Fluent Essays

Your client, Mary Jones, has come into the office after a car accident. The client admits to putting on mascara as she was driving because she was late to work. You are to prepare a memo to your supervising attorney, Jane Doe, outlining what Mary might recover in the case. Mary has $100,000 in damages. You are thinking Mary might be 20 percent at fault in this case.InstructionsUsing Lexis Advance, research Li v. Yellow Cab Company out of California.Including Li v. Yellow Cab Company out of California in your memo, outline what Mary could receive under contributory negligence and under comparative negligence. (( IS ATTACHED BELOW))Also, include in the memo the collateral source rule and subrogation information.Formatting a MemoYour memo needs to be 2-3 pages using double spacing.The sections of a legal memorandum are:Heading or Caption that includes To, From, Date, and Re.FactsIssue(s) PresentedAnswer to IssueReasoning or DiscussionConclusion li_v._yellow_cab_co.__13_cal._3d_804.pdf Unformatted Attachment Preview User Name: Alejandra Quintero Date and Time: Friday, May 22, 2020 8:26:00 AM EDT Job Number: 117429177 Document (1) 1. Li v. Yellow Cab Co., 13 Cal. 3d 804 Client/Matter: -NoneSearch Terms: Li v. Yellow Cab Company out of California Search Type: Natural Language Narrowed by: Content Type Cases Narrowed by -None- | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2020 LexisNexis Alejandra Quintero Questioned As of: May 22, 2020 12:26 PM Z Li v. Yellow Cab Co. Supreme Court of California March 31, 1975 L.A. No. 30277 Reporter 13 Cal. 3d 804 *; 532 P.2d 1226 **; 119 Cal. Rptr. 858 ***; 1975 Cal. LEXIS 210 ****; 40 Cal. Comp. Cases 258; 78 A.L.R.3d 393 NGA LI, Plaintiff and Appellant, v. YELLOW CAB COMPANY OF CALIFORNIA et al., Defendants and Respondents Procedural Posture Plaintiff appealed a judgment of the Superior Court of Los Angeles County (California), which entered judgment in favor of defendant in plaintiffs personal injury case. Subsequent History: [****1] On April 24, 1975, the opinion was modified to read as printed above. Prior History: Superior Court of Los Angeles County, No. 947992, Joseph H. Sprankle, Jr., Judge. Disposition: The judgment is reversed. Core Terms comparative negligence, contributory negligence, fault, cases, common law, proportion, all-or-nothing, courts, concepts, parties, doctrine of last clear chance, new rule, announced, assumption of risk, circumstances, doctrine of contributory negligence, intersection, misconduct, damages, percent, apportionment, continuation, principles, modified, variant, amici, assessing liability, legislative intent, last clear chance, contributed Overview Plaintiff sued defendant for personal injuries following a car accident in which defendants car hit plaintiffs car. However, the trial court found that plaintiff had contributed to the car accident and, thus, was barred from recovery. The court reversed the judgment, holding that the pure form of comparative negligence should be adopted in California in place of the contributory negligence doctrine. The court reasoned that Cal. Civ. Code § 1714 did not preclude judicial action in the area of contributory negligence. Thus, even though plaintiff contributed toward the accident, defendant could be held liable for his portion of fault. However, the damages awarded were to be diminished in proportion to the amount of negligence attributable to plaintiff. Outcome The court reversed, holding that the pure form of comparative negligence should be adopted in California in place of the contributory negligence doctrine. Thus, even though plaintiff contributed toward the accident, defendant could be held liable for his portion of fault. Case Summary Alejandra Quintero Page 2 of 21 13 Cal. 3d 804, *804; 532 P.2d 1226, **1226; 119 Cal. Rptr. 858, ***858; 1975 Cal. LEXIS 210, ****1 HN4[ LexisNexis® Headnotes The rule of liberal construction made applicable to the California Civil Code by its own terms ( Cal. Civ. Code § 4) together with the codes peculiar character as a continuation of the common law ( Cal. Civ. Code § 5) permit if not require that Cal. Civ. Code § 1714 be interpreted so as to give dynamic expression to the fundamental precepts which it summarizes. Those precepts are: (1) One whose negligence has caused damage to another should be liable therefor; and (2) One whose negligence contributed to his own injury should not be permitted to cast the burden of liability upon another. Torts > ... > Defenses > Comparative Fault > General Overview Torts > ... > Defenses > Contributory Negligence > General Overview HN1[ ] Defenses, Comparative Fault Contributory negligence is 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 cooperating with the negligence of the defendant in bringing about the plaintiffs harm. Governments > Legislation > Interpretation Torts > ... > Defenses > Comparative Fault > General Overview HN5[ Torts > ... > Defenses > Contributory Negligence > General Overview ] Defenses, Contributory Negligence Except where the defendant has the last clear chance, the plaintiffs contributory negligence bars recovery against a defendant whose negligent conduct would otherwise make him liable to the plaintiff for the harm sustained by him. Torts > ... > Comparative Fault > Common Law Concepts > Assumption of Risk Torts > ... > Defenses > Comparative Fault > General Overview Torts > ... > Comparative Fault > Common Law Concepts > Last Clear Chance Doctrine Torts > ... > Defenses > Contributory Negligence > General Overview Governments > Legislation > Interpretation HN3[ ] Legislation, Interpretation Cal. Civ. Code § 1714 was not intended to and does not preclude present judicial action in furtherance of the purposes underlying it. Torts > ... > Defenses > Comparative Fault > General Overview HN2[ ] Legislation, Interpretation ] Legislation, Interpretation In determining whether a specific code section was intended to depart from or merely restate the common law, weight is to be accorded the notes and comments of the Code Commissioners. Governments > Legislation > Interpretation HN6[ Risk ] Common Law Concepts, Assumption of When true comparative negligence is adopted, the need for last clear chance as a palliative of the hardships of the all-or-nothing rule disappears and its retention results only in a windfall to the plaintiff in direct contravention of the principle of liability in proportion to fault. Torts > ... > Defenses > Comparative Fault > General Overview Civil Procedure > Remedies > Damages > Punitive Alejandra Quintero Page 3 of 21 13 Cal. 3d 804, *804; 532 P.2d 1226, **1226; 119 Cal. Rptr. 858, ***858; 1975 Cal. LEXIS 210, ****1 Damages Negligence > General Overview Torts > ... > Defenses > Comparative Fault > Intentional & Reckless Conduct HN9[ Risk Torts > ... > Defenses > Comparative Fault > General Overview The doctrines of last clear chance and assumption of risk (insofar as the latter doctrine is but a variant of contributory negligence) are to be subsumed under the general process of assessing liability in proportion to fault, and the court leaves the matter of jury supervision within the broad discretion of the trial courts. HN7[ ] Damages, Punitive Damages The loss of deterrent effect that would occur upon application of comparative fault concepts to willful and wanton misconduct as well as ordinary negligence would be slight, and a comprehensive system of comparative negligence should allow for the apportionment of damages in all cases involving misconduct which falls short of being intentional. The law of punitive damages remains a separate consideration. Civil Procedure > ... > Justiciability > Case & Controversy Requirements > Actual Controversy Constitutional Law > The Judiciary > Case or Controversy > Ripeness Civil Procedure > ... > Justiciability > Ripeness > General Overview HN8[ ] Case & Controversy Requirements, Actual Controversy It is not the proper function of the court to decide unripe issues, without the benefit of adequate briefing, not involving an actual controversy, and unrelated to a specific factual situation. ] Common Law Concepts, Assumption of Civil Procedure > Judicial Officers > Judges > Discretionary Powers Governments > Courts > Authority to Adjudicate Torts > ... > Defenses > Comparative Fault > General Overview Civil Procedure > Judicial Officers > Judges > General Overview HN10[ ] Judges, Discretionary Powers The trial judges of are capable of applying a comparative negligence rule without the court setting guidelines in anticipation of expected problems. The problems are more appropriately resolved at the trial level in a practical manner instead of a theoretical solution at the appellate level. The trial judges are granted broad discretion in adopting such procedures as may accomplish the objectives and purposes expressed in the courts opinion. Torts > ... > Defenses > Comparative Fault > Apportionment of Fault Torts > ... > Comparative Fault > Common Law Concepts > Assumption of Risk Torts > ... > Defenses > Comparative Fault > General Overview Torts > ... > Defenses > Assumption of Risk > General Overview Torts > ... > Comparative Fault > Common Law Concepts > General Overview Torts > ... > Defenses > Comparative Fault > General Overview Torts > ... > Comparative Fault > Common Law Concepts > Assumption of Risk Torts > ... > Comparative Fault > Common Law Concepts > Last Clear Chance Doctrine Torts > ... > Comparative Fault > Common Law Concepts > Last Clear Chance Doctrine Torts > ... > Defenses > Contributory Torts > ... > Defenses > Contributory Alejandra Quintero Page 4 of 21 13 Cal. 3d 804, *804; 532 P.2d 1226, **1226; 119 Cal. Rptr. 858, ***858; 1975 Cal. LEXIS 210, ****1 Negligence > General Overview HN11[ Fault ] Comparative Fault, Apportionment of The all-or-nothing rule of contributory negligence as it presently exists in this state should be and is herewith superseded by a system of pure comparative negligence, the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties. Therefore, in all actions for negligence resulting in injury to person or property, the contributory negligence of the person injured in person or property shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering. Governments > Courts > Judicial Precedent HN12[ ] Courts, Judicial Precedent It is the rule in this state that new rules formed by the court shall have application to cases other than those which are commenced in the future turn upon considerations of fairness and public policy. Headnotes/Summary Summary CALIFORNIA OFFICIAL REPORTS SUMMARY In an automobile accident case, the court, sitting without a jury, found that when defendant entered an intersection, the traffic light was yellow and he was travelling at an unsafe speed. It was also found that plaintiffs left turn across adjacent lanes just before her vehicle was struck by defendants automobile was made when a vehicle was approaching from the opposite direction so close as to constitute an immediate hazard. On the basis of conclusions that plaintiff had been negligent, that her negligence had been a proximate cause of the collision, and that she was barred from recovery by reason of her contributory negligence, the court entered judgment for defendants. (Superior Court of Los Angeles County, No. 947992, Joseph H. Sprankle, Jr., Judge.) The Supreme Court reversed in a decision in which it declared no longer applicable in California courts the doctrine of contributory negligence, and held it must give way to a system of comparative negligence, which assesses liability in direct proportion to fault. Preliminarily, in rejecting the contention that the 1872 enactment of Civ. Code, § 1714, expressing the doctrine of contributory negligence, codified the common law and rendered the doctrine invulnerable to attack in the courts except on constitutional grounds, the court held that the Legislature had not intended to, and did not, preclude present judicial action in furtherance of the statutes purposes. Although recognizing the existence of practical difficulties in application of the comparative negligence system, the court held they were not of sufficient substantiality to dissuade against the charting of a new course. In summary, the court held that the all-or-nothing rule of contributory negligence as it presently exists in this state is superseded by a system of pure comparative negligence, the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties. In all actions for negligence resulting in injury to person or property, the contributory negligence of the person injured in person or property shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering. The doctrine of last clear chance is abolished, and the defense of assumption of risk is also abolished to the extent that it is merely a variant of the former doctrine of contributory negligence. Both last clear chance and assumption of risk are to be subsumed under the general process of assessing liability in proportion to negligence. Pending future judicial or legislative developments, trial courts are to use broad discretion in seeking to assure that the principle stated is applied in the interest of justice and in furtherance of the purposes and objectives set forth in the opinion. On the question of retroactivity, the court held that its opinion is to be applicable to all cases in which trial has not begun before the date on which the decision becomes final in the Supreme Court, but that it shall not be applicable to any case in which trial began before that date, other than the instant case, except that if any judgment be reversed on appeal for other reasons, the opinion shall be applicable to any retrial. In view of the courts decision that plaintiff should have the benefit of the new rule, she was held entitled to reversal of the judgment which had been grounded on the contributory Alejandra Quintero Page 5 of 21 13 Cal. 3d 804, *804; 532 P.2d 1226, **1226; 119 Cal. Rptr. 858, ***858; 1975 Cal. LEXIS 210, ****1 negligence doctrine. (Opinion by Sullivan, J., with Wright, C. J., Tobriner, J., and Burke, J., * concurring. Separate concurring and dissenting opinion by Mosk, J., and separate dissenting opinion by Clark, J., with McComb, J., concurring.) Headnotes CALIFORNIA OFFICIAL REPORTS HEADNOTES Classified to California Digest of Official Reports, 3d Series CA(1)[ ] (1) Statutes § 4—Operation and Effect—Judicial Evolution. --In enacting the provisions of the Civil Code declarative of the common law, the Legislature did not intend to insulate the matters therein expressed from further judicial development. Rather, it was the Legislatures intention to announce and formulate existing common law principles and definitions for purposes of orderly and concise presentation and with a distinct view toward continuing judicial evolution. CA(2)[ ] (2) Statutes § 42—Construction—Aids—Code Commissioners Notes. --In determining whether a specific code section was intended to depart from, or merely restate, the common law, weight is to be accorded to the notes and comments of the Code Commissioners. CA(3)[ ] (3) Negligence §§ 41, 46—Exercise of Care by Plaintiff— Contributory Negligence: Last Clear Chance. --The defense of contributory negligence and its mitigative corollary, the doctrine of last clear chance, as they are stated in Civ. Code, § 1714, are of common law origin. CA(4)[ ] (4) Negligence § 41—Contributory Negligence— Construction of Statute. --The rule of liberal construction made applicable to the Civil Code by Civ. Code, § 4, together with the codes peculiar character as a continuation of the common law, permit, if not require, that Civ. Code, § 1714, making a person responsible for injury occasioned to another by want of ordinary care or skill except so far as the latter brought the injury on himself, be interpreted so as to give dynamic expression to the fundamental precepts which it summarizes. These precepts are basically, first, that a person whose negligence has caused damage to another should be liable therefor, and second, that a person whose negligence has contributed to his own injury should not be permitted to cast the burden of liability on another. CA(5)[ ] (5) Negligence § 1—Judicial Action in Furtherance of Purposes Underlying Statute. --Civ. Code, § 1714, making a person responsible for injury occasioned to another by want of ordinary care or skill except so far as the latter brought the injury on himself, was not intended to, and does not, preclude present judicial action in furtherance of the purposes underlying that statute. CA(6)[ ] (6) Negligence §§ 36, 41—Comparative Negligence: Contributory Negligence. --The all-or-nothing rule of contributory negligence as it presently exists in this state is superseded by a system of pure comparative negligence, the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties. In all actions for negligence resulting in injury to person or property, the contributory negligence of the person injured in person or property shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering. CA(7)[ ] (7) * Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council. Negligence § 46—Last Clear Chance. Alejandra Quintero Page 6 of 21 13 Cal. 3d 804, *804; 532 P.2d 1226, **1226; 119 Cal. Rptr. 858, ***858; 1975 Cal. LEXIS 210, ****1 --The doctrine of last clear chance is abolished and is to be subsumed under the general process of assessing liability in proportion to negligence. CA(8)[ ] (8) Negligence § 37—Assumption of Risk. --The defense of assumption of risk is abolished to the extent that it is merely a variant of the former doctrine of contributory negligence. It is to be subsumed under the general process of assessing liability in proportion to negligence. CA(9)[ ] (9) Curiae on behalf of Defendants and Respondents. Judges: In Bank. Opinion by Sullivan, J., with Wright, C. J., Tobriner, J., and Burke, J., * concurring. Separate concurring and dissenting opinion by Mosk, J., and separate dissenting opinion by Clark, J., with McComb, J., concurring. Opinion by: SULLIVAN Opinion Courts § 34—Prospective and Retroactive Decisions. --The matter of whether a decisional rule shall have application to cases other than those which are commenced in the future turns on considerations of fairness and public policy. On the question of retroactivity, the instant opinion is to be applicable to all cases in which trial has not begun before the date on which the decision becomes final in the Supreme Court, but it shall not be applicable to any case in which trial began before that date, other than the instant case, except that if any judgment be reversed on appeal for other reasons, the opinion shall be applicable to any retrial. Counsel: Hall, Moore & Norkin and Joseph E. Hall for Plaintiff and Appellant. Mestad & Sanborn, John B. Mestad, Robert E. Cartwright, Edward I. Pollock, William H. Lally, Stephen I. Zetterberg, Robert G. Beloud, David B. Baum and Leonard Sacks as Amici Curiae on behalf of Plaintiff and Appellant. Hagenbaugh & Murphy, Herbert F. Blanck and William D. Stewart for Defendants and Respondents. Ives, Kirwan & Dibble, Martin J. Kirwan, Robert A. Seligson, Gilbert, Kelly, Crowley & Jennett, Roger E. Kelly, Ellis J. Horvitz and Arthur E. Schwimmer as Amici [*808] [**1229] [***861] [****2] In this case we address the grave and recurrent question whether we should judicially declare no longer applicable in California courts the doctrine of contributory negligence, which bars all recovery when the plaintiffs negligent conduct has contributed as a legal cause in any degree to the harm suffered by him, and hold that it must give way to a system of comparative negligence, which assesses liability in direct proportion to fault. As we explain in detail infra, we conclude that we should. In the course of reaching our ultimate decision we conclude that: (1) The doctrine of comparative negligence is preferable to the all-or-nothing doctrine of contributory negligence from t ... 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