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Mark v. Pacific Gas
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1. Defenses to Negligence Contributory & comparative negligence and assumption of risk: The evaluation of plaintiffs conduct Note at the outset that Mark, Li, and Knight are all cases decided by the California Supreme Court. Is the focus of the authors approach on the evolution of the law in a particular jurisdiction, or on the California rules as the so-called majority rule in negligence cases?
Note the concept of so-called affirmative defenses as based upon distinct rules or concepts of law, and distinct facts. Affirmative defenses allow a defendant in a private civil action (tort-accident case) to avoid liability, even where the plaintiff has established a prima facie case.
Note that these defenses place the plaintiffs own conduct in issue, as a matter of law and fact.
2. Mark v. Pacific Gas & Electric Company: The facts The accident description:
Plaintiff was a tenant in a building adjacent to a City streetlight maintained by Defendant Pacific Gas & Electric Company. He was electrocuted while attempting to unscrew or remove the light bulb from the streetlamp, which was located outside his apartment bedroom window;
PG&L was aware of a complaint from one or more of the landlords tenants (including plaintiff) about glare from the light;
PG&L took steps to reduce the glare, but was aware that these steps had been ineffective in reducing glare and that plaintiff and his roommates were still unsatisfied with the condition of the light;
PG&L was also aware that, as a result of an auto accident, the light pole had been bent, and that, in its bent condition, the pole was 55 inches from plaintiffs window and 10 inches from an adjacent fire escape;
PG&L was aware that someone had been tampering with the light fixture, i.e., that the light bulb had been unscrewed on one or more occasions;
PG&L (through its agent) was aware that the fixture resembled an ordinary light bulb, and that there was no open or obvious indication of high voltage.
3. The courts definition of contributory negligence Note the Courts definition of 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 plaintiffs harm (at Footnote 8 of the Courts opinion, citing the Restatement);
Note the two categories of contributory negligence (Two ways of evaluating the plaintiffs own conduct, as a cause in fact of his injury):
Voluntary exposure to the danger arising from defendants negligence; or
Other conduct falling below the standard of due care, i.e., for an adult, the conduct of a reasonable man under like circumstances.
Contributory negligence seeks a determination of how plaintiffs contributory negligence affects his right to civil reparation for the defendants negligence (whether it bars or simply diminishes his recovery of civil reparation from the defendant).
Consistent with the general rule, where the evidence on the issue of contributory negligence is conflicting, and would support a finding either way, the question whether plaintiffs conduct fell below the conduct expected of a reasonable person under similar circumstances must be decided by the trier of the facts. The court sites exceptional examples of appropriate judicial findings that plaintiffs conduct is negligent:
Andrews v. Valley Ice Co. (A construction worker who knowingly touched a high voltage power line must have known the danger of highly charged wires;
Mosley v. Arden Farms, Inc. (Decedent was warned not to touch power lines and is charged with common knowledge regarding the qualities of such forceseven if he is in fact ignorant of the danger.
4. The doctrine as applied in Mark The issue of contributory negligence: As to so-called category one contributory negligence, there was no evidence that plaintiff knew or suspected that the light carried a high voltage current, or that he otherwise appreciated the risk of injury or death (The facts indicate that he had seen his roommates remove the bulb from the light on several occasions, without incident, and there was nothing in the appearance of the light pole or bulb to indicate any danger of electrocution); the issue on appeal is therefore whether the trial court was correct in holding, as a matter of law, that plaintiff should have appreciated the risk of injury or death when he attempted to unscrew the bulb.
Held: The trial record failed to support its conclusion that it is common knowledge that ordinary street lights contain high voltage current, or that a lay person knowingly risks substantial injury by attempting to unscrew the light bulb in an ordinary street light having the appearance and characteristics of the one which caused plaintiffs death. At trial, PG&L will have the opportunity to prove that plaintiff knew or should have known of the danger of electrocution, but the question of his negligence may not be disposed of by dismissal or summary judgment.
Violation of statute: The Court recognized plaintiffs admission that he violated a City ordinance making it unlawful to extinguish any public light and the codification of the general rule that violation of a public statute is negligence per se, where the plaintiff is within the protected class contemplated by the statute, and the risk which caused plaintiffs injury or death is the kind of risk the statute was enacted to prevent. However, the statutory language relied upon by PG&L, when read in para materiae with the remaining language of Section 585, suggests that the statute was not intended to deal with the risk of death by electrocutionThis finding eliminates the need to evaluate plaintiffs conduct in the context of the statute.
5. The birth of comparative negligence and the modification of the analytical approach to negligence and causation In Li v. Yellow Cab, the California Supreme Court (following Florida in Hoffman v. Jones, 280 So.2d 431 (1973), rejects contributory negligence as a bar to recovery of civil reparation from a negligent defendant, and recognizes the doctrine of comparative negligence as a partial defense to liability in negligence cases, following the statutory abrogation of contributory negligence in 25 states by 1973 (now 46 states).
The judicial and academic criticism of the contributory negligence doctrine:
It is an all or nothing approach;
It fails to distribute legal responsibility for injury in proportion to fault;
Reasons for and against the adoption of comparative negligence as the analytical approach to the evaluation of plaintiffs conduct in determining defendants liability in negligence cases:
The problems inherent in administering such a concept in cases involving multiple parties;
The difficulty inherent in fact-finding: The risk that juries would administer the rule by resorting to quotient verdicts;
The significance of related common law concepts, including the so-called last clear chance doctrine and the doctrine of assumption of risk.
6. The California Supreme Courts rationale for adopting comparative negligence The Li Courts resolution of the arguments against the adoption of comparative negligence as an analytical approach to negligence liability:
Jury guidelines and special verdict forms can assist juries in focusing on the determination of the extent to which defendants, and plaintiffs conduct have contributed to the accident, and the allocation of responsibility for plaintiffs injuries as expressed in damages;
When the concept of comparative negligence and its relation to a fault premise is understood, the need for the last clear chance doctrine disappears;
Similarly, where plaintiff has unreasonably undertaken a specific, known risk created by defendants negligence, his conduct known previously as assumption of risk is, in reality a form of negligence (conduct by the plaintiff falling below the standard of reasonable care). In such cases, the prior doctrine of assumption of risk may be merged into the general scheme of assessment of liability in comparison to fault.
7. Modification of the doctrine of comparative negligence and assumption of risk: The defendants obligation to a negligent plaintiff While Florida and California initially recognize a pure comparative negligence principle, allowing a plaintiff to recover from a negligent defendant that amount of his damages attributable to the defendants negligence, a majority of states now modify the doctrine in multiple defendant cases, and to reflect the burden of proof on the element of cause-in-fact:
States, by common law or statute, may therefore reject recovery where the plaintiffs own negligence is the significant cause of his injury (where his negligence is equal to or greater than the defendants negligence when identified as a contributing factor to plaintiffs injury); and
States, by common law or statute may limit plaintiffs recovery in cases involving multiple defendants, by modifying the principle of joint and several liability.
8. The evolution of the doctrine of assumption of risk as a distinct defense to negligence liability: Murphy v. Steeplechase Amusement Company The plaintiff, a visitor to SACs amusement park, fell and sustained a fractured kneecap when he stepped onto the moving belt of an attraction known as The Flopper. He knew the purpose of the attraction was not to serve as a moving sidewalk, escalator, etc., but was to provide a sporting experience which challenged participants to keep their balance without falling. This knowledge notwithstanding, plaintiff alleged negligence, claiming that the belt was out of order, in that it was operated at an unreasonable speed, and was not designed with a railing, guard or other device to prevent a fall.
In its most efficient sense, the Murphy Courts opinion explains that where the particular risk (hazard) that causes plaintiffs injury is a fall and that is the very risk that was invited and foreseen by participants, the law recognizes no liability based upon fault.
While Murphy is an amusement park case, its principle is broader than sport: Murphy deals with what may be described as primary risk, the risk of injury inherent in the activity in question and which cannot be eliminated by reasonable care (cf. the unsteady motion of a passenger train, which cannot be eliminated even by the most careful operation; the increased risk of falling while ice skating at an ice skating rink, as contrasted with walking on a sidewalk or natural pathway). If the risk and injury were attributable to defendants failure to maintain the padded area of The Flopper, causing plaintiff to fall onto a wood undersurface, the risk in question would not be the risk that was invited, and plaintiff would not be subject to the defense but plaintiff did not allege such a breach of the defendants duty to maintain the padded area, and witnesses contradicted any such suggestion at trial.
The doctrine is thus stated that, where plaintiff is subjectively aware of, (has actual knowledge of, in fact) and fully appreciates, the particular risk that caused his injury, and has voluntarily chosen to encounter that risk, he is not entitled to recover for defendants alleged negligence (breach of duty.
9. Preconditions and application of the doctrine following Li v. Yellow Cab Plaintiffs decision to encounter the known risk must, in fact, be voluntary:
See McDermott v. Platte County (Where plaintiff slips on defendants icy parking lot while attempting to enter an exhibition hall, she may avoid the doctrine where the defendant has locked a more convenient entry door);
and see Jimenez v. Morgan Drive Away, Inc. (Where a mechanical emergency forces plaintiff to park his truck on highway emergency shoulder, he is not subject to assertion of the doctrine of assumption of the risk by a truck driver whose truck collides with his car).
Plaintiff does not assume the risk of defendants negligence where he has no reason to anticipate defendants negligent act or omission (Cf. inherent risk of activity vs. risk created by defendants breach of duty)
Plaintiff may be denied recovery where a specific risk has been the subject of an express contract:
Such contracts will, however, be strictly construed;
Public policy (i.e., implication of public interest, unfair advantage or coercion) may defeat the contractual agreement (e.g., unqualified releases of liability, releases required of a party with unequal bargaining power, etc.).
10. Knight v. Jewett: Limitation of the doctrine of assumption of risk and the preservation of comparative negligence doctrine Following Li, the California court recognizes a partial merger of comparative negligence and assumption of risk:
Primary assumption of risk remains a complete defense to liability: In those instances where defendant has no duty to protect plaintiff from a particular risk, that conclusion may be expressed as plaintiffs assumption of the inherent risk of injury (the moving train, the batted ball in the baseball park, etc.);
Secondary assumption of risk plaintiffs encountering of a risk created by defendants breach of a duty of reasonable care does not relieve the defendant of liability for his negligence, but is evaluated as conduct which should diminish plaintiffs recovery under principles of comparative fault or comparative causation.
Such rules are consistent with the definition of contributory negligence in California (see Mark), and with Lis basic holding that [when] both parties are partially at fault for an injury, a rule which places all of the loss on one of the parties is inherently inequitable. Lis comparative fault principles reject the theory that a plaintiff essentially consents to defendants breach of duty, and instead embrace the concept of equitable apportionment or allocation of loss according to fault.
