The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)
The court erred in removing the issue of comparative negligence from the jury as there was sufficient evidence to support a finding of fault on the part of the plaintiff.
It is well settled that the issue of comparative negligence is a question of fact for the jury where there is sufficient evidence to support an affirmative finding. (See Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 548 [ Where contributory negligence is asserted as a defense, and where there is “some evidence of a substantial character” to support a finding that such negligence occurred, it is prejudicial error to refuse an instruction on this issue, since defendant is thereby denied a basic theory of his defense ] overruled on other grounds in Soule v. Gen. Motor Corp. (1994) 8 Cal.4th 548, 572.) Ordinarily issues of negligence are jury questions and the court may rarely decide comparative negligence questions without submitting them to the jury. (Maxwell v. Colbum (1980) 105 Cal.App.3d 180, 186.)
Here, defendant stipulated it was negligent and that its negligence was a substantial factor in causing plaintiff’s injuries. Defendant, however, did not concede its affirmative defense of comparative negligence and requested that the jury be instructed on the issue of plaintiff’s comparative fault. Plaintiff’s counsel objected on the basis there was no evidence that could support a finding of fault on the part of the plaintiff. (Ibid.)
Defense counsel argued the testimony of its accident reconstruction expert concerning how the accident occurred (i.e., the plaintiff walked into the side of the bus and nothing obstructed plaintiff’s view of the bus prior to the impact) was sufficient for the jury to decide whether plaintiff was partially at fault. The court disagreed, removing the issue of plaintiff’s comparative fault from the jury.
The court’s refusal to instruct the jury on comparative fault warrants a new trial as there was sufficient evidence from which the jury may have reasonably concluded that plaintiff failed to exercise due care.
Plaintiff introduced evidence that she was hit by a bus making an illegal left hand turn while she was walking in the crosswalk. The evidence showed that the bus involved in this accident was approximately forty feet long and red. Photographs introduced at trial showed that the bus came to rest after the accident with approximately one third of its length past the crosswalk.
(See Part 4 of 11.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.