Don Streater is driving his new Mustang on a two-lane road, Highway 101, on the

Question

Don Streater is driving his new Mustang on a two-lane road, Highway 101, on the outskirts of town. The speed limit on Highway 101 is 45 miles per hour. Albert Hunt is also driving on Highway 101, heading in the opposite direction from Streater. Hunt looks to his passenger seat to find a map, when he veers across the center line into Streater’s direction of travel. The two cars collide; luckily, neither man is killed, but Streater is seriously injured. In financial terms, his medical injuries, medical expenses and pain and suffering are estimated at approximately one hundred thousand dollars.

Streater sues Hunt, alleging negligence on the part of the defendant. The evidence at trial establishes that defendant Hunt was traveling at 50 miles per hour, that he had consumed three beers at lunch approximately 30 minutes before the accident occurred, that he has 20/50 uncorrected vision, and that he was not wearing his prescription eyeglasses at the time of the accident. Evidence at trial also establishes that plaintiff Streater was traveling 50 miles per hour at the time of the accident, and that he was not wearing his seat belt when the collision occurred.

Should the jury return a verdict in favor of Streater in the amount of one hundred thousand dollars (representing his medical injuries, medical expenses, and pain and suffering) plus the associated costs of litigation? Does it matter whether the state in which the accident occurred recognizes the contributory or comparative negligence doctrine? In not wearing his seat belt, did plaintiff Streater “assume the risk?” Please fully explain your answers.

Explanation / Answer

Should the jury return a verdict in favour of Streater in the amount of one hundred thousand dollars (representing his medical injuries, medical expenses, and pain and suffering,) plus the associated costs of litigation?

Possibly. To prevail in a negligence matter, a plaintiff must prove the existence of a duty, breach of that duty, damages, and that the breach of duty caused the damages. Here, Hunt owed Streater a duty to operate his car in a responsible manner that did not injure Streater. This duty is imposed by the common law. One or more statutes probably also supplied the duty (e.g., a statute that imposes on obligation on drivers to exercise due care so as to avoid collisions and a statute that says a driver shall stay within his or her lane of travel).

Hunt breached the duty to drive responsibly by crossing over the centerline into Streater's lane of travel. The facts tell us that Streater suffered damages as a result of the collision. What the facts don't tell us is whether Streater's conduct caused or increased his injuries/damages, the effect of which is discussed below. Hunt appears to have breached the duty of due care he owed to Streater by engaging in conduct that caused his car to veer across the centerline and strike Streater's vehicle.

Specifically, Hunt's search for a map on the passenger seat appears to have been the predominant factor in causing his vehicle to cross the centerline. However, not all of Hunt's conduct necessarily contributed to the cause of the collision. For example, although Hunt had 20/50 uncorrected vision and was not wearing his glasses at the time, the facts also tell us that Hunt was looking down at the passenger seat for a map.

Therefore, if Hunt could have clearly seen the map on the passenger seat in spite of his 20/50 uncorrected vision, the failure to wear his corrective lenses does not appear to have necessarily caused or contributed to the collision. So too, although Hunt had consumed three beers but 30 minutes earlier at lunch, the facts do not provide further facts that would allow us to assess whether Hunt may have been impaired as a result of the beers. For example, Hunt might not have been affected by the beers if he weighed 350 pounds and had consumed a large lunch.

Finally, travelling 5 miles over the posted speed limit did not necessarily cause Hunt to become distracted or cross the centerline (although the increased speed probably increased damage to both Streater and his vehicle).

Does it matter whether the state in which the accident occurred recognizes the contributory or comparative negligence doctrine?

Yes. Under the contributory negligence doctrine (which is a common law doctrine), an injured party's own negligence is a complete defence to the tortfeasor's negligence. Thus, the question becomes, "Was Streater negligent?" The facts tell us that Streater was travelling at 5 MPH over the posted speed limit and that he was not wearing his seatbelt. However, there is nothing in the facts from which we can infer that these factors caused the accident (as compared to perhaps increasing Streater's injuries).

Furthermore, is most states, the failure to use a seatbelt (even in violation of mandatory seat belt laws) cannot be used to prove contributory negligence or to reduce a plaintiff's award of damages. "Comparative negligence" is a doctrine created by statute to ameliorate the potential unfairness that could result from strict application of the contributory negligence doctrine.

Some states have adopted "pure comparative negligence" where the negligence or fault of each party is taken into account, and the plaintiff's damages reduced in proportion to the plaintiff's percentage of fault. Therefore, in such a jurisdiction, Streater could recover 40% of his damages even if he was 60% at fault (note, the facts do not appear to support the conclusion that Streater was 60% at fault).

Other jurisdictions have adopted a modified comparative fault doctrine. Under this doctrine, if the plaintiff is more than 50% at fault, he or she is totally barred recovery from the defendant. Here, to the extent Streater was at fault at all (as a result of him travelling in excess of the posted speed limit and not wearing his seatbelt), such fault would not seem to be in excess of 50%; therefore, Streater would likely be entitled to at least some recovery even in a jurisdiction that utilized a modified comparative fault approach.

In not wearing his seat belt, did plaintiff Streater “assume the risk?

” "Assumption of the risk" is a defence to an action for negligence. Basically, one who knowingly assumes the risk inherent in an activity is barred from recovery if the risk comes to fruition. While it is hard to see how Streater assumed the risk of being in a head-on collision by not wearing his seat belt, one could argue that Streater assumed the risk of greater injury by not wearing his seatbelt. The effect of an assumption of risk defence here would be the same as if the jurisdiction in which the accident occurred applied contributory negligence, i.e., there would be a complete bar to recovery. As indicated above, in most jurisdictions, a plaintiff's failure to wear a seatbelt does not operate to reduce his or her damages.

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