MARY ANN DEVOLDER AND JAMES DEVOLDER, APPELLANTS,
v.
CAROLYN GARRETT SANDAGE, APPELLEE
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The DeVolders appealed a jury verdict that awarded Mrs. DeVolder $60,000 for personal injuries but reduced it by 50% based on a seat belt defense, and awarded Mr. DeVolder nothing on his loss of consortium claim. The court reversed the reduction of Mrs. DeVolder's award, finding insufficient competent evidence that the seat belt was operational at the time of the accident.
The court reversed the reduction of Mrs. DeVolder's award because the defense failed to present competent evidence that the seat belt was available and fully operational at the time of the accident. The court affirmed the zero verdict on Mr. DeVolder's consortium claim as consistent with the conflicting evidence presented.
[1] A seat belt defense is not entitled to a jury instruction where there is no evidence that the seat belts were operational other than the fact the automobile was in good c…
[2] The defense bears the burden of proving the elements of a seat belt defense by competent evidence.
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Join FLexlaw to unlock all legal intelligence“before a seat belt defense can be submitted to a jury the following competent evidence must have been produced at trial: 1. The seat belt was available and fully operational; 2. The plaintiff's failure to use an available and fully operational seat belt produced or contributed substantially to producing at least a portion of the plaintiff's damages.”
Establishes the two-part legal requirement for admitting a seat belt defense under Florida law.
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Join FLexlaw to unlock all legal intelligenceMrs. DeVolder was injured when appellee Sandage's vehicle struck her automobile from behind. Sandage admitted liability. Mrs. DeVolder testified she n…
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PARKER, Judge.
Mary Ann and James DeVolder, wife and husband, appeal a trial court’s denial of their motions for new trial, additur, and motion to strike seat belt defense, following a jury verdict for Mrs. DeVolder in the amount of $60,000 and a zero verdict as to Mr. DeVolder on his consortium claim. The trial court reduced the wife’s award by one-half based upon the jury’s finding that fifty percent of Mrs. DeVolder’s damages were attributable to her failure to use a seat belt. We reverse only as to the reduction of the wife’s award resulting from the application of the seat belt defense.
A detailed outline of the facts is unnecessary to our decision. This appeal stems from an automobile accident involving Mrs. DeVolder and appellee Carolyn Sandage, in which the vehicle driven by Sandage struck Mrs. DeVolder’s automobile in the rear. Sandage admitted liability, and the case was tried before a jury solely on the issue of damages.
The only issue which we find has merit is the reduction of Mrs. DeVolder’s damages based upon the seat belt defense. Mrs. DeVolder testified her vehicle was equipped with a seat belt which contained a shoulder harness and that it was her normal practice to wear it. She admitted she was not wearing it at the time of the accident. A doctor testified she related the same story to him. An insurance adjuster also testified at trial she inspected the De-Volder vehicle following the accident, stating “I checked the seat belts, and I did not check the front seat.”
At the close of the evidence, the appellants moved to strike the seat belt defense upon various grounds, one of which raised the operability of the seat belt in the De-Volder vehicle. The trial court denied the motion, and the jury returned its verdict decreasing Mrs. DeVolder’s damages by fifty percent for her failure to utilize a seat belt.
The supreme court has stated that before a seat belt defense can be submitted to a jury the following competent evidence must have been produced at trial:
1. The seat belt was available and fully operational;
2. The plaintiff’s failure to use an available and fully operational seat belt produced or contributed substantially to producing at least a portion of the plaintiff’s damages.
Insurance Company of North America v. Pasakarnis, 451 So. 2d 447 (Fla.1984). Further, the burden to prove the elements of a seat belt defense by competent evidence rests with the defense. Id. The fourth district has observed that the defense is not entitled to a seat belt instruction where there is no evidence that the seat belts were operational other than the fact the auto was in good condition. Youngentob v. Allstate Ins. Co., 519 So. 2d 636 (Fla. 4th DCA 1987). In American Automobile Ass’n v. Tehrani, 508 So. 2d 365 (Fla. 1st DCA 1987), a jury was permitted to consider a seat belt defense where the evidence established that the car involved was relatively new and in good condition, and was equipped with seat belts which “clicked.”
A common thread running through these cases is the requirement of competent evidence to show that, at or near the time of the accident, the seat belt or belts in the vehicle were anchored to the vehicle body and contained buckles which close securely when utilized or tested. The evidence in this case does not reach that plateau. The motion to strike the seat belt defense therefore should have been granted.
Nor do we ascribe error to the De-Volders’ other issue on appeal regarding Mr. DeVolder’s loss of consortium claim. The jury’s award to Mrs. DeVolder of $60,- 000, while at the same time failing to award Mr. DeVolder any damages upon his claim for loss of consortium, is consistent with the record presented to this court. A jury could well have reached the result that it did in this case based upon the conflicting evidence presented as to whether Mr. DeVolder suffered a loss of consortium. See Hagens v. Hilston, 388 So. 2d 1379 (Fla. 2d DCA 1980). See also Tieche v. Panlener, 504 So. 2d 49 (Fla. 2d DCA 1987).
We reverse and remand to the trial court with directions to strike the seat belt defense and to otherwise enter judgment in favor of Mrs. DeVolder consistent with the unreduced amount of the verdict as reached by the jury.
RYDER, A.C.J., and DANAHY, J., concur.
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Bulldog Leasing Co., Inc. v. Curtis, 630 So. 2d 1060 (Fla. 1994)…y Temple Church of God in Christ, Inc., 566 So. 2d 864 (Fla. 1st DCA 1990); Knapp v. Shores, 550 So. 2d 1155 (Fla. 3d DCA 1989), review denied, 563 So. 2d 634 (Fla.1990); DeLong v. Wickes Co., 545 So. 2d 362 (Fla. 2d DCA 1989); Devolder v. Sand-age, 544 So. 2d 1046 (Fla. 2d DCA 1989).2 For the reasons expressed, we quash the decision of the district court in the instant case. The record reflects that on June 5, 1981, Curtis struck the rear of Bulldog Leasing’s eight-foot-wide tractor-trailer. Because of a pri…
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Knapp v. Shores, 550 So. 2d 1155 (Fla. 3d DCA 1989)…s. Co., 519 So. 2d 636 (Fla. 4th DCA 1987). Nor does Dina Knapp’s testimony that “we used to use [the seat belts] sometimes and sometimes not” constitute sufficient evidence to establish that the seat belt was fully operational. Devolder v. Sandage, 544 So. 2d 1046 (Fla. 2d DCA 1989). As observed by the Devolder court, Florida courts have consistently required that in order for the defendant in a negligence action arising out of an automobile accident to assert a seat-belt defense, said defendant must, inter a…
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Devolder v. Sandage, 575 So. 2d 312 (Fla. 2d DCA 1991)…On the Devolders’ original appeal, this court reversed the judgment which reduced the Devolders’ award by fifty percent and ordered the trial court to enter judgment on the unreduced amount of the verdict as reached by the jury. Devolder v. Sandage, 544 So. 2d 1046 (Fla. 2d DCA 1989). The Devolders then moved for interest on the entire amount of the judgment on mandate. The trial court awarded only partial interest because Sandage had “tendered” the full amount of the original judgment and the Devolders had de…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ins. Co. OF N. Am. & John Menninger v. Pasakarnis, 451 So. 2d 447 (Fla. 1984)
- Am. Auto. Ass'n, Inc. v. Feraidoon Tehrani and Aghdas Tehrani and Saad Lorestani and Zoreh Lorestani, 508 So. 2d 365 (Fla. 1st DCA 1987)
- Hagens v. Hilston, 388 So. 2d 1379 (Fla. 2d DCA 1980)
- Youngentob v. Allstate Ins. Co., 519 So. 2d 636 (Fla. 4th DCA 1987)
- Tieche v. Panlener, 504 So. 2d 49 (Fla. 2d DCA 1987)