Daily Blast January 23, 2015

The Court of Appeal, Fifth Appellate District (Fresno) issued an opinion in Harb v. City of Bakersfield (Jan. 23, 2015, F066839) ___ Cal.App.4th ___, analyzing an issue of first impression regarding whether “a plaintiff’s preaccident negligence is a type of comparative fault under California law.” (Slip opn., p. 3.) The Court of Appeal determined that “where a plaintiff is seeking damages only for the aggravation or enhancement of an injury or condition, California will follow the majority view that a plaintiff’s preaccident conduct cannot constitute comparative negligence when that conduct merely triggers the occasion for aid or medical attention.” (Ibid.)

The case arose out of injuries sustained after plaintiff, a doctor who failed to take his blood pressure medication, suffered a stroke while driving. (Slip opn., p. 2.) The responding police officer believed that plaintiff was intoxicated based on plaintiff’s vomiting, slurred speech and disorientation. The first ambulance that arrived on the scene left without plaintiff. (Ibid.) The second ambulance took plaintiff to the hospital, but the brain damage he suffered rendered him unable to care for himself. (Id. at pp. 2-8.) Plaintiff and his wife sued the City of Bakersfield, the responding officer, the ambulance company and the paramedic who drove the first ambulance claiming that the delay in receiving medical treatment made the consequences of his stroke much worse. (Id. at pp. 2, 8.) The jury returned a defense verdict. Plaintiffs appealed contending the court erred in giving a jury instruction on plaintiff’s comparative fault and police immunity. (Id. at pp. 2, 10-11.)

The Court of Appeal concluded that “defendants who render aid or medical attention cannot reduce their liability for the harm resulting from their tortious acts and omissions by attributing fault to the plaintiff for causing the injury or condition in the first place.” (Slip Opn., p. 3.) Thus, “the issue of a plaintiff’s comparative fault should not be presented to the jury when the plaintiff’s allegedly negligent conduct occurred before first responders arrived at the scene of the accident.” (Id. at p. 33.) Accordingly, here, “the jury should not have been instructed on comparative negligence and defendants should not have been allowed to argue that [plaintiff’s] neglect of his high blood pressure was comparative negligence that rendered him responsible for all the harm he suffered.” (Id. at p. 3.) Further, the jury instruction error was prejudicial because it allowed evidence of “the issue of Harb’s comparative negligence in failing to take his blood pressure medication,” which “affected the findings that the defendants were not at fault by improperly focusing the jury’s attention on the patient’s conduct.” (Id. at p. 37.) 

Finally, the Court of Appeal determined that the police immunity instruction should not have been given because it used confusing language and was unnecessary in a negligence case. The special instruction stated: “A police officer is not liable for his act or omission, exercising due care, in the execution or enforcement of any law.” (Slip opn., p. 13.) Although “the immunity instruction was a correct statement of law in the abstract, it was unnecessary because plaintiffs were already required to prove the police officer acted negligently.” (Id. at p. 2.) Thus, based on the record, “there was a reasonable likelihood the police immunity instruction misled the jurors because it is unlikely the jurors would have understood there was no immunity for a police officer who acted negligently.” (Ibid.)

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