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Meyer v. City of Des Moines9/18/1991
further public policy and legislative objectives, even though the specifics have not been enacted by the legislature." Id.
As to the windfall argument, the court answered that under comparative fault the key is a proper apportionment of damages based upon the fault of the parties. The seat belt defense would properly deny damages created or enhanced by the victim's unreasonable failure to use an available safety device. In short, "although some tortfeasors may pay less than they otherwise would, they will not pay less than they should." Id.
The court then turned to the argument that the seat belt defense would unduly complicate litigation because of the necessity of experts. The court saw this problem as "no different in principle from any legal, technological or scientific advance." Id. at 157, 755 P.2d at 1145.
These pro and con arguments simply underscore the difficulty a court faces in making the decision whether to recognize a "helmet" or "seat belt" defense. The history of the helmet and seat belt law in Iowa, together with our own brand of comparative fault, poses additional problems.
A helmet law was in effect in Iowa from September 1, 1975, until July 1, 1976, when it was repealed. In the past fifteen years the legislature has not seen fit to regulate helmet use for motorcycle or moped operators.
In contrast, the legislature mandated the use of seat belts in 1986. See 1986 Iowa Acts ch. 1009, § 2 (now codified at Iowa Code § 321.445). We upheld the constitutionality of this statute in State v. Hartog, 440 N.W.2d 852, 855, 859-60 (Iowa), cert. denied, 493 U.S. 1005, 110 S.Ct. 569, 107 L.Ed.2d 563 (1989), reh'g denied, 493 U.S. 1095, 110 S.Ct. 1174, 107 L.Ed.2d 1076 (1990).
One might wonder why the legislature acted in one area and not the other. Common sense tells us that a motorcyclist is more vulnerable to injury than a driver or a passenger in a car and therefore needs more protection.
Iowa has followed other states in limiting the use of evidence regarding nonuse of a seat belt. See Iowa Code § 321.445(4). Section 321.445(4)(a) makes evidence of such nonuse inadmissible in a civil action for damages arising prior to July 1, 1986.
In actions arising on or after July 1, 1986, nonuse shall not be considered as evidence of "fault" under Iowa Code section 668.3(1) (definition of "fault"). Iowa Code § 321.445(4)(b). But evidence of nonuse may be admitted to mitigate damages under certain conditions. The party seeking to introduce evidence of nonuse must first introduce substantial evidence that the nonuse contributed to plaintiff's injuries. Iowa Code § 321.445(4)(b)(1). And if the jury finds the nonuse did contribute to the plaintiff's injuries, the jury may reduce the plaintiff's recovery by an amount not to exceed five percent of the damages awarded after any reductions for comparative fault. Iowa Code § 321.445(4)(b)(2).
The five percent limitation reduces the chances of an unfair result under our comparative fault statute. Iowa Code section 668.1(1) tracks the definition of fault under the UCFA. Section 668.1(1) therefore includes "unreasonable failure to avoid or to mitigate damages" within its definition of "fault."
Under the UCFA and section 668.3(1), evidence of failure to mitigate damages is relevant on the question of liability and therefore reduces the total damages a fact finder may find a plaintiff has suffered. See Tanberg v. Ackerman Inv. Co., 473 N.W.2d 193, 195 (Iowa 1991) (failure to lose weight after accident constituted unreasonable failure to mitigate damages and was properly assessed as "fault"); Iowa Code § 668.1(2) ("The legal requirements of cause in
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