Florida/Georgia Personal Injury & Workers Compensation

...t a parent or legal guardian of a child has not provided and used a child passenger restraint. This prohibition of the consideration of such evidence as comparative negligence is in the very section which requires the use of child restraint devices. § 316.613(1) and (3), Fla....

...Second, the question of the enforced use of safety belts has been before the legislature, which has not acted to impose such a requirement. On the contrary, the legislature has established a requirement that restraining devises be used for infants only. § 316.613, Fla....

...or for adults when it could easily have done so. I consider it an unwarranted and inappropriate use of judicial power to impose by fiat a debatable public policy on an unwilling public. I respectfully dissent. ADKINS, J., concurs. NOTES [1] Chapter 316.613, Florida Statutes, requiring child restraint devices for children five years of age or under became effective July 1, 1983....

...[1] Section 316.614, Florida Statutes (1995), provides in part: (4) It is unlawful for any person: (a) To operate a motor vehicle in this state unless each front seat passenger of the vehicle under the age of 16 years is restrained by a safety belt or by a child restraint device pursuant to s. 316.613, if applicable; or (b) To operate a motor vehicle in this state unless the person is restrained by a safety belt....

...ensuing confusion as to the law on the use of seat belts. [7] Besides our decision in Pasakarnis, the State of Florida had previously attempted to promote seat belt use through a child restraint act, ch. 82-58, § 1, Laws of Fla. (1982) (codified at § 316.613(1)-(4), Fla.Stat....

...Pollack, 154 So.2d 346 (Fla. 3d DCA 1963) (city ordinance regulating speed of trains within municipal limits). 3. This instruction should not be given if the statute or ordinance in question provides that its violation is not evidence of negligence, e.g., F.S. 316.613 (1997) (failure to provide and use a child passenger restraint inadmissible in civil action as evidence of negligence)....

...Second, the question of the enforced use of safety belts has been before the legislature, which has not acted to impose such a requirement. On the contrary, the legislature has established a requirement that restraining devices be used for infants only. § 316.613, Fla....

...McDonald, 392 So.2d 1356, 1357 (Fla. 2d DCA 1980), cited with approval in Parkway General Hospital, Inc. v. Stern, 400 So.2d 166, 167 (Fla. 3d DCA 1981). [66] 451 So.2d at 451. [67] Id. [68] 451 So.2d at 455. Justice Adkins concurred in the dissent. [69] § 316.613, Fla....

...Pollack, 154 So.2d 346 (Fla. 3d DCA 1963) (city ordinance regulating speed of trains within municipal limits). This charge should not be given if the statute or ordinance in question provides that its violation is not evidence of negligence. E.g., § 316.613, Fla....

...Wilson, of Dellecker Wilson King McKenna & Ruffier, A Limited Liability Partnership, Orlando, and Stephan W. Carter, Maitland, for Appellant. Angela C. Flowers, of Kubicki Draper, Ocala, for Appellees. SAWAYA, J. We are called upon to interpret the meaning of section 316.613(3), Florida Statutes (1999), which states that "[t]he failure to provide and use a child passenger restraint shall not be considered comparative negligence, nor shall such failure be admissible as evidence in the trial of any civil ac...

...negligence." This particular provision is part of a broader statutory scheme intended to protect children five years of age or younger from injury in automobile accidents by requiring that they be secured in a proper *650 child passenger restraint. § 316.613, Fla. Stat. (1999). The issue we must resolve, which appears to be a matter of first impression, is whether section 316.613(3) prohibits introduction of any evidence of failure to provide and use a proper child passenger restraint in a negligence action brought by an injured child against a caretaker who allegedly failed to secure the child in such a device prior to the automobile accident that caused the injuries....

...Mrs. Quarantello filed an amended complaint alleging in Count IV that Mrs. Leroy was negligent because she breached a common law duty to use reasonable care in caring for the child — the complaint did not allege breach of a duty of care created by section 316.613, Florida Statutes (1999)....

...Specifically, Mrs. Quarantello contended that the booster seat in which Alexander was placed was designed for older children and that the appropriate restraint device would have been an infant safety seat. This allegation is in direct reference to section 316.613(1), Florida Statutes (1999), which provides that "[f]or children aged through 3 years, such restraint device must be a separate carrier or a vehicle manufacturer's integrated child seat." She claimed Alexander's mother had provided Mrs. Leroy with an appropriate infant seat and that Mrs. Leroy failed to use it. Mrs. Leroy filed a motion for partial summary judgment, arguing that section 316.613(3), Florida Statutes, prohibits introduction of any evidence that she failed to provide or use an appropriate child passenger restraint....

...Quarantello's action was predicated solely on the admission of this prohibited evidence and that summary judgment should therefore be entered in her favor. The trial court agreed and entered the judgment we now review. Mrs. Quarantello appeals, contending that section 316.613(3), Florida Statutes, only *651 bars evidence of comparative negligence and similar evidence of negligence that can be used to reduce an injured child's recovery....

...Beverly Enters.-Fla., Inc., 898 So.2d 1, 5 (Fla. 2004) ("It is well settled that legislative intent is the polestar that guides a court's statutory construction analysis."). Because legislative intent is determined primarily from the text of the statute, we begin our analysis of section 316.613(3), as we do in any case of statutory interpretation, with the "actual language" used by the Legislature....

...J.A., 963 So.2d 189, 198 (Fla.2007); Borden v. E.-European Ins. Co., 921 So.2d 587, 595 (Fla.2006). If it is clear and unambiguous, we proceed no further and apply the provisions as written. See Foley v. State, 50 So.2d 179, 184 (Fla.1951). We do not believe that section 316.613(3) is an exemplar of good legislative draftsmanship....

...on of any and all evidence of failure to use a child passenger restraint or whether it simply prohibits evidence of comparative negligence and similar evidence of negligence that may be used to reduce an injured child's recovery. The first phrase of section 316.613(3) states that "[t]he failure to provide and use a child passenger restraint shall not be considered comparative negligence," and the very next phrase provides, "nor shall such failure be admissible as evidence in the trial of any civ...

...sistent and harmonious whole. A construction which would leave without effect any part of the language used should be rejected, if an interpretation can be found which will give it effect.'" (quoting 26 Amer. & Eng. Ency. Law 618 (2d ed.))). Reading section 316.613(3) in its entirety, we conclude that the latter phrase, "evidence ....

...1st DCA 1988), for example, a child was injured in an automobile accident and the defendant asserted comparative negligence as a defense based on the failure of the child's parents to secure the child in an appropriate child passenger restraint in violation of section 316.613....

...When the trial court entered an order striking that defense, the defendants then filed amended pleadings asserting defenses based on failure to mitigate damages and avoidable consequences, claiming that the damages could have been mitigated or avoided if the parents had complied with section 316.613. Concluding that the defenses of avoidable consequences and mitigation of damages are prohibited under the statute, the court held: Because, however, section 316.613(3) has explicitly precluded the admission of evidence relating to the failure of a child to be placed in a child restraint device for comparative negligence purposes, the concept of mitigation of damages, inseparable, under the circum...

...s similarly statutorily inadmissible when such nonuse is attempted to be interjected as a defense. Id. at 1149-50. We believe that the Legislature intended to prohibit defenses similar to those alleged in Parker when it included the second phrase of section 316.613(3)....

.... . with regard to negligence." Application of ejusdem generis informs us that the latter general prohibition refers to the former specific prohibition and, therefore, confirms our conclusion that the Legislature intended, through its enactment of section 316.613(3), to prohibit evidence of comparative negligence and evidence of negligence similarly used to reduce an injured child's recovery. Looking to the manner in which similar statutes in other states have been interpreted, as is permissible for us to do, the only state statute that we have found containing language identical to that contained in section 316.613(3), Florida Statutes, is Louisiana Revised Statutes section 32:295(F), which provides: "In no event shall failure to wear a child passenger safety seat system be considered as comparative negligence, nor shall such failure be admissib...

...s recovery. However, it does not immunize a defendant from liability arising from the defendant's failure to properly secure a child in a vehicle. Id. at 826. We agree with the reasoning in Salaiman. In light of that reasoning, the interpretation of section 316.613(3) advanced by Mrs....

...by a seat belt under section 316.614, Florida Statutes, see Cybroski v. Wright, 927 So.2d 1089 (Fla. 4th DCA 2006), but injured children five years of age or younger would not be allowed to recover based on the prohibition of similar evidence under section 316.613(3). Both sections 316.613 and 316.614 were enacted in large part to protect children from injuries in automobile accidents, yet, according to the argument advanced by Mrs. Leroy, the age of the child would determine the right to recover. The illogic that flows from this interpretation of section 316.613(3) is readily apparent and we reject it....

...Cape Canaveral Hosp., Inc., 898 So.2d 973, 975 (Fla. 5th DCA 2005) ("A literal interpretation of the statutory language used is not required when to do so would lead to an unreasonable conclusion, defeat legislative intent or result in a manifest incongruity."). As to Mrs. Leroy's contention that section 316.613(3) is, in essence, a grant of immunity, we disagree....

...(2007) (using the phrase, "shall not thereby become liable for injury or damage"); § 768.13, Fla. Stat. (2007) (employing the language, "shall not be held liable for any civil damages"). We do not discern a grant of immunity within the provisions of section 316.613(3). We conclude that section 316.613(3) does not prevent introduction of evidence that Mrs....

...and make an informed decision whether he is due recompense from Mrs. Leroy. REVERSED and REMANDED. GRIFFIN, J., concurs. PALMER, C.J., dissents with opinion. PALMER, C.J., dissenting. I respectfully dissent. In my opinion, the language set forth in section 316.613(3), Florida Statutes (1999), is clear and unambiguous and, therefore, it is unnecessary for this court to undertake a "holistic endeavor" or to employ rules of statutory interpretation as a means to apply *655 the statute to the facts presented in this case....

...witnesses Breen and McElhaney, or when the district court overruled the Edics’ 10 objections to portions of the expert testimony; and (2) whether the district court erred when it found that Florida Statute § 316.613(3), which provides that the failure to use a child passenger restraint shall not be admissible as evidence in any negligence action, did not prohibit Century from arguing that the Edics’ misuse of the CRS was the cause of Dylan’s injuries. Fla. Stat. Ann. §316.613(3) (2001)....

...s to determine whether there actually were contradictions. Second, the Edics fail to explain how these rulings prejudiced them.11 2. Evidence of Misuse The Edics assert that the district court erred by finding that Florida Statute § 316.613(3) did not bar Century from asserting that the Edics’ misuse of the CRS, and not a CRS defect, was the cause of Dylan’s injuries....

...1217, 1221 (1991). Florida law provides that “[t]he failure to provide and use a child passenger restraint shall not be considered comparative negligence, nor shall such failure be admissible as evidence in the trial of any civil action with regard to negligence.” Fla. Stat. Ann. §316.613. Because the evidence of Dennis’s misuse is not being offered to prove his negligence––the situation to which § 316.613 expressly applies––but to disprove a manufacturing defect, the district court did not err in ruling that the statute did not bar this evidence.12 Moreover, refusing to admit evidence of misuse for the purpose of disproving a defect would lead to an illogical and unintended result....

...Ford Motor Co., 806 So.2d 424, 440 (Fla. 2002). III. CONCLUSION In sum, we hold that the district court properly denied the Edic’s motion to exclude Century’s expert witnesses and properly ruled that Fla. Stat. § 316.613 did not bar Century from introducing evidence of Dennis’s misuse of the CRS. However, we also hold that the district court erred when it found that the Edics had failed to introduce sufficient evidence of enhanced injuries and defect and, as a result, erred when it granted judgment as a matter of law to Century....

...ortion of the judgment relating to the amount of damages awarded the parents of Stephen. Appellants asserted below, as an affirmative defense, that the failure of the mother to place her child in an approved child passenger restraint, as required by Section 316.613(1)(a), Florida Statutes (1985), was negligence, contending that such failure was the cause of Stephen's death. The appellees moved to strike the defense as legally insufficient, relying upon section 316.613(3), stating: "The failure to provide and use a child passenger *1146 restraint shall not be considered comparative negligence, nor shall such failure be admissible as evidence in the trial of any civil action with regard to negligence...

...Although this motion was also stricken, appellants were permitted to proffer expert testimony in support of the defense, opining that had Stephen been placed in an approved child restraint seat, he would have completely escaped injury. It is appellants' position on appeal that because section 316.613(3) expressly forbids only evidence regarding the failure of the responsible parent or guardian to place a child in a restraint device for negligence or comparative negligence purposes, any other relevant defense and evidence thereof, not explicitly precluded, such as mitigation of damages, is admissible....

...§ 59-930, or the Minnesota State Legislature, see Minn. Stat. Ann. § 169.685(4), foreclosing the introduction of evidence pertaining to the nonuse of a seat belt for any purpose. [3] The difficulty we have in accepting appellants' argument, and thereby applying a similar interpretation to section 316.613(3), is that its language is substantially different from that provided in the Virginia statute....

...or contributed substantially to a portion of the damages sustained, the Pasakarnis rule, by applying comparative negligence principles, would require that such damages be apportioned pursuant to the theory of mitigation of damages. Because, however, section 316.613(3) has explicitly precluded the admission of evidence *1150 relating to the failure of a child to be placed in a child restraint device for comparative negligence purposes, the concept of mitigation of damages, inseparable, under the...

...Taylor, 62 Tenn. App. 407, 463 S.W.2d 416 (1970). [4] The Pasakarnis rule has since been statutorily codified in Florida. See § 316.614, Fla. Stat. (Supp. 1986), and American Auto. Ass'n v. Tehrani, 508 So.2d 365, 370 (Fla. 1st DCA 1987) (on rehearing). Section 316.613(3) also remains intact following the adoption of section 316.614....

...Pursuant to section 316.614(4)(a), Florida Statutes (2005), it is illegal to "operate a motor vehicle in this state unless each passenger and the operator of the vehicle under the age of 18 years are restrained by a safety belt or by a child restraint device pursuant to s. 316.613, if applicable." A violation of the provisions of this section shall not constitute negligence per se, nor shall such violation be used as prima facie evidence of negligence or be considered in mitigation of damages, but such violation may be considered as evidence of comparative negligence, in any civil action....

...o exercise a duty of care. Accordingly, we reverse the judgment on appeal and remand for further proceedings consistent with this decision. Reversed and Remanded. FARMER, J., and MARX, KRISTA, Associate Judge, concur. NOTES [1] The trial court cited section 316.613 in its written order. Section 316.613 refers to the use of child restraint devices when transporting children five years of age or younger. Because Melanie was twelve-years-old at the time of the accident, we assume the trial court's reference to section 316.613, instead of section 316.614, was a scrivener's error.

..., together with the other facts and circumstances, in determining whether such person was negligent. NOTE ON USE This charge should not be given if the statute or ordinance in question provides that its violation is not evidence of negligence. E.g., § 316.613, Fla....

...g material), § 316.299 (ban on rough surfaced wheels), § 316.303 (ban on television receivers), § 316.304 (ban on headsets), §§ 316.500-316.555 (weight and length limits), 316.600 (health and sanitation hazards), § 316.610 (safety of vehicle), § 316.613 (child restraint requirements), and § 316.614 (safety belt usage)....

subject to the child restraint requirements in section 316.613, Florida Statutes, and the safety belt requirements

...10 Pursuant to section 316.614 (4), Florida Statutes, it is unlawful for any person to operate a motor vehicle "unless each passenger of the vehicle under the age of 16 years is restrained by a safety belt or by a child restraint device pursuant to s. 316.613 , if applicable[.]" Section 316.613 , Florida Statutes, requires specific child restraint devices if a child 5 years of age or younger is transported in a motor vehicle....

...A violation of section 316.614 , Florida Statutes, is a nonmoving violation, the enforcement of which "must be accomplished only as a secondary action when a driver of a motor vehicle has been detained for a suspected violation of another section of this chapter, chapter 320, or chapter 322." 11 Any person who violates section 316.613 , Florida Statutes, however, commits a moving violation, punishable as provided in Chapter 318 , Florida Statutes....

...Stat., stating that "[w]hen transportation is authorized in privately owned vehicles, students may be transported only in designated seating positions and must use the occupant crash protection system provided by the vehicle manufacturer ." (e.s.) 10 See, s. 316.614 (3), Fla. Stat. 11 Section 316.614 (8), Fla. Stat. 12 Section 316.613 (5), Fla....