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May 5, 1980


The opinion of the court was delivered by: TENNEY

This diversity action arose out of an automobile accident that occurred in New York on October 15, 1973. While driving an automobile manufactured by Chrysler Corporation ("Chrysler"), which is no longer a defendant in this action, *fn1" and owned by defendant Hertz Corporation ("Hertz"), plaintiff Elihu Brodvin collided with the vehicle in front of him. The complaint, filed on October 21, 1974, alleged that the accident and Brodvin's injuries resulted from the defendants' negligence in manufacturing, maintaining, and leasing a dangerously defective automobile. Hertz's answer, served on November 14, 1974, asserted as an affirmative defense that the accident and damages were "caused or contributed to by the negligence or want of care" of the plaintiff. Chrysler's answer alleged a similar affirmative defense. The action was referred to Magistrate Martin D. Jacobs to resolve discovery disputes and expedite the proceedings. The fairly extensive discovery conducted in this action included interrogatories, depositions, and document production.

By motion dated March 13, 1980, defendant Hertz seeks to amend its answer. The proposed amended answer differs from the original only in the addition of a second affirmative defense. This new defense states "(t)hat any injuries and damages plaintiff suffered from the incident alleged in the complaint resulted from his failure to use an available seat belt." Hertz's attorney states that "at the time the original answer was served it was thought that the affirmative defense that was then asserted that of the plaintiff's culpable conduct would suffice to allow an issue to be raised on trial of plaintiff's failure to use a seat belt." Affirmation of Richard P. McArthur, dated March 12, 1980. While the defendant contends that this is still correct, it has decided to seek to amend its answer "to remove all doubt." Id.

The plaintiff opposes this motion on the grounds that: (1) the newly asserted defense is unsupported by the factual record compiled in the case; (2) the defendant's moving papers are inadequate; and (3) inclusion of the defense at this point in the litigation would prejudice the plaintiff.

 For the reasons given below, the motion is denied.

 Both parties apparently agree that New York law governs the seat belt defense issue in this diversity action. In December 1974, the New York Court of Appeals held that nonuse of an available seat belt, and expert testimony regarding such nonuse, can be considered by a jury in determining whether the plaintiff in an accident case exercised due care to avoid or mitigate injury to himself. Spier v. Barker, 35 N.Y.2d 444, 457, 363 N.Y.S.2d 916, 920, 323 N.E.2d 164, 167 (1974). Such evidence cannot be considered in determining liability; it pertains only to the question of damages. Id. The court also stated:

Moreover, the burden of pleading and proving that nonuse thereof by the plaintiff resulted in increasing the extent of his injuries and damages, rests upon the defendant. That is to say, the issue should not be submitted to the jury unless the defendant can demonstrate, by competent evidence, a causal connection between the plaintiff's nonuse of an available seat belt and the injuries and damages sustained . . . .


 Defendant's motion would be unnecessary if the sole affirmative defense asserted in the original answer that the plaintiff's own negligence caused his accident and injuries were sufficient to raise the seat belt issue. If the defense must be specifically asserted, an amended answer is required for the defendant to introduce evidence at trial and argue this particular defense before the jury. Ensign v. Klekosky, 25 Misc.2d 536, 208 N.Y.S.2d 490 (Sup.Ct.1959), aff'd, 12 A.D.2d 680, 210 N.Y.S.2d 501 (3d Dep't 1960); N.Y.Civ.Prac.Law ยง 3018(b) (McKinney 1974). The Court concludes that no proof on this issue can be introduced absent an affirmative allegation in the pleadings.

 Section 3018(b) of the New York Civil Practice Law and Rules, entitled "Affirmative defenses," states in part that "(a) party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading . . . ." In Davis v. Davis, 49 A.D.2d 1024, 374 N.Y.S.2d 482 (4th Dep't 1975), the court held that the defendant could not submit proof on the plaintiff's nonuse of a seat belt because he had not specifically included the defense in his answer. According to the Davis court, section 3018(b) requires that partial defenses and matters that tend to mitigate damages must be pleaded affirmatively. See 3 Weinstein, Korn and Miller, N.Y.Civ.Prac. P 3018.17 (1977). In Spier, the New York Court of Appeals stated that the defendant bears the burden of "pleading and proving" that the nonuse of seat belts by the plaintiff increased his injuries and damages. Relying on Spier, the Davis court concluded that this defense must be expressly alleged in the answer in order for the defendant to raise the issue at trial.

 This same conclusion appears to have been reached by the Second Department in Wardlaw v. Ford Marketing Corp., 53 A.D.2d 610, 384 N.Y.S.2d 17 (2d Dep't 1976), although the court did not address the issue directly. The defendants in Wardlaw were granted leave to amend their answer to add a seat belt defense because the court concluded that the plaintiff would not be prejudiced by the amendment. Implicit in this ruling is the assumption that the seat belt defense must be pleaded affirmatively for the defendant to submit proof on the issue.

 Before Davis and Wardlaw were decided, one lower court arrived at a result contrary to those decisions. In De Vall v. Hawkins, 82 Misc. 2d 1002, 370 N.Y.S.2d 773 (Sup.Ct.1975), the court held that the seat belt defense need not be pleaded affirmatively for the defendant to introduce evidence and submit the issue to the jury. This opinion is inconsistent with the two appellate decisions discussed above and its reasoning is less sound. Therefore, it will not be followed by this Court.

 Neither the Davis nor the Wardlaw opinion discussed whether the defendant in each case, like the defendant here, had originally asserted a general affirmative defense relying on the plaintiff's own negligence. Given the usual practice in automobile accident cases, it is likely that such a defense was included in the first answer served in those actions, as it was in the case at bar. If so, the courts in Davis and Wardlaw apparently decided that such a generalized allegation was insufficient to raise the seat belt defense. This Court, however, does not rely merely on conjecture concerning the facts of prior cases. Adopting the view that the seat belt defense must be plead affirmatively, the Court concludes that a broad allegation concerning the plaintiff's own negligence is not a sufficient statement of the defense.

 Having concluded that the seat belt defense must be specifically pleaded, the Court now considers whether the defendant should be permitted to amend its answer to include this affirmative defense. Federal Rule of Civil Procedure ("Rule") 15(a) provides that "leave (to amend) shall be freely given when justice so requires." While the Rule vests broad discretion in the trial court, an amendment cannot be allowed if it would prejudice another party. Ricciuti v. Voltarc Tubes, Inc., 27 ...

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