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PRITTS v. WALTER LOWERY TRUCKING CO.

September 3, 1975

Bertrum G. Pritts, Executor of the Estate of Annabelle Sunderland Pritts, Plaintiff
v.
Walter Lowery Trucking Company, Defendant v. Dennis L. Merrey, Third-Party Defendant



The opinion of the court was delivered by: SNYDER

 SNYDER, J.

 The Court in this diversity action has before it a Motion for Partial Summary Judgment filed by the Plaintiff to eliminate the defense of contributory negligence and assumption of risk by reason of the failure to wear a seat belt.

 An accident occurred at the intersection of Interstate 80 and Pennsylvania Route 897 in Lawrence Township, Clearfield County, Pennsylvania, and the Decedent, a passenger in an automobile driven by Dennis L. Merrey, was thrown from the car and killed in a collision with a tractor-trailer owned by the Defendant and operated by one of its employees, Edward Gunder. *fn1" Plaintiff-Executor instituted Wrongful Death and Survival Actions against the Defendant trucking company, alleging negligence in the failure to stop at a controlled intersection and in operating at an excessive rate of speed. Defendant interposed a general denial of acts of negligence on its part and the defenses of contributory negligence and assumption of risk. *fn2"

 The Plaintiff by way of Interrogatory asked the Defendant:

 
"10[& 11]. State specifically and with particularity, the alleged acts of contributory negligence [and assumption of risk] that this plaintiff's decedent committed?"

 In each instance, the answer given was "Failure to wear seat belts." Plaintiff then filed the instant Motion.

 Our research fails to disclose that the "seat belt defense" has been ruled upon in any reported Pennsylvania appellate decisions. This Court must, therefore, predict how the Pennsylvania courts would rule:

 
"When a purchaser claims damages from a seller because of a defective product, there is often a need to evaluate the proper roles of Section 402A of the Restatement of Torts 2d and the Uniform Commercial Code. This appeal presents such an occasion. Specifically, we are confronted with the question of whether a seller may disclaim responsibility for any potential liability under § 402A, and, if so, what conditions must be met.
 
This is a diversity case, and we must be guided by the Erie light of Pennsylvania law, an uncertain illumination at best since the appellate courts of that state have not yet addressed themselves to the issue. We are mindful that our assigned role is to predict and not to form state law and so will utilize those guide posts which are available." Keystone Aeronautics Corp. v. R.J. Enstrom Corp., 499 F.2d 146 (3d Cir.1974) at p.147.

 Four approaches have been taken in such circumstances: *fn3"

 (2) failure to make use of an available seat belt constitutes negligence per se barring recovery;

 (3) in not making use of an available seat belt, the plaintiff's decedent may not have conformed to the general standard of conduct which would be followed by a reasonable man of ordinary prudence under similar circumstances;

 (4) plaintiff should not be allowed to recover damages for those injuries which seat belts would have prevented and should have damages diminished for those injuries ...


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