Client Alert: First Responders May Not Assert Comparative Negligence of Plaintiff for Pre-Accident Conduct

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In Harb v. City of Bakersfield (No. F066839, filed 1/23/2015), the California Court of Appeal, Fifth Appellate District, held that where a plaintiff is seeking damages only for aggravation or enhancement of an injury or condition, California will follow the majority view that a plaintiff’s pre-accident conduct cannot constitute comparative negligence when that conduct merely triggers the occasion for aid or medical attention.

In Harb, plaintiff Mohamad Harb, M.D., was driving home from his shift as a physician at Kern Medical Center when he suffered a stroke and drove his car onto a sidewalk. Bakersfield Police arrived at the scene and concluded Dr. Harb’s vomiting, slurred speech and disorientation were the result of alcohol intoxication for which police handcuffed Dr. Harb. An ambulance owned and operated by Hall Ambulance Service arrived shortly after police, but left without Dr. Harb. A second ambulance arrived later and transported Dr. Harb to a hospital where he received treatment and survived, but the brain damage he suffered rendered him unable to care for himself.

Dr. Harb and his wife sued the City of Bakersfield and Hall Ambulance Service, alleging defendants’ delay in getting him to a hospital made the consequences of his stroke much worse. The case was tried before a jury which returned a defense verdict. At trial, plaintiffs objected to the court instructing the jury on comparative negligence. Plaintiffs argued Dr. Harb’s negligent failure to manage his high blood pressure before the accident was irrelevant because: (1) a tortfeasor takes the plaintiff as he/she finds him; and (2) plaintiffs were not seeking to recover damages caused by the stroke, only damages resulting from the delay in treatment caused by the defendants.

The Court of Appeal reversed, noting the issue was of first impression in California. The Court of Appeal held it was improper for the trial court to instruct the jury on comparative negligence with regard to Dr. Harb’s pre-accident failure to take blood pressure medication.

In reaching its holding, the Court of Appeal first noted California law has long followed the rule that a tortfeasor takes the plaintiff as he finds him, citing Bowen v. Board of Retirement (1986) 42 Cal.3d 572, 580. With this principle in mind, the Court turned to holdings in other jurisdictions on point. The Court noted the majority of jurisdictions hold that a patient’s conduct prior to seeking medical attention should not be considered in assessing damages. In contrast, the Court of Appeal acknowledged that most jurisdictions have held the concept of contributory negligence can be applied to a patient’s conduct that is concurrent or contemporaneous with the physician’s negligence. The Court discussed, in detail, opinions from Oregon, Tennessee, West Virginia, Montana, Colorado, and Florida.

The Court adopted the majority rule, holding the trial court erred by instructing the jury on Dr. Harb’s pre-accident negligence, reasoning the admitted evidence and jury instruction was irrelevant and resulted in reversible error.

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