintiff's obligation to exercise reasonable care for his own safety and the effect of that obligation on the principles of the doctrine of comparative negligence was general in nature. Thus, Lowe held that evidence of a plaintiff's failure to use a seat belt is admissible to establish the defense of comparative negligence.

We conclude that the trial court did not err in allowing the defendant to use as a defense and as evidence of comparative negligence the plaintiff's failure to use a seat belt. Accordingly, there is no need to remand for a new trial on the issue of comparative negligence. We affirm the original jury verdict.

Affirmed.

NOTES

[1] 429 Mich. 887; 416 NW2d 313 (1987).