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07/01/83 DANIEL J. FOLEY v. CITY WEST ALLIS

July 1, 1983

DANIEL J. FOLEY, AND ZITA A. FOLEY, HIS WIFE, PLAINTIFFS AND JOINT APPELLANTS-PETITIONERS,
v.
CITY OF WEST ALLIS, A MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT, THOMAS C. KOWALSKI AND AMERICAN FAMILY MUTUAL INSURANCE COMPANY, DEFENDANTS AND THIRD-PARTY PLAINTIFFS-RESPONDENTS, ALLSTATE INSURANCE COMPANY, THIRD-PARTY DEFENDANT-RESPONDENT



Review of a decision of the Court of Appeals. Reversing and remanding Shirley S. Abrahamson, J.

The opinion of the court was delivered by: Abrahamson

This is a review of an unpublished decision of the court of appeals filed on September 27, 1982, affirming an order of the Circuit Court for Milwaukee County, Harold B. Jackson, Jr., Circuit Judge. The circuit court dismissed the plaintiffs' personal injury action on its merits because according to its calculations based on the jury's special verdict answers, each plaintiff's contributory negligence was greater than each defendant's negligence. In making its calculations, the circuit court treated each plaintiff's failure to wear available seat belts as it would treat any other form of negligence.

For the reasons set forth below, we hold that the circuit court erred in treating negligence consisting of failure to wear available seat belts like other kinds of negligence for the purposes of determining whether a plaintiff can recover from a defendant under the comparative negligence statute, sec. 895.045, Stats. 1981-82. *fn1 When negligence consisting of failing to wear an available seat belt is not a cause of the collision but is a cause of a party's injury, such negligence should not be used to determine the injured party's contributory negligence for purposes of sec. 895.045, but should be used only to reduce the amount of damages recoverable. Accordingly, we reverse the decision of the court of appeals and remand the case to the circuit court to enter judgment on the verdict in favor of the plaintiffs in accordance with the directions set forth in this opinion.

This case arises out of an automobile accident that occurred on January 10, 1978, in the city of West Allis. Daniel Foley was driving the car in which his wife Zita Foley was a passenger. As he approached the intersection of 92nd and West Washington from the north, defendant Kowalski's car approached the same intersection from the south. Kowalski attempted to make a left turn. Neither driver saw the other because snow piled six to eight feet high on the median obstructed their vision. Kowalski pulled into the intersection and stopped in the median between the two hills of snow. Although he could not see oncoming traffic, he decided to pull out cautiously. He moved the nose of the car into oncoming traffic. At that point, he saw the Foley car, and Foley, moving at about 30 m.p.h., saw Kowalski. Although Foley jammed on the brakes, a collision occurred. Daniel Foley's head hit the ceiling of his car. Zita Foley was thrown into the dashboard, injuring her forehead, knees, and right hand and arm. Neither Daniel nor Zita Foley was wearing the shoulder-harness-lap seat belts with which the car was equipped.

Both Foleys filed suit against the city of West Allis, Kowalski, and Kowalski's insurance company. By virtue of cross- and counterclaims, Daniel Foley and his insurance company also became defendants in the action.

The case was tried before a jury, which concluded that all three defendants (Daniel Foley, the city of West Allis, and Kowalski) were negligent and that their negligence caused the collision. The jury also determined that both Daniel and Zita Foley, the plaintiffs, were negligent with respect to their own safety by failing to wear available seat belts. The jury further determined that the Foleys' negligence in failing to wear seat belts was a cause of their injuries.

The jury apportioned causal negligence among the three defendants relating to the collision as follows:

"Table 1

"Kowalski 47%

City of West Allis 23%

Daniel Foley 30%

Total 100%"

The jury apportioned the causes of the plaintiffs' injuries, consisting of the defendants' negligence in causing the collision and the plaintiffs' negligence in failing to wear available seat belts as follows:

"Table 2

"Daniel Foley's injuries:

"The combined causal negligence of

Kowalski, City of West ...


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