Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Peoria County,
the Hon. James M. Bumgarner, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 27, 1985.
Plaintiff, Larry Clarkson, appealed from the judgment of the circuit court of Peoria County entered upon a jury verdict in his favor against defendant, William Wright. The appellate court affirmed (121 Ill. App.3d 230), and we allowed plaintiff's petition for leave to appeal (94 Ill.2d R. 315(a)). The facts are adequately set forth in the opinion of the appellate court and will be stated here only to the extent necessary to discuss the issues.
Plaintiff was injured when the automobile owned by his employer and being driven by plaintiff was struck by defendant's automobile. Plaintiff brought this action seeking damages for the injuries which he alleged were caused by defendant's negligence. Plaintiff alleged that he suffered a fractured wrist and serious facial lacerations, and special damages of $5,629 for medical expenses of $2,509, and lost wages of $3,120. The jury returned a verdict for plaintiff in the amount of $3,620, which was reduced by 50% to $1,810 based upon the jury's determination of the parties' comparative negligence.
Plaintiff contends that because defendant failed to prove that the seat belt in the automobile was in working order and available for use the circuit court erred in admitting evidence of plaintiff's failure to use a seat belt. He argues that the "present Illinois rule that the seat belt defense can be considered in mitigation of damages is unsound." (See Mount v. McClellan (1968), 91 Ill. App.2d 1.) Plaintiff and amicus curiae, the Illinois Trial Lawyers Association, argue too that, with the adoption of comparative negligence, evidence of the failure to use a seat belt will result in a double reduction of damages because juries will consider it both in their comparative-negligence deliberations and will further reduce damages to the extent which they determine use of the seat belt would have prevented.
Defendant contends that "consistent with principles of equitable distribution and apportionment of loss," evidence of plaintiff's failure to use a seat belt requires a reduction in his damages where the failure to use a seat belt has resulted in additional or enhanced injuries. Defendant argues that the "overwhelming recognition of the efficacy of seat belts by both the scientific community and the courts of sister States supports the consideration of plaintiff's failure to wear an available seat belt to reduce recoverable damages." Amicus curiae, the Illinois Defense Counsel, argues that a plaintiff is under a duty to exercise ordinary care for his safety and that this "duty extends to the utilization of restraints to avert or mitigate against the consequences of vehicular collisions." Defendant contends too that plaintiff's failure to use a seat belt was properly admissible both on the issue of comparative negligence and plaintiff's failure to mitigate damages under the doctrine of avoidable consequences, but more appropriately should be considered on the issue of liability.
The question whether failure to use a seat belt may be shown in automobile personal injury litigation either as evidence of contributory negligence or as failure to mitigate damages has been the subject of much controversy. See, e.g., Annot., Nonuse of Automobile Seatbelts as Evidence of Comparative Negligence, 95 A.L.R.3d 239 (1979); Annot., Automobile Occupant's Failure to Use Seat Belt as Contributory Negligence, 92 A.L.R.3d 9 (1979); Annot., Nonuse of Seat Belt as Failure to Mitigate Damages, 80 A.L.R.3d 1033 (1977); Snyder, The Seat Belt as a Cause of Injury, 53 Marq. L. Rev. 211 (1969-70); Kleist, The Seat Belt Defense An Exercise in Sophistry, 18 Hastings L.J. 613 (1966-67); J. Stein, Damages and Recovery, Personal Injury and Death Actions sec. 127 (1972); 2 M. Bender, The Seat Belt Defense, Damages in Tort Actions sec. 16.40 et seq. (1984).
Although this court has not previously considered the issue, the appellate court has done so on a number of occasions. The rule as stated in the opinions of the appellate court is that the trier of fact may not consider the failure to use seat belts on the issue of liability (Josel v. Rossi (1972), 7 Ill. App.3d 1091), but may be instructed with respect to the failure to use seat belts on the issue of damages if there is competent evidence to show a causal connection between the plaintiff's failure to use an available belt and the injuries and damages sustained. (Eichorn v. Olson (1975), 32 Ill. App.3d 587.) Prosser describes the relationship between plaintiff's negligence and his duty to mitigate damages as follows:
"Closely allied to the doctrine of contributory negligence is the rule of `avoidable consequences,' which denies recovery for any damages which could have been avoided by reasonable conduct on the part of the plaintiff. Both rest upon the same fundamental policy of making recovery depend upon the plaintiff's proper care for the protection of his own interests, and both require of him only the standard of the reasonable man under the circumstances." Prosser, Torts sec. 65, at 422-23 (4th ed. 1971).
We fail to perceive the value of attempting to analyze, compare or reconcile the many decisions reviewed in the authorities cited. We agree with the majority view that failure to use a seat belt was not negligence or contributory negligence which caused the accident out of which plaintiff's injuries arose. At most, the failure to use a seat belt created a condition which possibly may have increased the severity of plaintiff's injuries.
Section 12-603 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 12-603) required the installation of two sets of seat belts in the front seat of all automobiles manufactured after 1964 and prohibited any person from operating an automobile manufactured after 1960 which is not so equipped. The statute contained no requirement that seat belts be used until the enactment of Public Act 83-1507 ("An Act to add Section 12-603.1 to `The Illinois Vehicle Code,'" approved January 8, 1985, effective July 1, 1985), which in pertinent part, provides:
"(a) Each driver and front seat passenger of a motor vehicle operated on a street or highway in this State shall wear a properly adjusted and fastened seat safety belt; * * *.
(d) A violation of this Section shall be a petty offense and subject to a fine not to exceed $25." Ill. Rev. Stat., 1985 Supp., ch. 95 1/2, par. 12-603.1.
Once plaintiff suffered an injury there was, of course, a duty to mitigate the damages in any reasonable way possible. That duty to mitigate damages which arose subsequent to the injury is, however, clearly distinguishable from any duty which existed prior to the injury. Here, there was no statutory duty to wear a seat belt and the presence of the seat belt in the automobile did not create the duty to wear it any more than would the presence in the automobile of a protective helmet create a duty ...