DARE v. SOBULE, 674 P.2d 960 (Colo. 1984)

Marvin H. Dare and Alice C. Dare, Petitioners, v. Marvin L. Sobule, Respondent.

No. 82SC162Supreme Court of Colorado.
Decided January 16, 1984.

Certiorari to the Colorado Court of Appeals

Podoll and Podoll, P.C., Richard B. Podoll, Robert J. Cunningham, for petitioners.

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Hall Evans, James C. Perrill, Alan Epstein, for respondent.

En Banc.

CHIEF JUSTICE ERICKSON delivered the opinion of the Court.

[1] In a wrongful death action, Marvin H. and Alice C. Dare (petitioners) assert that the trial court committed reversible error in refusing to give a tendered jury instruction on failure to wear a motorcycle helmet.[1]
The Court of Appeals affirmed a verdict for Marvin L. Sobule (respondent) Dare v. Sobule, 648 P.2d 169 (Colo.App. 1982). We granted certiorari and now reverse and return this case to the Court of Appeals with directions to remand it to the trial court for a new trial.

I.
[2] On July 30, 1977, Tracy Dare (decedent) was riding a motorcycle eastward on Mississippi Avenue in Jefferson County when respondent, who was driving his automobile westward on that street, made a left turn in front of the motorcycle. The motorcycle struck the car and the decedent was thrown over the car by the impact, landed on his head, and died as a result of head injuries.

[3] Petitioners brought this action against respondent to recover damages for the wrongful death of their son. At trial, two witnesses testified that decedent was not wearing a protective helmet at the time of the accident.[2] Petitioners did not object to the introduction of the evidence. The record reflects that respondent never saw the motorcycle driven by decedent. The evidence would have permitted the jury to find that decedent was traveling at a speed between 35 and 50 miles per hour.[3]

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[4] Petitioners tendered the following proposed jury instruction: “To operate a motorcycle without wearing a helmet is not contributory negligence.” The trial court, however, refused to give the tendered instruction on the ground that the instruction would give undue emphasis to one factor in the negligence equation. In refusing to give the instruction, the trial court ruled that, in presenting their closing arguments, neither side was to make reference to the failure of the decedent to wear a protective helmet. [5] The jury returned a verdict finding that both the decedent and the respondent were negligent, the negligence of each was a proximate cause of the claimed damages, and the percentage of negligence attributable to decedent was 80% and to respondent 20%. The jury also found that the amount of the petitioners’ damages which were proximately caused by the collision was $4,089.14. [6] The Court of Appeals affirmed the verdict for respondent, and held that it would have been improper to give an additional instruction stressing the helmet issue, particularly where, as here, “defendant [respondent] did not assert [the failure of the decedent to wear a helmet] as a defense, and the issue was not presented to the jury.”

II.
[7] Petitioners contend that the trial court’s refusal to instruct the jury that failure to wear a helmet when riding a motorcycle did not constitute contributory negligence was reversible error. We agree.

A.
[8] When contributory negligence was a total bar to recovery for negligence, we held that failure to wear a seat belt was not contributory negligence. Fischer v. Moore, 183 Colo. 392, 517 P.2d 458 (1973). I Fischer v. Moore, supra, we said that there was no statutory duty to wear an available seat belt and held:

[9] “In short, the seat belt defense, under the laws that existed prior to the adoption of our comparative negligence statute, is not an affirmative defense to an action for negligence, and evidence that the injured party failed to wear a seat belt may not be brought before the jury in any form
to establish contributory negligence or to reduce the amount of the injured party’s damages.” [10] 183 Colo. at 396, 517 P.2d at 460. (Emphasis added.) In that case, however, we expressly limited our holding to the situation where evidence of plaintiff’s failure to wear a seat belt was offered to show plaintiff’s contributory negligence, stating: “[B]ecause contributory negligence acts as a complete bar to recovery and rests upon different policy considerations, the conclusions reached in this decision should not be construed to apply as a bar to the seat belt defense, in a similar factual setting under the Colorado comparative negligence statute.”183 Colo. at 392, 517 P.2d at 459. [11] In our view, under the law of comparative negligence in Colorado, evidence of a plaintiff’s failure to wear a protective helmet is inadmissible to show negligence on the part of the plaintiff or to mitigate damages.[4] Taplin v. Clark, 6 Kan. App. 2d 66, 626 P.2d 1198
(1981) (no legal duty to use seat belt in anticipation of driver’s negligence). [12] Both contributory negligence and comparative negligence are premised on negligence. Contributory negligence bars recovery; comparative negligence takes into account the negligence which caused the injury and reduces damages proportionately.

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See Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d 883 (Colo. 1983). Under either theory, however, we consider the plaintiff’s negligence in the balance. Amend v. Bell, 89 Wn.2d 124, 570 P.2d 138 (1977).

[13] The premise upon which negligence rests is that a tortfeasor has a legally imposed duty or a standard of conduct to which he must adhere. The duty may derive from a legislative enactment of the standard of conduct or from a judicially imposed standard. Amend v. Bell, supra. [14] Our General Assembly has not mandated the use of protective helmets as a standard of conduct. In 1977, the General Assembly expressly repealed the portion of section 42-4-231, C.R.S. 1973 (1982 Supp.), which required that all persons operating motorcycles wear protective helmets.[5] [15] The critical inquiry then is whether this court should impose a standard of conduct upon all persons riding motorcycles. We decline to impose such a standard for several reasons. [16] First, a defendant should not diminish the consequences of his negligence by the failure of the injured party to anticipate defendant’s negligence in causing the accident itself. See Amend v. Bell, supra; but see Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626 (1967). Second, a defense premised on an injured party’s failure to wear a protective helmet would result in a windfall to tortfeasors who pay only partially for the harm their negligence caused. See Fischer v. Moore. Third, allowing the defense would lead to a veritable battle of experts as to what injuries would have or have not been avoided had the plaintiff been wearing a helmet. Amend v. Bell, supra. [17] We hold, therefore, consonant with Fischer v. Moore, supra, that, under the Colorado Comparative Negligence Act, evidence of plaintiff’s failure to wear a protective helmet is inadmissible to show negligence on the part of the injured party or to mitigate damages. See Churning v. Staples, 628 P.2d 180 (Colo.App. 1981) (adopting the reasoning in Fischer v. Moore, supra, and holding that the seat belt defense is not available for purposes of determining the degree of plaintiff’s negligence under the comparative negligence statute).

B.
[18] The thrust of respondent’s argument is that evidence of decedent’s failure to wear the protective helmet was admitted for a purpose other than to show decedent’s negligence, and that because petitioners failed to object to its admission, the jury could therefore consider the evidence for any purpose. Respondent further contends that petitioners were not entitled to a corrective instruction limiting the probative force of the evidence because such an instruction would have given undue prominence to one feature of the case. We disagree.

[19] As a matter of substantive law, it makes no difference that the evidence of failure to wear a protective helmet was not challenged by objection or a motion to strike at trial. Huddleston v. Fergeson, 564 S.W.2d 448 (Tex.Civ.App. 1978) (testimony violative of parol evidence rule, a rule of substantive law, is without probative force whether objected to or not). In our view, the giving of petitioners’ tendered instruction

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would not only have been proper, but was necessary, in the light of our holding in Fischer v. Moore, supra, which severely limited the purposes for which evidence of a plaintiff’s failure to utilize a seat belt may be considered by the jury. The improper admission of evidence of failure to wear a protective helmet provides a rational explanation for the jury’s findings that decedent was 80% negligent and respondent was 20% negligent. We, accordingly, reverse and remand this case to the Court of Appeals with directions to remand to the trial court for a new trial.