Law School Case Briefs: December 2016

MCCOY V. AMERICAN SUZUKI MOTOR CORP., 961 P.2d 952 (1998) CASE BRIEF

McCOY V. AMERICAN SUZUKI MOTOR CORP.

961 P.2d 952 (1998)

NATURE OF THE CASE: McCoy (P) brought a product liability suit against Suzuki (D). The Superior Court, reversed the grant of summary judgment to D. D appealed.

FACTS: McCoy (P) stopped to assist with a Suzuki Samurai driving in front of him that had swerved off the road and rolled. P stopped and rendered assistance and shortly thereafter a State Patrol Officer arrived. P was asked to place flares and by his own judgment positioned himself 1/4 mile from the accident scene with a lit flare in each hand manually directing traffic to the inside lane. Two hours after the accident, the driver was removed and the scene was cleared. P returned to his car with a lit flare in his roadside hand. When P was within three to four car lengths of the State trooper, the trooper pulled out without comment. Moments later, P was struck from behind while still walking on the roadway's shoulder by a hit and run driver. P filed a complaint against the driver of the Suzuki for negligence, the passenger of that car for grabbing the steering wheel, the State for the negligence of the trooper, and D and its parent corporation for the defective Samurai which allegedly caused the wreck in the first place. The only claim being presently considered is that against D. D moved for summary judgment asserting that the rescue doctrine does not apply to product liability actions and even if it did, P cannot prove that D proximately caused the injuries. The lower court dismissed and the appeals court reversed. The court of appeals found that P demonstrated sufficient facts of rescuer status to put the issue of whether he met the four requirements to the jury.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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LUNDY V. ADAMAR OF NEW JERSEY, INC. 34 F.3d 1173 (1994) CASE BRIEF

LUNDY V. ADAMAR OF NEW JERSEY, INC.

34 F.3d 1173 (1994)

NATURE OF THE CASE: Lundy (P) appealed a summary judgment for Adamar (D) in P's action for damages.

FACTS: P, a 66-year-old man with a history of coronary artery disease, was at D's casino. P suffered cardiac arrest and fell to the ground unconscious. Three other patrons began to assist him. Essie Greenberg, a critical care nurse. Dr. Martin Greenberg. a pulmonary specialist and an unidentified surgeon. The blackjack dealer at the table pushed an emergency 'call' button at his table which alerted D that a problem existed. A security guard requested medical assistance. Nurse Slusher arrived on the scene within a minute or two of being summoned. She instructed the security guards to call for an ambulance. An ambulance was summoned at 11:00 p.m., 3 minutes after the electronic alarm was initiated. Nurse Slusher had not brought an intubation kit to the scene. She did not bring this equipment with her because she was not qualified to use it. Dr. Greenberg had requested the intubation kit to provide a more efficient means of delivering oxygen but was satisfied that the ambu-bag which Slusher has brought was doing the job. An 'EMT' unit arrived at 1:03 p.m. They performed an intubation but it was a very difficult, and there were at least a half dozen failed attempts before the procedure was successfully completed. After intubation, P regained a pulse and his color improved. The hospital was less than a minute or two away. P sued D for permanent injuries suffered. P alleged in part that D owed a duty to have a physician on site to perform basic first aid. The court granted D a summary judgment. The court held that New Jersey's Good Samaritan Statute shielded D and its employees from liability for any acts or omissions they took while rendering care in good faith to P. P appealed.

NEWTON V. MAGILL 872 P.2d 1213 (1994) CASE BRIEF

NEWTON V. MAGILL

872 P.2d 1213 (1994)

NATURE OF THE CASE: Newton (P) appealed a summary judgment for Magill (D) in P's action for personal injury.

FACTS: P leased a house in a trailer park owned by D. The front door of the house opened onto a wooden walkway. The walkway was partly covered by an overhanging roof, had no hand railing, and no 'anti-slip' material on its surface. P slipped and fell on the walkway, breaking her ankle. P sued D claiming that the walkway had been slippery and hazardous for a considerable period of time prior to the accident, that D had a duty to remedy its condition, and that they negligently failed to do so. D moved for summary judgment and that Ps were responsible for 'any slippery conditions resulting from rain' under both the common law and the Uniform Residential Landlord and Tenant Act (URLTA) as adopted in Alaska. D also argued that they could not be liable under a latent defect theory because the walkway was not defective; further, even assuming that it had a tendency to become dangerously slippery when wet, this hazard should have been obvious to the tenants. The superior court granted the motion ruling that P had the duty to keep the entryway in a clean and safe condition and D could not have breached P's duty. P appealed.

FOSTER V. COSTCO WHOLESALE CORPORATION 291 P.3d 150 (2012) CASE BRIEF

FOSTER V. COSTCO WHOLESALE CORPORATION

291 P.3d 150 (2012)

NATURE OF THE CASE: Foster (P) appealed a summary judgment for Costco (D) in P's action for personal injuries.

FACTS: P visited a D store and his left toe caught the corner of a wooden pallet, which was covered by a slightly turned box. P fell and sustained injuries. P sued D alleging that D was negligent in creating a dangerous condition and in failing to warn him of the existence of the dangerous condition. P claimed that D owed him a duty to maintain an establishment free of dangerous conditions, including exposed pallets throughout the aisles. D filed a motion for summary judgment, contending that the presence of the pallets was open and obvious and that it was not liable for injuries arising from an open and obvious hazard. P claimed that even though he could see part of the pallet under the boxes that it was underneath he was unable to see the corner. P argued that even if the condition was obvious there was the issue of creating the peril. D got the summary judgment and P appealed.

NELSON V. FREELAND, 507 S.E.2d 882 (1998) CASE BRIEF

NELSON V. FREELAND

507 S.E.2d 882 (1998)

NATURE OF THE CASE: Nelson (P) sued Freeland (D), landowner and his wife, after tripping and falling at their home. The trial court granted summary judgment for D. The Court of Appeals affirmed and P appealed.

FACTS: D requested that P pick him up at his house for a business meeting the two were attending, and P, while doing so, tripped over a stick that D had inadvertently left lying on his porch. P brought this action against D and his wife seeking damages for the injuries he sustained in the fall. The trial court granted summary judgment for the D and the Court of Appeals affirmed. P appealed.

SEIBERT V. VIC REGNIER BUILDERS, INC. 856 P.2d 1332 (1993) CASE BRIEF

SEIBERT V. VIC REGNIER BUILDERS, INC.

856 P.2d 1332 (1993)

NATURE OF THE CASE: Seibert (P) appealed a summary judgment for Vic (D), shopping center owner, in P's suit from being attacked by an unknown assailant in D's parking lot.

FACTS: P was a passenger in an automobile owned and driven by her friend Michelle. At about 3:00 p.m., they drove to the Ranch Mart Shopping Center and parked in the subterranean parking garage. They got out of the automobile and reached into the back to retrieve their purses from the 'cubby' area of the Corvette. Assailants were upon them. P screamed and either dropped or threw a can of cola at her assailant, who then shot her in the head. The robbers fled. P sued D alleging that by virtue of past criminal activity in the shopping center's parking areas plus the nature of the underground parking area, including dim lighting by virtue of numerous burned-out fluorescent tubes, the defendant owed a duty to her as a business invitee to provide security. There was no security f-- no warning signs, video surveillance, or security guards. P offered expert testimony that the security, including the lighting, was inadequate and had appropriate security measures been in place, the attack upon her would probably not have occurred. There was no evidence of prior crimes in the underground parking. There were approximately 4 incidents in above ground parking in two years. Based on prior incidents the court ruled that the attack was unforeseeable. Under the prior similar incidents rule, the court granted D summary judgment. P appealed. P contends the court erred in not applying the broader 'totality of the circumstances' rule.

VALANCE V. VI-DOUG, INCORPORATED 50 P.3d 697 (2002) CASE BRIEF

VALANCE V. VI-DOUG, INCORPORATED

50 P.3d 697 (2002)

NATURE OF THE CASE: Valance (P) appealed a summary judgment for Doug (D) in P's action alleging negligence in failing to provide an entry reasonably safe from the wind, and in posting a sign with instructing to hold the door tightly.

FACTS: Miles, age seventy-five, was opening the front door at D's restaurant when the wind forcefully caught the door. A sign posted on the door instructed: 'Please Hold Door Tight Due to Wind.' Miles claimed she did what the sign instructed her to do. The force of the wind on the door caused her to fall onto the concrete walkway, breaking her hip. P sued D alleging that D's failed to provide a reasonably safe entryway for its patrons. D moved for summary judgment; it does not owe a duty to protect its patrons from the effects of natural accumulations of snow and ice on its premises, it does not owe a duty to protect them from the effects of naturally occurring wind on its premises. P disputed the application of the 'open-and-obvious-danger' exception in the context of wind. P contends the sign instructing patrons to tightly hold the door violated D's duty to maintain the premises in a reasonably safe condition because if heeded by a patron, it created a hazardous condition. The district court ruled that the open-and-obvious-danger exception applies to naturally occurring forces of wind just as it does to natural accumulations of snow and ice. It determined reasonable minds could not differ that D did not violate its duty to maintain the premises in a reasonably safe condition for its patrons by placing the sign as worded on the restaurant's front door. P appealed.

RICHARDSON V. THE COMMODORE, INC. 599 N.W.2d 693 (1999) CASE BRIEF

RICHARDSON V. THE COMMODORE, INC.

599 N.W.2d 693 (1999)

NATURE OF THE CASE: Richardson (P) appealed a summary judgment in P's action against Commodore (D) for premises liability.

FACTS: P was injured at a bar owned and operated by D when a portion of the ceiling fell on him. P was shooting pool at the bar and was suddenly struck by falling plaster. P sued D to recover damages for his physical injuries. P alleged that he was a business invitee and the collapse of the ceiling and his resulting injuries were caused by Ds' negligence in failing to maintain the premises in a reasonably safe condition. The building was built in 1913. Ralph and Betty Hauerwas (D) acquired the building in 1982, and moved their tavern business into it. The tavern was on the first floor. Prior to opening for business, Ds contracted with Wayne Blumer to repair portions of the plaster ceiling of the first floor where the wood lath had been exposed by the removal of some partition walls. Blumer did not notice any signs of damage to or other problems with the plaster ceiling at the time of his repairs. Three years later, Ds installed a drop ceiling on the first floor and they did not notice any problems with the plaster ceiling at that time. Between 1985 and 1994, they did not inspect the plaster ceiling, were unaware of any problems in that ceiling, and made no repairs to it. Blumer testified that the ceiling collapsed due to its age and the effect, over time, of vibration from heavy traffic on the adjoining street. Blumer inspected the remainder of the plaster ceiling by looking through the drop ceiling where the tiles had been pushed off by falling plaster, and using a spotlight to view whether the plaster was sagging in any other areas. The district court granted Ds' motion for summary judgment, holding there was no evidence they knew or should have known of the dangerous condition of the plaster ceiling. The court of appeals affirmed. P appealed.

KNORPP V. HALE 981 S.W.2d 469 (1998) CASE BRIEF

KNORPP V. HALE

981 S.W.2d 469 (1998)

NATURE OF THE CASE: Knorpp (P), administrator of a decedent's estate, appealed an order that decedent was a social guest licensee, not an invitee, when he cut down Hale's (D) tree that killed him, and granting D's motion for a directed verdict.

FACTS: Todd was killed while cutting down a tree at D's house. Todd had been dating D's daughter and that he spent a great deal of time at D's house. Todd had his own key and was free to come and go. Ds were planning a New Year's Eve bonfire around the base of a dead pine tree. They decided to cut down the tree. Todd went to the house, took Ds' chain saw, and began to cut down the tree. After about forty-five minutes, the tree fell in an unexpected direction and landed on Todd, killing him. Todd had worked with his stepfather cutting and trimming trees. The stepfather testified that Todd did not cut the tree properly. The trial court granted Ds' motion for a directed verdict and ruled as a matter of law that Todd was a licensee and that there was no evidence that Ds were negligent under applicable standards for a licensee. P appealed claiming Todd was an invitee.

HILL V. NATIONAL GRID 11 A.3d 110 (2011) CASE BRIEF

HILL V. NATIONAL GRID

11 A.3d 110 (2011)

NATURE OF THE CASE: Hill (P) appealed a summary judgment for Grid (D) in P's suit for damages to their son while playing on D's vacant lot.

FACTS: P accompanied several friends to a grass-covered vacant lot for a game of touch football. While he was running, he suddenly tripped over an unseen metal pole that was protruding from the ground. P fell on the ground and struck a second metal pole, lacerating his left thigh. P was bleeding profusely. P's mother, Rebecca, brought the boy to a local emergency room, where he received treatment for the laceration. The wound eventually healed, but a permanent scar remains. P sued D, a public utility. D asserted that it owed no duty to P under the circumstances because he was a trespasser on its property. Ps pled the attractive nuisance doctrine. The court granted D's motion for summary judgment in that P failed to make any showing that D knew or had reason to know that children were trespassing. P appealed.

MERRILL V. CENTRAL MAINE POWER COMPANY 628 A.2d 1062 (1993) CASE BRIEF

MERRILL V. CENTRAL MAINE POWER COMPANY

628 A.2d 1062 (1993)

NATURE OF THE CASE: Merrill (P), a minor child, appealed a summary judgment in favor of Power (D) in P's action seeking damages for personal injuries allegedly caused by an attractive nuisance located on the power company's property.

FACTS: P, then nine years of age, entered D's property to fish in the Salmon Falls River. After catching an eel in the river, P walked to the nearby electrical sub-station, climbed the surrounding fence, and attempted to cook the eel by leaning over the top of the fence and placing the eel on a live electrical wire. P received an electric shock and suffered severe burns. P sued under the attractive nuisance doctrine. D got a summary judgment in that (1) P appreciated the risk at the time of the accident; (2) electrical sub-stations are not, as a matter of law, attractive nuisances; and (3) D is immune from liability under the recreational use statute. P appealed.

RYALS V. UNITED STATES STEEL CORP. 562 So.2d 192 (1990) CASE BRIEF

RYALS V. UNITED STATES STEEL CORP.

562 So.2d 192 (1990)

NATURE OF THE CASE: Ryals (P), administrator of decedent's estate appealed a summary judgment for Steel (D) in P's action for wantonly failing to maintain a secure switch rack.

FACTS: P and David Ryals, as trespassers, went to D's switch rack for the purpose of 'stripping out' copper, brass, and other salvageable metals. They found the base of the structure to be partially stripped, one rusty warning sign, detached metals lying on the ground, dangling wires, garbage in and around the fenced area and wild vegetation growing around the fence; and that they found the gate leading into the switch rack to be 'wide open.' David contacted a 44,000-volt copper line; he suffered third degree burns over 95% of his body and died several days later as a result. P sued D and D moved for summary judgment and it was granted. P appealed.

BEVAN V. FIX 42 P.3d 1013 (2002) CASE BRIEF

BEVAN V. FIX

42 P.3d 1013 (2002)

NATURE OF THE CASE: Bevan (Ps), two minor children and their father, sued Fix (D) on sundry causes of action. Ps appealed a grant of summary judgment to D on all counts. The Father (P) appealed the action for legal malpractice.

FACTS: Father (P) hired D to represent him as defense counsel on a charge of criminal battery for family violence against his then girlfriend Jenni Jones (Jones). D represented P and the matter ended in a plea agreement. P and Jones married. Brittany and Steven are the couple's biological children. Brittany was born in August of 1991, Steven in April of 1994. In January of 1997, Jones, represented by D, filed a complaint for divorce from P. P was not consulted nor did he consent to the representation. In 1997, D withdrew from representation of Jones because he had begun a sexual relationship with her. Ps sued D and D was granted summary judgment on all counts. P appealed the action for legal malpractice.

RUSSO V. GRIFFIN 510 A.2d 436 (1986) CASE BRIEF

RUSSO V. GRIFFIN

510 A.2d 436 (1986)

NATURE OF THE CASE: Russo (P) appealed a decision that entered a judgment for Griffin (D), attorney, in P's claim for legal malpractice.

FACTS: Joseph Russo established a paving business and in 1975 decided to turn the business over to his two sons, Anthony (P) and Francis. They got Griffin (D), a lawyer, to help them with the process of incorporation. Between 1975 and 1978 the corporation held its annual meetings at D's office. Frank wanted to purchase a laundromat. Frank and P entered into discussions concerning the sale of his interest in the corporation. The father also got involved. According to D, the main purpose of the meeting, and the documents he prepared pursuant thereto, was to protect Frank. In this regard, a $6,000 promissory note from the corporation to Frank was personally guaranteed by P and his wife, and it was secured by a chattel mortgage. Frank resigned as president and transferred his stock to the corporation. Griffin did not inform the corporation or P of the desirability of obtaining a covenant not to compete or explain the implications thereof. Three months after the transfer Frank got into the paving business. P sued D for malpractice. P presented two witnesses from out of town who said D was negligent. D introduced two witnesses from in town who said he was not. The court went with the local rule and found for D. P appealed.

YBARRA v. SPANGARD Sup. Ct. of Cal., 25 Ca. 2d 486, 154 P.2d 687 (1944) CASE BRIEF

YBARRA V. SPANGARD

Sup. Ct. of Cal., 25 Ca. 2d 486, 154 P.2d 687 (1944).

NATURE OF THE CASE: Ybarra (P) appealed a judgment of nonsuit as to all defendants, Spangard (Ds) in an action for damages for personal injuries.

FACTS: Ybarra (P) was diagnosed with an appendicitis by Dr. Tilley (D1). D1 arranged for an appendectomy by Dr. Spangard (D2) at a hospital owned and operated by Dr. Swift (D3). P was taken into the operating room by nurse Gislor (D4) and anesthetized by Dr. Reser (D5). D5 laid P back with the top of his shoulders against two hard objects. P awoke the next morning attended by Thompson (D6) and another nurse and felt a sharp pain between his neck and his right shoulder. The pain spread down his arm and continued to grow worse. P developed paralysis and atrophy of the muscles around the shoulder. D5 and the nurses were employees of D3. D1 and D2 were independent contractors. P sued and claimed res ipsa loquitur. The medical personnel claimed that res ipsa loquitur should not apply against them; there was no showing that the act of any particular defendant, nor any particular instrumentality, was the cause thereof. Ds claimed that the injury could have resulted from the actions of any of the Ds and thus the doctrine cannot be applied. Ds also claimed that there were several instrumentalities involved and any of them may have caused the injury. The trial court awarded Ds a nonsuit. P appealed.

LARGEY V. ROTHMAN 540 A.2d 504 (1988) CASE BRIEF

LARGEY V. ROTHMAN

540 A.2d 504 (1988)

NATURE OF THE CASE: Largey (P) appealed a decision which affirmed a trial court determination that Rothman (D) had provided P with sufficient information to amount to informed consent.

FACTS: P's gynecologist, Dr. Glassman, detected a 'vague mass' in her right breast. The doctor referred P to Rothman (D) a surgeon. D expressed concern that the anomalies on the mammograms might be cancer and recommended a biopsy. P submitted to the biopsy procedure after receiving a confirmatory second opinion from a Dr. Slattery. D removed a piece of the suspect mass from P's breast and excised the nodes. The biopsies showed that both specimens were benign. P then developed a right arm and hand lymphedema, a swelling caused by inadequate drainage in the lymphatic system. The condition resulted from the excision of the lymph nodes. D did not advise P of this risk. P's experts testified that d should have informed P that lymphedema was a risk of the operation. D's experts testified that it was too rare to be discussed with a patient. Ps sued claiming that they were never told that the operation would include removal of the nodes and therefore that procedure constituted an unauthorized battery. Alternatively, they claimed that even if they had authorized the node excision, D was negligent in failing to warn them of the risk of lymphedema and therefore their consent was uninformed. The jury specifically rejected both claims because the trial court instructed on the reasonable physician standard of informed consent. Ps appealed and the appeal court affirmed and P appealed again.

McGRAW V. ST. JOSEPH'S HOSPITAL 488 S.E.2d 389 (1997) CASE BRIEF

McGRAW V. ST. JOSEPH'S HOSPITAL

488 S.E.2d 389 (1997)

NATURE OF THE CASE: McGraw (P) appealed a summary judgment for Hospital (D) in P's suit for negligence based on two falls while at D.

FACTS: P was admitted D with shortness of breath. While four female employees of D helped him into bed, P testified that he informed them they could not do it because he weighed too much. After that statement all he could remember is that he 'had a sensation of falling.' A short time later, he fell out of bed in the middle of the night. Yet again he was dropped while four nurses attempted to get him back in bed. P suffered injuries from the falls. P sued D for negligence for two of the drops. P claims he sustained a fractured neck and other injuries in, about and upon his arms, knees and other parts of his body. D moved for summary judgment in that P failed to produce expert testimony to show that D deviated from the standard of care and that any deviation caused injury or damage. The motion as granted and P appealed.

ROSSELL V. VOLKSWAGEN OF AMERICA 709 P.2d 517 (1985) CASE BRIEF

ROSSELL V. VOLKSWAGEN OF AMERICA

709 P.2d 517 (1985)

NATURE OF THE CASE: Rossell (P) appealed a reversal of the trial court which held that P proved her prima facie case of negligence and proximate cause and which denied Volkswagen (D) judgment n.o.v.

FACTS: Julie, eleven-months-old, was sleeping in the front passenger seat of a 1958 Volkswagen driven by P, her mother. P fell asleep and when P awoke she attempted to correct the path of the car, but oversteered. The car flipped over, skidded off the road and landed on its roof at the bottom of a cement culvert. The battery was fractured and dislodged and for 7 hours it dripped sulfuric acid on Julie. She was severely burned her face, chest, arm, neck, part of her back and shoulder, and both hands. She remains seriously disfigured and in need of additional surgery. P sued D alleging negligent design of the battery system and strict liability for the defective design of the battery system, the heating system and for the propensity of the vehicle to roll over. P argued that battery placement within the passenger compartment created an unreasonable risk of harm and that alternative designs were available and practicable. D argued that it must comply with the standard of a reasonably prudent designer of automobiles and that knowledge of automobile design principles and engineering practices often is beyond the knowledge of laymen, so that plaintiff in a case such as this must produce expert testimony establishing the minimum standard of care and deviation therefrom in designing the automobile. P of course produced no such testimony expert or otherwise. P got the verdict for $1.5 million. The court denied j.n.o.v. D appealed and the court of appeals reversed. P appealed.

NOWATSKE V. OSTERLOH 543 N.W.2d 265 (1996) CASE BRIEF

NOWATSKE V. OSTERLOH

543 N.W.2d 265 (1996)

NATURE OF THE CASE: Nowatske (Ps) appealed a jury verdict for Osterloh (D) in Ps' medical malpractice claim

FACTS: P noticed an area of blurred vision in his right eye. He was referred to D, a retina specialist who diagnosed him as having a retinal detachment. P signed a consent form explaining the risks and possible complications involved in the proposed treatment. He also viewed a videotape explaining the procedure of retinal reattachment. The parties dispute whether D warned P that 'blindness' or 'loss of vision' could result. D elected to conduct a relatively common procedure, known as scleral buckling, in an effort to reattach the retina. This procedure may raise the intraocular pressure (IOP) in the eye, resulting in blindness. D checked the IOP in P's eye with his finger and then proceeded to attach the buckle. Subsequently, he again checked the IOP with his finger and concluded that it was within an acceptable range. The parties dispute whether the D should have used a tonometer rather than his finger. The next day, D tested P's vision with an ophthalmoscope, shining a light into the eye to check its response. Noting a normal 'back-off' response to the light, he concluded that the surgery had been successful. P went home and experienced severe eye pain. By the next morning, the swelling around P's eye had subsided. With no warning or instruction from D, P remained unconcerned about his continuing inability to see out of his right eye. On a follow-up appointment, D informed P that he would be permanently blind in the right eye. P sued D for malpractice. It was a battle of the experts. At D's request and over P's objection, the circuit court used various paragraphs from the standard jury instruction pertaining to medical malpractice. D was required to use the degree of care, skill, and judgment usually exercised in the same or similar circumstances by the average specialist who was in a similar practice, and that a physician must use reasonable care and that a physician can be found negligent for failing to exercise the degree of care, skill, and judgment in administering treatment. The jury found that D was not negligent. The complaint was dismissed and P appealed.

LEVITT V. PELUSO 638 N.Y.S.2d 878 (1995) CASE BRIEF

LEVITT V. PELUSO

638 N.Y.S.2d 878 (1995)

NATURE OF THE CASE: Levitt (P) motioned for summary judgment on his suit claiming that the owner of a car was vicariously liable for the act of Peluso (D) in throwing an egg from the moving vehicle and blinding P. The owner of the car moved to dismiss.

FACTS: P, a pedestrian, was blinded in one eye by an egg thrown from a moving automobile owned by Eugene (D) and permissively operated by D in which Russell DiBenedetto (D) was a passenger. A statute which imposes vicarious liability against the owner of a motor vehicle for injury resulting from negligence in its permissive use or operation. P sued Ds. D and DiBenedetto (D) entered voluntary pleas to the charge of assault in the third degree. P moved for summary judgment against Eugene (D). Eugene (D) moved to dismiss.

SANTIAGO V. PHOENIX NEWSPAPERS, INC. 794 P.2d 138 (1990) CASE BRIEF

SANTIAGO V. PHOENIX NEWSPAPERS, INC.

794 P.2d 138 (1990)

NATURE OF THE CASE: Santiago (P) appealed an affirmation of a summary judgment that as a matter of law, Phoenix (D) was not vicariously liable for P's injuries resulting from an accident involving Frausto (D), D's independent contractor.

FACTS: Frausto (D) was delivering newspapers for D when his car collided with a motorcycle driven by P. The agreement with Frausto (D) stated he was an 'independent contractor,' retained to provide prompt delivery of its newspapers by the times specified in the contract. Frausto (D) had the right to operate the business as he chose, and he could engage others to deliver papers on his route for no more than 25% of the delivery days. He was free to pursue any other business activities, including delivering other publications, so long as those activities did not interfere with his performance. Frausto (D) was required to show satisfactory proof of liability insurance, a valid driver's license, and a favorable report from the Arizona Motor Vehicle Division. P paid a set amount each week. D provided health and disability insurance, but did not withhold any taxes. Frausto (D) considered himself an employee and delivered the papers any way his supervisor directed him to. P sued D for negligence under vicarious liability. The court held that Frausto (D) was an independent contractor. P appealed and the court of appeals affirmed. The Arizona Supreme Court granted certiorari.

TRAHAN-LAROCHE V. LOCKHEED SANDERS, INC. 657 A.2d 417 (1995) CASE BRIEF

TRAHAN-LAROCHE V. LOCKHEED SANDERS, INC.

657 A.2d 417 (1995)

NATURE OF THE CASE: Trahan (Ps) appealed a grant of summary judgment to Lockheed (D) in P's action for negligence under respondeat superior and negligent supervision.

FACTS: A flatbed trailer separated from the pickup truck towing it and collided with the Ps' vehicle. Maimone, employed by Lockheed (D) as a maintenance mechanic, was the driver as well as the owner of both the truck and the trailer. One of Maimone's tasks was to hay the fields at D's facilities. Maimone provided most of the haying equipment, most of which he towed to D's premises with his truck and trailer. D did not compensate Maimone for the use of the equipment or the time spent transporting it, but did pay him his normal wages while haying the fields and permitted him to keep any hay he removed. Maimone hitched his trailer to his truck for use in transporting hay from his farm to the Agway store to sell that evening. He planned to return the trailer to remove the remaining farm machinery. The trailer separated from the truck during the drive from D's facility to Maimone's farm. Ps sued D under theories of respondeat superior and negligent supervision in that Maimone was acting within the scope of his employment at the time of the accident. D moved for summary judgment because Maimone was not acting within the scope of his employment. Ps also moved for partial summary judgment on the ground that, as a matter of law, Maimone's actions were within the scope of his employment. The trial court ruled as a matter of law that Maimone acted outside the scope of his employment. The court dismissed and P appealed.

SLACK V. FARMERS INSURANCE EXCHANGE 5 P.3d 280 (2000) CASE BRIEF

SLACK V. FARMERS INSURANCE EXCHANGE

5 P.3d 280 (2000)

NATURE OF THE CASE: Slack (P) appealed from an affirmation of a decision to apportion Farmers' (D) liability based on the jury's decision of relative fault and reduce P's award pursuant to Colo. Rev. Stat. 13-21-111.5.

FACTS: P suffered injuries in an automobile accident. P visited her chiropractor for treatment of her neck and back pain caused by the accident. Dr. Schuster submitted all charges for treatment to P's insurer, D. In accordance with her policy, and at the request of D, P signed and delivered to D an Application for Benefits and Proof of Loss requesting Personal Injury Protection (PIP) benefits under her automobile insurance policy. D elected to obtain a second opinion regarding the nature of P's injuries from an independent medical examiner (an IME). D sent P to Dr. Lloyd Lachow, a chiropractor. At that time, another one of D's insureds, Jodi Lynn Harvey, had claimed that Lachow sexually assaulted her during an examination. P testified that during her exam, Lachow touched her clothed breast and pushed his pelvis into her back. In addition, she testified that he pulled hard on her neck and shook her head violently from side-to-side, putting her in additional pain. P then contacted an attorney and reported the incident to the City of Aurora police department. Lachow's license was suspended. P filed suit against Lachow claiming assault, battery, negligence, extreme and outrageous conduct/intentional infliction of emotional distress, negligent infliction of emotional distress, and malpractice. P claimed negligence, breach of contract, bad faith breach of contract, and outrageous conduct against D. P settled with Lachow and D designated Lachow a nonparty whose fault should be considered in apportioning the resulting total liability and damages. The jury returned a verdict in favor of P on the negligence claim, bad faith breach of contract claim, and on P's husband's loss of consortium claim. The jury also found that D acted willfully and wantonly. The jury awarded P $40,000 for her injuries and $16,000 in exemplary damages. The husband got $6000 for his loss and $2400 in exemplary damages. The jury apportioned sixty percent of the fault for P's injuries to Lachow and forty percent to D. The trial court reduced P's award to $16,000 in compensatory damages and $16,000 in exemplary damages. The trial court did not reduce the compensatory portion of the husband's damage award. P appealed and D cross-appealed the trial court's refusal to apportion the damages awarded to the husband The court of appeals held in favor of D on both issues. P appealed.

SULLIVAN V. SCOULAR GRAIN CO. OF UTAH 853 P.2d 877 (1993) CASE BRIEF

SULLIVAN V. SCOULAR GRAIN CO. OF UTAH

853 P.2d 877 (1993)

NATURE OF THE CASE: Sullivan (P) was injured on the job and filed suit against employer, railroad, manufacturer, and others. Several of the defendants were dismissed from the lawsuit prior to trial. Trackmobile (D) filed a motion to have the jury apportion and compare the fault of all originally named defendants, whether dismissed or present at trial, and the question was certified for review.

FACTS: P lost his left arm and left leg in an accident on the railroad tracks at the Freeport Center. P was assigned to unload grain from rail cars into warehouses. He was employed by Scoular Grain Company, Freeport Center Associates, and Scoular Grain Company of Utah ('the Scoular parties'). P filed this action against the Scoular parties, Union Pacific Railroad Company, Denver & Rio Grande Western Railroad Company, Oregon Short Line Railroad Company, Utah Power & Light Company, Trackmobile, Inc., and G.W. Van Keppel Company. The federal district court found the Scoular parties immune from P's claim under the exclusive remedy provision of Utah's Workers' Compensation Law and dismissed them from the action. That court also found that defendant Denver & Rio Grande Western Railroad had no legal duty to P and dismissed it from the lawsuit. The remaining defendants in the case are Utah Power & Light, Trackmobile, G.W. Van Keppel, Union Pacific Railroad, and Oregon Short Line Railroad. Trackmobile (D) moved to have the jury apportion and compare the fault of all the originally named defendants, whether dismissed or present at trial. P opposed this motion, claiming that only the fault of parties who are defendants at trial may be compared. The district court certified the question.

RODERICK V. LAKE 778 P.2d 443 (1989) CASE BRIEF

RODERICK V. LAKE

778 P.2d 443 (1989)

NATURE OF THE CASE: Edgar and Hohenberg (Ds) appealed a judgment, which found that they had engaged in a joint venture as to the control and maintenance of their two horses, and held them jointly and severally liable to Roderick (P) for the damages awarded predicated on the doctrine of res ipsa loquitur as well as negligent violation of the applicable statutes.

FACTS: P was traveling on a road in a safe and lawful manner, when two horses darted onto the highway in front of him. 'It was dark at the time * * * and the horses were dark colored.' P did not have time to brake and recalled no details of the accident. He suffered serious injuries. Lake (D) owned the land adjacent to the county road. His brother, Edgar (D), kept several of his horses there, including one of the horses involved in the accident. Roland, an associate and trainer for Edgar (D), owned the other horse and also kept it on Lake's (D) property. There was testimony that the horses could not escape except through the gate. After the accident the gate was found 'sprung open.' The latch on the gate confining the horses had been left open. Edgar (D) testified that he made sure the gate was latched prior to leaving the premises. After a bench trial the judge ruled that Lake (D) was not negligent. The court found that Edgar and Hohenberg (Ds) were joint and severally liable to P. This was based on res ipsa loquitur, negligent violation of state las, and the fact that Ds were joint venturers. Ds appealed.

PINER V. SUPERIOR COURT 962 P.2d 909 (1998) CASE BRIEF

PINER V. SUPERIOR COURT

962 P.2d 909 (1998)

NATURE OF THE CASE: Piner (P) appealed a decision, which denied his motion for partial summary judgment on the issue of joint and several liability between defendant drivers holding that P would have to prove apportionment of damages resulting from two separate collisions before he could recover.

FACTS: P stopped his truck to let a pedestrian cross the street. A car driven by Billy Jones hit P's truck from behind. Police were called to investigate the incident. P called his physician to complain of pain in his neck, upper back, left arm, and head. The doctor's staff told P that the doctor was unavailable but would call him back later that day. Piner then fixed the broken tail lights on his truck and went to work. P was driving to lunch when the car ahead of him stopped to let some pedestrians cross the street. P stopped and was again hit from the rear, this time by a vehicle driven by Cynthia Richardson. Feeling similar pain symptoms after this accident, P called his doctor's office and was again told that the doctor was occupied and would contact him later. The doctor concluded that P suffered a number of injuries as a result of the collisions. Due to the nature of the injuries, neither P's doctor nor any other physician has been able to attribute any particular part of P's total injuries to one accident or the other. P sued Ds alleging indivisible injuries resulting from the successive impacts. All parties agree that both collisions contributed to P's total physical injuries. P moved for partial summary judgment, arguing that because his injuries are indivisible, Ds should be held jointly and severally liable; Ds have the burden of proving apportionment; if neither defendant can demonstrate what portion of the total damage he or she caused, they should be held jointly and severally liable for the entire amount. The court denied P's motion. A new judge, who was going to do the trial, granted a continuance to allow P to file a special action in the nature of mandamus or prohibition to determine the propriety of the earlier ruling on apportionment; if P could not apportion the injuries, he was out of court. The court of appeals declined jurisdiction but the Supreme Court granted certiorari.

KERN V. ST. JOSEPH HOSPITAL, INC. 697 P.2d 135 (1985) CASE BRIEF

KERN V. ST. JOSEPH HOSPITAL, INC.

697 P.2d 135 (1985)

NATURE OF THE CASE: Kern (P) appealed an affirmation of the trial court's grant of summary judgment to Hospital (D) dismissing P's action in negligence.

FACTS: Dale received external beam radiation therapy for cancer of the bladder at D. The treatments were administered by Dr. Simmons (D), an employee of defendant-respondent, X-Ray Associates (D). Dale and his wife were told by Dr. Simmons that the therapy would consist of 30 treatments of radiation. After Dale had received 25 treatments, the therapy was discontinued without explanation. Dale and his wife asked Dr. Simmons the reason for the early termination of the therapy, Dr. Simmons did not respond and appeared to stare off in the other direction. After the radiation treatments, Dale experienced problems with frequency of urination and the passing of blood in his bowel movements and urine. Dale died on August 30, 1982. The cause of death listed on the death certificate was sepsis-urinary tract infection due to or as a consequence of irradiation cystitis and proctitis and/or urinary bladder cancer. His wife (P) believed that the problems after the radiation therapy were acceptable complications of the treatments. They were never informed that Dale had received an excessive amount of radiation. After reading a newspaper article in 1981 regarding excessive radiation having allegedly been administered at St. Joseph Hospital, they began to suspect. Dale and P employed a lawyer to investigate whether the radiation therapy had been administered properly. P filed on March 21, 1983, in her capacity as personal representative of her husband's estate. Ds filed a motion for summary judgment contending that petitioner's lawsuit was barred by the statute of limitations. The court dismissed the suit. P appealed and the court of appeals affirmed. P appealed.

HANLEY V. CITIZENS BANK OF MASSACHUSETTS 2001 WL 717106 (2001) CASE BRIEF

HANLEY V. CITIZENS BANK OF MASSACHUSETTS

2001 WL 717106 (2001)

NATURE OF THE CASE: Hanley (P), guard, instituted suit against Bank (D) ten years after he incurred injuries in a robbery. D moved to dismiss.

FACTS: On or about February 10, 1990, P was employed as a security guard by Metropolitan Security Service. Metropolitan assigned D to a branch of the Somerset Savings Bank. On the night of February 9, 1990, an alarm sounded at the Branch and the police responded by arriving on the scene at the bank. The police did not enter the bank since no one from the bank was present to allow the police to gain entry into the building. The next morning, P entered and robbers 'disarmed him, kicked him repeatedly, held a gun to his head and threatened to execute him.' The robbery was committed by the 'Hole-in-the-Roof Gang.' This gang has been known to rob numerous greater Boston banks by cutting a hole in the roof of the target bank at night, entering the bank and waiting for bank employees to arrive in the morning. In the morning, the gang forces the bank employees to open the vault at gun point. On or about March 17, 1997, the first jury trial of the 'Hole-in-the-Roof Gang' began in federal court. P first discovered that the Somerville police responded to an alarm at the Union Branch and could not enter the bank to inspect the interior because nobody from the bank responded to the alarm to enable the police to gain entry. P sued alleging that D was negligent in hiring, training, and supervising the bank personnel in charge of the security. D moved to dismiss.

BROADWEL V. HOLMES 871 S.W.2d 471 (1994) CASE BRIEF

BROADWEL V. HOLMES

871 S.W.2d 471 (1994)

NATURE OF THE CASE: Broadwell (P), father, appealed a judgment which affirmed a trial court decision in favor Holmes (D), mother, dismissing P's suit against their mother for personal injuries to the son and wrongful death of the daughter.

FACTS: Mindy Broadwell, age 8, and Justin Broadwell, age 6, were passengers in a pickup truck driven by D, their mother, when the vehicle was involved in an accident. P sued alleging that D negligently lost control of the vehicle and that her negligence proximately caused the death of Mindy and serious bodily injuries to Justin. At the time of the accident, the parents were divorced, and D had custody of the children. The court dismissed on parental immunity and D appealed. The appeals court affirmed. D appealed.

BOONE V. BOONE 546 S.E.2d 191 (2001) CASE BRIEF

BOONE V. BOONE

546 S.E.2d 191 (2001)

NATURE OF THE CASE: Juanita (W) appealed a dismissal of her personal injury action against Freddie (H) based upon interspousal immunity.

FACTS: W was injured in a car accident in Georgia. W was a passenger in a vehicle driven by H. H and W reside in South Carolina. W sued H for damages. The court ruled that Georgia law applied and dismissed based on interspousal immunity. W appealed.

LAW V. SUPERIOR COURT 755 P.2d 1135 (1988) CASE BRIEF

LAW V. SUPERIOR COURT

755 P.2d 1135 (1988)

NATURE OF THE CASE: The Arizona Court of Appeals vacated a protective order, which precluded discovery concerning Harder's (P) seat belt use in a personal injury action. Law (D) appealed.

FACTS: D was driving her parents' car when she pulled in front of Harder's (P), who swerved violently to avoid a collision. This evasive maneuver overturned P's vehicle. P and his wife were not wearing their seat belts and were thrown from their car. Ps suffered severe orthopedic injuries as a result of the accident. Ps sued D. D sought information concerning Ps' use and experience with seat belts and shoulder restraints. P objected and D moved to compel discovery. The trial judge denied the motion and issued a protective order. D filed a special action petition. The court of appeals vacated the trial judge's protective order and held that evidence of seat belt nonuse was admissible so long as D could demonstrate a causal relationship between the nonuse and the injuries. The court concluded that under the doctrines of avoidable consequences and mitigation of damages, motorists were responsible to take reasonable pre-accident measures to prevent or reduce damages from foreseeable injury. Failure to avoid or mitigate foreseeable damages would result in a corresponding reduction in the damages awardable. The court found that the absence of a mandatory state seat belt law did not negate the duty to mitigate damages. P appealed.

KLANSECK V. ANDERSON SALES & SERVICE, INC. 393 N.W.2d 356 (1986) CASE BRIEF

KLANSECK V. ANDERSON SALES & SERVICE, INC.

393 N.W.2d 356 (1986)

NATURE OF THE CASE: Klanseck (P) appealed an affirmation of a judgment reducing the jury's award of damages due P's comparative negligence in P's action for breach of implied warranties and negligence against Anderson (D).

FACTS: P purchased a Honda GL 1000 motorcycle from D and was heading for home with his new cycle when it began to 'fishtail.' P applied the brakes and the motorcycle slid sideways and went down, resulting in P's injuries. P received sutures in his left arm, was x-rayed and released. Twelve days later, a fracture of P's right wrist was diagnosed and treated. P claimed that his injuries resulted in chronic pain and numbness in his left arm and hand, which interfered with his work and eventually resulted in a serious mental disorder. After the accident, it was found that the front tire had deflated. A small hole was later discovered on the portion of the tube that contacted the wheel rim. P's expert witness testified that the puncture resulted from the improper placement of a rubber strip, allowing contact between the tube and the metal heads, or nipples, of the spokes on the front rim. The court gave an instruction on P's duty to mitigate damages. P objected because no evidence had been admitted that he had failed to mitigate his damages. D points to the testimony of Dr. Gary W. Roat, and claims that it creates an issue on the question of mitigation. Dr. Roat, a neurologist, testified that P had come to him on referral from another physician about a year after the accident and that he had treated P a number of times for numbness and tingling in his hand as well as back and leg pain. After trying several medications, Dr. Roat recommended that plaintiff undergo additional diagnostic tests, including nerve conduction studies, an electromyelographic examination, and a myelogram to determine whether he had a herniated disk. P decided against taking these tests unless his symptoms worsened. The jury found P 60 percent negligent and D 40 percent. P appealed and the court of appeals affirmed. P appealed.

DAVENPORT V. COTTON HOPE PLANTATION HORIZONTAL PROPERTY REGIME, 508 S.E.2d 565 (1998) CASE BRIEF

DAVENPORT V. COTTON HOPE PLANTATION HORIZONTAL PROPERTY REGIME

508 S.E.2d 565 (1998)

NATURE OF THE CASE: This was a dispute over the effect of assumption of the risk. Cotton (D) appealed a judgment, which held that assumption of risk had been abrogated by South Carolina's adoption of comparative negligence.

FACTS: P was injured while descending a stairway near his apartment. P rented a condo from the owner and the unit was on the top floor of a three floor building within D's premises. There were three stairways that could have been used by P to access his rental unit but P chose to use the middle stairway that was just five feet from his front door. Two months prior to his fall, P reported to management that the flood lights on the middle stairway were not working. When P used the stairway he tripped and fell. P sued D. The trial court directed the verdict for D as P assumed the risk and it also held that P was more negligent than D as a matter of law. This appeal resulted.

SCHROYER V. McNEAL 592 A.2d 1119 (1991) CASE BRIEF

SCHROYER V. McNEAL

592 A.2d 1119 (1991)

NATURE OF THE CASE: Schroyer (D), parking lot owners, appealed a decision by the Court of Special Appeals, which upheld the judgment of the lower court in favor of McNeal (P) in P's action alleging that her injuries in a slip-and-fall on an icy parking lot were caused by D's negligence.

FACTS: P arrived at the Holiday Inn when four inches of sleet and ice had accumulated. P observed that the area in front of, and surrounding, the main lobby area, where hotel guests registered, had been shoveled and, thus, was reasonably clear of ice and snow. She also noticed that the rest of the parking lot had neither been shoveled nor otherwise cleared of the ice and snow. P parked her car in front of the hotel while she registered. P requested a room where it would be easy to 'cart' boxes and paperwork back and forth to her room. She was assigned a room close to the west side entrance. This was done notwithstanding the hotel's policy of not assigning such rooms during inclement weather. Contrary to policy, P was not advised that she should not use the west entrance and, of course, no warnings to that effect were posted near that entrance. P drove her car from the main entrance to within ten to fifteen feet of the west side entrance. She got out of her car, she noticed that the sidewalk near the entrance had not been shoveled and, furthermore, that the area was slippery. She removed her cat from the car and crossed the ice and snow carefully, and without mishap. On the return trip she slipped and fell, sustaining an injury. P sued D. P testified that the immediate area where she parked her car, was 'packed ice and snow' and was slippery. P denied that it was unreasonable for her, under the circumstances, to try to traverse the parking lot; she 'didn't think it was that slippery. I didn't slip the first time in.' D moved for summary judgment in that P had assumed the risk. P got the verdict and D appealed. The court of appeals confirmed and D appealed.

TURNBOUGH V. LADNER 754 So.2d 467 (1999) CASE BRIEF

TURNBOUGH V. LADNER

754 So.2d 467 (1999)

NATURE OF THE CASE: Turnbough (P) appealed the affirmation of a summary judgment, which was granted based on an anticipatory release P signed in favor of Ladner (D) scuba instructor.

FACTS: P had previously been certified as a scuba diver, but his certification had expired. P enrolled in a scuba diving class taught by D. D required P to execute a release in favor of her and the Gulfport Yacht Club in order to participate in the class. P questioned a fellow student who also happened to be an attorney who informed P that such releases were unenforceable. P executed the release. During check out dives, P began to feel the first effects of decompression sickness (the bends). P began experiencing a pain that he described as 'arthritic' in his joints. D eventually advised P to call a diver's hotline, which in turn instructed him to seek medical attention at a dive hospital. P received treatment for decompression sickness. P was told by the doctors at the hospital who ran the dive profile that the dive was too long, and there should have been a decompression stop before the divers surfaced. P was told that he could never dive again. Ebro, a scuba expert in water safety and scuba diving, opined that D was negligent in planning the depths of the dives as well as in failing to make safety stops and that these errors significantly increased the risk that her students might suffer decompression illness. P sued D and D filed a motion for summary judgment The circuit court dismissed the case. P appealed, asserting that the release should be declared void as against public policy. The Court of Appeals found that the release was a contract of a purely personal nature and did not violate public policy because scuba diving does not implicate a public concern. P appealed.

WAGENBLAST V. ODESSA SCHOOL DISTRICT 758 P.2d 968 (1988) CASE BRIEF

WAGENBLAST V. ODESSA SCHOOL DISTRICT

758 P.2d 968 (1988)

NATURE OF THE CASE: Wagenblast (Ps) appealed a split between courts of different counties wherein one granted Ps' motion for summary judgment and enjoined Odessa (D) and the other denied injunctive and declaratory relief.

FACTS: Ps desired to participate in some form of interscholastic athletics. D required its students and their parents or guardians to sign a standardized form which releases the school district from 'liability resulting from any ordinary negligence that may arise in connection with the school district's interscholastic activities programs.' There were multiple cases against Ds seeking to void and invalidate the release of liability. On court said they were invalid and another upheld them. This appeal and consolidation resulted.

JENSEN V. INTERMOUNTAIN HEALTH CARE, INC. 679 P.2d 903 (1984) CASE BRIEF

JENSEN V. INTERMOUNTAIN HEALTH CARE, INC.

679 P.2d 903 (1984)

NATURE OF THE CASE: Jensen (P) Appellant survivors appealed a dismissal of P's medical malpractice action in which decedent died as a result of negligence on the part of an emergency room physician and Hospital (D).

FACTS: P died as a result of negligence on the part of Ds, an emergency room physician and the hospital. P settled with the defendant doctor and went to trial against the hospital. The jury returned a special verdict, finding P 46 percent negligent in causing his own death; hospital, 36 percent negligent; and the doctor, 18 percent negligent. Judgment was entered for P and then the trial court then set aside the original award and entered a judgment of no cause of action. P appealed.

DOBSON V. LOUISIANA POWER AND LIGHT COMPANY 567 So.2d 569 (1990) CASE BRIEF

DOBSON V. LOUISIANA POWER AND LIGHT COMPANY

567 So.2d 569 (1990)

NATURE OF THE CASE: Dobson (P) appealed a judgment from the Court of Appeal, in their wrongful death suit, against Power (D) for a tree trimmer's electrocution death. The Court reversed a finding that P was not at fault, found P 70 percent at fault, affirmed the finding that the power company was at fault, and reapportioned damages.

FACTS: P was electrocuted when his metallically reinforced safety rope contacted an uninsulated 8,000-volt electric power distribution line. P was electrocuted while attempting to remove a pine tree from the backyard of a house owned by a Mrs. Davidge. P was wearing a safety line he had made by inserting a metal wire inside a 13-foot nylon rope. He used the safety line to lash himself to the tree while cutting with his chain saw, and he had inserted the wire in the rope to prevent it from being accidentally severed by the saw. His safety line touched one of the uninsulated distribution lines and he was electrocuted. P filed a wrongful death suit against D. Evidence was presented that P may have been partly responsible for his own death. The trial judge concluded that D was guilty of several negligent acts or omissions that caused the fatal accident: Despite constructive and actual knowledge of the dangers created by its uninsulated lines and right of way conditions, it failed to perform adequate inspections of its electric lines, trim or remove the tree or trees creating the hazard, provide insulated covering of dangerous parts of the lines, or place adequate warnings of the high voltage electricity on or near its uncovered wires. It found that D failed to warn P of the dangers associated with its high voltage distribution lines. The trial judge ultimately found that P did not know of or appreciate the special danger created by the uninsulated overhead high voltage distribution lines; and further that P was not negligent because he was unaware of the extreme danger. The trial court awarded over $1 million in damages. D appealed. The court of appeals reduced the recovery by 70 percent based on a finding that P had been partly at fault. P appealed.