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HOWARD S. MCKEE AND MARGARET D. MCKEE v. SOUTHEAST DELCO SCHOOL DISTRICT AND ALFRED B. THOMAS (07/11/86)

filed: July 11, 1986.

HOWARD S. MCKEE AND MARGARET D. MCKEE, INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF CHERYL ANN MCKEE, A MINOR,
v.
SOUTHEAST DELCO SCHOOL DISTRICT AND ALFRED B. THOMAS, INC., INDIVIDUALLY AND T/A PANDA VAN LINES, AND DELAWARE COUNTY INTERMEDIATE UNIT # 25. APPEAL OF ALFRED B. THOMAS, INC., INDIVIDUALLY AND T/A PANDA VAN LINES



Appeal from Order of the Court of Common Pleas, Civil Division, of Delaware County, No. 79-17867.

COUNSEL

Walter J. Timby, Philadelphia, for appellant.

Robert E. Slota, Bryn Mawr, for appellees.

Cirillo, President Judge, and Rowley and Wieand, JJ.

Author: Wieand

[ 354 Pa. Super. Page 434]

In this action to recover damages for personal injuries sustained by a six year old child who was thrown from her seat when the school van in which she was riding stopped suddenly, the trial court set aside a defense verdict and granted a new trial because it had excluded evidence that the operator of the van failed to use available seat belts to restrain the child. From the order granting a new trial, the owner of the school van has appealed. We affirm.

[ 354 Pa. Super. Page 435]

On October 4, 1978, six year old Cheryl Ann McKee was a passenger in a school van owned by Alfred B. Thomas, Inc. Cheryl was seated in the center of the row of seats behind the driver, so that she was situated to the rear of the console located aside of the driver's seat. While en route to the Harris Elementary School in Media, Delaware County, the driver of the van was forced to stop suddenly in order to avoid collision with a vehicle which had pulled out in front of the van. When the van came to a stop, Cheryl was lying on the floor, near the console, with injuries to her mouth and jaw.

Cheryl's parents brought an action against the owner of the van in their own right and on behalf of their daughter to recover for the injuries which Cheryl had sustained.*fn1 A jury trial resulted in a verdict in favor of the defendant. The trial court granted a motion for new trial because it concluded that error had occurred when evidence was excluded that available seat belts had not been used to restrain Cheryl.

Most decisions involving the admissibility of evidence regarding the non-use of available seat belts have been cases in which the evidence was being offered to show contributory negligence of an injured plaintiff. A majority of the courts considering this issue have held that a plaintiff's non-use of an available seat belt is not admissible for the purpose of showing that the plaintiff was guilty of contributory negligence or for the purpose of mitigating damages. See generally: Annot., 92 A.L.R.3d 9 (1979); Annot., 80 A.L.R.3d 1033 (1977). These courts have generally held that, absent a statutory mandate, a person does not have a duty to use a seat belt. See: 92 A.L.R.3d at § 3[b]; 80 A.L.R.3d at § 4; Clarkson v. Wright, 108 Ill.2d 129, 90 Ill.Dec. 950, 483 N.E.2d 268 (1985). Other courts, however, have held that a failure to use an available seat belt, depending upon the circumstances and evidence

[ 354 Pa. Super. Page 436]

    presented, may be received as evidence of contributory negligence. These courts, at least implicitly, have held that there is a duty to wear an available seat belt even in the absence of statutory mandate. See: 92 A.L.R.3d at § 5; 80 A.L.R.3d at § 3; Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626 (1967); Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164 (1974).

This issue and the division of authority were recognized by the Superior Court in Parise v. Fehnel, 267 Pa. Super. 79, 406 A.2d 345 (1979). Because a resolution of the issue was not essential to the decision, however, the Court expressly cautioned, "[o]ur decision today should not be seen as foreclosing the possibility of a so-called seat belt defense in future cases." Id., 267 Pa. Superior Ct. at 82, 406 A.2d at 347. In Parise, the plaintiff had been injured when, as a result of a collision, she was thrown forward in such a manner that her chest hit the steering wheel and her knees hit the dashboard. The evidence was that she had failed to use an available seat belt. The defendant requested a jury instruction that a failure to use the seat belt could be considered in determining the amount of damages which he should be required to pay. The trial court refused the requested instruction because the defendant had failed to offer medical or other evidence to show in what manner the plaintiff's injuries would have been lessened if the available restraint had been used. The Superior ...


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