Playing the Percentages: A Study of Comparative Fault. By Lee M. Mendelson Mendelson, Goldman & Schwarz Los Angeles, CA

Transcription

1 Playing the Percentages: A Study of Comparative Fault By Lee M. Mendelson Mendelson, Goldman & Schwarz Los Angeles, CA

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3 Allocation of Fault

4 Systems for Allocating Fault 1. Pure Contributory Negligence 2. Pure Comparative Negligence 3. Modified Comparative Fault

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7 Pure Contributory Negligence 1. Even if the Plaintiff is only 1% at fault, the Plaintiff is barred from recovering damages 2. This is the law in the District of Columbia and only four states (AL, MD, NC, VA)

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9 Example: In Alabama, a pure contributory negligence jurisdiction, an older partially blind man in poor health walks his horse across a country road in the day time with good visibility. There is no cross walk. A red Porsche convertible comes speeding down the road at 90 MPH and hits the horse. The horse dies. The old man sues the driver of the Porshe. Will the old man recover?

10 Vote A. Yes. The old man will recover damages B. No. The old man will not recover damages

11 Results of voting

12 The correct response is B. The old man will not recover damages because he was at least 1% at fault

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15 Pure Comparative Fault 1. In a Pure Comparative Fault system, damages are apportioned based on the parties percentage of fault 2. The Pure Comparative Fault Rule allows a Plaintiff to recover even if the Plaintiff is 99% at fault. 3. There are 12 states that recognize the Pure Comparative Fault Rule

16 Example An older partially blind man in poor health walks his horse across a country road in the day time with good visibility. There is no cross walk. A red Porsche convertible comes speeding down the road at 90 MPH and hits the horse. The horse dies. This happens in Alaska, which has the Pure Comparative Negligence Rule. The old man sues the driver of the Porshe. Will the old man recover?

17 Vote A. Yes. The old man will recover damages B. No. The old man will not recover damages

18 Results

19 Answer The answer is A. The old man is partially at fault since he was crossly the road without a crosswalk, but the Porsche driver is also at fault for speeding down the roadway. The old man s recovery will be diminished based on his percentage of fault

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22 Modified Comparative Fault 1. Each party is held responsible for damages in proportion to his or her own percentage of fault, unless the Plaintiff's percentage reaches a certain threshold. 2. There are 33 states that recognize the Modified Comparative Fault Rule.

23 Forms of Modified Comparative Fault 1. 49/51 Jurisdiction: A Plaintiff is entitled to recover from the Defendant to the degree or percentage that the Plaintiff was not at fault only if the Plaintiff is less at fault than the Defendant 2. 50/50 Jurisdiction: A Plaintiff is entitled to recover the Defendant as long as the Plaintiff is not over 50% at fault (equally or less at fault)

24 Example An older partially blind man in poor health walks his horse across a country road in the day time with good visibility. There is no cross walk. A red Porsche convertible comes speeding down the road at 90 MPH and hits the horse. The horse dies. This happens in Arkansas, which has 50/50 Modified Comparative Fault. The old man sues the driver of the Porsche. Will the old man recover?

25 Vote A. Yes. The old man will recover damages B. No. The old man will not recover damages

26 Results

27 Answer The Answer is A. The old man is not 50% at fault. He should recover based on the Defendant s percentage of fault

28 Revised Example A 25 year old healthy man that is extremely intoxicated gallops quickly on this horse across a country road in the day time with good visibility. There is no cross walk. A red Porsche convertible comes speeding down the road at 90 MPH and hits the horse. The horse dies. This happens in Arkansas, which has 50/50 Modified Comparative Fault. The young alcoholic sues the driver of the Porsche. Will the old man recover?

29 Vote A. Yes. The young drunkard will recover damages B. No. The young man will not recover damages C. Maybe

30 Answer The Answer is C. This is a close call for the jury.

31 Blindfolded v. Sunshine States 1. Blindfolded states are Modified Comparative Fault states where the jury is NOT told about the bar to recovery based on percentage of fault 2. Sunshine states are Modified Comparative Fault states where the jury is told about the bar to recovery based on percentage of fault

32 Mckey v. Torino Pizza Case Study 1. The authors of this case study videotaped two versions of a simulated personal injury trial under comparative fault rules 2. In one trial, the judge instructs the jury under blindfolded rules. 3. In the second trial, the judge instructs the jury under sunshine rules

33 Mckey v. Torino Pizza Case Study To illustrate how these systems work, we ll apply them to a set of facts from an actual case from Indiana, McKey v.torino Pizza Co. Inc., which was the subject of a landmark study comparing the Modified Comparative Fault systems, chosen because the case turned on facts open to interpretation. (The Effect of Lifting the Blindfold from Civil Juries Charged with Apportioning Damages in Modified Comparative Fault Cases: An Empirical Study of the Alternatives, Liebman et al. 35 Am. Bus. L.J. 349 (1998) ( The McKey Study ).)

34 Mckey v. Torino Pizza Case Study McKey ( M ) was a 16-year-old attractive/ popular cheerleader, who suffered severe brain damage in a traffic accident that occured at 7:00 a.m., on her way to school, when, traveling north, she turned left (west) from an access road, with limited sight-lines, onto a main west-east highway and was hit by a van driven east-bound by Drummond ( D ), an employee of Torino Pizza ( T ), a large national company. The T- intersection where the collision occurred had a stop sign at the access road. The highway was a 55 mph zone. The intersection was in a small valley. D was descending from the west side slope of the valley when he T-boned the driver s side of M s small car

35 Mckey v. Torino Pizza Case Study At the crest of the hill on the west side of the highway, before the downslope leading to the intersection, there is an advisory sign that recommends a vehicle reduce speed to 40 mph.

36 Mckey v. Torino Pizza Case Study D testified that M stopped at the stop sign but then pulled out in front of him, that he braked but wasn t able to avoid hitting her. He said that he had been going 55 mph but had pulled his foot off the accelerator as he was going down the western slope towards the intersection and thinks he was going about 50 mph when he hit her.

37 Mckey v. Torino Pizza Case Study M has no memory of the crash due to her brain damage. Her experts say that had D been on looking out for traffic as expert truck drivers should do, he should have not only taken his foot off of the accelerator as soon as he saw M s car at the stop sign, but should have had his foot on the brake to be ready to slow down if necessary, and if he had done so, he could ve avoided hitting M. Her expert says that D was going 50 mph, at the point of the collision and that he should have been traveling 40 mph for the conditions, as recommended by the advisory sign. Her experts also say that there were no skid marks, indicating that Drummond was inattentive and did not brake or attempt to avoid the collision.

38 Mckey v. Torino Pizza Case Study D s expert testified that he was traveling mph at the time of impact; that D had the right of way; and that M caused the accident because she made an illegal left turn. The defense also introduced evidence that M s mother had advised her to take a longer but safer way to school. That the sight-lines for a person making a left hand turn at the intersection were limited and dangerous.

39 Mckey v. Torino Pizza Case Study D s expert testified that he was traveling mph at the time of impact; that D had the right of way; and that M caused the accident because she made an illegal left turn. The defense also introduced evidence that M s mother had advised her to take a longer but safer way to school. That the sight-lines for a person making a left hand turn at the intersection were limited and dangerous.

40 The Percentage Game:

41 Who finds M was not at fault? Who finds M was 10% at fault? Who finds M was % at fault? Who finds M was 30-40% at fault? Who finds M was 40-50% at fault? Who finds M was 50-60% at fault? Who finds M 60-70% at fault? Who finds M 70-80% at fault? Who finds M 80-90% at fault? Who finds M % at fault?

42 Who finds D was not at fault? Who finds D was 10% at fault? Who finds D was % at fault? Who finds D was 30-40% at fault? Who finds D was 40-50% at fault? Who finds D was 50-60% at fault? Who finds D 60-70% at fault? Who finds D 70-80% at fault? Who finds D 80-90% at fault? Who finds D % at fault?

43 Who finds S was not at fault? Who finds S was 10% at fault? Who finds S was % at fault? Who finds S was 30-40% at fault? Who finds S was 40-50% at fault? Who finds S was 50-60% at fault? Who finds S 60-70% at fault? Who finds S 70-80% at fault? Who finds S 80-90% at fault? Who finds S % at fault?

44 McKey Study Results Blindfolded Jury After Adjustment for Mod. Comp. Fault: McKey: Average: 65.6% Torino: Average: 16.3% State: Average 18.3%

45 McKey Study Results Sunshine Jury After Adjustment for Mod. Comp. Fault: McKey: Average: 40.8% Torino: Average: 41.6% State: Average 17.6%

46 Determining Liability

47 Liability Analysis 1. Statements 2. Police Reports 3. Photos 4. Scene Investigation 5. Vehicle Registration 6. Accident Reconstruction

48 Police Reports Persuasive even though not admissible or dispositive. Can be used to obtain variables to apply Accident Reconstruction Formulas.

49 Accident Reconstruction Formulas 1) Velocity; 2) Perception and Reaction Time; 3) Maximum Emergency Braking Distance; 4) Total Stopping Distance; 5) Deceleration Time: 6) Total Stopping Time: 7) Coefficient of Friction; 8) Skid Marks; & 9) Anti-Lock Brakes.

50 Negligence Per Se Often a police report will find that a party has violated a vehicle code statute. (They may not, and often do not cite a person for the violation, but this does not detract from the possible applicability of the Negligence Per Se rule.)

51 Negligence Per Se The presumptively negligent person then has the burden to rebut the presumption by negating at least one of the above elements.

52 Electronic Data Recorders Probably the most critical fact of using EDR s is having them inspected in a timely fashion. Most EDRs, which are commonly used in commercial vehicles, have a feature that causes them to reset or roll over if the vehicle is continued to be used after an accident. Timely inspection is therefore critical if the EDR is to have any relevance.

53 Ownership Liability 1. The owner of the vehicle is liable for negligent acts of permitted driver 2. Owners may be liable under Negligent Entrustment 3. Respondeat Superior

54 Settlement

55 Keys to Settlement 1. The tools that we have been discussing today are the keys to settlement as well as trial 2. Most cases are settled because what can go wrong will go wrong at trial

56 Pre-suit Settlement 1. Promissory Notes 2. Fair Debt Collection Practice Act

57 Promissory Notes This is the most important to an attorney. A law firm collecting from uninsured motorists will often place the tortfeasor on a promissory note. If the tortfeasor breaks the promise to pay, he will be sued on the Note. This allows the attorney to avoid having to prove negligence.

58 Fair Debt Collection Practices Act A majority of the circuits have held that liability derived from tort does NOT constitute a debt under FDCPA. See Beauvoir v. Israel, C.A (2d Cir. July 21, 2015); Foster v. Amarnek 2014 WL (M.D. May 10, 2014); Hawthorne v. Mac Adjustment, Inc 140 F. 3d 1367 (11 th Cir. 1998)

59 Post Suit 1. Stipulation for Judgment 2. Settlement in Full!!!

60 Mendelson Focus Group

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