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Meyer v. City of Des Moines9/18/1991
fact and proximate cause apply both to fault as the basis for liability and to contributory fault.").
Treating mitigation as fault makes no practical difference under the UCFA because the UCFA recognizes pure comparative fault. That means a plaintiff who is ninety-nine percent at fault can still recover.
In contrast, under Iowa Code section 668.3(1), a plaintiff who is more than fifty percent at fault cannot recover. So without the five percent limitation in section 321.445(4)(b)(2), evidence of nonuse could actually prevent an otherwise innocent plaintiff from recovering anything. Cf. Tanberg, 473 N.W.2d at 195-96 (plaintiff failed to recover in circumstances where jury was allowed to assign as fault plaintiff's failure to lose weight as unreasonable failure to mitigate damages).
No such limitation, of course, applies to a moped operator who fails to wear a helmet. Under the present state of the law a perfectly innocent moped operator who is hit by a speeding drunk driver could conceivably recover nothing. The jury could assess more than fifty percent of the total fault to the moped operator because the operator failed to wear a helmet.
As one court wisely noted in the context of a seat belt case,
the question of automobile safety is comprehensively considered in the Delaware statutory law. It is a vital and continuing concern to the legislature. There can be little question but that the legislative forum is a better one to explore the area than the isolated courtroom. The courts, as guardians of law, can do no greater disservice than fail to recognize the full role of the other branches of government.
Lipscomb v. Diamiani, 226 A.2d 914, 916 (Del.Super.1967). The helmet question certainly is of vital concern to the legislature. It has legislated in that area twice. Our discussion certainly demonstrates that there are policy decisions to make which are more properly in the domain of the legislature. For these reasons, we join those courts that have deferred to the legislature. We therefore decline to hold that there is any common law duty for a moped operator to wear a helmet.
III. The Bifurcation Order
Our holding on the helmet issue makes it unnecessary for us to rule on the defendants' challenge to the order bifurcating the trial. We point out, however, the danger in bifurcating a trial under our comparative fault law.
As we noted earlier, fault includes an unreasonable failure to mitigate damages. If a party asserts this element of fault in combination with an alleged fault that caused the occurrence which led to the injury , the fact finder must follow two separate chains of causation to determine the plaintiff's aggregate fault.
The first chain involves causal factors leading to the occurrence that caused the injury . So the first chain involves the liability phase of the case. The second and independent chain leads directly to damages. The second chain does not involve the occurrence that caused the injury. The second chain can only be determined by the fact finder who is to consider the damage phase of the litigation. It is therefore essential in order to combine these separate assessments of fault into a single aggregate percentage of fault that the same trier of fact consider both the liability issues and the damage issues.
Bifurcation in these circumstances would be prejudicial to the party relying on the mitigation of damages defense and would therefore constitute an abuse of discretion. See Iowa R.Civ.P. 186 ("In any action the court may, for convenience or to avoid prejudice, order a separate trial of any claim. ..."); Briner v. Hyslop, 337 N.W.2d 858, 870
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