Opinion
No. CV06 500 49 48 S
September 5, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE
This cause of action arises out of an accident which occurred on November 10, 2004. The plaintiff, Jennifer Ferentzy, was a passenger in a 1993 Ford Thunderbird owned and operated by the defendant, Steven Ferentzy. The plaintiff claims that as a result of his conduct in both the operation as well as the maintenance of the vehicle the defendant is responsible for her injuries arising from the accident, including a total paralysis from the neck down. One of the claims of the plaintiff is that prior to the accident, the defendant had disconnected the motorized passenger restraint system "MPRS" rendering the MPRS defective and therefore unavailable to the plaintiff at the time of the accident.
The plaintiff states that paragraph 11(h) of the first count is based on the defendant's violation of C.G.S. § 14-100a(c)(1). This statute requires the operator and any front seat passenger in a motor vehicle to wear a seatbelt while the vehicle is being operated and that the seatbelt is to comply with the provisions of the Code of Federal Regulations, Title 49, Section 571.209 as amended from time to time. By rendering the seatbelt inoperable, the defendant prevented the plaintiff from complying with the requirements of § 14-100a(c)(1), thereby causing or contributing to the injuries incurred as a result of the accident.
In the second count of the plaintiff's complaint she alleges that the defendant was reckless in disconnecting the shoulder safety belt and that this recklessness was the direct and proximate cause of the injuries. She further alleges that the defendant was reckless in violating § 14-222 and the statutory violation was a substantial factor in causing her injuries. She seeks, inter alia, double or treble damages as to the second count pursuant to § 14-295 of the Connecticut General Statutes.
The pertinent portion of § 14-222(a) provides in relevant part that "No person shall operate any motor vehicle upon any public highway of the state . . . recklessly, having regard to the width, traffic and use of such highway, road, school property or parking area, the intersection of streets and the weather conditions. The operation of a motor vehicle upon any such highway, road . . . at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle . . . or the operation knowingly of a motor vehicle with defective mechanism, shall constitute a violation of the provisions of this section." (Italics applied.)
The defendants have moved to strike paragraph 11(h) of the first count and the second count of the plaintiff's complaint claiming first, that "the failure to wear a seatbelt can not be the proximate cause of an auto accident as a matter of law, although a failure to wear a seatbelt may result in a more serious injury that may have otherwise been the case, but it can not be the proximate cause of the accident and can not form the basis of the liability claim." The second basis for the motion to strike is a reference to C.G.S. § 14-100a(c)(3) which provides "failure to wear a seat safety belt shall not be considered as contributory negligence nor shall such failure be admissible evidence in any civil action." which the defendant claims clearly and unequivocally prohibits such a claim. This court disagrees.
The plaintiff submitted an opinion letter sought by the Commissioner of Motor Vehicles from the Attorney General which posed the question "may the owner of a vehicle subject to the provisions of Public Act 85-429 remove the seatbelt and operate the vehicle following their removal."
The Attorney General replied that the purpose of the statute was to remove the option of choosing whether or not to use safety belts and enabling persons to retain that choice by removing the seatbelts would, in effect, frustrate this clear legislative intent and render the statute totally ineffective. In summary, allowing a operator of a motor vehicle to ignore the requirements of the federal regulations by simply removing the safety belt would thwart the purpose of requiring the use of safety belts and expose the occupants of the vehicle to injuries which could have been prevented. It should be noted that 14-100a(c)(1) provides that compliance with the Code of Federal Regulations would vary as they are amended from time to time. 1985 Conn. Atty. Gen. 318, WL 258098 (Conn.A.G.)
The plaintiff cites Chad Ciccarelli, ppa Rosemary Ciccarelli, et al v. Ronald Turner, Jr., et al, 2006 WL 3690965 (Conn.Super., Hurley, J.T.R.) [ 42 Conn. L. Rptr. 399] in which the court denied a motion to strike a claim based on a violation of C.G.S. § 14-100a(c)(1) when the defendant did not secure a seatbelt for a plaintiff who was 15 years of age. The defendant's motion to strike was based on C.G.S. § 14-100a(c)(3) which precludes any admission of evidence of the failure to wear a safety seat belt with respect to a claim of contributory negligence against the plaintiff. The court held the reference to the failure to wear a seatbelt refers only to a special defense to reduce a damage award and specifically references contributory negligence. To allow it to preclude allegations of a defendant's negligence based on his failure to adhere to the requirements of the C.G.S. § 14-100a(c)(1) would not be consistent with the legislative intent of the section.
The plaintiff is, in effect, claiming that the removal of the seat belt device was responsible for the plaintiff incurring "enhanced" injuries sometimes referred to as the "second collision" of the passenger with the interior part of an automobile, which is a foreseeable result from removing a safety device.
In the leading case of Larson v. General Motors, at 391 A.2d 495 (8th Cir. 1968) a negligence action was brought by the driver of a 1963 Chevrolet Corvair who claimed he was injured as a result of the negligent design of the steering assembly for the vehicle. The plaintiff did not contend that the design caused the accident, but because of the design he received injuries he would not otherwise received or in the alternative, his injuries would not have been as severe.
The court held "no rational basis exists for limiting recovery to situations where the defect in design or manufacture was the cause or the factor of the accident. As the accident and the resulting injury, usually caused by the so called `second collision' of the passenger with the interior part of the automobile, are all foreseeable. Where the injuries or enhanced injuries are due to the manufacture's failure to use reasonable care to avoid subjecting the user of its products to an unreasonable risk of injury, general and negligence principles should be applicable. The sole function of an automobile is not just to provide a means of transportation, it is to provide a means of safe transportation or as safe as reasonably possible under the present state of the art." Id., 502.
Under Connecticut's product liability statutes C.G.S. § 52-572m thru § 52-572q, as in this case, there have been several claims for defects in passenger automobiles which have resulted in enhanced injuries to the plaintiffs and with no claim that the defect in and of itself was the cause of the initial accident. See Bravo v. Ford Motor Company, No. CV00-0594807S (April 16, 2001, Berger, J.) [ 29 Conn. L. Rptr. 676]; Foster v. American Honda Motors, Superior Court, judicial district of Waterbury, docket no. 128535 (July 2, 1996, Vertefeuille, J.) [17 Conn. L. Rptr. 247]; Strohecker v. Trail Mobile of Companies Limited, Superior Court, judicial district of Waterbury, docket no. 138776 (May 22, 1998, Pellegrino, J.) [ 22 Conn. L. Rptr. 146]; Balboni v. American Honda Motor Company, Superior Court, judicial district of Hartford-New Haven at Hartford, docket no. 221355 (February 14, 1980, Hendel, J.); see also Gorman v. Gerten, Superior Court, judicial district of Danbury (December 18, 1998, Radcliffe, J.)
"The instant action is a product liability action brought pursuant to General Statutes § 52-572m et seq., specifically, under the theory of enhanced injury is recognized in the leading case of Larson v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968), under the enhanced injury doctrine, also known as the "second collision" or "crash worthiness" doctrine, an automobile manufacturer is under the duty to use reasonable care in the design of its vehicles to avoid subjecting the user to an unreasonable risk of injury in the event of a collision." Id., 502. "Any design defect not causing the accident would not subject the manufacturer to liability for the entire damage, but the manufacturer should be liable for that portion of the damage or injury caused by the defective design over and above the damage or injury which probably would have occurred as a result of the impact or collision absent the defective design." Bravo v. Ford Motor Company, No. CV00-0594807S (April 16, 2001, Berger, J.)
The cause of the automobile collision is not at issue in a crashworthiness claim. Foster v. American Honda Motors, Superior Court, judicial district of Waterbury, docket no. 128535 (July 2, 1996, Vertefeuille, J.).
In this case the plaintiff will have the burden of proof that she suffered additional or more serious injuries than she would have suffered as a result of the removal of the motorized passive restraint system for the shoulder harness.
The second claim filed by the defendant as a basis for its motion to strike is the claim that any evidence of the failure to utilize a seatbelt is prohibited under § 14-100a(c)(3) for any purpose. It is fairly obvious from reading the legislative history and the statute itself that the reference is to it being used is limited to a claim for contributory negligence and the reasons given during legislative discussion was the fear that there would be confusion as to whether or not some plaintiffs were or were not wearing a seatbelt at the time of impact.
In the reply to the inquiry from the Commissioner of Motor Vehicles as to the propriety of allowing an individual to remove a safety seat belt in violation of C.G.S. § 14-100a(c)(1) the attorney general observed "we are bound to assume that the legislature intended, in enacting a particular law, to achieve its purpose in a manner which is . . . effective . . ." Mascone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981). The obvious purpose of C.G.S. § 14-100a(c)(1) of this act and the purpose is discussed at great lengths in the debate in both houses of the legislature, was to remove, for the vehicle covered in subject to the exceptions contained in the act, the option of choosing whether to use safety belts. An option which would enable a person to retain this choice by removing the belts would, in effect, frustrate this clear legislative intent and render the statute totally ineffective." 1985 Conn. Atty. Gen. 318, WL 258098 (Conn.A.G.).
There is nothing in the legislative history nor would it be reasonable to assume that the legislature enacted C.G.S. § 14-100a(c)(1) and C.G.S. § 14-222 prohibiting any conduct which renders a vehicle defective and exposes its occupants to injuries and also enact C.G.S. § 14-100a(c)(3) intending it to be interpreted as to exonerate any individual who violates those two statutes.
The defendants have moved to strike paragraph 11 of count one. Although this court finds that a plaintiff may, in fact, institute an action for an enhanced injury as a result of a deliberate removal of a seatbelt in violation of § 14-100a(c)(1), paragraph 11 of count one states that the defendant maintained and operated his motor vehicle in a dangerous and defective condition, posing an unreasonable risk of harm to the plaintiff and others similarly situated. While the claim may be actionable, the paragraph makes no reference to C.G.S. § 14-100a(c)(1) nor does it make any reference to the factual claim that the defendant disconnected the motorized passive restrain system for the shoulder belt prior to the accident. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Faulkner v. United Technologies Customer Corporation, 240 Conn. 576, 580, 693 A.2d 293 (1997).
As it is now written, paragraph 11 of count one simply makes legal conclusions and fails to allege specific facts. For that reason, the motion to strike paragraph 11 of count one is granted with leave to revise accordingly.
In count two the plaintiff alleges that "the reckless operation by the defendant of the vehicle in that he deliberately disconnected the motorized passive restraining system . . . for the right passenger seat, thereby rendering the system defective and operated the vehicle in that condition in violation of C.G.S. § 14-222(a) and the violation of C.G.S. § 14-222(a) was a substantial factor in the plaintiff's injuries for which she is seeking double or treble damages pursuant to § 14-295 of the Connecticut General Statutes. The plaintiff points out that pursuant to the relevant portions of the C.G.S. § 14-222 (reckless driving) . . . "the operation of a motor vehicle upon any highway . . . or the operation knowingly of a motor vehicle with a defective mechanism shall constitute a violation of the provisions of this section." The plaintiff claims that the factual allegations in count 2 allege all the requisite elements of reckless driving and the allegation include the defendant deliberately, with actual knowledge disconnected the shoulder belt, had actual knowledge that disconnecting the shoulder belt would render it defective and the failure to use the shoulder belt greatly increased the risk of significant injury to the front seat passengers. Finally, the plaintiff maintains that despite the defendant's knowledge about the passive restraint system, he conscientiously and deliberately chose not to warn her about what he had done, thereby disregarding her safety and operating the vehicle with a defective seatbelt system.
For the plaintiffs to sufficiently allege the statutory cause of action for recklessness, and seek double and treble damages, she must satisfy the requirements of § 14-295. Section 14-295 provides in relevant part: "In any civil action to recover damages resulting from personal injury the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of . . . § 14-222 . . . and such violation was a substantial factor in causing the injuries . . ." It does not appear to be any ambiguity in the language of § 14-295 or how it should be applied or construed. The statute says that in a civil action seeking damages for personal injuries, the trier of fact may award double or treble damages if the plaintiff has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation or (one or more of the motor vehicle statutes delineated in the statute) . . . and that such violation was a substantial factor in causing the injuries (internal quotation marks omitted). Lombard v. Booth, Superior Court, judicial district of Fairfield, Docket No. CV01-0383637 (July 12, 2001, Stevens, J.) [ 30 Conn. L. Rptr. 78].
Accordingly, the motion to strike the second count of the plaintiff's complaint is denied.