Derheim v. N. Fiorito Co.

Supreme Court of Washington, En Banc · 1972 · Torts

TortsAutomobile negligenceSeat belt defenseRules of the roadseat belt defensecontributory negligenceavoidable consequencesmitigation of damages

Facts

Defendant construction company was performing highway work near Interstate 5 and directed loaded dump trucks along an off-ramp, under the interstate, and then left across old Highway 99 to a parallel on-ramp leading to a dump area. Plaintiff drove south on the off-ramp behind defendant's dump truck at a lawful speed, and the collision occurred when plaintiff overtook the truck as it began a sweeping left-turn maneuver from the right lane across both lanes. The trial court instructed the jury under various rules-of-the-road statutes and rejected defendant's argument that only ordinary care applied under the highway-work exception. Before trial, the court also refused to allow defendant to amend its answer to assert plaintiff's failure to wear an available seat belt as contributory negligence and barred any reference to seat belt nonuse.

Issue

Whether the trial court erred by instructing the jury under the ordinary rules of the road rather than only ordinary care under RCW 46.61.030, and whether it erred in excluding evidence that plaintiff failed to wear an available seat belt as contributory negligence, mitigation of damages, or avoidable consequences.

Rule

Under RCW 46.61.030 as then written, the rules of the road remain applicable to vehicles traveling to or from highway work; the statutory exemption applies only while actually engaged in work upon the surface of the highway. In Washington, where there is no statutory duty to wear seat belts, evidence of a plaintiff's failure to wear an available seat belt is not admissible as contributory negligence, mitigation of damages, or proof of avoidable consequences.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Tacoma, Olivia Mercer stopped at a red light when a delivery van owned by Sound Crest Logistics rear-ended her car. At trial, the company offers evidence that Olivia's sedan had a functioning lap belt and that she was not wearing it, arguing her nonuse was contributory negligence because it increased her injuries.

How should the court rule on the offered evidence?

Explanation. The majority held that, in Washington, where there is no statutory duty to wear seat belts, evidence of a plaintiff's failure to wear an available seat belt is not admissible as contributory negligence. The court rejected treating pre-accident nonuse as contributory negligence even when the evidence suggests greater injury resulted.