Sacramento Woman Suffers Permanent Brain Injury, Part 5 of 11

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.)

Mr. Stanley’s testimony concerning how the bus accident occurred was therefore sufficient to support the inference that plaintiff may have failed to exercise due care. (See Hasson v. Ford Motor Co., supra, 19 Cal.3d at p. 548 [ the fact that evidence is circumstantial does not mean that it cannot be substantial. . . . the jury is entitled to accept persuasive circumstantial evidence even where contradicted by direct testimony ]; see also Scott v. Alpha Beta Co. (1980) 104 Cal.App.3d 305, 310 [the question of plaintiff’s comparative fault is for the jury if there is any evidence from which a jury might reasonably conclude that plaintiff failed to exercise due care for her own safety ]; Jarvis v. Southern Pac. Transportation Co. (1983) 142 Cal.App.3d 246, 254-255 [in personal injury action, the issue of contributory negligence was properly submitted to the jury where there was evidence from which the jury could reasonably infer that plaintiff should have heard the sounds or vibrations of the oncoming railroad boxcar].)

This testimony, even if disputed, was sufficient to allow the issue of plaintiff’s comparative fault to go to the jury. Accordingly, a new trial should be granted.


It is well settled that an attorney commits misconduct by asking the jurors how much money it would take to endure the plaintiff’s pain and suffering. In Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, the Court of Appeal explained:

The only person whose pain and suffering is relevant in calculating a general damage award is the plaintiff. How others would feel if placed in the plaintiff’s position is irrelevant. It is improper, for example, for an attorney to ask jurors how much they would charge to undergo equivalent pain and suffering. . . . This so-called golden rule argument is impermissible.

(60 Cal.App.4th at pp. 764-765 (internal citations omitted); see also Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 797 & fn. 4 (Cassim); Beagle v. Vasold (1966) 65 Cal.2d 166, 182, fn. 11 [ we do not . . . approve of the so-called golden rule argument, by which counsel asks the jurors to place themselves in the plaintiff’s shoes and to award such damages as they would charge to undergo equivalent pain and suffering ]; Zibbell v. Southern Pacific Co. (1911) 160 Cal. 237, 255 [ “No rational being would change places with the injured man for an amount of gold that would fill the room of the court, yet no lawyer would contend such is the legal measure of damages’ “]; Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 319 [appeal to jurors to place themselves in plaintiff’s position is an improper tactic]; Horn v. Atchison, T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 609 [it is improper to appeal to the jurors to fix damages as if they or a loved one were the injured party ].) (See Part 6 of 11.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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