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February 13, 1992


The opinion of the court was delivered by: THOMAS A. WISEMAN, JR.

 This products liability case arises out of a 1987 car crash. The dispute turns on an interpretation of Tennessee's Mandatory Safety Belt Act, Tenn. Code Ann. §§ 55-9-601 to 610. The matter is before the Court on the Plaintiffs' Motion to Strike Affirmative Defenses of the Defendant General Motors Corporation. For the following reasons, the Plaintiffs' Motion hereby is GRANTED IN PART and DENIED IN PART.


 On October 29, 1987, David MacDonald, Peter Cannistra, Susan Stanfield and Ofray Hall were injured when the twelve-passenger 1985 General Motors Corporation ("General Motors") van in which they were riding rolled over on Interstate 24 in Montgomery County, Tennessee. *fn1" The van's driver, Philip Voight, swerved to evade a deer on the road and lost control of the vehicle when he applied the brakes. The van skidded, went off the road and rolled over three times. David MacDonald was ejected from the van and killed. Cannistra sustained a spinal cord injury rendering him paraplegic. Hall also was ejected from the van and suffered a closed head injury, several fractures, and a bilateral pneumothorax. Stanfield suffered a back injury and a severe scalp wound.

 General Motors states that the van was equipped with both lap belt and shoulder harness equipment, and that this passenger restraint equipment fully complied with the applicable Federal Motor Vehicle Safety Standards. Plaintiffs point out that although shoulder harnesses were provided for the front seat passengers, "there were no shoulder harnesses for the rear seats." Affidavit of John Stiles attached to Plaintiffs' Reply to Defendant's Response and Objection to Plaintiffs' Motion to Strike Affirmative Defenses ("Plaintiffs' Reply"). Plaintiffs were riding in the rear seats of the van. Of the four plaintiffs, MacDonald, Cannistra, and Hall were not wearing safety belts at the time of the accident. Cannistra Depo. at 83, 108; Hall Depo. at 107.

 Alexander MacDonald (the administrator of David MacDonald's estate), Cannistra, Stanfield and Hall sued General Motors in Tennessee state court. After removal to federal court, all four cases were consolidated by order of this Court on July 31, 1989.

 Plaintiffs contend that the accident was caused by the defective and unreasonably dangerous condition of the van. Plaintiffs allege that only one of four tires provided effective braking. "The right rear axle seal was defective in its design, manufacture, assembly and Installation, In that it was liable to and likely to allow fluid to enter the right rear axle brake system so as to cause the brakes of the van to be impaired and to function improperly." MacDonald Complaint at para. 6.

 General Motors filed a Motion to Amend Its Answer to include additional defenses. The Court granted that motion on January 12, 1990. Among other defenses, the car manufacturer asserts that the Plaintiffs' failure to wear the provided safety belts is relevant to the defenses of contributory negligence, assumption of the risk, and failure to mitigate damages. It also alleges that the evidence Is relevant to the determination of proximate causation of the specific injuries sustained. In essence, General Motors argues that the jury should be allowed to consider evidence that the use of seat belts would have prevented or lessened the Plaintiffs' injuries and, as a result, that the Plaintiffs' recovery, If any, should be decreased accordingly. This legal theory is more commonly known as the "seat belt defense."

 Subsequently, the Plaintiffs filed a Motion to Strike the Defendant's Affirmative Defenses pursuant to Fed. R. Civ. P. 12(f). Plaintiffs contend that Tenn. Code Ann. (T.C.A.) § 55-9-604 absolutely prohibits evidence of failure to use safety belts in any civil action. Section 604 provides:

 In no event shall failure to wear a safety belt be considered as contributory negligence, nor shall such failure to wear a safety belt be admissible as evidence in a trial of any civil action.

 General Motors has responded to that motion and the Attorney General of Tennessee intervened in this action and has filed a memorandum defending the constitutionality of § 604.

 This case presents five issues: (1) whether T.C.A. §§ 55-9-603 through 610, including § 604, are null and void pursuant to the express provisions of T.C.A. § 55-9-609(b); (2) whether § 604 applies to the vehicle in question; (3) whether § 604 is preempted by the National Motor Vehicle Safety Act, 15 U.S.C. §§ 1381 et seq.; (4) whether the court should apply the Federal Rules of Evidence or § 604 on the question of admissibility of seat belt use; and (5) if § 604 is applicable, what is its scope. The Court will examine these questions in turn below.


 This product liability diversity action is governed by the substantive law of Tennessee. A federal court sitting in diversity jurisdiction must apply the substantive law of the forum state, including that state's choice of law rule. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). Under Tennessee tort law, choice of law Is governed by the doctrine of lex loci delictus, "the place of the harm." Winters v. Maxey, 481 S.W.2d 755, 756-759 (Tenn. 1972). Accord Myers v. Hayes Int'l Corp., 701 F. Supp. 618, 620 (M.D. Tenn. 1988)(Wiseman, C.J.). The doctrine applies in strict liability cases as well as negligence suits. Myers, 701 F. Supp. at 620-622; Babcock v. Maple Leaf, Inc., 424 F. Supp. 428, 432 (E.D. Tenn. 1976). Although the alleged tort in this case, i.e. the defective manufacture of the van's right rear axle seal, occurred elsewhere, the harm to the Plaintiffs occurred in Tennessee. Therefore, the Plaintiffs' substantive rights are delineated by the law of Tennessee. Bailey v. Chattem, Inc., 684 F.2d 386, 392 (6th Cir. 1982)(quoting Koehler v. Cummings, 380 F. Supp. 1294, 1305 (M.D. Tenn. 1974)); Myers, 701 F. Supp. at 620.


 Before embarking on a comprehensive analysis of § 604, it is appropriate and helpful to examine its statutory evolution. The original version of § 604 is now more than twenty-eight years old. Enacted in March 1963 as T.C.A. § 59-930, it provided in pertinent part as follows: *fn2"

 In no event shall failure to wear seat belts be considered as contributory negligence, nor shall such failure to wear said seat belts be considered in mitigation of damages on the trial of any civil action.

 While the 1963 act also required that seat belts must be installed In automobiles, the statute did not require either drivers or passengers to wear them.

 In 1977, former section 930 was renamed T.C.A. § 55-9-214. Section 214 was a verbatim recodification of the portion of former § 930 that dealt with the relevance of failure to wear safety belts.

 The current version of Tennessee's bar against use of the seat belt defense was enacted in 1986 as part of the Tennessee Mandatory Safety Belt Act (the "Act"), T.C.A. §§ 55-9-601-610. Section 604 deleted any reference to mitigatory damages and instead Incorporated a broad prohibition against admitting into evidence the use of failure to wear a seat belt in any civil action.

 The legislative intent behind the statutory revision of § 604 is sparse. Perhaps the most noteworthy moment in the shaping of § 604 came when the Tennessee legislature, after a back and forth battle, eventually rejected an attempt by the House of Representatives to weaken the language of the original version of the statute, then codified as § 214.

 The House of Representatives initially passed an amendment that would have entirely shifted the focus of former § 214. Section 3(d) of House Bill 533 introduced on February 11, 1985, provided:

 Failure to comply with subsections (b) or (c) of this section shall be admissible to mitigate damages with respect to any person who is involved in a motor vehicle accident while violating the requirements of these subsections and who seeks in any subsequent litigation to recover damages for injuries resulting from the accident.

 The House passed a bill in 1985 containing that language.

 The origin of the proposed statutory language in House Bill 533 is significant for the purposes of this case. The language was adopted Dearly verbatim from the federal regulation specifying minimum criteria for state mandatory safety belt usage laws. 49 C.F.R. § 571.208, S4.1.5.2(c). One of the three minimum criteria called for by that federal regulation is:

 a provision specifying that the violation of the belt usage requirement may be used to mitigate damages with respect to any person who Is involved in a passenger car accident while violating the belt usage requirement and who seeks In any subsequent litigation to recover damages for injuries resulting from the accident.

 49 C.F.R. § 571.208, S4.1.5.2(c)(2). The federal requirement would be satisfied If a state rule of law permits such mitigation.

 But Senate Bill 790, introduced by Sen. William Richardson, deleted the revisionist language used in House Bill 533 and substituted in its place the exact language which now comprises § 604. The amendment adding such language was offered and accepted without discussion by the Senate on April 25, 1985. Eventually, the legislature passed and the Governor signed the Senate's version of the amendment along with the rest of the mandatory seat belt act.


 The Court will first address the narrow statutory interpretation issue about whether T.C.A. § 55-9-609(b) makes § 604 null and void.

 When originally passed in 1986, Tennessee's Mandatory Safety Belt Act included several cutoff dates that subsequently were repealed. Section 609(b) of the Act provided that §§ 603-610 were to become null and void if the United States Secretary of Transportation "does not Include Tennessee within the population necessary to prevent [implementation of federal air bag requirements]."

 Pursuant to 49 C.F.R. § 571.208, S4.1.5.1 (1987), federal automatic restraint requirements would not go into effect If the Secretary of Transportation determined, by April 1, 1989, that two-thirds of the national population were subject to state mandatory safety belt laws meeting the regulatory criteria. *fn3" The Secretary of Transportation never made such a determination. Memorandum in Support of Response and Objection to Plaintiffs' Motion to Strike Affirmative Defenses ("Defendant's Memorandum"), Exhibit 1 (letter of Paul Jackson Rice, Chief Counsel to the National Highway Traffic Safety Administration of the U.S. Dept. of Transportation). Nor ...

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