seat belt defense in New York

2015The testimony of the police officer that he told his partner in the patrol vehicle that he had observed a seat belt violation in defendant’s vehicle was not offered for the truth of the matter but, rather was offered for the effect on the listener, i.e., to explain the conduct of the partner, as the operator of the police vehicle, in stopping defendant’s vehicle (see People v Lester, 83 AD3d 1578, 1579 [2011], lv denied 17 NY3d 818 [2011]).

2015The testimony of the police officer that he told his partner in the patrol vehicle that he had observed a seat belt violation in defendant’s vehicle was not offered for the truth of the matter but, rather was offered for the effect on the listener, i.e., to explain the conduct of the partner, as the operator of the police vehicle, in stopping defendant’s vehicle (see People v Lester, 83 AD3d 1578, 1579 [2011], lv denied 17 NY3d 818 [2011]).

2015The assertion of a seat belt defense goes to the determination of damages, as a potentially mitigating factor, and not to liability (see Garcia v Tri-County Ambulette Serv., 282 AD2d 206 [1st Dept 2001]).

2003A seat-belt defense goes strictly to damages, not liability (see Garcia v Tri-County Ambulette Serv., 282 AD2d 206 [2001]; Martinez v Novin, 303 AD2d 653 [2003]), and defendants’ defaults do not affect their right to offer proof on damages (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572 [1978]).

1998Based upon the aforementioned testimony, with all such witnesses properly qualified as experts, we find that Supreme Court acted within its discretion in submitting the seat belt defense to the jury (see, Aylesworth v Evans, 225 AD2d 850 ; Dowling v Dowling, 138 AD2d 345 ).

1992Had there been evidence that Dawn Schrader’s injuries were caused by her contact with the dashboard and the windshield, the defense’s expert testimony would have been enough to allow the seat belt defense to go to the jury (see, Cappadona v State of New York, 154 AD2d 498, 500 ; Dowling v Dowling, 138 AD2d 345 ).

1992An issue that must be considered in this regard is whether CPLR article 14-A (L 1975, ch 69) effected a change in the law as regards the seat belt defense following the 1974 decision of the Court of Appeals in the Spier case ( 35 NY2d 444 , supra) so that an award of damages is possible in light of the State’s negligence that was a proximate cause of the subject accident and the death of Mrs. Karczmit (see, Fernandez v Vukosa, 108 Misc 2d 48 ; but see, Costanza v City of New York, 147 Misc 2d 94 , supra).

1990In a well-reasoned decision, Judge Nason held that pleading "culpable conduct” was sufficient to raise the seat belt defense (Fernandez v Vukosa, 108 Misc 2d 48 [1980]).

1992In Noth v Scheurer ( 285 F Supp 81, 85 ), Judge Bartels succinctly identified the issues as follows: "In accident cases involving the failure to wear seat-belts, there is a distinction to be made between causes of action for injuries and causes of action for wrongful death.

1974In our view, the doctrine of contributory negligence is applicable only if the plaintiff’s failure to exercise due care causes, in whole or in part, the accident, rather than when it merely exacerbates or enhances the severity of his injuries (Dillon v. Humphreys, 56 Misc 2d 211, 214 ; Abrams v. Woods, 64 Misc 2d 1093, 1094 ; Noth v. Scheurer, 285 F. Supp. 81, 85 ).

1985It is apparent from the record that defendants have had an expert’s opinion relative to the seat belt defense and waited until the eve of trial to make a motion to amend their answer to assert the affirmative seat belt defense. "[S]ince neither the car itself nor photographs of its interior were available to the plaintiff, any attempt by plaintiff to refute defendant’s testimony on the ground that the seat belts were not in good working order, or were not properly installed or worn (Spier v Barker [ 35 NY2d 444 ], 452) would be hindered by plaintiff’s inability to examine the physical evidence

1980This requirement was reiterated in Davis v Davis ( 49 AD2d 1024 ).

1985It is apparent from the record that defendants have had an expert’s opinion relative to the seat belt defense and waited until the eve of trial to make a motion to amend their answer to assert the affirmative seat belt defense. "[S]ince neither the car itself nor photographs of its interior were available to the plaintiff, any attempt by plaintiff to refute defendant’s testimony on the ground that the seat belts were not in good working order, or were not properly installed or worn (Spier v Barker [ 35 NY2d 444 ], 452) would be hindered by plaintiff’s inability to examine the physical evidence

1980In Brodvin v Hertz Corp. ( 487 F Supp 1336 ) the Southern District Court applied New York law in a diversity case and held that the seat belt defense had to be specifically pleaded despite the defendant’s pleading of a contributory negligence defense.

2014We therefore conclude that the court properly determined that the seat belt defense “allocate[s] losses after the tort occurs” (Cooney, 81 NY2d at 72 ).

2014We further conclude that Pennsylvania has at best a minimal interest in applying its own law in this case (see Schultz, 65 NY2d at 198; Burnett, 69 AD3d at 60-62 ).

2008The Court held that the defendant’s nervousness and the innocuous discrepancies between the driver’s and the passenger’s answers regarding the origin, destination and timing of their trip did not provide a basis for reasonable suspicion of criminality ( 85 NY2d at 562 ).

2007The seat-belt defense (see Vehicle and Traffic Law § 1229-c [8]) is, by its terms, only an issue of damages (see Spier v Barker, 35 NY2d 444, 450 [1974]; Stein v Penatello, 185 AD2d 976 [1992]).

2007The seat-belt defense (see Vehicle and Traffic Law § 1229-c [8]) is, by its terms, only an issue of damages (see Spier v Barker, 35 NY2d 444, 450 [1974]; Stein v Penatello, 185 AD2d 976 [1992]).

2007The decision of Police Officer Corso to stop the vehicle was justified by his observation that the driver of the vehicle was not wearing a seat belt in violation of Vehicle and Traffic Law § 1229-c (3) (see Whren v United States, 517 US 806, 810-814 [1996]; People v Robinson, 97 NY2d 341, 348-349 [2001]; People v Gonzalez, 25 AD3d 620 [2006]; People v McCoy, 239 AD2d 437 [1997]; People v Mikel, 152 AD2d 603, 604 [1989]).

2007The decision of Police Officer Corso to stop the vehicle was justified by his observation that the driver of the vehicle was not wearing a seat belt in violation of Vehicle and Traffic Law § 1229-c (3) (see Whren v United States, 517 US 806, 810-814 [1996]; People v Robinson, 97 NY2d 341, 348-349 [2001]; People v Gonzalez, 25 AD3d 620 [2006]; People v McCoy, 239 AD2d 437 [1997]; People v Mikel, 152 AD2d 603, 604 [1989]).

2003A seat-belt defense goes strictly to damages, not liability (see Garcia v Tri-County Ambulette Serv., 282 AD2d 206 [2001]; Martinez v Novin, 303 AD2d 653 [2003]), and defendants’ defaults do not affect their right to offer proof on damages (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572 [1978]).

2002The officer had received information that defendant’s vehicle had been observed by the vice squad at a house under surveillance for drug activities, and thus the officer’s question whether defendant had a weapon or “anything else” on him was supported by a “founded suspicion that criminality [was] afoot” (People v Hollman, 79 NY2d 181,191 ; see People v Lypka, 36 NY2d 210, 213 ).

1999As a matter of law, a 14 month old is incapable of contributory negligence (see, Galvin v Cosico, 90 AD2d 656 [3d Dept 1982] [wherein the Appellate Division, in affirming the judgment of the lower court, found that an infant who was three years and 10 months of age at the time of the claimed malpractice, could not, as a matter of law, be capable of contributory negligence.