author: NORDBERG, District Judge.

text:
    FORD MOTOR CREDIT COMPANY, a Delaware corporation, Plaintiff, v. DEVALK LINCOLN-MERCURY, INC., an Illinois Corp., et al., Defendant.
    No. 81 C 2132.
    United States District Court, N.D. Illinois, E.D.
    Jan. 25, 1985.

      Aaron J. Kramer, Paul E. Dengel, Schiff Hardin & Waite, Chicago, Ill., for plaintiff.
    Abraham Brustein, Dozoryst & Brustein, Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

NORDBERG, District Judge.

This action is before the Court on motion of plaintiff, Ford Motor Credit Corp. (“Ford Credit”) for summary judgment. For the reasons set forth below, Ford Credit’s motion is granted in part and denied in part.

Facts

This action arises from agreements between Ford Credit and the defendants, De-Valk Lincoln-Mercury, Inc. (the “Dealership”), a Ford dealership, and four individuals, Harold G. DeValk, June DeValk, John M. Fitzgerald and Esther R. Fitzgerald. From the beginning of the Dealership’s operation, Ford Credit provided financing for the Dealership’s purchase of new and used vehicles, under the Automotive Wholesale Plan Application for Wholesale Financing and Security Agreement (“Wholesale Financing Agreement”). Ford Credit also provided working capital to the Dealership pursuant to a Capital Loan Security Agreement (“Capital Loan Agreement”).

Under the Wholesale Financing Agreement, Ford Credit advanced to the Dealership the purchase price for each vehicle the Dealership purchased for its inventory. In return, the Dealership was obligated to repay the amount advanced for each vehicle at or before the time of its sale to a customer. The Dealership agreed to pay Ford Credit interest on the outstanding amount of wholesale financing.

The DeValks and the Fitzgeralds also executed written guaranties to pay all debts of the Dealership owed to Ford Credit, dated March 10, 1977 and February 12, 1979.

On October 12, 1979, the Dealership voluntarily terminated its operations. On October 16, 1979 Ford Credit learned that the Dealership had sold five new vehicles without paying Ford Credit the money advanced to purchase the vehicles under the Wholesale Financing Agreement. Because of these “out of trust sales,” Ford Credit declared the Dealership in default of both the Wholesale Financing Agreement and the Capital Loan Agreement. The assets of the Dealership were liquidated and the proceeds were applied against the Dealership’s obligations. The automobile inventory was liquidated for approximately 94 percent of the principal amount owed under the Wholesale Financing Agreement.

In its complaint, Ford Credit claims that defendants owe the remaining principal and interest due under the Wholesale Financing Agreement, plus the principal and interest due under the Capital Loan Agreement. Ford Credit alleges, and the defendants admit, that Ford Credit has demanded payment by the individual defendants under their guaranties, and that such payment has been refused.

In Count I of its complaint, Ford Credit seeks recovery of amounts allegedly owed by the Dealership under both the Wholesale Financing Agreement and the Capital Loan Agreement. In Count II, Ford Credit seeks recovery of these same amounts under the written guaranties executed by the individual defendants. Ford Credit has moved for summary judgment on both counts.

Summary Judgment

On a motion for summary judgment, the moving party has the burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Cedillo v. International Association of Bridge and Structural Iron Workers, 603 F.2d 7, 10 (7th Cir.1979). The nonmoving party is entitled to all reasonable inferences that can be made in its favor. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). However, the plaintiff may not merely rely on conclusory pleadings to withstand summary judgment. In responding to a motion for summary judgment, a plaintiff must set forth specific facts in affidavits or otherwise showing that there are genuine issues that must be decided at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983).

The purpose of the summary judgment procedure is to eliminate a trial in cases where a trial is unnecessary and results in delay and expense. Mintz v. Mathers Fund, Inc., 463 F.2d 495, 498 (7th Cir.1972). As the Seventh Circuit Court of Appeals has noted, with the ever-increasing burden upon the judiciary, persuasive reasons exist for the utilization of summary judgment procedures whenever possible. Kirk v. Home Indemnity Co., 431 F.2d 554, 559-60 (7th Cir.1970). Courts therefore will not strain to find the existence of a genuine issue where none exists. Id.

Count I — The Dealership

Ford Credit has moved for summary judgment under Count I of the complaint, asserting that the Dealership does not dispute that it entered into and received funds pursuant to both the Wholesale Financing Agreement and the Capital Loan Agreement. The Dealership contends that several genuine issues of material fact exist that preclude summary judgment against it. First, it asserts that a genuine issue of material fact exists as to whether the parties agreed to the amount of wholesale credit to be extended and whether Ford Credit breached that agreement with the Dealership. The Dealership essentially contends that the parties in some manner agreed to a credit limit of $758,000, and that Ford Credit breached that agreement by allowing, pursuant to orders for new vehicles placed by the Dealership, the authorized financing to exceed $1.6 million.

The Wholesale Financing Agreement itself states no limit on the amount of financing permitted under the agreement. Instead, it explicitly grants Ford Credit the sole discretion to determine what, if any, limits on the extension of credit may be imposed under the agreement. Paragraph 1 of the agreement provides:

Ford Credit at all times shall have the right in its sole discretion to determine the extent to which, the terms and conditions on which, and the period for which it will make advances to or on behalf of Dealer, or extend credit to Dealer, under the [Wholesale Financing Plan] or otherwise. Ford Credit, at any time and from time to time, in its sole discretion, may establish, rescind or change limits or the extent to which financing accommodations under the plan will be made available to Dealer. Ford Credit may pay to any manufacturer, distributor or other seller of merchandise the invoice amount therefor, and Ford Credit shall be fully protected in relying in good faith upon any invoice...

Despite this language, the Dealership asserts that a financing limit of $575,000 was established and that Ford Credit wrongfully allowed the Dealership’s financing to exceed this limit. The Dealership contends that this “agreement” is evidenced by the preliminary negotiations of the parties and through the course of conduct of the parties in carrying out the Wholesale Financing Agreement. First, the Dealership maintains that, during the preliminary negotiations, the parties discussed a credit limit ranging between $375,000 and $600,-000, and that prior to signing the agreement, Harold DeValk was notified that the credit limit of the Dealership was $575,000. DeValk Affidavit ¶ 7. The Dealership recognizes that the parol evidence rule operates to exclude evidence where the Court has found that the written agreement is clear and .unambiguous. It argues, however, that parol evidence is admissible to allow the Court to determine whether there is, in fact, an ambiguity within the written document.

The Dealership relies on Ortman v. Stanray Corp., 437 F.2d 231 (7th Cir.1971), in which the court stated that, “If relevant testimony concerning the circumstances surrounding the signing of a contract is offered, it should generally be heard.” 437 F.2d at 234. However, the Seventh Circuit more recently reconsidered its interpretation of the Illinois parol evidence rule in Sunstream Jet Express, Inc. v. International Air Service Co., Ltd., 734 F.2d 1258 (7th Cir.1984). In Sunstream, the court reversed its decision in Ortman to the extent that it required courts always to admit extrinsic evidence even where a contract is clear and unambiguous. The court held instead that, under Illinois law, parol evidence is admissible only if the court determines, as a matter of law, that the contract is ambiguous. 734 F.2d at 1267-68.

In this case, the contract language quoted above is manifestly clear and unambiguous. It explicitly permits Ford Credit to unilaterally determine at any time the amount of credit to extend and to unilaterally change that amount at any time. The Court finds that, as a matter of law, this language is clear and unambiguous, and that, therefore, evidence of pre-agreement discussions regarding credit limits are not admissible in evidence.

The Dealership also asserts that an agreement regarding a credit limit is established from the course of conduct of the parties after the agreement was entered. It details the various extensions of credit and “credit holds” imposed by Ford Credit on the Dealership. Nowhere, however, does the Dealership produce any evidence of a specific agreement by Ford Credit to alter the explicit terms of the Wholesale Financing Agreement by limiting the amount of authorized financing to a specific amount. Moreover, the various “credit holds” described by the Dealership do not evidence any subsequent modification of the written agreement, but instead demonstrate that Ford Credit was exercising its prerogative within the explicit terms of the written agreement to impose or modify any credit limit it deemed appropriate. Thus, the evidence of the parties’ course of conduct after the agreement was entered shows that the parties acted within their terms of the written agreement, not that the parties in any way modified the written agreement. The Dealership has therefore failed to raise any genuine issue of material fact, either through pre-agreement negotiations or post-agreement conduct, regarding any agreement to a specific credit limit which could have been breached by Ford Credit.

The Dealership next argues that Ford Credit is not entitled to summary judgment on Count I because a genuine issue of material fact exists as to whether Ford Credit liquidated the collateral in a commercially reasonable manner. It asserts that Ford Credit delayed in returning new cars and in collecting amounts due on warranty claims and parts returned, and sold the nonreturnable cars at auction rather than at retail. The Dealership maintains that Ford Credit, as a secured party under the Wholesale Financing Agreement and the capital loan agreement, had an obligation under Section 9-504 of the Illinois Uniform Commercial Code (“IUCC”), Ill.Rev. Stat. ch. 26, § 9-504, to liquidate the collateral in a commercially reasonable manner.

However, the Dealership’s objection that the cars were sold at auction rather than at retail fails to raise a genuine issue of material fact regarding the commercial reasonability of the liquidation of the collateral. § 9-507(2) of the IUCC provides:

The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the secured party either sells the collateral in any recognized market therefore____he has sold in a commercially reasonable manner.

Ill.Rev.Stat., ch. 26, § 9-507(2). Thus, that Ford Credit may have been able to obtain a higher price for the collateral if it had sold it in a different manner does not alone establish that the sales were not commercially reasonable. The Dealership has failed to produce any other evidence to show that the auction sales were not commercially reasonable. Moreover, Ford Credit has produced uncontradicted evidence that the auction at which the cars were sold, which only retail automobile dealers may attend, is a well-recognized market for automobiles in the Chicago metropolitan area. La Mantra Affidavit ¶ 4. Under § 9-507(2) and this unchallenged evidence, the Court must find that the Dealership has failed to raise a genuine issue of material fact regarding the commercial reasonableness of the auction sale.

In addition, § 9-501(3)(b) of the IUCC permits the parties to determine by agreement the standards by which the fulfillment of the duty to sell in a commercially reasonable manner is to be measured, as long as the agreement is not manifestly unreasonable. Ford Credit and the Dealership made such an agreement in paragraph 9 of the Wholesale Financing Agreement, which provides:

Dealership further agrees that if Ford Credit shall solicit bids from three or more other dealers in the type of property repossessed by Ford Credit hereunder, any sale by Ford Credit of such property in bulk or in parcels to the bidder submitting the highest cash bid therefor also shall be deemed to be a commercially reasonable means of disposing the same.

Ford Credit has provided evidence that approximately 150 automobile dealers attended the auction at which the vehicles were sold and were invited to submit bids. La Mantra Affidavit ¶! 3. The Dealership has produced no evidence to the contrary, or that the agreement in Paragraph 9 was manifestly unreasonable. The Court must therefore conclude under § 9-501(3)(b), as well as § 9-507(2), the' Dealership has failed to raise a genuine issue of material fact regarding the reasonableness of the auction sale, and that the sale was therefore commercially reasonable.

With regard to the Dealership’s argument that Ford Credit delayed in liquidating the collateral, the Dealership has presented absolutely no evidence to show that Ford Credit acted unreasonably in this regard. The Dealership has therefore failed to raise a genuine issue of material fact on this point as well.

The Dealership next argues that Ford Credit agreed that the liquidation would be conducted with the mutual benefit of the parties. The Dealership contends that a genuine issue of material fact exists as to whether this agreement was breached. However, the Dealership offers no evidence to prove that Ford Credit made any “agreement” with the Dealership to liquidate in a mutually beneficial manner. The Dealership cites no evidence in its brief to support the existence of such an agreement. A review of defendants’ affidavits revealed that Harold DeValk stated only that “Mr. Plumboff stated that Ford Credit would show, by its cooperation in the liquidation process, that it intended to conduct the liquidation for the mutual benefit of all the parties concerned.” DeValk Affidavit II 22. This statement does not evidence an agreement between the parties enforceable by the Dealership, but at most is a statement of Ford Credit’s intention within the parameters of its already existing contractual rights. Moreover, the Dealership failed to allege or present any evidence of consideration to Ford Credit to support any such agreement. The Court therefore finds that the Dealership has failed to raise a genuine issue of material fact with respect to any enforceable agreement by Ford Credit to liquidate the collateral in a manner mutually beneficial to both parties.

The only remaining issue raised by the Dealership is whether Ford Credit has failed to collect amounts allegedly due the dealership from Ford Motor Co., which the Dealership claims amounts to approximately $11,000. The Dealership apparently contends that this amount should be set off against the Dealership’s indebtedness under the Wholesale Financing Agreement and the Capital Loan Agreement. Since neither party has provided sufficient evidence on this matter to permit resolution on summary judgment, this question remains as an issue of fact. Ford Credit’s motion for summary judgment is therefore denied at this time with respect to this one affirmative defense only.

Accordingly, since the Dealership has failed to raise any genuine issue of fact regarding its liability under Count I, except as discussed above, the Court grants Ford Credit’s motion for summary judgment on Count I on all issues except with respect to the Dealership’s First Affirmative Defense relating to accounts receivable allegedly due from Ford Motor Co.

Count II — The Guaranties

In Count II of its complaint, Ford Credit seeks recovery from the individual defendants who guaranteed the Dealership’s debts to Ford Credit. These guarantors, Harold ,G. DeValk, June DeValk, John M. Fitzgerald and Esther K. Fitzgerald, each admit they executed personal guaranties in connection with the Wholesale Financing Agreement and the Capital Loan Agreement. Ford Credit asserts, and the guarantors do not contest, that the guaranties are unconditional guaranties of payment of all the debts of the dealership owed to Ford Credit.

In opposition to the motion for summary judgment, the guarantors first assert the defenses raised by the dealership, that Ford Credit overextended the Dealership’s credit limit and failed to dispose of the collateral in a commercially reasonable manner. As discussed above with respect to Count I, no genuine issue of material fact has been raised relating to either of these matters. First, as noted above, Ford Credit was fully within its contractual rights in unilaterally setting and changing the Dealership’s credit limit. Second, with respect to the liquidation of the collateral, not only has no genuine issue of fact been raised as to the commercial reasonableness of Ford Credit’s action, but, the individual guarantors each agreed in their guaranties to pay the debts of the Dealership upon default “without [Ford Credit] first having to proceed against the [Dealership] to liquidate paper or security therefor.” Exhibits 5 & 6 to Ford Credit’s Motion, H 1. Thus, the guarantors have explicitly waived any right to have Ford Credit pursue the collateral in any manner before collecting from the guarantors. The individual guarantors therefore may not rely on either of these defenses of the Dealership in opposing Ford Credit’s motion for summary judgment.

The guarantors also assert that there is a genuine issue of fact as to whether their guaranties were supported by consideration. They apparently argue that, because the guaranties were executed on the dates after the primary agreements between the Dealership and Ford Credit, they require new and additional consideration. First National Bank of Redbud v. Chapman, 51 Ill.App.3d 738, 9 Ill.Dec. 426, 366 N.E.2d 937 (1977). They note that the DeValks signed their guaranties two days after they signed the Wholesale Financing Agreement, and that the Fitzgeralds executed their guaranties nearly two years after the original agreements were entered with the Dealership.

However, both Harold DeValk and John Fitzgerald admit in their answers that they executed their guaranties for good and valuable consideration. Harold De-Valk admitted he executed his guaranties for good and valuable consideration and to induce Ford Credit into the Wholesale Financing Agreement and the Capital Loan Agreement. Both Harold DeValk and John Fitzgerald admit in their answers that they signed their guaranties to induce Ford Credit to extend both agreements. In light of these admissions, neither of these guarantors now assert the defense of lack of consideration.

Further analysis is required, however, with respect to June DeValk and Esther Fitzgerald, who did not make similar admissions in their answers. As noted by the guarantors, a guaranty not executed contemporaneously with the agreement that purportedly provides the consideration for the guaranty may require new consideration. First National Bank of Red Bud v. Chapman, 366 N.E.2d 937, 940 (1977). Ford Credit has submitted an affidavit in which Mr. Plumboff, Ford Credit’s manager in charge of the Dealership’s financing, affirmatively states that the loan agreements were entered into and extended in reliance upon all four guaranties. No counter-affidavits or other evidence have been provided by June DeValk or Esther Fitzgerald to contest or deny that the continued extension of the loan agreements constituted the consideration for their guaranties. Although the guaranties may not have been signed on the exact dates various credit was extended to the Dealership, the loan agreements (and the guaranties) were all terminable at will by either party with notice to the other party. Ford Credit therefore could have terminated the loan agreements at any time had the guarantors refused to sign the guaranties, making the continued provision of credit even after the agreements were extended in writing sufficient consideration for the guaranties. Since June DeValk and Esther Fitzgerald have failed to present any evidence tending to prove that the continuing extension of credit to the dealership was not consideration for the guaranties, they have failed to raise a genuine issue of material fact regarding the sufficiency of consideration for the guaranties on this basis.

Esther Fitzgerald makes two additional arguments with respect to her guaranty. First, Mrs. Fitzgerald asserts that she has no liability under the Capital Loan Agreement. She argues that Ford Credit required the DeValks to sign separate guaranties with respect to the Wholesale Financing Agreement and the Capital Loan Agreement, and that a new guaranty was required each time the capital loan agreement was extended. The Fitzgeralds were required to sign a guaranty when John Fitzgerald made a significant capital contribution to the Dealership. However, three weeks later, when the Capital Loan Agreement was extended, a new guaranty was executed by the DeValks and John Fitzgerald, but not by Esther Fitzgerald. She therefore argues that she never undertook to guaranty the obligations of the Dealership with respect to the Capital Loan Agreement. However, it is clear from the unambiguous language of her guaranty that Mrs. Fitzgerald undertook to guaranty all present and future obligations of the dealership to Ford Credit until termination of the guaranty. Mrs. Fitzgerald admits that she has not at any time terminated the guaranty. In light of this explicit language, the Court must conclude that Mrs. Fitzgerald has not raised a genuine issue of material fact in this regard, and that her guaranty must apply to all obligations of the Dealership to Ford Credit, including the Capital Loan Agreement.

Esther Fitzgerald’s second argument is that there is a genuine question of material fact as to whether Ford Credit ever intended to obtain a guaranty from her. As evidence, she points to an internal memorandum by a manager at Ford Credit, which stated that a guaranty from John Fitzgerald would be required, but did not mention Esther Fitzgerald. She also asserts that she was not required to sign a March 7, 1979 extension of the Capital Loan Agreement, and that the guaranty form does not have a typewritten line for her signature. She relies on H. Watson Development Corp. v. Bank and Trust of Arlington Hts., 58 Ill.App.3d 423, 15 Ill.Dec. 984, 992, 374 N.E.2d 767, 775 (1978). In H. Watson, the court held that, where there was no evidence whatsoever that the signature of the wife of a corporate officer was the prerequisite to an extension of credit to her husband’s corporation, the guaranty was void for lack of consideration. As the court also noted, however, that:

“Where the wife is a comaker of the note paying for the husband’s obligations, there is consideration to the wife as she shares in his wealth and his inheritance. The extension of credit was made to her husband on the basis of her signature and she had a direct interest in the extension,” citing State Bank of Arthur v. Sentel, 10 Ill.App.3d 86, 91, 293 N.E.2d 444, 448 (1973).

Thus, whether sufficient consideration flows to a wife for credit extension of credit to her husband depends on whether the credit was extended in reliance on her signature or guaranty. In H. Watson, there was absolutely no evidence that the signature of the wife was relied upon for the extension of credit. In this case, Ford Credit has provided an affidavit evidencing its reliance upon Esther Fitzgerald’s signature for the extension of credit to her husband’s dealership. However, the evidence relied on by Mrs. Fitzgerald may create a question of fact on this issue, which the Court is reluctant to resolve on summary judgment. The Court therefore denies summary judgment with respect to Esther Fitzgerald’s guaranty on this basis only.

However, since no genuine issue of material fact has been raised by Harold DeValk, June DeValk, or John Fitzgerald, and Ford Credit has demonstrated that it is entitled to judgment as a matter of law on their guaranties, the Court grants Ford Credit’s motion for summary judgment on Count II with respect to these three defendants.

Attorney's Fees

The only remaining issue raised by defendants pertains to attorneys fees. Under the Wholesale Financing and the Capital Loan agreements, and the individual guaranties, the Dealership and the individual defendants agreed to pay reasonable attorney’s fees incurred by Ford Credit in the collection of the debts owed it. Ford Credit is therefore entitled to reasonable attorney’s fees for any debts found collectable by the Court.

Ford Credit has submitted two affidavits stating amounts of expenses and attorneys fees expended in this matter. The defendants object to the attorneys fees claimed by Ford Credit on the basis that it merely states a total amount of fees without any break-down of the types of services provided or the rates charged. Since, without a statement specifying the legal services provided and the fees charged, the defendants are unable to effectively challenge the reasonableness of the fees, the Court hereby reserves judgment on the question of attorneys fees, and orders Ford Credit to submit a detailed hourly statement of the services provided and the fees charged so that the reasonableness of the fees requested can be determined.

Conclusion

Since some matters remain unresolved, the Court defers entering specific money judgments against the various defendants at this time until the next status hearing.

      . The Dealership presented to the Court a motion to file an amended answer, which asserted five affirmative defenses. The Court withheld ruling on the motion to file an amended answer pending consideration of this motion for summary judgment. Upon review of the entire matter, since the Dealership asserts defenses previously raised by the individual defendants in the case, the amended answer does not substantially alter the basic issues in the case. The Court therefore grants the Dealership's motion to file an amended answer. The Court has considered the amended answer as filed for purposes of ruling on this motion for summary judgment.

      . The guarantors also argue that the alleged overextension of credit by Ford Credit changed the nature of the principal obligation and that the guarantors are therefore discharged. However, since the Court has found that Ford Credit acted within its original contractual rights in extending the credit limit, there has been no alteration of the nature of the principal obligation. The guarantors’ argument in this regard is therefore without merit.


source: Caselaw Access Project

author: JAMES HARVEY, District Judge.

license: Public Domain

text:
    Robert KASOM, d/b/a Bob’s Landscaping Service, Plaintiff, v. CITY OF STERLING HEIGHTS, A Michigan Municipal Corporation, Jose Benavides, Bowman K. Chung, Art Madar, Jerry V. Mann, Mary L. Marcinak, Charles S. Marling and Nancy L. Ulrich, Jointly and Severally, Defendants.
    Civ. A. No. 82-30071.
    United States District Court, E.D. Mich., S.D.
    Jan. 25, 1985.

      Robert J. Seibert, Mont Clemens, Mich., for plaintiff.
    Paul J. O’Reilly, Sterling Heights, Mich., for defendants.
   MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

Plaintiff brought this action pursuant to 42 U.S.C. § 1983 claiming that the defendants violated his constitutional rights to Due Process and Equal Protection of the law in connection with the awarding of a public contract. Plaintiff has also raised analagous state law claims under the Michigan Constitution. Having granted defendants’ motion at trial for an involuntary dismissal pursuant to Federal Rule of Civil Procedure 41(b), the Court hereby issues its findings of fact and conclusions of law in accordance with Rule 52(a).

FINDINGS OF FACT

1) Plaintiff, Bob’s Landscaping Service, is a sole proprietorship owned by Robert Kasom and is engaged in the business of residential and commercial landscaping. At all times relevant hereto, plaintiff’s principal place of business was located in St. Clair Shores, Michigan.

2) Defendant, City of Sterling Heights, is a Michigan municipal corporation organized pursuant to MCLA § 117.1 et seq.

3) The individual defendants Jose Benavides, Bowman K. Chung, Art Mandar, Jerry V. Mann, Mary L. Marcinak, Charles S. Marling, and Nancy L. Ulrich, were, at all times relevant hereto, duly elected members of the Sterling Heights City Council.

4) On February 24, 1982, the City of Sterling Heights published an “invitation to bid” on a noxious weed cutting project in The Advisor newspaper. This weed cutting project was to extend for a period of three (3) years.

5) The City’s authority to contract for public work projects such as the weed cutting project is set forth in the City of Sterling Heights Charter, section 13.01. Section 13.01 provides that:

“The city may contract for the performance of any public work or may perform the same itself through its departments, officers and employees; provided, however, that it shall not make any public improvements exceeding an estimated five thousand dollars ($5,000.00) until it has first advertised for sealed proposals therefor. The city shall have the right to reject any and all such proposals.”

6) In addition to the advertisement published in The Advisor, the City of Sterling Heights sent requests to bid to all individuals who were on the City’s bid list for such projects, including the plaintiff.

7) The Advisor newspaper advertisement read as follows:

“ ‘INVITATION TO BID’
“The City of Sterling Heights, Michigan, is accepting sealed bids for noxious weed cutting for a period of three (3) years. “Until Wednesday, March 10, 1982 at 2:00 P.M. in the office of the City Clerk, 40555 Utica Road, Sterling Heights, Michigan 48078.
“Specifications are available in the office of the City Clerk, 40555 Utica Road, Sterling Heights, Michigan 48078.”

8) The bid specifications provided to potential bidders specifically reserved the right of the City “to reject any and all bids, to waive any informalities in the bidding and to accept any bid it deems in the best interest of the City.” (Plaintiff’s Exhibit # 1, page 4, paragraph D).

9) Pursuant to the invitation to bid and notification sent to the individuals on the City’s bid list, seven sealed bids were submitted to the Sterling Heights City Clerk. Each of the seven bidders, including the plaintiff, satisfied all requirements set forth in the bid specifications.

10) Plaintiff, Bob’s Landscaping Service, submitted a bid of $109,695.00 and that bid represented the lowest bid submitted on the noxious weed cutting project.

11) One of the seven bidders who submitted a bid, W.J. Rogers, Inc., was a resident of the City of Sterling Heights.

12) At a regularly scheduled meeting on April 20, 1982, the Sterling Heights City Council unanimously rejected all bids submitted and ordered the noxious weed cutting project re-bid.

13) One of the few factual disputes in this case centers around the reasons for the City Council’s action in this regard. Defendants strenuously argue that the City Council took this action because it was not satisfied that a sufficient number of bids had been submitted to ensure a competitive price. Plaintiff argues that the City Council rejected his bid solely because he was not a resident of Sterling Heights and because the City Council desired to ensure that the contract was awarded to a Sterling Heights company.

14) The Court, however, finds that neither of these proffered reasons accurately reflects why the City Council rejected all bids on the noxious weed cutting project. Plaintiff’s proofs established only that the City Council ordered the project re-bid because it was not satisfied that local businesses had received adequate notice to be given a fair opportunity to bid on the project. The City Council’s action was not an attempt to establish a de facto residency requirement for public works contracts. Moreover, this action was not taken to reject plaintiff’s bid simply because plaintiff was not a city resident. (See plaintiff’s exhibits # 13, 14, 15, 16 and testimony of Mr. Lange and Mr. Guzi.)

15) After the City Council ordered the noxious weed cutting project re-bid, Mr. Ronald Guzi, purchasing agent for the City of Sterling Heights, compiled a list of eleven local Sterling Heights landscaping companies. This list was compiled from the Sterling Heights telephone directory. Mr. Guzi then notified these eleven Sterling Heights businesses, along with the original contract bidders, that the noxious weed cutting project was open for rebidding.

16) In response to this notification, plaintiff re-submitted his original bid. Plaintiff was not, however, required to re-submit his original bid. If he had chosen to do so, plaintiff could have raised or lowered the amount of his original bid.

17) The City of Sterling Heights received a total of four bids in response to its second bid notification; all of these bids were from contractors who had originally bid on the project. When these bids were opened, it was determined that plaintiffs bid was only the third lowest. Plaintiff had been under-bid by two contractors who he had out-bid in the first bidding process. Because the lowest bidder was unable to post the required performance bond, the second lowest bidder was deemed the lowest qualified bidder.

18) On June 2, 1982, the City of Sterling Heights awarded the noxious weed cutting contract to the second lowest bidder, Cal Fleming Landscaping and Tree Service, Inc. This company is not a resident of Sterling Heights.

19) The City of Sterling Heights does not always award its contracts to the lowest bidder and has, on occasion, chosen not to go forward with a project for which bid notifications have been sent out. (Testimony of Mr. Lange, Mr. Guzi, Ms. Brockaway.) Additionally, Sterling Heights has no residency requirement in the awarding of public works contracts.

20) Plaintiff testified on two separate occasions that he was aware that he might not be awarded the contract even if he was the lowest qualified bidder. Plaintiff understood that the Sterling Heights City Council made all final decisions as to whether a public works contract would be awarded and, if so, to whom it would be awarded.

21) Finally, the Court finds that plaintiff offered no evidence of any impermissible custom or practice by the City of Sterling Heights.

CONCLUSIONS OF LAW

In this case, the Court must determine what rights, if any, the plaintiff has as a disappointed bidder on a public works contract. The Plaintiff has raised both Equal Protection and Due Process claims which may be resolved by addressing one basic issue: Did the plaintiffs proofs establish that he possessed a property interest which is deserving of protection under the Due Process and Equal Protection Clauses?

A. Standards of Review

1) Defendants’ motion for involuntary dismissal was brought pursuant to Federal Rule of Civil Procedure 41(b) and the proper standards for evaluating plaintiff's proofs are the Rule 41(b) standards. “When the defendant makes a Rule 41(b) motion to dismiss for insufficiency of the plaintiff's evidence it becomes the duty of the Court to weigh and evaluate the evidence.” Hersch v. United States, 719 F.2d 873, 876 (6th Cir.1983), quoting Weissinger v. United States, 423 F.2d 795, 798 (5th Cir.1970). “Moreover, in evaluating the evidence, the judge makes no special inferences in favor of the plaintiff.” Hersch, 719 F.2d at 876, quoting Emerson Electric Co. v. Farmer, 427 F.2d 1082, 1086 (5th Cir.1970).

B. Plaintiffs Due Process Claim

2) Plaintiff’s first claim is that, by not awarding him the contract for the noxious weed cutting project, the defendants violated his constitutional right to due process. In order for the plaintiff to succeed on this claim, he must prove both that the defendants deprived him of a property interest and that they did so through the application of improper or insufficient procedures. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

Only a few courts have addressed the issue of whether a disappointed bidder on a public works contract has a constitutionally protected property interest in that contract. See L & H Sanitation, Inc. v. Lake City Sanitation, Inc., 585 F.Supp. 120 (E.D.Ark. 1984); Douglas N. Higgins, Inc. v. Florida Keys, 565 F.Supp. 126 (S.D.Fla.1983); Kendrick v. City Council of Augusta, Ga., 516 F.Supp. 1134 (S.D.Ga.1981); Teleprompter of Erie, Inc. v. City of Erie, 537 F.Supp. 6 (W.D.Pa.1981); Three Rivers Cablevision v. City of Pitts burgh, 502 F.Supp. 1118 (W.D.Pa.1980); J.P. Mascaro & Sons, Inc. v. Township of Bristol, 497 F.Supp. 625 (E.D.Pa.1980); Coyne-Delany Co. v. Capital Development Bd., 616 F.2d 341 (7th Cir.1980); and Estey Corp. v. Matzke, 431 F.Supp. 468 (N.D.Ill.1976).

The United States Supreme Court has addressed the more general issue of what constitutes a property interest in the seminal cases of Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The essence of the Supreme Court’s decision in these two cases is that a plaintiff can demonstrate a property interest only if he can show that he was entitled to some benefit under state law.

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims. Roth, 408 U.S. at 577, 92 S.Ct. at 2709.

The central question addressed by the disappointed bidder cases is whether a plaintiff has shown that the benefit he seeks to enjoy is one to which he is entitled or merely one he desires to enjoy. Similarly, the issue in the case now before the Court is whether the plaintiff has a legitimate claim of entitlement to the noxious weed cutting project. Defendants argue that “the uniform rule of State and Federal Courts throughout this country is that bidders on public contracts have no constitutionally protected interests in those contracts.” In support of this position, the defendants cite Estey Corporation v. Matzke, 431 F.Supp. 468 (N.D.Ill.1976). The Court, nevertheless, disagrees that a plaintiff may never have a constitutionally protected property interest in such cases. Rather, the Court believes that the particular facts of each case must be separately considered in order to determine whether a constitutionally protectable interest, as defined under state law, is present.

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Roth, 408 U.S. at 577, 92 S.Ct. at 2709.

The plaintiff relies heavily on Three Rivers Cablevision v. City of Pittsburgh, 502 F.Supp. 1118 (W.D.Pa.1980), to substantiate his claim that he had a legitimate property interest in the noxious weed cutting project. The Court believes that Three Rivers and later cases stand for the proposition that where a state statute requires public works contracts to be awarded to the lowest qualified bidder, and where a decision has been made to award such a contract, bidders have a limited property interest in not having the procedure, which regulates the enjoyment of the benefit sought, applied in an arbitrary or capricious manner. L & H Sanitation, Inc., 585 F.Supp. 120, 123. “An entitlement may exist with respect to a benefit which is sought but not yet obtained whenever state law limits the exercise of discretion by the state official responsible for conferring the benefit.” Hixon v. Durbin, 560 F.Supp. 654, 659 (E.D.Pa.1983).

The difficulties confronting the plaintiff in this case are threefold: 1) no state law regulates the discretion of the defendant officials to award the contract in question; 2) plaintiff proved no practice by the defendant city which could serve as the basis of such a limitation; and 3) plaintiff’s proofs failed to establish that a decision had been made to award the contract at the time the City Council ordered it re-bid.

The City of Sterling Heights explicitly reserved the right in the award of the instant contract and in the award of all public works contracts, to reject any and all bids if doing so would benefit the public interest. This reservation of rights was set forth both in Section 1302 of the City Charter and in the bid specifications for the weed cutting project. (See findings of Fact 5 and 6.) Moreover, in contrast to Teleprompter of Erie, supra, and L & H Sanitation, supra, Sterling Heights was not bound to accept the lowest bid under Michigan law.

The plaintiff offered the Court ho statutory or case law authority to support his proposition that Michigan law vests a property interest in the plaintiff in this case. Succinctly, plaintiff could not answer the basic question of what state law defines the nature and extent of his alleged property interest. Indeed, Michigan law gives no rights to plaintiffs in cases such as this. See, Talbot Paving Co. v. Detroit, 109 Mich. 657, 67 N.W. 979 (1896); Detroit v. Wayne Circuit Judge, 128 Mich. 438, 87 N.W. 376 (1901); Kundinger v. City of Saginaw, 132 Mich. 395, 93 N.W. 914 (1903); City of Saginaw v. Consumers’ Power Co., 213 Mich. 460, 182 N.W. 146 (1921); City Commission v. City Attorney, 313 Mich. 644, 21 N.W.2d 906 (1946); and Op.Atty.Gen.1979, No. 5599, p. 484. Similarly, plaintiff failed to establish the existence of any de facto practice by Sterling Heights sufficient to create and define a property interest. Having found that Sterling Heights does not always award public works contracts to the lowest bidder and that the City has, in fact, chosen not to go forward with projects for which bid solicitations have been sent out, the Court finds that plaintiff has failed to establish de facto property interest. See, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

Finally, the Court finds that plaintiffs due process claim fails because plaintiff failed to show that the City Council had made a decision to award the contract as of April 20, 1982. Rather, the Court finds that plaintiffs proofs established only that Sterling Heights decided to award the noxious weed cutting contract as of June 1, 1982. Thus, plaintiff could have had no property interest in the project on April 20, 1982 because no final decision had been made to award the contract. It is also important to note that the plaintiff himself knew that he might not be awarded the contract even if he was low bidder. Plaintiff knew that the City Council would make the final determination and that the City Council might well award the contract to another bidder if it found that doing so was in the public interest. Thus, plaintiff had no legitimate claim of entitlement to the noxious weed cutting contract but, rather, merely had a hope and desire that it would be awarded to him.

C. Plaintiffs Equal Protection Claim

3) Plaintiffs second argument is that the defendants violated his constitutional right to Equal Protection, Plaintiff claims that the City Council rejected his bid because he was not a Sterling Heights resident. Nevertheless, plaintiffs Equal Protection claim suffers from the same defect as his Due Process claim in that the plaintiff cannot show that he was deprived of a property interest. More importantly, plaintiff failed to prove his initial premise that his bid was rejected merely because he was not a Sterling Heights resident. Even assuming that the plaintiff established the existence of such a property interest, he failed to show that he was deprived of that interest through the application of an impermissible classification.

Assuming that it is subject to Equal Protection scrutiny at all, the defendants’ conduct would only be required to pass scrutiny under a rational basis standard. Plaintiff’s claim does not implicate any fundamental right or suspect class that would indicate that the proper standard of review is strict scrutiny. See, Dandridge v. Williams, 397 U.S. 471, 485-86, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970); U.S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174-76, 101 S.Ct. 453, 459-60, 66 L.Ed.2d 368 (1980). See also, Gold Cross Ambulance v. City of Kansas City, 538 F.Supp. 956, 970 (W.D.Mo.1982). Evaluated under a rational basis standard, the decision of Sterling Heights to re-bid the noxious weed cutting contract is constitutional. Sterling Heights could reasonably desire to have local businesses bid on public works contracts even though the City does not have a municipal residence requirement for the award of such contracts. In doing so, the City of Sterling Heights did not foreclose plaintiff from being awarded the contract and did not institute a de facto residency requirement. In fact, the contract was ultimately awarded to a nonresident company, and had Sterling Heights simply desired to award the contract to a resident business, it could have done so in the initial bidding process in that W.J. Rogers, Inc. was a local business. Plaintiff was free to re-bid the contract and to have that bid considered equally with all others submitted.

D. Plaintiffs Pendant State Claims

4) Plaintiff’s final argument is that defendants’ actions violated the Equal Protection and Due Process protections afforded him under the Michigan Constitution. Inasmuch as this Court finds that plaintiff’s federal claims fail and because plaintiff’s rights under the Michigan Constitution are commensurate with but not greater than plaintiff’s federal protections, the Court finds that plaintiff’s state claims also fail. Baldwin v. North Shore Estates Ass’n, 384 Mich. 42, 50-51, 179 N.W.2d 398 (1970).

Accordingly, plaintiff’s claims are DISMISSED.

IT IS SO ORDERED.

      . In his complaint, plaintiff also included a Privileges and Immunities Clause claim, a claim under 15 U.S.C. § 1 for an antitrust violation, and a 42 U.S.C. § 1985 conspiracy count. These counts have been dismissed by the Court or dropped by the plaintiff.

      . Plaintiffs answer to this crucial question was simply that
      In the present case, the City of Sterling Heights prepared bid specifications in connection with the public improvement. Prospective bidders, including plaintiff, were required to follow all of the requirements contained in the specifications. Based upon the above-cited authorities, it is clear that the contract specifications constituted the ‘existing rules or understandings’ from which a property interest was created. Plaintiff's interest was the right to have the City of Sterling Heights comply with the ‘existing rules’ governing the bidding process. (Plaintiff’s trial brief p. 34.)
      To the extent that plaintiff argues that the bid solicitation defines the nature and extent of the property interest, plaintiff's principal case disputes that conclusion. Three Rivers Cablevision v. City of Pittsburgh, 502 F.Supp. 1118, 1128 (W.D.Pa.1980). Moreover, a simple reading of the bid specifications disputes this conclusion and plaintiff can point to no applicable state law.

      . Because the Court finds that Sterling Heights had no municipal residency requirement, the Court does not reach plaintiffs arguments concerning its purported unconstitutionality. Similarly, the Court does not reach defendants claim that such residency requirements are per se lawful following the Supreme Court decision in White v. Mass. Council of Constr. Employers, 460 U.S. 204, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983). Cf. United Bldg. & Constr. Trades v. Mayor, — U.S. -, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984).


author: COFFRIN, Chief Judge.

text:
    Jeffrey H. SMITH, v. The GOODYEAR TIRE & RUBBER CO. and Lee W. Young.
    Civ. A. No. 83-280.
    United States District Court, D. Vermont.
    Jan. 25, 1985.

      Michael T. Schein, Burlington, Vt., for plaintiff.
    John T. Sartore, and Stephen Soule, Burlington, Vt., for defendant The Goodyear Tire & Rubber Co.
    Karen McAndrew, Dinse, Erdmann & Clapp, Burlington, Vt., for defendant Lee W. Young.
   COFFRIN, Chief Judge.

Introduction

This is a diversity action brought by an injured passenger, Jeffrey Smith, arising out of an automobile accident that occurred on November 6, 1982, in Berlin, Vermont. Mr. Smith alleges negligence on the part of Defendant driver, Lee Young, and also alleges strict liability against Defendant tire manufacturer, The Goodyear Tire & Rubber Company (Goodyear).

In their answers to Plaintiff’s interrogatories, Defendants have relied in part upon the so-called “seat belt defense,” asserting that their liability is reduced or completely erased by the fact that Plaintiff was not wearing a seat belt although one was available to him, and that wearing it would have reduced, if not eliminated, his injuries.

Plaintiff has moved to strike these responses to his interrogatories and to exclude all other evidence on the issue of seat belt use. Plaintiff asserts that the “seat belt defense” is not available in Vermont either under the doctrine of comparative negligence or the doctrine of mitigation of damages. Moreover, he asserts that not wearing a seat belt cannot constitute negligence and that comparative negligence is not relevant to an action based on strict liability.

We disagree with Plaintiff on each of his points. For the reasons stated below, plaintiffs motion is, therefore, DENIED.

Discussion

I. Plaintiffs Claim of Negligence

A. Legal Precedent

Courts are divided on the issue of whether evidence regarding the nonuse of automobile seat belts should be admissible in comparative negligence cases. See generally Annot., 95 A.L.R.3d 239 (1979) (survey of reported cases in the various states). Vermont’s statutes and state court decisions are silent on this issue.

This court has confronted this issue, however, on at least two prior occasions. As in the instant case, both were diversity actions involving Vermont substantive law and in both, such evidence was allowed. See Beaudoin v. Hurilla, No. 81-199 (D.Vt. July 30, 1982) (charge delivered); Cameron v. Spencer, No. 73-79 (D.Vt. Dec. 17, 1973) (charge delivered). On each occasion, the court charged the jury that the question of whether the plaintiff’s failure to use an available seat belt constituted negligence was a question for them to decide:

There is no statute or law in the State of Vermont which requires a person in a motor vehicle to use seat belts and the question of whether it was negligent for the plaintiff to fail to use the available seat belt or restraining device is a question for you to decide. In answering this question you should measure the conduct of the plaintiff in the circumstances against that conduct which you find a reasonably prudent passenger ... would have exercised for his or her own safety under ... similar circumstances. If you find ... that the plaintiff was negligent in failing to use the restraining device ... you must then go on to determine whether or not the restraining device ... would have prevented the injuries she received.

Beaudoin v. Hurilla, supra (emphasis added); see also Cameron v. Spencer, supra (virtually identical charge). We continue to believe that the issue of whether failure to wear one’s seat belt constitutes negligence is one for the jury.

B. No Duty to Wear One’s Seat Belt

Plaintiff relies heavily in his brief on the fact that regulations adopted pursuant to Vermont statutes, although they do require that pleasure cars be equipped with seat belts in their front seats, 23 Vt.Regs.Ann., Chap. 13, at 72, (Fox 1980), do not require that the seat belts be used. Plaintiff also points out that Vermont courts have never imposed such a duty.

These facts, while true, are not dispositive. The lack of a statutorily or judicially imposed duty means only that the conduct at issue does not establish a prima facie case of negligence or constitute negligence per se. Certain acts in certain circumstances may, of course, be considered negligent, or evidence of negligence, even though they may not yet have been addressed by the legislature or prior case law. That is the way judicially imposed duties are initially created in every instance. It is also the way in which many evidentiary rulings have been created. Thus, the lack of any statutorily or judicially created duty to wear one’s seat belt does not preclude a court from admitting this as evidence on the question of negligence. Support for this proposition may be found not only in this court’s jury instructions in Beaudoin and Cameron, supra, but also in cases from several other jurisdictions. See, e.g., Benner v. Interstate Container Corp., 73 F.R.D. 502 (E.D.Pa.1977); Curry v. Moser, 89 A.D.2d 1, 454 N.Y.S.2d 311 (Sup.Ct., 2d. Dept.1982).

Plaintiff asserts that courts’ reluctance to “find a duty to buckle up” stems from a concern that requiring seat belt use would lead to a flood of litigation in which defendants would argue that, as a matter of law, any plaintiff who fails not only to use his seat'belt but also to install an air bag in his car, to adjust his head rest, or, indeed, “to drive a Mack Truck” would be more vulnerable to injury and, thus, guilty of contributing to his own injury.

We are unpersuaded by such reasoning. First, admitting such evidence would not create a duty but would merely allow the jury to consider the information on the question of negligence. Second, the test of negligence would continue to be whether the person acted reasonably under the circumstances presented. The jury’s discretion and common sense will remain as a check upon parties that might seek to make wild assertions of negligence. We do not presume to decide whether or not Plaintiff’s failure to fasten his seat belt in the instant case was reasonable. We do believe, however, that the arguments on both sides of the issue are such that a reasonable jury could decide either way. As stated by a New York court,

[T]he seat belt affords the automobile occupant an unusual and ordinarily unavailable means by which he or she may minimize his or her damages prior to the accident.... [T]he burden of buckling an available seat belt may, under the facts of the particular case, be found by the jury to be less than the likelihood of injury when multiplied by its accompanying severity.

Spier v. Barker, 35 N.Y.2d 444, 452, 323 N.E.2d 164, 168, 363 N.Y.S.2d 916, 922 (Ct.App.1974) (admitting seat belt evidence on the question of damages). We hold that the jury should be given the task of making this assessment.

Unlike New York, which at the time of Spier was a contributory negligence state, Vermont follows the doctrine of comparative negligence. Thus, even if the jury were to find Plaintiff’s failure to buckle up to be negligent, Plaintiff would not be barred completely from recovery unless his negligence exceeded the total causal negligence of the Defendants. Instead, his recovery would be reduced in proportion to the amount of causal total negligence attributed to him. 12 V.S.A: § 1036. Therefore, we do not feel the temptation felt by courts in those states which follow the harsher rule of contributory negligence to exclude this evidence in order to ensure that plaintiffs obtain some relief. Believing that parties should pay for injuries in proportion to the degree to which they cause them, we hold that evidence concerning the nonuse of a seat belt may be considered by the jury. See Cameron v. Spencer, No. 73-79 (D.Vt. Dec. 17, 1973) (interrogatories answered by jury show that jury, finding plaintiff’s failure to “buckle up” to be ten percent of the total negligence proximately causing the injuries, reduced $5,000.00 award by ten percent, or $500.00).

C. Custom as a Defense

Plaintiff has submitted to the court a survey published by the Vermont Health Department in its 1983 Health Data Book which states that over eighty percent of all Vermont adults fail to use seat belts when they travel by car. From this, Plaintiff reasons that it would be unjust to allow the standard of care followed by less than one fifth of the population to determine that driving without one’s seat belt is “unreasonable.” Even assuming, for the sake of argument, that Plaintiff’s statistics are accurate, they are not controlling. Custom is not an absolute defense in the area of tort law. The T.J. Hooper, 60 F.2d 737, 740 (2d Cir.1932) (Hand, J.) (“Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.”) See also W. Prosser, The Law of Torts § 33, at 167 (4th ed. 1971) (labelling such behavior “customary negligence”).

Although the fact that most people do not “buckle up” may help the Plaintiff in that jurors may empathize with him or share his belief that failure to do so is not unreasonable, it remains quite possible that a group of jurors would view a failure to wear a seat belt as unreasonable. Indeed, such a finding would be possible even if the jurors themselves were not in the habit of wearing seat belts. In sum, while the fact that over eighty percent of adults do not wear seat belts may help Plaintiff’s case, it is not dispositive and cannot preclude the jury from considering this evidence.

D. Judicial Economy

Plaintiff urges that concerns of judicial economy dictate that the court not admit evidence regarding the nonuse of one’s seat belt. Plaintiff reasons that allowing evidence on the issues of whether failure to use one’s seat belt constitutes negligence and whether such a failure caused or enhanced one’s injuries would lead to a lengthy and expensive battle of experts. Even if we shared plaintiff's concern in this regard, it is an insufficient basis upon which to exclude such clearly relevant evidence.

Admittedly, questions regarding benefits of seat belt use are complex. This is not, however, as plaintiff asserts, an “essentially tangential issue.” The nonuse of his seat belt goes not only to the issue of whether Plaintiff acted negligently, but also to the degree to which any negligence found might have contributed to the injuries he sustained. It lies at the very heart of the question of who must pay for the injuries and in what proportion. Oftentimes jurors are required to decide complex issues which require a good deal of expert testimony; the complexity of the matter, in itself, is insufficient to exclude evidence as crucial to a given case as is the information at issue here.

E. Proximate Cause

Plaintiff states in his brief that one’s negligence cannot diminish one’s recovery if the negligence is shown to be a proximate cause of only the injury, as opposed to the accident which led to the injury. Because there is no allegation that his failure to wear a seat belt contributed to the accident, Plaintiff urges that the seat belt defense is inappropriate in this case.

This assertion is both novel and illogical. The Restatement (Second) of Torts, § 463 (1965) defines contributory negligence as

conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff’s harm.

Id. (emphasis added). This definition would also apply to the doctrine of comparative negligence, which is essentially identical to the doctrine of contributory negligence, except for the method by which damages are assessed. See 12 V.S.A. § 1036 (Vermont’s comparative negligence statute). Cf. Frost v. Tisbert, 135 Vt. 345, 347, 376 A.2d 748, 749 (1977) (“What was once contributory negligence has become a measuring of comparative negligence.”).

Plaintiff’s assertion can result only from a misreading of the cases he cites for support. While it is true that Lee v. Wheeler, 130 Vt. 624, 298 A.2d 851 (1972), and Frost, supra, did state that comparative negligence diminishes one’s recovery only if it is “a proximate cause ... of the accident,” Lee, 130 Vt. at 627, 298 A.2d at 852; Frost, 135 Vt. at 347, 376 A.2d at 749-50, these statements were at the most dicta and were, most likely, simply the result of loose phraseology. Defendant in Lee alleged that the plaintiffs negligent conduct, driving a car while holding a bottle between his legs, had contributed to the accident; similarly, the plaintiffs conduct in Frost, manually pulling on a conveyor belt, was also alleged only to have contributed to the accident. Neither decision involved conduct, of the sort in the instant case, which contributed only to the injury.

Plaintiff does cite two cases which are on point, Caiazzo v. Volkswagenwerk A.G., 647 F.2d 241, 251 (2d Cir.1981), and Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164, 363 N.Y.S.2d 916 (1974), yet he misconstrues each of them. Both cases involved the application of New York law to the seat belt defense. While the courts did state, as Plaintiff quotes, that “ ‘the doctrine of contributory negligence is applicable only if plaintiffs [negligence] causes ... the accident,' ” Caiazzo, 647 F.2d at 251 (quoting Spier, 323 N.E.2d at 168, 363 N.Y.S.2d 916) (emphasis supplied), these statements must be read in context of the entire opinions. Both cases allowed evidence concerning the nonuse of a seat belt to be considered by the jury on the question of damages. Caiazzo, 647 F.2d at 252; Spier, 323 N.E.2d at 168-69, 363 N.Y.S.2d 916. We think that admitting such evidence on the issue of damages is, in effect, the same as allowing it to be considered on the question of negligence in a state following the doctrine of comparative negligence. The language quoted by plaintiff stems from a concern by courts in New York — which at the time the distinction between allowing the evidence as to damages but not to liability was created continued to follow the doctrine of contributory negligence — that “holding a nonuser contributorily negligent would be improper since is would impose liability upon the plaintiff for all his injuries....” Spier, 323 N.E.2d at 168, 363 N.Y.S.2d 916 (emphasis added). The courts apparently created a distinction between contributory negligence and damages to avoid the harsh results of the contributory negligence doctrine. As discussed above, however, due to Vermont’s comparative negligence doctrine, we need not resort to such judicial sleight-of-hand. The result will be virtually the same under either the Caiazzo-Spier line of cases as applied in a jurisdiction following the doctrine of contributory negligence or our own holding as applied in a comparative negligence jurisdiction: Plaintiff’s conduct, although it did not contribute to the cause of the accident but only to his injury, may be considered by the jury in assessing damages.

F. Mitigation of Damages

Finally, Plaintiff asserts that the nonuse of a seat belt is not subject to a mitigation of damages or an available consequences set-off because those doctrines do not apply to conduct occurring before the injury. To so hold, however, would mean that any failure to take precautionary measures— e.g., riding a motorcycle without a helmet, failing to use safety bindings when skiing — would be irrelevant on the question of damages. Such a proposition seems unsound. Instead, we share the view espoused by Dean Prosser:

A more difficult problem is presented when the plaintiffs prior conduct is found to have played no part in bringing about an impact or accident, but to have aggravated the ensuing damages. In such a case, ... [some courts] have apportioned the damages, holding that the plaintiffs recovery will be reduced to the extent that they have been aggravated by his own antecedent negligence. This would seem to be the better view, unless we are to place an entirely artificial emphasis upon the moment of impact and the pure mechanics of causation.

W. Prosser, The Law of Torts § 65, at 423-24 (4th ed. 1971). Several other courts have adopted this view. See, e.g., Benner v. Interstate Container Corp., 73 F.R.D. 502 (E.D.Pa.1977); Curry v. Moser, 89 A.D.2d 1, 454 N.Y.S.2d 311 (N.Y.Sup.Ct., 2d Dept.1982); Mount v. McClellan, 91 Ill.App.2d 1, 234 N.E.2d 329 (1968).

II. Strict Liability

While it appears that Defendant Goodyear would be liable under the strict liability doctrine should the court find the tires Goodyear sold to have been defective, Plaintiffs negligence could still be considered in assessing damages under this doctrine as well as that of negligence.

Strict products liability, as embodied in Restatement (Second) of Torts § 402A (1965), has been adopted as the law of Vermont. Zaleskie v. Joyce, 133 Vt. 150, 154-55, 333 A.2d 110, 113 (1975). Section 402A states, in pertinent part, that:

One who sells any product in a defective condition unreasonably dangerous to the user or consumer ... is subject to liability for physical harm thereby caused to the ultimate user or consumer ... if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated ... applies although
(a) the seller has exercised all possible care____

Id. Thus, if Plaintiff can prove that Goodyear sold the tire in a defective condition, unreasonably dangerous to the user or consumer, he need not also prove that Goodyear was negligent in order to recover.

Comment (c) to § 402A explains that the justification for this special doctrine of liability is “that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility....” Comment (n) goes on to say that contributory negligence “is not a defense to strict liability when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence.” Instead, the Comment states, Plaintiff will be barred from recovery only if he “discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product....”

Even if Goodyear cannot prove the latter, however, we decline to follow the rigid requirements of Comment (n), and hold that Goodyear should be able to introduce evidence of Plaintiffs failure to use his seat belt as a defense to strict liability. As stated above, because Vermont follows the doctrine of comparative negligence, it need not be swayed by the “all or nothing” considerations present in the Comment to the Restatement or in contributory negligence jurisdictions. The purpose behind the strict liability doctrine is to hold certain sellers to a higher standard of care due to their assumption of a special responsibility. Our holding does not thwart that purpose, since Plaintiff still would not have to prove negligence on the part of Goodyear. Although we would be reluctant to completely excuse defendants simply because some of a plaintiff’s injuries might have resulted from his own actions, it also does not seem fair to allow a negligent plaintiff, who may have contributed to as much as fifty percent of his injuries, to pay for none of them and to recover as much as a plaintiff who had taken all precautions reasonable under the circumstances.

There is nothing in the Vermont decisions to prevent us from applying comparative fault principles to this area. The Vermont courts have not yet addressed squarely the question of whether comparative fault principles may be considered under the doctrine of strict liability. In Page v. Smith-Gates Corp., 143 Vt. 280, 283 n.*, 465 A.2d 1102, 1104 n.* (1983), the court, after noting that it had never taken a position on this issue, stated that it was unclear whether or not the lower court had applied comparative fault principles to the plaintiff’s strict liability claim. Stating that “there [was] nothing to prevent [the] trial court’s breaking new ground [in this regard],” the Vermont Supreme Court remanded the case, requesting clarification and supporting authority for the decision. Id. The court thus appears open to such an application.

There is a split of authority among other states on this issue. See generally 26 ATLA L.Rep. 153 (1983) (reviewing the case law in this area). For the reasons stated above, we choose to follow the reasoning of many other comparative fault jurisdictions, see, e.g., Trust Corp. of Montana v. Aircraft Corp., 506 F.Supp. 1093 (D.Mont.1981), aff'd, 701 F.2d 85 (9th Cir.1983); Jones v. M.T.D. Products, Inc., 507 F.Supp. 8 (M.D.Pa.1980), aff'd, 649 F.2d 859 (3d Cir.1981); Stueve v. American Honda Motors Co., Inc., 457 F.Supp. 740 (D.Kan.1978); Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843 (1978); Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 406 A.2d 140 (1979), and hold that juries may consider evidence of plaintiffs’ negligence in assessing damages as to strict liability claims as well as to negligence claims.

Our ruling is, of course, limited to the admissibility of evidence regarding the non-use of Plaintiff’s seat belt. It is not dispositive on the question of negligence, nor on that of damages. Defendants must still prove not only that the nonuse of Plaintiff’s seat belt constituted negligence under the circumstances presented, but also the extent to which the use of his seat belt would have prevented or reduced the injuries Plaintiff received.

For the reasons stated, Plaintiff’s motion is DENIED. The parties are hereby GRANTED an additional sixty days for discovery with regard to developing evidence concerning the seat belt defense.

      . In Plaintiff's complaint against Defendant Goodyear, he alleges both strict liability and breach of warranty. In his memorandum supporting this motion, however, he treats the two as one and discusses the seat belt defense only as it relates to the strict liability, claim, not breach of warranty. Defendant Goodyear’s memorandum also fails to discuss the breach of warranty issue separately from that of strict liability.
      In light of the parties’ failure to present a separate discussion regarding the breach of warranty issue, and in light of the fact that there is considerable overlap between the two theories— in that both obviate Plaintiff’s need to prove “fault" on the part of Defendant — we treat the two issues as one with regard to the seat belt defense and hold that evidence regarding the nonuse of Plaintiffs seat belt may be presented on Plaintiff’s breach of warranty claim as well as on his strict liability and negligence claims.

      . Defendant Goodyear also asserts that Plaintiff assumed the risk of injury that a seat belt would have prevented. The type of assumption of risk asserted is not “primary” assumption of risk, where a defendant asserts that it has no duty to the plaintiff, Sunday v. Stratton Corp., 136 Vt. 293, 301, 390 A.2d 398, 402-03 (1978), but secondary. Elements of the latter are that one knows of the existence of the risk, appreciates the extent of the danger, and consents to assume it. Id. at 303, 390 A.2d at 404. The Sunday court stated, however, that "the doctrine [of secondary] assumption of risk is logically only a phase of contributory negligence and that use of assumption of risk language is irrelevant and confusing in a jury instruction on comparative negligence.” Id. at 304, 390 A.2d at 404 (emphasis added) (citing several authorities including Wilson v. Gordon, 354 A.2d 398 (Me.1976), Bolduc v. Crain, 104 N.H. 163, 181 A.2d 641 (1962), and McGrath v. American Cyanamid Co., 41 N.J. 272, 196 A.2d 238 (1963)).
      The court appears — both from this quote and from other language throughout the opinion — to have used the terms "comparative” and "contributory” negligence interchangeably. This failure to distinguish the two terms, together with the fact that Vermont no longer uses the doctrine of contributory negligence, suggests that the court held assumption of risk "only a phase of,” or contained within, the doctrine of comparative negligence. We do not, therefore, discuss assumption of risk as a defense separate from that of comparative negligence.

      . As noted below, however, simply admitting evidence of certain conduct on the question of negligence does not establish that conduct as negligence per se. Thus, Defendants in this case must still prove that the nonuse of plaintiff’s seat belt was negligent.

      . Since the Spier decision, in 1974, the New York legislature has opted to reject the doctrine of contributory negligence and to follow that of comparative negligence. CPLR article 14-A (CPLR 1411 et seq.). The new doctrine applies to all causes of action which accrued after September 1, 1975. Curry v. Moser, 89 A.D.2d 1, 8, 454 N.Y.S.2d 311, 316 (N.Y.Sup.Ct., 2d Dept. 1982).
      The Curry decision directly supports our reasoning in this opinion. Curry specifically rejects the general rule announced in Spier, and holds that, when applying the doctrine of comparative negligence, the seat belt defense should be available not only on the question of damages, but also on the question of liability. Id. at 2, 454 N.Y.S.2d at 312. In explaining why the Spier court may have ruled as it did, Curry noted that Spier had been decided under the doctrine of contributory negligence which would have "absolutely barred recovery by a contributorily negligent plaintiff ..." id. at 8, 454 N.Y.S.2d at 316.
      In sum, Curry shows that, since New York has opted to follow the comparative negligence doctrine, it has rejected the distinction between liability and damages on the issue of the admissibility of evidence regarding seat belt use, and allows the evidence as to both issues.

      . Moreover, reading in context the language plaintiff quoted from Lee further supports the notion that Lee did not hold the cause of one’s injuries, as opposed to the accident, to be irrelevant. In the next sentence, the Lee court stated that "[w]here there is more than one cause concurring to produce the injury, and one such cause is charged against the plaintiff, the burden of proof on that issue is on the defendant.” Lee, 130 Vt. at 626, 298 A.2d at 852 (emphasis added).

      . See supra note 4. It should be noted that in Caiazzo, supra, 647 F.2d 241, the Second Circuit applied Spier's distinction between liability and damages even after New York had elected to follow the comparative negligence doctrine. This need not affect our decision, however. First, Caiazzo's holding, like that of Spier, did allow the evidence on the question of damages. Id. at 252. More importantly, however, Curry v. Moser, supra, note 3, which was decided by the New York courts after Caiazzo, specifically states that New York has now rejected any distinction between liability and damages on the issue of admissibility of seat belt evidence, and allows it as to both. Finally, even if New York had not followed the course which we are adopting, its decisions are, of course, not binding in this case.

      . The results would be to some extent different under the two doctrines. Under Spier, since a jury would not be able to consider the nonuse of one’s seat belt on the issue of liability, it would never consider the evidence if it found that a defendant acted reasonably. As noted above, however, see supra note 4, since New York has adopted the comparative negligence doctrine it has rejected Spier's distinction and allows the evidence as to both issues. Even if New York had not, however, we would admit this evidence as we believe that a jury might find that nonuse constitutes negligence and should be able to adjust an award accordingly.

      . Prosser does recognize in this section that the damages issue is often a matter of mere speculation and that courts may properly refuse to divide the damages upon such a basis. Id. We are not convinced, however, that defendants in this case would have to resort to mere speculation. Moreover, we agree with Prosser that restricting the court’s view to only that behavior of plaintiff which occurs after the moment of the accident creates an artificial and inappropriate emphasis on that moment. We therefore decline to disallow evidence of plaintiffs possibly negligent conduct simply because it occurred prior to the moment of impact.