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II.

THE DISTRICT COURT CORRECTLY GRANTED DEFENDANTS’ SUMMARY JUDGMENT MOTION

Once the testimony of Lafferty and Hodson is excluded, there is simply no genuine issue of material fact raised by this record concerning whether Clark’s lap belt became unbuckled during the accident. As explained above (at page 3, supra), Clark himself testified that the lap belt was buckled before the accident. Jesse Froggett, the only eyewitness who recalled seeing Clark’s lap belt following the accident, testified unequivocally that the lap belt remained in its proper position across Clark’s waist.18/ Froggett’s testimony is all the more compelling because it was against his own interest (since it ruled out as a possible cause of Clark’s injuries any defect in the lap belt, and thus left Froggett himself more vulnerable to a negligence claim). Moreover, defendants’ expert, Harry Smith, offered uncontradicted testimony that Clark’s position and placement in the driver’s seat after the accident was proof that the lap belt had (as Froggett testified) remained in place throughout the accident. Smith explained, again without contradiction, that if Clark’s lap belt had not been in place, he would have suffered the same outcome — ejection from the vehicle — as did his passengers who

18/ Clark suggests (AOB 6, 11) that Froggett’s testimony was somehow qualified or ambiguous because he used the word “appeared” in the following exchange:

Q.

A.

Now, a seat belt has two portions, it has a shoulder portion that goes across the chest and a lap portion, a lap belt. Were both of these belts in place? They appeared to be.

NR 47:Tab5at19(emphasisadded). Far from signifying any doubt, the word “appeared” here is merely descriptive; it conveys Froggett’s recollection that, rom all appearances, the lap belt and shoulder belt were in their proper locations. In any event, the testimony of Froggett both before andafter the snippet seized upon by Clark makes perfectly clear that that testimony is unambiguous. See note 2, supra; NR 47:Tab 5 at 19-20 (“Q. When you looked in the car with the flashlight, could you see if he was wearing a seat belt? A. Yes. * * * Q. And was he? A. Yes. Q. And you were able to observe that with a flashlight? A. Yes. * * * Q. But from what you could see, it looked like it was in the proper location across his lap? A. It was across his lap, yes.”) (emphasis added).

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